Article: Bush attempts to override protection of marine mammals

Bush sides with Navy in sonar battle
He cites national security in aiming to override a judge's injunction issued to protect marine mammals off California. An environmental group promises to fight his move.

By Kenneth R. Weiss
Los Angeles Times Staff Writer

9:51 AM PST, January 16, 2008

Declaring them "essential to national security," President Bush exempted the Navy's upcoming training missions in Southern California waters from environmental laws that prompted court-ordered restrictions on using sonar linked to injuries of whales and dolphins.

The administrative maneuvers by the White House, released today while Bush was traveling in the Middle East, are designed to override a federal court order that restricts the Navy from using mid-frequency active sonar within 12 miles of the coast and shutting down the powerful submarine-detection device when marine mammals come within 2,200 yards.

"This exemption will enable the Navy to train effectively and to certify carrier and expeditionary strike groups for deployment in support of worldwide operational and combat activities, which are essential to national security," according to the memo signed by Bush.

Citing the memo and other documents, a Justice Department lawyer asked that the U.S. 9th Circuit Court of Appeal repeal the restrictions set out in an injunction issued this month by U.S. District Judge Florence-Marie Cooper.

Her injunction compromises the Navy's ability to evaluate and certify the Pacific Fleet's strike groups as properly prepared to hunt for quiet diesel electric submarines in active military operations off the coast of Asia and in waters near Iraq and Afghanistan, the Justice Department lawyer, Allen M. Brabender, wrote.

"It therefore profoundly interferes with the Navy's global management of U.S. strategic forces, its ability to conduct warfare operations, and ultimately places the lives of American sailors and Marines at risk," Brabender wrote in an appeal.

"Each day that the injunction remains in force the Navy and national security suffer grievous harm," he wrote, asking that the three-judge appeals court panel lift the injunction by 2 p.m. Friday.

The administrative actions and court filings set up a classic struggle between the administrative and judicial branches of government, in a widely watched case that pits environmental protections against troop readiness and national security.

Peter Douglas, executive director of the California Coastal Commission, said the president had clear authority to exempt the Navy's exercises from the U.S. Coastal Zone Management Act. His action effectively knocks the commission out of the ongoing legal case, which also involves a consortium of conservation groups.

Although Douglas found it "troubling," he said the commission has no way to fight Bush's action -- the first presidential override of the law that since 1972 has given states the right to review federal activities that affect their coastal resources.

But it's less clear if the White House Council on Environmental Quality has the authority to override the requirements in another federal law -- the linchpin of the federal case. Conservation groups persuaded Cooper to issue her injunction based on the National Environmental Policy Act.

"We will vigorously oppose the president's illegal waiver of federal law," said Joel Reynolds, a senior attorney with the Natural Resources Defense Council. "This is definitely an attempted end run around the National Environmental Policy Act, the grandfather of our environmental laws."

When asked if the White House has such authority, Reynolds responded, "This is unprecedented, so it is never clear."

The Pentagon tried to short-circuit the same lawsuit last year by exempting the Navy's training exercises from the Marine Mammal Protection Act.

But the lawsuit went forward under the two other laws, leading to Cooper's injunction, which set out the toughest restrictions ever imposed on use of sonar during training missions.

The Navy has conducted five of 14 planned evaluation and certification missions for strike groups in the Southern California Operating Area, a massive range that stretches from the Channel Islands into Baja California and far out to sea.

The Navy asserts that it has 29 separate measures to protect marine mammals from harmful effects of mid-frequency active sonar, which has been linked to panicked behavior of marine mammals in more than a dozen places and mass strandings of dead and dying whales and dolphins in the Bahamas and Canary Islands.

But Cooper, who in her rulings said she tried to balance environmental protections with national security, found that these protections were insufficient. Citing the Navy's own studies, she concluded that upcoming exercises off Southern California "will cause widespread harm to nearly 30 species of marine mammals, including five species of endangered whales and may cause permanent injury and death."

The powerful sonar is used to detect quiet diesel-electric submarines that are operated by about 40 countries, including some hostile ones. The device sends out bursts of sound, which bounce back, essentially lighting up submarines or other underwater structures in a sonic equivalent of a strobe light.

ken.weiss@latimes.com