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

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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