Stanford Supreme Court Litigation Clinic student Menaka Kalaskar offers the following discussion of Wednesday’s argument in Winter v. NRDC.  Her complete write-up of the case is available on the Winter wiki page, here.

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.

Posted in Winter v. Natural Resources Defense Council, Uncategorized