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Today, we filed a brief amicus curiae in the case now pending in the U.S. Supreme Court about the Navy's use of mid-frequency active (MFA) sonar in training exercises off the California coast, Winter v. Natural Resources Defense Council, Inc., No. 07-1239. 

In that case, environmental groups challenged the use of MFA sonar, asserting that the Navy had not completed an environmental impact statement (EIS) to study the possible harms to marine mammals.  MFA sonar is used to detect quiet diesel-electric submarines, which the Navy considers to be one of the top threats to surface ships.  The Ninth Circuit agreed with the plaintiffs and enjoined the exercises, imposing restrictions on how the Navy trains with the sonar, even though the record in the case contained "no evidence that marine mammals have been harmed by the use of MFA sonar in the...training area."  The Supreme Court agreed to review the case in June. 

Our brief was filed on behalf of nine retired Admirals, including a former Chief of Naval Operations, former Commanders of the Pacific (Pearl Harbor) and Seventh (Asia-Pacific and Indian Ocean) Fleets, and Commanders of the Pacific Command.  They have also commanded Navy battle groups, aircraft carriers, and surface ships.  Also on the brief are the Navy League of the United States (and its Honolulu Council), and several other military support groups from California, Hawaii, and other western states.  

The issue in the case is whether the Ninth Circuit properly granted an injunction under the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321, the law that requires federal agencies to consider the environmental impacts of their proposed actions and reasonable alternatives to those actions.  NEPA is an informational statute, and requires that agencies gather and disseminate information, but does not dictate any particular outcome. The plaintiffs also asserted the Navy violated the Coastal Zone Management Act (CZMA), 16 U.S.C. § 1451. 

After the district court enjoined the Navy's exercises because it had not completed an EIS under NEPA and the Ninth Circuit affirmed, the Council on Environmental Quality determined that "emergency circumstances" were presented and it exercised its authority under federal regulations to exempt the Navy from NEPA.  It permitted the Navy to complete the exercises without an EIS. President Bush also determined that the use of MFA sonar is essential to national security and exempted the training exercises from the requirements of the CZMA. Both the district court and the Ninth Circuit ignored these exemptions, and the injunctions remained in place.

Our brief also points out that in 2007, the Secretary of Defense acting pursuant to a 2004 authorization from Congress, exempted the Navy's use of MFA sonar from the federal law protecting marine mammals, the Marine Mammal Protection Act (MMPA), 16 U.S.C. § 1361. That statute is the principal legal protection under U.S. law for marine mammals, and generally prohibits the harassment, hunting, capturing or killing of these animals.  Because the possible harms to marine mammals had already been considered -- and the risk deemed acceptable because traning with MFA sonar is too important to a well-prepared Navy -- an injunction to prevent speculative harm to marine mammals under NEPA was improper.  

My Damon Key colleague Mark Murakami, who was part of the team that put this brief together, has blogged about the case over at hawaiioceanlaw.com here, here, and here.

Read our brief here.

The Court will hear oral arguments on Wednesday, October 8, 2008.  More about the case:

• The Solicitor General's brief on behalf of the petitioners

• A summary of the case and links to the Ninth Circuit opinion and other amicus briefs from SCOTUSblog

• Supreme Court docket report

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