Opinion Recap: Winter v. NRDC

Menaka Kalaskar discusses last week’s decision in Winter v. NRDC (No. 07-1239).  Additional information on the case is available on SCOTUSwiki, here.

“‘To be prepared for war is one of the most effectual means of preserving peace.’”  So begins Chief Justice Roberts’ opinion in Winter v. NRDC—a quote from George Washington’s Annual Address to Congress, and a signal that the Court’s weighing of interests comes down “strongly in favor of the Navy.”  Indeed, in its twenty-four-page majority opinion, the Court declares numerous times that the balance of hardships and the public interest—two of the four preliminary injunction inquiries—weigh so overwhelmingly in favor of the Navy that it doesn’t even “strike [the Court] as a close question.”  The Court finds that the district court abused its discretion in imposing sonar shutdown and power-down requirements on the Navy, and it reverses and vacates those portions of the injunction.

The Court begins its discussion of the case with the lower court rulings on NRDC’s likely success on the merits.  It then moves on to the lower court determinations of the second preliminary injunction inquiry—the threat of irreparable harm or injury.  The Court agrees with the Navy that the circuit court’s “possibility” of harm standard is not stringent enough.  Instead, the Court asserts its “frequently reiterated standard” that irreparable injury be “likely in the absence of an injunction.”  Granting a preliminary injunction based only on a possibility of harm is “inconsistent” with an injunction’s purpose as an extraordinary remedy requiring a “clear showing” of success by the plaintiff.  The Court notes that the Navy challenged only two of six restrictions in the preliminary injunction, and it finds fault with the district court’s failure to reconsider the irreparable harm question in light of this narrow challenge.  Because four other restrictions went unchallenged, the district court should have reconsidered whether the four restrictions were sufficient to prevent the irreparable injury alleged by NRDC. 

Next, the Court considers the purpose and requirements of NEPA.  Here, the Court seems to avoid the straightforward question of whether the Navy violated NEPA.  It notes that NEPA imposes “only procedural requirements” aimed at researching and releasing information about environmental effects stemming from agency action.  The Court appears to be satisfied that the Navy has conducted these exercises for forty years and “took a ‘hard look at environmental consequences’” before beginning its SOCAL training.

The Court finally notes that deciding the questions of likelihood of success and irreparable injury are unnecessary because a “proper consideration” of naval and public interest alone instructed denial of injunctive relief.  It proceeds to discuss favorably several naval officer statements that the use of MFA sonar under realistic conditions was of vital interest to the Navy and the country.   The Court agrees that NRDC’s proffered ecological, scientific, and recreational interests were important, but when the injury to plaintiffs was at most “harm to an unknown number of marine mammals,” the possibility of the Navy deploying “inadequately trained” forces that would “jeopardize[] the safety of the fleet” represented greater harm.  The Court asserts that the district court and Ninth Circuit had given the Navy’s interests inadequate consideration and had relied on faulty reasoning to conclude that the Navy would be able to train groups effectively while abiding by the court-imposed shutdown and power-down requirements.

Justice Breyer filed an opinion concurring in part and dissenting in part.  Justice Stevens joined Part I of this opinion.

Part I acknowledges that although NRDC had a strong argument favoring the injunction, the overall balance of harms and a review of the lower court rulings did not provide enough support for the preliminary injunction.  First, the evidence surrounding the need for the shutdown and power-down requirements was “weak or uncertain.”  Second, the Navy offered multiple affidavits from naval training experts documenting the serious problems the injunction would impose on effective naval exercises.  Third, the district court did not explain why it rejected these officers’ affidavits in overriding their judgment and imposing the restrictions.  Fourth, the circuit court did not provide adequate explanations for its view that the injunction would pose minimal intrusions on naval exercises.  Fifth, when the circuit court had remanded an initial injunction that imposed a blanket ban on naval exercises, it explained that the injunction must be narrowed so that the Navy could still conduct its training exercises.  In Justice Breyer’s view, in imposing and upholding the subsequent injunctions, neither lower court adequately explained why the Court should reject the Navy’s evidence that it would not be able to effectively train its sailors.

Justice Breyer concurs in the majority’s decision to vacate the parts of the injunction challenged by the Navy.

In Part II of his opinion, Justice Breyer recounts the Ninth Circuit’s decision to impose modified restrictions upon the Navy pending resolution of this case.  The first modified restriction allowed the Navy to continue its MFA sonar use during critical points in training, even when a marine mammal was spotted within 2200 yards.  The second modified restriction allowed the Navy to power down its sonar proportionate to the proximity of a marine mammal during surface ducting conditions, and only required total shutdown within 500 meters.  Justice Breyer considers these modified conditions to represent “the best equitable conditions that can be created” in the short time before the Navy completes its exercises and an EIS.  He would therefore modify the order to allow the modified conditions to remain in place until the completion of the Navy’s SOCAL exercises.

Justice Ginsburg, joined by Justice Souter, dissented from the Court’s judgment.  She believes the district court “conscientiously balanced the equities” and did not abuse its discretion in imposing a preliminary injunction.  The dissenting opinion asserts that an EIS is NEPA’s “core requirement.”  Its publication serves an informational role.  The timing of an EIS forces the agency to assess the environmental consequences of its actions before those actions are taken.  Thus, the Navy’s failure to prepare an EIS before conducting its training defeated the core purpose of NEPA. 

The dissenting opinion also finds fault with the Navy’s “extraordinary course” of action in flouting its statutory duty and seeking relief from CEQ, an executive agency “lack[ing] authority to absolve an agency of its statutory duty to prepare an EIS.”

Next, the dissenting opinion discusses the nature of equity jurisdiction.  It approves of the “possibility” of harm standard employed by the district court and Ninth Circuit, noting that courts “do not insist that litigants uniformly show a particular, predetermined quantum of probable success or injury before awarding equitable relief.”  Flexibility is particularly important in the context of environmental claims, where future harm is uncertain and plaintiffs may rely more on their probability of success on the merits than demonstrating likely harm. 

Conducting a balancing of equities on both sides, Justice Ginsburg notes that the Navy’s own EA predicted substantial harm to marine mammals in the Southern California area.  A prediction of 436 Level A harassments of beaked whales, for example, where as few as 1121 exist along the West Coast, represented serious environmental harm in the dissent’s view

In light of the likely environmental harm posed by the naval training exercises, NRDC’s likelihood of success on the merits, and a balancing of the equities and public interest, the dissent does not agree that the preliminary injunction was an abuse of discretion.  It would affirm the Ninth Circuit’s judgment