Thursday, April 23, 2009
Types of Sonar
Used to track ‘quiet’
Effective for a range of up
to ten nautical miles
“Is the only reliable way
to identify, track, and
What’s the Harm?
have been registered in:
finned pilot whales, pygmy
killer whales, Cuvier’s beaked
whales and Baird’s beaked whales,
and various species of dolphins
Interferes with echolocation used to
find food and disrupts breeding and
migration patterns in dolphins, sea
lions, various whales, and other
Any of 20 species in the family
Generally deep sea creatures that surface rarely (up to
intervals of 90 minutes), hence the concern that they
are getting the ‘bends’
Setting the Stage
“The public interest in conducting training exercises
with active sonar under realistic conditions plainly
outweighs the interests advanced by the plaintiffs. Of
course, military interests do not always trump other
considerations, and we have not held that they do. In
this case, however, the proper determination of where
the public interest lies does not strike us as a close
Chief Justice John Roberts (Winter v. NRDC,129 S. Ct. 365
National Security and Commerce
Environmentalists and Animal Advocates
Amicus Briefs for the Petitioners (Navy)
The Brief for the California Forestry Association,
the American Farm Bureau
Federation, the American Forest & Paper Association,
the National Association of Home Builders in Support of Petitioner
Brief for the Pacific Legal Foundation in Support of Petitioner
Brief for the Navy League of The United States
Honolulu Council, Admiral
Thomas B. Hayward, Admiral Ronald J. Hays, Admiral R.J. “Zap”
Admiral Peter M.
, Vice Admiral Robert K.U.
, Rear Admiral
Richard C. Macke, Rear Admiral Lloyd “Joe”
, Rear Admiral George
, Rear Admiral Stephen R.
, the Navy League of the United
States, Military Affairs Council of the Chamber of Commerce of Hawaii,
Southwest Defense Alliance, San Diego Regional Chamber of Commerce, and
the San Diego Military Advisory Council in Support of Petitioner
Brief for the Washington Legal Foundation, Rear Admiral James J. Carey, U.S.
Navy (Ret.), the National Defense Committee, and Allied Education
Foundation in Support of Petitioner
Amicus Briefs for the Respondents (NRDC, IFAW,
Cetacean Society International, League for Coastal
Protection, Ocean Futures Society)
Brief for the Ecological Society of America in Support of
Brief for Defenders of Wildlife, the Humane Society of the
United States, the Center For Biological Diversity, Oceana,
Inc., Sierra Club, the Wilderness Society, the Animal Legal
Defense Fund, and Greenpeace, Inc. in Support of
Brief for Law Professors Michael C. Small, Jonathan D.
, and Adam Winkler in Support of Respondent
Brief for California Assembly Member Julia
California Senator Christine Kehoe in Support of
The Relevant Laws
National Environmental Policy Act (NEPA)
Marine Mammal Protection Act (MMPA)
Coastal Zone Management Act (CZMA)
Endangered Species Act (ESA)
Requires EA and EA
FONSI or EA and
instances of level A
170,000 instances of
Level B harassment
Requires federal agencies
engaging in actions that
will “affect any coastal use
or resource” submit a
Determination (CD) to the
relevant state agency
The Navy’s CD neglected
to mention MFA sonar and
didn’t include required
mitigation measures to the
A Whirlwind Legal Chronology
Ninth Circuit dissolves stay.
Remands to district court.
District court enjoins Navy,
but allows training if certain
measures are taken.
Navy seeks stay pending
District court issues modified
President exempts Navy from
CZMA, pursuant to 16 U.S.C.
CEQ issues alternative
arrangements under NEPA
for Navy, pursuant to 50
Ninth Circuit remands to
district court to consider Jan.
District court finds that
CEQ’s actions were arbitrary
and restores injunction.
Ninth Circuit rejects Navy’s
motion for a stay.
Ninth Circuit affirms
Ninth Circuit modifies two
mitigation measures, allowing
sonar reduction when at
critical point of the exercise
and during surface ducting
Navy petitions the U.S.
