Sonar and the supreme court

Basic facts: The Navy performed a number of mid frequency active sonar exercises off the coast of Southern California aimed at detecting diesel electric submarines. Citing irreparable damage to marine life, the Natural Resources Defense Council (NRDC) took legal action to prohibit the sonar use.

The District Court for the Central District of California agreed that environmental laws would be violated by the sonar use, but agreed to let the Navy continue under a preliminary injunction that would require a 75 percent power shut down and restrict the Navy from using sonar when marine mammals are detected within 2,200 feet of testing areas.

The Navy sought to remove the injunction by invoking a statement in the National Environmental Policy that allows alternative measures in emergency circumstances. The President and the Council for Environmental Quality recognized the situation as being an emergency and granted the Navy approval to continue without the preliminary injunction.

The District and the Ninth Circuit Court refused on the grounds that there was no apparent emergency and that the alternative means the Navy took were not valid.

The courts deemed that the preliminary injunctions would continue. The Navy brought the case to the Supreme Court to judge if the District Court acted legitimately in prohibiting the Navy’s sonar exercises.

Arguments:

The Navy argued that the District Court made their decision based on an erroneous conception of irreparable injury, and that there is a precedent set by the Supreme Court that when a lower court makes an erroneous assessment the court may intervene.

According to the Navy, there was no clear permanent damage done to marine mammals and that the only disturbances they faced were “Level B”, which means marine mammals would temporarily alter their direction or feeding routines when confronted with mid frequency sonar. Therefore, since there was no permanent damage done to marine mammals, it could not be considered irreparable injury.

Justice Ruth Bader Ginsberg mentioned that the Navy’s environmental assessment estimated that there would be 654 Type A disturbances, implying permanent damage to marine mammals. The Navy responded that this number included beached whales, of which the causes of death were unclear.

The NRDC responded that classifying beached whales as possible Type A disturbances was not a generous policy move by the Navy, but that there is scientific evidence that these deaths are sonar related. The NRDC explained that the sonar disturbed the whales diving patterns, which resulted in whales coming up too fast or too early which would cause “the bends” or embolisms. The NRDC also said that traditionally environmental damages have been considered permanent and irreparable.
There were also questions raised by Justice Antonin Scalia over whether or not the District Court could judge what would constitute as military emergency since they are not related to the armed forces. NRDC responded that the Court gave proper deference to the Navy but still did not find that the evidence matched the declaration of an emergency.

Color:

Justice Stephen Breyer joked that he thought the military trying to get an environmental impact report was absurd since “the whole point of the armed services to hurt the environment” and asked if we made environmental inquiries when we’re dropping bombs. The NRDC responded that none of their restrictions apply to the environment.

The Navy did perform an Environmental Assessment and apparently if there is nothing in the assessment that would make a party believe there needs to be an Environmental Impact Statement (EIS) one can be forgone. The NRDC pushed for the Navy to issue an EIS. Antonin Scalia suggested that this shows they hold the Navy in bad faith.