As I wrote about previously, NRDC challenged the Navy's refusal to comply with federal environmental laws when using mid-frequency active sonar during fourteen long-planned exercises in southern California. There is no question that sonar injures and kills whales and dolphins. The Navy admitted as much in its official "Environmental Assessment" of the exercises, estimating that the exercises would significantly disturb or injure an estimated 170,000 marine mammals, including causing permanent injury to more than 450 whales and temporary hearing impairment in at least 8,000 whales.
Nonetheless, in planning its exercises, the Navy refused to adopt common-sense measures to protect marine mammals from the effects of its dangerous sonar technology. The Navy's failures led both the district court and Ninth Circuit Court of Appeals to conclude that the Navy had violated federal environmental laws. To remedy the Navy's violations, while still allowing the Navy to effectively train, the district court required the Navy to adopt additional safeguards protecting whales and other marine mammals.
The case took a dramatic turn when, following issuance of the injunction, the Navy turned to the White House in an unprecedented effort to avoid its obligations under federal law. The White House then issued two "waivers," purportedly excusing the Navy from complying with the district court's order. The Navy then sought to use the waivers to evade its responsibilities under federal law, but the district court, affirmed by the Ninth Circuit, rejected the Navy's claim, held that the waivers were unlawful, and maintained its injunction order. Unhappy with the lower courts' rulings in NRDC's favor, the Navy sought Supreme Court review, which was granted this summer.
Extensive briefing by the parties and a wide range of amici curiae was completed this week, and we are now preparing for next week's hearing. The Justices will be considering essentially two questions: (1) whether the White House can act as a court of errors, examining and rejecting the district court's finding that the Navy can effectively train under the court's order, and on that basis waive the requirements of federal law; and (2) whether, if the Navy is found to have violated the law, the district court was required to defer to the Navy's claims of military necessity, even in the face of conceded environmental harm and of the Navy's own contradictory evidence about its own past mitigation practices.
This case presents to the Supreme Court a classic confrontation between the power of the Executive Branch and the power of the Judicial Branch - a test of the Separation of Powers doctrine under our Constitution. It is a dispute whose importance extends far beyond the discipline of environmental law.
We have been working for over a decade to secure protections for marine mammals from the harsh and unnecessary harm associated with the Navy's use of high intensity sonar. This latest chapter, a trip to the U.S. Supreme Court, started as a straight-forward environmental case and evolved into a constitutional battle of the highest order. If the Supreme Court follows its precedent, we expect to prevail. But whatever the outcome, we will continue our efforts, both here in the United States and around the world, to protect these magnificent marine animals from the needless infliction of harm in the oceans.