Whales and Sonar: Environmental Exemptions for the Navy's Mid-Frequency Active Sonar Training

Congressional research reportFeb 18, 2009

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Prepared for Members and Committees of Congress

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Mid-frequency active (MFA) sonar emits pulses of sound from an underwater transmitter to help

determine the size, distance, and speed of objects. The sound waves bounce off objects and reflect

back to underwater acoustic receivers as an echo. MFA sonar has been used since World War II,

and the Navy indicates it is the only reliable way to track submarines, especially more recently

designed submarines that operate more quietly, making them more difficult to detect.

Scientists have asserted that sonar may harm certain marine mammals under certain conditions,

especially beaked whales. Depending on the exposure, they believe that sonar may damage the

ears of the mammals, causing hemorrhaging and/or disorientation. The Navy agrees that the sonar

may harm some marine mammals, but says it has taken protective measures so that animals are

not harmed.

MFA training must comply with a variety of environmental laws, unless an exemption is granted

by the appropriate authority. Marine mammals are protected under the Marine Mammal

Protection Act (MMPA) and some under the Endangered Species Act (ESA). The training

program must also comply with the National Environmental Policy Act (NEPA), and in some

cases the Coastal Zone Management Act (CZMA). Each of these laws provides some exemption

for certain federal actions. The Navy has invoked all of the exemptions to continue its sonar

training exercises.

Litigation challenging the MFA training off the coast of Southern California ended with a

November 2008 U.S. Supreme Court decision. The Supreme Court said that the lower court had

improperly favored the possibility of injuring marine animals over the importance of military

readiness. The Supreme Court’s ruling allowed the training to continue without the limitations

imposed on it by other courts.

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Introduction ..................................................................................................................................... 1

Marine Mammal Protection Act (MMPA)....................................................................................... 2

Endangered Species Act (ESA) ....................................................................................................... 3

National Environmental Policy Act (NEPA) ................................................................................... 4

Coastal Zone Management Act (CZMA) ........................................................................................ 4

Mid-Frequency Active Sonar Litigation.......................................................................................... 5

Legal Analysis ................................................................................................................................. 9

Table 1. Listed Species Found Off the California Coast ............................................................... 12

Table 2. Litigation Timeline .......................................................................................................... 13

Table 3. Mitigation Measures ........................................................................................................ 14

Author Contact Information .......................................................................................................... 15

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The use of sonar in Navy training exercises has been contentious. Some argue that the noise

harms marine mammals. Others note that a well-trained military is a national priority. In the case

of mid-frequency active sonar training exercises, the controversy was brought before the U.S.

Supreme Court. The Supreme Court did not consider the merits of the action—meaning it did not

evaluate whether the Navy had met all of its environmental obligations in preparing for the

training—but it held that the Navy could not be enjoined from training in this case based on the

evidence of merely the possibility of harming marine life.1 This report will discuss that litigation.

Mid-frequency active (MFA) sonar emits pulses of sound from an underwater transmitter to help

determine the size, distance, direction, and speed of objects. The sound waves bounce off objects

and reflect back to underwater acoustic receivers as an echo.2 MFA sonar has been used since

World War II, and, according to the Navy, “is the only reliable way to identify, track, and target

submarines.”3 MFA sonar has a range of up to 10 nautical miles (nm). Active sonar differs from

passive sonar in that passive sonar only receives sound waves and does not emit them. The Navy

indicates that passive sonar is ineffective at detecting quiet submarines, such as those that run on

batteries.

To prepare its fleet, the Navy conducts training exercises on a regularly scheduled rotation. This

report considers the MFA training exercises conducted off the coast of California, which have

been challenged on environmental grounds.4

Scientists have suggested that MFA sonar may harm some marine mammals, especially beaked

whales. Some opponents have noted that the sonar is emitted at 170 to 195 dB, eight to more than

10 times louder than levels for which OSHA requires hearing protection for humans.5 However,

noise intensities in air and water are different because of the different densities of the media and

cannot be directly compared. Excessive noise can rupture the ears of mammals, or can disorient

the animals so that they surface too quickly, giving them what is commonly called “the bends,”

when nitrogen is released from solution in the blood, which can be fatal.

The Navy agrees that the sonar could harm marine mammals under certain circumstances, but

argues that the Navy takes additional protective measures to prevent harm. In a press release of

December 20, 2007, the Navy indicated that it takes 29 mitigation measures to protect marine

mammals during sonar exercises, and that no injuries have been attributed to sonar use since the

measures were put in place in January 2007.6

Winter v. NRDC, 129 S. Ct. 365 (2008).

For more on the Navy’s sonar program, see online at http://www.navy.mil/oceans/sonar.html.

http://www.navy.mil/oceans/sonar.html.

For a broader discussion of active sonar, see CRS Report RL33133, Active Military Sonar and Marine Mammals:

Events and References, by Eugene H. Buck and Kori Calvert.

See 29 C.F.R. § 1910.95(a).

