Whales be damned! Navy exempted from sonar curbs

Bush wants the courts to throw out an injunction against the use of this sonar, so loud it can kill marine mammals unfortunate enough to be in the vicinity, and injure them many miles away. Water conducts sound much better than air, and this sonar is way too loud to avoid injuring the sensitive eardrums of marine mammals anywhere nearby. This story is from Reuters

Navy exempted from sonar curbs
Wed Jan 16, 2008 11:55pm GMT
By David Morgan

WASHINGTON (Reuters) – President George W. Bush has exempted the Navy from a law restricting the use of sonar near the California coast, the White House said on Wednesday, despite concerns the technology could harm sea mammals.

But Navy officials said the order, which Bush signed on Tuesday as he traveled in the Middle East, does not allow it to proceed with anti-submarine warfare training exercises scheduled for next week.

Instead, the exemption and a separate action by the White House Council on Environmental Quality aim to support the government’s appeal of a court injunction that the Navy says has severely limited its ability to use sonar in training exercises off the California coast.

On Tuesday the Justice Department asked the 9th U.S. Circuit Court of Appeals in San Francisco to throw out that injunction. It based its request partly on Bush’s conclusion that the exercises are in the “paramount interest of the United States” and “essential to national security.”

The district court on January 3 barred the Navy’s use of powerful submarine-hunting mid-frequency active radar within 12 miles of the coast, protecting a strip of water that is habitat for whales, dolphins and other marine mammals.

The court also imposed other restrictions, including a stipulation that the Navy switch off sonar if marine mammals are spotted within 2,200 yards of sonar vessels.

The ruling created an “unreasonable risk that the Navy will not be able to conduct effective sonar training necessary to certify strike groups for deployment in support of world-wide operational and combat activities,” the Navy said.

To bolster the appeal, the White House freed the Navy from restrictions under two federal laws that formed the basis for the injunction.

Bush’s order exempted the Navy from sonar requirements for California contained in the Coastal Zone Management Act.

At the same time, the Council on Environmental Quality waived Navy compliance with the National Environmental Policy Act by approving alternate guidelines for sonar use along the California coast.

This sonar is essential to national security? How so? Another song and dance to justify the wanton disregard for other beings so typical of the military-industrial complex. Whose submarines are deemed a threat now, China? The way things are going, the military is posing a far bigger threat than the enemies from which it supposedly is guarding its citizens, since it need fear no retaliation. One might hope Democrats would make a big stink over this, but most are too petrified with the prospect of appearing weak on national security to raise a peep of protest.

6 Responses to “Whales be damned! Navy exempted from sonar curbs”

  1. Aletha Says:

    The federal judge whose injunction Bush attempted to skirt has reaffirmed her injunction. This story is from the San Francisco Chronicle

    Judge rejects Bush attempt to skirt law protecting whales
    Bob Egelko, Chronicle Staff Writer

    Tuesday, February 5, 2008

    (02-04) 19:47 PST SAN FRANCISCO — A federal judge rejected on Monday President Bush’s attempt to exempt the Navy from environmental laws protecting endangered whales from sound waves caused by underwater sonar blasts during anti-submarine training off the Southern California coast.

    Bush issued an order Jan. 15 that sought to override the judge’s order limiting the Navy’s use of sonar in Channel Islands waters frequented by whales and other marine mammals. The president said the restrictions would interfere with military exercises that are essential to national security.’

    But U.S. District Judge Florence-Marie Cooper of Los Angeles said Monday that Bush lacked authority in this case to suspend the National Environmental Policy Act, on which her earlier order was based.

    That law requires federal agencies to examine environmental damage that their actions might cause and propose measures to prevent the harm. Cooper – who had found that the Navy failed to follow those requirements – said federal regulations, in place since 1978, allow the president to override the environmental law only in an emergency.

    “The Navy’s current ‘emergency’ is simply a creature of its own making … its failure to prepare adequate environmental documentation in a timely fashion,” Cooper said in a 36-page ruling. The only thing that has changed since environmental groups sued the Navy in March 2007 to protect the whales, she said, is that the Navy lost a court ruling that it wants the president to overturn.

    She left in place an injunction she had issued Jan. 3, requiring the Navy to stay at least 12 nautical miles from shore during the exercises; to post trained lookouts and take other measures to spot whales; and to turn the sonar off when a whale or other marine mammal is spotted within 2,200 yards. Cooper said the Navy had successfully used protective measures in the past and had failed to show that these restrictions would impede the current exercises.

