When Whale It End?

by David Nieporent on May 17, 2007

Environmental groups keep suing the United States Navy (See: Oct. 2004, Jul. 2006, and Mar. 2006) over its use of sonar, on the speculative theory that sonar hurts whales. Now they’re at it again, filing a lawsuit yesterday in federal court in Hawaii. This time it’s Earthjustice, suing on behalf of the Ocean Mammal Institute, the Animal Welfare Institute, KAHEA, the Center for Biological Diversity, and the Surfrider Foundation, trying to stop naval exercises off the coast of Hawaii. (PDF copy of complaint.)

Regardless of what one thinks of the merits of using sonar or privileging whales over national security, it’s absurd that federal judges — experts, we think, neither in marine biology nor submarine warfare — should be the ones deciding these policy questions. But it’s more absurd that these issues get to be relitigated over and over and over again. Of course environmental groups are the ones filing these repeated lawsuits, but in the big picture, the blame for this situation should be laid at the feet of Congress, which passes vague environmental laws which create broad standing allowing infinite numbers of random bystanders to sue without having to suffer tangible personal harm. (“I like looking at whales.”) And, perhaps worse than the vagueness of the laws is the fact that so many of these laws simply exist to create a zillion procedural hoops to jump through. (To provide an idea of these hoops, this complaint alone alleges the following causes of action:

  • Failure to provide public notice and an opportunity to comment in violation of Administrative Procedure Act and National Environmental Policy Act
  • Failure to prepare an Environmental Impact Statement in violation of Administrative Procedure Act and National Environmental Policy Act
  • Issuance of an inadequate Environmental Assessment in violation of Administrative Procedure Act and National Environmental Policy Act
  • Issuance of an inadequate Biological Opinion in violation of Administrative Procedure Act and Endangered Species Act
  • Failure to consult with the Hawaii State Coastal Zone Management Program For Undersea Warfare Exercises in violation of Administrative Procedure Act and Coastal Zone Management Act

Have your eyes glazed over yet?)

Whatever the appropriate policy balance to be struck here, it should probably be determined by Congress, and it should definitely be decided once and for all, rather than each and every time a submariner sneezes. If the Navy is to be required to use specific types of sonar or other equipment, or is to be denied permission to operate in certain locales, or whatever, then there ought to be a statute or regulation which spells these rules out explicitly, rather than allowing activist groups to rush to court on a weekly basis to get a judge to decide.

{ 4 comments }

1 Melvin 05.17.07 at 10:29 am

Shouldn’t there be some point when a group(s) keep suing over the same issue, that the court can expedite the hearing, and declare the lawsuits either frivilous or, better yet, declare the group(s)/individual(s) doing this as vexatious litigants? No wonder the courts are overloaded–we see the same thing with Christmas displays and 10 Commandments displays on public property, amongst others. (Maybe there should be a cooling-off period: The same people/groups, if you lose twice, can’t sue again for a period of, say, 5 years.)

2 David Nieporent 05.17.07 at 10:44 am

Melvin, first, they’re often different environmental groups filing the different suits, and second, what they do is sue over the way the Navy is conducting a particular naval exercise, so it’s technically not the “same issue” in each suit.

The suits are not legally frivolous; they’re permitted by existing law. That’s why I want to point the blame at Congress here, for allowing this type of situation to develop.

3 Deoxy 05.17.07 at 11:37 am

“not legally frivolous” includes all KINDS of ridiculous things that 99% of the non-lawyers in this country could pick out in a heartbeat.

4 Bob Smith 05.17.07 at 1:17 pm

Why isn’t the military exempt from a bunch of this stuff?

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