STIRLING: Security vs. species preservation

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COMMENTARY:

This Wednesday, the U.S. Supreme Court will hear a case that could define how we approach national security.

Whatever one thinks of the war on terror or U.S. military activities in Iraq and Afghanistan, most Americans feel strongly that our men and women in uniform should have the most advanced equipment, weaponry and protective gear and be thoroughly prepared through training and practice to protect our national security.

Environmentalist organizations, on the other hand, believe federal environmental laws trump national security and the American military personnel who provide it.

That's why they filed a lawsuit against the U.S. Navy to stop its sonar training exercises off the coast of Southern California. Why? Because they claim marine mammals like the beaked whale - listed as "threatened" under the Endangered Species Act - were harmed when the sonar waves move through the ocean.

But for more than 40 years, the Navy has conducted training exercises with mid-frequency active (MFA) sonar and no incidents of harm or large-scale whale-beachings attributable to the exercises have been recorded. The Navy even recently issued a lengthy environmental assessment stating there were no documented incidents of harm, injury or death to marine mammals resulting from exposure to sonar in the Southern California training area.

What's more, the National Marine Fisheries Service, the federal agency responsible for protecting and preserving marine mammals under the Endangered Species Act and related statutes, issued a Biological Opinion concluding that the Navy's use of sonar was not likely to jeopardize the continued existence of any listed species. Nevertheless, a federal district court restricted the Navy's use of sonar so severely as to negate the training value of the exercise. But this will only serve to hurt our national security efforts.

With the quiet-running diesel-electric submarines used by erratic and unfriendly nations operating in the western Pacific and Middle East, the Navy regards its training exercises as the only effective means to prepare its strike groups to detect submarines before they close within weapons range.

The Navy believes restrictions on the use of sonar impose unacceptable risks to the timely deployment of strike groups to the Middle East and to national security. And the president issued an exemption to "enable the Navy to train effectively and to certify ... strike groups for deployment" in support of operational and combat activities "essential to national security."

Despite these clear statements of the importance of the sonar training exercises, the U.S. 9th Circuit Court of Appeals upheld the district court's restrictions on the use of sonar, declaring, "The armed forces must take precautionary measures to comply with the [environmental] law during its training."

It's this elevation of the environmental laws to thwart national security preparedness that caused the Supreme Court to take up the case, Natural Resources Defense Council v. Donald C. Winter, Secretary of the Navy.

Hopefully, the court will set aside the long-held notion within the federal judiciary that the Endangered Species Act is a super statute that trumps all other public considerations. This faulty line of thinking got its start in the 1978 Supreme Court decision in TVA v. Hill (the snail darter case) where it declared Congress intended the ESA to preserve plant and wildlife species "whatever the cost."

Since the court's unfortunate use of that imperious phrase, federal district and appellate courts have regularly elevated species preservation above all other socially beneficial public interests.

Some of the better-known examples of this disturbing trend include: drilling halted for domestic sources of oil and natural gas because of listed species; timber harvests stopped in the name of the northern spotted owl, causing overgrown forests to be threatened by catastrophic wildfire; shutting off passage of river water to households and farmers during drought conditions for the benefit of fish; stopping construction of hurricane barrier gates out of concern for shrimp and shell fish - gates that would have protected New Orleans from Katrina's deadly storm surge.

In deciding Winter v. NRDC, the Supreme Court could do the country a great and long overdue service by correcting the general misunderstanding of the ESA's species-preservation bias that followed the court's language - "whatever the cost." Removal of that mandate would restore to trial court judges their traditional role of weighing and balancing the equities between species preservation and competing economic and social public benefits.

Of course, litigious environmentalist organizations like those that filed the suit would vehemently oppose such a reasonable outcome, so holding one's breath is not recommended.

David Stirling is vice president of the Pacific Legal Foundation (www.pacificlegal.org), which filed a Supreme Court brief in Winter v. NRDC. He is the author of the new book, "Green Gone Wild - Elevating Nature Above Human Rights" www.greengonewildbook.com.