High Court to Review Naval Sonar Dispute

By Robert Barnes
Washington Post Staff Writer
Tuesday, June 24, 2008

The Supreme Court agreed yesterday to the Bush administration's request that it review a dispute between environmentalists and the Navy about whether training exercises off the Southern California coast endanger whales, dolphins and other marine mammals.

At the same time, it turned down a petition from environmentalists and members of Congress that it stop the administration from waiving environmental and other laws in building a portion of a fence along the U.S.-Mexico border to discourage illegal immigration.

The work on the court's agenda for next term came as it disappointed a packed public gallery anticipating decisions in some of the major remaining cases this term. This is traditionally the final week of the court's term before summer recess.

Justices issued three minor opinions but left for later term-defining decisions such as whether the District of Columbia's handgun ban violates the Second Amendment and whether the death penalty may be imposed on a person who rapes a child. The court will reconvene tomorrow.

The case involving Navy exercises off San Diego has required lower courts to balance the need for military preparedness with environmental laws that protect threatened marine mammals. So far, environmentalists have won.

A federal district judge has said the Navy cannot use sonar within 12 miles of the coast and has restricted its use when marine mammals are within a certain distance of the ship. Environmentalists say the sound waves have harmed and resulted in the deaths of whales in other parts of the world, pointing to a Navy estimate that the exercises could result in 175,000 incidents of injury, disturbance or death to marine mammals.

After losing at the district court level and at the U.S. Court of Appeals for the 9th Circuit, which upheld the ruling, President Bush moved to exempt the training missions from the environmental laws.

The Navy said using the mid-frequency sonar is critical to training the military to detect quiet-running electric-diesel submarines.

"This is an issue that is essential to national security, and we welcome the Supreme Court's decision to review this case," said Navy Cmdr. Jeff A. Davis, a Pentagon spokesman. "By preventing us from conducting training in a realistic environment, the restrictions put the lives of our sailors and Marines at risk."

Joel Reynolds, senior attorney at the Natural Resources Defense Council and director of its marine mammal program, disputed that: "It's clear both that high-intensity military sonar can injure and kill whales, dolphins, and other marine life and that the Navy can reduce the risk of this harm by common-sense safeguards without compromising our military readiness."

The courts have allowed the Navy exercises to continue under the restricted conditions, and they are scheduled to conclude in January 2009. The court is likely to hear the case, Winter v. NRDC, in the fall.

Justices turned down a bid from environmentalists and members of Congress to review a law that gives Homeland Security Secretary Michael Chertoff the power to waive dozens of laws and regulations in order to speed construction of 670 miles of fence and barriers along the border. About 300 miles have been completed.

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