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The Nation

Environmental Review of Navy's Sonar Testing Upheld

Court: A judge rejects U.S. effort to exempt a variety of ocean activities, including tests that might harm whales, from far-reaching law.

September 20, 2002|GARY POLAKOVIC | TIMES STAFF WRITER

A federal judge in Los Angeles has rejected efforts by the Bush administration and the Navy to exempt from environmental review a broad range of activities, including military testing, that take place in the deep ocean.

In a ruling made public Thursday, Judge Christina A. Snyder said the National Environmental Policy Act does apply to activities, such as testing of a Navy sonar system potentially dangerous to whales and dolphins, that are conducted beyond U.S. territorial waters but within the nation's "exclusive economic zone." That zone extends 200 miles from shore.

Environmentalists warned that if the administration prevailed in the case, it could exempt not only military experiments and exercises from review but a host of other activities, ranging from oil and gas pipelines to ocean dumping and commercial fishing.

Snyder ruled, however, that the Navy does not have to submit to an advance environmental review of its entire planned program of sonar testing, which consists of at least 17 separate tests of experimental anti-submarine warfare technologies. The judge did affirm that "individual sea tests will still be subject to NEPA requirements."

Both sides expressed satisfaction with the ruling. "They found in our favor. We are very pleased with the result," said Dana Perino, spokeswoman for the Justice Department. "It's a complete victory for the government."

The Bush administration has long signaled an impatience with the National Environmental Policy Act, one of the nation's most comprehensive environmental laws. The White House has initiated a broad review of the environmental policy act, which governs projects on land including highway and airport construction, energy exploration and timber-cutting.

Earlier in the week, Bush issued an order calling on the secretary of transportation to speed up reviews under the act of high-priority projects, such as roads, bridges, tunnels and airports.

Passed by Congress in 1969, the National Environmental Policy Act charges the federal government with restoring and maintaining environmental quality, and requires federal agencies to prepare "environmental impact statements" for any major projects. Contractors affected by the law have often complained that opponents of projects exploit the act to cause lengthy and costly delays.

Spokesmen for environmental groups that opposed the Navy in the case hailed the judge's decision to uphold the act's jurisdiction in the oceans. "That's very good news because NEPA is the law that provides the public with the opportunity to comment on federal actions that will have negative effects on the environment and requires federal agencies to look before they leap and consider the environmental consequences of their actions," said Andrew Wetzler, an attorney in Los Angeles for the Natural Resources Defense Council.

The Navy program uses ships to emit high-intensity bursts of sound off the sea floor. The Navy had acknowledged that one type of sonar was "highly likely" to be connected to mass strandings of beaked whales in the Bahamas last year.

Environmental reviews now are conducted for individual sonar tests, which have been occurring since 1996. Though the Navy says it takes great care to ensure that no whales or dolphins are harmed by the tests, environmentalists dispute that and have challenged that contention as part of the lawsuit. The court has yet to rule on that matter.

At issue is a series of tests the Navy has been conducting from Japan to the Carolinas to the Mediterranean of its "littoral warfare advanced development" program. The goal is to find an effective sonar defense that can be deployed aboard warships to protect them in shallow coastal waters, where a new generation of stealthy enemy submarines can lurk. During the tests, ships dangle microphones and deliver a 218-decibel blast, equivalent to standing next to a jet aircraft taking off. Many of the midrange frequencies used appear to interfere with sensitive hearing organs in whales, dolphins and other marine mammals.

There is wide agreement among scientists that high-intensity underwater sounds can cause temporary or permanent loss of hearing, abandonment of habitat, disruption of mating, feeding, nursing and migration.

After one test in the Bahamas two years ago, numerous whales were washed up dead and necropsies revealed extensive damage to their hearing. The Navy concluded that one particular type of sonar being used was "highly likely" to be connected to the deaths.

Since then, environmentalists have been pressing for more rigorous review of Naval operations, including those up to 200 miles from the U.S. coast. Although that area is a well-established economic zone, and subject to many U.S. laws, the Navy argued that the National Environmental Policy Act did not apply to those far-off waters. The Humane Society, Defenders of Wildlife and Santa Monica BayKeeper joined the suit against the Navy seeking more thorough reviews of the sonar tests.

Steve Fleischli, executive director of Santa Monica BayKeeper, said the finding that environmental reviews of individual tests are necessary ensures that the Navy will have to provide some information.

More broadly, in upholding federal environmental requirements outside of U.S. territorial waters, Fleischli said the judge stopped further erosion of the National Environmental Policy Act. "I think that's very important. There have been arguments for some time that it doesn't apply [in the economic zone.] But it's critical to recognize the need to protect that environ."

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Times staff writer Bettina Boxall contributed to this report.

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