Christiana Cooley

February 22, 2009

Almost four years ago, the Natural Resources Defense Council and other environmental groups sued the Navy for a preliminary injunction over alleged violations of the National Environmental Policy Act, the Endangered Species Act, the Administrative Procedure Act, and the Coastal Zone Management Act resulting from the Navy's use of mid-frequency active (MFA) sonar in training exercises off the Southern California coast. In one of its most highly-profiled environmental cases of the term, the Supreme Court overturned the injunction issued by the District Court, holding that the lower courts had improperly balanced the competing interests and hardships to the parties in issuing and upholding the in junction. The overall public interest in national security, the Court said, outweighed the plaintiffs' interest in possible harm to the marine mammals they study and observe.

Despite the apparent blow to environmental interests dealt by the Court, the ruling to uphold four of the six mitigation measures imposed by the District Court represents a small victory for the plaintiffs. In late December, the environmental coalition that pursued the suit (including the NRDC) reached a settlement agreement with the Navy concerning its use of mid-frequency active sonar during training and its impacts on marine mammals.

In addition to settling the original lawsuit, the terms of the settlement agreement commit the Navy to fund almost fifteen million dollars' worth of new marine mammal research chosen by the coalition. The Navy has also committed to disclosing previously classified information regarding its use of sonar, and to the preparation of environmental impact statements (the primary enforcements mechanism of the National Environmental Policy Act, the lack of which partially prompted the original suit) for future exercises. The agreement also sets out negotiation procedures for futures disputes about the use of sonar between environmental groups and the Navy.

The environmentalists' fight against the harmful effects of sonar, however, is not over. Mere weeks after the settlement agreement in the California litigation was announced, the National Fish and Wildlife Service (NFWS) issued a yearlong permit to the Navy to conduct sonar training exercises off the coast of Hawaii. The permit conditions require the Navy to use extra caution near whale breeding and calving ground and to power down the sonar when marine mammals are detected nearby. The Navy also has to avoid detonating explosives in certain areas. The NWFS has said it will renew the permit for each of the next five years so long as the Navy complies with these cautionary measures, and is additionally considering issuing permits for further MFA training in the Gulf of Mexico, off the East Coast, and Southern California.

Sources:

Natural Resources Defense Council v. Winter, 129 S.Ct. 365 (2008).

Press Release, Natural Resources Defense Council, Environmental Coalition Reaches Agreement with Navy on Mid-Frequency Sonar Lawsuit (Dec. 28, 2008), available at http://www.nrdc.org/media/2008/081228.asp.

Jennifer Koons, Supreme Court rules, 5-4, for Navy in sonar case, Greenwire, Nov. 12, 2008, available at http://stevens.vermontlaw.edu:2069/Greenwire/2008/11/12/archive/1.

Navy granted permit to use sonar in Hawaiian waters, L.A. Times, Jan. 14, 2009, available at http://www.latimes.com/news/printedition/asection/la-na-whales14-2009jan14,0,661270.story.

Jennifer Koons, Groups debate long-term impact of Supreme Court's sonar ruling, E&E News PM, Nov. 12, 2008, available at http://stevens.vermontlaw.edu:2069/eenewspm/2008/11/12/archive/2?terms=navy+sonar.

Navy Allowed to Kill Whales in Hawaii During Sonar Training, Environmental New Service, Jan. 12, 2009, available at http://www.ens-newswire.com/ens/jan2009/2009-01-12-092.asp.

U.S. Navy, Conservationists Reach $16 Million Sonar Settlement, Environmental News Service, Jan. 5, 2009, available at http://www.ens-newswire.com/ens/jan2009/2009-01-05-091.asp.

KJH, Navy, enviro groups settle sonar lawsuit, Greenwire, Jan. 5, 2009, available at http://stevens.vermontlaw.edu:2069/Greenwire/2009/01/05/archive/22?terms=navy+sonar.