Los Angeles lawyer Richard B. Kendall described the sonar as like the sound of “a jet engine in this room multiplied by 2,000 times.” He said beaked whales, in panic, dive deeply to escape the sound, and they sometimes suffer bleeding and even death when they try to resurface.

- Via the Los Angeles Times, CA

Today the United States Supreme Court argued Winter, et al. v. Natural Resources Defense Council, Inc., et al., and the justices seem split down ideological lines.  The issue today was “whether courts below properly enjoined the Navy’s use of sonar during certain training exercises for failure to conduct an environmental impact statement over a finding of ‘emergency circumstance’ by the Council on Environmental Quality.”  Basically, did the lower court correctly instruct that the Navy must comply with environmental regulations, since no “emergency circumstances” existed to act as an exemption for noncompliance?  

Is the use of mid-frequency active sonar absolutely necessary to national security? Certainly we don’t want to see cetacean populations adversely affected.  I think a balancing test taking into consideration the revenue generated from whale watching or any type of activity that is linked to cetaceans, in addition to the hard to quantify enjoyment they provide for many people, against the Navy’s claim that conducting harmful military exercises are absolutely necessary, then the whales certainly win and deserve protection.  A ruling in Winter v. NRDC should is expected next year.  From Reuters:

The four liberal justices expressed concern over the administration’s failure to do an environmental impact statement before sonar training exercises began off the southern California coast.

Environmentalists say the intense sound waves used in sonar training exercises can harm or even kill endangered whales, possibly by interfering with the marine mammals’ dive patterns.

During the arguments, the conservative justices appeared supportive of the administration’s argument that judges should defer to the judgment of the Navy and Bush, and allow the submarine-hunting exercises.

After a judge issued a preliminary injunction imposing numerous restrictions on the Navy, Bush intervened. He cited the national security necessity of the training and exempted the Navy from the environmental laws at the heart of the legal challenge.

A U.S. appeals court rejected the White House’s effort to exempt the Navy from the laws, prompting the administration to appeal to the Supreme Court.

The conservative justices presented tough questioning to lawyer Richard Kendall.  Furthermore, the conservative justices seem to agree with U.S. Solicitor General Gregory Garre’s arguments that the lower court’s ruling against the Navy is harmful to national security.  The Solicitor General also argued that the Navy’s sonar use is not harmful to marine mammals.  NPR highlighted some arguments heard today:

Inside the courtroom, Justice Samuel Alito asked the government’s chief advocate just how many marine mammals have been killed or injured. Solicitor General Gregory Garre contended that there has been no serious harm.

Justice Ginsburg: I thought there are records of 564-beaked whales suffering severe harm. 

Garre: Our best evidence is that that harm has not been permanent.

Much of the argument focused on the Navy’s refusal to produce an environmental impact statement before it began the exercises.

Justice Souter: You’ve known since before the exercises began in 2007 that this was a requirement, and you still didn’t produce it. Why shouldn’t we say the only emergency was created deliberately by the Navy? 

Justice Breyer: The reason the law requires the environmental impact statement is that once the agency reads it, it might decide to do something different. That’s the whole point.

But it was Kendall, representing environmental groups, who took the real beating Wednesday.

Justice Alito: There’s something incredibly odd about a single district court judge making a judgment contrary to the determination the Navy has made. 

Kendall: The judge was extraordinarily deferential to the Navy, but the evidence showed that the Navy could, without any major problems, conduct these exercises in a way that minimized damage to marine mammals. 

Justice Kennedy: The president and the Defense Department deserve some deference, too. 

Justice Breyer: The Navy is saying, “If we can’t train personnel using these levels of sonar, we can’t train people to find submarines where they hide.” This makes me very nervous. 

Chief Justice Roberts: We should stop the Navy from doing this just because we think there is likelihood they might be inflicting unneeded damage? 

Kendall: Yes … the Navy cannot be the judge of its own cause. There’s a limit to deference. … The evidence is overwhelming that beaked whales are being stranded by sonar and killed. Autopsies show they are hemorrhaging and dying. 

Justice Breyer: You go on a bombing mission — do you have to prepare an environmental impact statement? 

Kendall: No, of course not in combat. But here in a training exercise, the military is supposed to minimize the damage.

I previously wrote here about sonar interacting with marine mammals:

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 discuss the possibility of predation on injured whales that suffer acoustic induced trauma before they become stranded.

LA Times diagram found here
Beached Shepard’s beaked whale by photographer Peter Simpson image found here
Image at right showing beached beaked whales found here