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Supreme Court to Review Standard for Issuing Environmental Injunctions in Its Next Term

July 9, 2008

The United States Supreme Court has agreed to hear next term an environmental case having to do with the Navy’s use of sonar equipment impacting marine species. The case has potentially far-reaching implications, in that one of the questions presented to the Court has to do with the standard for issuing preliminary injunctions to halt alleged environmental harm. In Natural Resources Defense Counsel (NRDC) v. Winter,[1] scheduled for hearing in October, the Supreme Court will review an injunction issued by the Ninth Circuit, in a decision that arguably lowered the threshold for issuing preliminary injunctions from a showing of “irreparable harm” to a showing of the “possibility of harm.” The Court’s decision could affect the weaponry available to environmental plaintiffs and have broad implications for citizen suits and other direct challenges to both public and private actions impacting the environment.[2]

The case arises from a decision from the Ninth Circuit Court of Appeals that enjoined the Navy’s use of mid-frequency sonar in training exercises along the Southern California coast in order to protect whales and other marine life.[3] The Ninth Circuit upheld a district court order that granted a motion for a preliminary injunction, required the Navy to prepare an EIS, and imposed certain mitigation measures on the remaining eight of fourteen large training exercises scheduled to be conducted by the Navy’s Third Fleet in the waters off of Southern California between February 2007 and January 2009 (SOCAL exercises). The Ninth Circuit’s decision is the latest skirmish in an almost decade-long court battle between the Navy and conservation groups, in which environmental plaintiffs seek protection for whales and marine mammals during exercises involving the use of sonar equipment that the Navy says is needed to protect national security.[4]


The SOCAL exercises are conducted in the Navy’s training ranges off of Southern California in biologically diverse waters containing at least 37 species of marine mammals, including nine threatened or endangered species. The Navy contends that personnel using mid-frequency active sonar (MFA sonar) must train with it regularly, under realistic conditions, in order to be constantly battle-ready. In 2006 the Navy decided that it did not need to prepare an EIS for the SOCAL exercises, relying instead on a lengthy environmental assessment (EA) that acknowledged that MFA sonar may affect both the physiology and behavior of marine mammals, and that at the least it may overtly disrupt the normal behavior of marine mammals.[5] In mid-2006 the Navy was enjoined from proceeding with similar sonar exercises in Hawaii because the Navy had not prepared an EIS and its proposed mitigation measures were determined to be inadequate.[6]

NRDC filed the California action in March 2007 and was almost immediately successful in obtaining an order from the district court to enjoin the SOCAL exercises by imposing substantial mitigation measures as to how the exercises would be conducted. After an appeal by the Navy and remand by the Ninth Circuit, in early January 2008 the district court modified its original preliminary injunction order by narrowing the required mitigation measures and denied the Navy’s motion for a stay. The next day, the Navy filed an emergency motion with the Ninth Circuit requesting that the preliminary injunction be vacated or, alternatively, requesting a partial stay of the preliminary injunction pending a decision on appeal. The Navy’s emergency motion was based on two federal actions. First, the President of the United States, pursuant to 16 U.S.C. §1456(c)(1)(B), exempted the Navy’s use of MFA sonar during the SOCAL exercises from the Coastal Zone Management Act, finding that such use of MFA sonar is “essential to national security” and in the “paramount interest of the United States.” Second, the Council on Environmental Quality, finding that “emergency circumstances” occurred as a result of the district court’s injunctive order, approved “alternative arrangements” to accommodate those emergency circumstances, pursuant to 40 C.F.R. § 1506.11. CEQ’s decision permitted the Navy to follow the alternative arrangements to continue its exercises pending completion of an EIS.

