Federal Judge Rejects White House Exemptions for CA Sonar (updated 2/19)– The federal judge who imposed additional safety requirements on Naval mid-frequency active sonar training off the California coast has rejected the Bush administration’s attempt to exempt the Navy from the laws she was enforcing. Central to this ruling is the fact that there is no “emergency” that warrents such intervention by the White House; the training missions at issue have been long planned, and can proceed, albeit with larger safety buffers and some geographic restrictions to avoid areas with higher numbers of whales.

 U.S. District Court Judge Florence-Marie Cooper wrote that 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. “It is a bedrock principle of our government that neither the military nor the president is above the law,” said Richard Kendall, co-counsel with NRDC in the lawsuit. “Judge Cooper has upheld that fundamental doctrine.” The Navy has completed six of 14 large-scale training exercises scheduled off the coast between February 2007 and January 2009. It decided not to conduct a full environmental review before the operations, saying it already posted lookouts and took other adequate protective measures. But Cooper, in an order last August, said those measures were “woefully ineffectual and inadequate” and would leave nearly 30 species of marine mammals, including five species of protected whales, at risk of harm. 

Sonar Technicians monitor contacts off the coast of Southern California during a Joint Task Force Exercise in early 2008. (US Navy photo)

“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,” said Rear Adm. Larry Rice, director of the Chief of Naval Operations Environmental Readiness Division. “We want to keep that up,” added 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.” (ed note: it is becoming apparent that the Navy feels strongly that it is doing enough to protect whales, and is very unresponsive to judicial decisions that it perceives as ill-advised and lacking scientific merit. What may be overlooked by the Navy and the media, is that this and other related rulings are looking at evidence of behavioral impacts that occur at lower sound levels which can still lead to physical injury; also, this and other rulings have been spurred by the Navy’s decisions to not conduct full NEPA-required environmental assessments. The Navy is now in the midst of EISs for many naval training ranges, but current activities are not covered). “I don’t know what it’s going to take for the Navy to get it,” said Peter Douglas, executive director of the California Coastal Commission, “The courts have said over and over that the Navy must follow the law.” Sources: Los Angeles Times, 2/5/08 [READ ARTICLE] Environmental News Service, 2/4/08 [READ ARTICLE] Navy Times, 2/6/08 [READ ARTICLE] Navy News, 2/4/08 (announcing new sonar website) [READ ARTICLE] [NAVY SONAR WEBSITE]

Update: Appeals Court Will Rule Before March Exercises – The 9th Circuit Federal Appeals Court has refused to let the U.S. Navy use high-powered sonar equipment during training exercises while it considers the governments’ appeal of the district court’s decision that the Presidential exemptions are not valid, and that additional mitigation requirements must remain. The order Tuesday has little practical effect because the three judge panel said it intends to rule on the issue before the Navy’s next planned exercise in the middle of March. Source: San Francisco Chronicle/AP, 2/19/08 [READ ARTICLE]

For earlier news stories and more context: [See AEI Special Report: Active Sonars]