Winter v. Natural resources defense council, Inc

Harvard Environmental Law Review

Volumn 33, Issue 2, 2009, Pages 593-607

  Lightbody, Lisa ^a  

^a HARVARD LAW SCHOOL   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

CONFERENCE PROCEEDING; ENVIRONMENTAL IMPACT ASSESSMENT; ENVIRONMENTAL LEGISLATION; ENVIRONMENTAL QUALITY; NATIONAL SECURITY; SONAR; SUBMARINE;

EID: 70249107511     PISSN: 01478257     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (126)

1. *1 (CD. Cal. Aug. 7, 2007).
2. Natural Res. Def. Council, Inc. v. Winter, 518 F. 3d 658, 665 (9th Cir. 2008).
3. Natural Res. Def. Council, Inc. v. Winter, 530 F. Supp. 2d 1110, 1115 (CD. Cal. 2008).
4. Winter v. Natural Res. Def. Council, Inc. (Winter II), 129 S. Ct. 365 (2008).
5. Id. at 378.
6. Natural Res. Def. Council v. Winter, 527 F. Supp. 2d 1216 (CD. Cal. 2008).
7. As of the decision in Winter II, the Navy had just one remaining exercise that it expected to complete by January 2009 at the latest. Winter II, 129 S. Ct. at 389.
8. National Environmental Policy Act of 1969, 42 U. S. C Sect; Sect; 4321-4370e (2000).
9. Winter II did not decide the NRDC's ongoing NEPA claim. However, the Navy would complete its exercises before trial, thus the claim was effectively mooted.
10. See, e.g.. Ocean Mammal Inst. v. Gates, 546 F. Supp. 2d 960 (D. Haw. 2008)
11. Natural Res. Def. Council, Inc. v. Evans, 279 F. Supp. 2d 1129 (N. D. Cal. 2003)
12. Natural Res. Def. Council, Inc. v. U. S. Dep't of the Navy, 857 F. Supp. 734 (CD. Cal. 1994).
13. Natural Res. Def. Council, Inc. v. Winter (TRO), No. CV06-4131 (FMC) (CD. Cal. Jul. 3, 2006), available at http://www.nrdc.org/media/docs/060703.pdf (order granting preliminary injunction).
14. Complaint, Natural Res. Def. Council, Inc. v. Winter, No. CV06-4131 (FMC) (CD. Cal. June 28, 2006), available at http://docs.nrdc.org/water/wat- 06062801A.pdf. RIMPAC refers to the waters surrounding Hawaii, known for their biodiversity.
15. U. S. C § 4332 (C).
16. Complaint, supra note 12, at 6.
17. *6 (finding that NRDC passed the sliding-scale temporary restraining order standard requiring a "strong possibility" of irreparable harm when success on the merits was likely).
18. Id.
19. Settlement Agreement, Natural Res. Def. Council, Inc. v. Winter, No. CV06-4131 (FMC) (CD. Cal. July 7, 2006). Pursuant to this agreement, the Navy agreed to implement additional mitigation measures in order to protect marine mammals and other marine life during the RIMPAC exercise. These measures included (1) refraining from using sonar within twenty-five nautical miles of the Northwestern Hawaiian Islands Marine National Monument;
20. requiring all personnel using underwater detection microphones to monitor for marine mammals and report the detection of any marine mammal to watch stations for action
21. requiring aerial surveillance of marine mammals during sonar drills and reporting of sightings to a designated officer
22. requiring the Navy to provide at least one dedicated and three nondedicated marine mammal observers on every surface sonar vessel during all sonar drills, and to add an additional dedicated observer during the three exercises occurring in channels between the islands
23. requiring the Navy to publicize a hotline for reporting marine mammal incidents in the Hawaii press.
24. Id. at 3-4.
25. Winter v. Natural Res. Def. Council, Inc. (Winter II), 129 S. Ct. 365, 372.
26. There is some disagreement in the numbers. Compare Natural Res. Def. Council, Inc. v. Winter, 527 F. Supp. 2d 1216, 1221 (CD. Cal. 2008) (466 "level A" takes), with Natural Res. Def. Council, Inc. v. Winter, 518 F. 3d 658, 668-69 (9th Cir. 2008) (564 "level A" takes). The majority in Winter II claimed that the Navy's EA predicted only 280 "level A" takes. Winter II, 129 S. Ct. at 372.
27. Winter II, 129 S. Ct. at 383 (Ginsburg, J., dissenting).
