Court weighs concerns on whales, Navy
Justices likely to overturn decision limiting sonar
On the other, the chief justice continued, there is "the potential that a North Korean diesel electric submarine will get within range of Pearl Harbor undetected" if Navy personnel are not properly trained in the use of sonar.
"Now, I think that's a pretty clear balance," Roberts said.
Other justices also indicated an inclination to overturn a decision from the 9th U.S. Circuit Court of Appeals, in San Francisco, imposing limits on the exercises, saying either that national security concerns trumped environmental ones or that judges are not competent to weigh the competing interests.
"I don't know anything about this," Justice Stephen G. Breyer said. "I'm not a naval officer." But he said he was inclined to believe, in the absence of evidence to the contrary, a sworn statement from an admiral saying the restrictions would harm military preparedness.
Richard B. Kendall, a lawyer for the Natural Resources Defense Council, which had sued the Navy over the exercises, insisted that courts have an important role to play in protecting whales and dolphins even when the executive branch asserts a national security interest.
The two sides agreed that sonar can harm marine mammals, but they disagreed about how much. Kendall said sonar produces noise as loud as 2,000 jet engines and that some whales die or become stranded in their frantic efforts to avoid it.
Gregory G. Garre, the U.S. solicitor general, said the impact on the animals was minor and passing. "They hear the sound, and they go in the opposite direction," Garre said. "It can also mean that they could have some temporary effect on their feeding or breeding patterns."
In a decision in February, the 9th Circuit upheld a trial judge's order that the Navy suspend the use of sonar if it detects a marine mammal within 2,200 yards and reduce sonar levels when water temperatures reach certain levels whether or not animals are present. The appeals court stayed its order until the Supreme Court decides the case, and the exercises are scheduled to conclude in January.
The precise questions before the court in the case, Winter v. Natural Resources Defense Council, No. 07-1239, were tangled. Is an agency called the Council on Environmental Quality — "more or less an office in the White House," in Roberts' words — permitted to override a court order? Did the lower courts use the wrong standard in entering an injunction? Must the environmental group prove harm to an entire species rather than to individual animals?
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