Environmental groups are fighting President Bush's move to allow US Navy ships to use sonar during exercises off the California coast beginning this week, a new wrinkle in the long-running legal battle that pits military readiness over concerns about whales, porpoises, and dolphins.
The Navy aircraft carrier USS Abraham Lincoln and its accompanying ships began an exercise Wednesday that allows the aircraft carrier's strike group to use sonar to practice detecting submarines in the waters near San Diego before the ships deploy overseas. The Navy says such training is crucial to prepare ship drivers for the threats that lurk in waters around the world.
But that training may not last for long. Environmental groups expect a federal judge to rule against the Navy in the coming days, nullifying an exemption signed by Bush last week that environmentalists believe was unconstitutional. The president, says Richard Kendall, an attorney representing the National Resources Defense Council, used an agency within his own executive branch to overturn the federal court ruling limiting the use of sonar during the exercises.
"The president's effort to use a White House agency to override a court order is very dangerous in our legal system, highly illegal, and completely unjustified," says Mr. Kendall.
The issue between environmentalists' concerns over the protection of marine mammals and the Navy's use of sonar has endured for years. It emerged once again earlier this month when a federal judge in California signed an injunction limiting the Navy's use of sonar off the California coast within 2,200 yards of whales and other mammals.
Administration open to lawsuit
Bush cited national security concerns in signing the exemption to the legal basis of the injunction, effectively reversing the order to limit the training. Bush's move now opens the administration to a challenge that he violated the constitution's separation of powers, Kendall says.
"If the executive branch could decide on its own not to obey a decision of a court, then the president would be above the law," he says. "Everything you learned in school would be overturned."
Environmentalists and marine biologists have long argued that the use of sonar can hurt marine mammals, especially whales, because the sound the sonar makes can cause them to become disoriented, interfering with their ability to find food, avoid predators, navigate, and communicate, sometimes resulting in them beaching themselves.
US District Judge Florence-Marie Cooper signed an injunction Jan. 3 that limited the Navy's ability to use sonar during training planned for this month in an area off the southern California coast known as the Southern California Range Complex.
They say practice is also the key to detecting new, sophisticated submarines. More than 40 countries use diesel-electric submarines that can be all the more stealthy and inexpensive, and accessed by potential enemies of the US.
"We cannot in good conscience send American men and women into potential trouble spots without adequate training to defend themselves," says Adm. Gary Roughead, chief of naval operations in a statement released by the Navy.
Navy officials say they've already tried to mitigate the risk to marine mammals and find it frustrating that they are seen as not having done anything to address the issue. The sea service has employed nearly 30 different mitigation measures to be implemented anytime sonar is used Navy officials say.
Navy spotters to look for whales
For example, the ships will use spotters to look for mammals in the water and employ passive acoustic monitoring devices to help detect animals during exercises using sonar, which is then turned off if a marine mammal comes within established distances of a ship using it. Currently, ships captains reduce their use of sonar by 75 percent if a whale is detected within 1,000 meters of a ship; 90 percent if a whale is found within 500 meters, and turn it off altogether at 200 meters away.
Bush's exemption is to expire by the end of the year. But Judge Cooper is expected to rule within days of reviewing the briefs filed by the NRDC and other groups on Wednesday, and the Navy's response, expected on Friday. The Navy is continuing with its exercises until further notice. "We absolutely believe that national security and protecting marine mammals are not mutually exclusive ends," says Cmdr. Jeff Davis, Navy spokesman.