    Hurrah, a judge has the nerve to stand up for her principles against the national security bugaboo! That has been used as an excuse to trash the Constitution as well as the environment. This sonar should be banned, but at least somebody is enforcing some restrictions on it!

  2. Aletha Says:

    The appeals court upheld the injunction, declaring there is no emergency to justify the exemption from environmental laws. However, it did slightly reduce the protective zones within which vessels must reduce or shut down sonar when whales are detected, if this arises during a “critical point in the exercise.” This story is also from the San Francisco Chronicle

    Court upholds whale protection in Navy exercises

    Bob Egelko, Chronicle Staff Writer

    Sunday, March 2, 2008

    (03-01) 16:46 PST SAN FRANCISCO — A federal appeals court has ruled that the Navy must protect endangered whales from the potentially lethal effects of underwater sonar during anti-submarine training off the Southern California coast, rejecting President Bush’s attempt to exempt the exercises from environmental laws.

    In a Friday night ruling rushed into print ahead of the next scheduled exercise on Monday, the Ninth U.S. Circuit Court of Appeals in San Francisco upheld a federal judge’s decision that no emergency existed that would justify Bush’s intervention.

    The Navy is engaged in “long-planned, routine training exercises” and has had ample time to take the steps that the law requires – conduct a thorough review of the environmental consequences and propose effective measures to minimize the harm to whales and other marine mammals, the three-judge panel said.

    The court noted that the Navy has been conducting similar exercises for years, has agreed in the past to restrictions like the ones it is now challenging, and was sued by environmental groups in the current case nearly a year ago. The lower-court judge reviewed the evidence and found nothing to support the Navy’s claim that the protective measures would interfere with vital training or hamper national security, the court said.

    Past rulings have established that “there is no ‘national defense exception’ ” to the National Environmental Policy Act, the court said. That law requires government agencies to review projects that might harm the environment and propose reasonable protective measures.

    Nonetheless, the panel allowed naval commanders to modify two of the restrictions if they arose during a “critical point in the exercise,” when certain levels of sonar are needed for effective training. The modifications reduce the protective zones within which vessels must reduce or shut down sonar when whales are detected.

    But the appeals court said that federal regulations in place since 1978 allow a president to override the environmental law only in an emergency, and that the administration had failed to demonstrate any “sudden unanticipated events” had occurred in this case.

    Bush’s actions were also constitutionally questionable, the court said, because he cited no evidence that Cooper had not already reviewed, but instead merely disagreed with her conclusions. Under the constitutional doctrine of separation of powers, “it was the job of the appellate court, and not the executive branch,” to decide whether the judge erred, said Judge Betty Fletcher in the court ruling.

    She said the court didn’t have to decide the constitutional issue, however, because the president’s order failed to meet the standard for an exemption under the environmental regulations.

    The ruling shows that “neither the president nor the U.S. Navy is above the law,” attorney Joel Reynolds of the Natural Resources Defense Council, lead plaintiff in the lawsuit, said Saturday.

    Lt. Cmdr. Cindy Moore, a Navy spokeswoman, told the Associated Press the Navy is considering an appeal. The ruling places “significant restrictions on our ability to train realistically,” although it is less restrictive than Cooper’s earlier decision, she said.

    Give it up, Navy! No matter how worried you may be about sneaky submarines, this technology has no place in your arsenal. No doubt it is not only marine mammals harmed by these ear-splitting (literally) sound bursts. This is not a national security matter, let alone emergency, unless Bush is plotting a war with China. Regardless, there has to be a better way to detect submarines.

  3. Aletha Says:

    The Supreme Court has agreed to hear the appeal from the Administration, which claims the lower courts erred by not trusting its judgment! How dare the court try to uphold the law in the face of national security concerns! This story is from the San Francisco Chronicle

    Supreme Court to decide on sonar versus whales
    Bob Egelko, Chronicle Staff Writer

    (06-23) 18:15 PDT WASHINGTON — The U.S. Supreme Court agreed Monday to consider whether the military’s assertions of national security trump the need to protect endangered species, when the justices decide whether the Navy must limit its use of sonar in training exercises off Southern California because the sound waves might harm whales.

    The justices agreed to hear the Bush administration’s appeal of federal court rulings that have banned sonar within 12 miles of the coast and required the Navy to reduce or shut down the sonic blasts when it detects the presence of whales or other marine mammals. Lower courts have rejected President Bush’s attempt to exempt the Navy from environmental laws and allow unrestricted use of sonar in training to detect enemy submarines.

