Judge Nixes Bush Bid to Keep Sonaring Whales Off Malibu Coast

BY ANNE SOBLE

A federal judge rejected White House efforts to exempt the Navy from environmental laws protecting endangered whales from sound waves caused by underwater sonar blasts during Navy anti-submarine exercises off the Channel Islands.
President Bush issued an order Jan. 15 seeking to override U.S. District Judge Florence-Marie Cooper’s previous order limiting sonar use in waters frequented by whales and other marine mammals, saying these restrictions would interfere with military exercises essential to national security.
Cooper said Monday that Bush does not have authority to suspend the National Environmental Policy Act, on which her order is based. NEPA requires all federal agencies to address environmental damage that could be caused by their actions and propose ways to mitigate it. Cooper said the President only can override the law in a national emergency.
The judge also raised the issue of whether Bush’s order was constitutionally suspect because he cited no new arguments other than indicating that he chose to reach a different conclusion.
Cooper’s Jan. 3 injunction requires the Navy to stay 12 nautical miles from shore during exercises; post trained lookouts to spot whales and other marine mammals; and turn sonar off when an animal is within 2200 yards.
Cooper said the Navy has successfully used similar protective measures in the past and did not show that these restrictions impeded exercises.
Navy spokespersons say the latest action is now under review. The Navy has the option of asking the Ninth U.S. Circuit Court of Appeals in San Francisco to suspend the injunction, but has not indicated whether it will try this route.
The Navy has completed six of 14 training exercises scheduled through January 2009 in the area. Spokespersons have said the activities provided adequate protection for marine life, but Judge Cooper, in an order last August, said those measures were “woefully ineffectual and inadequate.”
Cooper’s first order halting tests was suspended by an emergency panel of the appeals court, but the appeals court panel regularly assigned to the case subsequently upheld her decision.