Supreme Court hears Endangered Species Act Case

justices-topperYesterday the Supreme Court heard the Navy Sonar case that originated in California early this year when the Whitehouse attempted to overrule a district court judgment on the US Navy’s proposed sonar exercises off of the California cost.

The actual case is really about executive powers – and whether the executive branch can allow any agency exemptions from federal laws and the judgment of the courts under the rubric of “national security.”

It just so happens that the federal laws in this case are the Endangered Species Act and the National Environmental Policy Act – triggered by the NRDC / California Coastal Commission v. the US Navy cases that came up early in 2008.

At the moment the court is divided, with Souter, Ginsberg, Stevens and Breyer maintaining that this “emergency” was a result of inaction by the Navy (among other arguments).  Justices Alito, Roberts, Scalia, and Kennedy are weighing in for the expertise of the Navy and the power of the executive branch (no surprises here).

Justice Breyer is the “on the fence” vote and may determine the outcome on this case over the next few months. A ruling is expected early next year.

More can be read about this here: and below.

US Justices Seem Split Over Navy Sonar Whales Case

James Vicini for Reuters


WASHINGTON – The Supreme Court seemed on Wednesday closely split on whether President George W. Bush can exempt the Navy from federal environmental laws, a case pitting protection of whales against military training exercises.

In the most significant environmental case of its new term, the court is reviewing a ruling that required the Navy to take various precautions to minimize harm to dozens of species of whales and dolphins.

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

Solicitor General Gregory Garre, the administration’s top courtroom lawyer, told the justices the Navy’s ability to use sonar to locate and track enemy submarines is “vitally important” and “critical to the nation’s own security.”

Liberal Justices David Souter and Ruth Bader Ginsburg asked why the administration planned to complete an environmental impact statement in January, rather than doing it in February of 2007 when the exercises began.

“To the extent that there was an emergency, wasn’t the emergency created by the failure of the Navy to take any timely action?” Souter asked Garre.

Justice John Paul Stevens and Stephen Breyer raised similar concerns.

Los Angeles lawyer Richard Kendall argued on behalf of the environmentalists that brought the challenge, but encountered a series of tough questions from conservative justice.

Justice Samuel Alito asked whether there was any evidence marine mammals would be harmed by the sonar, and called it “incredibly odd” that a single judge could make a determination at odds with the Navy.

Chief Justice John Roberts seemed concerned that the judge had not properly balanced the harm to marine mammals with the “substantial challenge” imposed on the Navy.

Justice Anthony Kennedy questioned whether the judge in the case should have given greater weight to the administration’s position that the training was necessary for national defense.

And Justice Antonin Scalia said the government’s initial environmental assessment, that the endangered whales would not be harmed, should have been sufficient.

A ruling in the case is expected early next year (Editing by David Wiessler)

Story by James Vicini

Story Date: 9 October 2008