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Supremes to Take on Navy Sonar:

The Supreme Court has agreed to hear a potentially important case concerning the relationship between national security and environmental protection. In Winter v. NRDC the Navy sought review of a court injunction against the use of high frequency sonar facilities during naval training exercises due to their potential impact on whales. Specifically, the district court found that the Navy had failed to comply with the requirements of the National Environmental Policy Act (NEPA). According to the federal government, the Council on Environmental Quality found "emergency circumstances" that justified the Navy's failure to fulfill NEPA's requirements, but the U.S. Court of Appeals for the Ninth Circuit disagreed.

The LA Times covers the story here. The opinion below is here.

Related Posts (on one page):

  1. Colburn on Navy Sonar Case:
  2. Supremes to Take on Navy Sonar:
ejo:
will the Supremes grace us with their vast wisdom on the issue and its impact on our ability to defend the nation?
6.23.2008 4:21pm
Wahoowa:
Let's be clear here--this is not a case about "our ability to defend the nation." It's a case about statutory interpretation and what constitutes "emergency circumstances." If Congress wants to exempt the Navy, they are perfectly free to do that. But any damage to our ability to defend ourselves comes solely from poor tailoring of the statute by the legislature, not from the courts.
6.23.2008 4:43pm
Oren:
The injunction prevents them for using sonar within 12 miles of the coast. Even at a leisurely cruise, that's less than an hour from port. Surely the military can't argue that having to sail a whole hour to practice will seriously impede their ability to defend the country.
6.23.2008 4:44pm
M. Gross (mail):
I have no experience at sonar operation, but wouldn't submarine hunting involve relatively shallow water near coasts? I seem to recall a fair number of submarine actions in World War 2 involving harbors and very near-coast waters.

There could certainly be an argument that shallow water terrain provides a unique environment for sub hunting (and thus sonar usage.)
6.23.2008 4:50pm
ejo:
I am sure that the use of sonar has nothing to do with the ability to defend the nation-I am sure there are 5 experts on naval warfare on the court who will put their vast knowledge of the topic to the test.
6.23.2008 4:51pm
scheduled exercise:
My experience with NEPA is limited, but isn't it procedural rather than substantive? For instance, the Navy could run the required scientific testing, come to a conclusion that the harms are significant but they were going to go ahead anyways, have a public comment period, respond, and then conduct the exercises regardless of the impact? I didn't think NEPA allowed a judge to craft substantive remedies.
6.23.2008 4:55pm
Al Maviva (mail):
Oren's completely right. It's not as if the Navy would ever need to be accustomed to, trained for and actually conducting anti-submarine operations within 12 miles of our coasts. The very notion of foreign submarines traveling within or right at 12 miles of our coasts is silly.
6.23.2008 4:55pm
Eric Atkinson (mail):
Dateline January 9, 1942. A Boston resident has sued the War Department due to his favorite radio was being interfered with "by some damn fool contrapion over at MIT they use to control the weather with". The War Department declined to comment due to "pending legal matters and National Security"
The lab at MIT called the"RAD LAB", is a $100 million boondoggle that is said to produce "electronic machines that can detect objects far away". When asked why they did'nt just telescopes like everyone else the War Deptment also declined to comment. A class action lawsuit by other Boston residents against MIT, the Navy, and the War Deptment is expected soon.
6.23.2008 5:04pm
Bob from Ohio (mail):
Let's not get too excited. Its a 9th Circuit case. Reinhardt was on the panel. You do the math.
6.23.2008 5:07pm
Charles Chapman (mail) (www):
Oren said:
The injunction prevents them for using sonar within 12 miles of the coast. Even at a leisurely cruise, that's less than an hour from port. Surely the military can't argue that having to sail a whole hour to practice will seriously impede their ability to defend the country.
Even if I agreed with you (and I don't given the need for shallow water training cited above), the Los Angeles Times also reports:
Crews also must tone down their sonar whenever whales or other marine mammals are spotted within 2,200 yards of a ship.
I suspect this is also not helpful for training. Particularly if "spotted" includes having the whale or other marine mammal itself turn up on sonar.

I can imagine the scenario:

"We've almost localized the 'enemy' submarine. It appears to be closing."

"Damn! Ensign Smith just spotted Flipper 2,000 yards off the stern."

"Sigh. Turn down the sonar. Again."
6.23.2008 5:24pm
AnonLawStudent:

Surely the military can't argue that having to sail a whole hour to practice will seriously impede their ability to defend the country.

Sonar behaves very differently in shallow water than in deep. The Navy is extraordinarily concerned about diesel-electric submarines, particularly in littoral waters, because of the difficulty in detecting them due large amounts of small-boat traffic. Who are we referring to specifically? Indigenous Chinese Song class and Russian-made Kilo class submarines exported to - among other nations - China, Iran, and Venezuela. Why the need for shallow water exercises? The average depth of the Persian Gulf is 50 meters, while the Taiwan Strait has a maximum depth of about 70 meters, and both are areas with the potential for significant naval combat.
6.23.2008 5:27pm
coyote (mail):
scheduled exercise: Yes, NEPA is procedural and not substantive, but a court may enjoin a federal action where the agency has failed to comply with NEPA.

