I didn’t catch a notable New York Times editorial the week the U.S. Supreme Court heard a case that could decide the limits of presidential authority in overriding environmental laws.

Immediately after the hearing, which involved Navy sonar and marine mammals, I posted an entry on Watching Our Water Ways and later listed numerous news reports about the hearing and what the justices had to say.

In an editorial Oct. 11, the New York Times commented:

We hope the Supreme Court has the sense to assert its authority over military activities that can cause environmental harm far from any battlefield. Some of the justices’ comments this week sounded as though they were feeling far too deferential to the military…

It was dismaying to hear Justice Stephen Breyer assert that “I don’t know anything about this. I’m not a naval officer.” It was discouraging that Justice Samuel Alito found it “incredibly odd” that a district court judge had concluded that her restrictions would not compromise the Navy’s training when the Navy claimed they would…

Few justices are truly expert in most of the issues they confront. Yet they have no qualms about ruling on cases that involve complex political, social, economic, scientific or medical issues… Surely the Supreme Court has the ability to judge whether the military should be allowed to flout environmental laws with a dubious claim of national security.

I believe, as I’ve said before, that this issue rests on a balance between the needs of the Navy to train adequately and the needs of marine mammals to live and thrive. The Navy has come a long way in protecting the environment, and I’m not saying the restrictions imposed by a federal judge are the right ones. However, the military does not function outside of our government, which depends on checks and balances at all levels.

The power of the U.S. president to override environmental laws is a central issue in the sonar case before the U.S. Supreme Court.

In a story posted shortly after noon today on the Kitsap Sun’s Web site, Mark Sherman of the Associated Press reported that Justice David Souter ridiculed the idea that the administration could declare an emergency to try to get around complying with environmental laws. The Navy opted not to conduct a more rigorous environmental impact study before beginning the long-planned exercises, Souter said.

“If there’s an emergency, it’s one the Navy created simply by failing to start EIS preparation in a timely way,” he said.

The Bush administration has taken the position that the president has the authority to override environmental laws during emergencies. He essentially declared an emergency to make sure the Navy could adequately train to locate enemy submarines, an issue related to national security.

Justice Samuel Alito suggested that he found little evidence in the court record that marine mammals would be harmed by the sonar use proposed by the Navy, Sherman reported.

Alito also said there was “something incredibly odd” that a single federal judge, who issued the first order against the Navy in this case, would be able to force changes in the exercises.

Warren Richey of the Christian Science Monitor lays out the background of the case in a story yesterday.

“Call this story ‘save the whales’ meets ‘The Hunt for Red October,’ Richey writes.

“The case doesn’t simply pit the environment against national security,” he continues. “It is also a major clash over power – the power of judges to order environmental compliance versus the power of the president and the executive branch to defend the nation. But at its most basic, the case is about whales and warfare.”

HERE ARE SOME ADDITIONAL STORIES ABOUT TODAY’S SUPREME COURT HEARING
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The U.S. Navy is going through a public process to expand its testing ranges at Keyport, in Dabob Bay and off Quinault in the Pacific Ocean.

Navy officials say they will go to considerable lengths to avoid harming marine mammals when testing sonar and other equipment, but some harassment or injury is possible. As a result, they are seeking an incidental take permit from the National Marine Fisheries Service.

Four public hearings have been scheduled for this week. Each will begin with an open house from 5 to 6:30 p.m., followed by a public hearing at 7 p.m.

They will be:
Wednesday at the Naval Undersea Museum in Keyport,
Thursday at North Mason High School,
Monday at Grays Harbor Fire District No. 8,
And Oct. 7 at the Quilcene School multipurpose room.

Comments can be made verbally or in writing by Oct. 27.

For information, check out the Kitsap Sun story by Ed Friedrich or peruse information posted on the Navy’s Web site.

Jim Cummings, who founded the Acoustic Ecology Institute in Santa Fe, N.M., has stepped up to become an unofficial moderator in the sonar debate between the U.S. Navy and the Natural Resources Defense Council.

Cummings’ report, called “AEI FactCheck: Navy/NRDC Sonar Debate,” finds fault with both the Navy and the environmental group for over-stating or under-stating the actual impacts of sonar. I don’t have the expertise to judge his judgment, but I am encouraged by his ability to weigh the two viewpoints. As I’ve said before, this whole issue has been a balancing act.

If you are interested in the issue of underwater noise, I encourage you to dig down into the AEI Web site.

