Winter v. Natural Resources Defense Council (NRDC)

CEQ's authority and the Separation of Powers

The National Environmental Policy Act of 1969 (NEPA) established an executive-branch administrative agency known as the Council for Environmental Quality ("CEQ"). 42 U.S.C. § 4321. When the National Resources Defense Council ("NRDC") and other environmental groups brought suit against the United States Navy, the district court granted a preliminary injunction preventing the Navy from pursuing anti-submarine warfare training using mid-frequency active ("MFA") sonar. NRDC, 518 F.3d at 661. Repeated modifications of this preliminary injunction by both the United States District Court for the Central District of California and the Ninth Circuit Court of Appeals resulted in certain restrictions on how the Navy may make use of MFA sonar in training exercises. Id. at 662.

The Council on Environmental Quality (CEQ) has authority under 40 C.F.R. 1506.11 to authorize alternative arrangements for NEPA compliance in "emergency circumstances." See Brief of Petitioner at 15. In the wake of the district court's preliminary injunction, the CEQ found that emergency circumstances exist because the injunction "greatly risks the Navy’s ability to train strike groups for deployments that are essential to national security and because there would be insufficient time to complete an EIS before such deployments must occur." Id. at 17. The district court found, contrary to the CEQ, that there were no emergency circumstances because the word "emergency" is limited to sudden, unanticipated events. Id. The Ninth Circuit, while recognizing the broad scope of the word emergency, upheld the district court ruling as "neither plainly erroneous nor plainly inconsistent with Section 1506.11." Id.

The Navy and amici contend that the Ninth Circuit was wrong to defer to the district court’s legal interpretation under an abuse-of-discretion standard. Id. at 18. Because the CEQ was "established by NEPA with authority to issue regulations interpreting it" (Id. at 22), the CEQ’s interpretation of the term "emergency circumstances" and it basis for deciding such circumstances existed in this case should have been given "controlling weight unless it is plainly erroneous or inconsistent with the regulation itself." Id. at 23.

The NRDC believes that, if it were sanctioned by the Supreme Court, the Navy’s interpretation of the law would create a "gaping hole" in NEPA and would effectively make the procedural requirements of NEPA discretionary. See Brief for Respondents at 35. "If the [Navy’s] view were the law, the military could simply forgo NEPA compliance, await the inevitable court order, and then obtain an administrative determination that environmental compliance is excused by the court’s decision to enforce the law." Id. The NRDC acknowledges that NEPA exemption for military activity may exist in certain circumstances. However, such an exemption must follow either directly from a express congressional authorization of an exemption, or from the courts finding that the NEPA requirements are in conflict with another statute. Congress, according to the NRDC, has reserved for itself and repeatedly exercised exemption of agency activities from NEPA requirements. Id. at 33. Congress has not done so in this case. Furthermore, the Supreme Court has said that NEPA must be complied with unless compliance would create an "irreconcilable and fundamental conflict" with another statutory provision. Id. at 34. Here the NRDC admits that the Navy must be "organized, trained, and equipped" under 10 U.S.C. § 5062 but this does not create an irreconcilable conflict because the court has already determined that effective training can exist with the mitigating measures in place. Id. Lastly, NEPA compliance was not impossible or impracticable because the Navy could have prepared an EIS or requested a congressional exemption directly. Id. at 34-35. As of the date the NRDC filed its brief the Navy had not completed the EIS and had not once requested that Congress grant it an exemption. Id.

Preliminary injunction standards

In reviewing the district court's modified preliminary injunction, the Ninth Circuit agreed with the district court's determination that NRDC had met its burden of proof to justify preliminary injunctive relief by showing four things: 1) a strong likelihood of success on the merits; 2) the possibility of irreparable injury; 3) the balance of hardships in its favor; 4) the advancement of public interest. NRDC at 703. In its decision, the Ninth Circuit reiterated an "alternative" approach to weighing these four factors: "a court may grant the injunction if the plaintiff demonstrates either a combination of probable success on the merits and the possibility of irreparable injury or that serious questions are raised and the balance of hardships tips sharply in his favor." Freecycle Network, Inc. v. Oey, 505 F.3d 898, 902 (9th Cir.2007); see also Earth Island II, 442 F.3d at 1158." Id. at 677.

