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Justices Mull Environmental Law, Job Discrimination

October 8, 2008 at 6:40 PM EDT
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The Supreme Court appeared divided over judges' authority to limit the U.S. Navy's use of sonar to protect whales and weighed a workplace harrassment case Wednesday. Marcia Coyle of the National Law Journal recaps the day in the courtroom.

JIM LEHRER: And now, two arguments before the Supreme Court, and to Judy Woodruff.

JUDY WOODRUFF: On just the third day of their new term, the justices today tackled two of the main issues on their docket this year: environmental law and job discrimination.

Here to walk us through both cases is NewsHour regular Marcia Coyle of the National Law Journal.

Hello, Marcia.

MARCIA COYLE, National Law Journal: Hi, Judy.

JUDY WOODRUFF: All right, these are two really interesting cases…

MARCIA COYLE: Yes, they are.

JUDY WOODRUFF: … one of them, the United States Navy against the whales off the coast of California. Let’s start by telling us what it is that the Navy and the Bush administration are — what they argue as they bring this case?

MARCIA COYLE: The Navy is basically challenging a court order here that imposed restrictions on how it conducts very complicated, sophisticated sonar training exercises off the coast of Southern California.

The judge here, in order to protect marine mammals, said that the Navy had to power off the sonar if a marine mammal came within 2,200 yards of the sonar source or power down 75 percent if the Navy detected activity in the water.

The judge’s order was the result of a lawsuit filed by an environmental group, the Natural Resources Defense Council, which claimed the Navy had violated federal law by not doing an environmental impact statement before starting the training exercises.

The Navy's argument

JUDY WOODRUFF: So the case here boils down to what? I mean, you were telling me before, it's not so much about environmental impact as it is what the judge did in issuing this injunction?

MARCIA COYLE: Well, the Navy is basically saying the judge used the wrong standard when it issued his -- when he issued his order for the Navy.

Today, Solicitor General Greg Garre, who represented the Navy in the court, argued that the court here that issued the order ignored evidence that the restrictions imposed by the judge would seriously interfere with the Navy's ability to do the exercises, which in turn would damage our ability to protect national security.

And he also argued that the court here ignored statements by the president, as well as the nation's chief naval officer, that this was a serious interference with what the Navy was trying to accomplish.

The court -- the justices in their questioning probed the Navy about how 2,200 yards and 75 percent power-down really affected their use of sonar. But they also were very concerned about the Navy's claim that, one, it did its own environmental assessment and that assessment showed there would be no serious injury to marine mammals.

So they asked the solicitor general, What do you mean by that? Justice Alito said, Tell me in practical lay terms, what is non-serious injury to mammals?

And Mr. Garre told the court that no mammals would be killed by the use of sonar, that there may be a temporary impact on breeding and feeding, and if whales heard the sonar, they would probably turn and go in the opposite direction.

The environmental challenge

JUDY WOODRUFF: Can you tell how much those environmental arguments are going to matter?

MARCIA COYLE: Well, I think the court is concerned about the Navy's ability to do what it has to do to protect national security. So that put the onus on the environmental group's counsel, who was up next, Richard Kendall for Natural Resources Defense Council.

And he argued that, well, this judge who issued the order had ample evidence based on prior Navy training exercises that the Navy could do the exercise under the conditions the judge imposed.

And he also disputed the Navy's assessment of injury to marine mammals. He said, for example, there was overwhelming scientific evidence that beaked whales that have been stranded around the world were stranded because of sonar.

JUDY WOODRUFF: So this is a case you were saying the environmental groups and, of course, the military are watching...

MARCIA COYLE: The Navy wants a rule...

JUDY WOODRUFF: ... closely?

MARCIA COYLE: ... that will prevent future orders like this. Environmentalists are concerned that the Navy's rule would prevent them from enforcing a major environmental law.

Taking up job discrimination

JUDY WOODRUFF: All right, let's move to the second case, to the jobs discrimination case. This is alleged retaliation against a woman in Nashville who complained about -- that she was harassed by her employer and then she was fired. Tell us about that.

MARCIA COYLE: Vicky Crawford was a 30-year employee with the Nashville Metropolitan School District. She was called in to an interview when her employer had launched an internal investigation of some employee's concerns that one of the directors at the district was engaging in sexual harassment.

She didn't complain, but she participated in the investigation because she had contact with this director as part of her job. In the interview, she said that this director had, on a number of occasions, asked to see her "titties," had grabbed his genitals, pushed his crotch up against her window, and even pulled her head once again his crotch.

About three months after the investigation was concluded -- and it was concluded with a verbal reprimand to this director -- she was fired, allegedly for irregularities in her job as payroll coordinator.

She sued, claiming the employer retaliated against her for her testimony in the investigation. Her suit was thrown out at a very early stage. She didn't get to a jury. The lower court said the anti-retaliation provisions in the major federal job bias law didn't cover her. And that's the dispute before the Supreme Court today.

Retaliation protection

JUDY WOODRUFF: Getting to the heart of it, I gather, that the definition of what constitutes an objection, did she raise an actual objection to this behavior?

MARCIA COYLE: Right, exactly. The retaliation provision in the law has two parts. An employee is protected if the employee opposes the illegal discriminatory act or if the employee participates, testifies, assists in any way in an investigation under Title VII.

Her lawyer, Professor Eric Schnapper, argued that her situation fit right within that. The opposing lawyer for the school district sees the language in those two provisions much narrower.

JUDY WOODRUFF: And I saw the Chamber of Commerce filed an amicus brief, because they're worried about other employees...

MARCIA COYLE: Yes, the competing concerns here are, if employees who participate in their employer's investigation aren't protected against retaliation, they won't cooperate, because they'll fear they'll lose their jobs.

Business fears that, if they are protected, an employee can immunize himself or herself for years from any adverse action by their boss simply because they participated in an internal investigation of harassment.

JUDY WOODRUFF: All right. One was job discrimination; the other one was the Navy...

MARCIA COYLE: And more to come.

JUDY WOODRUFF: ... versus the whales. And there's more to come. Marcia Coyle, thanks very much.

MARCIA COYLE: My pleasure.