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Some legal scholars Wednesday questioned what they called the administration's self-manufactured emergency, noting that it had not surfaced as a legal argument until after nearly a year of litigation.
If the Navy had complied with the National Environmental Policy Act to begin with, it wouldn't be in an emergency situation, said Daniel P. Selmi, an environmental law professor at Loyola Law School in Los Angeles.
At the same time, he said, he was impressed with the "full-court press" of the White House, the Pentagon and federal agencies, including the filing of a classified affidavit by Navy admirals that can be seen only by the judges.
"The federal government is pitching it as a full-blown matter of national security," Selmi said. "That puts an enormous pressure on judges to defer to the government."
Deborah A. Sivas, director of the Environmental Law Clinic at Stanford Law School, said the regulations implementing the environmental policy act don't define what constitutes an emergency.
But she added that the courts often defer to a federal agency's long-standing interpretation of the law.
"It's an interesting question," Sivas said. "Is the agency's interpretation a reasonable one? Is it a reasonable loophole?"
This isn't the first time the federal government has tried to short-circuit lawsuits brought by conservationists concerned about the effects of sonar on marine mammals. The Pentagon tried to circumventthe suit last year by exempting the Navy's training exercises from the Marine Mammal Protection Act.
But the suit went forward under the two other laws, leading to Cooper's Jan. 3 injunction, which set out the toughest restrictions ever imposed on the use of sonar during training missions.
The Navy asserts that it has 29 measures to protect marine mammals from harmful effects of mid-frequency active sonar, which has been linked to panicked behavior and even death of marine mammals.
Citing the Navy's own studies, Cooper concluded that planned exercises off Southern California "will cause widespread harm to nearly 30 species of marine mammals, including five species of endangered whales and may cause permanent injury and death."
Mid-frequency active sonar, first developed in the later days of World War II, has grown more powerful and has been used increasingly in coastal waters, the habitat of most marine mammals.
ken.weiss@latimes.com
Times staff writer Julian E. Barnes contributed to this report from Washington.
If the Navy had complied with the National Environmental Policy Act to begin with, it wouldn't be in an emergency situation, said Daniel P. Selmi, an environmental law professor at Loyola Law School in Los Angeles.
At the same time, he said, he was impressed with the "full-court press" of the White House, the Pentagon and federal agencies, including the filing of a classified affidavit by Navy admirals that can be seen only by the judges.
"The federal government is pitching it as a full-blown matter of national security," Selmi said. "That puts an enormous pressure on judges to defer to the government."
Deborah A. Sivas, director of the Environmental Law Clinic at Stanford Law School, said the regulations implementing the environmental policy act don't define what constitutes an emergency.
But she added that the courts often defer to a federal agency's long-standing interpretation of the law.
"It's an interesting question," Sivas said. "Is the agency's interpretation a reasonable one? Is it a reasonable loophole?"
This isn't the first time the federal government has tried to short-circuit lawsuits brought by conservationists concerned about the effects of sonar on marine mammals. The Pentagon tried to circumventthe suit last year by exempting the Navy's training exercises from the Marine Mammal Protection Act.
But the suit went forward under the two other laws, leading to Cooper's Jan. 3 injunction, which set out the toughest restrictions ever imposed on the use of sonar during training missions.
The Navy asserts that it has 29 measures to protect marine mammals from harmful effects of mid-frequency active sonar, which has been linked to panicked behavior and even death of marine mammals.
Citing the Navy's own studies, Cooper concluded that planned exercises off Southern California "will cause widespread harm to nearly 30 species of marine mammals, including five species of endangered whales and may cause permanent injury and death."
Mid-frequency active sonar, first developed in the later days of World War II, has grown more powerful and has been used increasingly in coastal waters, the habitat of most marine mammals.
ken.weiss@latimes.com
Times staff writer Julian E. Barnes contributed to this report from Washington.
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