28. Decibels are a logarithmic measurement, such that an increase of 10 dB is equivalent to a tenfold increase in acoustic energy. To put the numbers in perspective, the Occupational Safety and Health Administration requires hearing protection to be used where workers are exposed to a sound level of 90 dB for eight hours or 110 dB for as little as thirty minutes. 29 C. F. R. § 1910.95 (a) (2009).
29. *6. The district court found that the Navy had "actually reduced their mitigation efforts and adopted measures even less protective than those the Court previously found insufficient" in RIMPAC Id. The Navy "eliminated (1) its provisions requiring power-downs during surface ducting conditions (when sound travels greater distances), at night and in other low visibility conditions (when whales that would be affected are more difficult to see)
30. the twelve nautical mile coastal buffer zone
31. *7.
32. *2 (quoting Lands Council v. Martin, 479 F. 3d 636, 639 (9th Cir. 2007)). The court cited the standard as "[a] preliminary injunction may issue when the moving party demonstrates either' (1) a combination of probable success on the merits and the possibility of irreparable harm
33. *2 (quoting Faith Ctr. Church Evangelistic Ministries v. Glover, 480 F. 3d 891, 906 (9th Cir. 2007)).
34. *4.
35. *5.
36. Id. (finding only a "possibility of irreparable harm" required based on the strength of the argument on the merits).
37. * 10.
38. In Natural Resources Defense Council, Inc. v. Winter, 502 F. 3d 859, 864 (9th Cir. 2008), the motions panel upheld the injunction. However, in Natural Resources Defense Council, Inc. v. Winter, 508 F. 3d 885, 886-87 (9th Cir. 2008), the court granted a temporary injunction that corresponded with a scheduled month-long stop in training.
39. Winter v. Natural Res. Def. Council, Inc. (Winter II), 129 S. Ct. 365, 373 (2008).
40. The Navy appealed to both the Council on Environmental ("CEQ") and the President for relief, but only the CEQ response is relevant to the NEPA claim discussed here. The President "granted the Navy an exemption from the requirements of the Coastal Zone Management Act of 1972 (CZMA) pursuant to 16 U. S. C. § 1456 (c) (1) (B)," but the exemption does not affect the NRDC's NEPA claim. Winter II, 129 S. Ct. at 391 n. 3 (Ginsburg, J., dissenting).
41. A subchapter of NEPA, 42 U. S. C. §§ 4342-4368 (2000), establishes the CEQ. The statute states that the CEQ is made up of three members appointed by the President to oversee the policy goals of NEPA and "recommend national policies to promote the improvement of the quality of the environment."
42. Id.
43. Winter II, 129 S. Ct. at 373.
44. Letter from the Chairman of the Council on Environmental Quality to Donald Winter (Jan. 15, 2008) (Appendix to the Petition for Certiorari at 239a), available at http://www.usdoj.gov/osg/briefs/2007/2pet/7pet/2007-1239.pet.app. pdf
45. Winter II, 129 S. Ct. at 373 (majority opinion).
46. Natural Res. Def. Council, Inc. v. Winter, 527 F. Supp. 2d 1216, 1224 (CD. Cal. 2008).
47. Natural Res. Def. Council, Inc. v. Winter, 513 F. 3d 920 (9th Cir. 2008) (remanding for the district court to consider impact of CEQ and presidential decisions).
48. Natural Res. Def. Council, Inc., 527 F. Supp. 2d at 1225.
49. Chevron U. S. A., Inc. v. Natural Res. Def. Council, Inc., 467 U. S. 837 (1984) (holding that courts owe deference to agency decisions only if the federal statute the agency is charged with implementing is ambiguous and the agency's interpretation is reasonable).
50. Natural Res. Def. Council, Inc., 527 F. Supp. 2d at 1227 (distinguishing cases such as Valley Citizens for a Safe Env't v. Vest, No. 91-30077-F, 1991 WL 330963 (D. Mass. May 6, 1991), in which an emergency exception was found appropriate because of actual wartime necessity).
51. Id. at 1228
