Whales and Sonar: Environmental Exemptions for the Navy's Mid-Frequency Active Sonar Training

Whales and Sonar: Environmental Exemptions for
the Navy’s Mid-Frequency Active Sonar Training
Updated November 14, 2008
Kristina Alexander
Legislative Attorney
American Law Division

Whales and Sonar: Environmental Exemptions for
the Navy’s Mid-Frequency Active Sonar Training
Mid-frequency active (MFA) sonar emits pulses of sound from an underwater
transmitter to help determine the size, distance, and speed of objects. The sound
waves bounce off objects and reflect back to underwater acoustic receivers as an
echo. MFA sonar has been used since World War II, and the Navy indicates it is the
only reliable way to track submarines, especially more recently designed submarines
that operate more quietly, making them more difficult to detect.
Scientists have asserted that sonar may harm certain marine mammals under
certain conditions, especially beaked whales. Depending on the exposure, they
believe that sonar may damage the ears of the mammals, causing hemorrhaging
and/or disorientation. The Navy agrees that the sonar may harm some marine
mammals, but says it has taken protective measures so that animals are not harmed.
MFA training must comply with a variety of environmental laws, unless an
exemption is granted by the appropriate authority. Marine mammals are protected
under the Marine Mammal Protection Act (MMPA) and some under the Endangered
Species Act (ESA). The training program must also comply with the National
Environmental Policy Act (NEPA), and in some cases the Coastal Zone Management
Act (CZMA). Each of these laws provides some exemption for certain federal
actions. The Navy has invoked all of the exemptions to continue its sonar training
Litigation challenging the MFA training off the coast of Southern California
ended with a November 2008 U.S. Supreme Court decision. The Supreme Court said
that the lower court had improperly favored the possibility of injuring marine animals
over the importance of military readiness. The Supreme Court’s ruling allowed the
training to continue without the limitations imposed on it by other courts.

In troduction ......................................................1
Marine Mammal Protection Act (MMPA)..............................2
Endangered Species Act (ESA).......................................4
National Environmental Policy Act (NEPA).............................4
Coastal Zone Management Act (CZMA)................................5
Mid-Frequency Active Sonar Litigation................................6
Legal Analysis...................................................10
List of Tables
Table 1. Listed Species Found Off the California Coast...................14
Table 2. Litigation Timeline........................................15
Table 3. Mitigation Measures.......................................16

Whales and Sonar:
Environmental Exemptions
for the Navy’s Mid-Frequency
Active Sonar Training
The use of sonar in Navy training exercises has been contentious. Some argue
that the noise harms marine mammals. Others note that a well-trained military is a
national priority. In the case of mid-frequency active sonar training exercises, the
controversy was brought before the U.S. Supreme Court. The Supreme Court did not
consider the merits of the action — meaning it did not evaluate whether the Navy had
met all of its environmental obligations in preparing for the training — but it held
that the Navy could not be enjoined from training in this case based on the evidence1
of merely the possibility of harming marine life. This report will discuss that
Mid-frequency active (MFA) sonar emits pulses of sound from an underwater
transmitter to help determine the size, distance, direction, and speed of objects. The
sound waves bounce off objects and reflect back to underwater acoustic receivers as2
an echo. MFA sonar has been used since World War II, and, according to the Navy,
“is the only reliable way to identify, track, and target submarines.”3 MFA sonar has
a range of up to 10 nautical miles (nm). Active sonar differs from passive sonar in
that passive sonar only receives sound waves and does not emit them. The Navy
indicates that passive sonar is ineffective at detecting quiet submarines, such as those
that run on batteries.
To prepare its fleet, the Navy conducts training exercises on a regularly
scheduled rotation. This report considers the MFA training exercises conducted off
the coast of California, which have been challenged on environmental grounds.4
Scientists have suggested that MFA sonar may harm some marine mammals,
especially beaked whales. Some opponents have noted that the sonar is emitted at

1 Winter v. NRDC, No. 07-1239 (November 12, 2008).
2 For more on the Navy’s sonar program, see online at [http://www.navy.mil/oceans/sonar.
3 [http://www.navy.mil/oceans/sonar.html].
4 For a broader discussion of active sonar, see CRS Report RL33133, Active Military Sonar
and Marine Mammals: Events and References, by Eugene H. Buck and Kori Calvert.

