Environmental Act’s Reach Disputed

A Justice Department lawyer, defending against environmentalists suing the Navy for its use of low-frequency sonar, ignored a White House office’s objections to argue in court that a basic environmental law does not apply just outside U.S. waters, according to documents obtained by The Times.

A memo by a Navy assistant general counsel and e-mails between Navy officials illuminate a dispute within the administration over whether the National Environmental Policy Act, which requires the government to prepare environmental impact statements before acting, applies in the so-called exclusive economic zone, 12 to 200 nautical miles off U.S. coastlines.

The documents, provided by a congressional aide, state that the Council on Environmental Quality, the White House office that oversees the law’s implementation, and the National Oceanic and Atmospheric Administration disagree with the Navy’s interpretation of the law.

The Justice Department argument was made in a case filed by environmental groups to try to force the Navy to analyze the environmental effects when it tests low-frequency sonar equipment designed to find submarines in shallow waters. The same kind of sonar used in these tests has been blamed for stranding whales of four species in the Bahamas in 2000. Seven of those animals died.

At stake, according to environmentalists and their congressional supporters, is whether citizens and the courts will have a right to protect the aquatic environment from a broad range of activities in the 188-mile-wide zone.

“If the government was to adopt a policy that [the law] does not apply in the exclusive economic zone, it would be a major shift of environmental policy and it would be legally wrong,” said Andrew Wetzler, an attorney for the Natural Resources Defense Council, which is involved in the case.

The military, which undertakes its own environmental assessments, argues that losing the case would mean sacrificing military readiness to bureaucracy.

In an e-mail to colleagues, Thomas N. Ledvina, the Navy’s deputy assistant general counsel, stressed the importance of the case since most of the Navy’s operations and research take place within the exclusive economic zone. “Because we already do environmental analysis ... this is a case of greatly increased regulatory pain without much corresponding environmental gain,” he wrote.

Democratic members of Congress interpreted the latest action as another Bush administration effort to weaken protections for valuable natural resources.

“I am incredulous that the Bush administration may actually be considering rolling back central environmental protections of our oceans and marine environment,” said Sen. John F. Kerry of Massachusetts, chairman of the Commerce subcommittee on oceans, atmosphere and fisheries and a possible 2004 presidential candidate.

Officials from the various agencies refused to discuss the internal dispute.

The Council on Environmental Quality convened a meeting Tuesday “to develop a unified position,” according to the Navy memo. But Dana Perino, a Justice Department spokeswoman, said “no agency objected to [the Navy’s] litigating position.”

However, since the issue of whether the National Environmental Policy Act applies in the exclusive economic zone had never been litigated, Justice Department lawyers sought input from various agencies, according to a Justice Department attorney, who spoke on the condition that he not be named because the case is still in litigation.

They found a variety of interpretations. The National Marine Fisheries Services, which is under the National Oceanic and Atmospheric Administration, for example, has an official policy of applying the act in the zone.

In the case, the Justice Department is arguing that the law would not have extraterritorial application unless Congress explicitly applied it, which it did not.

Environmental groups argue that the environmental policy act concerns how policies are made, so it applies to U.S. government policy decisions, regardless of where their effects may be felt.