With the start the 2008-09 Term, the Supreme Court of the United States continued its march to the far right, and dealt a blow to environmentalists, when it ruled today on the case of Winter v. Natural Resources Defense Council . In the decision, the Court overruled a 9th Circuit U.S. Court of Appeals decision that had upheld a lower court injunction upon the Navy's use of sonar.
The dispute first started back in January when President Bush issued the Navy an exemption from abiding by a law which did not allow for the use of Sonar off the California coast. In the case, the plaintiffs were arguing that the use of sonar violated the National Environmental Policy Act of 1969 (NEPA) because the Navy did not prepare an environmental impact statement (EIS) before conducting training using sonar. Thus, it was for SCOTUS to decide whether the national security interests of the Navy overrode the environmental concerns of the use of sonar.
Yet, in a 6-3 decision,Chief Justice Roberts, writing for the majority, held:
We do not discount the importance of plaintiffs’ ecological, scientific, and recreational interests in marine mammals. Those interests, however, are plainly outweighed by the Navy’s need to conduct realistic training exercises to ensure that it is able to neutralize the threat posed by enemy submarines.
At issue here is the health of marine mammals, most notably dolphins and the endangered beaked whales. While the Navy argued that there is no proof that sonar can hurt such mammals, the Navy's own environmentalist assessment has stated that the use of sonar off the coast of California "could disturb or harm an estimated 170,000 marine mammals, including temporary loss of hearing in at least 8,000 whales." Similar studies by environmental groups have shown that the use of sonar had led to beached whales Greece, the Canary Islands, and the Bahamas, "with autopsies show[ing] signs of internal bleeding near the ears." The fate of the beaked whale when confronted with sonar is extremely horrific, causing hemorrhaging and death. Justice Ginsberg noted all of this in her Dissenting Opinion, stating:
...this likely harm—170,000 behavioral disturbances, including 8,000 instances of temporary hearing loss; and 564 Level A harms, including 436 injuries to abeaked whale population numbering only 1,121—cannot be lightly dismissed, even in the face of an alleged risk tothe effectiveness of the Navy’s 14 training exercises.
The reason why this decision is erroneous, in my opinion, is that the Navy was not in fact prevented from going forward with the tests. The 14 tests were to go forth as schedule, simply with some limitations that would allow for the safety of the marine mammals. The injunction simply forced the Navy to create a twelve nautical mile zone off of the coast where sonar could not be used and to turn off sonar within 2,200 yards of any marine mammal. Even then, as Justice Breyer noted in his opinion that concurred in part, and dissented in part, the 2,200 yard limit was in place "except when sonar is being used at a 'critical point in the exercise,' in which case the amount by which the Navy must power down is proportional to the mammal’s proximity to the sonar." He further noted that:
With respect to surface ducting, the Navy is only required to shut down sonar altogether when a marine mammal is detected within 500 meters and the amount by which it is otherwise required to power down is again proportional to the mammal’s proximity to the sonar source.
In the end, These precautions were reasonable in light of the damage that sonar causes to the mammals, especially considering that it would still allow the Navy to carry out the exercises it wished to do. I would have to agree with Justice Ginsberg (and, in part, with Justice Breyer).
Sadly, the Court did not even address the legality of Mr. Bush making such an exception in the first place, as the Roberts Court does again what it does best: skirting major issues by keeping the decision extremely narrow. Justice Ginsberg addressed this in her dissent, stating that in order to avoid the NEPA restrictions (which would only have required the Navy to make the aforementioned EIS), "the Navy sought dispensation not from Congress, but from an executive council that lacks authority to countermand or revise NEPA’s requirements." It is too bad that the majority opinion does not have the foresight of Justice Ginsberg, and could not prevent the further (and likely Unconstitutional) expansion of Executive Power on the part of Mr. Bush.