    Environmentalists have cited scientific findings that sonar pulses damage the hearing organs of whales and dolphins, can interfere with their ability to navigate, mate and find food, and have caused whales to strand themselves on shore. The Navy says its measures, including the posting of shipboard lookouts for whales, provide adequate safeguards without hampering the training exercises.

    “The Navy adheres to extensive measures, which were coordinated with the federal regulator and have proven effective, to protect marine mammals and comply with all relevant environmental statutes,” said Lt. Sean Robertson, a Navy spokesman. “This is an issue that is essential to national security, and we welcome the Supreme Court’s decision to review this case.”

    U.S. District Judge Florence-Marie Cooper of Los Angeles said in an August 2007 ruling that the Navy’s protections were “woefully ineffectual and inadequate” and would leave nearly 30 species of sea mammals at risk, including five species of endangered whales.

    Cooper issued an injunction restricting sonar use that the Ninth U.S. Circuit Court of Appeals in San Francisco modified before putting it into effect in March. The modifications allow commanders to reduce no-sonar buffer zones during crucial points in training.

    A central issue in the case is the president’s authority to override environmental laws. After Cooper issued her injunction, Bush sought to bypass it by declaring in January that the restrictions would interfere with training that was essential to national security.

    But the appeals court, in a Feb. 29 ruling, said that federal regulations allow a president to pre-empt environmental laws only in an emergency, and that Bush had not shown any “sudden unanticipated events” in this case – only an unfavorable court decision that he wanted to discard.

    In seeking Supreme Court review, Justice Department lawyers argued that the lower courts should have deferred to the administration’s judgment about the existence of an emergency and should have given more weight to the government’s concerns about national security.

    It is a testament to the militaristic fever gripping this country that anybody would believe this sonar is a vital matter of national security. Why should anyone defer to the judgment of this administration? Has it been right about anything? Where is the Congressional oversight, asleep at the switch yet again?

  4. Aletha Says:

    The Supreme Court is now hearing the case. This story is from the Los Angeles Times

    Supreme Court hears case on Navy sonar, whales
    By David G. Savage, Los Angeles Times Staff Writer
    9:55 AM PDT, October 8, 2008

    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 really says it all. The Navy could care less whether its sonar injures marine mammals. It is their way or the highway; the war games are a critical matter of national security, and the sonar is a critical element of the war games. That is ludicrous on both counts. The armed forces may be responsible for more environmental damage than any other single entity, even Exxon Mobil or Monsanto. They consider that mere collateral damage, insignificant in light of meeting the challenges of defending the empire. They ignore the obvious problem that their activities are ruining the country from within. Whales are the canary in the coal mine for purposes of this sonar. Since sound travels far more efficiently in water than air, this earsplitting racket is bound to cause injury to marine life far beyond the range the Navy is looking out for whales. The ocean is already reeling from the onslaught of overfishing and multiple sources of pollution. This sonar is unnecessary and its effects are indefensible. National security is not a valid excuse. It gets trotted out so often to justify the indefensible, it is like crying wolf.

  5. Aletha Says:

    The Supreme Court ruled today in favor of the Navy, seven to two, Ruth Bader Ginsburg and David H. Souter the only dissenters. Even Justice Stevens went along. The Navy maintains there are no documented cases of injury to marine mammals, and that the sonar is indispensable to detect modern diesel electric submarines. I wonder what kind of documentation the Navy would accept. That contention is absurd on its face, but Justices Stevens and Breyer said lower courts had not adequately explained why they had rejected it? Huh? This story is from the New York Times

    Supreme Court Rules for Navy in Sonar Case
    By ADAM LIPTAK

    WASHINGTON — Courts must be wary of second-guessing the military’s considered judgments, the Supreme Court said Wednesday in lifting judicial restrictions on submarine training exercises off the coast of Southern California that may harm marine mammals.

    In balancing military preparedness against environmental concerns, the majority came down solidly on the side of national security.

    “The lower courts failed properly to defer to senior Navy officers’ specific, predictive judgments,” Chief Justice John G. Roberts Jr., joined by four other justices, wrote for the court in the first decision of the term.

    For the environmental groups that sought to limit the exercises, Chief Justice Roberts wrote, “the most serious possible injury would be harm to an unknown number of marine mammals that they study and observe.” By contrast, he continued, “forcing the Navy to deploy an inadequately trained antisubmarine force jeopardizes the safety of the fleet.”

