Navy v. Whales: An Environmental Law Perspective

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By: John Copeland Nagle

faculty_nagle_aspen We are accustomed to hearing Theodore Roosevelt being quoted in favor of environmental conservation. We forget that T.R. also served as Assistant Secretary of the Navy. Chief Justice Roberts invoked that experience yesterday’s Supreme Court case involving the effects of Navy sonar exercises on whales and other marine mammals. Roberts quoted T.R.’s statement that “the only way in which a navy can ever be made efficient is by practice at sea, under all the conditions which would have to be met if war existed.” The Court thus overturned a preliminary injunction that a Los Angeles federal trial judge had issued against naval training exercises off the coast of southern California pending the completion of further studies of the impact of the training on nearby whales.

The case reached the Supreme Court in an unusual posture. The Court presumed that the Navy had acted illegally by conducting its exercises before completing the environmental studies required by federal law. The remaining question was what to do about it. Federal courts issue injunctions only if, among other things, the harm resulting from the contested action outweighs the benefit of continuing it. Normally that supports injunctive relief in environmental cases because the harm that could occur by, for example, building a dam or paving a road is irreversible and far greater than the economic consequences of a temporary delay. But the Navy insisted that its exercises were an essential component of its anti-terrorism efforts, and the Court faulted the trial judge for overlooking those national security interests. So the exercises and the environmental studies will both proceed, and other courts will work to implement the Court’s guidance in the increasingly frequent conflicts between military operations and environmental law.