POSTED: 4 FEBRUARY 2008 - 9:00pm HST

Federal Judge Overturns Bush Sonar Waiver

image above:Navy sonar technicians monitor screens. Photo by James R. Evans.

by the Environmental News Service on 4 February 2008

A federal court today struck down a waiver issued by the White House that would
exempt the U.S. Navy from complying with environmental law during sonar training exercises off southern California.

In nullifying the waiver, U.S. District Court Judge Florence-Marie Cooper 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 the Natural Resources Defense Council, NRDC, which obtained the injunction against the Navy.

"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."

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 Judge 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."

The judge said 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," she ruled.

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 judge reaffirmed the 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.

"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," Reynolds said.

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.

The conservation groups warn that the high-intensity mid-frequency sonar systems can blast across large areas with levels of underwater noise loud enough to have killed marine mammals in 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 seven species of beaked whales, which are known to be particularly vulnerable to underwater sound.

Rear Adm. Larry Rice, director of the Chief of Naval Operations Environmental Readiness Division defended the Navy's use of sonar in California coastal waters. He said sonar is essential to detect new, silent submarines and added that no marine mammal incidents have occurred in Southern California waters.

"The U.S. Navy has trained in Southern California for the past 40 years and they have had zero incidents with marine mammals - no strandings, no deaths, and no documented injuries," he said.

"We want to keep that up," said Rice. "In order to accomplish this, we have 29 protective measures that we already employ. The additional training restrictions that the court levied on us frankly don't help us take care of the environment - and it restricts our training."

Rice says worldwide naval use of active sonar has been correlated with the stranding of approximately 50 whales during the 10 year period from 1996-2006.
"Contrast that with over 3,500 marine mammal 'normal' strandings that occur on U.S. shores annually, and 600,000 marine mammal deaths each year by commercial fishing interests," Rice said.

Rice attributes the U.S. Navy's "success with sonar to the fleet operators who are paying attention to what is going on in the world with marine mammals and sonar, and they realize that this is really important."

"The ocean is a noisy place," said Rice, "not only are there submarines out there, but there is wave sound, rain sounds, there are other marine mammals, there are seismic sounds, earthquakes, volcanoes — a lot of sounds in the oceans, and they have to pick out that really quiet diesel electric submarine amongst all of those other sounds. That isn't something that we can simulate."



POSTED: 28 JANUARY 2008 - 8:00am HST

Editorial opinions on sonor ban lift

image above: Navy patch for USS Pom Pon, a radar picket ship joins creatures of the sea and military

by Mark Palmer on 26 January 2008
This past week, the California Coastal Commission filed a strong legal brief against the Bush Administration’s exemption of the Navy from the Coastal Zone Management Act and the National Environmental Policy Act.

Plus the New York Times and Los Angeles Times have come out with very nice editorials.

Thanks all around to the Coastal Commission!

To write a thank you letter, send to:
Mr. Peter Douglas, Executive Director
California Coastal Commission
45 Fremont Street
Suite 2000
San Francisco, CA 94105-2219
FAX (415) 904-5400

Bush's sonar order is unconstitutional
by Kenneth R. Weiss on 23 January 2008 in The Los Angeles Times

The California Coastal Commission argued in federal court Tuesday that President Bush violated the U.S. Constitution by trying to overturn a court order that restricted the Navy's use of a type of sonar linked to the deaths of marine mammals.

The commission's attorneys said Bush's move to exempt the Navy sonar training exercises in Southern California waters from federal law violated the Constitution's separation-of-powers doctrine.

"The notion that the president can act like some medieval autocrat and impose the law as he sees it violates the fundamental basis of the American Constitution," said Atty. Gen. Jerry Brown, whose staff lawyers represent the commission. "There are three branches of government. Each of the branches has to be respected."

President Bush issued an order last week that tried to overturn a ruling by a federal judge in Los Angeles who had directed the Navy to avoid conducting its sonar exercises within 12 miles of the coast and in the area between Santa Catalina and San Clemente islands, places where whales and dolphins are abundant.

The president justified his decision as a matter of national security, saying it was of paramount interest for the United States to train sailors to use mid-frequency active sonar to hunt for quiet diesel-electric submarines operated by potentially hostile countries in areas such as the Persian Gulf.

But Bush provided only a "cursory basis" for his decision and did not provide an explanation from the Secretary of Commerce, as required for an exemption to the Coastal Zone Management Act, the state attorney general's office argued.
Without such an explanation, Bush seems to be countermanding a judicial opinion simply because he does not agree with it, the court papers argue.

"He can appeal it," Brown said. "He can appeal it twice, to the [U.S.] Supreme Court. . . . But he cannot say he's above the law and invoke the idea of national security and do whatever he wants."