170 to 195 dB, eight to more than 10 times louder than levels for which OSHA
requires hearing protection for humans.5 However, noise intensities in air and water
are different because of the different densities of the media and cannot be directly
compared. Excessive noise can rupture the ears of mammals, or can disorient the
animals so that they surface too quickly, giving them what is commonly called “the
bends,” when nitrogen is released from solution in the blood, which can be fatal.
The Navy agrees that the sonar could harm marine mammals under certain
circumstances, but argues that the Navy takes additional protective measures to
prevent harm. In a press release of December 20, 2007, the Navy indicated that it
takes 29 mitigation measures to protect marine mammals during sonar exercises, and
that no injuries have been attributed to sonar use since the measures were put in place
in January 2007.6
The Navy’s program could affect marine mammals that are protected under the
Marine Mammal Protection Act (MMPA) and some under the Endangered Species
Act (ESA). The training program must also comply with the National Environmental
Policy Act (NEPA) and in some cases, the Coastal Zone Management Act (CZMA).
Each of these laws has provisions where a federal action may be exempted from full
compliance. The Navy has invoked exemptions under each of these laws to continue
this program.
This report will discuss each of these laws generally, and then review the
litigation surrounding the Navy’s compliance with these laws in the context of mid-
frequency active sonar for training purposes off California’s coast.
Marine Mammal Protection Act (MMPA)
The Marine Mammal Protection Act (MMPA) (16 U.S.C. §§ 1361 et seq.)
prohibits harming marine mammals so that their populations would not diminish7
below their “optimal sustainable population.” The MMPA is intended to “protect
essential habitats ... for each species of marine mammal from the adverse effect of8
man’s actions.” The act imposes a moratorium on the taking of or transporting
marine mammals or products from marine mammals.9 Moratorium is defined in the

5 See 29 C.F.R. § 1910.95(a).
6 Navy Invests in Protecting Marine Mammals, Navy Story Number NNS071220-22
(December 20, 2007), online at [http://www.navy.mil/search/print.asp?story_id=34061&
V IRIN=&i ma ge type=0&page=1].
The cause of death of a dolphin in the area of sonar use has not been determined,
although hemorrhaging in the ears and ear canals was found. Kenneth R. Weiss, Dolphin
Dies Near Sonar Site, Los Angeles Times (February 22, 2007).
7 16 U.S.C. § 1361(2).
8 16 U.S.C. § 1361(2).
9 16 U.S.C. § 1371(a).

act as “a complete cessation.”10 There are exceptions, however. Some of those
exceptions were created by amendments in 2003 in the National Defense
Authorization Act of 2004 to allow for military readiness exercises and national
Maritime military actions may be exempt from the MMPA if, after conferring
with the Secretary of Commerce, the Secretary of Defense determines the actions are
necessary for national defense.11 The exemption may apply for up to two years and
additional exemptions are allowed. Congress must be given notice of the exemption.
The MMPA has other adjustments for military actions. The MMPA has a
different definition for harassment when conducted as part of a military readiness
activity. Under the 2003 Amendments, the two types of harassment were redefined
for military readiness activities: “Level A harassment,” meaning an act that injures
or has the significant potential to injure a marine mammal or marine mammal stock;
and “Level B harassment,” meaning the act disturbs or is likely to disturb a marine
mammal or marine mammal stock by causing disruption of behavioral patterns, such
as migration, breathing, nursing, breeding, feeding, or sheltering, to a point where
such behavioral patterns are abandoned or significantly altered.12 This is distinct
from the other definition of harassment, which is an act that
(i) has the potential to injure a marine mammal or marine mammal stock in the
wild; or
(ii) has the potential to disturb a marine mammal or marine mammal stock in the
wild by causing disruption of behavioral patterns, including, but not limited to,
migration, breathing, nursing, breeding, feeding, or sheltering. 16 U.S.C. §


In other words, more harm is required for military readiness activities before they rise
to the statutory level of harassment.
The other aspect of the MMPA that is different for the Department of Defense
than for others is the provision for incidental take permits. For any taking, it must
be shown that the activity will make “the least practical adverse impact on such
species or stock and its habitat.”13 As mentioned earlier, activities for the national
defense are exempt if invoked. For military readiness activities, the factors to
consider in determining the least practical adverse impact include personnel safety,14
practicality of implementation, and impact on the effectiveness of the activity.

10 16 U.S.C. § 1362(8).
11 P.L. 108-136, § 319(f), 117 Stat. 1434.
12 P.L. 108-136, § 319, 117 Stat. 1433; 16 U.S.C. § 1362(18). These definitions also apply
to federal scientific research activity.
13 16 U.S.C. § 1371(5)(A)(i)(II)(aa).
14 P.L. 108-136, 319, 117 Stat. 1434; 16 U.S.C. § 1371(a)(5)(A)(ii).

Endangered Species Act (ESA)
The Endangered Species Act (ESA) (16 U.S.C. §§ 1531 et seq.) protects certain
species and their habitats. It is illegal under the ESA to harm a species that has been
listed as endangered (a species that is in danger of extinction).15 Additional
protections are provided for threatened species (a species that is likely to become an
endangered species within the foreseeable future).16 While the MMPA protects
marine mammals, the ESA covers only those marine mammals that are listed.
Just as under the MMPA, the ESA has some exceptions. The law provides that
species may be killed or harmed without penalty if the injury is incidental to a lawful17
purpose and certain procedures are followed. Actions by the federal government,
including the military, require the agency to consult with either the Secretary of
Commerce or the Secretary of the Interior to ensure that the project is not likely to
jeopardize the continued existence of any endangered or threatened species or result18
in destruction or adverse modification of critical habitat. This process is called a
Section 7 consultation. The Secretary is required to use the “best scientific and
commercial data available” to identify whether any endangered or threatened species
may be present, in which case the agency will prepare a biological assessment to
identify any such species likely to be affected. The Secretary must issue an incidental
take statement with reasonable and prudent alternative actions for the agency to take
if the action is likely to jeopardize a species. If a “no jeopardy” conclusion is
reached, the incidental take statement will specify reasonable and prudent measures
to take to minimize impacts of the action. Where a marine mammal is involved, the
incidental take statement must also consider compliance with the MMPA.19
National Environmental Policy Act (NEPA)
The purpose of the National Environmental Policy Act (NEPA) is to have
federal agencies consider the impacts of their actions on the environment.20 For
major federal actions that significantly affect the environment, an agency is required
to produce an environmental impact statement (EIS), evaluating the environmental
impact, any adverse environmental effects of the proposed action, and alternatives
to the action. When an agency is not certain that its action will significantly affect
the environment, it will prepare an environmental assessment (EA). The EA also
considers the environmental impacts and alternatives, but is not as in-depth as the
EIS. If the EA concludes that there are no significant impacts, no EIS is required,
and a Finding of No Significant Impact (FONSI) is issued.

