White House Fights Ruling Limiting Navy’s Use of Sonar

By Marc Kaufman
Washington Post Staff Writer
Wednesday, January 16, 2008; 11:50 AM

The White House yesterday sought to overrule a federal court’s decision limiting the Navy’s use of sonar in training exercises, exempting the service from complying with two major environmental laws.

Environmentalists who sued to limit the use of loud, mid-frequency sonar — which can be harmful to whales and other marine mammals — said the exemptions were unprecedented and could lead to a larger legal battle over the extent to which the military has to follow environmental laws.

In a court filing yesterday, government attorneys said President Bush had determined that allowing the use of mid-frequency sonar in ongoing exercises off southern California was “essential to national security” and of “paramount interest to the United States.”

Based on those conclusions, the documents said, Bush issued the order exempting the Navy from provisions of the Coastal Zone Management Act, and the White House Council on Environmental Quality granted an exemption to the National Environmental Policy Act.

The government filings said the federal ruling limiting sonar use “profoundly interferes with the Navy’s global management of U.S. strategic forces, its ability to conduct warfare operations, and ultimately places the lives of American sailors and Marines at risk.”

The exemptions were immediately challenged by the environmental group that had sued the Navy and by the California Coastal Commission, a state agency that ruled last year that the Navy’s plans to protect marine mammals were too limited and deeply flawed.

“There is absolutely no justification for this,” Commissioner Sara Wan said in a statement. “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.”

Joel Reynolds, attorney for the Natural Resources Defense Council (NRDC), said the organization would “vigorously” contest the White House orders in court.

Federal District Court Judge Marie Florence-Marie Cooper ruled earlier this month in Los Angeles that the Navy’s plan to limit harm to whales — especially deep-diving beaked whales that have at times stranded and died following Navy sonar exercises — were “grossly inadequate to protect marine mammals from debilitating levels of sonar exposure.” A federal appeals court had previously ruled as well that the Navy plan was inadequate, and sent the case back to Cooper to set new guidelines for the exercise.

In her ruling, she banned sonar use within 12 nautical miles of the coast and required numerous procedures to cut off sonar use when marine mammals are spotted. Following the ruling, the Navy indicated that the guidelines would render the exercise useless, despite the judge’s opposite conclusion.

The Navy had already received a federal exemption from the Marine Mammal Protection Act for the exercises, which are scheduled to continue through January, 2009, but the NRDC and other groups filed suit under other environmental laws. The Navy will still have to convince federal judges that the exemptions are legal. The NRDC said this morning that such waivers are not allowed under the National Environmental Policy Act, which it said does not have an “escape clause” allowing exemptions. Both the coastal zone and marine mammal protection acts do allow for waivers.

In addition, the NRDC said the situation does not constitute an emergency, because the Navy is allowed to continue sonar training under Cooper’s ruling.

“The president’s action is an attack on the rule of law,” said Reynolds, director of the Marine Mammal Protection Project at NRDC, which obtained the injunction against the Navy. “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.”

Navy officials have argued that they must step up sonar training because a new generation of “quiet” submarines has made it increasingly difficult to detect underwater intruders. The Navy says more than 40 nations now have relatively inexpensive diesel-powered submarines, which cannot be detected with passive sonar and can only be located with sonar that emits the loud blasts of sound.

The Navy trains sailors in sonar use on an underwater range off southern California and wants to build another range off the Carolinas.

The NRDC said the waters off southern California are especially rich in marine mammal life and are on migration paths of five species of endangered whales.

~ by fredfelleman on January 16, 2008.

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