Thursday, July 03, 2008

What Did You Know and When Did You Know It?

Neil’s post about Orwell and the misuse of language to mask political maneuvering got me thinking about the Court’s cert. grant in Winter v. Natural Resources Defense Council (a/k/a the Sonar case). Last week, the Court agreed to hear the case—putting a potentially stunning array of issues in its October docket. It involves everything from the separation of powers rule that the Executive may not revise Article III court judgments to allocating the burden of proof in modern conservation. But in this first of a few posts, I’ll focus on the meta-ethical issues it raises.

Winter began last year as yet another challenge to the Navy’s use of very powerful sonar, this one brought by the Natural Resources Defense Council (NRDC) and some others concerned that such sonar was/is killing, injuring, and seriously disrupting the behavior of various species of marine life. Specifically, it was a challenge to the Navy’s decision to forego the NEPA Environmental Impact Statement (EIS) in conducting, and also a challenge to the actual conduct of, a series of training exercises using so-called “mid-frequency active” (MFA) sonar. The exercises were off the coast of California, implicating the State’s interests under the Coastal Zone Management Act. California joined in the CZMA claim. To be clear, these were extensive exercises lasting several months and involving a broad cross-section of forces, all meant to improve the Navy’s anti-submarine warfare capabilities. These capabilities were something the Navy concluded was the Pacific Fleet’s “top ‘war-fighting’ priority because of the proliferation of extremely quiet diesel electric submarines throughout the world.” 518 F.3d at 664. By the time the case got to the Ninth Circuit, the Administration was loudly proclaiming the dire consequences of preventing or even delaying this form of training. Id.

Now it was only relatively recently that we’ve had persuasive evidence linking active sonar to things like whale beachings and other bizarre marine mammal behavior. False negatives and a myriad of possible causes left most speculations ungrounded. But by 1996 researchers were able to draw a few firm causal connections (due in part, ironically enough, to data gathered by the U.S. Navy). Of course, before then we had common sense: some of the “active” sonar is emitted at around 235 decibels. (For comparison, your garden variety rocket launch is a modest 195 decibels.)

For perhaps strategic and perhaps tactical reasons, then, the Navy has never argued (at least in this case) that its active sonar is benign. What it argues is that the risks to marine life are justifiable under the governing law and that, if necessary, they can be authorized by the President under his authority as Commander in Chief. Which this President did. Proudly. And it turns out that, at least on the face of the rules at issue, the statutory and regulatory arguments may hold a fair bit of water. (I’ll bracket the constitutional argument here and beg your indulgence on the pun.)

In opting out of its EIS on these exercises, the Navy relied on 40 C.F.R. § 1506.11—one of many “guidelines” on NEPA written and administered by the Council on Environmental Quality (CEQ). CEQ is an extension of the President and designedly so: its members are all Presidential appointees and Presidents have staffed their CEQs with close (or at least trusted) advisors, just as Congress expected when it structured NEPA and the CEQ this way. Section 1506.11 says that

Where emergency circumstances make it necessary to take an action with significant environmental impact without observing the provisions of these regulations, the Federal Agency taking the action should consult with the Council about alternative arrangements. Agencies and the Council will limit such arrangements to actions necessary to control the immediate impacts of the emergency. Other actions remain subject to NEPA review.

Navy and CEQ had, of course, agreed to “alternative arrangements” in lieu of an EIS. The trouble is that they made this “emergency circumstances” agreement only after the district court had issued a preliminary injunction requiring Navy to complete the EIS. Before then, Navy had argued that an EIS wasn’t necessary because it wouldn’t meet the requisite thresholds for an EIS. When they lost that argument, they turned the judicial relief itself into the exigency supposedly jeopardizing national security (immediate preparedness to meet submarines in battle).

This brings me to my point in this post about the case (and it isn’t about how long we’ve had active sonar or the Navy's known about submarines). Let us suppose the Department of Defense had decided from the start to find whatever means it could to exempt its operation from the public, proceduralistic routine of an EIS. Let us even suppose that it had done so with the White House’s blessing. Should they have made better legal arguments or was this simply a matter of not anticipating the appellate panel they got (B. Fletcher, Reinhardt, and Nelson)? Was it an “emergency circumstance” that a district judge unexpectedly favored NRDC’s claims about the sonar? If not, then consider this: could the Navy have simply delayed scheduling the training exercises to leave inadequate time for an EIS within its “preparedness” criteria—seemingly triggering Section 1506.11 in the most pristine, protected sense possible? All of that was and is completely within the power of the Executive to manipulate.

All hard questions, but one thing is certain. Like Massachusetts v. EPA, this will at least be a good teaching case . . . if not necessarily a huge victory for conservation.

Posted by Jamie Colburn