Winter, et al. v. Natural Resources Defense Council, Inc., et al.

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Authorship: Menaka Kalaskar, a 3L at Stanford Law School

Contents

[edit] Briefs and Documents

Docket: 07-1239

Issue: Whether courts below properly enjoined the Navy’s use of sonar during certain training exercises for failure to conduct an environmental impact statement over a finding of “emergency circumstance” by the Council on Environmental Quality.

Merit briefs

Amicus briefs

Oral Argument: Transcript

Opinion: REVERSED in an opinion by Chief Justice Roberts

[edit] Pre-Argument Articles

[edit] Argument Preview

Today in No. 07-1239, Winter v. Natural Resources Defense Council, the Supreme Court will consider two issues: first, whether a preliminary injunction enjoining the Navy from the use of environmentally damaging sonar was appropriate; and second, whether the district court issuing the injunction should have deferred to a subsequent federal agency ruling and vacated its preliminary injunction.

[edit] Background

This case stems from the legality of warfare training exercises conducted by the U.S. Navy off the coast of Southern California. The Navy trains in Southern California because its coastal bathymetry provides unique training opportunities, and because the area has the necessary bases to train integrated forces. The exercises, known as “SOCAL exercises,” test the Navy’s ability to conduct anti-submarine warfare (ASW) through the use of mid-frequency active sonar (MFA sonar). Active sonar, which allows a vessel to detect submarines in the vicinity, involves the transmission of a loud noise underwater from a sonar source, which then monitors whether the noise returns. If it does, it may indicate that the sound has bounced off a nearby submarine. The Navy prefers MFA sonar to other forms of sonar because it allows better detection of quiet diesel electric submarines.

The Southern California training area is also an area of extensive biological diversity. Dozens of species of marine mammals are found in the waters, including nine threatened or endangered species of whales, sea otters, sea lions, and fur seals.

The Navy acknowledges that MFA sonar “may affect both the physiology and behavior of marine mammals.” While the primary damage of MFA sonar understandably affects marine mammals’ auditory systems—including ruptured eardrums and damage to small bones caused by very high levels of acoustic energy—even at lower sound levels the sonar affects the animals in many other ways, both physiologically and behaviorally.

For example, several strandings of marine mammals have occurred during naval exercises around the world. Necropsies of dead whales showed hemorrhaging in and around the ears and internal organs; studies conducted after one such incident concluded that the use of MFA sonar was the “‘most plausible’” source of the hemorrhaging. And the use of MFA sonar also has “‘profound’” behavioral effects on marine mammals. The National Marine Fisheries Service, while conducting research on the SOCAL exercises in particular, cited studies showing that noise changed whale migration patterns, feeding and mating grounds, and even their calls – effects that could result in an animal’s death.

Pursuant to its obligations under National Environmental Policy Act (NEPA), the Navy issued an Environmental Assessment (EA) to estimate the amount of harm that MFA sonar would cause to marine mammals during the SOCAL exercises. It estimated 564 instances of harassment that would physically injure a marine mammal (Level A harassment), and nearly 170,000 instances of harassment that would disrupt the behavior of a marine mammal (Level B harassment), including over 8000 instances of temporary hearing loss.

In March 2007, plaintiffs, led by the Natural Resources Defense Council (NRDC), sued the Navy and other federal agencies in the U.S. District Court for the Central District of California. Plaintiffs claimed that the defendants had violated federal laws, including NEPA and the Coastal Zone Management Act (CZMA), and sought to enjoin the Navy’s use of MFA sonar because of its harmful effects on marine mammals.

In January 2008, the district court issued a preliminary injunction that allowed the Navy to proceed with its SOCAL exercises as long as it complied with certain conditions limiting the use of MFA sonar, including a total shutdown of MFA sonar within 2200 yards of a marine mammal, reduction of sonar level during significant surface ducting conditions, and a total prohibition on sonar use within 12 nautical miles of the California coastline.