Bob from Ohio: NEPA claims are 0-14 (I believe) in the Supreme Court. (Despite which, it remains a rather powerful statute.)
6.23.2008 5:27pm
AnonLawStudent:
I should clarify that the small boat traffic is only one factor: diesel-electric boats are cheaper, quieter, and more numerous than their nuclear cousins. The complications arising from shallow-water limitations on sonar and prevailing small-boat traffic only make the problem worse.
6.23.2008 5:30pm
ejo:
Well, perhaps those prior courts possessed a little more humility than the current one. the fighting 5-4 brigade can dictate military actions and decide on war strategy due to their limitless wisdom.
6.23.2008 5:58pm
wfjag:
The WSJ had a very different take on the USDC and 9th Cir decisions than the LA Times (no surprises there). See

Judge Ahab and the Whales
June 19, 2008; Page A14 at http://online.wsj.com/article/SB121383310973986705.html

coyote wrote:


Bob from Ohio: NEPA claims are 0-14 (I believe) in the Supreme Court. (Despite which, it remains a rather powerful statute.)


True. However, as I understand the facts from the courts' opinions, the Navy's EA was to cover 14 exercises beginning in 2007 and ending in 2009, of which 8 had not been conducted when the USDC issued the PI on Jan 10, 2008 (and the USDC had earlier enjoined the Navy, which the 9th Cir. has previously reversed and remanded). Given that the earliest that the Supreme Court will hear the case is the first Tuesday in October, and given the the Supreme Court usually takes a few months to issue a decision, since the PI will remain in place until then -- even assuming that this case makes it 0 - 15 -- the PI will remain in effect until sometime in 2009. Accordingly, while the NRDC may ultimately loose, that will be moot since the Navy will not have conducted the training, and will have to do a new EA or EIS to conduct the missed training, which the NRDC can then challenge in the same USDC all over again.

The LA Times omitted mentioning the other restrictions (in addition to those that the Navy had already decided to put in place). See the 9th Cir decision at 2122:


(1) the Navy shall suspend use of MFA sonar when a marine mammal is detected within 2,200 yards from the sonar source, except where the marine mammal is a dolphin or a porpoise and it appears that the mammal is intentionally following the sonar-emitting naval vessel in order to play in or ride the vessel's bow wave;

(2) the Navy shall reduce the MFA sonar level by 6 dB when significant surface ducting conditions are detected;

(3) the Navy shall not use MFA sonar within 12 nautical miles from the California coastline;

(4) the Navy shall monitor, including by aircraft, for the presence of marine mammals for 60 minutes before employing MFA sonar, shall utilize two dedicated, NOAA- and NMFS trained lookouts at all times when MFA sonar is being used, shall employ passive acoustic monitoring to supplement visual detection of the presence of marine mammals, and shall use aircraft participating in the training exercises to monitor for marine mammals for the duration of the exercises when MFA sonar is being used;

(5) Navy helicopters shall monitor for marine mammals for 10 minutes before employing active dipping sonar;

and (6) the Navy shall refrain from using MFA sonar in the Catalina Basin between the Santa Catalina and San Clemente Islands because ingress and egress to the basin are restricted and the basin has a high density of marine mammals. (footnote omitted; reformated into separate paragraphs for ease of reading)


Considerable preparation, training and equipment will be needed by the Navy to comply with these restrictions, if any of them are up-held by the Supreme Court.

Again, effectively the NRDC wins, whatever the Supreme Court decides. The Navy's preparation time to comply with the restrictions will likely force it to postpone or cancel some or all of the remaining exercises.

Still, my favorite restriction is #1 -- How do you tell if "a dolphin or a porpoise . . . is intentionally following" a ship? Maybe a Navy JAG could get it to execute an affidavit saying "I was only playing."
6.23.2008 6:20pm
yankev (mail):
Think of all the lead released into the environment by unnecessary "target practice" on US military bases. Surely the military would not be handicapped by the EPA requiring them to phase out lead, and to replace live firing ranges with video simulations. Remember the Brady Campaign motto -- if it saves the life of only one whale, it's worth it.
6.23.2008 6:22pm
coyote (mail):
yankev: You might be interested in Weinberger v. Romero-Barcelo, 456 U.S. 305 (1982). In any case, the military can be "handicapped" (or excepted from "handicaps") however Congress wishes, including compliance with NEPA, the Clean Water Act, and so on. You would agree with that, wouldn't you?
6.23.2008 6:54pm
common sense (www):
yankev: as an training ammunition officer at an infantry division, I had to evaluate lead free ammunition, which has differing ballistic characteristics. Despite repeated assertions that it was ineffective for training, since it flies differently than a lead bullet, I received almost weekly requests for comments as to its adoption.
6.23.2008 7:00pm
CDR D (mail):
As a former Sonar Tech from the 1960's, I have to wonder about the claim the "high freq" sonar is detrimental to these animals.

High frequency sonar is generally short range, and more effective in shallow water, or in water that has a shallow layer depth in terms of the temperature gradient.