52. Id. at 1230 (citing San Luis Obispo Mothers for Peace v. Nuclear Regulatory Comm'n, 449 F. 3d 1016, 1035 (9th Cir. 2006) (finding "no 'national defense' exception to NEPA"));
53. cf. Weinberger v. Catholic Action of Haw./Peace Educ. Project, 454 U. S. 139 (1981) (holding that the NEPA exemption limiting disclosure of classified information, in this case about nuclear weapons, abrogated the need for a "hypothetical" environmental impact statement).
54. Natural Res. Def. Council, Inc., 527 F. Supp. 2d at 1232.
55. Natural Res. Def. Council, Inc. v. Winter, 518 F. 3d 658 (9th Cir. 2008).
56. Like the district court, the Ninth Circuit found that the judiciary owed no deference to the CEQ's interpretation because it contravened an unambiguous congressional statute.
57. Id. at 680-81. In addition, the circuit echoed the district court concerns regarding arbitrary and capricious decision-making by the CEQ, and about unconstitutional review of the judiciary by the executive. Id. at 686. Finally, the circuit found that the appeal to the CEQ actually supported the need for an EIS because the court treated the request for help as "the Navy's concession, by virtue of seeking such approval, that the SOCAL exercises will have a 'significant environmental impact.'" Id. at 687.
58. Id. at 700-02.
59. See id. at 702-03.
60. Winter v. Natural Res. Def. Council, Inc. (Winter II), 129 S. Ct. 365 (2008). Chief Justice Roberts delivered the opinion of the Court, in which Justices Scalia, Kennedy, Thomas, and Alito joined. Justice Breyer, joined by Justice Stevens, concurred in part and dissented in part. Justice Ginsburg, joined by Justice Souter, dissented.
61. See id. at 381.
62. Id. at 375-76.
63. Id. at 376.
64. Id. at 377.
65. Id.
66. Id.
67. Id.
68. Id. at 378.
69. Id. at 377.
70. Id. at 381.
71. Id. at 382-83 (Breyer, J., concurring in part and dissenting in part).
72. Id. at 384.
73. Id. at 386-87.
74. Id. at 387.
75. Id. at 389 (Ginsburg, J., dissenting).
76. Id. at 393.
77. Id. at 392 (citing 11A Charles Alan Wright et al., Federal Practice and Procedure § 2948.3, at 155-56 (2d ed. 1995)).
78. See id. at 389-90.
79. Id. at 387, 390.
80. Id. at 390.
81. Brief of Respondents at 4-6, Winter II, 129 S. Ct. 365 (No. 07-1239).
82. Winter II, 129 S. Ct. at 377-78 (majority opinion).
83. Natural Res. Def. Council, Inc. v. Evans, 279 F. Supp. 2d 1129, 1188-89 (N. D. Cal. 2003).
84. Brief of Respondents, supra note 69, at 4.
85. Id. The NRDC also cited scientific observations that indicate "sharp declines in commonly seen species over entire exercise areas" with at least some of the animal sightings still significantly lower five years after exercises. Id.
86. Winter II, 129 S. Ct. at 377.
87. Despite the significant documentation and scientific evidence, the Court refers to the harm alleged by the plaintiffs as "possible." Id. At the same time, the Court accepts "declarations" from senior military officials as proving the "consequent adverse impact" from imposing an injunction. Id.
88. Id. at 390 (Ginsburg, J., dissenting). Justice Ginsburg goes on to fit the current naval emergency into the larger context of responsibility for its creation.
89. See id. at 391.
90. Id. at 384 (Breyer, J., concurring in part and dissenting in part).
91. Id. at 378 (majority opinion) (criticizing the district court for "address[ing] these considerations in only a cursory fashion" and the Ninth Circuit for failing to properly defer to military arguments).
92. Id.
93. F. Supp. 734 (CD. Cal. 1994).
94. Id. at 741 n. 13.
95. See, e.g., Koon v. United States, 518 U. S. 81, 99 (1996) (holding deferential abuse of discretion review to be appropriate because the district court was "better positioned" to decide the issue in question (quoting Pierce v. Underwood, 487 U. S. 552, 559-60 (1988)))
