Beyond Winter v. NRDC: A Decade of Litigating the Navy's Active SONAR Around the Environmental Exemptions
29 Pages Posted: 6 Oct 2008 Last revised: 18 Jun 2014
Date Written: November 27, 2008
On November 12, 2008, the U.S. Supreme Court decided Winter v. NRDC, vacating the lower courts' carefully tailored injunctions - at least so far as the Navy challenged the imposed mitigation requirements - on the grounds that the public interest in national security clearly outweighed the potential harm to marine mammals. However, the Court declined to address the other issue before it: whether the U.S. Navy is entitled to use abbreviated procedures to comply with the National Environmental Policy Act (NEPA) for its Mid-Frequency Active SONAR (MFAS) training exercises occurring off the coast of southern California over two years. Thus, the Court left unreviewed the Navy's use of environmental exemptions, even though those exemptions have become the de facto method of "balancing" the public interest in environmental protection and national security preparation, and even though the Navy's active SONAR activities - both MFAS and Low-Frequency Active SONAR (LFAS) - have been strongly correlated with harm to marine wildlife, including whales, dolphins, sea turtles, and fish.
Environmental organizations, particularly the Natural Resources Defense Council (NRDC), have been challenging the Navy's use of LFAS and MFAS for over a decade now. Three different federal district courts have concluded that the public interest is best served through narrowly tailored injunctions that allow SONAR training exercises to occur, but with significant mitigation measures in place. The Navy, however, has pursued a number of blanket exemptions from various environmental statutes, including not only NEPA but the Marine Mammal Protection Act, the Coastal Zone Management Act, and the Endangered Species Act.
This article provides a survey of the Navy SONAR litigation (including a chart of all the cases as an Appendix), of the federal environmental statutes that have been invoked in that litigation, and of the various exemptions to those statutes that the Navy has used to avoid having to mitigate its training exercises. It argues that, procedurally, the current use of binary statutory exemptions and the mish-mash environmental exemptions counsel in favor of a new comprehensive statutory approach to national security exemptions that: (1) allows all potentially relevant environmental exemptions to be addressed in one proceeding; (2) avoids binary decisions (completely exempt or completely subject to environmental regulation) in favor of flexible mitigation requirements and adaptive management; and (3) preserves effective court oversight over all uses of the exemptions.
Keywords: Winter, SONAR, Navy, whales, NEPA, Endangered Species Act, Marine Mammal Protection Act, National Marine Sanctuary Act, Coastal Zone Management Act, national security, public interest, environmental policy
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