October 9, 2008
Whales May Bear One Price of War
From staff and wire reports
In a closely watched environmental case, justices on Wednesday repeatedly sounded sympathetic to Pentagon officials who want to run large-scale Navy exercises off the Southern California coast. While the resulting underwater sonar storm disturbs marine mammals, it helps prepare sailors for combat.
"I thought the whole point of the armed forces was to hurt the environment," Justice Stephen Breyer said, half-jokingly. "Of course they're going to do harm."
The Pentagon and environmentalists disagree over exactly how much marine mammals are injured by midfrequency active sonar, and justices couldn't resolve the conflict Wednesday. An apparent majority of justices, though, did appear ready to defer to military expertise in matters of national security.
Chief Justice John Roberts raised the specter of an undetected "North Korean diesel submarine to get (closer) to Pearl Harbor" if sailors couldn't train with sonar, and Justice Samuel Alito asked pointedly if a judge could be considered "an expert on anti- submarine warfare." Alito added that there is "something incredibly odd" about a trial judge making a decision "contrary" to the Navy's requirements.
Even Breyer, who at times has been skeptical about other claims of executive authority, suggested that "an admiral (who) comes along with an affidavit that seems plausible" might outrank a "district judge who just says" the training should stop.
"You're asking us, who know little about whales and less about the Navy," Breyer told Los Angeles-based attorney Richard Kendall, who is representing environmental groups.
Even before the hourlong oral arguments Wednesday, legal scholars were predicting that the conservative-led court was likely to defer to military necessity in time of war. The prediction is enhanced by the fact that Winter v. Natural Resources Defense Council arises from the San Francisco-based 9th Circuit Court of Appeals, which the Supreme Court reversed in eight out of 10 cases last year.
A district court imposed more safety measures on the Navy, including stopping sonar use when marine mammals were spotted within 2,200 yards and powering down the sonar under certain other conditions.
"The Navy is perfectly able to train under these circumstances," Kendall said.
The Bush administration's Council on Environmental Quality declared "emergency circumstances" existed, which the administration argues should dissolve the district court's training limitations. Administration officials also dispute the extent of harm, noting that Navy exercises have been taking place off the Southern California coast for four decades.
The Navy's use of sonar in the Atlantic has not been challenged in court.
But environmental groups are keeping close watch on the Navy's plan for a shallow-water training range it wants to build along the East Coast.
The service recently switched its preferred location for the 625- square-mile range where ships, planes and helicopters would practice hunting diesel submarines in coastal waters. Originally, it designated waters off the North Carolina coast as its first choice . Last month, the Navy announced that waters off the coast of Jacksonville, Fla., were better suited for the range.
But that site could prove problematic for Navy brass: It's within miles of the calving grounds of the endangered right whale.
This story was compiled from reports by McClatchy News Service and Pilot writer Kate Wiltrout.
The Pentagon and environmentalists disagree over how much marine mammals are injured by midfrequency active sonar , and justices couldn't resolve the conflict Wednesday. An apparent majority of justices, though, did appear ready to defer to military expertise in matters of national security.
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