15 16 U.S.C. § 1538.
16 16 U.S.C. § 1532(20).
17 16 U.S.C. §§ 1536(o)(2), 1539.
18 16 U.S.C. § 1536(a)(2).
19 16 U.S.C. § 1536(b)(3)(C).
20 42 U.S.C. § 4332.

There is no blanket exemption for NEPA, although alternative arrangements
may be provided in the case of emergencies, and certain statutes excuse specific
actions from compliance. Under the regulation applying to emergencies, 40 C.F.R.
§ 1506.11, the Council on Environmental Quality (CEQ), an office of the White
House, may allow an agency to take different steps to be in compliance, or allow an
action to commence prior to completion of the required review. Section 1506.11
Where emergency circumstances make it necessary to take an action with
significant environmental impact without observing the provisions of these
regulations, the Federal agency taking the action should consult with the Council
about alternative arrangements. Agencies and the Council will limit such
arrangements to actions necessary to control the immediate impacts of the
emergency. Other actions remain subject to NEPA review.
According to CEQ, this provision has been requested just 41 times since the
regulations took effect in 1978.21 It provides for alternative provisions for those
instances where there is not enough time to complete the required environmental
document, but limits those alternatives to just what is necessary to “control the
immediate impacts of the emergency.”
Coastal Zone Management Act (CZMA)
The Coastal Zone Management Act (CZMA) sets up a scheme for states to
manage their coastal resources with federal oversight.22 States develop coastal
management plans (CMP) that regulate private and public development of coastal
resources. Coastal zone is defined under the act to include coastal waters and
adjacent shorelands “strongly influenced by each other.”23 The plans must be
approved by the Secretary of Commerce. The state must find that actions that could
affect coastal resources are consistent with its CMP. If so, the state will issue a
certificate of consistency. Once the state has made its final determination, if the
federal agency objects to the state’s conclusions, it may bring the matter before the
Secretary of Commerce. Where the Secretary finds that the project was consistent
with the objectives of the CZMA, or necessary for national security, the state
decision may be overturned.
An exemption from the CZMA is provided within the law, giving the President
the right to excuse a federal agency from complying with a state CMP if the action
is in the paramount interest of the United States. However, it is not available until
after a court has ruled against the federal agency:
After any final judgment, decree, or order of any Federal court that is appealable
... or under any other applicable provision of Federal law, that a specific Federal

21 Information obtained via written communication with CEQ (January 22, 2008).
22 P.L. 92-583, 86 Stat. 1280 (1972); 16 U.S.C. § 1451 et seq.
23 16 U.S.C. § 1453(1). A state’s coastal waters generally reach three nautical miles (nm)
beyond its shores. 43 U.S.C. § 1301.

agency activity is not in compliance with subparagraph (A), and certification by
the Secretary that mediation under subsection (h) of this section is not likely to
result in such compliance, the President may, upon written request from the
Secretary, exempt from compliance those elements of the Federal agency activity
that are found by the Federal court to be inconsistent with an approved State
program, if the President determines that the activity is in the paramount interest
of the United States. No such exemption shall be granted on the basis of a lack
of appropriations unless the President has specifically requested such
appropriations as part of the budgetary process, and the Congress has failed to24
make available the requested appropriations.
After a court has ruled an action conflicts with a state’s CMP, the President may find
that the action is of paramount interest to the nation, and exempt the federal agency
from the measures imposed upon it by the court.25
There is no private right of action under the CZMA, so suits brought by non-
parties to challenge an activity must be brought under the Administrative Procedure
Act (APA).
Mid-Frequency Active Sonar Litigation
The battle over sonar use in Navy training exercises and the impact on marine
mammals has been ongoing for years. Legal challenges to the use of low-frequency
sonar were brought before the District Court for the Northern District of California,26
but were settled by the Navy in 2008. The challenges to the use of MFA sonar
began in the District Court for the Central District of California. The lead plaintiff
in the MFA cases is the Natural Resources Defense Council (NRDC); four other
environmental groups are plaintiffs, as well as Jean-Michel Cousteau. The
defendants include the Secretary of the Navy and the National Marine Fisheries
Service (NMFS) of the Department of Commerce.
The first decision in the MFA challenge was issued in August 2007.27 It granted
a preliminary injunction to halt the eleven remaining Navy training exercises that
were planned. The plaintiffs claimed that the Navy had violated three laws: ESA,
NEPA, and CZMA. The court agreed that the plaintiffs were likely to prevail on their
claims under the CZMA and NEPA and issued the injunction, but held that the ESA
claim was not likely to succeed. Since neither NEPA nor CZMA provides a separate

