By Marc Kaufman
Washington Post Staff Writer
Thursday, January 17, 2008
The White House has exempted the Navy from two major environmental laws in an effort to free the service from a federal court's decision limiting the Navy's use of sonar in training exercises.
Environmentalists who had sued successfully to limit the Navy's use of loud, mid-frequency sonar -- which can be harmful to whales and other marine mammals -- said yesterday that the exemptions were unprecedented and could lead to a larger legal battle over the extent to which the military has to obey environmental laws.
In a court filing Tuesday, government lawyers said President Bush had determined that allowing the use of mid-frequency sonar in ongoing exercises off Southern California was "essential to national security" and of "paramount interest to the United States."
Based on that, the documents said, Bush issued the order exempting the Navy from provisions of the Coastal Zone Management Act, and the White House Council on Environmental Quality granted the Navy a waiver from the National Environmental Protection Act.
The government filings said the federal ruling limiting sonar use "profoundly interferes with the Navy's global management of U.S. strategic forces, its ability to conduct warfare operations, and ultimately places the lives of American sailors and Marines at risk."
The exemptions were immediately challenged by the environmental group that had sued the Navy and by the California Coastal Commission, a state agency that ruled last year that the Navy's plans to protect marine mammals were too limited and deeply flawed.
"There is absolutely no justification for this," commission member Sara Wan said in a statement. "Both the court and the Coastal Commission have said that the Navy can carry out its mission as well as protect the whales."
Joel Reynolds, attorney for the Natural Resources Defense Council (NRDC), said the organization would "vigorously" contest the White House orders in court.
U.S. District Judge Marie Florence-Marie Cooper ruled this month in Los Angeles that the Navy's plan to limit harm to whales -- especially deep-diving beaked whales that have at times stranded and died after sonar exercises -- were "grossly inadequate to protect marine mammals from debilitating levels of sonar exposure." A federal appeals court had previously ruled that the Navy plan was inadequate and sent the case back to Cooper to set new guidelines for the exercise.
In her ruling, Cooper banned sonar use within 12 nautical miles of the coast and required numerous procedures to shut it off when marine mammals are spotted. After the ruling, the Navy indicated that the guidelines would render the exercise useless, but the judge disagreed.
The Navy had received a federal exemption from the Marine Mammal Protection Act for the exercises, which are scheduled to continue through January 2009, but the NRDC and other groups filed suit under other environmental laws. The Navy will still have to convince federal judges that the exemptions are legal. The NRDC said yesterday that waivers are not allowed under the National Environmental Protection Act.
The NRDC also said the situation does not constitute an emergency, because the Navy is allowed to continue sonar training under Cooper's ruling.
"The president's action is an attack on the rule of law," said Reynolds, director of the Marine Mammal Protection Project at the NRDC, which obtained the injunction against the Navy. "By exempting the Navy from basic safeguards under both federal and state law, the president is flouting the will of Congress, the decision of the California Coastal Commission and a ruling by the federal court."
Navy officials have argued that they must step up sonar training because a new generation of "quiet" submarines has made it increasingly difficult to detect underwater intruders. The Navy says that more than 40 nations now have relatively inexpensive diesel-powered submarines, which can be located only with sonar that emits the loud blasts of sound. The Navy trains sailors in sonar use on an underwater range off Southern California and wants to set up another range off the Carolinas.
Adm. Gary Roughead, the chief of naval operations, said in a statement yesterday that the White House waivers were essential and warranted, given that the Navy has 29 procedures to mitigate sonar's impact on whales.
"We cannot in good conscience send American men and women into potential trouble spots without adequate training to defend themselves," Roughead said. "The southern California operating area provides unique training opportunities that are vital to preparing our forces, and the planned exercises cannot be postponed without impacting national security."
Sen. Barbara Boxer (D-Calif.) sharply criticized the exemptions. "Once again the Bush Administration has taken a slap at our environmental heritage, overriding a court that was very mindful to protect marine wildlife, including endangered whales, while assuring that the Navy's activities can continue," she said in a statement. "Unfortunately, this Bush Administration action will send this case right back into court, where more taxpayer dollars will be wasted defending a misguided decision."
The NRDC said the waters off Southern California are especially rich in marine mammal life and are on migration paths of five species of endangered whales.