A U.S. Justice Department lawyer handling the case for the president and the Navy declined to comment. So did Navy Cmdr. Jeff Davis, who said Navy lawyers would respond in court Friday.

Carl Tobias, a University of Richmond law school professor, said the Coastal Commission had raised a provocative argument that he expected to have ramifications on future conflicts that arise between national security and environmental protections.

"It's totally uncharted territory," Tobias said.

Tobias said Bush did not seek the exemption until after a court had weighed the government's national security arguments and ruled that some environmental protections nonetheless were warranted.

Peter Douglas, executive director of the Coastal Commission, said his agency wasn't seeking to set constitutional precedent but to do its job of protecting coastal and marine resources.

"The commission is doing this because we feel so strong that the commission action allows the Navy to conduct its exercises while providing reasonable protections to marine mammals," Douglas said.

Whales in the Navy’s Way
Editorial on 22 January 2008 in The New York Times

According to a federal district judge in California, the Navy’s own research predicted that its sonar training exercises off the California coast will cause widespread harm — and possibly permanent injury or death — to nearly 30 species of marine mammals, including five species of endangered whales. That still didn’t stop the Bush administration from rejecting the judge’s carefully crafted plan to protect these animals from avoidable harm.

There is little doubt that the Navy’s mid-frequency active sonar is an effective tool for locating quiet-running submarines and that training is needed in shallow, offshore waters where sound propagates differently than in the open ocean. The rub is that the sonar, which generates extremely intense underwater sound, is harmful to marine mammals that depend on their own sensitive acoustical systems to feed, communicate and navigate. The waters off Southern California are teeming with vulnerable species.

Early this month, Judge Florence-Marie Cooper issued a tough set of mitigation measures — such as shutting off the sonar when mammals are too close — that the Navy must take to avoid a ban on its training activities. That seemed reasonable, especially given the Navy’s own analysis of the potential harm. Last Wednesday, however, President Bush attempted to override the court order by granting the Navy waivers, on national security grounds, from two environmental laws on which the decision was based. That led the judge to stay some restrictions while leaving others in place.

Now the fight will resume in court over whether the White House overstepped its authority in granting the waivers. From our perspective this looks less like a matter of national security than of convenience for the Navy, which resists efforts to constrain its activities no matter the harm to marine life.

Save the whales from the Navy
Editorial on 26 January 2008 in The Los Angeles Times

A Navy end-run around a ruling to limit its sonar test is an attack on the Constitution.

In the ongoing legal case of the whales versus the Navy, the whales have a number of advantages. For one thing, the law is on their side, as is formidable California Atty. Gen. Jerry Brown. But the Navy has bigger guns, the backing of the president and a tendency to talk out of its blowhole.

The months-long legal maneuvers surrounding a planned naval training exercise off the coast of Southern California are complex, but the gist is that a judge has ordered the Navy to take precautions to minimize damage to marine life from its mid-frequency sonar, and the Navy has taken unprecedented (and probably unconstitutional) steps to avoid doing so.

The sonar at issue is a powerful tool for hunting a new, quieter generation of submarines, and the Navy has good reason to seek realistic conditions for training sailors in its use. Yet studies have shown that the sonar panics and kills whales and dolphins, and the Navy's planned exercise threatens nearly 30 species of marine mammals, including five species of endangered whales.

The Navy made its end-run around the courts last week; after being on the losing end of several decisions, it got a directive from President Bush exempting the training exercise from environmental laws in the interest of national security. For good measure, the Navy secured a ruling from the White House Council on Environmental Quality granting an exemption because "emergency" conditions are in place.

No president has ever tried to override the 36-year-old Coastal Zone Management Act, which gives states the authority to protect marine resources, and Bush's cursory explanation for his order raises grave constitutional questions under the separation of powers doctrine. Even more questionable is the decision by the Council on Environmental Quality, which posits an emergency that doesn't exist.

No one is asking the Navy to scrap its training plans, simply to take precautions, such as shutting off the sonar when whales get closer than 2,200 yards and keeping ships more than 12 miles off the coast. So what's the emergency? If the administration were allowed to countermand judges and federal statutes on such flimsy grounds, it could use nearly any excuse to flout environmental laws -- like claiming that high oil prices constitute an emergency justifying unlimited drilling off the California coast.

If this were a simple matter of balancing national security with the safety of a few whales, as Navy officials claim, we'd side with the sailors. But it's really about whether preserving threatened species is worth imposing some inconveniences on the military, and about protecting the nation's environmental laws from an all-out assault by a hostile administration. The Navy still must get approval from U.S. District Judge Florence-Marie Cooper to set aside her restrictions on its training exercise. She should hold her ground.