24 16 U.S.C. § 1456(c)(1)(B).
25 In a decision dated February 4, 2008, a federal judge suggested that this provision may
be unconstitutional when it was used not to change an underlying law but to revise a court
decision. The court stated that this could have the effect of the President acting as a
reviewing court in violation of Article III of the Constitution. NRDC v. Winter, 527 F.
Supp. 2d 1216 (C.D. Cal. 2008). This report does not evaluate this argument.
26 NRDC v. Gutierrez, No. 07-4771-EDL (N.D. Cal. August 12, 2008) (order approving the
settlement agreement wherein the Navy agreed to limit low-frequency sonar training to
certain areas of the Pacific Ocean, rather than the worldwide scope as originally planned).
27 NRDC v. Winter, 2007 WL 2481037 (C.D. Cal. August 7, 2007).

right for litigation, the court reviewed claims brought related to these statutes under
the standard set by the APA — to see whether the agency action was arbitrary and
The Navy had prepared an EA-FONSI under NEPA, concluding that there were
no significant adverse environment effects that would require an EIS. Among the
adverse environmental affects the environmental review estimated to occur as a result
of the training exercises were 170,000 incidents of Level B harassment to marine
mammals, 466 permanent injuries to beaked or ziphiid whales (some of which are
endangered), and 28 Temporary Threshold Shift exposures to endangered blue, fin,
humpback, sei, and sperm whales. The court said it was likely to be held that the
Navy should have prepared an EIS after finding these effects, and that the Navy did
not adequately review alternatives to its training plan.
The court also found that there was a likelihood that the Navy violated the
CZMA. According to the Navy, the MFA training was consistent with the state CMP
because it would not affect California’s coastal resources, and the Navy did not need
to adopt the mitigation measures California deemed necessary. The court suggested
that the Navy’s determination that its exercises would not harm coastal resources
could be found arbitrary and capricious.
The court issued a preliminary injunction, halting the training activities until a
full review could be conducted. The Navy appealed, and on August 31, 2007, the
Ninth Circuit Court of Appeals stayed the injunction, meaning the injunction was put
aside, but not rejected outright.28 Later, in November, the Ninth Circuit dissolved the
stay, meaning the Navy was again enjoined from conducting MFA exercises.29 The
case was remanded to the district court, with instructions from the Ninth Circuit that
the injunction should be fitted to the circumstances.
On January 3, 2008, the district court again issued a preliminary injunction,
stopping the Navy from conducting MFA training unless certain mitigation measures
were taken. According to the court order, those measures were
!12-mile exclusion zone off California coast,
!2200-yard sonar shut down,
!60-minute monitoring period using two trained monitors at all times
and using helicopters,
!for active dipping sonar, helicopter monitoring for 10 minutes,
!where surface ducting conditions are found, sonar reduced by 6 dB,
!no MFA in Catalina basin, because it is a choke point for animals,
!no MFA within 5 nautical miles (nm) of San Clemente Island, and
!mitigation measures from the 2007 National Defense Exemption
(“NDE II”) to the MMPA unless they are not as strict as this order.30

28 NRDC v. Winter, 502 F.3d 859 (9th Cir. 2007).
29 NRDC v. Winter, 508 F.3d. 885 (9th Cir. 2007).
30 NRDC v. Winter, 530 F. Supp. 2d 1110 (C.D. Cal. 2008). See Table 3 for the mitigation

A second order on January 10, 2008, was issued to clarify the January 3, 2008,
On January 10, 2008, the Navy wrote CEQ asking for alternative arrangements
to NEPA that would allow them to conduct the remaining training exercises as
scheduled. CEQ said the Navy indicated that some of the mitigation measures
required by the district court would “create a significant and unreasonable risk that
Strike Groups will not be able to train and be certified as fully mission capable.”31
On January 15, 2008, CEQ provided alternative arrangements that paralleled the

2007 NDE mitigation measures (see Table 3).

Also on January 15, 2008, the President of the United States exempted the Navy
exercises from compliance with the CZMA, using the authority under 16 U.S.C.
§ 1456(c)(1)(B). In the memorandum granting the exemption, the President stated
that “the use of mid-frequency active sonar in these exercises [is] in the paramount
interest of the United States.”
After the two exemptions granted on January 15, the Navy applied to the Ninth
Circuit to vacate the injunction. The Ninth Circuit remanded the action to the district
court on January 16, 2008.32
On February 5, 2008, the district court reconsidered the preliminary injunction
in light of the developments. The court held that the CEQ had acted arbitrarily and
capriciously in granting alternative arrangements to the Navy when there was no
actual emergency:
CEQ apprehended the phrase “emergency circumstances” to refer to sudden,
unanticipated events, not the unfavorable consequences of protracted litigation.
CEQ’s contrary interpretation in this case is “plainly erroneous and inconsistent”
with the regulation and, concomitantly, not entitled to deference.33
The court held that the Navy still had to comply with NEPA. Therefore, its
injunction remained in place and the Navy could conduct MFA training only if it
used the mitigation measures required by the court. The court stated that public
interest was best served by requiring those mitigation measures. In that way the
Navy would have the benefit of conducting training, and the natural resources would
have limited harm from the training. The court reviewed, but did not rule on, the
CZMA exemption.

