Tuesday, February 05, 2008

Whales - 1; Bush - 0

Via Moderate Man, a federal judge has ruled that President George Bush does not have the authority to grant an exemption to the US Navy from the provisions of the National Environmental Policy Act.

The USN had sought an exemption from the requirement to remain clear of whale and dolphin habitats when conducting mid-frequency sonar operations off the southern California coast.
A federal judge rejected on Monday President Bush's attempt to exempt the Navy from environmental laws protecting endangered whales from sound waves caused by underwater sonar blasts during anti-submarine training off the Southern California coast.

Bush issued an order Jan. 15 that sought to override the judge's order limiting the Navy's use of sonar in Channel Islands waters frequented by whales and other marine mammals. The president said the restrictions would interfere with military exercises that are essential to national security.'

But U.S. District Judge Florence-Marie Cooper of Los Angeles said Monday that Bush lacked authority in this case to suspend the National Environmental Policy Act, on which her earlier order was based.

That law requires federal agencies to examine environmental damage that their actions might cause and propose measures to prevent the harm. Cooper - who had found that the Navy failed to follow those requirements - said federal regulations, in place since 1978, allow the president to override the environmental law only in an emergency.

"The Navy's current 'emergency' is simply a creature of its own making ... its failure to prepare adequate environmental documentation in a timely fashion," Cooper said in a 36-page ruling. The only thing that has changed since environmental groups sued the Navy in March 2007 to protect the whales, she said, is that the Navy lost a court ruling that it wants the president to overturn.

The judge also called Bush's order constitutionally suspect because he cited no new arguments, other than those the Navy had already offered in court, but simply reached a different conclusion from hers - a task that the Constitution assigns to appellate courts, not the president or Congress. But Cooper said she didn't have to decide the constitutional issue because the order was invalid on other grounds, that the president lacked the authority to suspend environmental policy.

The mid-frequency active sonar used by the USN is irritating even at a distance. If you get close enough to an SQS-53 it'll eventually drive you mad. Given that marine mammals, particularly whales and dolphins, rely heavily on sound and echolocation to both navigate and locate food, there is every possibility that the high power emission of a shipborne sonar, particularly the higher powered SQS-53C, would interfere significantly with marine life.

Dolphins and smaller whales use frequencies for echolocation and communications estimated to be in the range of 0.1 to 200 kHz; the AN/SQS 53 sonar uses a frequency range of 3 to 192 kHz.

So, it looks like Bush has just had his imperious ego whacked by a bunch of activist whales.

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