Monday, November 17, 2008

Winter v NRDC

Without digging too deeply into this case, here are a few thoughts:

Why does the Court take a case like this? The case concerns, at its base, the issue whether the Navy must complete an environmental impact statement under NEPA before undertaking certain training exercises. Although it had initially determined that no EIS was required, the Navy ultimately agreed to complete one. It expected the EIS to be ready in January 2009. In the interim, the district and circuit court imposed mitigation measures on sonar training. The Navy sought to challenge two of those mitigation measures. The Court granted certiorari in June 2008 -- seven months before the issue would likely become moot! (This timeframe is the primary reason that Justice Breyer would not remand the case, according to his concurrence). Last week, approximately two months before the Navy EIS is expected, the Court held that the preliminary injunction upon which the mitigation measures rested is unwarranted.

Perhaps the answer is suggested by the stirking contrast between the characterization of the injuries suffered on the plaintiffs' side. Chief Justice Roberts' majority opinion stresses the distinction between the injury to marine mammals and the injury to human plaintiffs' interests. The Chief Justice states that "even if MFA sonar does cause a limited number of injuries to individual marine mammals, the Navy asserts that plaintiffs have failed to offer evidence of species-level harm that would adversely affect their scientific, recreational, and ecological interests." Thus, the majority opinion weighs an interest in sonar use that is deemed vital to national security against "the possible harm to the ecological, scientific, and recreational interests that are legitimately before this Court." Justice Ginsburg, in contrast, highlights the Navy's own estimate that the planned sonar usage could cause permanent physical damage to nearly 1/2 of the Cuvier's beaked whales in the waters off the west coast, as well as significant harm to other species.

Tying the two threads together, and considering the majority's repeated statements concerning the magnitude of the national security interest, there seems little reason to decide the case other than to emphasize the priority of national security over environmental concerns. While there are certainly significant legal issues surrounding sonar use, what was the important legal issue in this case? Re-affirming the standard for preliminarty injunctions? Noting that NEPA can be suspended from time to time, especially if compliance is acheived as soon as practicable? Maybe I am missing something, but this case strikes me as far more a cultural contest than a legal one. From that perspective, the environmental parties were in a tough spot: sonar probably does cause rather significant harm to beaked whales and perhaps other species (a few highlights are here, here, here, and NRDC's here), but this case seemed like a foregone conclusion once it reached the Supreme Court.

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