Navy Invests in Protecting Marine Mammals, Navy Story Number NNS071220-22 (December 20, 2007), online at

http://www.navy.mil/search/print.asp?story_id=34061&VIRIN=&imagetype=0&page=1.The cause of death of a

dolphin in the area of sonar use has not been determined, although hemorrhaging in the ears and ear canals was found.

Kenneth R. Weiss, Dolphin Dies Near Sonar Site, Los Angeles Times (February 22, 2007).

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The Navy’s program could affect marine mammals that are protected under the Marine Mammal

Protection Act (MMPA) and some under the Endangered Species Act (ESA). The training

program must also comply with the National Environmental Policy Act (NEPA) and in some

cases, the Coastal Zone Management Act (CZMA). Each of these laws has provisions where a

federal action may be exempted from full compliance. The Navy has invoked exemptions under

each of these laws to continue this program.

This report will discuss each of these laws generally, and then review the litigation surrounding

the Navy’s compliance with these laws in the context of mid-frequency active sonar for training

purposes off California’s coast.

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The Marine Mammal Protection Act (MMPA) (16 U.S.C. §§ 1361 et seq.) prohibits harming

marine mammals so that their populations would not diminish below their “optimal sustainable

population.”7 The MMPA is intended to “protect essential habitats ... for each species of marine

mammal from the adverse effect of man’s actions.”8 The act imposes a moratorium on the taking

of or transporting marine mammals or products from marine mammals.9 Moratorium is defined in

the act as “a complete cessation.”10 There are exceptions, however. Some of those exceptions

were created by amendments in 2003 in the National Defense Authorization Act of 2004 to allow

for military readiness exercises and national defense.

Maritime military actions may be exempt from the MMPA if, after conferring with the Secretary

of Commerce, the Secretary of Defense determines the actions are necessary for national

defense.11 The exemption may apply for up to two years and additional exemptions are allowed.

Congress must be given notice of the exemption.

The MMPA has other adjustments for military actions. The MMPA has a different definition for

harassment when conducted as part of a military readiness activity. Under the 2003 Amendments,

the two types of harassment were redefined for military readiness activities: “Level A

harassment,” meaning an act that injures or has the significant potential to injure a marine

mammal or marine mammal stock; and “Level B harassment,” meaning the act disturbs or is

likely to disturb a marine mammal or marine mammal stock by causing disruption of behavioral

patterns, such as migration, breathing, nursing, breeding, feeding, or sheltering, to a point where

such behavioral patterns are abandoned or significantly altered.12 This is distinct from the other

definition of harassment, which is an act that

16 U.S.C. § 1361(2).

16 U.S.C. § 1371(a).

16 U.S.C. § 1362(8).

P.L. 108-136, § 319(f), 117 Stat. 1434.

P.L. 108-136, § 319, 117 Stat. 1433; 16 U.S.C. § 1362(18). These definitions also apply to federal scientific research

activity.

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(i) has the potential to injure a marine mammal or marine mammal stock in the wild; or

(ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by

causing disruption of behavioral patterns, including, but not limited to, migration, breathing,

nursing, breeding, feeding, or sheltering. 16 U.S.C. § 1362(18).

In other words, more harm is required for military readiness activities before they rise to the

statutory level of harassment.

The other aspect of the MMPA that is different for the Department of Defense than for others is

the provision for incidental take permits. For any taking, it must be shown that the activity will

make “the least practical adverse impact on such species or stock and its habitat.”13 As mentioned

earlier, activities for the national defense are exempt if invoked. For military readiness activities,

the factors to consider in determining the least practical adverse impact include personnel safety,

practicality of implementation, and impact on the effectiveness of the activity.14

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The Endangered Species Act (ESA) (16 U.S.C. §§ 1531 et seq.) protects certain species and their

habitats. It is illegal under the ESA to harm a species that has been listed as endangered (a species

that is in danger of extinction).15 Additional protections are provided for threatened species (a

species that is likely to become an endangered species within the foreseeable future).16 While the

MMPA protects marine mammals, the ESA covers only those marine mammals that are listed.

Just as under the MMPA, the ESA has some exceptions. The law provides that species may be

killed or harmed without penalty if the injury is incidental to a lawful purpose and certain

procedures are followed.17 Actions by the federal government, including the military, require the

agency to consult with either the Secretary of Commerce or the Secretary of the Interior to ensure

that the project is not likely to jeopardize the continued existence of any endangered or threatened

species or result in destruction or adverse modification of critical habitat.18 This process is called

a Section 7 consultation. The Secretary is required to use the “best scientific and commercial data

available” to identify whether any endangered or threatened species may be present, in which

case the agency will prepare a biological assessment to identify any such species likely to be

affected. The Secretary must issue an incidental take statement with reasonable and prudent

alternative actions for the agency to take if the action is likely to jeopardize a species. If a “no

jeopardy” conclusion is reached, the incidental take statement will specify reasonable and prudent

measures to take to minimize impacts of the action. Where a marine mammal is involved, the

incidental take statement must also consider compliance with the MMPA.19

16 U.S.C. § 1371(5)(A)(i)(II)(aa).

P.L. 108-136, 319, 117 Stat. 1434; 16 U.S.C. § 1371(a)(5)(A)(ii).

