The New York Times
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August 19, 2008
Editorial
Whales, Dolphins, Sonar and the Courts

We were cheered to learn that the Navy and conservation groups have reached a court-approved settlement that allows the service ample opportunity to test its low-frequency sonar systems while protecting the habitats of marine life that can’t tolerate loud underwater sound. Sometimes compromise and good sense do prevail. So it is especially disturbing that the Bush administration is still trying to block the courts’ ability to mediate future agreements between the military and environmentalists.

The vigilantly anti-regulatory Bush administration told the Navy that it could test its sonar in more than 70 percent of the world’s ocean area. It claimed that training on the loud, low-frequency devices, which can detect submarines at great distances, was important to national security and that any environmental damage would be minimal. However, the same sound waves that can detect distant submarines can also bombard marine habitats, near and far, disrupting the activities of whales, dolphins and other acoustically sensitive creatures.

Fortunately, the Natural Resources Defense Council and other organizations sued to rein in the exercises, and a federal court in California issued injunctions and supplied the judicial muscle to force a mediated settlement. The agreement, approved this month, still allows the Navy to test its sonar in large areas in the Northwestern Pacific and around Hawaii while carving out segments that are critically important for marine life.

Both sides have expressed satisfaction with the result. That hasn’t stopped the administration’ s efforts to sidestep the courts in a separate case on the use of midfrequency sonar off the coast of Southern California.

A federal district court and federal appeals court in California have ordered the Navy to adopt strong measures to protect marine life during the exercises. The administration has invoked national security to exempt the Navy from strict adherence to the environmental laws that undergirded the court decisions, thereby making the courts irrelevant.

The Supreme Court is expected to rule on who gets the final say on this issue: the courts or the executive branch. We hope the justices slap down the administration’ s efforts to thwart judicial oversight. This month’s settlement shows that military readiness and environmental protection are not incompatible and that the courts can play a constructive role in forging an acceptable compromise.