Bush Exempts Navy From Court Order Protecting Whales

A spokesman for the Natural Resources Defense Council, which obtained the court order, says the group will appeal the Bush waiver to the Ninth Circuit Court of Appeals within 24 hours.

Secretary of the Navy Donald Winter said today the Navy "already applies 29 mitigation measures approved by federal environmental regulators when using active sonar, and these will remain in place."

The issue is shaping up as a battle between the executive and the judicial branches of government.

While traveling in the Middle East, President Bush signed the memo giving the Navy a waiver under the Coastal Zone Management Act and also allowed a second "emergency" waiver under the National Environmental Policy Act.

Those laws are the basis of a January 3 injunction issued by U.S. District Court Judge Florence-Marie Cooper, that requires the Navy to monitor for and avoid marine mammals while operating high-intensity, mid-frequency sonar during the "SOCAL" naval exercises, now underway.

In his memo issuing the waiver, President Bush said that the Secretary of Commerce made a written request Friday that the Navy be exempted from compliance with the order in its use of mid-frequency active sonar during training exercises.

"As part of that request, the Secretary of Commerce certified that mediation ... is not likely to result in the Navy's compliance with the order.

The president determined that the training exercises "including the use of mid-frequency active sonar in these exercises, are in the paramount interest of the United States."

U.S. Navy sonar technicians deploy a towed sonar array. August 23, 2004. (Photo by by Journalist 1st Class James Pinsky courtesy U.S. Navy)

Compliance with the order "would undermine the Navy's ability to conduct realistic training exercises that are necessary to ensure the combat effectiveness of carrier and expeditionary strike groups," the president wrote. "This exemption will enable the Navy to train effectively and to certify carrier and expeditionary strike groups for deployment in support of world-wide operational and combat activities, which are essential to national security."

"There is absolutely no justification for this," said California Coastal Commissioner Sara Wan. "Both the court and the Coastal Commission have said that the Navy can carry out its mission as well as protect the whales. This is a slap in the face to Californians who care about the oceans."

Judge Cooper's order requires the Navy to create a 12-nautical-mile, no-sonar zone along the California coast and to post trained lookouts to watch for marine mammals before and during exercises. Sonar would have to be shut down when mammals are spotted within 2,200 yards, under the order.

The judge ruled that the Navy's scheme to mitigate harm had been "grossly inadequate to protect marine mammals from debilitating levels of sonar exposure" in Southern California.

The Bush waivers would eliminate all of the court-ordered mitigations under the pretext of "emergency," but the Natural Resources Defense Council, NRDC, says, "In fact, no emergency conditions exist: The SOCAL exercises are routine training drills planned long in advance, but without meeting legal standards."

The exercises were challenged in court by the California Coastal Commission and the NRDC a year ago.

Judge Cooper did not issue a blanket injunction, but instead produced a tailored order that enables the Navy to conduct sonar training using mitigations and monitoring, many of which the Navy has already employed in previous exercises.

"The president's action is an attack on the rule of law," said Joel Reynolds, director of the Marine Mammal Protection Project at NRDC. "By exempting the Navy from basic safeguards under both federal and state law, the President is flouting the will of Congress, the decision of the California Coastal Commission, and a ruling by the federal court."

Both waivers must survive court review for the Navy to legally ignore the injunction. However, the waiver under NEPA is illegal, according to NRDC, because that statute does not include an escape clause for the executive branch, as some statutes do.

Blue whale in California coastal waters. The blue whale is the largest animal ever known to have lived on Earth; they can weigh over 330,000 pounds. (Photo courtesy NMFS)

"This is not a national security issue. The Navy doesn't need to harm whales to train effectively with sonar. It simply chooses to for the sake of convenience," said Reynolds.

"By following the carefully crafted measures ordered by the court, the Navy could conduct its exercises without imperiling marine mammals, Reynolds said. "Instead, it is attempting to circumvent the court and our environmental laws through presidential fiat. These waivers are unnecessary and we doubt they will both survive judicial review

"We are already taking extensive measures to protect marine mammals, and we have had positive results from those measures," said Winter. "We are furthermore committed to an extensive data collection effort to help inform our future efforts in this regard."

Chief of Naval Operations Admiral Gary Roughead said that the actions were necessary in order to ensure the Navy's ability to train sailors to detect quiet submarines that might threaten its ships.

"We cannot in good conscience send American men and women into potential trouble spots without adequate training to defend themselves," said Roughead.

"The southern California operating area provides unique training opportunities that are vital to preparing our forces, and the planned exercises cannot be postponed without impacting national security," said Roughead. "The steps that have been taken will allow our men and women to train realistically, while continuing the effective employment of proven mitigation measures that have been endorsed by the Council on Environmental Quality and our regulator, the National Marine Fisheries Service."

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