16 U.S.C. § 1538.

16 U.S.C. § 1532(20).

16 U.S.C. §§ 1536(o)(2), 1539.

16 U.S.C. § 1536(a)(2).

16 U.S.C. § 1536(b)(3)(C).

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The purpose of the National Environmental Policy Act (NEPA) is to have federal agencies

consider the impacts of their actions on the environment.20 For major federal actions that

significantly affect the environment, an agency is required to produce an environmental impact

statement (EIS), evaluating the environmental impact, any adverse environmental effects of the

proposed action, and alternatives to the action. When an agency is not certain that its action will

significantly affect the environment, it will prepare an environmental assessment (EA). The EA

also considers the environmental impacts and alternatives, but is not as in-depth as the EIS. If the

EA concludes that there are no significant impacts, no EIS is required, and a Finding of No

Significant Impact (FONSI) is issued.

There is no blanket exemption for NEPA, although alternative arrangements may be provided in

the case of emergencies, and certain statutes excuse specific actions from compliance. Under the

regulation applying to emergencies, 40 C.F.R. § 1506.11, the Council on Environmental Quality

(CEQ), an office of the White House, may allow an agency to take different steps to be in

compliance, or allow an action to commence prior to completion of the required review. Section

1506.11 states:

Where emergency circumstances make it necessary to take an action with significant

environmental impact without observing the provisions of these regulations, the Federal

agency taking the action should consult with the Council about alternative arrangements.

Agencies and the Council will limit such arrangements to actions necessary to control the

immediate impacts of the emergency. Other actions remain subject to NEPA review.

According to CEQ, this provision has been requested just 41 times since the regulations took

effect in 1978.21 It provides for alternative provisions for those instances where there is not

enough time to complete the required environmental document, but limits those alternatives to

just what is necessary to “control the immediate impacts of the emergency.”

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The Coastal Zone Management Act (CZMA) sets up a scheme for states to manage their coastal

resources with federal oversight.22 States develop coastal management plans (CMP) that regulate

private and public development of coastal resources. Coastal zone is defined under the act to

include coastal waters and adjacent shorelands “strongly influenced by each other.”23 The plans

must be approved by the Secretary of Commerce. The state must find that actions that could

affect coastal resources are consistent with its CMP. If so, the state will issue a certificate of

consistency. Once the state has made its final determination, if the federal agency objects to the

state’s conclusions, it may bring the matter before the Secretary of Commerce. Where the

42 U.S.C. § 4332.

Information obtained via written communication with CEQ (January 22, 2008).

P.L. 92-583, 86 Stat. 1280 (1972); 16 U.S.C. § 1451 et seq.

16 U.S.C. § 1453(1). A state’s coastal waters generally reach three nautical miles (nm) beyond its shores. 43 U.S.C. §

1301.

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Secretary finds that the project was consistent with the objectives of the CZMA, or necessary for

national security, the state decision may be overturned.

An exemption from the CZMA is provided within the law, giving the President the right to excuse

a federal agency from complying with a state CMP if the action is in the paramount interest of the

United States. However, it is not available until after a court has ruled against the federal agency:

After any final judgment, decree, or order of any Federal court that is appealable ... or under

any other applicable provision of Federal law, that a specific Federal agency activity is not in

compliance with subparagraph (A), and certification by the Secretary that mediation under

subsection (h) of this section is not likely to result in such compliance, the President may,

upon written request from the Secretary, exempt from compliance those elements of the

Federal agency activity that are found by the Federal court to be inconsistent with an

approved State program, if the President determines that the activity is in the paramount

interest of the United States. No such exemption shall be granted on the basis of a lack of

appropriations unless the President has specifically requested such appropriations as part of

the budgetary process, and the Congress has failed to make available the requested

appropriations.24

After a court has ruled an action conflicts with a state’s CMP, the President may find that the

action is of paramount interest to the nation, and exempt the federal agency from the measures

imposed upon it by the court.25

There is no private right of action under the CZMA, so suits brought by non-parties to challenge

an activity must be brought under the Administrative Procedure Act (APA).

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The battle over sonar use in Navy training exercises and the impact on marine mammals has been

ongoing for years. Legal challenges to the use of low-frequency sonar were brought before the

District Court for the Northern District of California, but were settled by the Navy in 2008.26 The

challenges to the use of MFA sonar began in the District Court for the Central District of

California. The lead plaintiff in the MFA cases is the Natural Resources Defense Council

(NRDC); four other environmental groups are plaintiffs, as well as Jean-Michel Cousteau. The

defendants include the Secretary of the Navy and the National Marine Fisheries Service (NMFS)

of the Department of Commerce.

The first decision in the MFA challenge was issued in August 2007.27 It granted a preliminary

injunction to halt the eleven remaining Navy training exercises that were planned. The plaintiffs

claimed that the Navy had violated three laws: ESA, NEPA, and CZMA. The court agreed that

16 U.S.C. § 1456(c)(1)(B).

In a decision dated February 4, 2008, a federal judge suggested that this provision may be unconstitutional when it

was used not to change an underlying law but to revise a court decision. The court stated that this could have the effect

of the President acting as a reviewing court in violation of Article III of the Constitution. NRDC v. Winter, 527 F.

