CPAS Press Release: "Judge Delivers 'Lawfare' Victory Against the Navy and to the Benefit of Americas Enemies"

(Washington, D.C.): Yesterday, a federal judge overruled President Bush’s January, 2008 waiver exempting the Navy from environmental statutes that the Natural Resources Defense Council (NRDC) had previously argued should prevent the Navy from conducting critical sonar training off the coast of California. In light of this ruling, the Coalition to Preserve American Sovereignty once again urges the President to withdraw his support for the Law of the Sea Treaty (LOST), the ratification of which would undoubtedly result in similarly adverse rulings against future Navy exercises and operations throughout the world.

U.S. District Court Judge Florence-Marie Cooper, in response to the NRDC’s arguments that the sonar training at issue was in violation of federal environmental law, had previously banned sonar training within twelve nautical miles of the coast, and mandated sonar shutdown procedures when the Navy spotted marine mammals. President Bush responded by exempting the Navy from the statutory requirements, declaring that the exemption would enable the Navy to train for operations essential to national security. Alarmingly, Judge Cooper’s response to this exemption was to declare that it would produce “the absurd result of permitting agencies to avoid their [environmental] obligations by re-characterizing ordinary, planned activities as ‘emergencies’ in the interest of national security…”

The Coalition notes that Judge Cooper’s decision to explicitly reject sonar training as a national security issue and re-frame it as an environmental matter underscores the folly of turning over decisions concerning our military activities to environmentally-oriented judges – either domestic or foreign – and undermines anew the Navy’s argument that the United States should become party to LOST. Ratification of LOST will greatly exacerbate the problems that the military will encounter when performing sensitive military operations in the face of environmental and other objections.

LOST contains numerous, sweeping environmental provisions requiring “protection of the marine environment”, which could create obligations to enact laws stricter than the Clean Air Act or Clean Water Act. These requirements are shaped by the European-derived “precautionary principle,” a legal tenet according to which a country must guarantee that a proposed action will not cause any environmental harm before it can proceed. LOST will subject the United States to the rulings of international dispute resolution bodies on these matters, the findings of which are binding and without appeal. If the United States ratifies LOST, we can expect many more rulings similar to that of Judge Cooper, at the expense of American security and sovereignty.