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A big ping

Not only is the Navy threatening whales with its sonar, it's taking aim at the Constitution.

January 26, 2008

In the ongoing legal case of the whales versus the Navy, the whales have a number of advantages. For one thing, the law is on their side, as is formidable California Atty. Gen. Jerry Brown. But the Navy has bigger guns, the backing of the president and a tendency to talk out of its blowhole.

The months-long legal maneuvers surrounding a planned naval training exercise off the coast of Southern California are complex, but the gist is that a judge has ordered the Navy to take precautions to minimize damage to marine life from its mid-frequency sonar, and the Navy has taken unprecedented (and probably unconstitutional) steps to avoid doing so.

The sonar at issue is a powerful tool for hunting a new, quieter generation of submarines, and the Navy has good reason to seek realistic conditions for training sailors in its use. Yet studies have shown that the sonar panics and kills whales and dolphins, and the Navy's planned exercise threatens nearly 30 species of marine mammals, including five species of endangered whales.

The Navy made its end-run around the courts last week; after being on the losing end of several decisions, it got a directive from President Bush exempting the training exercise from environmental laws in the interest of national security. For good measure, the Navy secured a ruling from the White House Council on Environmental Quality granting an exemption because "emergency" conditions are in place.

No president has ever tried to override the 36-year-old Coastal Zone Management Act, which gives states the authority to protect marine resources, and Bush's cursory explanation for his order raises grave constitutional questions under the separation of powers doctrine. Even more questionable is the decision by the Council on Environmental Quality, which posits an emergency that doesn't exist.

No one is asking the Navy to scrap its training plans, simply to take precautions, such as shutting off the sonar when whales get closer than 2,200 yards and keeping ships more than 12 miles off the coast. So what's the emergency? If the administration were allowed to countermand judges and federal statutes on such flimsy grounds, it could use nearly any excuse to flout environmental laws -- like claiming that high oil prices constitute an emergency justifying unlimited drilling off the California coast.

If this were a simple matter of balancing national security with the safety of a few whales, as Navy officials claim, we'd side with the sailors. But it's really about whether preserving threatened species is worth imposing some inconveniences on the military, and about protecting the nation's environmental laws from an all-out assault by a hostile administration. The Navy still must get approval from U.S. District Judge Florence-Marie Cooper to set aside her restrictions on its training exercise. She should hold her ground.

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