Is an ESA exemption coming soon to a Pacific Theater near you?
For years, environmentalists have been suing the U.S. Navy over the effects of naval sonar training upon whales and other protected marine mammals and endangered species. See, e.g., NRDC Press Release. To some extent, the suits are focusing on a lesser problem, because fishing and whaling certainly present bigger problems for these species, and the Navy is, of course, essential to the national security of the United States. The Navy is also remarkable in its commitment to "Ocean Stewardship". Nevertheless, the Navy, like other federal agencies, must comply with the laws passed by Congress, and the Navy's sonar training is probably affecting whales and marine mammals, so environmentalists have been fervent in their efforts to hold the Navy accountable.
Photo by Kenneth Balcomb of the Center for Whale Research, available from U.C. Davis
In recent court proceedings, the Navy was subjected to a preliminary injunction creating a 12 nautical-mile no-sonar zone off Southern California. On Jan. 15, 2008, the Bush Administration exempted the Navy and its anti-submarine warfare exercises from the Court orders, and a Presidential document declared that the Navy need not comply with the burdens of the Coastal Zone Management Act.
A Los Angeles Times editorial fiercely opposed the action: “A Navy end-run around a ruling to limit its sonar test is an attack on the Constitution.” U.S. District Court Judge Florence-Marie Cooper also rejected the Bush administration’s emergency-based waiver. "The Navy's current 'emergency' is simply a creature of its own making, i.e., its failure to prepare adequate environmental documentation in a timely fashion." The Navy's position "produces the absurd result of permitting agencies to avoid their NEPA obligations by re-characterizing ordinary, planned activities as 'emergencies' in the interests of national security, economic stability, or other long-term policy goals… This cannot be consistent with Congressional intent,".
The environmentalists series of victories could be short-lived. It should be noted that under the Endangered Species Act, the Bush Administration, or any future presidential administration, could indeed exempt the Navy from the ESA. Through the “Endangered Species Committee,” also known as the “God Squad,” a panel of senior officials, including the President, Cabinet level Secretaries, and the Governor of the affected State(s), can convene to authorize federal activities that will adversely affect, or even jeopardize the continued existence of, listed species. In addition, the ESA also contains a process through which the Secretary of Defense can invoke an exemption based upon national security. Although passed in 2003 – largely in response to this type of litigation – the provision has never been invoked.
- Court Opinion available through U.S. District Court, Central District of California. See, Natural Resources Defense Council, et al. vs. Donald C. Winter, et al., Case No. SACV 07-00335 FMC-FMOx, "Order Denying Defendants' Ex Parte Application to Vacate Preliminary Injunction or to Partially Stay Pending Appeal and Order Vacating Temporary Stay" (Feb. 4, 2008), click here to download
- ENS-newswire article
- Washington Post story on The Navy and the Whales
- History of the ESA amendments from wikipedia
- Dept. of Defense article on Environmental Law and National Security
- Cetacean Society International position paper: Whales Alive
FOLLOWING UP: On Feb. 6, 2008, U.S. District Court Judge Elizabeth LaPorte, from the Northern District of California, ruled against the Navy in another sonar case. In NRDC v. Gutierrez, No. C-07-04771 EDL (Feb. 6, 2008), the Judge issued a preliminary injunction against NOAA Fisheries for authorizing the use of Naval sonar for military training. Finding that Plaintiffs had raised serious questions on the merits as to the adequacy of NOAA's environmental analysis pursuant to the Marine Mammal Protection Act and the National Environmental Policy Act, and further finding that the balance of harms supported more protection for whales and other marine mammals affected by Naval sonar, the Court ordered that a preliminary injunction, with greater mitigation measures, was necessary, and further ordered the parties to meet and confer on the precise terms. Plaintiffs, however, failed to achieve success with their Endangered Species Act claims. Plaintiffs had argued that NOAA Fisheries had failed to provide numeric values for incidental take of listed species that would result from the sonar use, and Plaintiffs claimed that authorization of harassment of species was an inadequate surrogate for a thorough analysis of take. The Court's analysis disagreed with the Plaintiffs, generally finding them unlikely to prevail on the ESA:
"Considering the vast geographic scope ofthe project, NMFS ability and efforts to estimate take for numerous other species, and their explanation for their inability to do so for salmon and sea turtles, Plaintiffs have not raised a serious question as to the practicability of specifying a numerical take value for those species...(Also) Plaintiffs have not pointed to any practical alternative (to the surrogate), and at least as to salmon travelling in large schools in the vicinity of Low Frequency Active sonar, the active sonar may be able to detect them and trigger shutdowns."
COMMENTARY: The Court opinion frequently acknowledges the thoroughness of the analysis compiled by NOAA and the Navy, and could not even articulate an appropriate injunction, yet the decision represents, as NRDC quickly declared in a press release, a second defeat in one week for the Navy. In the opinion of this author, with every "victory" of this type, NRDC will increase the concern that national security is being undermined, and thus, increase the likelihood of a significant legislative change regarding the application of environmental laws to the nation's military.