The Navy and the Whales

A case in which environmental priorities and national security need not be in conflict

ON ITS FACE, the battle between the Navy and environmental groups over the use of sonar off the coast of Southern California pits national security against the preservation of marine life. It is a false choice.

The Navy in 2007 began exercises off California to train sailors in the use of mid-frequency active sonar, which emits high-intensity underwater blasts of sound. But the California waters are home to several endangered species, including whales, which can suffer permanent injury or death from the sonar. The Natural Resources Defense Council sued last year in federal court to stop the training exercises unless the Navy adopted mitigation measures to prevent harm to marine life.

Judge Florence-Marie Cooper of the U.S. District Court for the Central District of California concluded that the service was bound by environmental laws to implement such measures, including a prohibition against using sonar within 12 nautical miles of the coast or when marine life came within a certain range of a vessel. The Navy balked, claiming the court-ordered measures were unnecessary; it cited its preliminary analysis that sonar would not significantly harm marine life. After losing several rounds of litigation, the Navy turned to the White House, which two weeks ago concluded that the service was exempt from one law, the Coastal Zone Management Act, and had the right to disregard the court-ordered mitigation measures and rely on "alternative arrangements" to comply with a second law, the National Environmental Policy Act (NEPA).

The Navy has a strong case with respect to the Coastal Zone Management Act, which allows exemptions to the law if the president deems such exemptions to be in the "paramount interest of the United States." It is on far less solid ground in its challenge under NEPA. Federal regulations allow the Navy to use alternative arrangements to comply with NEPA if "emergency circumstances" exist. The Navy argues that the "emergency" in question was triggered when the court imposed unduly burdensome mitigation requirements. But the Navy has successfully carried out other training while abiding by similar mitigation requirements.

Judge Cooper has scheduled a hearing for tomorrow. She should conclude that the Navy must abide by court-approved mitigation measures, but she should also reevaluate her mitigation regime to be certain that less-cumbersome measures won't achieve the same goals. In the end, there is no reason that two legitimate interests -- training military personnel and protecting the environment -- can't simultaneously be met.