Lawyers from NRDC and the U.S. Navy faced tough scrutiny on everything from beaked whale strandings to the separation of powers as they argued before the U.S. Supreme Court this morning.

In a case that could determine whether the Navy is doing enough to protect marine mammals from intense blasts of sonar, the justices peppered the parties with questions on a number of legal and factual fronts.

One of the most entertaining exchanges came when Justice Stephen Breyer asked why the military should be relied on to conduct environmental impact studies -- one of the key requirements that NRDC argues was needed in this case.

"The whole point of the armed forces is to hurt the environment," Breyer said, prompting laughter from the audience of about 250 in the courtroom.

Richard Kendall, who argued on behalf of NRDC, countered that "the whole point of the armed forces is to do the least amount of harm possible to the environment."

"When they go on a bombing mission, do they have to prepare an EIS?" Breyer asked, acknowledging that he was being somewhat facetious.

"No," Kendall replied, adding that NRDC has never suggested that any of the precautions it wants the Navy to take should apply to combat. Instead, the case is all about making sure that whales and other marine mammals don't have to die while the Navy is practicing.

The hourlong hearing covered a lot of ground. Both sides appearing before the court get 30 minutes to make their case and answer the justices' questions -- which started flying within the first couple of minutes of both lawyers' prepared arguments.

Speaking for the Navy, Solicitor General Gregory Garre disputed whether a large number of marine mammals would suffer long-term harm as a result of the sonar exercises. He repeated the phrase "non-injurious, temporary exposures" over and over when Justices Samuel Alito and Ruth Bader Ginsburg tried to nail him down.

But Kendall said the factual assertions the Navy has made about the harm to whales are completely disproven by the military's own environmental assessment (a preliminary report before a full EIS) and expert testimony from marine mammal scientists.

The evidence that sonar has caused beaked whales strandings around the world -- with the whales washed up on beaches bleeding from the ears and brain -- is overwhelmingly supported by scientific studies, Kendall said.

He asked the justices to imagine the noise of a jet engine multiplied by 2,000 times filling the courtroom. That's the same impact that a sonar blast can have on whales, dolphins and other marine mammals, Kendall said.

UPDATES

1:50 PM Here's what I'm sure you really want to know: Does it look like the Navy or NRDC won today? My answer: I haven't got a clue. And I doubt that anyone else does, either.

"I've been doing this a long time, and I've given up reading the tea leaves," Kendall said outside the courtroom after arguing on NRDC's behalf.

The justices had a lot of tough questions for both sides, which is what you would expect in a Supreme Court case. If it were an easy call, why would it wind up in the highest court in the land?

Kendall said the questions are often designed to ferret out what the lawyers are thinking about the case, and tough queries don't necessarily indicate that a justice disagrees with one position or another.

Still, it seemed pretty clear that at least Justice Antonin Scalia has the Navy's back, because he appeared to be assisting the solicitor general with his arguments at a couple of points.

And Justice David Souter appeared to be taking NRDC's side, saying the national emergency that the White House declared to exempt the Navy from environmental laws was in fact "created by the failure of the Navy" to do the proper environmental impact study.

I checked a few news outlets that employ seasoned Supreme Court reporters to see how they're reading the case. The Los Angeles Times said the "justices sounded closely split today on whether environmental laws can be used to protect whales and other marine mammals from the Navy's use of sonar off the coast of Southern California," and the Associated Press also said that the court "appeared divided." The New York Times leads off with the justices who "indicated an inclination to overturn" the lower court's decision protecting whales.

2:40 PM Pictures!

The Supreme Court building in the morning sun. (Did I mention that I had to line up before dawn to get a seat? Fortunately, I had NRDC's Jessica Lass to keep me company):

The line to get in (at one point, there were at least 250 people, most of whom didn't make it in for oral arguments):

NRDC senior attorney Joel Reynolds (right) and Richard Kendall, who argued NRDC's case, speak to reporters after the hearing:

4:30 PM Arguing before the Supreme Court isn't like a presidential debate. If the lawyers don't answer the questions they're asked, or if they try to change the subject, the justices just keep coming back at them. (Of the court's nine justices, only Clarence Thomas didn't ask anything this morning.)

You could tell that both Kendall and Garre had a lot of points they were hoping to make today. But the solicitor general, who argued first, didn't even make it a minute into his argument before Justice Ginsberg cut in with the first question. Kendall had even less time when his half hour came.

Here are some of the main points that the justices kept bringing up (and how the attorneys dealt with them):

Sonar's impact on whales

Ginsberg's initial question concerned the details of the injunction issued by the lower courts to prevent the naval exercises from harming whales. Then Justice Alito jumped in with the second query, asking Garre about the number of marine mammals likely to be killed or injured by sonar blasts -- as opposed to simply "disrupted."

"No marine mammal would be killed as a result of these exercises," Garre declared, citing several times the Navy's "293-page" environmental assessment. A handful of animals -- dolphins, not whales -- could suffer permanent injuries, he said, but the vast majority would suffer only temporary disruptions.

"In lay terms, what does that mean?" Alito asked. Garre said: "There's a learning response. They hear the sound and they go in the opposite direction."

When Kendall got his chance later, he said the Navy's own studies -- as well as scientists around the world -- show that just isn't true. He talked about necropsies of beaked whales whose bodies have been found on beaches, which show hemorrhaging and embolisms from the impact of sonar.

Garre asserted that the Navy has been conducting exercises off California for 40 years with no evidence of mass strandings. There's a simple reason for that, Kendall said later: No one was looking.

"Until very recently," he elaborated to reporters after the hearing, "no one was studying the effects of sonar at all." Now that scientists are aware of the problem, the evidence for it is overwhelming.

What gives them the right?

The outcome of this case may hinge on whether the White House has the authority to grant the Navy an exemption from the National Environmental Policy Act, which it did after a lower court imposed additional safeguards on naval training exercises. (An office of the White House called the Council on Environmental Quality actually issued the ruling.)

Justice Souter wanted to know where in the statute it says that the CEQ can exempt a government agency from preparing an environmental impact statement. "I want to know what the statutory authority is," he repeated several times.

Chief Justice John Roberts followed on that same line by asking why the Navy went to CEQ, which isn't mentioned in NEPA. "It seems to me that CEQ is an odd body to be doing this, as an arm of the White House," Roberts said.

Garre said the government's position is that the Navy complied with the requirements of NEPA by complying with the alternative requirements created by the CEQ.

After the hearing, Kendall told reporters why it's so important that the White House not be allowed to let the Navy ignore NEPA's requirements. The act says government agencies are supposed to study the ways that they can avoid harming the environment before taking action, Kendall said. The Navy didn't do that here.

"If they can blow a hole through NEPA," Kendall said, "that would affect our lives in so many ways."

Why can't you just get along?

Breyer -- who got pretty much all of the morning's best lines -- said at one point that he's no expert in naval warfare or marine mammals, and that neither are the lower court judges who previously ruled in the case.

"Why couldn't you work this thing out?" he asked, rather than forcing the courts to resolve the conflicting evidence over whether sonar harms whales and what protections are good enough.

"The Navy is focused on having its own way or no way," Kendall responded, provoking a, "That's not fair," from Chief Justice Roberts. He said the Navy had already taken its own steps to protect marine mammals. But Kendall said they're too weak.

"We negotiated with the Navy for months and months and months," he said. Only the threat of litigation, and the court rulings in NRDC's favor, will force the military to make the changes that are needed, Kendall added.

"They wanted the blank check they're asking for here today," Kendall told reporters later, "and we simply cannot go that far."

Previously:
Who speaks for whales?
Whales get their day in court
More about the case on Switchboard