Supp. 2d 1216 (C.D. Cal. 2008). This report does not evaluate this argument.

NRDC v. Gutierrez, No. 07-4771-EDL (N.D. Cal. August 12, 2008) (order approving the settlement agreement

wherein the Navy agreed to limit low-frequency sonar training to certain areas of the Pacific Ocean, rather than the

worldwide scope as originally planned).

NRDC v. Winter, 2007 WL 2481037 (C.D. Cal. August 7, 2007).

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the plaintiffs were likely to prevail on their claims under the CZMA and NEPA and issued the

injunction, but held that the ESA claim was not likely to succeed. Since neither NEPA nor CZMA

provides a separate right for litigation, the court reviewed claims brought related to these statutes

under the standard set by the APA—to see whether the agency action was arbitrary and

capricious.

The Navy had prepared an EA-FONSI under NEPA, concluding that there were no significant

adverse environment effects that would require an EIS. Among the adverse environmental affects

the environmental review estimated to occur as a result of the training exercises were 170,000

incidents of Level B harassment to marine mammals, 466 permanent injuries to beaked or ziphiid

whales (some of which are endangered), and 28 Temporary Threshold Shift exposures to

endangered blue, fin, humpback, sei, and sperm whales. The court said it was likely to be held

that the Navy should have prepared an EIS after finding these effects, and that the Navy did not

adequately review alternatives to its training plan.

The court also found that there was a likelihood that the Navy violated the CZMA. According to

the Navy, the MFA training was consistent with the state CMP because it would not affect

California’s coastal resources, and the Navy did not need to adopt the mitigation measures

California deemed necessary. The court suggested that the Navy’s determination that its exercises

would not harm coastal resources could be found arbitrary and capricious.

The court issued a preliminary injunction, halting the training activities until a full review could

be conducted. The Navy appealed, and on August 31, 2007, the Ninth Circuit Court of Appeals

stayed the injunction, meaning the injunction was put aside, but not rejected outright.28 Later, in

November, the Ninth Circuit dissolved the stay, meaning the Navy was again enjoined from

conducting MFA exercises.29 The case was remanded to the district court, with instructions from

the Ninth Circuit that the injunction should be fitted to the circumstances.

On January 3, 2008, the district court again issued a preliminary injunction, stopping the Navy

from conducting MFA training unless certain mitigation measures were taken. According to the

court order, those measures were

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12-mile exclusion zone off California coast,

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2200-yard sonar shut down,

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60-minute monitoring period using two trained monitors at all times and using

helicopters,

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for active dipping sonar, helicopter monitoring for 10 minutes,

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where surface ducting conditions are found, sonar reduced by 6 dB,

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no MFA in Catalina basin, because it is a choke point for animals,

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no MFA within 5 nautical miles (nm) of San Clemente Island, and

NRDC v. Winter, 502 F.3d 859 (9th Cir. 2007).

NRDC v. Winter, 508 F.3d. 885 (9th Cir. 2007).

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mitigation measures from the 2007 National Defense Exemption (“NDE II”) to

the MMPA unless they are not as strict as this order.30

•

A second order on January 10, 2008, was issued to clarify the January 3, 2008,

decision.

•

On January 10, 2008, the Navy wrote CEQ asking for alternative arrangements to

NEPA that would allow them to conduct the remaining training exercises as

scheduled. CEQ said the Navy indicated that some of the mitigation measures

required by the district court would “create a significant and unreasonable risk

that Strike Groups will not be able to train and be certified as fully mission

capable.”31 On January 15, 2008, CEQ provided alternative arrangements that

paralleled the 2007 NDE mitigation measures (see Table 3).

•

Also on January 15, 2008, the President of the United States exempted the Navy

exercises from compliance with the CZMA, using the authority under 16 U.S.C.

§ 1456(c)(1)(B). In the memorandum granting the exemption, the President

stated that “the use of mid-frequency active sonar in these exercises [is] in the

paramount interest of the United States.”

•

After the two exemptions granted on January 15, the Navy applied to the Ninth

Circuit to vacate the injunction. The Ninth Circuit remanded the action to the

district court on January 16, 2008.32

•

On February 5, 2008, the district court reconsidered the preliminary injunction in

light of the developments. The court held that the CEQ had acted arbitrarily and

capriciously in granting alternative arrangements to the Navy when there was no

actual emergency:

CEQ apprehended the phrase “emergency circumstances” to refer to sudden, unanticipated

events, not the unfavorable consequences of protracted litigation. CEQ’s contrary

interpretation in this case is “plainly erroneous and inconsistent” with the regulation and,

concomitantly, not entitled to deference.33

The court held that the Navy still had to comply with NEPA. Therefore, its injunction remained in

place and the Navy could conduct MFA training only if it used the mitigation measures required

by the court. The court stated that public interest was best served by requiring those mitigation

measures. In that way the Navy would have the benefit of conducting training, and the natural

resources would have limited harm from the training. The court reviewed, but did not rule on, the

CZMA exemption.