30 (...continued)
31 Letter from James L. Connaughton, Chairman, CEQ, to Donald C. Winter, Secretary of
the Navy (January 15, 2008), p. 3, available online at [http://www.whitehouse.gov/
32 NRDC v. Winter, 513 F. 3d 920 (9th Cir. 2008).
33 NRDC v. Winter, 527 F. Supp. 2d 1216, 1229 (C.D. Cal. 2008).

The Navy moved to have the injunction stayed, but the Ninth Circuit denied the
request.34 On February 29, 2008, the Ninth Circuit rejected the Navy’s appeal of the
preliminary injunction.35 It found that CEQ’s interpretation of emergency
circumstances was “overly broad.”36 The Ninth Circuit described the course of
litigation that ended in the injunction as “a series of events [that] gives rise to a
predictable outcome” and not a sudden and unexpected occurrence. The Ninth
Circuit compared it to CEQ’s response to Hurricane Katrina, in which alternative
arrangements were provided because “there was not sufficient time to follow the
regular EIS process.”37
In a separate opinion, the Ninth Circuit modified two of the mitigation measures
required by the district court.38 The Ninth Circuit allowed the 2,200-yard suspension
to remain in place unless the training was at “a critical point in the exercise,” in
which case the Navy would reduce the sonar by 6 dB if a marine mammal was
detected within 1,000 m., 10 dB if within 500 m., and suspend the activity if within
200 m. The second modification was for when significant surface ducting conditions
were detected. Rather than shutting down the training, as required by the district
court, the Ninth Circuit required the Navy to reduce the decibels of the activity. (See
Table 3 for details.) Therefore, the Navy can conduct its training exercises provided
it uses the mitigation measures indicated by the court. The Navy petitioned the U.S.39
Supreme Court to review the Ninth Circuit decision.
The Supreme Court reviewed two claims brought by the Navy: whether the CEQ
acted within its authority to grant the alternative arrangements, and whether the
injunction based on NEPA violations was appropriate. In a 5-4 decision, the majority
of the Supreme Court held that the balance of public interests favored allowing the
training to continue. It did not review the merits of the case. Instead, the majority
ruled that the district court did not consider the correct balance of public interests.
The majority found that the public interest in national defense outweighed the public
interest in protecting marine mammals:
we conclude that the balance of equities and consideration of the overall public
interest in this case tip strongly in favor of the Navy. For the plaintiffs, the most
serious possible injury would be harm to an unknown number of the marine
mammals that they study and observe. In contrast, forcing the Navy to deploy an40

inadequately trained antisubmarine force jeopardizes the safety of the fleet.
34 NRDC v. Winter, 516 F.3d 1103 (9th Cir. 2008).
35 NRDC v. Winter, 518 F. 3d 658 (9th Cir. 2008).
36 NRDC v. Winter, 518 F.3d 658, 680 (9th Cir. 2008).
37 NRDC v. Winter, 518 F.3d 658, 682 (9th Cir. 2008).
38 NRDC v. Winter, 2008 U.S. App. LEXIS 4458, *4 (9th Cir. February 29, 2008).
39 NRDC v. Winter, No. 07-1239 (March 31, 2008).
40 Winter v. NRDC, No. 07-1239 (November 12, 2008) (JJ. Roberts, Scalia, Kennedy, and

The dissenting opinion focused on the balance of interests in the context of
NEPA.41 Rather than an issue of a well-trained military versus animal safety, it
considered the issue as what harm would occur to the Navy by delaying training until
it complied with NEPA.42 Based on that view of the case, the dissenters found the
balance weighed in favor of protecting the marine mammals. The dissenters
indicated that the Navy’s agreement to prepare an EIS after the training was
completed was contrary to the purpose of the statute.
Only the dissenting opinion discussed the alternative arrangements provided by
CEQ. The opinion said, “CEQ lacks authority to absolve an agency of its statutory
duty to prepare an EIS,” indicating that legislative options were available to the
Navy. The legislative option would be to obtain a statutory exemption from NEPA
for the training program.
Legal Analysis
The injunction ultimately was put in place by a holding that CEQ had been
arbitrary and capricious in granting an emergency exception under NEPA. A legal
analysis of the court’s decision is somewhat hampered by the few court decisions and
the brief regulatory history of Section 1506.11. CEQ has recorded only 41 instances
where it was contacted to obtain alternative arrangements since the regulation went
into place in 1978, and only three (until this case) have led to published decisions.43
While the dissenting opinion openly challenges the authority of the CEQ to
circumvent NEPA, noting that alternative arrangements are issued based on a “one-
sided record,” it is persuasive authority only, and not legal precedent for interpreting
the regulation.
Section 1506.11 was part of the initial regulations created for CEQ to implement44
NEPA in response to an Executive Order. The regulation has no direct statutory
authority, but can be supported by 42 U.S.C. § 4331(b), which states it is the
responsibility of the U.S. government to “use all practicable means, consistent with
other essential considerations of national policy” to consider the environmental

