Navy League joins in Supreme Court amicus brief on MFA sonar
Aug. 14, 2008

The Navy League of the United States joined nine retired Navy admirals and other military support organizations in filing a brief amicus curiae on Aug. 14 in the case now pending in the U.S. Supreme Court about the Navy's use of mid-frequency active (MFA) sonar in training exercises off the California coast, Winter v. Natural Resources Defense Council Inc., No. 07-1239.

The Navy League’s Honolulu Council has been at the forefront in the battle to permit the Navy to continue to train its Sailors effectively, and has initiated previous legal briefs in support of goal.  The Navy League and the Honolulu Council are among several military support groups from California, Hawaii, and other western states filing the brief along with the retired admirals who include: a former Chief of Naval Operations, former commanders of the Pacific and Seventh Fleets which cover the Asia-Pacific and Indian Ocean region, and commanders of the Pacific Command.  The admirals have also commanded Navy battle groups, aircraft carriers, and surface ships. 

At issue in the pending case is whether the Ninth Circuit Court of Appeals properly granted an injunction under the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321, requiring federal agencies to consider the environmental impacts of their proposed actions and reasonable alternatives to those actions.  NEPA is an informational statute and requires that agencies gather and disseminate information.  It does not, however, dictate any particular outcome. The plaintiffs also asserted the Navy violated the Coastal Zone Management Act (CZMA), 16 U.S.C. § 1451. 

After the district court enjoined the Navy's exercises because it had not completed an environmental impact statement (EIS) under NEPA and the Ninth Circuit affirmed, the Council on Environmental Quality determined that "emergency circumstances" were presented and it exercised its authority under federal regulations to exempt the Navy from NEPA.  This assessment permitted the Navy to complete the exercises without an EIS.  Additionally, President Bush earlier this year also determined that the use of MFA sonar is essential to national security and exempted the training exercises from the requirements of the CZMA. However, both the district court and the Ninth Circuit ignored these exemptions and the injunctions remained in place.

The brief presents the position that once the Navy and President balance the national security interests against the purported harm to marine mammals (of which there is no historic evidence) in favor of national security, then the U.S. Marine Mammal Protection Act exemption should trump the procedural NEPA requirements.