The Navy moved to have the injunction stayed, but the Ninth Circuit denied the request.34 On

February 29, 2008, the Ninth Circuit rejected the Navy’s appeal of the preliminary injunction.35 It

NRDC v. Winter, 530 F. Supp. 2d 1110 (C.D. Cal. 2008). See Table 3 for the mitigation measures.

Letter from James L. Connaughton, Chairman, CEQ, to Donald C. Winter, Secretary of the Navy (January 15, 2008),

p. 3, available online at http://www.whitehouse.gov/ceq/Letter_from_Chairman_Connaughton_to_Secretary_

Winter.pdf.

NRDC v. Winter, 513 F. 3d 920 (9th Cir. 2008).

NRDC v. Winter, 527 F. Supp. 2d 1216, 1229 (C.D. Cal. 2008).

NRDC v. Winter, 516 F.3d 1103 (9th Cir. 2008).

NRDC v. Winter, 518 F. 3d 658 (9th Cir. 2008).

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found that CEQ’s interpretation of emergency circumstances was “overly broad.”36 The Ninth

Circuit described the course of litigation that ended in the injunction as “a series of events [that]

gives rise to a predictable outcome” and not a sudden and unexpected occurrence. The Ninth

Circuit compared it to CEQ’s response to Hurricane Katrina, in which alternative arrangements

were provided because “there was not sufficient time to follow the regular EIS process.”37

In a separate opinion, the Ninth Circuit modified two of the mitigation measures required by the

district court.38 The Ninth Circuit allowed the 2,200-yard suspension to remain in place unless the

training was at “a critical point in the exercise,” in which case the Navy would reduce the sonar

by 6 dB if a marine mammal was detected within 1,000 m., 10 dB if within 500 m., and suspend

the activity if within 200 m. The second modification was for when significant surface ducting

conditions were detected. Rather than shutting down the training, as required by the district court,

the Ninth Circuit required the Navy to reduce the decibels of the activity. (See Table 3 for

details.) Therefore, the Navy can conduct its training exercises provided it uses the mitigation

measures indicated by the court. The Navy petitioned the U.S. Supreme Court to review the Ninth

Circuit decision.39

The Supreme Court reviewed two claims brought by the Navy: whether the CEQ acted within its

authority to grant the alternative arrangements, and whether the injunction based on NEPA

violations was appropriate. In a 5-4 decision, the majority of the Supreme Court held that the

balance of public interests favored allowing the training to continue. It did not review the merits

of the case. Instead, the majority ruled that the district court did not consider the correct balance

of public interests. The majority found that the public interest in national defense outweighed the

public interest in protecting marine mammals:

we conclude that the balance of equities and consideration of the overall public interest in

this case tip strongly in favor of the Navy. For the plaintiffs, the most serious possible injury

would be harm to an unknown number of the marine mammals that they study and observe.

In contrast, forcing the Navy to deploy an inadequately trained antisubmarine force

jeopardizes the safety of the fleet.40

The dissenting opinion focused on the balance of interests in the context of NEPA.41 Rather than

an issue of a well-trained military versus animal safety, it considered the issue as what harm

would occur to the Navy by delaying training until it complied with NEPA.42 Based on that view

of the case, the dissenters found the balance weighed in favor of protecting the marine mammals.

The dissenters indicated that the Navy’s agreement to prepare an EIS after the training was

completed was contrary to the purpose of the statute.

Only the dissenting opinion discussed the alternative arrangements provided by CEQ. The

opinion said, “CEQ lacks authority to absolve an agency of its statutory duty to prepare an EIS,”

NRDC v. Winter, 518 F.3d 658, 680 (9th Cir. 2008).

NRDC v. Winter, 518 F.3d 658, 682 (9th Cir. 2008).

NRDC v. Winter, 2008 U.S. App. LEXIS 4458, *4 (9th Cir. February 29, 2008).

NRDC v. Winter, No. 07-1239 (March 31, 2008).

Winter v. NRDC, 129 S. Ct. 365 (2008) (JJ. Roberts, Scalia, Kennedy, and Thomas).

Two justices participated in this opinion (JJ. Ginsberg and Souter). Two others concurred in part and dissented in

part (JJ. Breyer and Stevens).

The majority had discussed the EA, finding that, at 293 pages, it evidenced a hard look at the environmental

consequences of the training.

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indicating that legislative options were available to the Navy. The legislative option would be to

obtain a statutory exemption from NEPA for the training program.

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The injunction ultimately was put in place by a holding that CEQ had been arbitrary and

capricious in granting an emergency exception under NEPA. A legal analysis of the court’s

decision is somewhat hampered by the few court decisions and the brief regulatory history of

Section 1506.11. CEQ has recorded only 41 instances where it was contacted to obtain alternative

arrangements since the regulation went into place in 1978, and only three (until this case) have

led to published decisions.43 While the dissenting opinion openly challenges the authority of the

CEQ to circumvent NEPA, noting that alternative arrangements are issued based on a “one-sided

record,” it is persuasive authority only, and not legal precedent for interpreting the regulation.

