The following column by Akin Gump associate Troy D. Cahill, featuring a selected petition up for consideration at the Justices' private conference on June 19, appears in today's edition of Legal Times (available to subscribers here). To see the full list of "petitions to watch" for Thursday's conference, click here.

Since the attacks of Sept. 11, 2001, the Supreme Court has repeatedly confronted politically controversial questions over presidential power exercised in the name of national security.

At the justices' private conference on June 19"”the final one scheduled before the summer recess"”the Court will decide whether to enter the fray once more, albeit in a case concerning not Guantánamo detainees or warrantless wiretapping, but sea mammals off the coast of Southern California.

Specifically, the petition"”Winter, et al. v. Natural Resources Defense Council, et al. (No. 07-1239)"”presents two questions on the scope of the president's power: whether the Council on Environmental Quality, an executive branch agency that coordinates federal environmental efforts, permissibly interpreted its own regulations to determine that a court-ordered injunction can amount to "emergency circumstances""”and even if such circumstances did not exist, whether a district court properly awarded injunctive relief. The Court could announce whether it will hear the case as early as June 23.

The case has its origins in the Navy's scheduling of a series of training exercises in the waters off the coast of Southern California beginning in February 2007. Designed to prepare naval strike groups for deployment to the western Pacific and Middle East, the Navy intended to use a specific frequency of sonar believed to be the most effective method for detecting quiet-running enemy submarines.

A month after the training began, the National Resources Defense Council, along with other environmental groups, sued the Navy and several other federal agencies in the U.S. District Court for the Central District of California on grounds the exercises violated numerous federal laws, including the National Environmental Policy Act and the Coastal Zone Management Act, and sought to enjoin the Navy's use of sonar because it is harmful to marine life, particularly endangered beak whales.

After finding the plaintiffs had established a likelihood of success on its statutory claims, Judge Florence-Marie Cooper in January issued a preliminary injunction placing conditions on the Navy's sonar use. Under the ruling, the district court required the Navy to cease sonar transmissions whenever a marine mammal was spotted within 2,200 yards (1.25 miles) of any sonar source; and reduce sonar power by six decibels whenever the Navy detects "significant surface ducting," an environmental condition characterized by a mixed layer of constant water temperature extending at least 100 feet from the surface, whether or not a marine mammal is present.

While the Navy appealed the injunction, the Council on Environmental Quality, after consultation with the Navy, authorized alternative arrangements for the Navy's compliance with the law in relation to the training exercises. The council based its decision on its conclusion that the district court's injunction amounted to "emergency circumstances" under federal regulations.

The Navy accepted the council's alternative arrangements and the U.S. Court of Appeals for the 9th Circuit remanded the matter to the district court to consider the intervening action of the council. The 9th Circuit also directed the district court to consider the effect of another intervening act by the executive branch"”the president's decision to grant the Navy an exemption from compliance with the Coastal Zone Management Act on grounds that the training exercises and sonar use were of paramount interest to the United States and the ability of the Navy to protect national security.

On remand, Cooper held that the previously ordered preliminary injunction remained an appropriate remedy because the council's alternative arrangements were outside the agency's regulatory authority and because there was no "emergency." The 9th Circuit affirmed Cooper's decision in February, but stayed the mandatory shutdown limitations and the power-down requirement pending disposition of the petition for a writ of certiorari.

In its petition, the Navy"”represented by then-Solicitor General Paul Clement"”argues that the 9th Circuit's ruling both "poses substantial harm to national security" and improperly overrides the judgment of the executive.

Clement contends, first, that the council's interpretation of what amounts to an "emergency" was a reasonable construction of its own regulation, fully comported with the regulation's text, and should have been given controlling weight. The petition further maintains that a court order requiring that a violation of the National Environmental Policy Act be remedied before vital military exercises can proceed constitutes an "emergency." To support its position that the 9th Circuit failed to afford sufficient deference to the agency's interpretation, the Navy argues that the decision conflicts with National Audubon Society v. Hester, a 1986 decision rendered by the U.S. Court of Appeals for the D.C. Circuit.

Alternatively, the Navy argues that, even if the council's actions were invalid, preliminary injunctive relief was unwarranted because the 9th Circuit wrongly based its affirmance on its conclusion that the plaintiffs had established a "possibility" of irreparable injury instead of the required showing of a "likelihood" of irreparable injury; and the lower courts failed to consider the harm to the Navy and the risks the injunction poses to national security.

Opposing certiorari, the National Resources Defense Council"”represented by Richard Kendall of Irell & Manella of Los Angeles"”depicts the case as one in which the Navy has failed to "identify any legal issue appropriate for certiorari" and one that simply seeks review of fact-bound issues. According to the plaintiffs, the district court found, and the 9th Circuit affirmed, a near certainty of harm, not a mere showing of a "possibility of irreparable harm." Moreover, the plaintiffs argue that, in granting the injunction, the lower courts properly weighed the interests of the Navy.

The plaintiffs further argue that the 9th Circuit correctly concluded that the council's action did not require the district court to vacate the injunction because the agency's factual findings were likely invalid, the council's application of its regulation to the facts of this case conflicted with the language and purpose of the National Environmental Policy Act, and the agency's "unprecedented extension" of its regulation to overturn a court-ordered injunction exceeded the scope of the regulation and raised serious separation of powers issues. "”Troy D. Cahill

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