A Narrow Decision Against Whales

San Francisco -- The Supreme Court ruled this week that the Navy may proceed with its sonar training programs without complying with several important environmental safeguards for whales, dolphins, and other marine mammals.

The bad news for wildlife is that the Supreme Court -- unwisely in my view -- chose to give excessive deference to the Department of Defense's view that its proposed sonar training programs can't be tweaked to make them less dangerous to whales.

The good news is that the Court reached its decision on very narrow grounds and with a split decision, which I think minimizes the danger that in the future other executive agencies will try to get away with ignoring the impact of their programs on.

Writing for himself and four other Justices (Alito, Kennedy, Scalia, and Thomas), Chief Justice Roberts confined himself to examining just two technical factors in the test for issuing a preliminary injunction: the "balancing of the equities" and "the public interest."

The Navy had already agreed to four of the six conditions imposed by the preliminary injunction of the lower courts, but appealed two. In responding, the five-judge majority said that they didn't think the 9th Circuit had adequately weighed the harm to the marine mammals vs. the harm to naval training. That the Navy agreed to four of the conditions and appealed only two also helped its case, since even two judges who did not join Roberts's opinion -- Breyer and Stevens -- agreed with the conclusion because they felt there was inadequate evidence of what harm would result to whales from the Navy's failure to comply with the two specific conditions.

It's important to remember that the Navy is preparing a full programmatic environmental impact statement on all the issues. This Supreme Court decision involves the request for a preliminary injunction, not the final shape of the permanent program. And, unlike many government actions, such as building a road, the naval training is an ongoing program that can be modified in the future. That made the case for "irreparable injury" harder for the judges to accept.

So, while this decision could hardly be considered good news, we can take some comfort that it was a very narrow ruling that leaves the fundamental framework of wildlife-protection law intact.