Section 1506.11 was part of the initial regulations created for CEQ to implement NEPA in

response to an Executive Order.44 The regulation has no direct statutory authority, but can be

supported by 42 U.S.C. § 4331(b), which states it is the responsibility of the U.S. government to

“use all practicable means, consistent with other essential considerations of national policy” to

consider the environmental impacts of its actions.45 The final version of the alternative

arrangements regulation differed only slightly from the draft. The initial wording had said that

under emergency circumstances “the Federal agency proposing to take the action should consult

with the Council about alternative arrangements.”46 Out of concern that the regulation could be

construed as requiring consultation before an emergency occurred,47 the regulation was modified

to read as follows:

Where emergency circumstances make it necessary to take an action with significant

environmental impact without observing the provisions of these regulations, the Federal

agency taking the action should consult with the council about alternative arrangements.

Agencies and the council will limit such arrangements to actions necessary to control the

immediate impacts of the emergency. Other actions remain subject to NEPA review.48

The regulation has not changed since then.

Two other court decisions refer to alternative arrangements by CEQ, but the emergency exemption was not in

dispute. See Miccosukee Tribe of Indians of Florida v. United States, 509 F. Supp. 2d 1288, 1291 (M.D. Fla. 2007)

(discussing how the Corps of Engineers obtained alternative arrangements for a temporary operating plan); NRDC v.

Peña, 20 F. Supp. 2d 45, 50 (D.D.C. 1998) (discussing that if the CEQ issued alternative arrangements, the DOE could

act before completing the NEPA document required by the court’s order).

43 Fed. Reg. 25230 (June 9, 1978) (draft regulations); 43 Fed. Reg. 55978 (November 29, 1978) (final regulations).

Executive Order 11991 (June 9, 1978).

The dissenting opinion in Winter v. NRDC, No. 07-1339 (November 12, 2008) appeared to have trouble with the

congressional authority behind the regulation. The dissent said that a “rapid, self-serving resort to an office in the White

House ... is surely not what Congress had in mind when it instructed agencies to comply with NEPA ‘to the fullest

extent possible.’”

43 Fed. Reg. 25230, 25243 (June 9, 1978).

43 Fed. Reg. 55978, 55988 (November 29, 1978).

43 Fed. Reg. 55978, 55988 (November 29, 1978); 40 C.F.R. § 1506.11.

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The court in the MFA cases found CEQ had acted beyond the scope of Section 1506.11 when it

provided alternative actions for the Navy to conduct rather than requiring the Navy to complete

an EIS as directed by the court. Courts give agencies deference regarding the interpretation of

their regulations, including the emergency provision, and the CEQ’s interpretation of its

regulations is entitled to substantial deference.49 However, where an agency’s interpretation defies

the plain meaning of a regulation, courts have rejected the agency’s interpretation.50 That has not

happened before in the context of the NEPA emergency provision.

The few courts that have considered challenges to a CEQ alternative arrangement have upheld the

CEQ’s determination. Those requests included agencies seeking alternative arrangements for

these actions:

•

capturing all remaining California condors to remove them from the wild;

•

releasing HUD funding for an urban redevelopment project in Detroit; and

•

allowing night flights from an Air Force base to assist in Operation Desert Storm.

The alternative arrangements illustrated by these cases differ from the MFA alternative

arrangements by the fact that each of these agency actions was backed by a satisfactory NEPA

document, either before or after the action.51 In the instant case, the only NEPA document, an EAFONSI, was found insufficient.

A reviewing court will look at the underlying agency action to decide whether the CEQ’s

determination is rational. In the case of the California condor, the court considered why the Fish

and Wildlife Service (FWS) had changed its policy. The EA-FONSI preferred alternative had

been to leave some condor in the wild and to capture others. The district court had found no

emergency because FWS had reviewed the situation just months earlier in an EA. The D.C.

Circuit reversed, holding that the district court erred in substituting its judgment for the CEQ. The

D.C. Circuit found that FWS had a rational basis for changing its policy, especially in light of the

lead poisoning death of a condor in an area believed safe. The court said that once it had

determined that the underlying agency decision “reflects sufficient attention to environmental

concerns and is adequately reasoned and explained” its review was completed.52 The capture was

consistent with the alternatives examined in the EA-FONSI. The MFA sonar case differs in that

the underlying EA-FONSI has been found insufficient. Also, the court suggested the Navy lacked

a rational basis for declaring the training exercises an emergency.

The emergency in the case of Detroit was not one of military readiness. Instead, it was argued that

a major corporation would leave the city if funding were not provided for an urban renewal

project, putting the city in immediate financial peril. The Department of Housing and Urban

Andrus v. Sierra Club, 442 U.S. 347, 358 (1979); Warm Springs Dam Task Force v. Gribble, 417 U.S. 1301, 13091310 (1974).

Thomas Jefferson University v. Shalala, 512 U.S. 504, 512 (1994)(“we must defer to the Secretary’s interpretation

unless an ‘alternative reading is compelled by the regulation’s plain language or by other indications of the Secretary’s

intent at the time of the regulation’s promulgation’” (quoting Gardebring v. Jenkins, 485 U.S. 415, 430 (1988)); Bowles

v. Seminole Rock and Sand, 325 U.S. 410, 414 (1945)(“the ultimate criterion is the administrative interpretation, which

becomes of controlling weight unless it is plainly erroneous or inconsistent with the regulation”).

