Judge Ahab and the Whales

Wall Street Journal
Thursday, June 19, 2008

In its storied history the U.S. Navy has defeated German U-boats and the British and Japanese Imperial navies, but we are about to find out if it can be whipped by whales and activist judges. Welcome to the new world of lawsuits as antiwar weapons.

The Supreme Court is currently deciding whether to take the case, National Resources Defense Council v. Donald Winter. For the sake of the U.S. military and the Constitution's separation of powers, this one deserves its day before the High Court.

Mr. Winter is Secretary of the Navy. The NRDC, a left-wing activist group that specializes in lawsuits, has sued him for conducting training exercises off the coast of California, as the Navy has done for 40 years. The NRDC claims the use of medium-frequency active sonar – a type of sonar especially useful for antisubmarine warfare – might harm whales, or at least confuse them.

When the issue was first raised eight years ago, the Bush Administration went out of its way to allay the concerns – though the Navy says that it has never harmed a whale with sonar, as far as it knows. It asked the National Oceanic and Atmospheric Administration (NOAA) to study the issue under the Endangered Species Act. NOAA gave the Navy a permit to continue to train. Just to be sure, the Navy asked for another study, under the Marine Mammals Protection Act. NOAA replied that this would take time but granted the Navy permission to continue the exercises, noting that the Navy had adopted 29 separate measures to minimize any impact on marine mammals.

None of this was good enough for the litigious greens, who sued again in March 2007 to stop the training – in the middle of a war. Enter federal judge Florence Cooper, who ordered the Navy to halt the exercises while the suit is pending. The Ninth Circuit Court of Appeals, in a rare moment of sanity, stayed the injunction "on the grounds that the district court had failed to consider the 'public interest' in having a trained and effective Navy." Talk about understatement.

This bout of clarity didn't last long. In January, Judge Cooper issued another partial injunction, allowing the exercises to proceed as long as no whales came swimming through. This time, the Ninth Circuit concurred. In response, President Bush, citing "emergency circumstances" and the "paramount interests of the United States," and implementing alternative safeguards, asked the judge to reconsider. Judge Cooper declined, saying there was no emergency. The appeals court affirmed.

The last time we checked, the executive branch was responsible for national security and the President is Commander in Chief. Having unelected judges order our troops to stand down in response to a phantom threat to whales is bad enough. But the laws at issue in this case are mere "paperwork" statutes. The Navy and Bush Administration are accused of having failed merely to complete an environmental impact statement on the possible threat to whales. Under the substantive laws intended to protect the whales, NOAA has already given the Navy the approval it needs.

Judge Cooper is a major culprit here, arbitrarily preventing the Navy from maintaining its military readiness training for the sake of compliance with a purely procedural law. But the larger problem is the culture of environmental law and litigation, which puts the speculative threat to whales above U.S. national security. The Supreme Court should leap at the chance to slap these activist litigants and judges down.