High court to settle dispute over Navy sonar's impact on whales
WASHINGTON - The Supreme Court yesterday took up the dispute over whether the Navy's use of sonar off San Diego is harming whales, running into obstacles similar to the ones that have long divided environmentalists and the military.
Justice Stephen Breyer pronounced himself "frustrated" by the longstanding debate over the Naval training exercises, which environmental advocates contend can kill whales and other marine mammals and devastate their habitat. The Navy says the exercises train sonar operators to detect enemy submarines and are vital in a time of war.
Noting that he is a specialist on neither whales nor the military, Breyer told an environmental lawyer during oral arguments that a compromise should have been worked out with the Navy. "You're asking us to figure it out," Breyer said before adding, to laughter in the courtroom: "The whole point of the armed forces is to hurt the environment . . . on a bombing mission, do they have to prepare an environmental impact statement?"
The comments from Breyer, a member of the court's liberal wing, indicated that the decision in Winter v. Natural Resources Defense Council may not fall along the usual ideological lines. Chief Justice John Roberts, an appointee of President Bush's, sharply questioned both sides, calling a key part of the Navy's argument "odd" but also saying that environmentalists are being "very unfair" to the Navy because the service is trying not to harm the environment.
Conservative Justice Samuel Alito questioned whether a lower court judge who halted the use of sonar during the exercises - but then allowed it with environmentally friendly modifications - is "an expert on anti-submarine warfare."
"Isn't there something incredibly odd about a single district judge making a determination . . . on something the Navy has decided?" he asked.
Legal specialists said the case raises broad questions about the military's obligation to obey environmental laws as well as the constitutional separation of powers between the executive branch and the judiciary.
The dispute centers around a series of 14 training exercises off the Southern California coast that began in February 2007 and are scheduled to end in January. The Natural Resources Defense Council filed suit in federal court in California to stop or modify the use of sonar during the exercises, the latest in a series of battles it has waged with the Navy over the past decade. The piercing underwater sound of the sonar, at extreme pressure levels, can disrupt marine life, studies have shown.
The Bush administration, seeking to overturn lower court rulings that the Navy must modify the exercises to better protect mammals, is relying on arguments it has offered in other national security cases since the Sept. 11, 2001, terrorist attacks. The judiciary must defer to its determination, the administration asserts, because the exercises constitute a national security emergency that overrides environmental laws. 