Bush Scandals List

310. Bush versus the whales

NRDC v. Winter (Donald Winter, Secretary of the Navy). The Navy planned 14 training exercises using mid-frequency active (MFA) sonar off the coast of California from February 2007 to January 2009 (6 of which took place). Although its own studies predicted over the two year period 170,000 exposures of marine mammals to sound levels between 170-195 decibels, 8,000 cases of temporary sensory damage, and 466 cases of permanent injury, the Navy maintained there would be no significant impact on the environment and consequently prepared no Environmental Impact Statement in conformance with the National Environmental Policy Act (NEPA). Using a similar rationale, it submitted a pro forma notification to the California Coastal Commission (CCC) as required by the Coastal Zone Management Act which mandates federal cooperation with states in the management of coastal resources.

Environmental groups led by the National Resources Defense Counsel (NRDC) filed suit on March 22, 2007 in federal court for the Central District of California Florence-Marie Cooper presiding. They sought a temporary injunction until the Navy instituted measures to mitigate the effects of its MFA sonar on marine mammals. This could not have come as a surprise to the Navy since it had entered into an agreement with these groups in different exercises off Hawaii only 9 months before.

In August 2007 a preliminary injunction was granted but stayed on appeal by the 9th Circuit. On November 13, 2007, the case was remanded to district court. The Navy was to be permitted to hold its exercises but with proper mitigation measures in place. The government and environmental groups could not agree on these so based on presentations made to it, the court steered a middle course and issued an order on January 3, 2008 requiring a 12 nautical mile exclusion zone along the coast, better monitoring of whales, and establishment of larger safe zones around them. The order was revised for clarity on January 10, 2008. The government filed its appeal on the 11th and the court denied it a stay pending appeal on the 14th.

On January 15, 2008, President Bush exempted the Navy from compliance with the Coastal Zone Management Act (CZMA). In a written memo, he cited the act’s triggering language for an exemption asserting that the naval exercises were in the “paramount interest of the United States (Title 16 Ch. 33, Sec 1456 (c)(1)(B).

On the same day, the White House Council for Environmental Quality headed by the horrendous Jim Connaughton (see item 23) cited Title 40 of the Code of Federal Regulations Sec. 1506.11 which gave it authority to grant an exemption to environmental regulations in cases of emergency and approved “alternative arrangements” for the Navy which amounted essentially to the proposals the Navy had made to the court and which the court had found unacceptable.

With the Bush memo and CEQ statement in hand and still on the 15th, the government appealed to the 9th Circuit to vacate the district court order. The following day, the 9th Circuit again remanded the issue to the district court for consideration.

Judge Cooper issued her opinion on February 4, 2008. In it, she found that the CEQ’s “emergency” exemption to the National Environmental Protection Act (NEPA) was without merit because there was no emergency and so her order stood.

What made this something other than another Bush attack on the environment was the Constitutional issue it raised which Judge Cooper discussed but did not use in her ruling. The Bush Administration had not sought relief through the appeals process which was its right but had through its Presidential memo and CEQ opinion attempted to nullify the order of a federal court by means of administrative fiat. This was a violation of the separation of powers since Congress can not vest the Executive with the right to review the decision of a federal court. In the case of the CEQ, the violation of this principle was clear. As for the CZMA, it was more nuanced. Per its language, the President was required to wait until a federal court had weighed in before issuing an exemption. This he had done. The question was whether such an action obligated the court in any way to vacate its injunction. If Bush had granted an exemption due to a deficiency in the underlying law, he might have had a point. As it was, he wished to change a legal result he didn’t like. Under separation of powers, his recourse was and is to appeal the decision in the courts, not unilaterally change it on his own. This case is important because it illustrates the Bush Administration’s Constitutional overreach, its disregard for the environment, and its refusal to accept a fair and duly arrived at compromise.

On June 23, 2008, the Supreme Court agreed to review the case. On November 12, 2008, the Supreme Court in a 5-4 decision written by Roberts and with Breyer voting vague vacated the lower court’s stay which limited the Navy’s use of sonar and accused the lower court of abusing its discretion. Roberts pointedly declared that his opinion wasn’t addressing the merits of the NRDC’s case but in the mendacious and convoluted writing that marks his opinions he made it clear that if the Navy wanted it that was good enough for him, and no one had shown that sea mammals were being irreparably harmed anyway, and even if they were, he didn’t care. The usual klatch of arch-conservatives on the Court endorsed this view.

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