Yesterday, the Supreme Court Justices agreed to debate whether the Navy can ignore environmental regulations. At issue is the United States Court of Appeals for the Ninth Circuit enforcement of environmental regulation versus a perceived stronger need for national defense.

There is strong evidence that the use of low- and mid-frequency active sonar may adversely harm marine mammals by causing injury through some combination of barotrauma, hemorrhaging, stranding, and trauma. For example, deep-diving pelagic cetaceans like the Cuvier’s beaked whale (Ziphius cavirostris) rarely strand en masse. When strandings of such deep-diving marine mammals do occur they are associated with a “meaningful proximity of military [maneuvers].” It would be interesting to determine the rate of predation on injured whales, which have suffered acoustic-induced trauma (before stranding takes place).

The case, Winter v. Natural Resources Defense Council will be heard during the Court’s next term, which begins October 2008. The questions presented for the Court include:

The district court found a likelihood that the Navy failed to comply with the National Environmental Policy Act (NEPA) and preliminarily enjoined the Navy’s use of midfrequency active (MFA) sonar during training exercises that prepare Navy strike groups for worldwide deployment. The Chief of Naval Operations concluded that the injunction unacceptably risks the training of naval forces for deployment to high threat areas overseas, and the President of the United States determined that the use of MFA sonar during these exercises is “essential to national security.” The Council on Environmental Quality (CEQ), applying a longstanding regulation, accordingly found “emergency circumstances” for complying with NEPA without completing an environmental impact statement. The Ninth Circuit nevertheless sustained the district court’s conclusion that no “emergency circumstances” were present and affirmed the preliminary injunction. The questions presented are:

 

1. Whether CEQ permissibly construed its own regulation in finding “emergency circumstances.”

 

2. Whether, in any event, the preliminary injunction, based on a preliminary finding that the Navy had not satisfied NEPA’s procedural requirements, is inconsistent

On the Net:

1. PROCEEDINGS OF THE WORKSHOP ON ACTIVE SONAR AND CETACEANS
2. Ad-Hoc Group on the Impact of Sonar on Cetaceans