The technological trend back then was from the higher freqs, such as the AN/SQS-29 series and the AN/SQS-23 to the low freq AN/SQS-26 series sonars.

I don't know about today's sonars, but the high freq we used 30-40 years ago used to attract porpoises. They would "cavort" (where have we heard that term lately?) around the ship, keeping perfect pace with us, as if they were enjoying some kind of ...

... never mind.
6.23.2008 7:36pm
Don Miller (mail) (www):
I know it is a question of power, but there are a lot of high-frequency sonars in use in the 12 mile coastal area as well.

Navy ships and helicopters doing ASW patrolling are the strongest, but "fish finders" and depth sounders on smaller civilian craft are also high frequency sonars.

Low frequency sonars need bigger antennas.

Most of the things I wanted to say were said by several other people.

/former US Navy
6.23.2008 7:44pm
Richard Aubrey (mail):
Surely the enemy's tactical needs will magically change to allow the SCOTUS' ideas to be enforced without additional risk to our nation.

Clap your hands and wish real hard, children.
6.23.2008 8:39pm
Francis (mail):
Alternatively, if the Executive Branch believed that current US law adversely affected military preparation it could follow the Constitution and go back to the Legislature to get the rules changed.

my gawd, the deference to the Executive is just staggering for a libertarian blog. I wonder how things will change if Obama gets elected.
6.23.2008 9:22pm
Mark Buehner (mail):
And what are the odds our enemies pay attention to our media and will work to take advantage of this?
6.23.2008 9:35pm
Cornellian (mail):
As I read the summary, it's whether the state permits the use of sonar in certain situations during training exercises. It doesn't say anything about the use of sonar to find an actual enemy sub.

Presumably if the Executive doesn't like the statute, they have to ask Congress to change it. They can't just ignore it then complain that the court's fault that it doesn't read the way they would like it to read.
6.24.2008 12:16am
Pol Mordreth (mail):
Corenllian:

True, this does not affect trying to find an actual enemy sub. However, how do you learn how to find an enemy sub? You have to train in all sorts of situations against friendly subs. As a former submariner, I participated in all sorts of wargames against our surface fleet. It was amazing how at the start of a set of games, the poor nubbly surface sonar technicians couldn't find us, and as the games went on, they got much better. Everything in the Navy was about practice. Drill over and over, in all kinds of conditions, so that if it ever became the real thing, you knew what you were doing and responded automatically. This method works, and works well.

As to whether congress is really at fault here, i'd have to agree. They could have easily made it easier for the Navy to conduct littoral water training exercises. The fact that this is going to the supreme court is just another indicator of the failure of the legislative branch to prepare for unintended consequences.

Respectfully,
Pol
6.24.2008 8:38am
Pol Mordreth (mail):
sorry, cornellian... fat fingers today :)
6.24.2008 8:42am
yankev (mail):
Coyote, thanks for the cite. At least that statute provided for a presidential exemption. Does the sonar restriction?

Common Sense, thanks for validating this civilian's intuition about changes that may seem small to the outsider but that can have a huge effect on those who have to live or die with the consequences.
6.24.2008 10:35am
Oren:
Don't worry Richard, it's not a problem -- I'm wearing waterproof pants.
6.24.2008 12:06pm
Richard Aubrey (mail):
yankev
Those living and dying by the consequences include all of us. Not merely the submariners and their ASW rivals.
6.24.2008 12:59pm
J. F. Thomas (mail):
yankev: as an training ammunition officer at an infantry division, I had to evaluate lead free ammunition, which has differing ballistic characteristics. Despite repeated assertions that it was ineffective for training, since it flies differently than a lead bullet, I received almost weekly requests for comments as to its adoption.

I know it is fun to sneer and be snarky about the chain of command and clueless idiots at the Pentagon, but the military spends tens of millions of dollars cleaning up old and existing ranges. Lead from ammunition is a real problem, especially when it comes time to close a range or turn it over for civilian use. Disposal of old stockpiles of obsolete ordnance and clean up of ammunition plants, and the destruction of our chemical weapons stockpile is costing the military billions of dollars.

Even if you could care less about the environment, you should realize that the issues surrounding finding alternatives to lead ammunition (and even live fire exercises) are also driven by a desire to save money--not just the environment. That is certainly something every self-respecting libertarian should appreciate.
6.24.2008 1:23pm
coyote (mail):
yankev: No, there's no statutory exception. IIRC, CEQ, the entity entrusted with promulgating NEPA regulations, has created an "emergency exception" in its rules and stated that it applies in this case.
6.24.2008 3:24pm
Oren:
Yes, because routine training can reasonably be classified as an emergency. I'm with Cornellian, if the Congress decides to cripple the military in some fashion (funding, policy or otherwise) then the executive has to either ask for a different policy or deal with it.
6.24.2008 4:12pm
yankev (mail):
Richard, I agree about who takes the risks.

Coyote, I did not realize the requests were coming from the chain of command, and assumed they had come from outside the military. I meant no snarkiness toward them; they have been there, I have not.
6.24.2008 6:38pm