Supreme Court: National Security Trumps Whales, Environmental Law

It’s a loud, sad day off the coast of California: the Supreme Court today ruled in favor of the Navy and against environmentalists who argued that military sonar frequencies kill whales.

"The balance of equities and the public interest … tip strongly in favor of the Navy," wrote Chief Justice John Roberts in the majority opinion. "The Navy’s need to conduct realistic training with active sonar to respond to the threat posed by enemy submarines plainly outweighs the interests advanced by the plaintiffs."

On the legal side of the whales is the Natural Resources Defense Council, who in 2005 filed a lawsuit in Santa Monica, California, contending that the Navy’s use of mid-frequency sonar in whale-rich areas violates the Environmental Policy Act, Marine Mammal Protection Act and the Endangered Species Act.

"By the Navy’s own estimates, even 300 miles from the source these [low frequency] sonic waves can retain an intensity of 140 decibels — a hundred times more intense than the level known to alter the behavior of large whales," reads the NRDC’s marine sonar page. "Mid-frequency sonar is more widely used and has been associated with mortalities of whales."

The NRDC produced graphic evidence of whales beaching themselves in distress, their brains and ears bleeding, or suffering from "the bends" — an affliction known to deep-sea divers who surface too quickly. Sonar appeared to have disoriented the whales, which rely on sound to navigate, in much the way that unrelenting and blinding light might make life difficult for people.

But it’s hard to know exactly what’s going on in the deep ocean, and the Navy argued that clear evidence of whale harm was uncertain, and certainly less important than threats posed by enemy submarines.
Nevertheless, the court sided with the NRDC, ordering the Navy to stop sonar training exercises off the California coast. Then President Bush stepped in, giving the Navy an executive exemption from the ruling, followed by another federal court ruling that the Bush’s say-so wasn’t enough.

On it went to the Supreme Court, where the Navy won by a 5-to-4 margin.
Critically, the  court didn’t address environmental concerns: It ruled that federal courts had abused their discretion in ordering the Navy to stop sonar training, or at least finding a better place to do it. Formally dissenting from the ruling were Justices Ruth Bader Ginsburg and David
Souter.

All the Navy had to do, they argued, is draft an environmental impact statement, as required by the National Environmental Policy Act — but the Navy didn’t bother, and then called in the President to exempt them from the law, even though he had no legal standing to do so.

Even if the Navy wouldn’t admit in court to hurting whales, wrote
Ginsburg and Souter, their own Environmental Assessment — a less-formal version of an environmental impact statement — predicted that sonar training exercises would drive entire whale populations mad.

"This likely harm," wrote the justices, "cannot be lightly dismissed…. There is no doubt that the training exercises serve critical interests. But those interests do not authorize the Navy to violate a statutory command."

Winter v. Natural Resources Defense Council, Inc. [Supreme Court of the United States] (.pdf)

Image: Nagillum

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