Environmental Petition on Border Fence Declined
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.
Defenders of Wildlife and the Sierra Club said that besides the potential harm to migratory species, the 2005 Real ID law giving Chertoff such sweeping authority is a violation of the separation of powers.
The group was joined by several members of Congress opposed to the administration's plans. "This waiver will only prolong the department from addressing the real issue, their lack of a comprehensive border security plan,'' said Rep. Bennie Thompson (D-Miss.), chairman of the House Homeland Security Committee.
The court turned down the petition without comment, and the two-mile stretch of the fence in question, within the San Pedro Riparian National Conservation Area in Arizona, has already been completed.
"The waiver authority that Congress gave to the department makes clear that one of the nation's highest priorities is securing the southern border," said Department of Homeland Security spokesman Russ Knocke. "As fence construction proceeds, the department will continue to be a good steward of the environment, and consult with appropriate state, local, and tribal officials.''
In the cases decided by the court yesterday, a technical decision on whether a party has the right to pursue a case in federal court brought the sharpest dissension. Justice Stephen G. Breyer wrote for a five-member majority in Sprint Communications v. APCC Services Inc. that when a company assigns its claim for money owed to a collector, that "assignee'' may go to federal court, even if it will receive a fee rather than a share of the proceeds.
Breyer took 30 pages to say "history and precedent'' made the outcome "well nigh conclusive.''
But Chief Justice John G. Roberts Jr., joined by Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr., called the decision "achingly wrong." The baby-boomer chief justice quoted Bob Dylan -- "When you got nothing, you got nothing to lose" -- in his 19-page dissent saying assignees had no standing in federal court because they would not share the recovery.
In other action, the court:
· Ruled 8 to 1 that a criminal defendant's first appearance before a magistrate or judge triggers his Sixth Amendment right to counsel. Thomas was the lone dissenter.
· Decided 6 to 3 that a federal appeals court may not on its own increase a defendant's sentence, absent a request by the government.
Staff writer Spencer S. Hsu contributed to this report.
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