A gray whale surfaces off the coast of Point Loma near San Diego, Calif. Sonar from war-games exercises conducted by the US Navy has been found to cause severs harm to whales. (NEWSCOM)
Supreme Court lifts limits on Navy sonar near whales
The justices said restrictions off the coast of southern California jeopardized national security.
By Warren Richey | Staff writer/ November 12, 2008 edition
Washington
The US Supreme Court has invalidated two court-imposed restrictions aimed at protecting whales and other marine mammals from powerful Navy sonars during anti-submarine warfare training off the southern California coast.
In a 6-3 ruling on Wednesday, the high court criticized a federal judge in California for imposing restrictions that the majority justices said jeopardized national security in an effort to protect the environment.
“We do not discount the importance of plaintiffs’ ecological, scientific, and recreational interests in marine mammals,” Chief Justice John Roberts wrote for the majority. “Those interests, however, are plainly outweighed by the Navy’s need to conduct realistic training exercises to ensure that it is able to neutralize the threat posed by enemy submarines.”
The case, Winter v. Natural Resources Defense Council, involved a dispute between the Navy and a group of conservationists over the use of mid-frequency active (MFA) sonar during large-scale naval training exercises.
MFA sonars send intense pulses of noise through the water that can disrupt or injure marine mammals nearby. Scientists say it can trigger fatal mass strandings under certain circumstances.
In March 2007, the NRDC and five other environmental groups filed a lawsuit seeking to force the Navy to be more careful when using MFA sonar during 11 planned training exercises. They said the Navy had failed to properly complete an environmental impact study (EIS).
A federal judge issued a preliminary injunction and ordered the Navy to halt its training exercises unless it adopted court-ordered mitigation measures to reduce the potential harmful effects of the sonars. The measures, as upheld by the Ninth US Circuit Court of Appeals, required the Navy to reduce sonar power whenever a marine mammal was spotted within 1.25 miles of a sonar source. In addition, during certain thermal conditions, the Navy was ordered to reduce sonar power by 75 percent when marine mammals were detected in the area.
Chief Justice Roberts said the federal judge as well as the appeals court judges failed to properly defer to senior Navy officers who warned that the measures would reduce the effectiveness of its training exercises. “We conclude that the balance of equities and consideration of the overall public interest in this case tip strongly in favor of the Navy,” Roberts wrote.
“For the [environmentalists], the most serious possible injury would be harm to an unknown number of the marine mammals that they study and observe,” he wrote. “In contrast, forcing the Navy to deploy an inadequately trained antisubmarine force jeopardizes the safety of the fleet.”
In an important caveat, the chief justice added: “Military interests do not always trump other considerations, and we have not held that they do. In this case, however, the proper determination of where the public interest lies does not strike us as a close question.”
In a dissent, Justice Ruth Bader Ginsburg said the court-ordered mitigation measures were “manageable” and justified. She said the Navy’s own assessments predicted “substantial and irreparable harm to marine mammals.”
Joel Reynolds, a senior NRDC attorney, said the high court left in place undisputed portions of the federal judge’s order concerning Navy training. As a result, the Navy must continue to abide by a 12-mile coastal buffer zone and must continue to avoid the Catalina Basin, an area with a high concentration of marine mammals.
Mr. Reynolds said the NRDC would continue to monitor the Navy’s use of sonar and to push for more safeguards.
He said despite the loss at the high court, the sonar case and other efforts are paying dividends for the environment.
“This case is the most recent in a series of challenges brought by this group in the last 10 years,” Reynolds said. “We’ve seen a definite change in the level of attention paid to environmental impacts on the part of the Navy. They are now in the process of completing environmental impact statements for planned sonar activities, not just off southern California, but off the southeast coast, Hawaii, and off the Washington coast.”
Reynolds added, “We’ve seen significant progress.”
When the case was argued in October, the dispute attracted attention in part because the Bush administration was framing it as a major showdown over the power of federal judges versus the power of the executive branch and the commander in chief.
The justices did not address those arguments. Rather, the court conducted a standard balancing of interests in assessing the lower court rulings.
Where the lower courts sided with environmentalists, the Supreme Court majority sided with the Navy. The majority justices said the ultimate issue in the case was whether the Navy had to complete an environmental impact statement. “A court concluding that the Navy is required to prepare an EIS has many remedial tools at its disposal, including declaratory relief or an injunction tailored to the preparation of an EIS rather than the Navy’s training in the interim,” Roberts wrote. “In the meantime, we see no basis for jeopardizing national security, as the present injunction does.”
