Winter v. NRDC: Navy Sonar and Whales

The submarine USS Albuquerque. Courtesy of the Department of Defense.

WMRS | Implementation of ESA and Related Litigation | ESA in the Supreme Court

For over forty years, sailors aboard Navy vessels have trained off the coast of Southern California to detect near-silent diesel-electric submarines with the use of mid-frequency active sonar (MFA). The issue in Winter v. Natural Resources Defense Council, 129 S.Ct. 365 (2009), was whether the Navy’s decision to conduct 14 training exercises off the coast of southern California complied with several environmental laws, including the National Environmental Policy Act of 1969 (NEPA), the Coastal Zone Management Act of 1972 (CZMA), and the Endangered Species Act of 1973 (ESA). While senior Navy officers testified that antisubmarine warfare training employing the use of MFA sonar is critical to military readiness, the plaintiffs alleged that MFA sonar causes serious injury to marine mammals and that the Navy did not adequately consider these effects in environmental analyses prepared pursuant to NEPA, the CZMA, and the ESA.

The plaintiffs’ claims stemmed from several factors, including: the use of waters off the coast of southern California by a large number of marine mammals; the stranding of whales in other parts of the world (i.e., the Bahamas) that were linked to MFA sonar use; and the Navy’s prediction in its environmental analysis that 170,000 instances of varying degrees of harm may occur to marine mammals during the planned training exercises. The Navy contended that the waters off southern California have unique value to the training of its sailors; diesel-electric submarines operated by hostile countries constitute the biggest threat to naval forces and training with MFA sonar to detect these threats is critical; the planned exercises provide the only opportunity for naval forces to train as an integrated team prior to deployment; and the Navy has trained in the waters off southern California with MFA sonar for over 40 years without incident to marine mammals.

Following briefing and argument by the parties, the federal district court in California found that the plaintiffs had a probability of success on their NEPA and CZMA claims, that there was a possibility of irreparable harm to marine mammals, and that this harm outweighed the benefit of further training. On this basis, the district court issued a preliminary injunction that prohibited the Navy from engaging in the challenged exercises. The Navy filed an emergency appeal with the Ninth Circuit Court of Appeals, which held that the district court’s total injunction against the use of MFA sonar was not narrowly tailored and failed to take into account the public’s interest in national security. On remand, the district court allowed the exercises to proceed, but required the Navy to implement six mitigation measures during the training exercises. The Navy appealed the court-imposed conditions on its training exercises, later focusing on two specific measures – shutting down sonar use when a marine mammal is sighted within 2,000 meters of a Navy vessel, and powering down MFA sonar by 75% when certain ocean conditions (significant surface ducting conditions) are observed.

While the case was being appealed to the Ninth Circuit, Present George W. Bush exempted the training exercises from the requirements of the CZMA pursuant to statutory authority, finding that it “is in the paramount interest of the United States” that these exercises occur unimpeded. Further, the Council for Environmental Quality (CEQ) found that an emergency existed and that the Navy could take alternative steps to ensure compliance with NEPA. The Navy argued that these actions removed the legal basis for the lower court’s injunction and sought, unsuccessfully, to vacate the injunction in both the district court and the Ninth Circuit Court of Appeals. The Navy appealed these decisions to the Supreme Court.

In a majority opinion written by Chief Justice Roberts, the Supreme Court held that the lower courts had both misapplied the law and improperly weighed the costs and benefits of the naval training exercises in issuing a preliminary injunction and imposing conditions on the challenged training exercises. The majority held that, in order for a court to issue a preliminary injunction, the plaintiff must show that he is likely to succeed on the merits, that it is likely (not just possible) that he will suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest. The Court further stressed that preliminary injunctions are an extraordinary remedy rather than a right, and that courts must give great deference to the professional judgment of military authorities. Based on these principles, the Court held that the public interest favored the Navy training. As Chief Justice Roberts explained, the plaintiffs’ interests “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.” Accordingly, the Supreme Court held that the lower courts abused their discretion in imposing conditions on the Navy’s training, and it vacated the preliminary injunction to allow exercises to proceed.

 

Updated May 15, 2015

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