Save the whales . . . or the country? - October 09, 2008
Posted on behalf of Ashley Yeager
If US Navy submariners and shipman can’t be trained to use sonar, there’s “the potential that a North Korean diesel electric submarine will get within range of Pearl Harbor undetected,” Chief Justice John G. Roberts Jr. said on 8 October at a US Supreme Court argument.
The justices were hearing oral defenses in the Winter v. Natural Resources Defense Council (NRDC). The case, which pits environmental against military interests, questions whether the Navy’s use of sonar during training exercises off the coast of Southern California should stopped or modified because of potential harm to marine mammals like beaked whales and dolphins.
The case arose because the Navy failed to file an environmental impact statement (EIS) for anti-submarine exercises conducted from February 2007 through January 2009. The Navy did file an environmental assessment, which the US solicitor general argued was sufficient under the terms of the National Environmental Policy Act. The NRDC disagrees. A California district court judge first ruled that the sonar use should be halted. She then allowed its use with restrictions that the Navy opposes.
During the Supreme Court argument, Chief Justice Roberts grilled both the US solicitor general and the environmental lawyer who represented the NRDC about the past ruling and actions following it. For example, after the lower court decided the case, the Navy sought and was granted permission by the US Council on Environmental Quality (CEQ) to forgo the ban on sonar use. CEQ is “more or less an office in the White House,” and so the Chief Justice found the arguments about this action “odd” since the Navy sought a reprieve on training modifications from this arm of government rather than continuing in the judicial system.
On the other hand, he noted, environmentalists are being "very unfair" in arguing that the Navy wants it “their way or no way,” as the NRDC lawyer put it. The Chief Justice fired back that the Navy was asked to meet six conditions imposed by the lower court ruling. “The Navy didn't even appeal four of them. . . . That's not insisting on having it their way,” he said, noting that therefore the Navy is trying not to cause harm.
"Of course they are going to do something that is harmful,” retorted Justice Stephen G. Breyer, saying he
“thought the whole point of the armed forces is to hurt the environment.” He then asked, “On a bombing mission, do they have to prepare an environmental impact statement first?”
“I don’t know anything about this. I’m not a naval officer,” Breyer said and therefore he was inclined to believe, based on a sworn affidavit from US Navy admiral, that restrictions to sonar use would harm military preparedness.
The argument focused mainly on the potential harms to marine mammals versus harms to military preparedness. Breyer wondered whether the row between environment and national security interests could ever realistically be reconciled. But, Justice John Paul Stevens noted that the case was about more than death of dolphins or whales and whether the military was ready to face its enemies. The case, he said, raises broader questions about the military's obligation to obey environmental laws as well as the constitutional separation of powers.
No clear winner became clear despite the hour of argument bashing and questioning. Yet, judicial precedents may favor the Navy. Lisa Heinzerling, a law professor at Georgetown, told the New York Times that the Supreme Court has heard 15 cases under NEPA and the environmentalist plaintiffs have lost all 15, she said.
Images: US FWS / US Navy
