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"Bush Exempts Navy from Environmental Law" II

By Walter Olson, Ted Frank, and David Nieporent

Earlier:

After years of wrangling in the Ninth Circuit and lower courts over environmentalist efforts to block Navy anti-sub sonar exercises on the grounds that they disturb marine mammals, the issue may be resolved by a Presidential assertion of national security interest.

A commenter asked why Bush had the authority to do this. President Bush's order is on-line. The claimed authority is based on 16 U.S.C. § 1456(c)(1)(B), which reads in relevant part:

After any final judgment, decree, or order of any Federal court that is appealable under section 1291 or 1292 of title 28, or under any other applicable provision of Federal law, that a specific Federal agency activity is not in compliance with [the Coastal Zone Management Act], 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.

The claim by the NRDC that the president's action is "an attack on the rule of law" and "flouting the will of Congress" is thus invalid: Congress explicitly reserved to the president the power to override a court decision finding a federal agency in violation of the Coastal Zone Management Act by exempting the agency from its requirements. The case has been remanded to district court, but whether it is sound policy to value military convenience over whales is now a political question that will now be resolved by Congress and the President, with nothing more for the court to decide, as the court does not have the authority to second-guess the president's decision whether something is in the "paramount interest of the United States."

(Separately, the Navy complied with the National Environmental Protection Act when the Council for Environmental Quality issued a letter (151-page PDF, but pages 3-4 are the relevant ones for the lay curious) under 40 C.F.R. § 1506.11; this will likely get litigated by NRDC, as who better to determine the military needs of the United States than a private litigant and a federal judge?)

Full post as published by Overlawyered on January 18, 2008 (boomark / email).