Posted on November 17, 2008 at 12:24 pm by Eliza Presson
Menaka Kalaskar discusses last week’s decision in Winter v. NRDC (No. 07-1239).Â Additional information on the case is available on SCOTUSwiki, here.
â€œâ€˜To be prepared for war is one of the most effectual means of preserving peace.â€™â€Â So begins Chief Justice Robertsâ€™ opinion in Winter v. NRDCâ€”a quote from George Washingtonâ€™s Annual Address to Congress, and a signal that the Courtâ€™s weighing of interests comes down â€œstrongly in favor of the Navy.â€Â Indeed, in its twenty-four-page majority opinion, the Court declares numerous times that the balance of hardships and the public interestâ€”two of the four preliminary injunction inquiriesâ€”weigh so overwhelmingly in favor of the Navy that it doesnâ€™t even â€œstrike [the Court] as a close question.â€Â 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 NRDCâ€™s likely success on the merits.Â It then moves on to the lower court determinations of the second preliminary injunction inquiryâ€”the threat of irreparable harm or injury.Â The Court agrees with the Navy that the circuit courtâ€™s â€œpossibilityâ€ of harm standard is not stringent enough.Â Instead, the Court asserts its â€œfrequently reiterated standardâ€ that irreparable injury be â€œlikely in the absence of an injunction.â€Â Granting a preliminary injunction based only on a possibility of harm is â€œinconsistentâ€ with an injunctionâ€™s purpose as an extraordinary remedy requiring a â€œclear showingâ€ of success by the plaintiff.Â The Court notes that the Navy challenged only two of six restrictions in the preliminary injunction, and it finds fault with the district courtâ€™s failure to reconsider the irreparable harm question in light of this narrow challenge.Â 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.Â
Next, the Court considers the purpose and requirements of NEPA.Â Here, the Court seems to avoid the straightforward question of whether the Navy violated NEPA.Â It notes that NEPA imposes â€œonly procedural requirementsâ€ aimed at researching and releasing information about environmental effects stemming from agency action.Â The Court appears to be satisfied that the Navy has conducted these exercises for forty years and â€œtook a â€˜hard look at environmental consequencesâ€™â€ before beginning its SOCAL training.
The Court finally notes that deciding the questions of likelihood of success and irreparable injury are unnecessary because a â€œproper considerationâ€ of naval and public interest alone instructed denial of injunctive relief.Â 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.Â Â The Court agrees that NRDCâ€™s proffered ecological, scientific, and recreational interests were important, but when the injury to plaintiffs was at most â€œharm to an unknown number of marine mammals,â€ the possibility of the Navy deploying â€œinadequately trainedâ€ forces that would â€œjeopardize the safety of the fleetâ€ represented greater harm.Â The Court asserts that the district court and Ninth Circuit had given the Navyâ€™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.Â 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.Â First, the evidence surrounding the need for the shutdown and power-down requirements was â€œweak or uncertain.â€Â Second, the Navy offered multiple affidavits from naval training experts documenting the serious problems the injunction would impose on effective naval exercises.Â Third, the district court did not explain why it rejected these officersâ€™ affidavits in overriding their judgment and imposing the restrictions.Â Fourth, the circuit court did not provide adequate explanations for its view that the injunction would pose minimal intrusions on naval exercises.Â 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.Â In Justice Breyerâ€™s view, in imposing and upholding the subsequent injunctions, neither lower court adequately explained why the Court should reject the Navyâ€™s evidence that it would not be able to effectively train its sailors.
Justice Breyer concurs in the majorityâ€™s decision to vacate the parts of the injunction challenged by the Navy.
In Part II of his opinion, Justice Breyer recounts the Ninth Circuitâ€™s decision to impose modified restrictions upon the Navy pending resolution of this case.Â 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.Â 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.Â Justice Breyer considers these modified conditions to represent â€œthe best equitable conditions that can be createdâ€ in the short time before the Navy completes its exercises and an EIS.Â He would therefore modify the order to allow the modified conditions to remain in place until the completion of the Navyâ€™s SOCAL exercises.
Justice Ginsburg, joined by Justice Souter, dissented from the Courtâ€™s judgment.Â She believes the district court â€œconscientiously balanced the equitiesâ€ and did not abuse its discretion in imposing a preliminary injunction.Â The dissenting opinion asserts that an EIS is NEPAâ€™s â€œcore requirement.â€Â Its publication serves an informational role.Â The timing of an EIS forces the agency to assess the environmental consequences of its actions before those actions are taken.Â Thus, the Navyâ€™s failure to prepare an EIS before conducting its training defeated the core purpose of NEPA.Â
The dissenting opinion also finds fault with the Navyâ€™s â€œextraordinary courseâ€ of action in flouting its statutory duty and seeking relief from CEQ, an executive agency â€œlack[ing] authority to absolve an agency of its statutory duty to prepare an EIS.â€
Next, the dissenting opinion discusses the nature of equity jurisdiction.Â It approves of the â€œpossibilityâ€ of harm standard employed by the district court and Ninth Circuit, noting that courts â€œdo not insist that litigants uniformly show a particular, predetermined quantum of probable success or injury before awarding equitable relief.â€Â 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.Â
Conducting a balancing of equities on both sides, Justice Ginsburg notes that the Navyâ€™s own EA predicted substantial harm to marine mammals in the Southern California area.Â 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 dissentâ€™s view
In light of the likely environmental harm posed by the naval training exercises, NRDCâ€™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.Â It would affirm the Ninth Circuitâ€™s judgment