June 24, 2008

Justices to Debate Whether Navy Sonar Harms Whales

By Joan Biskupic

WASHINGTON -- The Supreme Court agreed Monday to hear a dispute over the Navy's sonar training exercises off the Southern California coast. Environmentalists say the exercises threaten dolphins, whales and other marine mammals.

The case presents an important test of competing environmental and military interests. It began when the Navy did not prepare the required environmental-impact report for anti-submarine exercises scheduled for 2007-09 to train strike groups for deployment to the western Pacific and Middle East.

The Navy is using "mid-frequency" active sonar, which works as vessels emit a loud noise underwater and listen for whether the noise bounces back off a submarine.

After the Natural Resources Defense Council sued last year, a U.S. trial judge in Los Angeles restricted the timing and location of exercises, notably when whales were detected. The U.S. Court of Appeals for the 9th Circuit affirmed but eased the restrictions during the litigation.

The primary harm to mammals, according to Judge Betty Binns Fletcher, writing for the 9th Circuit, occurs in their auditory system. The sound levels can cause hearing loss or even rupture the eardrum.

The Natural Resources Defense Council says sonar also can cause death when the noise drives whales ashore. "This harm is especially acute in beaked whales, many of which stranded and died on the shores of the Bahamas in 2000 following a naval sonar ... exercise," the NRDC said, urging the court to let the 9th Circuit ruling stand.

In the Bush administration's appeal, officials said the 9th Circuit action "jeopardizes the Navy's ability to train sailors and Marines for wartime deployment." They contended the nature of the training -- "essential to the national security" -- permitted the Navy to bypass environmental regulations.

Administration lawyers insist the sonar does not significantly harm marine life. They also say limits on when and where sonar is used would undermine the training because "anti-submarine warfare is a high-stakes, cat-and-mouse game that may span days."

The case of Winter v. Natural Resources Defense Council will likely be heard this fall.

In a varied day of business, the court also:

*Rejected without comment an environmental challenge to the building of a fence along the U.S.-Mexican border. The Defenders of Wildlife and the Sierra Club objected to Homeland Security Secretary Michael Chertoff's waiving of environmental regulations while building the fence, arguing that Chertoff's actions under a 2005 federal law violated the Constitution's separation of powers. The fenced area in Monday's dispute is in the San Pedro Riparian National Conservation Area, a biologically diverse region in Arizona that contains hundreds of species of birds.

The REAL ID Act of 2005 gave the Homeland Security secretary authority to void laws that would interfere with the building of a fence along the borders of Arizona, California, New Mexico and Texas and limited judicial review of his actions. The fence is intended to curtail illegal immigration. A U.S. district court judge in Washington, D.C., earlier dismissed the environmentalist groups' challenge, saying the waivers were lawful.

*Agreed to resolve a dispute over how retirement benefits should be calculated for women who took maternity leaves before the federal Pregnancy Discrimination Act took effect in 1979. Under that law, maternity leave is considered disability leave and credited toward retirement. The case of AT&T v. Hulteen, to be heard in the term that begins this October, tests whether maternity leaves before 1979 must be credited toward retirement benefits.

The 9th Circuit held that AT&T violated federal civil rights law by not granting workers service credit for pregnancy-related leave taken before the law took effect. The Bush administration urged the court to take AT&T's appeal, saying the 9th Circuit's ruling wrongly gave retroactive effect to the law. (c) Copyright 2008 USA TODAY, a division of Gannett Co. Inc. <>