Court will review Navy sonar appeal (June 23, 2008)

The Supreme Court has agreed to determine whether the U.S. Navy must limit its use of high-powered sonar off the Southern California coast to protect marine mammals.

Last year, a coalition of conservation organizations, including the Natural Resources Defense Council, filed suit, contending that the Navy’s use of sonar in training exercises near San Diego was harming marine mammals.

The U.S. District Court for the Central District of California granted the environmental groups’ request for an injunction, finding that the Navy violated the National Environmental Policy Act by failing to prepare an Environmental Impact Statement.

In the order, District Judge Florence-Marie Cooper limited the Navy's use of sonar when marine mammals come within 2,200 yards of a ship and said sonar could not be used with 12 miles of the coast.

President Bush intervened in the case on national security grounds, signing a waiver that exempted the Navy from a section of the Coastal Zone Management Act so training could go forward while government appealed the decision.

Adhering to the law would "undermine the navy's ability to conduct realistic training exercises that are necessary to ensure the combat effectiveness of carrier and expeditionary strike groups," Bush said in a statement.

In February 2008, a three-judge panel on the U.S. Court of Appeals for the Ninth Circuit affirmed the injunction but with some modifications. During a "critical point" in a training exercise, the Navy may use the sonar at a lower decibel level even when mammals are spotted within a mile of the ship, the appeals court ruled.

"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. "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 Bush administration urged the Supreme Court to review the case, arguing in its filing that environmental regulations are "not a suicide pact."

“The decision poses substantial harm to national security, and improperly overrides the collective judgments of the political Branches and the Nation’s top naval officers
regarding the overriding public interest in a properly trained Navy,” the government argued in the brief.

In response, the NRDC reiterated its contention that the Navy should not be exempt from the law. The group also focused on the serious potential harm to marine life.

"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 attorney Richard Kendall on behalf of the NRDC.

The Supreme Court accepted the case for review during the last week of its 2007-2008 term. Oral arguments are expected to be held sometime in the fall.

Question presented: Whether lower courts properly enjoined the Navy’s use of sonar during certain training exercises for failure to conduct an environmental impact statement over a finding of “emergency circumstance” by the Council on Environmental Quality.