    The decision, in Winter v. Natural Resources Defense Council, No. 07-1239, came in the latest of a series of skirmishes between the Navy and environmental groups, which have fought the service’s use of sonar for about a decade. The environmentalists have had some success, using lawsuits, negotiation and persuasion, in limiting that use in training exercises around the world.

    The groups say that sonar can be as loud as 2,000 jet engines, causing marine mammals to suffer lasting physical trauma, strandings and changes in breeding and migration patterns. They contend that courts are perfectly capable of weighing the competing security and environmental concerns.

    Chief Justice Roberts took a different view. Courts, he said, quoting a 1986 decision of the justices, must “give great deference to the professional judgment of military authorities” in making decisions about personnel, training and priorities.

    In a conference call with reporters, lawyers for the Natural Resources Defense Council sought to minimize the importance of the decision, stressing that the Navy had agreed to abide by other restrictions on the exercises and that the group’s work in monitoring and seeking to modify what it called dangerous testing and training would continue.

    Chief Justice Roberts emphasized the importance and difficulty of sonar training exercises. The nation’s adversaries, he said, have at least 300 diesel-electric submarines that “can operate almost silently, making them extremely difficult to detect and track.”

    So-called midfrequency active sonar, which emits pulses of sound and receives acoustic echoes back, is effective at finding enemy submarines, the chief justice said, but only if sonar operators have become proficient in its use. He said the extent of harm to marine mammals was sharply disputed, noting that the Navy asserted that there had not been “a single documented sonar-related injury to any marine mammal” in over 40 years of similar exercises off the California coast.

    Whatever the correct answer to how many animals could be harmed, Chief Justice Roberts wrote, those injuries are “outweighed by the public interest and the Navy’s interest in effective, realistic training of its sailors.”

    Justice Stephen G. Breyer, joined by Justice John Paul Stevens, concurred in the decision lifting two restrictions imposed by lower courts in California, saying those courts had not adequately explained why they had rejected the Navy’s contentions. But Justice Breyer, writing only for himself on this point, said he would have imposed more limited restrictions.

    Justice Ruth Bader Ginsburg, joined by Justice David H. Souter, dissented.

    “Sonar is linked to mass strandings of marine mammals, hemorrhaging around the brain and ears” and acute effects on the central nervous system as well as “lesions in vital organs,” Justice Ginsburg wrote.

    And though the Navy has said it can find no previous documented case of sonar-related injury to a marine mammal in such exercises, Justice Ginsburg said the service had predicted that a current set of exercises off the California coast would cause lasting injuries to hundreds of beaked whales, along with vast behavioral disturbances to whales, dolphins and sea lions.

    Neither the majority nor Justice Breyer’s opinion directly addressed the merits of the case, reaching only the question of whether a preliminary injunction had been properly entered.

    Justice Ginsburg, by contrast, concluded that the Navy had violated the National Environmental Policy Act, which requires the government to prepare environmental impact statements before undertaking major actions that will affect the environment. In this case, Justice Ginsburg wrote, the Navy is scheduled to publish the impact statement only upon completion of the current exercises, which are to end in January.

    This is a sad day, when the Supreme Court allows the Navy to flout the law, on the grounds that its clearly biased self-serving judgment should have been honored. Whose submarines are such a dire threat that whales, already in such danger of extinction, must be sacrificed? This is a prime exhibit of the arrogance of empire. NRDC is downplaying this defeat because it could have been worse? They are just trying to save face. There can be no doubt marine mammals are harmed by this sonar. The Navy claims there is no evidence of that. How is it such highly esteemed lawyers cannot decipher such an obvious conflict of interest? Are marine mammals supposed to be able to survive deaf? Their ears are more sensitive than human ears, and sounds dissipate so much faster in air than water, there is no comparison. Military superiority must override all other considerations. The Chief Justice had the nerve to observe,

    “Of course,” Chief Justice Roberts 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.”

    The Chief Justice has an odd perspective on the public interest. That is hardly surprising, but what gets me is that Justice Stevens went along with this travesty. It just goes to show a liberal can greenwash with the worst of them. Justices Ginsberg and Souter were not fooled, so what is his excuse?

  6. Pollution Of The California Coast Says:

    Whales be damned! Navy exempted from sonar curbs? Seriously? I was searching Google for pollution of the california coast and found this… will have to think about it.

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