One thing you get when your lawsuit is taken up by the Supreme Court, aside from supportive calls from friends, is a lot of interest from the media. That happened yesterday when the Supreme Court agreed to hear NRDC v. Winter – an important case that involves the Navy’s use of mid-frequency active sonar off the California coast.
The press has reported before on the environmental damage caused by naval sonar, but as a Supreme Court matter the issue will probably be new to many readers (and many reporters), and their understanding surely wasn’t helped by the Navy’s latest round of misinformation.
For example, Navy reps reportedly said to the Associated Press that only “five whales have been stranded and 37 whales have died because of sonar since 1996.” These numbers would be true if you (1) arbitrarily threw out most of the strandings that scientists have correlated with sonar use; (2) disregarded the biology showing that sonar injures whales at sea in addition to stranding them; and (3) assumed that all of the deep-water animals killed by sonar eventually beach on shore. (In fact, the government’s own scientists say injuries and deaths would rarely be documented.)
In its environmental assessment, even the Navy admitted that its exercises would cause widespread disruption (it predicted over 170,000 significant “takes” of marine mammals) and injure as much as one-third of an entire whale population.
The role of the courts is not merely to decide abstract legal questions; another of their core functions is to make findings of fact. In this case the lower courts reviewed thousands of pages of documents and set forth those facts – concerning both harm to the marine environment and the Navy’s ability to train – in extraordinary detail. The main Ninth Circuit judgment alone runs 108 pages. There’s a fundamental disconnect between what the judges have found and what the Navy tells reporters.
In the end, the courts required the Navy to reduce harm to marine life while training with sonar. But NRDC v. Winter isn’t a case about national security vs. whales, as many of the press stories had it yesterday. It’s about a federal agency taking an extreme position utterly out of line with the facts – and getting called on it.