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Navy Wins Supreme Court Sonar Case

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 This week, the Supreme Court ruled in the Winter v. NRDC case, finding that that the District Court “failed properly to defer to senior Navy officers’ specific, predictive judgments” about how the Court-imposed additional safety measures would impact the Navy’s ability to effectively train its personnel. The case addressed only two specific additional safety requirements that the Navy had appealed (it chose not to appeal 4 others): a much larger (over a mile) safety zone requiring shut-down of sonar whenever whales were present, and reduced power when surface ducts were present. Three opinions were written, expressing the range of responses among the nine Justices: seven justices agreed that the District Court did not properly balance the interests of the Navy and the environment, with one of them (Breyer) dissenting in the decision to toss the restrictions, preferring the Appeals Court approach of allowing the Navy to defer from the shut-down requirements if whales came into the safety zone during “critical points” in the training sessions, and to reduce power in surface duct conditions only if whales were nearby. (It is worth noting here that the Navy has completed 13 of the 14 planned exercises that this court order applies to, with no apparent effect on readiness; it is unclear whether the Appeals Court adjustment to the two key measures made a crucial difference. In any case, the majority ruled on the more stringent application of these measures as decreed by the District Court, while only Breyer attempted to hew to the middle ground that the Appeals Court had applied.) Two justices felt the lower courts had indeed considered the Navy’s concerns and had found the proper balance with its injunction, and further, felt that the Navy had erred in not completing an EIS before beginning the exercises. The Court did not address the larger question of the Executive Branch’s authority to issue exemptions from NEPA requirements (skirting questions about the role played in this case by the CEQ), nor did it rule that lower courts cannot impose remedies; it ruled rather narrowly that the lower courts had not balanced the risk of environmental harm and the risk to national security correctly, and as suggested by the above quote, called for military expertise is to be given great deference.  Sources: NY Times, 11/12/08 [READ ARTICLE] LA Times, 11/13/08 [READ ARTICLE] Seattle Post-Intelligencer, 11/13/08 [READ ARTICLE] Nature, 11/12/08 [READ ARTICLE] Christian Science Monitor, 11/12/08 [READ ARTICLE] SCOTUSBlog, 11/12/08 [READ ARTICLE]SCOTUS Opinions: Majority, Partial Dissent, Dissent, 11/12/08 [DOWNLOAD OPINION(pdf)]

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