Bush acts to lift curbs on Navy sonar use

President Bush on Wednesday moved to exempt Navy sonar training missions off Southern California from complying with key environmental laws, an effort designed to free the military from court-ordered restrictions aimed at protecting whales and dolphins.

The president’s directive was designed to short-circuit a long-running battle in which environmental groups have won court victories that frustrated the Navy’s preparations for nine training missions over the next year, the first one set to begin next week.

The battle pits concerns over injuries to marine mammals against troop readiness and national security. But with Bush’s latest action, it took on overtones of a struggle between the administrative and judicial branches of government.

U.S. District Judge Florence-Marie Cooper in Los Angeles, who ordered the restrictions, has called the Navy’s plans “grossly inadequate to protect marine mammals from debilitating levels of sonar exposure.”

By contrast, the Navy asserts that it’s already doing enough to safeguard marine mammals from harmful effects of the mid-frequency active sonar it uses to hunt for quiet diesel-electric submarines now operated by Iran, North Korea and dozens of other countries.

In a memo justifying his action, Bush did not address environmental concerns. He said his decision would “enable the Navy to train effectively” for activities “which are essential to national security” and “in the paramount interest of the United States.”

The White House directive, issued late Tuesday and released Wednesday, set off a daylong rush through federal courthouses by Justice Department attorneys and lawyers for environmental groups.

“We will vigorously oppose the president’s illegal waiver of federal law,” said Joel Reynolds, a senior attorney with the Natural Resources Defense Council. Bush’s action was “an end-run” around the nation’s environmental laws, Reynolds said.

The complex legal situation involves two federal environmental laws and Cooper’s court order. One law, the Coastal Zone Management Act, is designed to protect coastal and marine resources, including whales and other marine mammals. It has a provision allowing the president to exempt certain federal activities from the law’s limits, said Peter Douglas, executive director of the California Coastal Commission.

The other law cited by environmental groups, the National Environmental Policy Act, does not give the president such unambiguous power.

Neither does Bush have the legal power to overturn a federal court order. So Justice Department lawyers followed his move with legal papers asking the federal courts to remove the order, which was a preliminary injunction that imposed an array of restrictions on the use of sonar, including its shutdown when marine mammals ventured within 2,200 yards of sonar devices.

The Navy indicated Wednesday that it will not proceed with its training missions unless the injunction is set aside.

The Justice Department, representing the Navy, asked a three-judge panel of the U.S. 9th Circuit Court of Appeals to set aside the restrictions by Friday.

Justice Department lawyer Allen M. Brabender said Cooper’s order “profoundly interferes with the Navy’s global management of U.S. strategic forces, its ability to conduct warfare operations, and ultimately places the lives of American sailors and Marines at risk.”

“Each day that the injunction remains in force the Navy and national security suffer grievous harm,” Brabender wrote.

The appeals court responded late Wednesday by sending the case back to Cooper, saying the Navy needed to ask her first. Lawyers for the Navy plan to ask the judge to issue a decision by this afternoon.

Meanwhile, the plaintiffs were left watching a legal ping-pong match, hoping they would get a chance to weigh in on the case.

Coastal Commission director Douglas said he found the Bush directive “troubling” and “another example of this Republican administration overriding environmental protections under the banner of fear.”

The commission, Douglas said, has no clear way to fight Bush’s action, the first presidential override of the coastal management law that since 1972 has given states the right to review federal activities that affect their coastal resources.

The legal standing of the White House effort to override the environmental policy act is less clear. The White House Council on Environmental Quality asserted that regulations dating to the 1970s allow it to grant the Navy “alternative arrangements” in case of emergencies.

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 circumvent the 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.

--

Timeline

Oct. 30, 2006: The Navy submits plans for 14 training exercises off Southern California. The California Coastal Commission begins review under the Coastal Zone Management Act.

Jan. 10, 2007: The Coastal Commission instructs the Navy to take additional steps to protect marine mammals when using mid-frequency active sonar.

Feb. 12, 2007: The Navy declines to include additional safeguards.

March 22, 2007: The Coastal Commission and environmental groups file lawsuits.

Aug. 7, 2007: U.S. District Judge Florence-Marie Cooper issues a preliminary injunction, banning the Navy from using mid-frequency sonar in upcoming exercises until the court can sort out the issues.

Aug. 31, 2007: U.S. 9th Circuit Court of Appeals sets aside the injunction, pending appeal.

Nov. 13, 2007: Appellate judges reinstate the injunction, but instruct Judge Cooper to spell out specific measures the Navy must take so it can hold the exercises.

Jan. 3, 2008: Judge Cooper’s narrowed injunction bans sonar use within 12 nautical miles of the coast and requires extensive monitoring for marine mammals and prompt shutdown of sonar if whales or other mammals come within 2,200 yards.

Jan. 15: President Bush and the White House Council on Environmental Quality move to exempt the Navy’s exercises from the Coastal Zone Management Act and the National Environmental Protection Act. Justice Department lawyers file an emergency motion with U.S. 9th Circuit Court of Appeals, asking it to lift the injunction against the Navy exercises.

Jan. 16: The appeals court sends case back to lower court.

Source: Times staff reports

----

Points of contention

The Navy said it has developed 29 measures to protect marine mammals from potential harm caused by mid-frequency active sonar, but a federal judge called the mitigation plan “grossly inadequate” and ordered additional safeguards. Some key sticking points:

* Under Navy policy, ships must shut down sonar when whales, dolphins or other marine mammals are spotted within 200 yards. The judge expanded that safety zone to 2,200 yards. The Navy predicted this would disrupt training exercises that require continual sonar tracking.

* The judge restricted sonar training in the Catalina basin, an area known for its abundance of protected whales and dolphins. The Navy says it needs to train in conditions this area provides.

* The court ordered that surveillance for marine mammals begin an hour before the exercises start and include aerial surveillance and passive acoustic monitoring to listen for whales and dolphins.

* The court ordered sonar power reductions under certain sea conditions that alter the propagation of sound waves and allow powerful sonar blasts to travel farther than usual. The Navy said it needs to train in these conditions because quiet diesel-electric submarines use them to evade detection.

Source: Times staff reports, U.S. Navy, U.S. District Court