Supremes Save Sonar
by Ashley E. Herzog (more by this author)
Posted 11/13/2008 ET

In a 5-4 decision, the Supreme Court decided Tuesday that the Navy can use sonar in its exercises off the California coast -- despite objections from environmental groups, who say that sonar is harmful to whales and other animals.

Writing for the majority, Chief Justice John Roberts said that national security was a more pressing concern than the well-being of marine mammals.

“Even if the plaintiffs have shown irreparable injury from the navy's training exercises, any such injury is outweighed by the public interest and the navy's interest in effective, realistic training of its sailors,” he wrote.

The case reached the Supreme Court because environmental groups persuaded a lower court to impose a preliminary injunction against the Navy’s use of sonar. According to the National Resources Defense Council, sonar causes “physical trauma” to whales, “including bleeding around the brain, ears and other tissues.”

Also, “Naval sonar has been shown to disrupt feeding and other vital behavior and to cause a wide range of species to panic and flee,” according to the NRDC.

Still, the Court said, “the overall public interest in this case tip[s] strongly in favor of the Navy.”

“For the plaintiffs, the most serious possible injury would be harm to an unknown number of the marine mammals that they study and observe,” the Court said. “In contrast, forcing the Navy to deploy an inadequately trained antisubmarine force jeopardizes the safety of the fleet…the President -- the Commander-in-Chief -- has determined that training with active sonar is ‘essential to national security.’”

Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas and Samuel Alito sided with Roberts. Justices John Paul Stevens and Stephen Bryer dissented, but agreed with the majority that the lower court ruling went to far. Justices David Souter and Ruth Bader Ginsburg dissented, saying the Navy should be required to complete an Environmental Impact Statement before using sonar again.

Ginsburg said the Navy’s own studies predicted that sonar would cause “substantial and irreparable harm to marine mammals,” and that such harm “cannot be lightly dismissed.”

The ruling is likely to upset animal-rights and environmental groups, including the Sierra Club, which supported the original injunction against sonar use.

“What we know is that if the Navy is not careful, they will kill, by their own estimates, over 170,000 marine mammals,” Mark Massara, director of the Sierra Club’s California Coastal Campaign, told reporters after the Court handed down its decision. He said the Sierra Club would continue fighting the issue.

But for the time being, environmental concerns will take a backseat to military preparedness.
This is a major development for the military after having suffered many defeats by environmentalists over the years. It is unclear whether and to what extend other environmental laws -- especially the Endangered Species Act, which has resulted in several major restrictions to military training from the Pacific rim to the Marines’ huge base at Camp Pendleton, California.

“The case was seen as a test of whether the U.S. government could sidestep some environmental restrictions on national security grounds,” said Wall Street Journal blogger Keith Johnson after the ruling. “For now, national security 1, environmentalists 0.”