Supreme Court to review the
Ninth Circuit decision.
U.S. Supreme Court finds in
favor of the Navy.
What did the Injunction Actually
Powering down of Sonar
Posting of Lookouts
Use of Helicopters
Changes for Migration
Supreme Court Review (5
Majority opinion penned by Chief Justice
John Roberts finding that the “balance of
public interests” weighed strongly on the
side of the Navy. Joined by Justices Alito,
Scalia, Thomas, and Kennedy
Dissenting opinion by Ruth Bader
Ginsberg found that the balance of
Interest weighed on the Side of Marine
Mammals. Joined by Souter
concurred in part and
dissented in part, to which Stevens joined
in the concurrence.
General for the Dept. of Justice
“The respondents] not only have
to show irreparable injury to
marine mammals, which they
haven’t; they have to show
irreparable injury to themselves,
and particularly as to beaked
whales, which none of the
and none of their
members have ever asserted they
have seen. They can’t possibly
establish any irreparable injury
from any conceivable harm to
beaked whales.” (Oral Argument
Richard Kendall, for the NRDC
“the reason there is no
emergency is that the Navy…is
perfectly able to train under
Roberts’ Nail in the NRDC Coffin
“At no point did the district
judge undertake a balancing
of the equities, putting on
one side the potential for
harm to marine mammals
that she found…and putting
on the other side the
potential that a North Korean
diesel electric submarine will
get within range of Pearl
Harbor undetected. Now, I
think that’s a pretty clear
balance. And the district
court never entered
went into that analysis.” (Oral
The ruling in
“made neither side happy
each side possibly just about equally unhappy” (Dr. Naomi
Rose, personal Correspondence)
do an EIS, nor is it in any way exempt from
following the relevant laws (because the case didn’t reach the
The interests of NRDC
were clearly marginalized
Closing Thought on the Limits of
Winter v. NRDC
: “When I think of the armed forces
preparing an environmental impact statement, I
think, the whole point of the armed forces is to
hurt the environment.” (Oral Argument 44)
Marine Mammals vs. Navy Sonar”. Writing for the Blog, The
Conspiracy. Available at
Last visited April 19, 2009.
“Whales and Sonar: Environmental Exemptions for the Navy’s Mid
Frequency Active Sonar Training”
Research Service Report.
Order Code RL344403. Updated November 14, 2008.
“Divided court backs Navy in sonar case” (Nov. 12, 2008)
On the Docket: U.S. Supreme Court News
. Available at
2008. Last visited April 19
“Habeas Porpoise: The Future of NEPA in a Bottle.” Blog posting, from
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http://michaeldorf.org/2008_11_01_archive.html. Last visited April 19
Farnsworth, E. Allen.
An Introduction to the Legal System of the United States
Oceana Publications: New York, 1996.
“Green Trumps the Blue and Gold
National Security Takes a Back Seat to Natural Resources.” Posted on the American College of
Environmental Lawyers (ACOEL) website, January 22, 2008. Available at
. Last visited April 20, 2009.
“Winter, et al. v. Natural Resources Defense Council, Inc., et al.” From SCOTUS Wiki. Available at
. Last accessed
April 19, 2009.
Hansen, Victor and Lawrence Friedman.
“‘Winter v. NRDC’: Limit the President’s Emergency Power.”
The National Law Journal
2008. Available at
. Last visited April 19, 2009.
“Supreme Court Weighs in on Whales and Sonar: Research offers best way to balance needs of marine mammals and the
. March 27, 2009. Available at
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Ocean Noise and Marine Mammals
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National Research Council, National Academies Press: 2003.
Parsons, E.C.M., Sarah J. Dolman, Andrew J. Wright, Naomi A. Rose, W.C.G. Burns.
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the gun need to smoke before we act?”
Marine Pollution Bulletin
56 (2006): 1248
, letter to the editor, April 3, 2009. Available at
. Last visited
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Wall Street Journal Law Blog
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