For two hours on Wednesday, the long-running dispute between the Navy and NRDC over mid-frequency active sonar had its day in the Supreme Court, and while the Justices did broach some questions about the relative likelihood of harm to cetaceans or Navy training, the legal case itself rests on more procedural grounds having to do with the powers of Federal Judges to invoke new environmental standards, and of the Executive Branch to set aside judicial rulings in the name of national security. Court watchers suggested that the Justices seemed to split in a traditional left-right formation, based on comments made during the hearing. A ruling is not expected until spring. The legal arguments of both sides seem, from the outside, to be slightly out of step with the larger picture: the original 2006 lawsuit challenged Southern California sonar training (which has been ongoing for years) for not having produced an EIS, even as the Navy was initiating a global set of EISs for sonar training (the Draft EIS for Southern California has now been released); the Navy, for its part, claims that the restrictions imposed by the court would cripple its training goals, though evidence thus far suggests very few occasions (over multiple exercises since then) when they had to suspend exercises due to the restrictions. Justice Kennedy chastised the parties for not coming to some kind of comprose agreeement; in fact, the Navy and NRDC have done so in the past, though not in this particular case. While NRDC has argued that the Navy has accepted similar restrictions in other places, there are differences in what were imposed this time, especially as compared to two key Hawaiian rulings: the “shut down” zone is 2200 meters (whereas in other cases, this was the distance at which the sonar was reduced in power), and sonar use is prohibited when surface duct conditions are present (other additional restrictions have either called for reduced power in most surface duct conditions, or only kicked in when whales are nearby). In any case, it appears the Navy drew the line on this one, and while the Supreme Court is not likely to be able to untangle all the layers of the dispute, its ruling will shed some light on the relative powers accorded to the Executive and Judical branches. Sources: Washington Post, 8/8/08 [READ ARTICLE] Los Angeles Times, 8/8/08 [READ ARTICLE] Navy News, 10/8/08 [READ ARTICLE] The Jurist, 10/20/08 (argument summary from Joel Reynolds, NRDC) [READ ARTICLE] SCOTUSBlog, 8/8/08 [READ ARTICLE] SCOTUSWiki (includes links to all briefs and summary of case), ongoing [SEE WIKI] Transcript of Oral Arguments[DOWNLOAD ARGUMENTS(pdf)]
[See AEI FactCheck: Navy/NRDC Sonar Debate]