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Comments
2. barbara bowie | 11.12.08
It seems to be more and more the case that the biggest danger to our national security is the current administration …
3. mf | 11.12.08
Having worked with active sonar in a previous life, I can certainly attest to the fact that these politicians have absolutely no idea what kind of damage these systems do to biologics nearby… i bet if one was sounded off for them the bleeding ears might turn into bleeding hearts….
Nobody needs unregulated ‘training’ at this sort of expense. The excuses are meager at best and yet they still get away with it… sad state, really.
4. Davy Jones | 11.12.08
John, if you were at time a sonartech, your understanding of Sonar and its capabilities is outdated (obviously I can’t go into detail). Current navy practices for ASW/USW exercises hold the protection of marine life paramount. If so much as a lone whale or porpoise is spotted the marine mammal sighting is noted in a separate log and the exercise ceases until the “all clear” is established to resume. And while you argue 24/7/365 pinging for “imaginary attackers” is not necessary (which is a contestable subject in itself; does the Kitty Hawk / Chinese sub incident ring a bell?) training for new watchstanders is a constant requirement to ensure proficiency. Do you want a bunch of untrained knuckleheads protecting your coasts in case a worst-case scenario, however unlikely, were to occur?
- Current Sonartech
5. Hmmmer | 11.12.08
National Security, gimme a break! A break from all the fear mongering.
A deep water force mucking about in shallows? That’s gonna be good for the fishery, oh yea,…NOT.
What about the terror alerts, are they sent by sonar signal now?
Gotta catch those suicide walrus herds. Look out, be afraid, aaaaaah!
Soon it’ll be a threat to “national security” to stir your coffee clockwise!
Does anyone really think it’s possible to seal(no pun) all US coastline? No way!
Cuba is only 90 miles away and they still can’t stop all that traffic.
One should be able to believe in and understand judgments from a supreme court even if you disagree. This is clearly partisan, Bush appointees flexing there muscle. It smacks of the “go forth and have dominion” disastrous environmental ideology.
Sad for marine mammals.
Hmmmer. Things that make ya go, hmmm?
6. Robin | 11.12.08
Can we trust the Navy to act in responsible manner and respect the whales and other marine mammals ? I Don’t know . The AirForce used to spray CFC’s by the ton and when asked to consider other options hid behind ” National Security ” requirements .. burn out the ozone? somebody elses’s problem .. we are above that worry … When man and nature collide it seems nature always loses ..
If we don’t have a sustainable and healthy planet where else are you going to live ???????????????? Navy take note.
7. Michael Avery | 11.12.08
Yes it is sad. However, we live in a society where action can be taken. The country just shifted quite a bit to the left this election.
I’d be more concerned for ourselves about whats in the air right now, and perhaps what else is coming down.
Just google the words: plutonium, satellite and accident.
Better put yer lead britches on folks!
8. Levelhead | 11.12.08
hmmer, it doesn’t sound like you understand very much about the problem - thankfully the supreme court does. The number of animals injured or killed by these Navy training exercises is miniscule compared to the damage fisheries do. Certainly one dead whale is a travesty - but so is one dead American, and we assembled a Navy to protect our country. What would you have them do, mr expert?
The worst, most in humane killing of animlas for NO good reason, is happening in the middle of this country, not off the coast.
Lets rant on the plight of the farm animals, not the US military, god bless them..
9. johnmorrissey | 11.12.08
in fact, the most deadly current sub threat is low speed very silent small diesel subs lying still in shallow water but capable of SRSMs.They are nearly undetectable and require a great deal of high tech equipment and skilled operators to find. Ask the Israelis .So ancient sonarman, the world has changed since your day and your comments are no longer accurate.
10. Salty DeSeaman | 11.13.08
Ok… so the Whale that sings in Alaska can be heard in Hawaii. In the water sound travels a long distance. This Court is daft and needs to be placed in a closed room with super loud noise for the duration,for national security.
11. Sheri | 11.13.08
I am so horrified by this Supreme Court ruling at a visceral level. Have you ever been trapped in your car at a traffic light next to some idiot blasting bass waves that can’t even be heard inside his own car at nearly the volume they can be heard 10 feet away? I have, and it is so painful and upsetting to me bodily that if I had to bear it much longer than that traffic light I would surely go insane. Multiply this times, what, hundreds?, and you may get a glimpse of what it must be like for marine mammals to be tortured in this way day in and day out by Navy SONAR. Do we think they are beaching and killing themselves in record numbers when SONAR is used as a coincidence? No, it’s the equivalent of them doing whatever they can to get away from this assault on their bodies.
