The Supreme Court on Wednesday heard arguments in a case testing how far the president and his agencies can go in setting aside environmental laws in the name of national security — and how far the courts can go in intervening in such a controversy.
At issue is the long-running dispute over the Navy's use of mid-frequency sonar in training exercises off the California coast. Environmental advocacy groups contend that federal law requires the Navy to assess the damage that could be caused to whales and dolphins and to adopt steps to minimize that damage.
The president and his Council on Environmental Quality have gotten around that requirement by ordering environmental laws suspended in the name of a national security emergency.
The federal courts, however, concluded that there was no emergency — that the military knew for years that it had a problem and ignored it.
The lower courts ruled that the executive branch cannot simply waive federal environmental laws on its own. But the Bush administration won a temporary reprieve while it appealed.
On the steps of the Supreme Court on Wednesday, Paul Kamenar of the Washington Legal Foundation argued that the courts cannot trump the president's powers in a case like this.
"The president is the commander in chief of the armed forces and the Navy. It's his judgment — and his admirals' judgment — on how best to train our seamen in this time when we have two wars going on," Kamenar says.
But Richard Kendall, representing the Natural Resources Defense Council, countered that even though these exercises are almost over, much is at stake for the future.
"If the executive branch can say after an Article III court has ruled, 'Your ruling doesn't count,' then our constitutional framework would have just undergone an earthquake," Kendall says.
Inside the courtroom, Justice Samuel Alito asked the government's chief advocate just how many marine mammals have been killed or injured. Solicitor General Gregory Garre contended that there has been no serious harm.
Justice Ginsburg: I thought there are records of 564-beaked whales suffering severe harm.
Garre: Our best evidence is that the harm has not been permanent.
Much of the argument focused on the Navy's refusal to produce an environmental impact statement before it began the exercises.
Justice Souter: You've known since before the exercises began in 2007 that this was a requirement, and you still didn't produce it. Why shouldn't we just say the only emergency was created deliberately by the Navy?
Justice Breyer: The reason that the law requires the environmental impact statement is that once the agency reads it, it might actually decide to do something different. That's the whole point.
But it was Kendall who took the real beating Wednesday.
Justice Alito: There's something incredibly odd about a single district court judge making a judgment contrary to the determination the Navy has made.
Kendall: The judge was extraordinarily deferential to the Navy, but the evidence showed that the Navy could, without any major problems, conduct these exercises in a way that minimized damage to marine mammals.
Justice Kennedy: The president and the Defense Department deserve some deference, too.
Justice Breyer: The Navy is saying, "If we can't train personnel using these levels of sonar, we can't train people to find submarines where they hide." This makes me very nervous.
Chief Justice Roberts: We should stop the Navy from doing this just because we think there is a likelihood they might be inflicting unneeded damage?
Kendall: Yes ... the Navy cannot be the judge of its own cause. There's a limit to deference. ... The evidence is overwhelming that beaked whales are being stranded by sonar and killed. Autopsies show they are hemorrhaging and dying.
Justice Breyer: The whole purpose of the military is to hurt the environment. You go on a bombing mission — do you have to prepare an environmental impact statement?
Kendall: No, of course not in combat. But here in a training exercise, the military is supposed to minimize the damage.