Lawfare: Lawsuits against national defense training

Navy Disappointed With Lawsuit Against Anti-Submarine Warfare Training says the headline:

The Navy is disappointed with EarthJustice's decision to pursue litigation against critical training activities in Hawaiian waters, the deputy commander of the U.S. Pacific Fleet said.

"These fleet training activities are essential to the Navy's ability to ensure our nation's armed forces are fully combat ready and adequately trained according to established, time-tested standards," said Rear Adm. John M. Bird.

The suit, filed May 16 by EarthJustice on behalf of five non-government organizations, asks the court to prohibit naval sonar exercises near Hawaii, saying that sonar can have a negative impact on marine mammals.

But such exercises have already taken place in Hawaiian waters with no problems.

"Since January the Navy has conducted two undersea warfare exercises, incorporating mid-frequency active sonar, with no issues," said Capt. Scott Gureck, Pacific Fleet public affairs officer. "We take steps to identify and avoid marine mammals during training, and we are complying with all laws that protect marine mammals throughout the Hawaiian Islands- the Marine Mammal Protection Act and the Endangered Species Act."

As part of the process of protecting marine mammals that inhabit Hawaiiís waters, the Navy coordinated closely with the National Marine Fisheries Service to identify the mitigation measures in place during these exercises, Gureck noted.

The Navy complies with all applicable statutes, regulations and executive orders and strives to protect the environment, prevent pollution and protect natural, historic and cultural resources. Navy policy requires that major fleet exercises be reviewed for environmental compliance and for potential effect on marine mammals and other marine life.

Of course, EarthJustice disagrees:

Conservation and animal welfare organizations have filed a legal challenge to the U.S. Navy's plan to use high-intensity, mid-frequency active sonar in antisubmarine exercises in Hawai'i's waters. The planned sonar would emit blasts far louder than levels associated with mass whale strandings and fatalities.

The Navy has announced plans to use the sonar in up to twelve separate sets of Undersea Warfare Exercises (USWEXs) during 2007 and 2008 in Hawai'i's waters, including within the Hawaiian Islands Humpback Whale National Marine Sanctuary and near the Papahānaumokuākea Marine National Monument in the Northwestern Hawaiian Islands. Attorneys from Earthjustice filed suit in Hawai'i federal district court on behalf of Ocean Mammal Institute, the Animal Welfare Institute, KAHEA, Center for Biological Diversity, and Surfrider Foundation.

Marti Townsend of KAHEA said, "The Navy is not above the law. Just the reverse -- as a government agency, the Navy should be setting an example. Protecting the country includes following its laws, not skirting them."

NMFS, the agency responsible for protecting endangered marine life, relying almost entirely on the Navy's assessments, made little effort to analyze the sonar's effects or require the Navy to implement protective mitigation, such as that to which the Navy agreed for the 2006 RIMPAC exercises in Hawai'i. The plaintiffs have sued NMFS as well, for violating the Endangered Species Act.

The Animal Welfare Institute's Susan Millward commented, "It's disappointing that NMFS abdicated its responsibilities by allowing the Navy to decide for itself the mitigation it will use." Dr. Marsha Green of Ocean Mammal Institute added, "The Navy knows protecting whales is possible -- it used more protective mitigation in the 2006 RIMPAC exercises than it plans to use in these."
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The Navy acknowledged in its Environmental Assessment for the Hawai'i exercises that its sonar will reach whales at levels up to 215 dB—at least a hundred thousand times more intense than the levels at which the whales stranded in the Bahamas incident—and that the sonar will, at a minimum, likely significantly alter or cause the abandonment of the whales' migration, surfacing, nursing, feeding, or sheltering behaviors. Recognizing it will harm whales in violation of the Marine Mammal Protection Act, the Navy in January 2007 exempted itself from that law. The Navy nonetheless refused to prepare an Environmental Impact Statement in violation of the National Environmental Policy Act, refused to include protective mitigation, and dismissed as insignificant the impacts to thousands of marine mammals, including humpbacks nursing calves in Hawai'i's protected nearshore waters. It also failed to comply with the Coastal Zone Management Act and National Marine Sanctuaries Act.

EarthJustice describes itself as:

Earthjustice is a non-profit public interest law firm dedicated to protecting the magnificent places, natural resources, and wildlife of this earth and to defending the right of all people to a healthy environment. We bring about far-reaching change by enforcing and strengthening environmental laws on behalf of hundreds of organizations and communities.

In reviewing EarthJustices's claimed "victories," I note that almost all of them involve suits against U.S. government agencies. The EJ list of "international" matters they are involve with:

Glamis Gold Open Pit Mines in California Desert 11/07/06
(California matter involving a Canadian company)

Teck Cominco/Lake Roosevelt 06/01/06
(Washington state matter involving a Canadian company)

Health Trade Advisory Committees 02/02/06
Lawsuit demanding that corporate interests be balanced with public interest representation on committees that advise the US Trade Representative on trade policies affecting public health.

