This is a difficult question to tackle as the readers can tell from the lack of responses. While the ruling does set up a dilemma for the incoming Obama administration it does also provide an opportunity for the Navy at the same time. The dilemma stems from President-elect Obama’s need to simultaneously appear strong on defense and strong on the environment. If he chooses to rescind the executive order in the first few weeks after taking office, Republicans might try to spin it as weak on defense. If he doesn’t, he will disappoint environmental advocates. So what’s a new President to do?

I teach a course in Environmental Politics to upper level undergraduates at the University of Southern California and we have talked about this case a few times this year including after the Supreme Court ruling. In talking to the students there are a number of questions that we have not seen answered in the ruling or the reports about the ongoing cases. The Obama administration should get answers to these questions and explain it to the American public.

I think that while most of the students agree that the Navy should be allowed to perform training exercises, they also believe that the Navy should follow the nation’s environmental laws, except perhaps in times of immediate security emergencies. It was clear that the students have not seen enough evidence that there exists such an immediate threat to the U.S. from a new generation submarines that the Navy can’t wait for an environmental review. Where is the threat coming from and why is it imminent?

Another question that comes up is why are there no alternatives to the training regiments that can provide less of an impact to marine life. It is a big ocean, and it seems that there are lots of spaces in the ocean in which the impact on marine life would be minimal. In addition – there are times of the year in which the presence of marine mammals is less than at other times, so why can’t the exercises be done during these times? Why does there seem to be no flexibility and why does it seem that the Navy can use precautions in other areas, like off the coast of Hawaii, but not off the coast of California?

With the incoming administration the Navy has an opportunity to be more conciliatory and show a different face to the American public and to students. We can fully support our armed forces but also require the services to be more environmentally sensitive, and also follow all the laws of the land. With a new administration hopefully the Navy will take a fresh look at the evidence and science about how their sonar impacts marine mammals and not be clouded by the Bush administration’s tendency to dismiss scientific results that are in opposition to their position. It is disappointing that the majority in the Supreme Court appeared to dismiss the evidence from independent studies. Giving the military the ‘benefit of the doubt’ on military matters is one thing – but giving them the ‘benefit of the doubt’ on environmental matters at it seemed they did – is unfortunate.

As one of my students said - Obama’s skills at rational debate and calm approach may allow him to question the Navy’s claims in a way that is not threatening to the armed services and create an opportunity for the Navy to compromise and be a good partner for the environment. We encourage President-elect Obama to ask the hard questions, demand reasonable answers and find a way to protect out country and our environment.

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The bad news for wildlife is that the Supreme Court – unwisely in my view – chose to give excessive deference to the Department of Defense and its view that DOD’s proposed sonar training programs could not be tweaked to make them less dangerous to whales.

The good news is that the Court did so on very narrow grounds, with a split decision, that seems likely to minimize the future danger that other executive agencies will simply ignore the impact of their programs on wildlife and get away with it. Writing for himself and four others (Justices Alito, Kennedy, Scalia and Thomas), Chief Justice Roberts confined himself to just examining two technical factors in the test for issuing a preliminary injunction: the "balancing of the equities" and "the public interest".

The navy had agreed to four of the six conditions imposed by the lower courts in their preliminary injunction, and appealed two. In responding, the five judge majority simply said that they didn’t think the 9th Circuit had adequately weighed the harm to the marine mammals vs. the harm to naval training. The fact that the Navy agreed to four of the conditions and appealed only two also helped their case, since even two judges who did not join Roberts’s opinion – Breyer and Stevens – said they agreed with the conclusion because there was inadequate evidence of what harm would result to whales from the Navy’s failure to comply with the two specific conditions.

It’s important to remember that the Navy IS preparing a full programmatic EIS on all the issues – this involves the request for a preliminary injunction, not the final shape of the permanent program. And unlike many government actions, like building a road, the naval training is an ongoing program which can be modified in the future. That made our case for “irreparable injury” harder for the judges to grasp.

But this is a very narrow ruling, which leaves the fundamental framework of wildlife protection law intact.

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NRDC took on the military in an effort to safeguard whales and other marine mammals against harm from high-intensity, mid-frequency active sonar being used in a series of naval exercises off southern California. The case went all the way to the Supreme Court. Yesterday the court issued a narrow ruling that leaves in place four of the injunction's six safeguards.

However, the Supreme Court held that the lower courts did not properly balance the competing interests at stake, and struck down two significant safeguards that reduce harm to whales from high-intensity sonar training.

The decision places marine mammals at greater risk of serious and needless harm.

But it is gratifying that the court did not accept the Navy’s expansive claims of executive power, that two thirds of the injunction remains in place, and that the court did not overturn the underlying determination that the Navy likely violated the law by failing to prepare an environmental impact statement.

The Navy itself acknowledges that sonar can be deadly to marine mammals, and that the exercises at issue would “take” an estimated 170,000 marine mammals, including causing permanent injury to more than 500 whales and temporary deafness to at least 8,000 whales.

The Army doesn’t train riflemen in crowded city streets, the Air Force doesn’t practice bombing sorties over national parks, and likewise the Navy should not train with sonar in ways that cause unnecessary harm to entire populations of marine mammals.

NRDC will continue our work to ensure that marine mammals are protected from human incursion of every type, including military action.

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