POLITICS: Save the whales - and the rule of law

A California judge will begin a key hearing tomorrow on the Navy’s use of high-intensity sonar. The case may have implications not only for whale-watchers - who say the technology can disorient and injure marine mammals - but perhaps even for the rule of law itself.

At issue is a 5,000-person naval training program that began last year off the coast of California. As we’ve noted before, the technology - which the Navy says is the only way to detect hostile submarines - relies on loud “fingernails on chalkboard” noises that can cause whales to flee in panic, leaving them exhausted and disoriented; worse, it sometimes prompts the startled creatures to surface too rapidly, causing decompression sicknesses that can prove fatal. Sonar use has already been linked to mass beachings along the US coast. According to the Navy’s own estimates, the California program will affect upwards of 8,000 whales, permanently injuring around 450. 

Greens sued in federal court to block the program, and Judge Florence-Marie Cooper of California’s Central District ruled that the Navy was obliged to comply with environmental laws, turning off its sonar equipment when close to shore or within range of marine wildlife. The Navy claims the ruling to be unduly burdensome, and turned to the White House for relief; President Bush promptly overruled the court’s ruling, citing national security concerns, and gave the Navy clearance to ignore one law - the Coastal Zone Management Act (CZMA) - and to make “alternate arrangements” to comply with a second, the National Environmental Policy Act (NEPA). 

That outraged greens - and constitutional lawyers, who say the President overstepped his authority. While Bush is legally within his rights to waive the CZMA if he believes it to be in the “paramount interest of the United States”, exceptions to NEPA are allowed only in “emergency circumstances” - and the Navy has already admitted that the only “emergency” in this case was Judge Cooper’s inconvenient determination to uphold the law. In other words, the President is arguing that anything preventing him from doing exactly as he pleases is an emergency justifying the unfettered expansion of executive power. 

The Navy may question the necessity of sonar restrictions, but it’s already demonstrated its ability to comply with them without unduly impeding its training programs. At tomorrow’s hearing, Judge Cooper should stick to her guns, insist that the White House respect the rule of law - and keep the Navy’s training ships on silent running, at least when whales are around.


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