Bush Attempts Illegal Override of Court Order Protecting Whales from Sonar

Unprecedented Waiver Imperils Marine Mammals; White House Snubs California, Federal Courts and Congress
LOS ANGELES (January 16, 2008) – The Bush administration yesterday attempted to override a federal court order requiring the U.S. Navy to minimize harm to whales and dolphins during upcoming sonar exercises off Southern California. In an effort to nullify measures established to protect marine mammals from potentially lethal sound blasts, President Bush gave the Navy an unprecedented waiver under the Coastal Zone Management Act (CZMA), and allowed the Navy a second “emergency” waiver under the National Environmental Policy Act (NEPA).

Those statutes are the basis of a January 3 injunction issued by U.S. District Court Judge Florence-Marie Cooper, requiring the Navy to monitor for and avoid marine mammals while operating high-intensity, mid-frequency sonar during the “SOCAL” naval exercises, now underway.

“There is absolutely no justification for this,” said California Coastal Commissioner Sara Wan. “Both the court and the Coastal Commission have said that the Navy can carry out its mission as well as protect the whales. This is a slap in the face to Californians who care about the oceans.”

Judge Cooper ruled that the Navy’s scheme to mitigate harm had been “grossly inadequate to protect marine mammals from debilitating levels of sonar exposure” in Southern California’s rich biological waters. Her injunction required the Navy to maintain a 12 nautical mile no-sonar buffer zone along the California coastline; to shut down sonar when marine mammals were spotted within 2,000 meters; and to monitor for marine mammals using various methods, among other measures.

The waivers would eliminate all of the court-ordered mitigations under the pretext of “emergency.” In fact, no emergency conditions exist: The SOCAL exercises are routine training drills planned long in advance, but without meeting legal standards. Indeed the exercises were challenged by the California Coastal Commission and the Natural Resources Defense Council (NRDC) a year ago.

Moreover, the court did not issue a blanket injunction, but instead produced a carefully tailored order that enables the Navy to conduct sonar training using the common-sense mitigations, many of which the Navy had already employed in previous exercises.

“The President’s action is an attack on the rule of law,” said Joel Reynolds, director of the Marine Mammal Protection Project at NRDC, which obtained the injunction against the Navy. “By exempting the Navy from basic safeguards under both federal and state law, the President is flouting the will of Congress, the decision of the California Coastal Commission, and a ruling by the federal court.”

Both waivers must survive court review for the Navy to legally ignore the injunction. However, the waiver under NEPA is illegal, according to NRDC, because that statute does not include an escape clause for the executive branch, as some statutes do.

“This is not a national security issue. The Navy doesn’t need to harm whales to train effectively with sonar. It simply chooses to for the sake of convenience,” said Mr. Reynolds. “By following the carefully crafted measures ordered by the court, the Navy could conduct its exercises without imperiling marine mammals. Instead, it is attempting to circumvent the court and our environmental laws through presidential fiat. These waivers are unnecessary and we doubt they will both survive judicial review.”

For more information about the effect of sonar on marine mammals, see “Sounding the Depths II: The Rising Toll of Sonar, Shipping and Industrial Ocean Noise on Marine Life