Case of sonar's effects on whales heads to high court

The US Supreme Court announced on Monday it would examine whether a federal judge acted properly in ordering the US Navy to alter its sonar training procedures to protect whales and dolphins off the California coast.

At issue is whether the judge – and a panel of the Ninth Circuit Court of Appeals, which upheld the judge's ruling – overstepped their authority by enforcing environmental regulations at the expense of national defense training in wartime.

US environmental regulations are "not a suicide pact," the Bush administration argued in its brief urging the high court to take up the case. The case, Winter v. Natural Resources Defense Council, will be heard in the high court's next term, which begins in October.

President Bush, the Navy, and the Council on Environmental Quality all concluded as a matter of national security that the sonar training should be permitted to continue without environmental restrictions.

A three-judge panel of the Ninth Circuit disagreed. "While we are mindful of the importance of protecting national security, courts have often held in the face of assertions of potential harm to military readiness, that the armed forces must take precautionary measures to comply with the law during its training," Circuit Judge Betty Binns Fletcher wrote in a Feb. 29 decision. "The district court here carefully balanced the significant interests and hardships at stake to ensure that the Navy could continue to train without causing undue harm to the environment."

The case arises from a lawsuit filed by the Natural Resources Defense Council (NRDC) seeking to protect whales and other marine mammals from the potentially harmful effects of Navy sonar used during training missions off the California coast.

The environmental group says the sonar can cause physical injury. Beaked whales are particularly vulnerable, studies show.

In 2000, a number of beaked whales beached themselves and died in the Bahamas following a US Navy sonar training exercise nearby.

In August 2007, a federal judge ordered the Navy to cease all training using mid-frequency active sonar off southern California. The court said there was a "near certainty" of irreparable harm to the environment, with 8,000 whales or dolphins potentially experiencing temporary hearing loss and an estimated 466 cases of permanent injury to whales.

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