Original URL: http://www.theregister.co.uk/2008/02/07/judge_bush_sonar_dolphins_whales_legal_fracas/

US navy-v-dolphins judge says Bush can't overrule her

Beneath-the-waves waiver waived

By Lewis Page

Posted in Science, 7th February 2008 10:15 GMT

A federal beak whose judgement against US Navy sonar exercises in waters off California was countermanded by George Bush has now ruled that the President's order was invalid. The dispute has arisen following assertions by environmentalist groups that naval sonars cause harm to marine mammals such as whales and dolphins.

US District judge Florence Marie Cooper said the recent White House exemption allowing naval exercises to proceed despite her earlier injunction was flawed. She said it was issued on the ground that an emergency existed, when there was none.

"The Navy's current 'emergency' is simply a creature of its own making, i.e., its failure to prepare adequate environmental documentation in a timely fashion," Cooper wrote in a 36-page filing.

The sonar in question is mid-frequency active equipment, used to search for submarines relatively close to warships by pinging sound pulses into the water and listening for the reflected echoes. Equipment of this type has been in use since WWII.

During the 1990s, the theory gained prominence that naval sonar was responsible for many incidents of whales beaching and other instances of harm to marine creatures - especially those using biological sonar.

Some have theorised that in fact the perceived surge in sonar-related whale and dolphin deaths or injury might be due to the use of low-frequency active sonar, which has only come into naval vogue in modern times. Low-frequency sonar is able to achieve much longer detection ranges than mid-frequency; and whales are thought to use sound for communication and perhaps sensing over very long distances.

However, environmental groups contend that all active sonar* is injurious to marine mammals and that it should only be used under heavy restrictions. This point has not been settled in court; Judge Cooper's injunction was temporary, pending a final judgement. It said that USN warships were not to use mid-frequency active sonar within 12 miles of the California coast, and placed other restrictions on them.

The federal beak also said that President Bush's exemption was "constitutionally suspect".

AFP coverage can be read here. ®

*Passive sonar is listening-only kit, which sends out no pings but rather listens for noises emitted by enemy machinery or propellors. It was very popular in the Cold War for tracking noisier older-generation Soviet subs without giving away the location of NATO shadowers. As Soviet and then Russian boats became quieter, however, passive sonar became less useful and nowadays it is seldom employed.