Mitigation, then Warrior Safety
In Whales In a Time of War, we reported that Judge Andrew Kleinfeld of the U.S. 9th Circuit Court of Appeals had noted during his 2-1 ruling allowing the Navy to continue sonar training in whale breeding grounds: "the safety of the whales must be weighed, and so must the safety of our warriors. And of our country."
The judge framed his (the presidential office's) decision as one of national security, saying: "we customarily give considerable deference to the executive branch's judgment regarding foreign policy and national defense."
Mid-frequency sonar testing causes whale strandings and deaths that have been frequently documented; in North Carolina (2005); at Haro Strait off the coast of Washington State (2003); in the Canary Islands (2004, 2002, 1989, 1986, 1985); Madeira (2000); the U.S. Virgin Islands (1999, 1998); Greece (1996), and the Bahamas (2000). At one time the Navy took precautions to prevent unnecessary damage to the whales. The Navy did this without neglecting the excellent testing and training of sonar that the US national defense demands. However; the Navy's previous caution has lapsed according to environmental agencies.
The Natural Resource Defense Council (NRDC) and several other groups sued the Navy back in 2005, requesting the mitigatory action to spare marine mammals that get disoriented, stranded, or killed following sonar exposure. The August 2007 decision turned into a long back and forth negotiation between the courts, environmental groups, and the Navy. Here's some (not all) of the outcomes:
- August, 2007: U.S. District Judge Florence-Marie Cooper orders a temporary injunction based on submitted evidence that bans all training exercises off Southern California waters saying that there was "'near certainty"' that "8,000 whales or dolphins potentially experiencing temporary hearing loss and an estimated 466 cases of permanent injury to whales."
- August 31, 2007, U.S. 9th Circuit Court of Appeals invokes national security and says the Navy can go ahead with testing.
- November 13, 2007: A different 9th Circuit Court Appeals panel says that the Navy can continue exercises scheduled until November 22, but then must resume mitigation efforts such as staying a certain distance from shore and posting scouts on deck during exercises to try to prevent harm to marine life.
Suicide Pact?
By January, 2008, Judge Cooper had thoroughly reviewed the Navy's records and science documents, and found that the Navy's mitigation efforts were "grossly inadequate to protect marine mammals from debilitating levels of sonar exposure". The Navy's sonar testing would leave 30 species of marine mammals at risk including 5 species of endangered whales. The Navy's research indicated that the testing could harm thousands of animals, however they didn't do an environmental impact statement as demanded by law.
- January, 2008. The judge issues a more detailed order that allows the Navy to continue the sonar testing while taking precautions to protect endangered marine animals.
- January 14, 2008: The district court denies a Navy stay application.
- January 15, 2008: George Bush grants the Navy two waivers to conduct it's sonar testing under Coastal Zone Management Act (CZMA), and and the National Environmental Policy Act (NEPA) in an effort to sidestep the court's findings, claiming national security.
- January 17, 2008: Judge Cooper issues a partial stay of her orders that keeps some of the previous mitigation measures intact, but allows the Navy to use sonar when marine animals even if animals were detected within 2,000 meters of the sonar source.
- February 29, 2008: The court follows up on the order, allowing the Navy to continue testing but with mitigation measures to protect whales.
- April, 2008: The Navy petitions the Supreme court to review the lower court's decision citing emergency national security.
Despite accommodation by the lower court for the Navy's readiness mandate, the Navy disagrees that its previous mitigation efforts need to be continued. Environmental regulations should not be a "suicide pact", said the Bush administration hyperbollically. In a decision last month, the Supreme Court decided to hear Winter v. Natural Resources Defense Council in the next session.
