The court, warned by the Bush
administration that a set of conditions placed on the exercises by the
federal appeals court in San Francisco "jeopardizes the Navy's ability
to train sailors and marines for wartime deployment during a time of
ongoing hostilities," agreed to hear the Navy's appeal during its next
The training exercises, which are due to end next January,
will continue in the meantime, because the appeals court issued a stay
of its own order when it ruled in the case four months ago. That court,
the United States Court of Appeals for the Ninth Circuit, ordered the
Navy to suspend or minimize its use of sonar when marine mammals are in
The Navy acknowledges that the sonar can cause
"behavioral disruptions" and short-term hearing loss in dolphins and
whales, but denies that these effects are serious or lasting. But the Natural Resources Defense Council
maintains that the high-intensity sonar causes "mass injury," including
hemorrhaging and stranding. The appeals court said the Navy's own
assessment "clearly indicates that at least some substantial harm will
likely occur" without the measures designed to mitigate the sonar's
The justices themselves will not resolve the debate over
the extent of the harm. Rather, as presented to the Supreme Court, the
case is a dispute over the limits of executive branch authority and the
extent to which the courts should defer to military judgments.
January, as the case was proceeding in the appeals court, President
Bush granted the Navy an exemption from one federal environmental law,
the Coastal Zone Management Act. Simultaneously, the Council on
Environmental Quality, an executive branch agency, declared that
"emergency circumstances" warranted granting an exemption from the full
effect of another statute, the National Environmental Policy Act.
actions did not sway the appeals court, which said that "while we are
mindful of the importance of protecting national security, courts have
often held, in the face of assertions of potential harm to military
readiness, that the armed forces must take precautionary measures to
comply with the law."
In the government's appeal, Winter v.
Natural Resources Defense Council, No. 07-1239, the administration
describes training in the use of sonar to detect submarines as an
"essential element" of the exercises, which it says are designed to
"train the thousands of military personnel in a strike group to operate
as an integrated unit in simultaneous air, surface and undersea
The administration's brief says that by imposing
conditions on the use of sonar, "the decision poses substantial harm to
national security and improperly overrides the collective judgments of
the political branches and the nation's top naval officers regarding
the overriding public interest in a properly trained Navy."
the appeals court's order, the Navy must suspend the use of sonar or
reduce it to specified levels when a marine mammal is seen at certain
distances. The appeals courts said this requirement would not
compromise the Navy's ability to conduct the exercises.
appeal before the Supreme Court on Monday also presented a clash
between executive power and environmental protection, concerning the
fence being built on the Mexican border by the Department of Homeland Security.
in this instance the government had prevailed in the lower court, and
the justices, without comment, declined to hear an appeal filed by
Defenders of Wildlife and the Sierra Club.
The question was the validity of a federal law that allows the
secretary of homeland security to waive any federal, state, or local
laws that, in the secretary's "sole discretion," present obstacles to
the fence project.
the department's secretary, invoked this authority last year in waiving
20 laws, including the Endangered Species Act, to enable the fence
project to proceed through a national conservation area in Arizona.
lawsuit filed by the environmental groups maintained that the statute
violated the separation of powers by delegating to the secretary a form
of legislative authority. The lawsuit also challenged the law's
unusually truncated judicial review provision, which limits the types
of challenges that can be brought in Federal District Court and strips
the appeals court of jurisdiction to hear any appeal.
Segal Huvelle of the Federal District Court here upheld the law, saying
that the breadth of the waiver provision did not make it
unconstitutional. The case was Defenders of Wildlife v. Chertoff, No.
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