Supreme Court Hears Case on Navy Sonar, Whales
DAVID G. SAVAGE, Staff Writer - Los Angeles Times

WASHINGTON -- The Supreme Court justices sounded closely split today on whether environmental laws can be used to protect whales and other marine mammals from the Navy's use of sonar off the coast of Southern California.



A Bush administration lawyer urged the high court to throw out a Los Angeles judge's order that requires the Navy to turn off its high intensity sonar whenever a whale or dolphin is spotted within 1.2 miles of a ship.

This order disrupts the Navy's war-game exercises, which are "critical to the nation's security," said U.S. Solicitor Gen. Gregory Garre. He also disputed claims that the piercing sound of the sonar causes severe harm to the whales.

But Los Angeles lawyer Richard B. Kendall described the sonar as like the sound of "a jet engine in this room multiplied by 2,000 times." He said beaked whales, in panic, dive deeply to escape the sound, and they sometimes suffer bleeding and even death when they try to resurface.

Kendall also said the judge's order has had a minimal impact on the Navy. It has conducted 13 extended training exercises off California in which Navy officers practice detecting enemy submarines. Only on a few occasions have ships been forced to turn off their sonar, he said.

But the case has turned into a major dispute over whether judges, acting on a suit brought by environmentalists, have the power to stop the government from conducting a crucial exercise because it had not carried out an environmental impact statement.

In this case, the Natural Resources Defense Council in Santa Monica sued the Navy, and asserted it had failed to conduct an environmental impact assessment to see whether its use of high-intensity, mid-frequency sonar would harm marine mammals. U.S. District Judge Florence Marie Cooper in Los Angeles agreed with the NRDC, but she did not order the Navy to halt its training exercises. Instead, she ordered the Navy to take steps to protect these mammals, including by turning off the sonar when they were spotted nearby.

Justice Antonin Scalia suggested the judge had exceeded her power. He said the law was merely "procedural" and did not give environmentalists or judges the authority to halt a government operation.

Justice Samuel A. Alito Jr. appeared to agree. Is Judge Cooper an expert on the Navy? he asked, adding that the judge should have deferred to the Navy's view that its exercises would not hurt the whales.

But Justices John Paul Stevens and David H. Souter wondered how the Navy could know its sonar would not harm the whales until it had studied the matter. "The whole point of doing an EIS [Environmental Impact Statement] is we don't know what the harm will be," Stevens said.

Sounding frustrated, Justice Stephen G. Breyer wondered how the court is supposed to resolve the conflicting evidence on whether the sonar will or will not harm marine mammals. "Why couldn't you work this out?" he asked Kendall, rather than having a court resolve the dispute.

"The Navy is focused on having it its own way," Kendall replied.

"That's not fair," Chief Justice John G. Roberts Jr. interjected. The Navy had taken steps to protect the marine mammals, he said, and the judge gave it little credit for doing so. "No good deed goes unpunished," he added.

The justices are likely to hand down a ruling in the case, Winter vs. NRDC, in several months.