Wednesday, November 12, 2008

High Court Rules In Winter (Navy) v. NRDC On Sonar Issues

Nov 12: In the U.S. Supreme Court, the case of Donald C. Winter, Secretary of the Navy, et al. v. Natural Resources Defense Council, Inc., et al., [NRDC] Case No. 07–1239 [See WIMS 10/9/08]. The case was appealed from the U.S. Court of Appeals, Ninth Circuit [See WIMS 3/3/08]. In this complicated split decision, Justice Roberts delivered the opinion of the Court, in which Justices Scalia, Kennedy, Thomas and Alito joined. Justice Breyer filed an opinion concurring in part and dissenting in part, in which Justice Stevens joined as to Part I. Justice Ginsburg filed a dissenting opinion in which Justice Souter joined.

The questions presented that were stated by the High Court are: The district court found a likelihood that the Navy failed to comply with the National Environmental Policy Act (NEPA) and preliminarily enjoined the Navy’s use of midfrequency active (MFA) sonar during training exercises that prepare Navy strike groups for worldwide deployment. The Chief of Naval Operations concluded that the injunction unacceptably risks the training of naval forces for deployment to high threat areas overseas, and the President of the United States determined that the use of MFA sonar during these exercises is “essential to national security.” The Council on Environmental Quality (CEQ), applying a longstanding regulation, accordingly found “emergency circumstances” for complying with NEPA without completing an environmental impact statement. The Ninth Circuit nevertheless sustained the district court’s conclusion that no “emergency circumstances” were present and affirmed the preliminary injunction.

The questions presented are: 1. Whether CEQ permissibly construed its own regulation in finding “emergency circumstances?”2. Whether, in any event, the preliminary injunction, based on a preliminary finding that the Navy had not satisfied NEPA’s procedural requirements, is inconsistent with established equitable principles limiting discretionary injunctive relief.

The majority opinion of the High Court held that the Court of Appeals was wrong in upholding a preliminary injunction imposing restrictions on the Navy’s sonar training and reversed and vacated its decision. The majority noted that even the Appeals Court acknowledged that “the record contains no evidence that marine mammals have been harmed” by the Navy’s exercises. In its opinion, the majority said, "The use of MFA [“mid-frequency active”] sonar during these exercises is 'mission-critical,' given that MFA sonar is the only proven method of identifying submerged diesel-electric submarines operating on battery power."

The Supreme Court said, "The Navy emphasizes that it has used MFA sonar during training exercises in SOCAL [southern California] for 40 years, without a single documented sonar-related injury to any marine mammal.The Navy asserts that, at most, MFA sonar may cause temporary hearing loss or brief disruptions of marine mammals’ behavioral patterns."

The Supreme Court ruled, "We agree with the Navy that the Ninth Circuit’s 'possibility' standard is too lenient. Our frequently reiterated standard requires plaintiffs seeking preliminary relief to demonstrate that irreparable injury is likely in the absence of an injunction. . . We also find it pertinent that this is not a case in which the defendant is conducting a new type of activity with completely unknown effects on the environment. . . the plaintiffs are seeking to enjoin -- or substantially restrict -- training exercises that have been taking place in SOCAL for the last 40 years."

The majority ruled further, "even if plaintiffs have shown irreparable injury from the Navy’s training exercises, any such injury is outweighed by the public interest and the Navy’s interest in effective, realistic training of its sailors. A proper consideration of these factors alone requires denial of the requested injunctive relief. . ." Finally, the Supreme Court majority says, "We do not discount the importance of plaintiffs’ ecological, scientific, and recreational interests in marine mammals. Those interests, however, are plainly outweighed by the Navy’s need to conduct realistic training exercises to ensure that it is able to neutralize the threat posed by enemy submarines. . ."

The High Court also commented on the dissenting opinions in a footnote saying, "As to the injunction, the dissent barely mentions the Navy’s interests. . . We find that those interests, and the documented risks to national security, clearly outweigh the harm on the other side of the balance. We agree with much of Justice Breyer's analysis. . . (opinion concurring in part and dissenting in part), but disagree with his conclusion that the modified conditions imposed by the stay order should remain in force until the Navy completes its EIS . . ."

NRDC issued a release and further information on the decision. Joel Reynolds, senior attorney and director of NRDC’s marine mammal program said, “The essential ruling today is that the lower courts did not properly balance the competing interests in issuing and upholding the injunction. However, this is a narrow ruling that leaves in place four of the injunction’s six mitigation measures that protect marine mammals from harm caused by high-intensity sonar during training. The Supreme Court eliminated two of the injunction’s mitigation measures out of deference to the Navy’s claims that they would impinge on training. The court did not upset the underlying determination that the Navy likely violated the law by failing to prepare an environmental impact statement.” Richard Kendall, NRDC co-counsel said, “It is gratifying that the court did not accept the Navy’s expansive claims of executive power, and that two thirds of the injunction remain in place." NRDC said, "The Navy acknowledges that sonar can be deadly to marine mammals, and that the exercises at issue would 'take' an estimated 170,000 marine mammals, including causing permanent injury to more than 500 whales and temporary deafness to at least 8,000 whales."

Access the complete opinion and dissents (
click here). Access the Supreme Court Docket for the case (click here). Access the oral argument transcript (click here). Access links to briefs filed in the case (click here). Access the opinion of the Ninth Circuit (click here). Access a release from NRDC with links to background information (click here). [*Wildlife, *Water]

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