Mexican Border Power Plants 10/29/05
Suit to force the US Department of Energy to conduct a thorough environmental assessment before authorizing operation of power plants owned by US corporations and constructed in Mexico to supply power to the US energy market.

Inuit Human Rights and Climate Change 02/22/05
Earthjustice is working with the Inuit Circumpolar Conference to protect the human rights of the Inuit people in their struggle against climate change.

Okinawa Dugong & Proposed Airbase 10/21/03
The American military is trying to force the Japanese government to build a new airbase on a reef used by endangered dugong (cousin to the Florida manatee) for feeding and resting.

International Right to a Healthy Environment 08/27/03
Earthjustice is involved in an effort to persuade the United Nations that the right to a safe, healthy, and healthful environment is a basic human right and, as such, is protected by various existing human rights agreements and conventions. Considerable progress has been made.

Peruvian Smelter Emits Toxic Pollutants 05/05/03
The people (especially the children) who live in La Oroya, in the Peruvian Andes, have dangerous levels of lead in their blood. The source is a smelter operated by a company based in Missouri. Earthjustice is working to persuade the company to provide desperately needed medical care.

Methanex Corp. Challenges US Environmental Protections 12/18/02
MTBE is a gasoline additive that has contaminated groundwater, provoking a decision by California to phase out its use. The manufacturer in turn sued the United States, demanding nearly a billion dollars to compensate for lost profits. Earthjustice has intervened to block the blackmail.

Plan Colombia Threatens Human Health, Environment 12/18/02
Widespread aerial spraying of herbicides in Colombia by the US is eradicating coca and poppy crops but is also destroying rural communities through harm to human health and livestock, destruction of food crops and water contamination.

Public Participation in Trade Negotiations 12/18/02
The US Trade Representative is negotiating several trade agreements and refuses to reveal any details to the public, even though the documents have been freely circulated to the governments participating in the negotiations. Earthjustice has filed suit to force release of the documents.

PCB Ghost Ship Exports 10/20/01
There are dozens of obsolete, decaying military ships awaiting disposal. The administration, skirting federal law, tried to send 13 to England for dismantling. A lawsuit blocked nine. Four sit in limbo in England. Transport is dangerous and U.S. shipyards can do the job. The court will decide the fate of the rest.

No litigation seems to have been brought against China, Russia, South Korea, India, Pakistan, Iran, Japan, Germany, France, or any other country or company located outside the U.S.

EJ's offices are located solely in the US. See here.

EJ is a familar group:

Earthjustice was established as the Sierra Club Legal Defense Fund in 1971. While we have always worked closely with the Sierra Club, from the outset the Legal Defense Fund has been a separate organization with its own staff, Board of Trustees, and donors. In 1997, we changed our name to Earthjustice to reflect the broader role we play in representing hundreds of regional, national and international associations. We have always provided our legal services free of charge.

Free of charge? First, EJ solicits donations. Those donations are pay for their "free work" including:

Earthjustice has a legal staff of more than 50 in eight offices around the country, also a policy department in Washington, DC, an international program based in Oakland, and a communications team, also in Oakland, where the fundraising and administrative offices reside as well

Second, under many of the laws used by EJ, they can recover attorney fees for suing the government. See, for example, Section 304 (d) of the Clean Air Act:

(d) The court, in issuing any final order in any action brought
pursuant to subsection (a) of this section, may award costs of
litigation (including reasonable attorney and expert witness
fees) to any party, whenever the court determines such award is
appropriate.

Section 11 (g)(4) of the Endangered Species Act:

(4) The court, in issuing any final order in any suit brought pursuant to paragraph (1) of this subsection, may award costs of litigation (including reasonable attorney and expert witness fees) to any party, whenever the court determines such award is appropriate.

Pretty nifty. Sue the government, attempt to make policy through the courts instead of the legislature, collect money from the government for subverting the democratic process.

And they resist changes to the laws that are in place. See here:

Litigation is the basic tool Earthjustice uses, depending on strong state and federal laws. Often, however, attempts are made to weaken - even destroy - those laws and their implementing regulations. Earthjustice's Policy and Legislation staff work to defend and strengthen those laws and regulations.

Free of charge? Hardly.

Even handed? Hardly.

Honest? Hardly.

UPDATE: From the complaint filed by EJ:

5. Award plaintiffs the costs of this litigation, including reasonable attorney’s fees

In my experience, such fees are usually established by some "expert" testifying about the local prevailing legal fees and the risks attendant in pursuing such a claim and stating: "It is my opinion that $250 an hour would be a reasonable attorney's fee in such a matter." Followed by evidence that 2000 hours was spent bringing this matter to trial.