1. Merits: Did NEPA require an Environmental Impact Statement?

The National Environmental Policy Act ("NEPA") of 1969 requires federal agencies to consider environmental impact in their decision-making processes. Under NEPA, an agency must prepare an Environmental Impact Statement ("EIS") for all actions "significantly affecting the quality of the human environment." 42 U.S.C. § 4321(2)(C). If an EIS might not be necessary, an Environmental Assessment ("EA") provides "sufficient evidence and analysis for determining whether to prepare an environmental impact statement or a finding of no significant impact [("FONSI")]." 40 C.F.R. § 1508.9.

The Navy argues that an EIS was not necessary because its EA was extremely detailed and did not suggest significant impact on the environment. Regarding the depth of study, the Navy notes that NEPA regulations contemplate less than 300 pages for a final EIS report for "proposals of unusual scope and complexity." Brief for Petitioners at 8. (citing 40 C.F.R. 1502.7). Nearly as long, the Navy's EA comprised 293 pages that "comprehensively evaluated scientific evidence and the results of computer modeling to predict the effect of MFA sonar on marine mammals." Id. The NRDC, unimpressed by the length of the study, remarks that "the mere heft of a document cannot substitute for analytical soundness and public disclosure." Brief for Respondent, NRDC at 44.

Regarding impact, the Navy argues that its reading of the EA led it to conclude that the training missions would not have a significant impact on the environment, and thus NEPA did not require an EIS for those exercises. Brief for Petitioners at 8. It explains that the seemingly high calculation of 282 Level A exposures for beaked whale species was actually the result of automatically counting Level B exposures of these animals as level A exposures. In fact, the Navy’s modeling predicts only Level B exposure for these creatures. Id. Thus, the Navy’s EA shows only 8 predicted instances of permanent hearing loss exposure, which affects common dolphins only if unmitigated. The Navy contends that its own mitigation measures would be effective in preventing these relatively few serious exposures. Id. at 10. In contrast, it points out that "commercial fishing caused approximately 650,000 marine-mammal deaths annually in the 1990s, with more than 6000 annual deaths in U.S. fisheries alone. Id. Therefore, in the Navy’s opinion, there was no need for an EIS because the EA was sufficient and because there was no risk of a significant impact. Id.

The NRDC, on the other hand, disputes the Navy's contention that there have been no observed or documented incidents of injury or death to marine mammals because of MFA sonar in the past 40 years of its use. See Brief for Respondent, NRDC at 29-30. The NRDC points to evidence of mass-strandings and potentially population-level effects attributable to MFA sonar. Id. at 30-31.

2. Irreparable Injury

The Navy contends that the Ninth Circuit erroneously requires only the "mere possibility", as opposed to a "likelihood", of irreparable injury. See Brief for Petitioners at 19. Because a preliminary injunction is "an extraordinary and drastic remedy"(Id.; see Mazurek v. Armstrong, 520 U.S. 968, 972 (1997)), such a lax standard "expands the courts' equitable powers well beyond their traditional moorings" (Id. at 38.) and "fundamentally alters – and diminishes – the threshold requirement that a clear showing be made of a "likelihood" of irreparable injury" Id. at 39. Amici California Forestry Association et al. ("CFA") argue that "such a standard will often be met and is tantamount to no standard at all." Brief of Amici Curiae California Forestry Association et al. in Support of Petitioners at 9.

The NRDC believes that the Navy misread the language of the Ninth Circuit's opinion. See Brief for Respondent, NRDC at 50. Respondent CAA further notes that the district court, contrary to the Navy’s argument that there was only a "mere possibility" of irreparable harm, found that irreparable harm was "likely". Brief for Respondent, CAA,at 28. Indeed, the NRDC points out, the court found that irreparable harm was a "near certainty." Id. The proper role of the appellate court was therefore to not decide this issue of fact de novo but to defer to the district court’s factual findings unless they are clearly erroneous. Id.

