WHALES LOSE SUPREME COURT SONAR CASE

by J.R. Pegg

(ENS) WASHINGTON -- The Supreme Court today lifted restrictions on the Navy's use of sonar off the coast of California, handing a defeat to environmentalists who say the limits are needed to protect whales and dolphins. The court, in a 6-3 decision, ruled that a lower court judge had wrongly allowed the environmental impacts of the training exercises to trump U.S. national security interests.

The determination that the public interest lies with the Navy "does not strike us as a close question," Chief Justice John Roberts wrote for the majority.

The dispute emerged from the Navy's plan to conduct a series of 14 submarine hunting exercises using its mid-frequency active sonar off the coast of California, beginning in January 2007.

The sonar has been found to injure whales and dolphins, interfering with their ability to communicate and navigate and potentially causing fatal strandings.

The Natural Resources Defense Council and five other environmental groups filed suit in March 2007, alleging the Navy had violated the National Environmental Policy Act, NEPA, by failing to prepare an Environmental Impact Statement analyzing the potential impact of the sonar use on marine mammals.

Some 37 species of marine mammals inhabit the area used by the Navy for its exercises and the environmental groups believe the military is ignoring evidence of harm from sonar use.

The Navy contends it has been using sonar in training exercises for more than 40 years and has found little evidence of harm to marine mammals.

But a California district court judge sided with the environmental groups and issued a preliminary injunction that ordered the Navy to comply with six mitigation measures.

The Navy agreed to four of the measures, but balked at two restrictions -- one that requires the shutdown of sonar if a marine mammal is spotted within 2,200 yards of a vessel and another that limits the sonar's power by 75 percent when certain ocean conditions exist.

The Bush administration then moved to exempt the Navy training exercises from NEPA by declaring them essential to national security.

A federal appeals court ignored the White House, rejected the Navy's concerns and upheld the order, prompting the appeal to the Supreme Court.

In the opinion released today, the court's majority did not rule on the claims brought forth by the plaintiffs in the case, but instead focused on procedural issues.

The lower court abused its discretion by imposing the preliminary injunction, the majority concluded, and failed to give the Navy's concerns the defense they deserved.

The interests of the environmental groups are "plainly outweighed" by national security, wrote Roberts.

"The most serious possible injury would be harm to an unknown number of the marine mammals," Roberts wrote. "In contrast, forcing the Navy to deploy an inadequately trained anti-submarine force jeopardizes the safety of the fleet."

Roberts noted that the sonar in question "is the only proven method of identifying submerged diesel-electric submarines operating on battery power."

Allowing the Navy to test the sonar under "realistic conditions É is clearly of the upmost importance to the Navy and the nation," wrote Roberts.

He was joined in the majority opinion his fellow conservative justices -- Justices Samuel Alito, Anthony Kennedy, Antonin Scalia and Clarence Thomas.

In a separate opinion, Justice Stephen Breyer agreed the conditions should not have been imposed -- accounting for the 6-3 margin.

But Breyer also dissented in part -- that dissent was joined by Justice John Paul Stevens. In his dissent, Breyer noted that the training exercises would be completed in January and argued that the conditions should be kept in place while the Navy completes "an acceptable EIS."

"The Navy has been training under those conditions since February, so allowing them to remain in place will in effect, maintain the status quo," Breyer said.

In a dissenting opinion, Justice Ruth Bader Ginsburg said the Navy had brought the controversy on itself by failing to comply with NEPA.

The Navy had predicted "substantial and irreparable harm" to marine mammals from the sonar, she noted.

That likely harm "cannot be dismissed lightly," Ginsburg wrote. "There is no doubt that the training exercises serve critical interests. But those interests do not authorize the Navy to violate a statutory command, especially when recourse to the legislature remains open."

Justice David Souter joined Ginsburg's dissent.

Joel Reynolds, senior attorney and director of NRDC's marine mammal program said, "The decision places marine mammals at greater risk of serious and needless harm."

But he noted the ruling leaves in place four restrictions in the preliminary injunction that the Navy did not challenge.

Reynolds said, "It is significant that the court did not overturn the underlying determination that the Navy likely violated the law by failing to prepare an environmental impact statement."

Professor Chris Parsons of George Mason University says, "Generally, if there is a large whale stranding, there is a military exercise in the area. Sonar is killing more whales than we know about."

Parsons is a U.S. delegate to the International Whaling Commission's scientific and conservation committees, and on the board of directors of the marine section of the Society for Conservation Biology. He has been involved in whale and dolphin research for more than a decade.

"Eventually the Navy may have to reconsider the use of certain types of sonar all together," Parsons says. "Without strict mitigation, they could be wiping out entire populations of whales, and seriously depleting others."