The Ninth Circuit remanded the matter to the district court yet again to consider “the effect, if any, of these developments on its preliminary injunction order.”[7] On January 17, 2008, the district court issued a temporary partial stay of its preliminary injunction order pending the court’s consideration of the Navy’s ex parte application to vacate the preliminary injunction. The Navy subsequently conducted its sixth SOCAL exercise. On February 4, 2008, the district court denied the Navy’s application to vacate the preliminary injunction and lifted the temporary partial stay. The district court found that CEQ’s approval of “alternative arrangements” was invalid because there were no “emergency circumstances” within the meaning of 40 C.F.R. § 1506.11. The Navy filed a notice of appeal two days later. The Ninth Circuit affirmed the district court’s order imposing the preliminary injunction.

The Ninth Circuit purported to base its decision on the traditional standards for injunctive relief, which it summarized as follows:

A district court may grant a preliminary injunction if one of two sets of criteria are [sic] met. ‘Under the ‘traditional’ criteria, a plaintiff must show (1) a strong likelihood of success on the merits, (2) the possibility of irreparable injury to plaintiff if preliminary relief is not granted, (3) a balance of hardships favoring the plaintiff, and (4) advancement of the public interest (in certain cases). Alternatively, 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.’[8]

The Ninth Circuit agreed with the district court that the Navy had not demonstrated “emergency circumstances” consistent with CEQ regulations[9] that would allow it to proceed with the SOCAL exercises before completing an EIS, concluding that “the district court did not rely on an erroneous legal premise or abuse its discretion in finding that the Navy’s attempt to characterize a federal court injunction as an ‘emergency circumstance’ is contrary to the plain meaning of the language and to the intended purpose of CEQ’s emergency circumstances regulation.”[10] Further, NRDC had demonstrated that an EIS should have been prepared because of significant potential environmental impacts from the SOCAL exercises that were not adequately alleviated by the mitigation measures proposed by the Navy.[11] Thus, the Ninth Circuit concluded that NRDC had demonstrated a strong likelihood of success on its NEPA procedural violation claim.

The Ninth Circuit then turned to consideration of whether NRDC had shown “the possibility of irreparable harm to its membership”[12] and stressed that NRDC had only the burden of demonstrating “the possibility of irreparable injury”, not that “irreparable injury ‘will’ necessarily occur.”[13] The Ninth Circuit found that the requisite showing had been made because “according to the Navy’s EA, the SOCAL exercises ‘will cause widespread harm to nearly thirty species of marine mammals, including five species of endangered species, and may cause permanent injury and death.’”[14]

Finally, the Ninth Circuit rejected the Navy’s arguments that the balance of hardships and public interest tests were tipped in its favor because of national security considerations requiring it to conduct the SOCAL exercises without implementing all of the mitigation measures imposed by the district court order. The appellate court weighed “the district court’s determination that irreparable harm to marine mammals will almost certainly result should the Navy be permitted to conduct its remaining exercises without appropriate mitigation measures” against “evidence that the Navy uses active sonar in hundreds of exercises each year throughout the world. The evidence linking several whale strandings to the Navy’s use of active sonar in training exercises around the world further confirms that the Navy trains in its use of active sonar in many different areas.”[15] The Ninth Circuit concluded that the district court had correctly and “carefully” balanced “the significant interests and hardships at stake to ensure that the Navy could continue to train without causing undue harm to the environment.”[16]

Questions for Supreme Court Review

The Navy and Amicus Curiae California Forestry Association objected to the “possibility of irreparable harm” standard used by the Ninth Circuit and the court’s lack of deference to the Executive’s judgment that “emergency circumstances” existed under NEPA in applying the public interest and balancing tests.[17] The Navy and the Forestry Association argued that the Ninth Circuit’s “lower threshold” of a mere “possibility” of irreparable harm is inconsistent with Supreme Court decisions and conflicts with the standard applied by other courts of appeals – framed by those courts as a “substantial likelihood of irreparable injury” or a “clear showing” of irreparable injury.[18] The Navy particularly criticized the Ninth Circuit for failing to weigh the magnitude of potential harm to one party against the harm to another – which here, it said, was a procedural violation under NEPA in contrast to “palpable” harm to the Navy and an “unacceptable risk of harm to national security”.[19]

