The Navy Sonar Case and Kelo

You may have been wondering why we've been closely following the U.S. Supreme Court arguments in Winter v. Natural Resources Defense Council, Inc., No. 07-1239, the case about the Navy's use of mid-frequency active sonar in training exercises off the California coast. Well, besides the fact that we filed an amicus brief in the case on behalf of nine retired Admirals and several service support groups (posted here), the case has the potential for affecting more than marine mammals and the Navy's use of sonar, because the Court has been asked by the government and amici to examine the standards applicable to injunctions in NEPA cases.  

Professor Gideon Kanner has posted two items about the case recently, reminding us why the larger issue -- when the courts should defer to the judgment of the other two branches -- is important.

The first is "Did Environmental Quibbling Facilitate the Attack on Pearl Harbor. You Tell Us," in which he shares the interesting history of the possibility that "environmental" concerns prevented the placement of a radar station in Haleakala National Park months before Pearl Harbor that might have changed the history of December 7, 1941. Food for thought.

His second post, "No Hobgoblinry at the New York Times" compares the New York Times' recent editorial on the Winter case, "The Navy, Whales and the Court" in which the Times states the Court should not defer to the Navy's judgment on how to train sonar operators, with the Times' position on Kelo v. City of New London, 545 U.S. 469 (2005). The Times' editorial asserts:

Few justices are truly expert in most of the issues they confront. Yet they have no qualms about ruling on cases that involve complex political, social, economic, scientific or medical issues. The courts have rightly stepped in to second-guess the government’s handling of terrorism cases in the midst of the so-called war on terror. Surely the Supreme Court has the ability to judge whether the military should be allowed to flout environmental laws with a dubious claim of national security.

Yet, the Times lauded Kelo's deference to the city of New London's judgment that Mrs. Kelo was not making good enough use of her property enough to warrant keeping it.  Professor Kanner writes:

So the bottom line appears to be that by the Times’ lights, judges must defer to any one-horse village’s self-serving determination that taking the land of others and giving it to a favored redeveloper who thinks he can build a private business on it and make oodles of money, some of which may (or may not) trickle down to the community, meets the constitutional “public use” standard. But the same judges are free, indeed obliged, to overrule the considered judgment of military experts on highly technical matters of undersea warfare and the needs of national defense, and must not defer to them.

My Damon Key colleague Mark Murakami has posted a resource page about the Winter case, with links to all of the briefs and selected media coverage here.