3. Balance of Hardships

NRDC argues that the district court applied the proper preliminary injunction standard because it employed the same standard that the Supreme Court used in Amoco Construction Co. v. Gambell: "Environmental injury, by its nature, can seldom be adequately remedied by money damages, and is often permanent, or at least of long duration, i.e., irreparable. If such injury is sufficiently likely, therefore, the balance of harms will usually favor the issuance of an injunction to protect the environment." Amoco Construction Co. v. Gambell 480 U.S. 531, 545 (1987).

According to Navy supporters, however, environmental concerns, particularly in the Ninth Circuit, are incorrectly seen to be elevated above the "traditional equitable factors such as the balance of harms and the public interest". Brief of Amici Curiae Pacific Legal Foundation in Support of Petitioners at 5. The Navy decries the "asymmetrical approach to the court's "balancing" of the hardships", wherein possible environmental harm merits an injunction, but possible harm to strike group readiness gains the Navy only the privilege of requesting emergency relief. Brief for Petitioners at 47.

4. Public Interest

The public interest weighs on both sides of this issue. On one hand, the public has an interest in the health and beauty of the surrounding environment. On the other hand, the public has an interest in economic vitality and security.

The Navy contends that the courts have ignored the public interest in safety. The Chief of Naval Operations (CNO), who is responsible for organizing, training, and equipping the Navy (see 10 U.S.C. § 5032), determined that the mitigation measures imposed by the district court would unacceptably risk Navy training and national security. In particular, the measures would cause too many disruptions in sonar broadcasting and the 75% reduction in sonar power would "drastically reduce[]" the likelihood of detecting a submarine. This could negate the effectiveness of the entire training exercise. Brief for Petitioners at 13-14.

The NRDC counters by saying that the court conscientiously weighed the public interest, and the interest in public safety is fully accounted for in the preliminary injunction provisions. Indeed, the district court found that the Navy could train effectively and certify its strike groups under the terms of the injunction. See Brief for Respondent, NRDC at 14. Thus, because it is the province of the trial court to make findings of fact and because the facts show that the training is still effective the public interest in safety is not compromised by granting the preliminary injunction. Id.

The NRDC points to the procedural history of the case to bolster its argument that the public interest in military training was not ignored. Specifically, it points out that the appellate court tailored the district court's final preliminary injunction to allow for effective training in the use of sonar. Id. at 52. Furthermore, the fact that the provisions of the preliminary injunction were bounced back and forth between the two courts shows this balance of the competing interests in action. Id. The affirmations of the Chief of Naval Operations were also given due consideration by the courts. Id. In fact, the district court rejected several of the mitigation measures proposed by the NRDC in deference to the Navy and the assertions made by the Chief of Naval Operations that these measures might overly burden effective training. Id. Perhaps the most telling judicial action indicating that the court carefully considered the public interest in military training is that the Ninth Circuit decided sua sponte (on its own initiative without the prompting of any party) to modify the terms of the preliminary injunction to allow for more effective training.

Did the Ninth Circuit ignore Congress’s judgment that the public interest lies in permitting military activity?

The Navy and amici argue that Congress wrote into the Marine Mammal Protection Act (MMPA) its judgment that the public interest lies in permitting military activity. Id. at 18. Where, as here, the Deputy Secretary of Defense and the Secretary of Commerce concur in their belief that military readiness outweighs the interest in protecting marine mammals, the MMPA allows exemption of specific readiness activities. Id. Because Congress wrote into the MMPA this procedure for exemption, the priority of interests were already established and courts lacked the authority to disregard this Congressional mandate. Id.

The NRDC responds to this argument that the Navy is simply excerpting favorable language from the MMPA and applying it to the NEPA, an entirely different statute. NRDC points out that Congress has never once inserted a national security exemption into NEPA in the 39 years since its original enactment. See Brief of Respondents at 39. In this respect Congress did not write into NEPA its judgment that the public interest lies in permitting military activity. To the contrary, NEPA’s "manifest concern [is] preventing uninformed action" such as here where the Navy undertakes to conduct possibly harmful training without fully evaluating the environmental risks. Id. at 40. Thus, the Navy is failing the purpose of the NEPA by conducting only a cursory EA and not fully evaluating the environmental impact through a proper EIS. The EA is not an acceptable replacement for the EIS because of the Navy’s "failure to study and analyze the potential for . . . cumulative impacts." Id. at 43.