41 Two justices participated in this opinion (JJ. Ginsberg and Souter). Two others concurred
in part and dissented in part (JJ. Breyer and Stevens).
42 The majority had discussed the EA, finding that, at 293 pages, it evidenced a hard look
at the environmental consequences of the training.
43 Two other court decisions refer to alternative arrangements by CEQ, but the emergency
exemption was not in dispute. See Miccosukee Tribe of Indians of Florida v. United States,
509 F. Supp. 2d 1288, 1291 (M.D. Fla. 2007) (discussing how the Corps of Engineers
obtained alternative arrangements for a temporary operating plan); NRDC v. Peña, 20 F.
Supp. 2d 45, 50 (D.D.C. 1998) (discussing that if the CEQ issued alternative arrangements,
the DOE could act before completing the NEPA document required by the court’s order).
44 43 Fed. Reg. 25230 (June 9, 1978) (draft regulations); 43 Fed. Reg. 55978 (November 29,

1978) (final regulations). Executive Order 11991 (June 9, 1978).

impacts of its actions.45 The final version of the alternative arrangements regulation
differed only slightly from the draft. The initial wording had said that under
emergency circumstances “the Federal agency proposing to take the action should
consult with the Council about alternative arrangements.”46 Out of concern that the
regulation could be construed as requiring consultation before an emergency
occurred,47 the regulation was modified to read as follows:
Where emergency circumstances make it necessary to take an action with
significant environmental impact without observing the provisions of these
regulations, the Federal agency taking the action should consult with the council
about alternative arrangements. Agencies and the council will limit such
arrangements to actions necessary to control the immediate impacts of the48
emergency. Other actions remain subject to NEPA review.
The regulation has not changed since then.
The court in the MFA cases found CEQ had acted beyond the scope of Section
1506.11 when it provided alternative actions for the Navy to conduct rather than
requiring the Navy to complete an EIS as directed by the court. Courts give agencies
deference regarding the interpretation of their regulations, including the emergency
provision, and the CEQ’s interpretation of its regulations is entitled to substantial49
deference. However, where an agency’s interpretation defies the plain meaning of
a regulation, courts have rejected the agency’s interpretation.50 That has not
happened before in the context of the NEPA emergency provision.
The few courts that have considered challenges to a CEQ alternative
arrangement have upheld the CEQ’s determination. Those requests included agencies
seeking alternative arrangements for these actions:
!capturing all remaining California condors to remove them from the

45 The dissenting opinion in Winter v. NRDC, No. 07-1339 (November 12, 2008) appeared
to have trouble with the congressional authority behind the regulation. The dissent said that
a “rapid, self-serving resort to an office in the White House ... is surely not what Congress
had in mind when it instructed agencies to comply with NEPA ‘to the fullest extent
46 43 Fed. Reg. 25230, 25243 (June 9, 1978).
47 43 Fed. Reg. 55978, 55988 (November 29, 1978).
48 43 Fed. Reg. 55978, 55988 (November 29, 1978); 40 C.F.R. § 1506.11.
49 Andrus v. Sierra Club, 442 U.S. 347, 358 (1979); Warm Springs Dam Task Force v.
Gribble, 417 U.S. 1301, 1309-1310 (1974).
50 Thomas Jefferson University v. Shalala, 512 U.S. 504, 512 (1994)(“we must defer to the
Secretary’s interpretation unless an ‘alternative reading is compelled by the regulation’s
plain language or by other indications of the Secretary’s intent at the time of the regulation’s
promulgation’” (quoting Gardebring v. Jenkins, 485 U.S. 415, 430 (1988)); Bowles v.
Seminole Rock and Sand, 325 U.S. 410, 414 (1945)(“the ultimate criterion is the
administrative interpretation, which becomes of controlling weight unless it is plainly
erroneous or inconsistent with the regulation”).

