The Supremes & the California Whales

On Wednesday, the Supreme Court got involved with the battle over whether George Bush should be able to override a Federal Judge after that judge ruled that the US Navy would have to modify its use of sonar in training exercises held off the Southern California coast because of evidence that the sonar did harm to whales. (WLA back story may be found here.)

According to the LA Times and NPR’s Nina Totenberg, the Supremes seemed both somewhat annoyed and interestingly split on the matter. Here’s some of what the Times reported.

“Is Judge Cooper an expert on antisubmarine warfare?” asked Justice Samuel A. Alito Jr. “Isn’t there something incredibly odd about a single district judge making a determination on that defense question . . . contrary to the determination the Navy has made.”

[SNIP]

On the other side, Justices John Paul Stevens and David H. Souter wondered how the Navy could know its sonar would not harm the whales until it had studied the matter. “The whole theory of the environmental impact statement is we don’t really know what the harm will be,” Stevens said.

The Navy said it is working on an environmental impact statement on its training exercises, but it will not be complete until February, when the exercises are due to end.

And there is this from the NY Times:

Richard B. Kendall, a lawyer for the Natural Resources Defense Council, which had sued the Navy over the exercises, insisted that courts have an important role to play in protecting whales and dolphins even when the executive branch asserts a national security interest.

“The Navy cannot be judge of its own cause,” Mr. Kendall said.

The two sides agreed that sonar can harm marine mammals, but they disagreed about how much. Mr. Kendall said sonar produces noise as loud as 2,000 jet engines and that some whales die or become stranded in their frantic efforts to avoid it.

Gregory G. Garre, the United States solicitor general, said the impact on the animals was minor and passing. “They hear the sound, and they go in the opposite direction,” Mr. Garre said. “It can also mean that they could have some temporary effect on their feeding or breeding patterns.”

The oddest quote of he day came from Justice Breyer:

“The whole point of the armed forces is to hurt the environment,” he said. “You go on a bombing mission — do they have to prepare an environmental impact statement first?”

Uh, dude, that would be in wartime, right? Not in training exercises down the coast from Santa Monica.

In the end, this case has less to do with the health of whales (or some desperately emergent need on the part of the Navy), than it does about who gets to decided what.

For the above reason, it will be an interesting case to track.

(But before you form and uninformed opinion, please read some of the particulars here.)