Federal Appeals Court Rejects Bush Sonar Waiver

Panel Upholds Court-Ordered Protections for Marine Mammals during Training with High Intensity Sonar off California; Navy May Seek Review by U.S. Supreme Court
LOS ANGELES (March 1, 2008) – A federal appeals court last night rejected the Bush administration’s unprecedented effort to exempt the U.S. Navy from federal environmental laws as it engages in high-intensity sonar training off southern California. In a comprehensive 108-page opinion, a three-judge panel also upheld every element of a lower court order requiring the Navy to take precautions during the sonar training to minimize harm to whales and other marine mammals. The Navy itself estimates that its “SOCAL” sonar exercises, an on-going series of drills being conducted over two years, will significantly disturb or injure 170,000 marine mammals, including causing permanent injury to more than 450 whales and temporary hearing impairment in at least 8,000 others.

The court’s opinion is a precedent from the nation’s second-highest court that will govern ongoing and future litigation between environmental groups and the military in California, Hawaii, and elsewhere.
“The court is saying that neither the President nor the U.S. Navy is above the law,” said Joel Reynolds, director of the Marine Mammal Protection Project at the Natural Resources Defense Council (NRDC), which obtained the order. “The court found that the Navy must be environmentally responsible when training with high intensity sonar, and that doing so won’t interfere with military readiness. Simple, common sense measures can reduce the risk of harm to whales and other marine life from this dangerous technology.”
Richard Kendall, a senior partner at the Los Angeles law firm of Irell & Manella, and co-counsel with NRDC in the lawsuit, said:
“The court’s detailed ruling strikes the right balance between national security and environmental protection, and properly rejects the unlawful waiver the Navy obtained from the White House
. Based on thousands of hours of Navy training reports, we proved that the Navy is able to conduct the necessary training of its sailors using the environmentally-responsible measures ordered by the court.” Mr. Kendall argued the case in the courts.
The appeals panel rejected the Navy's claim of emergency, noting that
the evidence, “much of it submitted by the Navy itself, supports the district court’s conclusion that the challenged mitigation measures will not likely compromise the Navy’s ability to effectively train and certify its west-coast strike groups.” The court also noted that
"the Navy has been on notice of its possible legal obligations to prepare an [Environmental Impact Statement] for the SOCAL exercises from the moment it first planned those exercises. . . .Still, the Navy waited until January 10, 2008, to raise a cry of 'emergency'." The court concluded that the district court's order in January was "a predictable outcome, not an unforeseeable one demanding 'unusual or immediate action.'"   
The appeals court also permitted the Navy 30 days to seek review in the U.S. Supreme Court, during which time the Navy must comply with all of the precautions ordered by the lower court, except that certain provisions related to “surface ducting” ocean conditions are modified, and sonar need not be turned off at a “critical point” in a training exercise. Unless the Navy seeks Supreme Court review, these limited exceptions will expire before the end of the month.
The court’s order requires the Navy to maintain a 12 nautical mile no-sonar buffer zone along the California coastline; to avoid other key whale habitat; to shut down sonar when marine mammals are spotted within 2,200 yards; and to monitor for marine mammals using various methods.
More than one year ago, the California Coastal Commission had urged the Navy to adopt similar protective measures during these exercises, finding them necessary to bring the maneuvers into compliance with California’s coastal laws, but the Navy ignored the commission’s request, relying instead on a mitigation scheme that the lower court found “woefully inadequate and ineffectual.”
High-intensity MFA sonar can blast vast areas of the oceans with dangerous levels of underwater noise, and has killed marine mammals in numerous incidents around the world. Many scientists believe that animals seen stranded on the beach represent only a small part of the technology’s toll, given that severely injured animals would rarely come to shore. The waters off southern California have some of the richest marine habitat in the country, and include five endangered species of whales, a globally important population of blue whales, the largest animal ever to live on earth, and as many as seven individual species of beaked whales, which are known to be particularly vulnerable to underwater sound.  
The lawsuit was brought by a coalition of conservation organizations led by NRDC, including the International Fund for Animal Welfare, the League for Coastal Protection, Cetacean Society International, and Ocean Futures Society and its president and founder Jean-Michel Cousteau. A related lawsuit challenging the Navy’s actions was brought by the State of California on behalf of the California Coastal Commission.