Emily Lewis

January 29, 2008

President Bush recently weighed in on the current sonar litigation between the U.S. Navy and the Natural Resources Defense Council (NRDC). On January 16, 2008 the President issued waivers exempting the Navy from two longstanding environmental laws: the Coastal Zone Management Act (CZMA) and the National Environmental Policy Act (NEPA). Bush defended the waivers by declaring an emergency and echoing the Navy's argument that prevention of the sonar testing would be detrimental to the national security of the United States.

The Presidential waivers cast a shadow over Judge Florence-Marie Cooper's January 3rd injunction requiring the Navy to increase the mitigation measures taken during the tests. In fact, the day after the President filed the waivers Judge Cooper issued a stay on part of her decision and relaxed some of the mitigation measured required by the original injunction.

The waivers frustrated the NRDC's lawyers, but they remain optimistic. One of the organization's lawyers stressed the belief that the President's actions were an unconstitutional violation of separation of powers. In addition to its constitutional argument, NRDC contended that the NEPA waiver is illegal because, while some statutes include an "escape clause" for the executive branch, NEPA does not.

The Navy was grateful for the waivers and agreed that they are necessary to ensure the country's safety. The Chief of Naval Operations, Adm. Gary Roughead, added that the waivers allow the Navy to effectively train sailors in realistic conditions and a delay of that training would negatively impact national security.

In order for the Navy to disregard the district court's injunction both waivers must pass court review. Both NRDC and the Navy are filing briefs on the issue. The review process will take place within the next few weeks.

Sources:

Letter from Jim Connaughton, Chairman, Council on Envtl. Quality, to Donald C. Winter, Secretary of the Navy (Jan. 15, 2008), http://www.whitehouse.gov/ceq/Letter_from_Chairman_Connaughton_to_Secretary_Winter.pdf (last visited Jan. 28, 2008).

Memorandum from President George W. Bush to the Secretary of Defense and the Secretary of Commerce, Presidential Exemption from the Coastal Zone Management Act, Jan. 16, 2008), http://www.whitehouse.gov/news/releases/2008/01/20080116.html (last visited Jan. 28, 2008).

Press Release, Natural Res. Def. Council, Bush Attempts Illegal Override of Court Order Protecting Whales from Sonar (Jan. 16, 2008), http://www.nrdc.org/media/2008/080116.asp (last visited Jan. 28, 2008).

Press Release, Natural Res. Def. Council, Judge Issues Temporary, Partial Stay in Sonar Case (Jan. 17, 2008), http://www.nrdc.org/media/2008/080117.asp (last visited Jan. 28, 2008).

Gordon Lubold, Navy Resumes Use of Sonar Off California, Christian Science Monitor, Jan. 25, 2008, http://www.csmonitor.com/2008/0125/p02s03-uspo.html (last visited Jan. 28, 2008).

Press Release, U.S. Dep't of Def., Navy Granted Authority To Use Sonar In Training Off California (Jan. 16, 2008), http://www.defenselink.mil/releases/release.aspx?releaseid=11622 (last visited Jan. 28, 2008).