On January 15, the Navy filed an emergency motion with the Ninth Circuit, seeking vacatur of the injunction or, in the alternative, a stay of the injunction pending the Ninth Circuit’s resolution of the matter. The Navy cited two new developments in support of its motion. First, President George W. Bush had exempted the Navy from the provisions of the CZMA pursuant to 16 U.S.C. § 1456(c)(1)(B), finding that the use of MFA sonar during the SOCAL exercises was a matter “‘essential to national security.’” Second, the Council on Environmental Quality (CEQ) had approved “alternative arrangements” to allow the Navy to continue its SOCAL exercises in compliance with federal law, finding that the district court’s preliminary injunction amounted to “emergency circumstances” within the meaning of 40 C.F.R. § 1506.11. On January 16, the Ninth Circuit remanded the matter to the district court to consider these two intervening actions by the executive branch.

On remand, the district court refused to vacate the preliminary injunction. The court found that because there were no “emergency circumstances” for purposes of 40 C.F.R. § 1506.11, CEQ’s “alternative arrangements” were invalid. In addition, the court expressed doubt about the constitutionality of the CZMA exemption, positing that the president’s actions appeared to contravene the powers vested in Article III courts. However, the court found it unnecessary to decide the constitutionality of the CZMA exemption because the NEPA claim sufficiently supported the preliminary injunction.

On appeal, the Ninth Circuit affirmed the district court’s preliminary injunction, holding that the district court had neither “relied on erroneous legal premises nor abused its discretion” in granting the preliminary injunction.

The Navy sought certiorari, which the Supreme Court granted on June 23, 2008.

[edit] Petition for Certiorari

The petitioners urged the Court to grant certiorari for three main reasons.

First, the Navy argued that the lower courts should have given CEQ’s interpretation of “emergency circumstances” controlling weight in determining whether it had complied with NEPA. In the Navy’s view, the district court’s preliminary injunction created an emergency. Canvassing both court of appeals and dictionary definitions of “emergency,” the Navy argued that emergencies exist even when events are foreseeable—for example, a strike by employees can create an emergency situation even where the strike is reasonably anticipated. The injunction’s immediate impact on military readiness and the ability to deploy strike groups around the world, the Navy asserted, constituted an emergency; thus, the court should have deferred to CEQ’s “alternative arrangements” for compliance with NEPA.

Second, the Navy argued that injunctive relief was an inappropriate remedy to begin with. Although a court normally balances the hardships of parties and the public interest as part of the preliminary injunction inquiry, such a balancing test was inappropriate “when Congress itself ‘decided the order of priorities in a given area.’” In the instant case, the Navy argued, Congress had expressed its judgment in the Marine Mammals Protection Act (MMPA) “that the public interest lies in permitting military activity . . . notwithstanding any potential to harm marine mammals.” This explicit congressional judgment should override the judicial equitable balancing of hardships.

Third, the Navy emphasized that in upholding the preliminary injunction the Ninth Circuit had inappropriately relied on the “mere possibility” of irreparable injury. Instead, according to the Navy, a plaintiff must prove that she “will suffer irreparable injury” in the absence of injunctive relief. The less stringent standard applied by the Ninth Circuit conflicted with the holdings of other circuits and ignored the magnitude of harm that would befall national security interests if the Navy was not allowed to continue its use of sonar.

Opposing certiorari, NRDC first noted that granting injunctive relief was well within the court’s discretion. The NRDC argued that the district court’s determination of “‘near certainty’” of harm to marine mammals warranted a tailored injunction that built in safeguards for the protection of marine life. In the NRDC’s view, Congress’s judgment in the text of MMPA, on which the Navy relied, had no bearing on questions of NEPA compliance.

Next, the NRDC noted that the district court had found a “near certainty” of widespread harm to marine life under the Navy’s inadequate protection measures, thus showing that it was more than a “possibility.” In any event, it argued, the showing of harm exceeded the amount required for relief under any applicable standard. Both the harm and the merits prongs represented sliding scales in the injunctive relief inquiry—“a higher showing on the merits reduces the required showing of harm, and vice versa.”

Third, the NRDC argued that the district court appropriately considered the magnitude of harm to both parties when tailoring mitigation measures, and that the court of appeals affirmed that “‘there [was] significant evidence of the Navy’s ability to successfully train” strike groups while obeying the conditions imposed by the district court. The district court reviewed thousands of pages of evidence in coming to its determination. Under an abuse of discretion standard, the Ninth Circuit properly relied on the district court’s factfinding.