!releasing HUD funding for an urban redevelopment project in
Detroit; and
!allowing night flights from an Air Force base to assist in Operation
Desert Storm.
The alternative arrangements illustrated by these cases differ from the MFA
alternative arrangements by the fact that each of these agency actions was backed by
a satisfactory NEPA document, either before or after the action.51 In the instant case,
the only NEPA document, an EA-FONSI, was found insufficient.
A reviewing court will look at the underlying agency action to decide whether
the CEQ’s determination is rational. In the case of the California condor, the court
considered why the Fish and Wildlife Service (FWS) had changed its policy. The
EA-FONSI preferred alternative had been to leave some condor in the wild and to
capture others. The district court had found no emergency because FWS had
reviewed the situation just months earlier in an EA. The D.C. Circuit reversed,
holding that the district court erred in substituting its judgment for the CEQ. The
D.C. Circuit found that FWS had a rational basis for changing its policy, especially
in light of the lead poisoning death of a condor in an area believed safe. The court
said that once it had determined that the underlying agency decision “reflects
sufficient attention to environmental concerns and is adequately reasoned and
explained” its review was completed.52 The capture was consistent with the
alternatives examined in the EA-FONSI. The MFA sonar case differs in that the
underlying EA-FONSI has been found insufficient. Also, the court suggested the
Navy lacked a rational basis for declaring the training exercises an emergency.
The emergency in the case of Detroit was not one of military readiness. Instead,
it was argued that a major corporation would leave the city if funding were not
provided for an urban renewal project, putting the city in immediate financial peril.
The Department of Housing and Urban Development (HUD) was allowed to release
funding prior to the completion of an EIS.53 The EIS was subsequently completed.
This differs from the MFA alternative arrangements in which an EIS was waived,
rather than deferred.
The only military action reviewed by the courts in response to a challenge to the
application of Section 1506.11 related to night flights out of an Air Force base. An
EIS completed years earlier had supported the decision that flights would not occur
between the hours of 10 pm and 7 am. However, concurrent with the U.S.
commitment of forces to Operation Desert Storm, the Air Force began 24-hour
operations out of that base. The plaintiffs asked the Air Force to conduct a
supplemental EIS prior to the flights, but the Air Force sought alternative
arrangements from the CEQ. The alternative arrangements proposed by CEQ

51 See also Miccosukee Tribe of Indians of Florida v. United States, 509 F. Supp. 2d 1288,
1291 (M.D. Fla. 2007) (referring to how CEQ required an EIS after the alternative
arrangements were completed).
52 National Audubon Society v. Hester, 801 F.2d 405, 407 (D.C. Cir. 1986).
53 Crosby v. Young, 512 F. Supp. 1353 (E.D. Mich. 1981).

allowed the flights to continue and allowed the Air Force to prepare an EA within the
year. The court considered whether the Air Force or CEQ had been arbitrary and
capricious in allowing the NEPA exception.54 The court found that “the crisis in the
Middle East” was an emergency. The court noted that the Air Force was particular
in describing the emergency need: “defendants have pointed to specific military
concerns with regard to troop redeployment, flight scheduling, cargo transport, and
other operations that necessitate the use of Westover AFB for C-5A operations on a
twenty-four hour basis.”55
In the instant case, the court distinguished the facts from the Air Force
exception, noting the Air Force’s circumstances had changed after an EIS had been
prepared, but in this case no change had occurred. Also, the court criticized the
Navy’s characterization of the emergency, noting that these routine training exercises
had been planned for a long time, and suggesting that the Navy was seeking ways to
avoid preparing the EIS ordered by the court. The court said CEQ had not used the
plain meaning of “emergency.”56 The court found CEQ chose mitigation measures
that had already been rejected by the court. According to the court, this “raises
serious constitutional concerns under the Separation of Powers doctrine,” but the
court found that because CEQ’s application of Section 1506.11 was invalid, it did not
need to examine the constitutional issue.57
The Ninth Circuit agreed with the rationale of the lower court, noting that there
was no national security or military exemption within NEPA.58

54 Valley Citizens for a Safe Environment v. Vest, 1991 WL 330963 (D. Mass. May 6,


55 Valley Citizens for a Safe Environment v. Vest, 1991 WL 330963, *5 (D. Mass. May 6,


56 NRDC v. Winter, 527 F. Supp. 2d 1216, 1229-30 (C.D. Cal. 2008).
57 NRDC v. Winter, 527 F. Supp. 2d 1216, 1232 (C.D. Cal. 2008).
58 NRDC v. Winter, 518 F.3d 658, 684-85 (9th Cir. 2008), cert. granted sub nom. Winter v.
NRDC, No. 07-1239 (June 23, 2008).

Table 1. Listed Species Found Off the California Coasta
ClassificationCommon NameScientific Name
T Salmon, Chinook CAOncorhynchus (=Salmo) tshawytscha
Central Valley
T Salmon, Chinook CAOncorhynchus (=Salmo) tshawytscha
E Salmon, Chinook winterOncorhynchus (=Salmo) tshawytscha
Sacramento R.
T Salmon, Coho OR, CAOncorhynchus (=Salmo) kisutch
E Salmon, Coho centralOncorhynchus (=Salmo) kisutch
CA coast
T Sea turtle, green exceptChelonia mydas
where endangered
E Sea turtle, leatherbackDermochelys coriacea
T Sea turtle, loggerheadCaretta caretta
T Sea turtle, olive ridleyLepidochelys olivacea
except where
T Sea-lion, Steller easternEumetopias jubatus
E Sea-lion, Steller westernEumetopias jubatus
T Seal, Guadalupe furArctocephalus townsendi
T Steelhead CentralOncorhynchus (=Salmo) mykiss
Valley CA
T Steelhead central CAOncorhynchus (=Salmo) mykiss
T Steelhead northern CAOncorhynchus (=Salmo) mykiss
T Steelhead south centralOncorhynchus (=Salmo) mykiss
CA coast
E Steelhead southern CAOncorhynchus (=Salmo) mykiss
EBlue whaleBalaenoptera musculus
E Finback whaleBalaenoptera physalus
E HumpbackwhaleMegaptera novaeangliae
E Killer Southern whaleOrcinus orca
Resident DPS
E Sei whaleBalaenoptera borealis
E Sperm whalePhyseter catodon (=macrocephalus)
a. Information obtained from Fish and Wildlife Service website: [http://ecos.fws.gov/tess_

