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Colburn on Navy Sonar Case:

Jamison Colburn has two posts on Dorf on Law discussing Winter v. NRDC, in which the Supreme Court will hear the Navy's challenge to a court injunction limiting the use of a high-powered sonar system that may harm whales.

In his first post, Colburn considers what, precisely, would constitute the sort of "emergency" that could justify the Navy's failure to complete an environmental impact statement under the National Environmental Policy Act.

For perhaps strategic and perhaps tactical reasons, then, the Navy has never argued (at least in this case) that its active sonar is benign. What it argues is that the risks to marine life are justifiable under the governing law and that, if necessary, they can be authorized by the President under his authority as Commander in Chief. Which this President did. Proudly. And it turns out that, at least on the face of the rules at issue, the statutory and regulatory arguments may hold a fair bit of water. . . .

Let us suppose the Department of Defense had decided from the start to find whatever means it could to exempt its operation from the public, proceduralistic routine of an EIS. Let us even suppose that it had done so with the White House's blessing. Should they have made better legal arguments or was this simply a matter of not anticipating the appellate panel they got (B. Fletcher, Reinhardt, and Nelson)? Was it an "emergency circumstance" that a district judge unexpectedly favored NRDC's claims about the sonar? If not, then consider this: could the Navy have simply delayed scheduling the training exercises to leave inadequate time for an EIS within its "preparedness" criteria—seemingly triggering Section 1506.11 in the most pristine, protected sense possible? All of that was and is completely within the power of the Executive to manipulate.

His second post then considers the Winter case's potential impact on NEPA and whether the law's procedural requirements remain an effective deterrent to environmentally harmful government action.
NEPA has always been an analytical requirement only—it does not and has never required that one decision be made instead of another. Don't be fooled, though. Its normative core has always piggy-backed on a part of the country's 'overlapping consensus' that almost certainly creates a presumption in favor of environmentally cautious decisions (that part of America that says "don't take any unnecessary risks with nature or our natural resources"). Having to document and publish a "detailed statement" justifying the use of this extremely powerful sonar is its own kind of deterrent. In the Sonar Case, the Supreme Court has agreed to decide whether an agency's effort to avoid discussing such trade-offs in public is due deference in its own right—notwithstanding a preexisting judicial action on the same matter. The agency in this case has played the trump of all trumps and it will be most interesting to see how the Court responds.
For those interested in the case, both posts are worth a read.

Related Posts (on one page):

  1. Colburn on Navy Sonar Case:
  2. Supremes to Take on Navy Sonar:
Anderson (mail):
Having to document and publish a "detailed statement" justifying the use of this extremely powerful sonar is its own kind of deterrent.

I would have *imagined* that the U.S. Navy and the Department of Defense might be up to this challenge.

Dunno what the final outcome should be re: sonar, but absent a genuine emergency (like, war with Japan?), DOD should at least have to comply with the law.
7.7.2008 11:07pm
FantasiaWHT:
Next up, bombs kill plants and animals, so lets have an evnironmental impact study before we OK their use in any further engagements.
7.8.2008 9:02am
Oren:
Fantasia, war-making is entirely exempt from all such environmental laws. Keeping trying that red herring though, I'm sure someone will buy it.
7.8.2008 9:37am
Bryan C (mail):
But surely one must test equipment and stage exercises in order to be prepared to engage in that war-making. Which seems to be exactly what the Navy was doing. It's not like we can wait until we're at war before we can try out our new active sonar for the first time.
7.8.2008 11:35am
Oren:
Testing is a bit less urgent than fighting though, and its convenience might reasonably be balanced against other objectives. At any rate, Congress, not the courts, are the proper venue for making that judgment -- and they already have (poorly, as usual).
7.9.2008 12:00am
Ryan Waxx (mail):

Testing is a bit less urgent than fighting though, and its convenience might reasonably be balanced against other objectives.


Obviously you've never organized a multi-million dollar exercise, involving diverting ships that may need to be covering certain areas across the world or resupplying depending on what month it is, and ensuring tens of thousands of individuals get the training they need.

Otherwise, you might have gagged at the thought of using the word 'convenience' at the notion of reorganizing wuch an effort according to judicial whim.

But hey, its the MILITARY. Therefore, basic empathy for what large logistic problems you cause them is totally not necessary.
7.9.2008 8:10am
Oren:
But hey, its the MILITARY. Therefore, basic empathy for what large logistic problems you Congress cause(s) them is totally not necessary.
Fixed it for you. Congress passed a boneheaded law (not unprecedented in the history of our Republic) that significantly impedes the military and the military must respect it.

Aim your opprobrium at the politicians that passed NEPA, not the judges that are bound to enforce it.
7.9.2008 12:22pm
Ryan Waxx (mail):
Of course, all the judges are doing is enforcing the law. Of course...

Why, if it was all that cut and dried, why have the judges at all? Oren sees the truth, and that is all that matters!
7.9.2008 3:49pm
Sandy G (mail):
The recurring sight of dozens of whales beaching themselves en masse because their former homes have become uninhabitable doesn't bother me. It's not like they were paying contracted rent or are contitutionally protected...
7.9.2008 7:16pm
Tony181 (mail):
If you look at the facts of the case you will see that the issue is WHERE the Navy likes to play with its sonar. It just so happens that they enjoy using it in highly sensitive ecological areas.

Instead of taking it out to the equivalent of an ocean desert, they like to play with their "war-making" toys right in the middle of the rain forest.

That's why NRDC is so hopping mad.
7.10.2008 2:11pm
Ryan Waxx (mail):
I wonder why you are treating the NRDC's claims as proven fact when they are not? I remind you that assessing the environmental harms is the point of the EIS.

No, scratch that, I don't wonder one bit.


Instead of taking it out to the equivalent of an ocean desert, they like to play with their "war-making" toys right in the middle of the rain forest.


Ok then, we'll just have the entire globe promise real nice-like that they'll never travel in "the rain forest" to attack us. Then they can also promise to broadcast their positions so we don't need sonar to find them.

And then we can hire the frigging NRDC to defend the country.

This is your brain on environmentalism. Any questions?
7.11.2008 11:21pm
Oren:
I wonder why you are treating the NRDC's claims as proven fact when they are not? I remind you that assessing the environmental harms is the point of the EIS.
Which the Navy refused to do. If we have the Navy's EIS we might compare it with the NRDC claims and make something of it. Instead, the Navy insist they don't even need to do an EIS.

Ok then, we'll just have the entire globe promise real nice-like that they'll never travel in "the rain forest" to attack us. Then they can also promise to broadcast their positions so we don't need sonar to find them.
This is your brain on jingo-ism: imagining threats at every opportunity and believing, against all the evidence, that the whole globe is out to get you.
7.12.2008 7:20pm