"Half of this game is ninety percent mental"*

On Wednesday the U.S. Supreme Court will hear arguments in Winter v. NRDC, a case concerning the devastating environmental effects that the use of high-intensity active sonar can have on marine life, particularly small, deep-diving, whales.  The Court could consider numerous important legal issues in its review of the case.  It might, for example, address the Constitutional principle of separation of powers and the implications of allowing the Executive Branch to declare that a court order constitutes an “emergency” that waives judicial review.  But here’s one thing the Court won’t be considering: the Endangered Species Act.  That’s because there are no Endangered Species Act claims in Winter v. NRDC.

Someone should tell that to the Pacific Legal Foundation.  On Sunday, the Washington Times published an op-ed on the case by David Stirling, Vice President of PLF.  I wasn’t particularly surprised to see it, at first.  After all, PLF is a property-rights groups that spends considerable time trying to weaken wildlife protections under the Endangered Species Act (they recently filed a lawsuit challenging the listing of the polar bear) and the Washington Times’s editorial page isn’t exactly a bastion of environmental consciousness.  But I was surprised to read this:

Hopefully, the court will set aside the long-held notion within the federal judiciary that the Endangered Species Act is a super statute that trumps all other public considerations. This faulty line of thinking got its start in the 1978 Supreme Court decision in TVA v. Hill (the snail darter case) where it declared Congress intended the ESA to preserve plant and wildlife species "whatever the cost."

Now this is a pretty typical (if wrongheaded) argument, but given the fact that this case doesn’t concern the Endangered Species Act it actually made me laugh out loud.  Stirling also asserts that beaked whales, one of the types of whales most vulnerable to active sonar, are “listed as ‘threatened’ under the Endangered Species Act” (they’re not).  So you won’t be surprised to hear that much of Stirling’s other assertions about the case are equally wrong.

*Philadelphia Phillies manager, Danny Ozark