Supreme Court hears case on Navy sonar, whales

A Bush administration lawyer urged the high court to throw out a Los Angeles judge's order that requires the Navy to turn off its high intensity sonar whenever a whale or dolphin is spotted within 1.2 miles of a ship.

This order disrupts the Navy's war-game exercises, which are "critical to the nation's security," said U.S. Solicitor Gen. Gregory Garre. He also disputed claims that the piercing sound of the sonar causes severe harm to the whales.

But Los Angeles lawyer Richard B. Kendall described the sonar as like the sound of "a jet engine in this room multiplied by 2,000 times." He said beaked whales, in panic, dive deeply to escape the sound, and they sometimes suffer bleeding and even death when they try to resurface.

Kendall also said the judge's order has had a minimal impact on the Navy. It has conducted 13 extended training exercises off California in which Navy officers practice detecting enemy submarines. Only on a few occasions have ships been forced to turn off their sonar, he said.

But the case has turned into a major dispute over whether judges, acting on a suit brought by environmentalists, have the power to stop the government from conducting a crucial exercise because it had not carried out an environmental impact statement.

In this case, the National Resources Defense Council in Santa Monica sued the Navy, and asserted it had failed to conduct an environmental impact assessment to see whether its use of high-intensity, mid-frequency sonar would harm marine mammals. U.S. District Judge Florence Marie Cooper in Los Angeles agreed with the NRDC, but she did not order the Navy to halt its training exercises. Instead, she ordered the Navy to take steps to protect these mammals, including by turning off the sonar when they were spotted nearby.

Justice Antonin Scalia suggested the judge had exceeded her power. He said the law was merely "procedural" and did not give environmentalists or judges the authority to halt a government operation.

Justice Samuel A. Alito Jr. appeared to agree. Is Judge Cooper an expert on the Navy? he asked, adding that the judge should have deferred to the Navy's view that its exercises would not hurt the whales.