Court Weighs Concerns on Whales and Military

NEW YORK TIMES - WASHINGTON — On the one hand, there is “the potential for harm to marine mammals,” Chief Justice John G. Roberts Jr. said Wednesday at a Supreme Court argument over the Navy’s use of sonar in training exercises off the coast of Southern California.

On the other, the chief justice continued, there is “the potential that a North Korean diesel electric submarine will get within range of Pearl Harbor undetected” if Navy personnel are not properly trained in the use of sonar.

“Now, I think that’s a pretty clear balance,” Chief Justice Roberts said.

Other justices also indicated an inclination to overturn a decision from the United States Court of Appeals for the Ninth Circuit, in San Francisco, imposing limits on the exercises, saying either that national security concerns trumped environmental ones or that judges are not competent to weigh the competing interests.

“I don’t know anything about this,” Justice Stephen G. Breyer said. “I’m not a naval officer.” But he said he was inclined to believe, in the absence of evidence to the contrary, a sworn statement from an admiral saying the restrictions would harm military preparedness.

Richard B. Kendall, a lawyer for the Natural Resources Defense Council, which had sued the Navy over the exercises, insisted that courts have an important role to play in protecting whales and dolphins even when the executive branch asserts a national security interest.

“The Navy cannot be judge of its own cause,” Mr. Kendall said.

The two sides agreed that sonar can harm marine mammals, but they disagreed about how much. Mr. Kendall said sonar produces noise as loud as 2,000 jet engines and that some whales die or become stranded in their frantic efforts to avoid it.

Gregory G. Garre, the United States solicitor general, said the impact on the animals was minor and passing. “They hear the sound, and they go in the opposite direction,” Mr. Garre said. “It can also mean that they could have some temporary effect on their feeding or breeding patterns.”