Supreme Court Rules for Navy in Sonar Case
Adam Liptak
New York Times
11/12/2008
WASHINGTON — Courts have no business second-guessing the military, the Supreme Court ruled on Wednesday in lifting restrictions on submarine training exercises off the coast of Southern California that may harm marine mammals.
In balancing military preparedness against environmental concerns, the court came down solidly on the side of national security. “The lower courts failed properly to defer to senior Navy officers’ specific, predictive judgments,” Chief Justice John G. Roberts Jr., joined by four other justices, wrote for the court in the first decision of the term.
For the environmental groups that sought to limit the exercises, Chief Justice Roberts wrote, “the most serious possible injury would be harm to an unknown number of marine mammals that they study and observe.” By contrast, he continued, “forcing the Navy to deploy an inadequately trained antisubmarine force jeopardizes the safety of the fleet.”
Justice Stephen G. Breyer, joined by Justice John Paul Stevens, concurred, saying the lower courts had not adequately explained why they had rejected the Navy’s contentions.
But Justice Breyer, writing only for himself on this point, said he would have imposed more limited restrictions.
Justice Ruth Bader Ginsburg, joined by Justice David H. Souter, dissented.
“Sonar is linked to mass strandings of marine mammals, hemorrhaging around the brain and ears, acute spongiotic changes in the central nervous system and lesions in vital organs,” Justice Ginsburg wrote. The Navy itself, she said, predicted that the exercises would cause lasting injuries to hundreds of beaked whales, along with 170,000 behavioral disturbances to whales, dolphins and sea lions.
Lawyers for the Natural Resources Defense Council, one of the plaintiffs in the case, said the sonar can be as loud as 2,000 jet engines.
Chief Justice Roberts emphasized the importance and difficulty of sonar training exercises. The nation’s adversaries, he said, possess at least 300 diesel-electric submarines that “can operate almost silently, making them extremely difficult to detect and track.”
So-called mid-frequency active sonar, which emits pulses of sound and receives acoustic echoes back, is effective at finding enemy submarines, the chief justice said, but only if sonar operators have become proficient in its use. He said the amount of harm to marine mammals by the exercises is sharply disputed, noting that the Navy asserted that there has not been “a single documented sonar-related injury to any marine mammal” over 40 years of similar exercise off the California coast.
Whatever the correct answer to how many animals would be harmed, Chief Justice Roberts wrote, those injuries are “outweighed by the public interest and the Navy’s interest in effective, realistic training of its sailors.”
Justice Ginsburg would have upheld restrictions imposed by a federal judge in Los Angeles and affirmed by the United States Court of Appeals for the Ninth Circuit, in San Francisco.
“There is no doubt that the training exercises serve critical interests,” Justice Ginsburg wrote. “But those interests do not authorize the Navy to violate a statutory command” requiring the preparation of environmental impact statements.
In a decision in February, the Ninth Circuit upheld a trial judge’s order that the Navy suspend the use of sonar if it detects a marine mammal within 2,200 yards and reduce sonar levels when water temperatures reach certain levels whether or not animals are present.
The appeals court had stayed its order while the Supreme Court considered the case. The exercises are scheduled to conclude in January.
Chief Justice Roberts took issue with both restrictions. The Navy had agreed to shut down its sonar if marine mammals were sighted within 200 yards. The appeals court’s requirement that it increase the zone to 2,200 yards, Chief Justice Roberts said, “would expand the surface area of the shutdown zone by a factor of over 100” given “the exponential relationship between radius length and surface area.” (“Area = pi r squared,” the chief justice explained, using the Greek symbol for pi and a superscript to indicate the squaring of a number. He also discounted the appeals court’s conclusion that the rarity of the temperature condition, “surface ducting,” made restrictions on sonar use acceptable.
“This reasoning is backwards,” Chief Justice Roberts wrote. “Given that surface ducting is both rare and unpredictable, it is especially important for the Navy to be able to train under these conditions.”
In a conference call with reporters, lawyers for the National Resources Defense Council sought to minimize the importance of the decision, stressing that the Navy had agreed to abide by other restrictions on the exercises and that the group’s work in monitoring and seeking to modify what it called dangerous testing and training would continue.
In his concurrence, Justice Breyer said the lower courts had not adequately explained why they had rejected the Navy’s assertion that it could not effectively conduct training exercises under the conditions imposed by the courts. In a dissenting section of his opinion, writing only for himself, Justice Breyer said he would have imposed modified restrictions that took into account the proximity of the animals.
Neither the majority nor Justice Breyer’s opinion directly addressed the merits of the case, reaching only the question of whether a preliminary injunction had properly been entered. Justice Ginsburg, by contrast, concluded that the Navy had violated the National Environmental Policy Act, which requires the government to prepare environmental impact statements before undertaking actions that will affect the environment. In this case, Justice Ginsburg wrote, the Navy is scheduled to publish the impact statement only after the exercises are completed.
The larger message of the majority opinion was one of judicial deference to military judgments. Quoting a passage from the majority opinion in last term’s Guantanamo decision, Boumediene v. Bush, Chief Justice Roberts stressed that “neither the members of this court nor most federal judges begin the day with briefings that may describe new and serious threats to our nation and its people.”
