On Wednesday, she came under criticism from several justices.
"Is Judge Cooper an expert on antisubmarine warfare?" asked Justice Samuel A. Alito Jr. "Isn't there something incredibly odd about a single district judge making a determination on that defense question . . . contrary to the determination the Navy has made."
Justice Antonin Scalia said the law requiring environmental impact statements was "procedural" only. It did not give judges the power to stop government projects, he suggested. And Chief Justice John G. Roberts Jr. said that in balancing the interests, the judge did not give enough weight to the Navy's concern. He described it as the "potential that a North Korean diesel electric submarine will get within range of Pearl Harbor undetected."
On the other side, Justices John Paul Stevens and David H. Souter wondered how the Navy could know its sonar would not harm the whales until it had studied the matter. "The whole theory of the environmental impact statement is we don't really know what the harm will be," Stevens said.
The Navy said it is working on an environmental impact statement on its training exercises, but it will not be complete until February, when the exercises are due to end.
Justice Anthony M. Kennedy, who usually casts the deciding vote in close cases, asked several questions but did not come down squarely on either side.
At one point, Justice Stephen G. Breyer said it was frustrating to resolve the conflicting evidence over whether the sonar does or does not harm marine mammals. "Why couldn't you work this thing out?" he asked Kendall.
"The Navy is focused on having it its way or no way," he replied.
"That's not fair," the chief justice countered. The Navy had taken steps to protect the marine mammals, he said, and the judge gave it little credit for doing so. "No good deed goes unpunished," he added.
The justices are likely to hand down a ruling in the case, Winter v. NRDC, within a few months.
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david.savage@latimes.com