POSTED: 23 JANUARY 2008 - 8:30am HST

Bush, then Judge, exempt Navy

image above: Navy emblem "The Sea is Ours" from supplier McGrogan's Patch Design

Judge sets aside some restrictions on sonar
by Kenneth R. Weiss on 18 Janury 2008 in the Los Angeles Times

A federal judge in Los Angeles on Thursday temporarily set aside some of the tough restrictions on upcoming naval exercises off Southern California that employ a type of sonar linked to the injury and death of whales and dolphins.
The decision by Judge Florence-Marie Cooper defers to President Bush, who moved earlier this week to exempt the Navy's exercises from environmental laws that formed the basis for a long-running court case between the Pentagon and environmentalists.

But Cooper granted only two concessions to Bush and the Navy, signaling that she will consider arguments next week from conservation groups that are urging her to hold her ground on more stringent safeguards.

"We are pleased," said Cmdr. Jeff Davis, a Navy spokesman.

"This ruling means that the USS Abraham Lincoln carrier strike group will be able to start the exercise next week without two restrictions that threatened the realism of our training."

The Navy says it must train personnel to detect quiet diesel-powered submarines that are deployed in worldwide hot spots such as the Persian Gulf.

Although lawyers for the Navy have vigorously protested nearly all of Cooper's safeguards, they asked her to temporarily set aside the two they considered the most intrusive: requirements to shut down sonar if a marine mammal ventures within 2,200 yards of a sonar device, and to reduce sonar power under certain sea conditions that allow powerful sonar blasts to travel farther than normal.

After months of inquiry, a visit to Navy ships and analysis of scientific literature, Cooper ruled Jan. 3 that these and other measures were needed to safeguard whales from the potentially debilitating effect of the powerful sound waves.

Under her order issued Thursday, the Navy will have to comply with other safeguards, such as staying away from the waters between Santa Catalina and San Clemente islands as well as those within 12 nautical miles of the coast.
These are areas known for their abundance of marine mammals.

To comply with the order, the Navy will also have to step up its surveillance for whales before and during exercises, deploying specially trained spotters aboard ships and aircraft.

It will have to reduce power when marine mammals are spotted within about 1,000 yards and shut down if the mammals come within about 200 yards.

Meanwhile, conservation groups began working on legal arguments they hope will convince the judge that Bush has not followed the law in waiving environmental law on the grounds of national security and an urgent need to train sailors.

"We remain optimistic that we will prevail in opposing the waivers," said Joel Reynolds, a senior attorney with the Natural Resources Defense Council. "It's an abuse of the term 'emergency' and flatly inconsistent with the National Environmental Policy Act."

Navy Gets Temporary Sonar Reprieve
by The Associated Press on 18 January 2008

A federal judge on Thursday temporarily lifted some restrictions on the Navy's use of high-power sonar during training exercises near Southern California after President Bush got involved in the case.

The order allows the Navy to continue sonar use when whales or other mammals are spotted within 2,200 yards, and its ships do not have to reduce power during conditions when temperatures cause sound to travel farther than it would otherwise.

The Navy still must maintain a 12-nautical-mile, no-sonar zone along the coast as part of a preliminary injunction issued earlier this month when U.S. District Judge Florence-Marie Cooper ruled that using mid-frequency active sonar violated the Coastal Zone Management Act.

The president exempted the Navy from that environmental law on Tuesday, but it remained up to court to allow the anti-submarine warfare training to go forward because the injunction.

The use of high-frequency sonar remains controversial. Scientists say loud sonar can damage marine mammal brains and ears.

But much is still unknown about how sonar affects whales and other marine mammals. For example, the sound can hurt some species while not affecting others, and experts don't fully understand why.

A three-judge panel of the 9th U.S. Circuit Court of Appeals in San Francisco had been expected to rule on the injunction on Friday, but after Bush's action, the appeals court sent the matter back to the district court.

''We are pleased with the District Court's decision,'' said Cmdr. Jeff A. Davis, a Navy spokesman. ''This ruling means that the USS Abraham Lincoln carrier strike group will be able to start the exercise next week without two restrictions that threatened the realism of our training.''

The Navy has said the exercises are vital and that it works to minimizes the risk to marine life. A statement from the Defense Department said that the Navy already applies 29 measures to mitigate the effects.

The Natural Resources Defense Council, which has been fighting the Navy's sonar training, has said it was determined to oppose the matter.
Cooper asked the Navy and the NRDC to file arguments next week for her to consider.

Cooper did not put a specific time frame on the temporary stay.

Still, ''It's a very limited partial stay for a brief period of time,'' said Joel Reynolds, a senior attorney and director of the Marine Mammal Protection Project with the council.

Conservationists and politicians have sharply criticized Bush. U.S. Sen. Barbara Boxer D-Calif., chairman of the Senate Committee on Environment and Public Works, called it a ''misguided decision.''

''Once again the Bush administration has taken a slap at our environmental heritage, overriding a court that was very mindful to protect marine wildlife, including endangered whales, while assuring that the Navy's activities can continue,'' she said.

