Jump to Content

Of Whales and Sonar: Environmental Protection and Naval Training Collide in Winter v. NRDC

October 15, 2008

co-sponsored by The Environmental Law Institute’s
Endangered Environmental Laws Program
and Ocean Program

In the biggest environmental case of the fall Supreme Court term, the Bush Administration is challenging rulings out of the Ninth Circuit Court of Appeals that sided with environmentalists in their long-running dispute with the Navy over the harmful effects of sonar on whales. The government argues that it properly invoked an emergency exception to environmental laws, and that a lower-court injunction limiting sonar use interferes with naval training exercises, undercutting military readiness in a time of war. Environmentalists counter that the government has no justification to avoid complying with the law especially where the documented effects of sonar on marine mammals include physical traumas and mass strandings.

This closely watched case raises major legal questions: When can the President excuse the military from following the requirements of the National Environmental Policy Act? What is the proper standard for granting preliminary injunctive relief? And what is the role of a federal court in refereeing a dispute between, on the one hand, the President asserting his authority as Commander-in-Chief through an administrative agency (the Council on Environmental Quality) and, on the other hand, parties invoking the legal protections of an act of Congress?

One week after the Supreme Court hears oral arguments, ELI convened a top-flight panel of experts, including lawyers representing clients in the case. Panelists offered their insights into the legal and scientific arguments presented, and on how the Justices may come down in a dispute where the two sides present very different views of the constitutional doctrine of separation of powers.

Moderator:
Leslie Carothers
, President, Environmental Law Institute

Panelists:
Joel Reynolds
, Senior Attorney, Natural Resources Defense Council
Paul Kamenar, Senior Executive Counsel, Washington Legal Foundation
Dr. Chris Parsons, Assistant Professor, George Mason University
James Walpole, Chairman, DC Bar Ocean and Marine Resources Committee and former General Counsel, National Oceanic and Atmospheric Administration

Downloads:

Dr. Chris Parsons PowerPoint Presentation
James Walpole PowerPoint Presentation
Marine Pollution Bulletin Article
Submarines, Sonar, and the Death of Whales
The Navy, Whales, and the Court (The New York Times)
Sonar Sense (LA Times)

The 2008 Ocean Seminar Series is made possible by generous support from the Naomi and Nehemiah Cohen Foundation.

Please click here for more information on the
2008 Ocean Seminar Series
.