Free-Willy-NillyWhat does the Supreme Court ruling on Navy sonar mean for the whales?

(Continued from page 1)

PRINTDISCUSSE-MAILRSSRECOMMEND...SINGLE PAGE

FacebookMySpace Mixx Digg Reddit del.icio.us Furl Ma.gnolia SphereStumbleUponCLOSE

This decision by no means grants the Navy carte blanche to run whatever training exercises it wants. In response to this and other lawsuits, the Navy has acknowledged its obligation to prepare environmental impact statements for sonar exercises—not only off California but in Hawaii and on the East Coast, too. For the Southern California exercises, the admirals must still honor the 12-mile coastal buffer zone demanded by the lower court. And they must comply with a second set of conditions imposed by the Defense Department when the Navy was given its two-year exemption from the Marine Mammal Protection Act. Those include the use of trained marine mammal lookouts, operation of active sonar at the lowest practicable power level, and powering down further when marine mammals are within half a mile. Even Joel Reynolds, the NRDC lawyer in charge of the sonar litigation, sees "significant progress" in the Navy's attitude and behavior.

So the Supreme Court's "kill the whales" decision was neither surprising nor earth-shattering. That said, it still offers reason for whales, dolphins, toads, and other critters to be discouraged. Georgetown law professor Richard Lazarus has been arguing for years (since long before Roberts joined the court) that the justices don't understand the special challenges of environmental law. The chief justice's opinion in this case shows that Lazarus is still right. A majority of the court not only doesn't understand environmental problems, it doesn't care to understand them.

If the lower court was cavalier about the national-security interest, Roberts was equally so about the environmental interests at stake. He acknowledged the bland possibility of unspecified harm to an unknown number of marine mammals but not the detailed evidence of strandings, ear injuries, the bends, and "profound behavioral changes" that had motivated the lower courts' conclusions.

At his confirmation hearings, Roberts drew fire from environmentalists for an opinion he wrote as a judge on the D.C. Circuit, questioning whether the Commerce Clause of the U.S. Constitution could be read to allow protection of "a hapless toad that, for reasons of its own, lives its entire life in California." As he pointed out at the time, Roberts had only sought additional review of that question, and his legal interpretation was within the mainstream. The same can be said of his opinion in the Navy sonar case. Then as now, he reveals a flippant lack of concern for the environment that does not bode well for future cases.

Several other significant environmental cases are on the court's docket this term. It must decide the extent to which the Forest Service is subject to citizen oversight, whether the EPA can use cost-benefit analysis to limit regulations on cooling water intakes, and whether the Corps of Engineers can allow a mining company to dump thousands of tons of tailings in a lake. While the decision in the Navy sonar case is not as bad for the environment as it might seem, its overtones give ample cause for worry.

PRINTE-MAILRECOMMEND...RSS

FacebookMySpace Mixx Digg Reddit del.icio.us Furl Ma.gnolia SphereStumbleUponCLOSE

SPONSORED CONTENT

• Don't Sweat the Invasion
  Why foreign plants and animals may not be that bad.
  Rebecca Tuhus-Dubrow | Nov. 4, 2009
• Better Off on Big Farms
  For workers in agriculture, size matters.
  Tracie McMillan | Nov. 2, 2009
• Skunks
  From a continuing series on revolting creatures.
  Constance Casey | Oct. 12, 2009
• Search for more Green Room articles
• Subscribe to the Green Room RSS feed
• View our complete Green Room archive