The following is a sample of Cummings’ analysis to show how he discusses some controversial questions, including whale mortalities, behavioral changes, the Navy’s needs, and so on. This one deals with Level B harassment, which occurs when a marine mammal changes its behavior or experiences temporary hearing loss:

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The Navy has agreed to limit its use of low-frequency active sonar during testing and training exercises for the next five years. See the Associated Press story by Marcus Wohlsen in the Kitsap Sun.

LFA sonar involves loud blasts of low-frequency sound, which travel long distances in the ocean. It’s safe to say that advancements in this new technology are still being made, and this settlement is far from the end of the story. Most of the news reports I’ve seen have missed the point that this is a five-year permit under the Marine Mammal Protection Act, and the issue will come up again and again.

Years ago, the Navy planned to deploy LFA sonar on many of its ships, and it could return to those plans one day. For now, the Navy is planning to use it on four ships.

The story is complicated because it goes back to the original permit issued by the National Marine Fisheries Service. The permit, challenged by the Natural Resources Defense Council, would have allowed deployment of LFA over 75 percent of the world’s oceans. This settlement (PDF 360 kb) limits the deployment for testing, training and routine surveillance to the Western Pacific Ocean near Japan and The Philippines plus areas north and south of the Hawaiian Islands.

While it limits locations for testing and training, the agreement does not limit the use of LFA sonar during conditions of combat, potential combat or heightened threat conditions.

The settlement remains a trade-off, because there is no guarantee that marine mammals won’t be present in the areas of testing or training. One thing that would help is more research on the movement of whales and marine mammals, so the Navy can plan their operations with the least risk to sea life. With better understanding of both the technology and its effects of marine animals, the Navy could reasonably expect to expand its use of this technology to protect the nation’s interests. For details, check out the Navy’s LFA page.

Another issue worthy of attention is the proliferation of LFA sonar by other countries, including Canada, France and Great Britain.

Michael Jasny, an attorney with the Natural Resources Defense Council, said he would like to see the U.S. State Department work out agreements with other countries about when and how potentially damaging acoustic transmitters would be deployed.

“We’ve been trying to involve regional seas agreements, conventions and processes that would have guidelines for these systems,” Jasny told me. “In the Mediterranean, for example, habitat has been established for marine protected areas. What we’ve been advocating is the formulation of guidelines that would identify where sonar training should not occur. It would be ‘soft law” and would not impose an affirmative duty, but it would be a huge step in the right direction.”

To make sure there’s no confusion. LFA sonar is different from the mid-frequency sonar used by many ships since World War II. Mid-frequency sonar has been implicated in the deaths of whales, but the effects are much more localized. Mid-frequency sonar remains the subject of a lawsuit between NRDC and the Navy now before the U.S. Supreme Court.

Two leading environmental groups appear to have a little egg on their faces today, but it should not take away the important watchdog work they usually do.

Public Employees for Environmental Responsibility and Wild Fish Conservancy filed a lawsuit against the Navy over exercises that explode demolitions and kill fish in the process. It turns out that the groups did not know that the Navy had agreed to protective measures and that those measures were endorsed in a biological opinion June 30 by the National Marine Fisheries Service.

The fisheries service has been negotiating with the Navy over the issue for several years, trying to find a compromise that would meet the Navy’s operational needs with the least harm to sea life.

“What is it that the Navy is going to do that has eliminated National Marine Fisheries’ concern, which they held for years now?” asked Adam Draper, staff attorney for PEER in today’s story by Kitsap Sun reporter Ed Friedrich.

“We’re hopeful the measures are going to be fairly stringent to make sure more stresses aren’t placed on these stressed endangered species,” he said. “If so, it’ll be great and we’ll be quite happy. If not, we will amend the suit.”

I suspect the groups will be amending the lawsuit. The agreement allows for 61 training detonations a year — 52 off Whidbey Island, five at Port Townsend and four at Bangor. The detonations will be smaller when migrating salmon are present, and Navy officials will scan the water from a boat to make sure no marine mammals or seabirds are in the area.

Still, up to 5,094 juvenile chinook and 50 adult chinook salmon could be killed or injured by the operations, along with 1,022 juvenile and 101 adult Hood Canal summer chum and 182 juvenile and 20 adult steelhead. All are listed as “threatened” under the Endangered Species Act.

As mitigation, the Navy has agreed to restore a former salt marsh at Crescent Harbor and an intertidal beach in nearby Oak Harbor to boost salmon production.

To read the biological opinion, go to the National Marine Fisheries Service Web site.