Table 2. Litigation Timeline
Dat e Ac t i on De c i s i on
August 7, 2007Preliminary injunctionNRDC v. Winter,
granted.8:07-cv-00335-FMC-FMOx, 2007
WL 2481037 (C.D. Cal. Aug. 7,


August 31,Injunction stayed.NRDC v. Winter, 502 F.3d 859 (9th

2007Cir. 2007)

November 13,Ninth Circuit dissolves stay.NRDC v. Winter, 508 F.3d. 885 (9th

2007Remands to district court toCir. 2007)

narrow injunction.
January 3,District court enjoins Navy,NRDC v. Winter, 530 F. Supp. 2d

2008but allows training if certain1110 (C.D. Cal. 2008)

measures are taken.
January 9,Navy seeks stay pending


January 10,District court issues modified


January 15,President exempts Navy from
2008CZMA, pursuant to 16
U.S.C. § 1456(c)(1)(B).
January 15,CEQ issues alternativeOnline at [http://www.whitehouse.

2008arrangements under NEPAgov/ceq/Letter_from_Chairman_

for Navy, pursuant to 50Connaughton_to_Secretary_Winter.
C.F.R. § 1506.11.pdf]
January 16,Ninth Circuit remands toNRDC v. Winter, 513 F. 3d 920 (9th

2008district court to consider Jan.Cir. 2008)

15 actions.

February 4,District court finds thatNRDC v. Winter, 527 F. Supp. 2d

2008CEQ’s actions were arbitrary1216 (C.D. Cal. 2008)

and restores injunction.
February 19,Ninth Circuit rejects Navy’sNRDC v. Winter, 516 F.3d 1103 (9th

2008motion for a stay.Cir. 2008)

February 29,Ninth Circuit affirmsNRDC v. Winter, 518 F.3d 658 (9th

2008preliminary injunction.Cir. 2008)

February 29,Ninth Circuit modifies twoNRDC v. Winter, 2008 U.S. App.

2008mitigation measures,LEXIS 4458 (9th Cir. Feb. 29, 2008)

allowing sonar reduction
when at critical point of the
exercise and during surface
ducting conditions.
March 31,Navy petitions the U.S.NRDC v. Winter, No. 07-1239

2008Supreme Court to review the(March 31, 2008)

Ninth Circuit decision.
November 12,U.S. Supreme Court finds inWinter v. NRDC, No. 07-1239

2008favor of the Navy.(Nov. 12, 2008)

Table 3. Mitigation Measures
(data gleaned from court documents; may be incomplete)
Type of
Action2007 NMEPlaintiffsCourtCEQ
PoweringReduce by 6 dB2200 yd. sonar shutReduce by 6dB if
down sonarwhen marinedown whenwithin 1,000 m.;
mammals spottedanimals arereduce by
within 1,000 m.;spotted; reduce byadditional 4 dB if
reduce another 4 dB6 dB within 500 m.;
when within 500 m.;where surfaceshut down
shut down sonar atducting conditionstransmissions at

200 m.are found200 m.

Modified by Ninth
Circuit: if during
“critical point in
the exercise,”
reduction by 6 dB
if within 1000 m.,
10 dB if within 500
m., and suspend
the activity if
within 200 m.
Surface ducting
reduce by 6 dB if
within 2,000 m., 10
dB within 1,000
m., and suspend
sonar use if within

500 m.

Lookouts2 dedicated, and 360-minute2 lookouts and 3
non-dedicated marinemonitoring periodnon-dedicated
mammal lookouts,prior to each day’swatchstanders.

provide lookoutstraining; two
with binoculars,NMFS trained
night vision goggles,monitors at all
and infrared sensors.times during
passive acoustic
monitoring to be
used to the
maximum extent
practicable; use

Type of
Action2007 NMEPlaintiffsCourtCEQ
HelicoptersAt least one“Aerial platforms”
dedicatedwill monitor
helicopter forduring their
monitoring; mi ssions.
aerial monitoring
to begin 60 mins
before and
monitoring 10
minutes before
active dipping
GeographicalOutside Channel25 nm coastal12 mile exclusion5 nm exclusion
RestrictionsIslands Nat’l Marineexclusion; zone off Californiafrom western
Sanctuary;excluded fromcoast;shore of San

5 nautical miles (nm)Catalina Basin;barred in CatalinaClemente Island.

from western shoreexcluded from thebasin;
of San ClementeWestfall seamount; 5 nm exclusion
Island; 3 nm from itsexcluded from Cortezfrom western shore
other shores.and Tanner Banks;of San Clemente
and Island.
exercises located to
the maximum extent
possible in waters
deeper than 1,500 m.
Changes forAerial monitoring for
Migration60 mins before MFA
exercises along
Tanner & Cortez
Banks during blue
whale migration
(July to Sept. 2008);
monitoring of gray
whale migration
patterns between
March 7-21, 2008,
and April 15 - May

15, 2008.

OtherNavy to submit
reports to NMFS
120 days after any