Submarines and Whales

The Supreme Court strikes the correct balance.

DON'T FRET too much about the whales. At least not yet.

The Natural Resources Defense Council (NRDC) sued the Navy in 2007, arguing that sonar training exercises off the Southern California coast would harm marine mammals, including dolphins, whales and sea lions. Federal courts in California agreed with the NRDC and ordered the Navy to halt the training unless it adhered to six restrictions. The Navy had been operating under self-imposed restrictions that reflected several of those proposed, but it rejected two of the curbs imposed by the court, including an order to shut down the sonar when a marine mammal came within 2,200 yards of a ship. The Navy argued that there was little or no evidence that the kinds of sonar exercises it has conducted for the past 40 years have caused significant and permanent harm to sea life; it also argued that the two restrictions it objected to were so onerous that they were likely to undermine the effectiveness of the training. The Supreme Court ruled this week that the federal courts in California overstepped their bounds. The justices gave the Navy the go-ahead to conduct the training.

While the decision is a victory for the Defense Department, it does not leave the environmental groups without recourse. The justices in the majority ruled on a relatively narrow basis when they found that the lower courts relied on a too-lenient standard when they weighed the NRDC request. Those courts ordered a halt to the naval exercises on the basis of the "possibility" that the sonar would cause harm; the justices ruled that the courts in California should have determined whether the exercises were "likely" to do damage. This is, to be sure, a tougher standard for future plaintiffs such as the NRDC to meet, but it by no means forecloses the possibility of victory.

The justices also concluded that the lower courts failed to give enough credence to the Navy's assertion that observing all of their restrictions would have significantly hampered its exercises and, thus, affected the readiness of sailors. The justices in the majority, including Chief Justice John G. Roberts Jr., found that the lower courts failed to properly balance the public interest in protecting wildlife against the public interest in ensuring national security. "For the plaintiffs, the most serious possible injury would be harm to an unknown number of the marine mammals that they study and observe," the chief justice wrote. "In contrast, forcing the Navy to deploy an inadequately trained antisubmarine force jeopardizes the safety of the fleet."

The court struck a reasonable balance. The justices did not say that national security interests always trump environmental concerns. Neither did they relieve the government of a duty to determine, under relevant laws, the effect that its operations may have on the environment. The Supreme Court did say, however, that lower courts cannot dismiss out of hand national security concerns articulated by the government and that they must have abundant evidence that serious harm is likely before they put a halt to government operations.