Despite the Supreme Court’s ruling Wednesday that the nation’s security outweighs the need to protect marine mammals from high-powered sonar during Navy training exercises, environmentalists said the fight was far from over.
The court immediately lifted limits on the Navy exercises now being held 12 miles off the Southern California coast, in a victory for the outgoing Bush administration. But the decision doesn’t bind the incoming administration of President-elect Barack Obama to follow the same policy.
Another set of Navy exercises is scheduled for February.
“We don’t know what the Supreme Court decision means for the next go-round. We will have a new commander in chief. It’s a new game,” said Mark Delaplaine, an analyst with the California Coastal Commission.
Lawrence J. Korb, a former Defense Department official who has been an advisor to the Obama campaign, said, “This says the Navy can do this. It doesn’t say they should do it. The new people could come in and say, ‘OK. Let’s find a way to do this differently.’ ”
Saying the court should defer to the military, Chief Justice John G. Roberts Jr. wrote that the Navy needs to train its crews to detect modern, silent submarines, and it cannot be forced to turn off its sonar when whales are spotted nearby.
“The public interest in conducting training exercises with active sonar under realistic conditions plainly outweighs” the concerns voiced by environmentalists, he said, speaking for a five-justice majority. This “does not strike us as a close question,” he added.
Environmentalists contend that the sonar has a possible deafening effect on the whales. Roberts questioned whether whales have indeed been harmed by sonar. He said the Navy had been operating off the California coast for 40 years “without a single documented sonar-related injury to any marine mammal.”
The Natural Resources Defense Council and other environmentalist groups strongly disagreed. They said studies conducted around the world have shown the piercing underwater sounds cause whales to flee in panic or to dive too deeply. Whales have been found beached in Greece, the Canary Islands and in the Bahamas after sonar was used in the area, and necropsies showed signs of internal bleeding near the ears.
Last year, the NRDC and several other groups went to court in Los Angeles to challenge the Navy’s plans to conduct 14 training exercises off the Southern California coast. They said the Navy failed to prepare an environmental impact statement and therefore had violated the National Environmental Policy Act.
Citing Navy estimates, the NRDC said the use of high- intensity sonar could disturb or threaten 170,000 marine mammals, and it predicted the exercises would cause permanent injury to more than 500 whales and lead to temporary deafness in at least 8,000 whales.
U.S. District Judge Florence-Marie Cooper agreed with the environmentalists. She did not tell the Navy to halt its exercises but instead ordered it to take steps to protect the whales.
For example, the Navy was told not to use sonar within 12 miles of the coast or in areas near Santa Catalina and San Clemente islands, where marine mammals congregate. More controversially, she said crews must turn off the high-intensity sonar when a marine mammal was spotted within 1.2 miles of a ship. She also said sonar power must be reduced when sea conditions allow the sonar blasts to travel farther than usual.
After her order was upheld by the U.S. 9th Circuit Court of Appeals, the Bush administration appealed to the Supreme Court on behalf of Navy Secretary Donald C. Winter. It said the extra conditions -- such as the sonar shutdown when whales are seen nearby -- would jeopardize the training exercises.
Roberts and the court moved quickly to overturn key parts of the judge’s order. In Winter vs. NRDC, he stressed the military threat posed by modern subs. They “can operate almost silently, making them extremely difficult to detect and track,” he said.
“The president -- the commander in chief -- has determined that the training with active sonar is ‘essential to the national security,’ ” he said. “We give great deference to the professional judgment of military authorities concerning the relative importance of a particular military interest,” Roberts said. Justices Antonin Scalia, Anthony M. Kennedy, Clarence Thomas and Samuel A. Alito Jr. agreed.
The four more-liberal-leaning justices were divided. Justices Ruth Bader Ginsburg and David H. Souter dissented and said the Navy should be required to complete an environmental impact statement before going ahead with its final training exercises. Justices John Paul Stevens and Stephen G. Breyer agreed with the majority that the judge’s order went too far, but Breyer said it should be modified so the Navy’s exercises can proceed. Stevens concurred in overturning the judge’s order.
The two restrictions on sonar were immediately lifted as the Navy aircraft carrier the John C. Stennis and 11 accompanying ships continue war games off Southern California through Saturday.
The last set of exercises in the current series is set to begin in December.
NRDC lawyers described the ruling as narrow and said it could have been worse. The court did not, for example, exempt the Navy from conducting environmental impact studies, nor did it say the president and the Defense secretary can ignore the environmental laws by invoking the needs of the military.
Los Angeles lawyer Richard B. Kendall, who represented the NRDC, said it was “gratifying that the court did not accept the Navy’s expansive claims of executive power.” He also said protections such as the 12-mile coastal zone and the exclusion zone around Catalina remain in place.
In February, the next set of training exercises begins under a new set of rules laid out in a massive environmental impact statement that has already been challenged by the California Coastal Commission.
Last month, the 12 commissioners nudged the Navy to again turn off sonar any time a whale or dolphin is spotted within 1.2 miles or a reasonable distance away, among other considerations. The Navy only wants to shut down its sonar when a marine mammal is seen within 220 yards.
“This Supreme Court decision doesn’t necessarily give the Navy a green light to do what it wants,” said Delaplaine, who managed federal matters for the commissioners. This could end up in court again, he said, or the Navy could decide to negotiate with the commission, which has certain powers to weigh in on federal activities under federal law.