See also Miccosukee Tribe of Indians of Florida v. United States, 509 F. Supp. 2d 1288, 1291 (M.D. Fla. 2007)

(referring to how CEQ required an EIS after the alternative arrangements were completed).

National Audubon Society v. Hester, 801 F.2d 405, 407 (D.C. Cir. 1986).

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Development (HUD) was allowed to release funding prior to the completion of an EIS.53 The EIS

was subsequently completed. This differs from the MFA alternative arrangements in which an EIS

was waived, rather than deferred.

The only military action reviewed by the courts in response to a challenge to the application of

Section 1506.11 related to night flights out of an Air Force base. An EIS completed years earlier

had supported the decision that flights would not occur between the hours of 10 pm and 7 am.

However, concurrent with the U.S. commitment of forces to Operation Desert Storm, the Air

Force began 24-hour operations out of that base. The plaintiffs asked the Air Force to conduct a

supplemental EIS prior to the flights, but the Air Force sought alternative arrangements from the

CEQ. The alternative arrangements proposed by CEQ allowed the flights to continue and allowed

the Air Force to prepare an EA within the year. The court considered whether the Air Force or

CEQ had been arbitrary and capricious in allowing the NEPA exception.54 The court found that

“the crisis in the Middle East” was an emergency. The court noted that the Air Force was

particular in describing the emergency need: “defendants have pointed to specific military

concerns with regard to troop redeployment, flight scheduling, cargo transport, and other

operations that necessitate the use of Westover AFB for C-5A operations on a twenty-four hour

basis.”55

In the instant case, the court distinguished the facts from the Air Force exception, noting the Air

Force’s circumstances had changed after an EIS had been prepared, but in this case no change had

occurred. Also, the court criticized the Navy’s characterization of the emergency, noting that these

routine training exercises had been planned for a long time, and suggesting that the Navy was

seeking ways to avoid preparing the EIS ordered by the court. The court said CEQ had not used

the plain meaning of “emergency.”56 The court found CEQ chose mitigation measures that had

already been rejected by the court. According to the court, this “raises serious constitutional

concerns under the Separation of Powers doctrine,” but the court found that because CEQ’s

application of Section 1506.11 was invalid, it did not need to examine the constitutional issue.57

The Ninth Circuit agreed with the rationale of the lower court, noting that there was no national

security or military exemption within NEPA.58

Crosby v. Young, 512 F. Supp. 1353 (E.D. Mich. 1981).

Valley Citizens for a Safe Environment v. Vest, 1991 WL 330963 (D. Mass. May 6, 1991).

Valley Citizens for a Safe Environment v. Vest, 1991 WL 330963, *5 (D. Mass. May 6, 1991).

NRDC v. Winter, 527 F. Supp. 2d 1216, 1229-30 (C.D. Cal. 2008).

NRDC v. Winter, 527 F. Supp. 2d 1216, 1232 (C.D. Cal. 2008).

NRDC v. Winter, 518 F.3d 658, 684-85 (9th Cir. 2008), cert. granted sub nom. Winter v. NRDC, No. 07-1239 (June

23, 2008).

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Table 1. Listed Species Found Off the California Coast

Classification

Common Name

Scientific Name

Salmon, Chinook CA Central Valley spring-run

Salmon, Chinook CA coastal

Salmon, Chinook winter Sacramento R.

Salmon, Coho OR, CA pop.

Salmon, Coho central CA coast

Sea turtle, green except where endangered

Sea turtle, leatherback

Sea turtle, loggerhead

Sea turtle, olive ridley except where endangered

Sea-lion, Steller eastern pop.

Sea-lion, Steller western pop.

Seal, Guadalupe fur

Steelhead Central Valley CA

Steelhead central CA coast

Steelhead northern CA

Steelhead south central CA coast

Steelhead southern CA coast

Blue whale

Finback whale

Humpback whale

Killer Southern whale Resident DPS

Sei whale

Sperm whale

Oncorhynchus (=Salmo) tshawytscha

Oncorhynchus (=Salmo) kisutch

Chelonia mydas

Dermochelys coriacea

Caretta caretta

Lepidochelys olivacea

Eumetopias jubatus

Arctocephalus townsendi

Oncorhynchus (=Salmo) mykiss

Balaenoptera musculus

Balaenoptera physalus

Megaptera novaeangliae

Orcinus orca

Balaenoptera borealis

Physeter catodon (=macrocephalus)

Information obtained from Fish and Wildlife Service website: http://ecos.fws.gov/tess_public/

StateListing.do?status=listed&state=CA.

Source:

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Table 2. Litigation Timeline

Date

Action

August 7,

2007

August 31,

2007

November

13, 2007

Preliminary injunction

granted.

Injunction stayed.