Last, the NRDC supported the district court’s invalidation of CEQ measures, for three reasons: 1) in providing “alternative arrangements,” CEQ had conducted a closed ex parte proceeding, reviewing the Navy’s evidence only; 2) the language and purpose of NEPA “could not be squared” with CEQ’s determination; and 3) CEQ exceeded its regulatory authority in overruling a court-ordered injunction.

[edit] Merits Briefing

In its merits brief, the Navy expands upon the arguments made at the certiorari stage. It begins by arguing that CEQ’s interpretation of its own regulation and subsequent authorization of “alternative arrangements” are entitled to “substantial deference.” The Navy argues for a common-sense definition of “emergency” that includes foreseeable events. The relevant inquiry should be whether the circumstances call for an “immediate response” to avert “significant impending harm to the public interest.” When, as here, the Navy completed a thorough EA and believed it would not have to move forward with an Environmental Impact Statement (EIS) before conducting its exercises, no emergency arose until the district court imposed an injunction restricting their ability to train forces.

In the Navy’s view, the Ninth Circuit’s deference to the district court’s interpretation of 40 C.F.R. § 1506.11 was “backwards.” The court should have instead examined the relevant question of agency deference under Court precedent: whether the “‘agency’s interpretation must be given ‘controlling weight’” because it is not “plainly erroneous or inconsistent with the regulation.” CEQ’s interpretation meets that standard, and should have been accorded deference. The Navy argues that the Ninth Circuit’s abuse-of-discretion standard of review on the CEQ question was further error, because the Ninth Circuit was obligated to review legal interpretations de novo.

As its second major argument, the Navy again argues that even without CEQ approval of “alternative arrangements,” the district court lacked discretion to conduct its own balancing of hardships in granting injunctive relief. Because Congress already expressed its judgment in MMPA that protection of marine life must sometimes cede to important military interests, the district court could not come to a different conclusion.

The Navy also expands upon its argument that the Ninth Circuit erroneously upheld injunctive relief based on the “‘mere possibility’” of irreparable harm, rather than requiring proof that the movant would certainly suffer irreparable injury. Because the data does not conclusively show harm to marine life in California, the “possibility” of harm is only speculation, and inadequate to support a preliminary injunction.

Third, the Navy argues that Article III remedies must provide relief for an injury suffered by the plaintiff, rather than the environment. Respondents do not have a “legally cognizable interest” in individual marine mammals—instead, they must show species-level harm to demonstrate that their aesthetic and recreational benefits would be harmed through the Navy’s use of MFA sonar.

In closing, the Navy repeats its balance-of-hardships argument. The United States, “‘currently engaged in war, in two countries,’” cannot afford the “unacceptable risk to training effectiveness” that the injunction presents. The Navy asserts that it is certain to suffer concrete, “potentially catastrophic” harm from the lower courts’ actions, whereas the plaintiffs will merely be deprived of their “aesthetic enjoyment of certain marine species.” The Navy urges the judiciary to avoid overruling professional military judgment and asks the Court to vacate the preliminary injunction.

In its brief on the merits, NRDC also builds on its positions from the certiorari stage. On the CEQ question, it emphasizes that the CEQ approved “alternative arrangements” after an ex parte meeting in which NRDC was unable to participate. NRDC rejects the Navy’s quibbling over the definition of “emergency circumstances.” Instead, it reframes the debate and argues that CEQ could not have decided an “emergency” existed “under any definition of that term” without rejecting the district court’s factual determination that the Navy could still proceed with its SOCAL exercises under the mitigation measures proposed by the injunction.

Next, NRDC levels a powerful claim: that CEQ’s decision allowed the executive branch to replace “binding Article III order[s]” with a preferred arrangement, violating the separation-of-powers doctrine. NRDC argues that ruling in the Navy’s favor would “break new and dangerous ground, by embracing the remarkable proposition that Article III courts must . . . dissolve injunctions . . . when administrative agencies subsequently review and disagree with the courts’ findings.” This proposition, asserts NRDC, would contravene the separation-of-powers principle espoused by the Court in 1792, when it invalidated a statute that allowed the Secretary of War to review pension decisions made by Article III courts.