White House Exempts Navy From Sonar Ban
by Jesse McKinley on 17 January 2008 in The New York Times

The Bush administration jumped into a long-running legal fray in California on Tuesday, exempting the Navy from a law that environmental groups have used to prevent the use of a type of powerful sonar that is believed to harm whales.

The waiver exempts the Navy from the Coastal Zone Management Act, which allows states a voice in federal activities along their shores. The law had been cited in early January by a federal district judge who issued an injunction against the Navy, stopping it from using the midfrequency sonar in exercises off the Southern Californian coast because of concerns about its effect on certain species of whales.

But on Tuesday, the White House announced that such sonar exercises, used to track enemy submarines, were “essential to national security.”

Compliance with the law, the memorandum concluded, “would undermine the Navy’s ability to conduct realistic training exercises that are necessary to ensure the combat effectiveness of carrier and expeditionary strike groups.”

The exemption sent Navy lawyers to the federal appellate court in San Francisco on Tuesday to seek an emergency stay of the district court injunction.

Environmental lawyers were also scrambling to respond to the White House action, which they said was unprecedented.

Late Wednesday, in the latest volley in the legal battle, the United States Court of Appeals for the Ninth Circuit sent the case back to the district court.

That action brought some relief to environmentalists, who have found a sympathetic ear at that level before. But it did little to ease the anger at the White House’s actions.

“It is extreme and it’s disappointing, but it’s not unexpected because the political leadership at the head of the Navy and indeed at the White House is not friendly to the environment, and that’s no secret,” said Joel Reynolds, a senior lawyer and head of marine mammal protection for the Natural Resources Defense Council, which has led the legal fight against the sonar’s use.

Tony Fratto, a White House spokesman, said that the action was “in full compliance with the law and contains stringent and effective requirements by the Navy to avoid potential harm to whales.”

The White House decision also brought a sharp rebuke from California officials and politicians, including Senator Barbara Boxer, chairwoman of the Senate Committee on Environment and Public Works. “This Bush administration action will send this case right back into court, where more taxpayer dollars will be wasted defending a misguided decision,” Ms. Boxer, a Democrat, said in a statement.

The sonar in question generates underwater sound using extreme pressure, something marine biologists say can disorient and injure animals, resulting in bleeding, disruption of mating and feeding, and in some cases, death.
But the Navy says that the sonar is necessary to track a new breed of more silent-running submarines, and that its mitigation methods are enough to protect animals from the sonic wake.

The Navy hailed Tuesday’s developments, saying that the waters off Southern California were particularly well-suited for war games, both because of the water’s depth and its nearness to airfields and other military infrastructure.

The White House and the Whales
by Andrew C. Revkin on 16 January 2008 in The New York Times

The fight over how humans should, and should not, interact with whales has moved from the waters off Antarctica, where environmental campaigners have been harassing Japanese whalers, to the White House.

While traveling in the Middle East on Tuesday, President Bush issued an exemption to the Navy from environmental laws that would otherwise limit its ability to use certain kinds of sonar used in anti-submarine warfare training, the Associated Press said.

Last August, the Natural Resources Defense Council persuaded a federal judge in Los Angeles to order a stop to Navy training exercises off Southern California using medium-range sonar. The judge said that the Navy’s own assessments predicted that dozens of marine mammals, particularly deep-diving whales, could be harmed by the intense sound waves. In January, a fresh injunction was issued by the court requiring the Navy to establish a 12-nautical-mile, no-sonar zone along the coast and to post lookouts for marine mammals.

The A.P. quoted a White House memorandum as saying, “The Navy training exercises, including the use of sonar, are in the paramount interest of the United States…. This exemption will enable the Navy to train effectively and to certify carrier and expeditionary strike groups for deployment in support of worldwide operational and combat activities, which are essential to national security.”
Environmental campaigners and California officials sharply attacked the decision in a joint news release today.

“There is absolutely no justification for this,” said California Coastal Commissioner Sara Wan. “Both the court and the Coastal Commission have said that the Navy can carry out its mission as well as protect the whales. This is a slap in the face to Californians who care about the oceans.”

“The president’s action is an attack on the rule of law,” said Joel Reynolds, director of the Marine Mammal Protection Project at the Natural Resources Defense Council. “By exempting the Navy from basic safeguards under both federal and state law, the president is flouting the will of Congress, the decision of the California Coastal Commission and a ruling by the federal court.”

The Navy makes its case both for the importance of the sonar and its efforts to limit risks to marine mammals on a Web site here.

see also:
Island Breath: TGI#12 - Navy Plans for the Pacific 9/3/07
Island Breath: Navy Expansion Plan for PMRF 8/7/07
Island Breath: Rimpac 2006 Impact  7/9/06