Winter v. Natural Resources Defense Council, Inc.
Winter v. Natural Resources Defense Council, Inc.
On appeal from the Ninth Circuit Court of Appeals.
The Natural Resources Defense Council is an environmental action group that's been around since 1970. It is also very modest; its website proclaims: "NRDC is the nation's most effective environmental action group, combining the grassroots power of 1.2 million members and online activists with the courtroom clout and expertise of more than 350 lawyers, scientists and other professionals." The et al. with the NRDC also included Jean-Michael Cousteau, the documentary filmmaker and marine life advocate.
In this case, they represent the Whales.
The National Environmental Policy Act requires that all federal agencies (like the Navy) must, as much as is practicable, prepare environmental impact statements for major federal actions that affect the quality of the environment. The federal agency does not have to prepare an environmental impact statement if it does an environmental assessment that would show that the proposed action would not have a significant impact on the environment.
The Marine Mammal Protection Act forbids the harassing, hunting, capturing or killing of marine mammals. However, the Secretary of Defense may exempt actions from this statute that are necessary for national defense.
First, the Secretary of Defense, in January 2007, gave the Navy an exemption from the Marine Mammal Protection Act to conduct a series of training exercises in the Pacific off the coast of southern California. Those training exercises involve the use of mid-range active sonar.
Active sonar bounces sound off of underwater objects to determine the objects' location. For this reason, sonar particularly useful in detecting submarines. Diesel-electric submarines - which since WWII are the most common kind - are almost completely silent underwater. Active sonar is the most effective method for detecting them.
Sonar is also difficult to use. Sound travels faster through denser material. So, sound travels faster through cold water than through warm water, and it travels faster (and farther) in water than in air. Knowing the temperatures of the water and how the sound is reflected through that water is an important part of learning to use sonar.
The reason that the Secretary needed to give the Navy an exemption is that sonar is also very loud. There are two elements to measuring the output of the sonar (or any acoustic audio) - the power of the sound wave (decibels or dB) at a given distance to the sound generator (speaker). Mid-frequency sonar can be as loud as 235 dB at 1 meter. For your reference, 120 dB in air for a few minutes is enough sound to permanently damage human hearing. Decibels are an logarithmic measurement - for every 6 dB increase, the amount of sound doubles. So, 235 dB isn't twice as loud as 120 dB, its an order of magnitude greater. Nonetheless, as this article from Dr. Peter Madsen indicates, the same amount of dB in water does not necessarily carry the same intensity on a submerged ear. So 120 dB in water has much less intensity, and would not necessarily do the same kind of damage.
But, because sonar can injure marine mammals, and also because operators need to be trained in its use, the Navy needed an exemption from the Marine Mammal Protection Act because the animals could be injured or killed by these loud sounds. Even so, the exemption was limited. The Navy limited its own actions during its training exercises, a promised to:
Then, in Febuary 2007 (one month after it got the exemption from the Marine Mammal Protection Act), the Navy issued an environmental assessment on the training exercises. The assessment said that the Navy did not expect that there would be significant impact on the environment.
The assessment said that there had not been a reported incident in the last 40 years of training exercises. Only eight dolphins would be exposed to the greatest danger. While 274 beaked whales would be exposed to some danger (Level B; whatever that means) the Navy classified those as being in the greatest danger, out of an abundance of caution. The environmental assessment noted some large numbers: it said that there could be 564 injuries amoung marine mammals, over 100,000 behavioral disturbances, and roughly half of the 1,100 beaked whales livinig off the west coast could be injured.
Then, without preparing an environmental impact statement, the Navy began training exercises immediately.
The National Resources Defense Counsel sued. It complained that the Navy short-circuited the National Environmental Policy Act when it determined that it did not need to prepare an environmental impact statement. The National Resources Defense Counsel asked the district court to stop the Navy's exercises until an environmental impact statement was prepared.
On remand the district court gave it a second try and crafted a less intrusive injunction. The injunction permitted the exercises under if the Navy:
The Navy acquiesced to some of this injunction, but not all of it. The Navy concluded that the last two restrictions were too much trouble, and it appealed those determinations to the executive branch.
The executive branch determination was that the Navy was needed to do the training, and it could make alternative arraignments (ignore the injunction) because of the emergency circumstances presented by the case. The Navy asked the district court to abandon its injunction. The district court said no. And this time the Navy appealed to the Ninth Circuit.
On the second time around, the ninth circuit affirmed the two restrictions. The Ninth Circuit was unimpressed with the "emergency" the executive branch was claiming. It was an emergency of the Navy's own making by not preparing an environmental impact statement as it should have. The Navy appealed to the Supreme Court.
