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Supreme Court to Hear Sonar Case October 8

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Oral arguments on the California sonar case will take place before the Supreme Court on Wednesday, October 8, in the culmination of perhaps the most convoluted sonar challenge to date. The case began as a simple NEPA challenge to routine Naval sonar training off the Southern California coast in early 2007, and has turned into a test of the powers of both the executive and judicial branches to set environmental standards. NRDC and its co-plaintiffs initially contended that the Navy should have prepared an EIS, and a District Court judge issued a preliminary injunction imposing additional safety measures (most centrally, increasing the “shut down zone” from 200 yards to 2000 meters), based on her reading that NRDC’s legal challenge was likely to prevail and there was a likelihood of injury to marine mammals under the Navy’s proposed safety measures. While the Navy appealed this decision, the Executive Branch (CEQ) interceded, attempting to overturn the injunction and impose its own safety measures, claiming the injunction had created an “emergency” since sonar training was essential. The Appeals Court returned the decision on this question to the District Court, which ruled that the Executive Branch had overstepped its authority in designing safety measures, and that no emergency existed. The Appeals Court fundamentally upheld the lower court decision, though it allowed some of the safety measures to be put on hold while the case reached its final resolution. Even as they approach their date with the Supreme Court, the two sides are framing the case rather differently. The Navy will argue that the court order of extra safety measures were disruptive enough to essential training so as to warrant an emergency designation, so that the CEQ intervention was in fact legal. In addition, the Navy will argue that even if CEQ had overstepped its bounds, the District Court had not established that injury to whales met the legal threshold of certainty required for an injunction to be issued, and further, that the risks to national security had not been sufficiently considered. The NRDC frames the case as more simply a matter of judging the facts of likely injury, and that the lower court and appeals court had indeed found a “near certainty” of harm; it also holds that the CEQ had no legal standing to intevene in a judicial matter, and that to do so would raise serious separation of powers issues. It is unlikely that the Supreme Court will wade into the “factual” questions about how likely injury may be (which would involve deciphering voluminous scientific research), and that the case will revolve around how much power the Executive Branch can yield in the name of national security when military plans are challenged on environmental and legal grounds, or, conversely, how far a court can go in imposing its own remedies in scientific and environmental protection matters (one Navy argument is that he court had the power only to order an EIS, not to decide what mitigations were sufficient). Central to the original District Court decision is the District Court’s belief that the Navy could, in fact, successfully conduct its training while using the enhanced safety measures contained in the injunction. The Navy’s response to NRDC’s brief includes vigorous arguments that their training would be seriously impaired under the restrictions imposed. Sources: San Jose Mercury News, 9/27/08 [READ ARTICLE] SCOTUS Blog, 6/12/08 (good summary of case) [READ ARTICLE] SCOTUS Blog, 6/19/08 (scroll down, 3rd from bottom; includes links to Navy petition, NRDC brief, and Navy response) [READ ARTICLE]

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