In a move environmentalists called an abrupt reversal of federal
policy, the Bush administration said Friday that a major environmental law
does not apply to vast tracts of ocean under U.S. control.
Critics argued the ruling could allow military maneuvers, commercial
fishing, ocean dumping and scores of other activities to proceed without
public environmental review.
incredulous that the Bush administration may actually be considering rolling back
central environmental protections of our oceans and marine environment.
John Kerry, D-Mass
At issue is the National Environmental Policy Act, which was signed into
law by President Richard Nixon and requires the government to review the
environmental implications of its projects. It is widely considered the Magna
Carta of environmental law.
Referring to a federal court case in Los Angeles involving a Navy sonar
project that critics argue could disorient or kill whales and other marine
mammals, the Justice Department said the 1969 law does not extend beyond the
nation's territorial waters just a few miles beyond the shorelines.
The National Resources Defense Council is challenging that position,
arguing that in addition to the territorial waters, the act covers any
activity within the nation's so-called exclusive economic zone, which
stretches 200 miles from shore.
Environmentalists say that barring application of the act in that area
would open the oceans to unregulated activity that could damage the sea and
destroy marine life.
Offshore oil and gas drilling would not be affected by the administration's
position because another law, the Outer Continental Shelf Lands Act, requires
that the National Environmental Policy Act apply to such activity.
Underscoring the policy's importance, the White House Council on
Environmental Quality met with ranking officials from five agencies and
departments to discuss the implications of the administration's position both
before the Justice Department filed its brief and again this week, officials
said. They plan to discuss it further in September.
Administration officials said that there was little disagreement at the
meeting, first reported Friday by the Times-Picayune of New Orleans, about the
administration's approach. And the Justice Department said in the sonar case
that federal agencies should decide on a case-by-case basis whether to apply
the National Environmental Policy Act.
But e-mail messages written before the meeting suggested that officials
from the National Oceanic and Atmospheric Administration disagreed with the
One e-mail message written by a Navy official hailed the "good news" that
the Justice Department agreed with the Navy, "over NOAA objection," that the
environmental law "does NOT extend beyond the limits of our territorial waters.
The California case at the heart of the issue revolves around an anti-
submarine sonar system the Navy hopes to deploy.
The plan calls for deploying as many as four ships, each carrying an array
of 18 loudspeakers hanging in the water at a depth of 200 feet. When the sound
strikes an object, echoes return and are picked up by a few hundred underwater
microphones trailing off the vessel. A computer determines whether the object
is a submarine and how far away and how fast it is moving.
Critics, including the Natural Resources Defense Council and the Humane
Society of the United States, argue the system could threaten entire
populations of whales, dolphins, seals and other marine mammals. They sued
this week to derail the proposal.
Bush administration officials said that the Justice Department's position
in the case is not a change in policy.
They said the National Environmental Policy Act, signed into law before the
United States established its exclusive economic zones, was never intended to
apply to the ocean beyond the territorial waters and did not apply now. The
territorial waters have traditionally extended three miles from shore, though
there is some question now as to whether they extend 12 miles from shore.
But environmentalists said the ruling marks a profound shift.
"This is a major policy change," said Andrew Wetzler, a lawyer with the
Natural Resources Defense Council in Los Angeles. "For the first time, the
White House is considering stepping in and seeking to impose the Navy's
restrictive view of the statute on the entire federal government."
The Navy has long believed the act does not apply to activities within the
nation's "exclusive economic zone," which stretches 200 miles off all coastal
waters and covers more than 1 million square miles beyond the American coast,
including Alaska and Hawaii. The Navy appears to be the driving force behind
the Bush administration's discussion of whether to apply that concept to all
federal activity that takes place in the exclusive economic zone.
Administration officials believe that the environmental act is too
restrictive, that it spawns nettlesome lawsuits and that most ocean activity
is already regulated by an executive order signed by President Jimmy Carter.
Environmental groups assert that the Carter order is too weak to guarantee
Tim Eichenberg, a lawyer with the San Francisco-based environmental group
Oceana, called the executive order "a very poor cousin" to the policy act.
"The executive order doesn't provide for public input or any analysis of
alternatives and it doesn't allow for judicial review -- there is no recourse
for the public," Eichenberg contended.
Some on Capitol Hill saw profound implications in the Justice Department
position and the White House meeting.
Sen. John Kerry, D-Mass., chairman of a subcommittee on oceans and
fisheries, issued a statement saying: "I am incredulous that the Bush
administration may actually be considering rolling back central environmental
protections of our oceans and marine environment. The National Environmental
Policy Act is the cornerstone of protection for our citizens and natural
resources -- and new limits on the law would have profound impacts on coastal
issues from fisheries management to marine protection to ocean dumping."
Copyright 2002 The New York Times Company