NRDC responded that the Navy’s argument that the Ninth Circuit’s “possibility of harm” standard is “considerably overstated” and only “represents one end of a sliding scale whereby a higher showing on the merits reduces the required showing of harm, and vice versa.”[20] Furthermore, NRDC argued, NEPA contains no national security exemption, and if the Navy’s view were the law, “the military could simply forego NEPA compliance, await the inevitable court order, and then claim that environmental compliance is excused by the court’s decision to enforce the law.”[21]

The Supreme Court’s summary of the facts presented and the legal questions presented may foreshadow its willingness to overturn the Ninth Circuit. The Supreme Court docket summarizes the questions presented as follows:

The district court found a likelihood that the Navy failed to comply with the National Environmental Policy Act (NEPA) and preliminarily enjoined the Navy’s use of midfrequency active (MFA) sonar during training exercises that prepare Navy strike groups for worldwide deployment. The Chief of Naval Operations concluded that the injunction unacceptably risks the training of naval forces for deployment to high threat areas overseas, and the President of the United States determined that the use of MFA sonar during these exercises is ‘essential to national security.’ The Council on Environmental Quality (CEQ), applying a longstanding regulation, accordingly found ‘emergency circumstances’ for complying with NEPA without completing an environmental impact statement. The Ninth Circuit nevertheless sustained the district court’s conclusion that no ‘emergency circumstances’ were present and affirmed the preliminary injunction. The questions presented are:

1. Whether CEQ permissibly construed its own regulation in finding ‘emergency circumstances.’

2. Whether, in any event, the preliminary injunction, based on a preliminary finding that the Navy had not satisfied NEPA’s procedural requirements, is inconsistent with established equitable principles limiting discretionary injunctive relief.

The Supreme Court’s decision must be made before December 2008, when the Navy conducts its last scheduled SOCAL exercise, in order to avoid becoming moot. If the Court takes the opportunity to address broad issues related to the standards for injunctive relief when a federal agency has failed to comply with NEPA procedures, the decision could create new standards for both agencies and challengers to meet.

For more information on this case or other environmental litigation, please contact any member of Marten Law Group’s Environmental Litigation practice group.

[1] 518 F.3d 658 (9th Cir. 2008).

[2] The Court will also consider what circumstances constitute an “emergency” excusing a federal agency from preparing a complete environmental impact statement (EIS) under the National Environmental Policy Act (NEPA).

[3] Winter v. NRDC, U.S. No. 07-1239. 6/23/08.

[4] See Litigation Renewed Over Impact of Navy’s Use of Sonar on Marine Mammals by Jessica Ferrell, Marten Law Group Environmental News, Feb. 8, 2006.

[5] 518 F.3d at 665.

[6] Brief in Opposition On Petition for a Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit ((NRDC Brief) at 1.

[7] 518 F.3d at 663.

[8] Id. at 667, quoting from Freecycle Network, Inc. v. Oey, 505 F.3d 898, 902 (9th Cir.2007).

[9] 40 C.F.R. §1506.11 states: “Where emergency circumstances make it necessary to take an action with significant environmental impact without observing the provisions of these regulations, the Federal agency taking the action should consult with the Council about alternative arrangements. Agencies and the Council will limit such arrangements to actions necessary to control the immediate impacts of the emergency. Other actions remain subject to NEPA review.”

[10] 518 F.3d at 683.

[11] Id. at 689-696.

[12] Id. at 696.

[13] Id. at 697.

[14] Id. The Ninth Circuit also rejected the Navy’s argument that NRDC needed to show harm at the species or stock-level.

[15] Id. at 702.

[16] Id. at 703.

[17] See Petition for a Writ of Certioriari (March 2008) (Navy’s Petition) and Brief of California Forestry Association As Amicus Curiae in Support of Petitioners (April 25, 2008) (Amicus Brief).

[18] Navy’s Petition at 26-27; Amicus Brief at 7-12.

[19] Navy’s Petition at 30-31.

[20] NRDC Brief at 15-16.

[21] Id. at 27-29.

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