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Environmental Law

: ESA Blawg

Is an ESA exemption coming soon to a Pacific Theater near you?

By Keith Rizzardi

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For years, environmentalists have been suing the U.S. Navy over the effects of naval sonar training upon whales and other protected marine mammals and endangered species. See, e.g., NRDC Press Release. To some extent, the suits are focusing on a lesser problem, because fishing and whaling certainly present bigger problems for these species, and the Navy is, of course, essential to the national security of the United States. The Navy is also remarkable in its commitment to "Ocean Stewardship". Nevertheless, the Navy, like other federal agencies, must comply with the laws passed by Congress, and the Navy's sonar training is probably affecting whales and marine mammals, so environmentalists have been fervent in their efforts to hold the Navy accountable.

Photo by Kenneth Balcomb of the Center for Whale Research, available from U.C. Davis

In recent court proceedings, the Navy was subjected to a preliminary injunction creating a 12 nautical-mile no-sonar zone off Southern California. On Jan. 15, 2008, the Bush Administration exempted the Navy and its anti-submarine warfare exercises from the Court orders, and a Presidential document declared that the Navy need not comply with the burdens of the Coastal Zone Management Act.

A Los Angeles Times editorial fiercely opposed the action: “A Navy end-run around a ruling to limit its sonar test is an attack on the Constitution.” U.S. District Court Judge Florence-Marie Cooper also rejected the Bush administration’s emergency-based waiver. "The Navy's current 'emergency' is simply a creature of its own making, i.e., its failure to prepare adequate environmental documentation in a timely fashion." The Navy's position "produces the absurd result of permitting agencies to avoid their NEPA obligations by re-characterizing ordinary, planned activities as 'emergencies' in the interests of national security, economic stability, or other long-term policy goals… This cannot be consistent with Congressional intent,".

The environmentalists series of victories could be short-lived. It should be noted that under the Endangered Species Act, the Bush Administration, or any future presidential administration, could indeed exempt the Navy from the ESA. Through the “Endangered Species Committee,” also known as the “God Squad,” a panel of senior officials, including the President, Cabinet level Secretaries, and the Governor of the affected State(s), can convene to authorize federal activities that will adversely affect, or even jeopardize the continued existence of, listed species. In addition, the ESA also contains a process through which the Secretary of Defense can invoke an exemption based upon national security. Although passed in 2003 – largely in response to this type of litigation – the provision has never been invoked.

MORE RESOURCES:

Court Opinion available through U.S. District Court, Central District of California. See, Natural Resources Defense Council, et al. vs. Donald C. Winter, et al., Case No. SACV 07-00335 FMC-FMOx, "Order Denying Defendants' Ex Parte Application to Vacate Preliminary Injunction or to Partially Stay Pending Appeal and Order Vacating Temporary Stay" (Feb. 4, 2008), click here to download
ENS-newswire article
Washington Post story on The Navy and the Whales
History of the ESA amendments from wikipedia
Dept. of Defense article on Environmental Law and National Security
Cetacean Society International position paper: Whales Alive