It reversed the ninth circuit. Five justices joined in a majority opinion, two justices concurred and two justices dissented.
And preliminary injunction requires four things. First, the party asking for the injunction must be likely to succeed on the merits. Second, the party must show that, unless an injunction is issued, there will likely be irreparable harm. Third, the party must show that the "balance of the equities" goes in his favor. Fourth, the party must show that the injunction is in the public interest.
The Supreme Court analyzed the various requirements of the injuction. Let's look at what it said:
So, instead, the Court seemed entertain the idea that irreparable harm wasn't likely. The Court complains that sonar exercises have been going on for 40 years, only two of the six injunctive protections are challenged, and that the environmental assessment didn't say that irreparable harm was likely to happen. And then the Court abruptly decides it won't bother to reverse the lower courts on this issue either:
The Supreme Court notes that injunctions are special things - limited to times when an injunction is really needed. Injunctions are "extraordinary" remedies - not to be given lightly.
In this instance, the Supreme Court believed that the district court and the appeals court just didn't balance those equities the way it should. For non-lawyers, balancing the equities in this instance is shorthand for thinking about it really hard. In essence, when a court balances the equities it makes value judgments about what it thinks are important and what isn't important and then decides. Equities balancing is a quintessential judicial thing - its making a judgment call - in this case, its balancing the equities.
The Court explains why it thinks the equities are against the environmentalists in this instance. First, when the Navy brass says that it is so, courts should show some deference to their opinion. In this instance, the Navy emphasizes how important it is that its sonar operators train. It is not like riding a bicycle. The operators need to practice it to stay sharp. Second, protecting marine mammals is nice and all, but "whale watching trips, observ[ing] marine mammals underwater, conduct[ing] scientific research on marine mammals, and photograph[ing] these animals in their natural habitats" just can't compete with national security, i.e. protecting us against the hostile militaries of foreign governments. The President even said that this training is vital to national security.
It isn't just that the equities that are against the environmentalists. The public interest in a prepared military is much greater than some sea mammals out in the Pacific Ocean. The Court seems to be saying, "Sorry, humans are worth more than animals. Even when those animals are whales."
But the Supreme Court disagreed - the lower courts didn't give enough weight to the top Naval Officers that gave evidence that this would be disruptive.
"Given that the ultimate legal claim is that the Navy must prepare an [environmental impact statement], not that it must cease sonar training, there is no basis for enjoining such training in a manner credibly alleged to pose a serious threat to national security. This is particularly true in light of the fact that the training has been going on for 40 years with no documented episode of harm to a marine mammal."
First, the environmental assessment covered the Navy's exercises as originally proposed. Not the exercises with the four new limitations. So there has been no comparison of this restriction relative to what the district court ordered and the restriction with the two heaviest impositions removed.
Second, the Navy put forward credible evidence that those two restrictions would seriously interfere with the important training exercises.
Third, the district court didn't explain why it rejected the Navy's contentions. Fourth, Justice Breyer believed the appeals court unconvincingly reasoned that the restrictions would not damage the Navy's ability to train.
Finally, during the first appeal, the appeals court held that the district court should narrow the injunction in such a way that the Navy could train. Justice Breyer believed that this was still true, thus, he would reverse the Ninth Circuit because the Navy made it abundantly clear it would not he able to effectively train under the district court's two restrictions. Justice Stevens agreed with him.
But, while Justice Stevens agreed with Justice Breyer on the reason that the injunction needed to be reversed, Justice Stevens didn't agree with Justice Breyer's fix.
Justice Breyer would have approached the fix on this injunction in a completely different way than the majority opinion. The majority reversed the decision of the appeals court and eliminated the last two restrictions from the injunction entirely. In contrast, Justice Breyer would have kept part of the last two restrictions. The Court of Appeals modified the restrictions pending a decision by the Supreme Court. Justice Breyer thought that those modified restrictions were equitable, and he would have permitted the appeals court injunction to continue until the environmental impact statement is prepared in early 2009.
There four great policy interests that clash in this case. The first two are the interest in protecting people vs. protecting the environment. The second two are the interest in expeditious decision making vs. opportunity for the public to be informed and able to comment on government actions.
For the majority, the navy's efforts to protect people, and the need for immediate training, exceeds the need to protect whales and the opportunity for the public to know what the navy is doing, and commenting on that. For the dissent, the importance of public comment and environmental protection are enought to justify a more restrictive injunction, regardless of the fact that the Government says the training is vital.
If you happen to be unhappy with this result - don't forget - the navy will conduct the exercises with a number of restrictions in place, including four of the six restrictions that the district court put in place.