Published online 12 November 2008 | Nature | doi:10.1038/news.2008.1225

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Environmentalists concerned over potential effects on whales.

The US Supreme Court has ruled that national security trumps environmental law, at least in the case of whales and sonar. Following the decision, the Navy no longer has to stop sonar training exercises off the southern California coast if whales, dolphins and other marine mammals are spotted nearby.

In a 5-4 ruling released on 12 November, the court rejected environmentalists' arguments that the restrictions were necessary to protect the animals. The environmental concerns are "plainly outweighed by the Navy's need to conduct realistic training exercises to ensure that it is able to neutralize the threat posed by enemy submarines," Chief Justice John Roberts wrote for the majority opinion in Winter v. Natural Resources Defense Council (NRDC).

Whether, and how, sonar affects whales is hotly contested. Punchstock

In the name of security?

During oral arguments held on 8 October, Roberts had voiced concerns about national security, including "the potential that a North Korean diesel electric submarine will get within range of Pearl Harbor undetected." The ruling overturns restrictions that require the Navy to stop using sonar during certain ocean conditions and when marine mammals are spotted within 2,000 kilometres of its vessels. The restrictions were initially put in place by a federal court, but in January the White House exempted the Navy. However, the restrictions were upheld in March by an appeals court in San Francisco. The case then went to the Supreme Court.

Justices David Souter and Ruth Bader Ginsberg dissented from the decision, whereas Justices Stephen Breyer and John Paul Stevens dissented in part and consented in part.

Circumstantial evidence suggests that high-intensity mid-frequency active sonar may harm marine mammals, though the link is hotly contested. In 2005, for instance, at least 37 whales died after they beached themselves on the coast of North Carolina; at the time, Navy vessels were offshore on a deep-water training mission involving powerful sonar.

The decision specifically focused on the federal court's decision of when the Navy could or could not use its sonar, which means this was a very "narrow ruling," says Joel Reynolds, a senior attorney and director of NRDC's Marine Mammal Protection Project in Los Angeles, California. He argues that it does not set a precedent for the Navy to be exempt from environmental law in general.

A whale of a fight

Chris Parsons, a marine mammal biologist at George Mason University in Fairfax, Virginia, is not so sure. He says that the military will probably refer to this case in any future legal challenges involving environmental issues. Parsons worked with the NRDC to prepare its case, but says that he wasn't surprised by the decision after the oral arguments took place last month.

Reynolds says the NRDC will continue to "do everything it can to ensure the Navy does everything it can to reduce risk to marine mammals."

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The Navy has one training exercise remaining in the series of 14 that were under scrutiny. During the January 2009 drill, it will still have to maintain a sonar-free buffer zone for 12 nautical miles from the California coastline, monitor for marine mammals in the area and avoid key whale habitats.