A Whale of a Case Gets its Day in the Spotlight

[WSJ_law_blog]

It was an annual southern California childhood event: the whale-watching field trip. Most years, you didn’t see much of anything; the day was just an excuse to get out of the classroom, drink too much hot chocolate and test the efficacy of Dramamine. But once, a big old barnacle-ridden gray whale sided up to the boat, surfaced briefly and blew a big geyser of seawater out of its blowhole, misting all of us on the port side. The girls squealed in delight, the boys cheered and gave high-fives and the teacher, briefly, wept (she really did).

We were reminded of this today in reading about the Supreme Court arguments that took place today in a case pitting the U.S. Navy against, essentially, a bunch of whales off the California coast.

The dispute centers on a series of Naval training exercises involving the use of sonar that began in February 2007 and are scheduled to end in January. In March of last year, the Natural Resources Defense Council filed suit in federal court in California to stop or modify the use of sonar, which can hurt sea life. (According to ScotusWiki, Necropsies of dead whales showed hemorrhaging in and around the ears and internal organs.) A federal district judge granted a preliminary injunction halting the exercises; the Ninth Circuit made findings and kicked it back down to the lower court, which upheld its original ruling. On appeal, the Ninth Circuit upheld the preliminary injunction. The Navy appealed, and here we are. Click here for stories on today’s arguments from the AP and WaPo.

The administration argues that the judiciary must defer to its determination because the exercises constitute a national security emergency that overrides environmental laws. But the NRDC and other environmental groups say the Navy must adhere to environmental laws that regulate the actions of federal agencies.

According to the WaPo story, arguments Wednesday revealed that the Court might not split down iits normal ideological lines on this one. Justice Breyer, for one, reportedly wondered aloud why the parties hadn’t settled this. “You’re asking us to figure it out,” Breyer said before adding, to laughter in the courtroom: “The whole point of the armed forces is to hurt the environment . . . on a bombing mission, do they have to prepare an environmental impact statement?”

But Justice David Souter ridiculed the idea that the administration could declare an emergency to try to get around complying with environmental laws. “If there’s an emergency, it’s one the Navy created simply by failing to start EIS preparation in a timely way,” he said.

Photo: Getty Images