Even if the district court had not already decided the issue, NRDC asserts that CEQ’s determinations would still be erroneous, because Congress has not given CEQ any “adjudicatory authority,” its decision contravenes Congress’s intent in ratifying NEPA, and it violated the requirements of the Administrative Procedure Act in allowing the Navy to abide by “alternative arrangements.”

Turning to the question of the appropriateness of injunctive relief generally, NRDC refutes the Navy’s arguments that MMPA’s balancing of military activity and protection of marine life does not extend to NEPA. NRDC argues that NEPA, an “entirely separate statute” from MMPA, contains no command from Congress for the courts to cede their equitable jurisdictional powers. To the contrary, despite providing for numerous national security exemptions in other federal environmental statutes, Congress has attached none to NEPA.

Next, the NRDC reiterates that it proved irreparable injury “‘to a near certainty,” including widespread harm to various species, and that the court of appeals – which reviewed for clear error – was bound by this lower court determination. The NRDC emphasizes the Navy’s own estimates of harm to marine mammals during the completion of the SOCAL exercises, which amount to 170,000 instances of marine mammal taking. In any case, the NRDC asserts, the irreparable harm standard is a sliding scale that is frequently used by courts.

Finally, the NRDC refutes the Navy’s assertion that the district court provided blanket protection to marine mammal species to the total exclusion of naval interests in conducting training exercises. In fact, the district court reviewed extensive information provided by both parties before it created an injunction narrowly tailored to reach a mutually satisfactory agreement. The court accepted the Navy’s assertion that the use of MFA sonar was critical to national security, and accordingly allowed it to use the sonar subject to some mitigation measures. NRDC notes that the Navy has continued its training in the wake of the injunction, certifying strike groups and training effectively subject to the court’s restrictions.

The California Coastal Commission (CCC) intervened as an appellee below. It filed a separate brief as a respondent in the case, making arguments similar to NRDC’s brief. CCC makes a case for California’s interest in protecting its marine mammals, which provide numerous recreational and economic benefits to Californians.

The case has understandably generated much interest on both sides. There are a total of eight amicus briefs at the merits stage, from groups as varied as the National Association of Home Builders to individual law professors. A brief from the Navy League of the United States and several retired naval officers describes in detail how the use of sonar allows the Navy to detect and counter the dangerous threat from submarines.

This case raises a number of national security, environmental, and separation-of-powers issues. It will be interesting to see what the Court chooses to focus on in the upcoming argument.

[edit] Oral Argument Recap

The Court focused on three main points during Solicitor General Garre’s argument. First, it wanted to discuss the Navy’s failure to file an environmental impact statement (EIS). Justice Souter questioned Garre at length about whether it was the Navy’s own “deliberate inattention” that caused “emergency circumstances.” The Justices wanted to know whether it was understood that the Navy had a duty to file an EIS and, if so, why they didn’t just file one to begin with. Garre responded that after conducting an exhaustive 293-page environmental assessment (EA), the Navy believed in good faith that there would be a finding of no significant impact; thus, it was not required to continue with an EIS. Garre then conceded, however, that the Navy nevertheless agreed to complete an EIS by January 2009 pursuant to the “alternative arrangements” set up for the Navy by CEQ. Justice Ginsburg objected to releasing an EIS at the conclusion of the SOCAL exercises when the whole point of NEPA was to assess environmental harms before the government took action. Garre responded that the EIS applied to future activity as well, and thus would serve a meaningful purpose.

Second, Justice Souter introduced a line of questioning about whether NEPA authorized CEQ to declare “emergency circumstances” and exempt the Navy from complying with the law. Garre replied that the Court had previously acknowledged CEQ’s rulemaking authority; NEPA requires only that its provisions be followed to the fullest extent possible, which could depend on the circumstances. Chief Justice Roberts questioned the wisdom of going to CEQ over any other governmental body, reasoning that it was “more or less” just a White House office, “rather than a free-standing agency.” Justice Ginsburg cut in with a question about what, precisely, CEQ had the authority to do. Garre responded that CEQ had the power to implement the statute, and that it had imposed significant arrangements upon the Navy pursuant to an “alternative arrangement” scheme.