NRDC v. Winter, 8:07-cv-00335-FMC-FMOx, 2007 WL 2481037

(C.D. Cal. Aug. 7, 2007)

NRDC v. Winter, 502 F.3d 859 (9th Cir. 2007)

Ninth Circuit dissolves stay.

Remands to district court to

narrow injunction.

District court enjoins Navy,

but allows training if certain

measures are taken.

Navy seeks stay pending

appeal.

District court issues modified

injunction.

President exempts Navy from

CZMA, pursuant to 16 U.S.C.

§ 1456(c)(1)(B).

CEQ issues alternative

arrangements under NEPA

for Navy, pursuant to 50

C.F.R. § 1506.11.

Ninth Circuit remands to

district court to consider Jan.

15 actions.

District court finds that

CEQ’s actions were arbitrary

and restores injunction.

Ninth Circuit rejects Navy’s

motion for a stay.

Ninth Circuit affirms

preliminary injunction.

Ninth Circuit modifies two

mitigation measures, allowing

sonar reduction when at

critical point of the exercise

and during surface ducting

conditions.

Navy petitions the U.S.

Supreme Court to review the

Ninth Circuit decision.

U.S. Supreme Court finds in

favor of the Navy.

NRDC v. Winter, 508 F.3d. 885 (9th Cir. 2007)

January 3,

2008

January 9,

2008

January 10,

2008

January 15,

2008

January 15,

2008

January 16,

2008

February 4,

2008

February

19, 2008

February

29, 2008

February

29, 2008

March 31,

2008

November

12, 2008

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Decision

NRDC v. Winter, 530 F. Supp. 2d 1110 (C.D. Cal. 2008)

Online at http://www.whitehouse.gov/ceq/

Letter_from_Chairman_Connaughton_to_Secretary_Winter.pdf

NRDC v. Winter, 513 F. 3d 920 (9th Cir. 2008)

NRDC v. Winter, 527 F. Supp. 2d 1216 (C.D. Cal. 2008)

NRDC v. Winter, 516 F.3d 1103 (9th Cir. 2008)

NRDC v. Winter, 518 F.3d 658 (9th Cir. 2008)

NRDC v. Winter, 2008 U.S. App. LEXIS 4458 (9th Cir. Feb. 29, 2008)

NRDC v. Winter, No. 07-1239 (March 31, 2008)

Winter v. NRDC,129 S. Ct. 365 (2008)

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Table 3. Mitigation Measures

(data gleaned from court documents; may be incomplete)

Type of

Action

Powering

down sonar

Lookouts

2007 NME

Plaintiffs

Reduce by 6 dB when

marine mammals

spotted within 1,000

m.; reduce another 4

dB when within 500

m.; shut down sonar

at 200 m.

2 dedicated, and 3

non-dedicated marine

mammal lookouts,

provide lookouts with

binoculars, night

vision goggles, and

infrared sensors.

Helicopters

Geographical

Restrictions

Outside Channel

Islands Nat’l Marine

Sanctuary;

5 nautical miles (nm)

from western shore

of San Clemente

Island; 3 nm from its

other shores.

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25 nm coastal

exclusion;

excluded from

Catalina Basin;

excluded from

the Westfall

seamount;

excluded from

Court

CEQ

2200 yd. sonar shut down

when animals are spotted;

reduce by 6 dB

where surface ducting

conditions are found

——

Modified by Ninth Circuit:

if during “critical point in

the exercise,” reduction

by 6 dB if within 1000 m.,

10 dB if within 500 m., and

suspend the activity if

within 200 m.

Surface ducting

modification:

reduce by 6 dB if within

2,000 m., 10 dB within

1,000 m., and suspend

sonar use if within 500 m.

60-minute monitoring

period prior to each day’s

training; two NMFS

trained monitors at all

times during exercise;

passive acoustic

monitoring to be used to

the maximum extent

practicable; use

helicopters.

At least one dedicated

helicopter for monitoring;

aerial monitoring to begin

60 mins before and

throughout training;

additional helicopter

monitoring 10 minutes

before active dipping

sonar.

12 mile exclusion zone off

California coast;

barred in Catalina basin;

5 nm exclusion from

western shore of San

Clemente Island.

Reduce by 6dB if within

1,000 m.; reduce by

additional 4 dB if within

500 m.; shut down

transmissions at 200 m.

2 lookouts and 3 nondedicated

watchstanders.

“Aerial platforms” will

monitor during their

missions.

5 nm exclusion from

western shore of San

Clemente Island.

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Type of

Action

Changes for

Migration

2007 NME

Plaintiffs

Cortez and

Tanner Banks;

and

exercises

located to the

maximum

extent possible

in waters

deeper than

1,500 m.

Court

CEQ

Aerial monitoring for

60 mins before MFA

exercises along

Tanner & Cortez

Banks during blue

whale migration (July

to Sept. 2008);

pre-exercise

monitoring of gray

whale migration

patterns between

March 7-21, 2008, and

April 15 - May 15,

2008.

Other

Navy to submit afteraction reports to

NMFS 120 days after

any exercise.

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Kristina Alexander

Legislative Attorney

kalexander@crs.loc.gov, 7-8597

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.