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

At issue: Can a judge enforce environmental rules at the expense of national defense training?

By , Staff writer of The Christian Science Monitor

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.

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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.

The order was later amended to allow the Navy to conduct training exercises if it halted sonar transmissions whenever a marine mammal was seen within 1.25 miles of a sonar source. In addition, the judge ordered the Navy to reduce sonar power by 75 percent during certain thermal conditions in the ocean. The chief of naval operations said the judge's order jeopardized naval training, the timely deployment of naval forces, and US national security.

Limitations on the use of sonar would "cripple" the Navy's ability to conduct realistic predeployment training and would prevent US forces from being able to detect a submarine before it was in position to attack, according to the Navy.

In urging the Supreme Court to overturn the Ninth Circuit's approval of the judge's order, government lawyers said the ruling "poses substantial harm to national security, and improperly overrides the collective judgments of the political branches and the nation's top naval officers."

They added: "The record contains 'no evidence' that marine mammals have been harmed during the 40 years of ... sonar training [off southern California]."

Lawyers for the NRDC counter in their brief that federal regulations require the Navy to prepare an environmental impact statement whenever their operations cause environmental harm. The Navy could also take steps to mitigate the anticipated harm, they said.

Instead of complying with the regulations, the Navy refused to file an impact statement and refused to take mitigating action, the NRDC lawyers said.

They wrote that the judge's ruling does not prevent the Navy from effectively training and certifying US forces.

"The district court determined, after an exhaustive review of thousands of pages of evidence, that there was a 'near certainty' that the [training] exercises would cause widespread, irreparable harm to the environment and that the Navy's planned mitigation was 'woefully inadequate,' " wrote Los Angeles lawyer Richard Kendall in his brief on behalf of the NRDC.

The judge further found, Mr. Kendall wrote, that the injunction would be a minimal imposition on the Navy's planned training.

In other action, the high court refused to take up a similar case in which environmentalists challenged the federal government's waiving of compliance with environmental regulations to facilitate the quick construction of a border fence between the United States and Mexico.

At issue in Defenders of Wildlife v. Chertoff was the government's compliance with provisions of the Endangered Species Act and other environmental requirements while constructing a two-mile section of the fence in the San Pedro Riparian National Conservation Area in Arizona.

Homeland Security Secretary Michael Chertoff waived the environmental regulations under authority granted by Congress in 1996 and 2005. Government lawyers argued that Congress amended several federal laws in 2005 to help protect against terrorists entering the US. A federal judge upheld Mr. Chertoff's waiver of the environmental rules and the fence has since been built.

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