Federal Court Rejects Bush Sonar Waiver

Judge Reaffirms Order that Navy Must Reduce Harm to Whales from Intense Sound Blasts

LOS ANGELES (February 4, 2008) – A federal court today struck down a waiver issued by the White House purporting to exempt the U.S. Navy from complying with a bedrock environmental law during sonar training exercises off southern California. In nullifying the waiver, the court reaffirmed an injunction issued early in January, requiring the Navy to reduce harm to whales and other marine mammals from sonar training. The Navy has acknowledged that the high-intensity, mid-frequency sonar at issue can injure and kill whales and other marine mammals.
“The Court has affirmed that we do not live under an imperial presidency,” said Joel Reynolds, director of the Marine Mammal Protection Project at NRDC, which obtained the injunction against the Navy. “The Navy doesn’t need to harm whales to train effectively with sonar. By following the carefully crafted measures ordered by the court, the Navy can conduct its exercises without imperiling marine mammals.”
On January 15, President Bush issued the Navy an unprecedented waiver under the Coastal Zone Management Act (CZMA), and allowed the Navy an “emergency” waiver under the National Environmental Policy Act (NEPA), for a series of training exercises involving high-intensity, mid-frequency sonar now underway. 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 sonar during the “SOCAL” naval exercises.
Today, in rejecting the Bush administration’s waiver under NEPA, Judge Cooper wrote: "The Navy's current 'emergency' is simply a creature of its own making, i.e., its failure to prepare adequate environmental documentation in a timely fashion." Judge Cooper later added that the Navy's position "produces the absurd result of permitting agencies to avoid their NEPA obligations by re-characterizing ordinary, planned activities as 'emergencies' in the interests of national security, economic stability, or other long-term policy goals. . . . This cannot be consistent with Congressional intent."
In addition, although Judge Cooper expressed “significant concerns about the constitutionality of the President’s exemption of the Navy from the requirements of the Coastal Zone Management Act,” she wrote that no finding on the issue is necessary because the “Court is satisfied that its injunction stands firmly on NEPA grounds.”
The court also reaffirmed its January 3 injunction, which 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 2,000 meters; and to monitor for marine mammals using various methods, among other measures. 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 training exercises into compliance with California’s coastal laws.
The high-intensity MFA sonar system can blast vast areas of the oceans with dangerous levels of underwater noise and has killed marine mammals in numerous incidents around the world. 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.
“It is a bedrock principle of our government that neither the military nor the president is above the law,” said Richard Kendall, a senior partner at the Los Angeles law firm of Irell & Manella, and co-counsel with NRDC in the lawsuit. “Judge Cooper has upheld that fundamental doctrine.”
NRDC was joined in the lawsuit by the International Fund for Animal Welfare, Cetacean Society International, League for Coastal Protection, Ocean Futures Society, and Jean-Michel Cousteau.