Sonar Over Whales

In its first opinion of the term, the Supreme Court has rejected an environmental group's efforts to sharply limit Naval submarine training off the coast of California, saying national security issues strongly outweigh any alleged harm to marine mammals.

The decision, written by Chief Justice John Roberts, allows the Navy to conduct submarine exercises in the Pacific without two conditions imposed by lower courts.

The exercises involve the use of sonar to detect and track enemy submarines. The National Resources Defense Council filed suit to impose conditions, arguing the exercises harm whales and other mammals. Lower courts sided with the NRDC, and required the Navy to take several steps to mitigate any possible harm to the marine life. The Navy challenged two of those conditions as being too disruptive to its required training.

In lifting a lower court order, Roberts wrote: "The public interest in conducting training exercises with active sonar under realistic conditions plainly outweighs the interests advanced by the plaintiffs. Of course, military interests do not always trump other considerations, and we have not held that they do. In this case, however, the proper determination of where the public interest lies does not strike us as a close question.

According to our colleague Luis Martinez, the decision has produced "big smiles" up at the Navy offices. The Navy had argued that two of the conditions, including an order that the Navy shut down sonar if it detects a marine mammal within 2,220 feet, would disrupt training exercises.

While the case may not have seemed like a "close question" to five justices, it certainly was to the other four.

The case produced three separate opinions, and a head-count is tricky. (This is a problem we don't usually get until those big end-of-term cases, when we often see justices joining only part of a decision or writing separately.)

Here's how I see it now, after a quick run through: Bottom line: Six of the justices are siding with the Navy, which had challenged two specific conditions on training imposed by lower courts.

The details: Roberts has a five-justice majority for his opinion (Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas, Samuel Alito).

Justice John Paul Stevens is the wild card: He did not join Roberts' majority opinion, but he nonetheless agreed with the Navy that lower courts had no basis to impose the two stringent conditions on training.

Justice Stephen Breyer sided with the Navy, in part, but would have allowed lower courts to impose some conditions on training while the Navy completed an environmental study.

Justices Ruth Bader Ginsburg wrote a sharp dissent, joined by Justice David Souter, detailing the "likely, substantial harm" to the environment by the Naval training.

You can read more about the case in Ariane de Vogue's story, HERE.

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