February 5, 2008
By Marc Kaufman, Washington Post Staff Writer
The Bush administration overreached when it sought to limit the Navy's obligations under national environmental laws related to sonar training exercises off California, a federal judge ruled yesterday.
In a sharply worded decision that will keep the Navy from continuing a series of 14 planned exercises, U.S. District Judge Florence-Marie Cooper wrote that the Navy and the administration had improperly declared that an emergency would be created if they had to accept court-mandated steps to minimize risk to whales and other sea mammals. Because no real emergency exists, she said, the White House cannot override her decisions and those of the U.S. Court of Appeals for the 9th Circuit.
Accepting the Navy's arguments, she wrote, would produce "the absurd result of permitting agencies to avoid their [environmental] obligations by re-characterizing ordinary, planned activities as 'emergencies' in the interest of national security, economic stability or other long-term goals."
White House spokesman Tony Fratto said, "We disagree with the judge's decision. We believe the orders are legal and appropriate."
A Navy spokeswoman, Lt. Cmdr. Cindy Moore, said the military was studying the decision.
Joel Reynolds, an official at the Natural Resources Defense Council, which obtained an earlier injunction against the Navy blocking the exercises, said in a statement that the court "has affirmed that we do not live under an imperial presidency."
"The Navy doesn't need to harm whales to train effectively with sonar," said Reynolds, who directs the council's Marine Mammal Protection Project. "By following the carefully crafted measures ordered by the court, the Navy can conduct its exercises without imperiling marine mammals."
Early last month, President Bush signed a waiver exempting the Navy from provisions of the Coastal Zone Management Act after Cooper and the appeals court had concluded that the law required the Navy to do more to protect marine mammals during the sonar exercises. The loud blasts produced during sonar exercises have been shown to disorient some types of whales, leading in some circumstances to strandings and deaths.
At the same time Bush signed his order, the White House Council on Environmental Quality determined that the Navy did not need to follow the procedures of the National Environmental Policy Act when doing so would cause an emergency situation. The Navy has long argued that it urgently needs to train more sonar operators because of new threats from "quiet" diesel submarines that can approach ships or the U.S. coast without being detected by traditional passive sonar.
While Cooper's ruling dealt primarily with the legality of the Navy's "alternative arrangement" under NEPA, she also raised the possibility that the administration's actions were unconstitutional in general because they implied that White House agencies could routinely overrule federal court decisions. She did not, however, rule on those grounds.
"The Navy's current 'emergency' is simply a creature of its own making, i.e., its failure to prepare adequate environmental documents in a timely fashion," she wrote.
The ocean off Southern California, where the exercises were scheduled, is especially rich in sea life and is on the migration paths of five endangered species of whales, an important population of blue whales, and as many as seven individual species of beaked whales -- small, deep-diving whales which have been shown to be particularly sensitive to sonar blasts.
The council and several other environmental groups have been fighting the Navy over sonar issues for more than a decade. The two sides have reached some agreements in the past, but the Navy in this case offered to enforce 29 "mitigation" measures to protect the whales, and nothing more.
The California Coastal Commission, a state agency, agreed with the environmental groups that the Navy's offer would not sufficiently protect the whales. In her earlier decision, Cooper mandated additional steps advocated by the commission involving where the Navy could use sonar, what it had to do when a whale was spotted, how loud the sonar blasts could be, and how close to the coast its ships could come.
The Navy appealed, and then after losing the appeal won White House support for overriding the court's earlier decision.