I would rather be dead than live in a world where we subject such intelligent and innocent creatures to such horrible torture.
12. Genevieve Levin | 11.13.08
This is truly a step back for human kind. This is this kind of narrow mindedness that has brought us to where we are now, in complete ciaos. the decision made by these few individuals is going to impact us in ways we can not even imagine. When will people learn that Killing off “an unknown number of the marine mammals” will lead to our own demise. This is a very sad day for human kind. What an unpatriotic thing to do.
13. S. Sandlin | 11.13.08
Since the Navy decided it could get away with causing human death and disease with all those waste sites that polluted the ground and aquifers around the country, why would anyone trust their integrity in sonar-testing the ocean depths? It’s just a repetition of the inanity of those nuclear tests in 1951 Nevada, when the military deemed it was safe to watch from a few miles away. I wonder how these tests will be viewed fifty years from now…And what about those faults under the floor of the ocean? Earthquaaaakes, anyone?
14. Brett H. | 11.13.08
I have been following this case for months and I was extremely saddened, a bit angered by the decision of “the finest court in the land”. The industrial military complex wins again, also know as American Security or progress. The Bush-leaguers strike again! I agree with certain comments posted previously; the commercial fishing industry and the slaughterhouse-farms seem to cause much more damage to the planet. But what all 3 have in common is an entrenched ideology or paradigm that demands that human beings be considered above all else. What this world needs is a damn good dose of deep ecology. And f* the navy.
15. Levelhead | 11.14.08
Sheri,
You said “I would rather be dead than live in a country…” well, the truth is, if the Navy weren’t doing this, you might just become dead. Sounds like you assume it is hundreds of whales beaching or killing themselves, well its not. Fair assumption I suppose, given the size of the organizaiton, but the truth is, it is just an isolated case here or there of anywhere from 1 - 4 whales. It is an issue because even one whale is a big deal, to the Navy and to the environmentalists. If even one marine mammal is spotted the exercise is halted. Although it hasn’t been proven, I’m sure you’re absolutley right about how horrible it might be for a victim. No one is saying it isn’t horrible - its a calculated risk and a game of numbers. No Navy guy is happy about a whale death, but they believe what they are doing is necessary to protect our coasts. Other nations do it too, with far less regard for marine life. Can you say Pearl Harbor?
16. Calvin | 11.16.08
I guess it’s more about striking the right balance… yes an underwater attack is possible, but if we do everything out of fear of some possibility, the US would be a total police state now to prevent ALL possibilities. Besides, with the restrictions on this sonar usage it doesn’t prevent trainings, only make it more challenging.
Mind you, Pearl Harbor & 911 occurred not because the US couldn’t know they were coming, they happened because ppl didn’t pay attention; it’s less about tech but more about vigilance.
17. James Corbin | 12.07.08
If all the hug-a-whale types cared about their fellow man half as much as their beloved animals, the world would be a much better place. Try a little perspective: National Security versus the POSSIBILITY of harming a few mammals. The problem with environmental groups is they refuse to consider how much has been gained over the years. Also, they have to keep priming the crisis pump in order to get their followers to cough up the dough. They wouldn’t be happy if the US population was reduced by 50% and everyone lived in caves. There is no satisfying them, period.
18. Ben C | 12.23.08
You people do not have a clue! The shallow water work isn’t necessarily for our shores. Do some research! The training is to get ready for working in shallow waters, such as the Arabian Gulf, and other people’s shallows. You have lost touch with allreality, if you believe any of our enemies really gives a hoot about the ecology. Look at Saddam and the oil fires, insurgents blowing up oil pipelines, etc. Get a grip!
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1. John Denton | 11.12.08
It’s painful to learn of this decision. Justice Roberts seems to live in a bygone era. What nation would attack the US with diesel submarines and not expect rapid retaliation? And why would US ships wait for such subs to reach the shallows where the new powerful sonar works best? (By the way, I’m an ex-Navy sonarman). Are they going to patrol our coasts 24/7/365, pinging away to find these imaginary attackers? Absurd! Meanwhile, sea life is killed.
Roberts expressed the possibility that North Korea could launch a submarine against Hawaii. The image he portrays is obviously a politically calculated one to instill fear, mirroring the Pearl Harbor attack by other Asians. Well, I’m scared, not of the Koreans, but of this court.