WASHINGTON – Whales may simply have to pay the price as the Navy prepares for war, Supreme Court justices suggested yesterday.
In a closely watched environmental case, the justices repeatedly sounded sympathetic to Pentagon officials running large-scale Navy exercises off San Diego County and other parts of Southern California.
The drills, which involve numerous ships based in San Diego County, use midfrequency active sonar to help sailors detect submarines and other objects. The sonar can injure or kill marine mammals, mainly by causing them to surface too quickly and suffer internal bleeding.
“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 Supreme Court agreed to take the case after lower federal courts largely sided with the Natural Resources Defense Council, a national environmental group, and imposed more restrictions on the Navy's sonar use.
The Pentagon and environmentalists disagree over exactly how much midfrequency active sonar injures marine mammals, and justices couldn't resolve the conflict yesterday. Some of the justices 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.
“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 several environmental groups. Breyer has at times been skeptical about other claims of executive authority.
In contrast, Justice David Souter ridiculed the idea that the military and the Bush administration could declare an emergency to try to get around complying with environmental laws.
The Navy opted not to conduct a more rigorous environmental study before beginning the long-planned exercises, Souter said.
“If there's an emergency, it's one the Navy created simply by failing to start (that study) in a timely way,” he said.
The technical but crucial legal question in Winter v. Natural Resources Defense Council is when can a federal agency sidestep conventional environmental protections by declaring an emergency.
The Navy said it needs the Southern California Operating Area for training exercises, which prepare naval strike groups for deployment to the Pacific Ocean and Middle East.
The Southern California coastal waters are home to at least 37 species of marine mammals, including pygmy sperm whales, coastal bottlenose dolphins and endangered blue whales.
The Navy's sonar produces piercing underwater sounds that Kendall said are 2,000 times louder than a jet engine. Some scientists say sonar use can cause hearing loss, cranial bleeding, behavioral modifications and mass strandings.
