Navy sonar roundup

Last week, the Supreme Court heard oral argument in the National Resources Defense Council's lawsuit against the Navy. (Hat tip: Change.org). I'm out of my depth when reading cases involving federal environmental statutes, so I've tried to gather links to some people who know what they're talking about. Here's how the NRDC frames the issues in its brief:

The district court found that Petitioners (“the Navy”) had likely violated the National Environmental Policy Act of 1969 (“NEPA”) by failing to prepare an environmental impact statement to consider the effects that certain long-planned naval training exercises using high-intensity sonar would have on marine mammals off the coast of Southern California. The Navy does not question that finding in this Court.... Instead, the Navy argues that the district court erred when it refused to strike from its injunction two mitigation measures because of their alleged effect on the Navy’s training and certification program....

The Navy argues that a letter it procured from another executive-branch agency, the White House Counsel on Environmental Quality (“CEQ”), disagreeing with the district court’s finding, compelled the court to strike the challenged measures. This novel argument, reduced to its essentials, is that an Article III court must set aside its findings of fact and modify an injunction because an administrative agency in which Congress has vested no adjudicatory authority, and which lacks any expertise in the issue in dispute, disagrees with the court’s findings.

The NRDC has a great blow-by-blow of the argument, complete with pictures and a (non)prediction as to the outcome: "I haven't got a clue. And I doubt that anyone else does, either." (An expert at the New York Times says NRDC faces long odds.) Hawaii Ocean Law has more press coverage and all the filings. On perusing the transcripts of the oral arguments, I was unhappy to see Justice Scalia raise the notion of standing, a doctrine that judges have used to keep public interest litigants out of court, even when Congress has given them a way to sue.

For more on the separation of powers issues in the case, check out SCOTUS Blog. The CEQ justified the lack of environmental review by invoking the national security interest in testing sonar for submarines. This is another appearance of the Bush Administration's argument that, in these post-9/11 times, security interests are so surpassingly important that all other interests must fall to the wayside, and a variation on the claim that it is for the executive, rather than the judiciary, to determine how to balance the interests. The acceptance of this argument in this case by the Supreme Court would have dire consequences for whales and for all animals protected by federal law.