The U.S. Supreme Court has just heard arguments in Winter v. Natural Resources Defense Council, in which environmentalists seek to impose limits on the U.S. Navy’s use of sonar in anti-submarine warfare training, because they claim that sonar harms whales. You can find the story and some interesting links on Professor Robert Thomas’ blog inversecondemnation.com, and we recommend that you take a look at it.
We expect that much will be said about this case, and much has already been said, so we won’t trouble you with rehearsing all the pro and con arguments, some of which border on lunacy. Whatever the merits of this controversy may be (and we use the word ”merit” with caution), we think Justice Alito hit the bull’s eye when he asked in oral argument, “Isn’t there something incredibly odd about a single district judge making a determination on that defense question that is contrary to the Navy’s?”
While this case may give rise to interesting lawyer stuff to the extent it deals with the interpretation of NEPA, the context in which this issue has been raised is a head-shaker. If ever there was a case of loss of perspective, this is it. The enviros are asking the courts not just to “balance” environmental benefits against national defense in some abstract sense, but to pass judgment on the specifics of anti-submarine warfare, and to the extent that any “balancing” is involved, to use environmental laws to trump the considered judgment of the Navy’s anti-submarine warfare experts concerning specific techniques of enemy submarine hunting. If you stop and think about it, this is lunacy, and to the extent it is being seriously considered by American courts, it surely must make the United States a laughing stock among the navies of the world.
So we are pleased to note that common sense appears to be raising its head, and both wings of the court for once appear to be of one mind. As Justice Breyer put it in oral argument, “I think the whole point of the armed forces is to harm the environment . . . On a bombing mission, do they have to prepare an environmental impact statement?”
These days, a single submarine can pack enough punch to flatten – and we do mean flatten, as in Hiroshima – several cities, so it would seem to be a no-brainer that any doubts should be resolved in favor of maximizing the effectiveness of anti-submarine defenses, which translates into maintaining the highest degree of skill and efficiency on the part of the anti-submarine warriors whose unenviable task is to keep you from being barbequed by a nuke launched by some rogue regime out to get the “Great Satan.”
Worse, as Chief Justice Roberts observed during oral argument, the trial judge failed to give consideration to this unpleasant potential for mass annihilation, and he noted that the enviros’ brief failed to “spend a page” defending the merits of the trial court’s decision. Yikes!
We could stop here but we won’t because there is a lesson of history to be recalled and pondered. Back in 1941, the U.S. Army wanted to install radar stations in Hawaii to provide warning of an impending air attack. This was a vital precaution because, as General Walter C. Short (who commanded the Army in Hawaii) unsuccessfully stressed in his correspondence to Washington, the Hawaiian islands are small, thus making it impossible to establish a far-flung early warning system. Their horizon was only 75 miles, giving precious little warning time to the anti-aircraft defenses. By the time conventional observers could notice incoming enemy planes it would be too late to launch fighter planes. So General Short wanted to install five radar stations, including one on Haleakala, one of the highest points in the islands, to provide maximum radar range. But to do that, the Army had to get permission from the National Park Service which had jurisdiction over that area. In his magisterial historical work, At Dawn We Slept (1981), Gordon W. Prange reports how General Short “asked that permission be obtained from the Secretary of Interior to construct the Haleakala [radar] installation without the necessity of submitting detailed plans for consideration by the National Park Service,” adding, “Defense of these Islands and adequate warning for the United States Fleet is so depending upon the early completion of this Aircraft Warning Service that I believe all quibbling over details should be stopped at once.” Prange goes on to relate:
“From the vantage of hindsight, the War Department reply, dated March 15, [1941], gives one the sensation of having wandered into the Mad Hatter’s party.
“’The National Park Service officials are willing to give up the temporary use of their lands when other lands are nor suitable for the purpose, but they will not waive the requirements as to the submission of preliminary building plans showing the architecture and general appearance. They are also very definitely opposed to permitting structures of any type to be erected at such places as will be open to view and materially alter the natural appearance of the reservation.’”
Nine months later the Japanese attacked Pearl Harbor and all but destroyed the Pacific Fleet.
Would a five-station radar network including a functional radar station atop Haleakala have made any difference? Probably. As it was, on December 7, 1941, there was only one operating radar station, located at Opana, and it did spot the incoming Japanese planes. Unfortunately, when word of the radar sighting was relayed by its operators, a Second Lieutenant decided that this had to be a sighting of a flight of American B-17 bombers expected to come in from the Mainland, and so he told the radar operators not to worry about it. If you are interested, these events are depicted with accuracy in the movie “Tora! Tora! Tora!.”
It is not easy to say that the Japanese attack on Pearl Harbor would have been frustrated but for the Park Service’s quibbling over radar station architecture and its abhorrence of interference with what in today’s California Coastal Commission’s newspeak is called the “viewshed,” but it seems clear that if the Army had its proposed five radar stations network in operation, including the one at Haleakala, the devastation might not have been as extensive a it was. Several simultaneous radar reports of hundreds of planes coming in would likely have gotten that Second Lieutenant’s attention and might well have provided a little time to man the defenses, or even to launch some fighter planes.
We will let our readers draw their own conclusion as to what lesson is to be learned from those events of 1941, in the context of the Winter case. By our lights, that lesson is plain and grim.
UPDATE: On November 12, 2008, the U.S. Supreme Court has ruled in favor of the Navy.