Supreme Court Hears the Legal Dispute Between Whales and the Navy

By Eliza Strickland | October 8, 2008 5:40 pm

humpback whaleThe Supreme Court heard arguments today on whether environmental laws can be used to prevent the U.S. Navy from conducting sonar exercises off the coast of California, where some researchers believe the sonar could harm whales and other marine mammals. Last March, a federal judge strictly limited the sonar practice, but the Navy appealed the decision to the Supreme Court.

The lower court’s 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 [Los Angeles Times].

The justices seemed split as they questioned lawyers on both sides of the case, Winter vs. Natural Resources Defense Council. The legal issue before them is whether the Bush administration had the right to issue an emergency waiver allowing the Navy to carry out its exercises without conducting an environmental impact assessment, which would have examined whether the sonar poses a threat to whales. Justice David Souter expressed repeated skepticism that an emergency existed allowing the president to try to bypass normal environmental reviews. “There was no ‘emergency’ here except one which was created by the Navy’s apparently deliberate inattention” to file an EIS in a timely fashion [CNN], he said.

But other justices worried about military decisions being subjected to second-guessing. Conservative Justice Samuel A. Alito questioned whether a lower court judge who halted the use of sonar during the exercises — but then allowed it with environmentally friendly modifications — is “an expert on anti-submarine warfare. “Isn’t there something incredibly odd about a single district judge making a determination . . . on something the Navy has decided?” he asked [Washington Post].

Related Content:
80beats: Who Would Win in a (Legal) Fight: A Whale or a Battleship?
DISCOVER: Killing Whales With Sound

Image: flickr/Shayan (USA)

CATEGORIZED UNDER: Environment, Living World
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