Metropolitan News-Enterprise


Thursday, November 13, 2008


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High Court Lifts Restrictions on Navy Sonar off California Coast


From Staff and Wire Service Reports


The U.S. Supreme Court yesterday overturned restrictions imposed by a federal district judge on the Navy’s use of sonar in training exercises off the California coast, a defeat for environmental groups who say the sonar can harm whales and other marine mammals.

“We do not discount the importance of plaintiffs’ ecological, scientific, and recreational interests in marine mammals,” Chief Justice John Roberts wrote for the court. “Those interests, however, are plainly outweighed by the Navy’s need to conduct realistic training exercises to ensure that it is able to neutralize the threat posed by enemy submarines.”

Roberts was joined by Justices Samuel Alito, Anthony Kennedy, Antonin Scalia and Clarence Thomas.

Justice Stephen Breyer concurred in part and dissented in part, agreeing with the majority that the lower courts failed to adequately explain their conclusion that equity favored the plaintiffs, but arguing that the case should be sent back to the district court for the entry of a modified injunction that would be in place until the Navy completes an environmental impact statement that it has agreed to prepare.

Modified Injunction

Justice John Paul Stevens joined Breyer’s opinion in part, but declined to endorse his call for a modified injunction. Justice Ruth Bader Ginsburg, joined by Justice David Souter, dissented and argued that there was sufficient evidence of harm to uphold the injunction.

The Navy says it needs to conduct exercises so that its “strike groups”—groups of surface ships, submarines, and aircraft centered around an aircraft carrier or amphibious assault ship—will be properly trained and ready to respond to threats potentially posed by diesel electric submarines.

The area in which the exercises is conduct, the Navy contends, is the only location on the West Coast that is relatively close to land, air and sea bases as well as amphibious landing areas.

The Ninth U.S. Circuit Court of Appeals last year directed U.S. District Judge Florence-Marie Cooper of the Central District of California to figure out exactly how to fix the problem it said was apparent with the sonar. The panel directed that an appropriately tailored injunction be entered prior to further exercises.

Harm Alleged

In 2006, Cooper granted a preliminary injunction against use of medium frequency active sonar during 14 exercises scheduled for 2007 through 2009. The Natural Resources Defense Council and other plaintiffs contended the sonar harms whales and other marine mammals, while government lawyers argued that the injunction would harm national security.

Medium frequency active sonar bounces a loud noise off the hulls of submarines, thus detecting their presence. The NRDC says the Navy’s sonar causes whales to beach themselves, among other environmental harms.

A Ninth Circuit panel said that the injunction was overly broad, since there was evidence in the record that mitigation measures could be taken to bring the exercises into compliance with federal environmental laws. That panel, however, found that the plaintiffs met their burden of showing that they were likely to prevail on the merits and that irreparable harm would occur unless some form of injunction was entered.

As redrawn earlier this year, the injunction created a 12-nautical-mile no-sonar zone along the coast and required the Navy to shut off all sonar use within 2,200 yards of a marine mammal. That prompted President Bush to step in and sign a waiver exempting the Navy from a section of the Coastal Zone Management Act so training could continue as the government appealed the decision.

Ninth Circuit

The Ninth Circuit sided with the lower court, however, and said the president could not excuse the Navy from its obligation to abide by the injunction. The appeals court, however, gave the Navy leeway to lessen the restrictions if it determined it was in a critical maneuver point, so that sonar shutdown would begin at 1,000 meters (about 1,093 yards) and full sonar shutdown would come at 200 meters (about 219 yards). Those are the restrictions the Navy is currently operating under.

The Navy maintained it already minimizes risks to marine life. It has monitored the ocean off Southern California for the 40 years it has employed sonar without seeing any whale injuries, its attorneys told the courts. 

In seeking review in the Supreme Court, the Navy accepted several of the mitigation measures ordered by the lower courts, but strenuously objected to the 2,200-yard buffer—it said 200 yards was reasonable—and to a requirement that it diminish power to 75 percent during “surface ducting.”

Surface ducting occurs when the presence of layers of water of different temperature make it unusually difficult for sonar operators to determine whether a diesel submarine is hiding below. A naval warfare expert declared that the 75 percent condition prevented any meaningful training under such conditions.

The lower courts, Roberts said, employed an erroneous standard by only holding plaintiffs to the burden of proving a possibility of irreparable harm. The correct standard, is a likelihood of irreparable harm, he said, and even if that standard is met, the court must consider the balance of equities.

Roberts said the overall public interest tips “strongly in favor of the Navy,” concluding that the most serious possible injury would be harm to an unknown number of the marine mammals.

“In contrast, forcing the Navy to deploy an inadequately trained anti-submarine force jeopardizes the safety of the fleet,” the chief justice wrote.

Dissenting Opinion

In dissent, Ginsburg said that the Navy’s own assessment predicted substantial and irreparable harm to marine mammals from the service’s exercises. Ginsburg said that “this likely harm ... cannot be lightly dismissed, even in the face of an alleged risk to the effectiveness of the Navy’s 14 training exercises.”

Roberts pointed out that the Ninth Circuit panel acknowledged that the record contained no evidence marine mammals had been harmed.

The NRDC said the ruling is a narrow one.

“I don’t think it establishes a bright line rule,” Joel Reynolds, director of NRDC’s marine mammal protection program, said. “The court acknowledged that environmental interests are important, but in this case that the interest in training was greater, was more significant than interest in the environment.”

The case is Winter v. Natural Resources Defense Council, 07-1239.


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