96. Natural Res. Def. Council, Inc. v. Sw. Marine, Inc., 236 F. 3d 985, 999 (9th Cir. 2000) (holding that a district court has "broad latitude in fashioning equitable relief when necessary to remedy an established wrong").
97. F. 3d 938 (9th Cir. 2008).
98. Id. at 944-45.
99. Id.
100. Winter v. Natural Res. Def. Council, Inc. {Winter II), 129 S. Ct. 365, 381 (2008).
101. See id.
102. U. S. C. § 702 (2006).
103. Note that specific mitigation measures, not the underlying injunction, were challenged in Winter II.
104. See, e.g., Lyng v. Nw. Indian Cemetery Protective Ass'n, 485 U. S. 439 (1988) (considering an action for a procedural NEPA violation but holding that an injunction was not appropriate in the instant case because the injunction was not sufficiently tailored and the lower court had not considered other remedies)
105. Norton v. S. Utah Wilderness Alliance, 542 U. S. 55 (2004) (holding that an injunction until an EIS could be completed was not appropriate because no significant work was left to complete).
106. Amoco Prod. Co. v. Vill. of Gambell, AK, 480 U. S. 531 (1987).
107. Id. at 544 (specifying that an EIS and an alternate statutorily mandated review found that federal land use would not significantly restrict subsistence uses).
108. Id.
109. Id.
110. See, e.g., Natural Res. Def. Council v. Evans, 279 F. Supp. 2d 1129 (N. D. Cal. 2003)
111. Natural Res. Def. Council, Inc. v. U. S. Dept. of the Navy, 857 F. Supp. 734 (CD. Cal. 1994)
112. See also Nat'l Audubon Soc'y v. Dep't of the Navy, 422 F. 3d 174 (4th Cir. 2005) (upholding an injunction against the Navy for NEPA violations in its decision to construct an aircraft landing training field within five miles of a national wildlife refuge but requiring the injunction be narrowed to permit the Navy to continue in the meantime with certain non-environmentally harmful activity).
113. Lujan v. Defenders of Wildlife, 504 U. S. 555, 573 n. 7 (1992).
114. Id. Note that such flexibility is necessary because the Supreme Court does not recognize the government's failure to comply with the law as an injury.
115. See, e.g., Allen v. Wright, 468 U. S. 737, 753-54 (1984).
116. Winter v. Natural Res. Def. Council, Inc. (Winter II), 129 S. Ct. 365, 374-75 (2008).
117. Amoco Prod. Co., 480 U. S. at 545.
118. Winter II, 129 S. Ct. at 392 (Ginsburg, J., dissenting).
119. Animal Welfare Inst. v. Martin, 588 F. Supp. 2d 70, 101-02 (D. Me. 2008) (denying injunctive relief to environmental organizations because the harm could not be proved to the necessary "likelihood" standard post-Winter II).
120. Winter II, 129 S. Ct. at 377 (majority opinion).
121. Id.
122. Water Keeper Alliance v. U. S. Dep't of Def., 271 F. 3d 21, 34 (1st Cir. 2001) (finding that national security implications distinguished the case from those that imposed injunctions on non-military actors)
123. Nat'l Audubon Soc'y v. Dep't of the Navy, 422 F. 3d 174, 207 (4th Cir. 2005) (upholding a limited injunction because "the judiciary must take care not to usurp decision making authority that properly belongs to the Executive or unduly hamper the Executive's ability to act within its constitutionally assigned sphere of control").
124. Hamdi v. Rumsfeld, 542 U. S. 507, 527-28 (2004) (plurality opinion) (dismissing the government's claim that judicial review of terrorist suspect's detention be limited to the broader detention scheme or, at most, the "factual basis supplied by the Executive to support its own determination").
125. See San Luis Obispo Mothers for Peace v. Nuclear Regulatory Comm'n, 449 F. 3d 1016, 1034-35 (9th Cir. 2006) (finding "no 'national defense' exception to NEPA")
126. cf. Weinberger v. Catholic Action of HawVPeace Educ. Project, 454 U. S. 139 (1981) (holding that the NEPA exemption limiting disclosure of classified information, in this case about nuclear weapons, abrogated the need for a "hypothetical" EIS).