Supreme Court Rules for Navy in Use of Sonar in Training Exercises
By Jared Frisch – Edited by Dmitriy Tishyevich
Winter v. Natural Resources Defense Council, Inc.
Supreme Court of the United States, November 12, 2008, No. 07-1239
The Supreme Court reversed a decision by the U.S. Court of Appeals for the Ninth Circuit and vacated in part a preliminary injunction that had restricted sonar training operations by the US Navy. The training operations were alleged to damage marine life in violation of the National Environmental Policy Act of 1969 (“NEPA”). The Court applied an equitable balancing test, determining that the likelihood of irreparable injury to the environment was outweighed by the public interest and the Navy’s interest in “effective, realistic training of its sailors.”
The District Court had issued a preliminary injunction restricting the U.S. Navy from conducting mid-frequency active (“MFA”) sonar training exercises that the plaintiffs assert cause serious injury to marine mammals. The MFA sonar is used by the Navy to locate nearly silent diesel-electric submarines. The contested measures would have required the Navy to shut down its MFA sonar if a mammal was found within 2,200 yards of a vessel and to power its sonar down by 6 decibels in the case of particular weather conditions known as “surface ducting.”
In response to the injunction, the Navy had sought relief from the Council on Environmental Quality (“CEQ”), an executive agency, which found “emergency circumstances” authorized the Navy to continue its training exercises without the restrictions imposed by the District Court. The district court, however, declined to vacate the injunction in response to the CEQ’s emergency authorization, and the Ninth Circuit affirmed.
Chief Justice Roberts delivered the majority opinion, joined by justices Scalia, Kennedy, Thomas, and Alito. The majority concluded that “the balance of equities and consideration of the overall public interest in this case tip strongly in favor of the Navy.” While recognizing that military interests “do not always trump other considerations,” the opinion stated that great deference is to be given to military authorities in matters regarding critical military interests.
The opinion also noted that the standard employed by the Ninth Circuit in issuing a preliminary injunction was too lenient and emphasized that a plaintiff seeking preliminary relief must demonstrate that irreparable injury is likely in the absence of an injunction. The Court found it unnecessary to address the likelihood of irreparable harm, concluding that any possibility of harm was outweighed by the public interest in military training.
In evaluating the public interest, the Court relied on statements from senior Navy officials who emphasized that “realistic training” could not be accomplished under the restrictions imposed by the district court. The Court affirmed that such training was “clearly of the utmost importance to the Navy and the Nation,” without going into detail as to the nature of the military necessity.
Justice Ginsburg, joined by Justice Souter, dissented, stating that the CEQ lacked authority as an executive agency to “short circuit” the district court’s judgment. THe dissent pointed out that the Navy had other options, namely requesting congressional authorization to proceed without fulfilling NEPA’s environmental requirements. Justice Ginsburg characterized the course used by the Navy as a “rapid, self-serving resort to an office in the White House” that ran counter to Congressional intent in establishing NEPA. Examining the record, Justice Ginsburg would have held that the plaintiffs made the required showing of harm to warrant injunctive relief.
Justice Breyer, joined in part by Justice Stevens, concurred in part and dissented in part. While agreeing with the majority in vacating those portions of the preliminary injunction challenged by the Navy, Justice Breyer would have remanded to the district court for consideration of a new set of restrictions that would protect the marine wildlife while also enabling the Navy to carry out its exercises.