Third, the Court questioned Garre on the Navy’s “irreparable injury” argument. Garre answered that he was not aware of any court decision that did not require the irreparable injury prong to be met. He asserted that NRDC had failed to show concrete irreparable injury, and thus failed to meet a necessary prong of the preliminary injunction analysis.

The Court focused on two main issues during Richard B. Kendall’s argument for respondents. First, Justice Breyer questioned Kendall extensively about the Navy’s serious contentions that powering down during critical training periods would hamper its ability to train forces. Kendall responded that surface ducting conditions, during which the Navy was required to reduce sonar levels, did not occur at all during the Navy’s eight most recent exercises. The Navy was able to certify groups despite the lack of training in surface ducting conditions, showing that such conditions were not critical to training exercises. Kendall argued further that according to the Navy’s own after-action reports, the 2200-yard safety zone required the Navy to shut down its sonar only one more time per exercise. Responding to follow-up questioning from Chief Justice Roberts, Kendall asserted that the “proof [was] in the pudding”—the Navy had conducted eight exercises under the injunction’s restrictions and had not returned to the district court to seek relief, as it was “invited” to do.

Second, the Court focused on whether the district court had appropriately balanced the equities in the case. Chief Justice Roberts formulated a hypothetical with marine mammals on one side of the scale, and a North Korean diesel electric submarine within reach of Pearl Harbor on the other. To him, this was a “pretty clear balance” that the district court failed to analyze. Kendall flatly disagreed. He stated that the district court judge made a factual finding that the Navy’s training would not be affected. With no harm to naval training, Kendall argued, the environmental harms weighed much heavier in Chief Justice Roberts’s scale. In the face of further questioning on whether the district court had properly balanced the interests involved, Kendall reiterated his point that the judge had reviewed a voluminous record before concluding effective naval training could continue with certain restrictions. He reminded the Court that the judge had been “extraordinarily deferential” to Navy concerns.

Solicitor General Garre gave a brief rebuttal, emphasizing that respondents could not show an irreparable injury to themselves, particularly concerning any conceivable harm to beaked whales, which are incredibly difficult to spot. He closed by highlighting that there was an “absence” of injury to marine mammals in Southern California despite forty years of Navy training in the area.

[edit] Opinion Analysis

“‘To be prepared for war is one of the most effectual means of preserving peace.’” So begins Chief Justice Roberts’ opinion in Winter v. NRDC—a quote from George Washington’s Annual Address to Congress, and a signal that the Court’s weighing of interests comes down “strongly in favor of the Navy.” Indeed, in its twenty-four-page majority opinion, the Court declares numerous times that the balance of hardships and the public interest—two of the four preliminary injunction inquiries—weigh so overwhelmingly in favor of the Navy that it doesn’t even “strike [the Court] as a close question.” The Court finds that the district court abused its discretion in imposing sonar shutdown and power-down requirements on the Navy, and it reverses and vacates those portions of the injunction.

The Court begins its discussion of the case with the lower court rulings on NRDC’s likely success on the merits. It then moves on to the lower court determinations of the second preliminary injunction inquiry—the threat of irreparable harm or injury. The Court agrees with the Navy that the circuit court’s “possibility” of harm standard is not stringent enough. Instead, the Court asserts its “frequently reiterated standard” that irreparable injury be “likely in the absence of an injunction.” Granting a preliminary injunction based only on a possibility of harm is “inconsistent” with an injunction’s purpose as an extraordinary remedy requiring a “clear showing” of success by the plaintiff. The Court notes that the Navy challenged only two of six restrictions in the preliminary injunction, and it finds fault with the district court’s failure to reconsider the irreparable harm question in light of this narrow challenge. Because four other restrictions went unchallenged, the district court should have reconsidered whether the four restrictions were sufficient to prevent the irreparable injury alleged by NRDC.

Next, the Court considers the purpose and requirements of NEPA. Here, the Court seems to avoid the straightforward question of whether the Navy violated NEPA. It notes that NEPA imposes “only procedural requirements” aimed at researching and releasing information about environmental effects stemming from agency action. The Court appears to be satisfied that the Navy has conducted these exercises for forty years and “took a ‘hard look at environmental consequences’” before beginning its SOCAL training.

