Save the Whales, or the U.S. Navy Sonar?

Oct. 8, 2008— -- National security and environmental law went head-to-head today at the Supreme Court when a government lawyer argued the U.S. Navy's use of sonar for antisubmarine-warfare training is critical for national defense, while environmentalists claimed the practice causes irreparable damage to marine mammals.

"The ability to locate and track an enemy submarine through the use of midfrequency active sonar is vitally important to the survival of our naval strike groups," Solicitor General Greg Garre told the court.

But a lawyer representing environmental groups on behalf of whales, dolphins and other marine life rejected the government's arguments, saying there is scientific evidence that mammals such as the endangered beaked whale suffer irreversible damage when they are exposed to the intense underwater noises that sonar produces.

"The reason that happens, especially to beaked whales, is because they dive for very long periods of time," Richard Kendall of the Natural Resources Defense Council told the court. "If they come up too fast, they get the bends so there is evidence of -- when they do the necropsies of these beaked whales, they find hemorrhaging, the embolisms in various parts of the bloodstream and many, many deaths."

Kendall said the sound intensity of the sonar, correcting for water would compare to a jet engine in the courtroom multiplied 2,000 times.

He said the Navy is "perfectly able to train" with some restrictions that would protect marine life.

The justices will have to decide whether a lower court was correct in its decision to limit the exercises, and whether the executive branch can give the Navy an exemption from federal environmental laws.

The Navy has conducted training exercises off the Southern California coast for more than 40 years. It argues that its current training exercises have taken on added significance since the United States has been engaged in ongoing hostilities.

A federal court in California ruled that the Navy could go forward with 14 exercises between February 2007 and January 2009, but it had to limit its sonar use whenever a marine mammal is spotted within 1.25 miles of any sonar source. The chief of naval operations, responsible for training and equipping the Navy, says that such restrictions unacceptably risk naval training.

Environmentalists fear that if the Navy wins in this case, it could set a dangerous precedent.

"If they accept the Navy's premise that the president and the Navy are entitled to a blank check in how they use sonar, then that would be a dangerous precedent and it would be a significant departure from what the law has been in this country for hundreds of years," NRDC senior attorney Joel Reynolds said.

"Our Constitution is grounded on the fact that all of us have to comply with the law. Nobody is above the law, and that includes the U.S. Navy," he said.