While progressives everywhere are basking in the knowledge that liberal Democrats now control two of the three estates of the federal government, it is worth remembering that despite the voters' mandate, the Right still controls (barely, by a one-vote margin) the third: namely, the Supreme Court. And the right-wing Federalist Society dogmatists now sitting on the court are not only capable, but extremely likely, to wreak havoc with that mandate.
We received an unpleasant reminder of that reality this week:
The nation's need for Navy sailors to practice using sonar to guard against enemy submarines "plainly outweighs" any legal requirement to protect orcas and other marine mammals, the U.S. Supreme Court ruled Wednesday, turning back environmentalists' efforts to restrict sonar use during naval training exercises.
Quoting a 1907 statement by President Theodore Roosevelt -- "the only way in which a navy can ever be made efficient is by practice at sea" -- the high court's five-member conservative majority said lower courts had improperly restricted naval exercises off Southern California.
But the justices in the majority stopped short of endorsing a Bush administration attempt to justify using a controversial White House waiver to justify the exercises.
When the lower court's ruling was announced earlier this year, it appeared to be a significant win for environmentalists, not to mention the cetaceans affected by these tests. It was also a win for the rule of law, considering the Bush administration's egregious lawbreaking in attempting to foist these tests on us.
But the court took care not to address that issue:
Ginsburg noted that the Navy took the "extraordinary" step of going to the White House's Council on Environmental Quality to obtain a waiver.
"To justify its course, the Navy sought dispensation not from Congress, but from an executive council that lacks authority to countermand or revise (legal) requirements," she wrote.
The majority opinion sidestepped that issue.
These tests are likely causing these creatures real harm, particularly the cetaceans that have echolocation capabilities, because they are so sensitive to sonic events (it is their primary way of "seeing"). It appears even to be killing some of them, particularly the porpoises that have washed up looking like this.
The ruling's effects on wildlife are likely to be profound, especially in areas with endangered populations of cetaceans, such as the Puget Sound, where the resident killer whales have been listed under the ESA, and whose most recent population count showed yet another decline.
As the Center for Whale Research reported when the sonar was tested in the Puget Sound's canyon walls back in 2003, both orcas and porpoises were profoundly disturbed by these tests. Some 15 harbor porpoises washed up dead in short order. (More details on the tests and their aftermath can be found at the Orca Network and at LFAS.net).
The most aggravating aspect of this is that the Navy has never attempted to demonstrate that it these tests and practices must be conducted without any consideration of the surrounding environment -- that is, they're insisting they be able to conduct them at any time and under any situation, regardless of impact.
No doubt these considerations would inconvenience the Navy, but it has never demonstrated that the tests cannot be conducted without making the appropriate situational assessments. It just wants to conduct them at its own convenience, and the public -- and the animals -- be damned.
If you're interested in getting a glimpse of the sonic world these creatures inhabit, check out the video I made last summer, which features sounds I captured through a hydrophone of killer whales communicating. The photos and sounds were taken at very nearly the same exact location as the whales you see in the video atop the post during those sonar tests.