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ESAblawg is an educational effort by Keith W. Rizzardi. Correspondence with this site does not create a lawyer-client relationship. Photos or links may be copyrighted (but used with permission, or as fair use). ESA blawg is published with a Creative Commons License.

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florida gators... never threatened!

If you ain't a Gator, you should be! Alligators (and endangered crocs) are important indicator species atop their food chains, with sensitivity to pollution and pesticides akin to humans. See ESA blawg. Gator blood could be our pharmaceutical future, too. See ESA musing.

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Thanks, Kevin.

KEVIN S. PETTITT helped found this blawg. A D.C.-based IT consultant specializing in Lotus Notes & Domino, he also maintains Lotus Guru blog.

« Louisiana black bear critical habitat rule proposed and comment period reopened | Main| The law of unintended consequences: what the ESA needs, it takes, but what about other priorities? »

U.S. Supreme Court supports Navy, reverses Nines, in appeal of preliminary injunction affecting sonar operations

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Winter v. NRDC, No. 07–1239 (S.Ct., November 12, 2008)

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Secretary of the Navy Winter, right, and Admiral Gary Roughead depart the Supreme Court of the United States after Oral Arguments on October 8, 2008. U.S. Navy photo by Mass Communication Specialist 2nd Class Kevin S. O'Brien

FACTUAL BACKGROUND: Plaintiffs contended that Mid-Frequency Active (MFA) sonar can cause serious injuries to marine mammals, including permanent hearing loss, decompression sickness, and major behavioral disruptions including mass strandings.  The Navy, however, adopted several mitigation procedures, including: lookouts, reporting detected marine mammals in the vicinity of the training exercises, and, upon detection of marine mammals, reduction or shut down of sonar.  The Navy completed an environmental assessment pursuant to the National Environmental Policy Act, but Plaintiffs sought a full Environmental Impact Statement, eventually leading the Navy to also obtain authority from the Council on Environmental Quality (CEQ) to implement “alternative arrangements” to NEPA compliance in light of “emergency circumstances.” See 40 CFR §1506.11.3.  

PROCEDURAL BACKGROUND: The District Court granted plaintiffs’ motion fora preliminary injunction and prohibited the Navy from using MFA sonar during its remaining training exercises. The District Court held that plaintiffs had “demonstrated a probability of success” on their claims.  The Ninth Circuit agreed with the District Court’s holding that the Navy’s EA—which resulted in a finding of no significant environmental impact—was “cursory, unsupported by cited evidence, or unconvincing.” The Court of Appeals further determined that plaintiffs had carried their burden of establishing a “possibility” of irreparable injury. Even under the Navy’s own figures, the court concluded, the training exercises would cause 564 physical injuries to marine mammals, as well as 170,000 disturbances of marine mammals’ behavior. Id., at 696. Lastly, the Court of Appeals held that the balance of hardships and consideration of the public interest weighed in favor of the plaintiffs. The court emphasized that the negative impact on the Navy’s training exercises was “speculative,” since the Navy has never before operated under the procedures required by the District Court.

SCOTUS OPENING: (Opinion by Chief Justice Roberts): "The plaintiffs complained that the Navy’s sonar training pro-gram harmed marine mammals, and that the Navy should have prepared an environmental impact statement before commencing its latest round of training exercises. The Court of Appeals upheld a preliminary injunction imposing restrictions on the Navy’s sonar training, even though that court acknowledged that “the record contains no evidence that marine mammals have been harmed” by the Navy’s exercises. 518 F. 3d 658, 696 (CA9 2008).  The Court of Appeals was wrong, and its decision is reversed."

SCOTUS CONCLUSION: "President Theodore Roosevelt explained that “the only way in which a navy can ever be made efficient is by prac-tice at sea, under all the conditions which would have to be met if war existed.” President’s Annual Message, 42 Cong. Rec. 67, 81 (1907). We do not discount the impor-tance of plaintiffs’ ecological, scientific, and recreational interests in marine mammals. Those interests, however, are plainly outweighed by the Navy’s need to conduct realistic training exercises to ensure that it is able to neutralize the threat posed by enemy submarines. The District Court abused its discretion by imposing a 2,200-yard shutdown zone and by requiring the Navy to power down its MFA sonar during significant surface ducting conditions. The judgment of the Court of Appeals is reversed, and the preliminary injunction is vacated to the extent it has been challenged by the Navy."

KEITHINKING: The environmentalists defeat was predictable.  See ESA blawg (Feb. 19, 2008)  The 9th Circuit and District Court simply overreached in granting a preliminary injunction against the use of Naval sonar for anti-submarine warfare training exercises, especially in this procedurally-driven NEPA case, where the White House had weighed in and granted special authority.  Judicial restraint by the Supreme Court was inevitable. See also ESA blawg)(discussing judicial restraint by the 9th Circuit and potential influence of the sonar case)

EXCERPTS:  We agree with the Navy that the Ninth Circuit’s “possibility” standard is too lenient. Our frequently reiterated standard requires plaintiffs seeking preliminary relief to demonstrate that irreparable injury is likely in the ab-sence of an injunction. Los Angeles v. Lyons, 461 U. S. 95, 103 (1983); Granny Goose Foods, Inc. v. Teamsters, 415 U. S. 423, 441 (1974); O’Shea v. Littleton, 414 U. S. 488, 502 (1974); see also 11A C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure §2948.1, p. 139 (2d ed.1995) (hereinafter Wright & Miller) (applicant must demonstrate that in the absence of a preliminary injunction, “the applicant is likely to suffer irreparable harm before a decision on the merits can be rendered”); id., at 155 (“a preliminary injunction will not be issued simply to prevent the possibility of some remote future injury”). Issuing apreliminary injunction based only on a possibility of irreparable harm is inconsistent with our characterization of injunctive relief as an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief. Mazurek v. Armstrong, 520 U. S. 968, 972 (1997) (per curiam).  

It is not clear that articulating the incorrect standard affected the Ninth Circuit’s analysis of irreparable harm.  Although the court referred to the “possibility” standard, and cited Circuit precedent along the same lines, it affirmed the District Court’s conclusion that plaintiffs had established a “‘near certainty’” of irreparable harm. 518 F. 3d, at 696–697. At the same time, however, the nature of the District Court’s conclusion is itself unclear.

OTHER LINKS: Briefs are available from the ABA