The Court finally notes that deciding the questions of likelihood of success and irreparable injury are unnecessary because a “proper consideration” of naval and public interest alone instructed denial of injunctive relief. It proceeds to discuss favorably several naval officer statements that the use of MFA sonar under realistic conditions was of vital interest to the Navy and the country. The Court agrees that NRDC’s proffered ecological, scientific, and recreational interests were important, but when the injury to plaintiffs was at most “harm to an unknown number of marine mammals,” the possibility of the Navy deploying “inadequately trained” forces that would “jeopardize[] the safety of the fleet” represented greater harm. The Court asserts that the district court and Ninth Circuit had given the Navy’s interests inadequate consideration and had relied on faulty reasoning to conclude that the Navy would be able to train groups effectively while abiding by the court-imposed shutdown and power-down requirements.

Justice Breyer filed an opinion concurring in part and dissenting in part. Justice Stevens joined Part I of this opinion.

Part I acknowledges that although NRDC had a strong argument favoring the injunction, the overall balance of harms and a review of the lower court rulings did not provide enough support for the preliminary injunction. First, the evidence surrounding the need for the shutdown and power-down requirements was “weak or uncertain.” Second, the Navy offered multiple affidavits from naval training experts documenting the serious problems the injunction would impose on effective naval exercises. Third, the district court did not explain why it rejected these officers’ affidavits in overriding their judgment and imposing the restrictions. Fourth, the circuit court did not provide adequate explanations for its view that the injunction would pose minimal intrusions on naval exercises. Fifth, when the circuit court had remanded an initial injunction that imposed a blanket ban on naval exercises, it explained that the injunction must be narrowed so that the Navy could still conduct its training exercises. In Justice Breyer’s view, in imposing and upholding the subsequent injunctions, neither lower court adequately explained why the Court should reject the Navy’s evidence that it would not be able to effectively train its sailors.

Justice Breyer concurs in the majority’s decision to vacate the parts of the injunction challenged by the Navy.

In Part II of his opinion, Justice Breyer recounts the Ninth Circuit’s decision to impose modified restrictions upon the Navy pending resolution of this case. The first modified restriction allowed the Navy to continue its MFA sonar use during critical points in training, even when a marine mammal was spotted within 2200 yards. The second modified restriction allowed the Navy to power down its sonar proportionate to the proximity of a marine mammal during surface ducting conditions, and only required total shutdown within 500 meters. Justice Breyer considers these modified conditions to represent “the best equitable conditions that can be created” in the short time before the Navy completes its exercises and an EIS. He would therefore modify the order to allow the modified conditions to remain in place until the completion of the Navy’s SOCAL exercises.

Justice Ginsburg, joined by Justice Souter, dissented from the Court’s judgment. She believes the district court “conscientiously balanced the equities” and did not abuse its discretion in imposing a preliminary injunction. The dissenting opinion asserts that an EIS is NEPA’s “core requirement.” Its publication serves an informational role. The timing of an EIS forces the agency to assess the environmental consequences of its actions before those actions are taken. Thus, the Navy’s failure to prepare an EIS before conducting its training defeated the core purpose of NEPA.

The dissenting opinion also finds fault with the Navy’s “extraordinary course” of action in flouting its statutory duty and seeking relief from CEQ, an executive agency “lack[ing] authority to absolve an agency of its statutory duty to prepare an EIS.”

Next, the dissenting opinion discusses the nature of equity jurisdiction. It approves of the “possibility” of harm standard employed by the district court and Ninth Circuit, noting that courts “do not insist that litigants uniformly show a particular, predetermined quantum of probable success or injury before awarding equitable relief.” Flexibility is particularly important in the context of environmental claims, where future harm is uncertain and plaintiffs may rely more on their probability of success on the merits than demonstrating likely harm.

Conducting a balancing of equities on both sides, Justice Ginsburg notes that the Navy’s own EA predicted substantial harm to marine mammals in the Southern California area. A prediction of 436 Level A harassments of beaked whales, for example, where as few as 1121 exist along the West Coast, represented serious environmental harm in the dissent’s view

In light of the likely environmental harm posed by the naval training exercises, NRDC’s likelihood of success on the merits, and a balancing of the equities and public interest, the dissent does not agree that the preliminary injunction was an abuse of discretion. It would affirm the Ninth Circuit’s judgment.

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