Do the interests of national security trump those of the environment?<\/p>\n
\tIn a nutshell, that is the question that was posed to the U.S. Supreme Court as it considered the challenge of the U.S. Navy to two conditions of a preliminary injunction imposed on its use of mid-frequency sonar in anti-submarine warfare exercises off the coast of Southern California.<\/p>\n
\tThe answer, in a 5-4 decision handed up November 12 and written by Chief Justice John Roberts, is a qualified \u201cyes \u2013 sometimes.\u201d<\/p>\n
\tBut the practical effect of the Supreme Court decision is limited, both in California, where the case originated, and in Hawai`i, where questions similar to those raised in California are pending before federal Judge David A. Ezra.<\/p>\n
Although the 9th U.S. Circuit Court of Appeals had upheld a preliminary injunction against the Navy that set conditions on the Navy\u2019s use of mid-frequency active sonar (MFAS) in the Southern California training exercises in order to protect marine mammals, including beaked whales, it stayed enforcement of two conditions of that injunction to which the Navy objected pending appeal to the Supreme Court. That meant that the Navy\u2019s exercises have been subject to several other court-imposed conditions, as well as some to which it consented. With the Supreme Court decision voiding the two challenged conditions, the Navy can complete the series of exercises it had planned \u2013 and which were the subject of the lawsuit filed by the Natural Resources Defense Council and other groups \u2013 without having to comply with the conditions of the injunction it found objectionable. (Those two conditions imposed limits on exercises when ocean conditions result in amplification of the underwater noise \u2013 so-called surface ducting \u2013 and required sonar to be shut down entirely whenever a marine mammal was sighted within 2,200 yards of a sonar source.)<\/p>\n
\tIn Hawai`i, the Navy conducts similar training exercises using MFA sonar. In 2007, a coalition of environmental groups \u2013 Ocean Mammal Institute, Animal Welfare Institute, KAHEA, the Center for Biological Diversity, and Surfrider Foundation, Kaua`i Chapter \u2013 sued the Navy and the National Marine Fisheries Service of the Department of Commerce, alleging failure to comply with the National Environmental Policy Act and violations of the Endangered Species Act, the National Marine Sanctuary Act, and the Coastal Zone Management Act.<\/p>\n
\tJudge Ezra, like his California counterpart, granted a preliminary injunction last February that set conditions on the sonar exercises, which were modified somewhat in March.<\/p>\n
\tAs Paul Achitoff, an attorney with Earthjustice representing the environmental groups, explains, only one of the conditions in Ezra\u2019s injunction \u2013 the limit on exercises when surface ducting is present \u2013 came before the Supreme Court. Ezra has adopted a condition limiting testing in the presence of marine mammals, but instead of halting sonar altogether when one is spotted at a distance, as the California injunction did, it requires the Navy to power down sonar by 6 decibels whenever a marine mammal is spotted within 1,500 meters, by 10 decibels when one is within 750 meters, and ceasing sonar altogether only if one is spotted within 500 meters of the sonar dome.<\/p>\n
\tThe Hawai`i litigation also differs from that in California in that the plaintiffs are suing the National Marine Fisheries Service as well as the Navy. NMFS, they allege, violated the Endangered Species Act when it approved a biological opinion the Navy used in justifying its exercises. (Although NRDC also sued NMFS, alleging ESA violations, Judge Cooper found NRDC not likely to prevail on the ESA claim in her initial preliminary injunction order.)<\/p>\n
\tThe case against NMFS was to be argued before Ezra in October, but in light of the NRDC case coming before the Supreme Court, on October 3, Ezra ordered that all matters in the Hawai`i case be stayed.<\/p>\n
\tNow that the Supreme Court has issued its ruling, Achitoff says he expects to be back in court \u201cfairly soon.\u201d<\/p>\n
\t\u201cBefore we get to the issue of the extent to which the preliminary injunction should be modified, I imagine the court would first address the issue raised by the Navy of mootness,\u201d he said in a phone interview. The Navy has argued that, with the issuance of the Hawai`i Range Complex environmental impact statement last summer, and a new consistency determination to satisfy the requirements of the Coastal Zone Management Act, the claims made by the plaintiffs underlying Judge Ezra\u2019s preliminary injunction are moot.<\/p>\n
The Court\u2019s Decision<\/i><\/b><\/p>\n
The majority opinion of the court, written by Chief Justice Roberts, was joined in by Justices Samuel Alito, Anthony Kennedy, Antonin Scalia, and Clarence Thomas. Justice Stephen Breyer wrote a separate opinion, concurring in part and dissenting in part, with Justice John Paul Stevens joining with him with respect to his argument as to why the injunction should be vacated to the extent challenged by the Navy. Justice Ruth Bader Ginsburg wrote a dissenting opinion, joined by Justice David Souter.<\/p>\n
\tThe majority opinion gave deference to the Navy\u2019s need to train and the claims of national security interests it put forward. \u201cAntisubmarine warfare is currently the Pacific Fleet\u2019s top war-fighting priority,\u201d Roberts wrote, and MFA sonar is essential in tracking diesel-fueled submarines of potential enemies. The technology involved in its use is complex, he continued, and Navy personnel must undergo \u201cextensive training to become proficient in its use.\u201d<\/p>\n
\tThe lower courts had determined that the plaintiffs had a strong likelihood of prevailing on the claims of NEPA violations and, on the basis of a \u201cpossibility\u201d of irreparable harm, the injunction was justified. The Navy argued that \u201cpossibility\u201d alone was not sufficient to warrant an injunction; the threshold that needed to be crossed was \u201clikelihood,\u201d it said \u2013 and the Supreme Court majority agreed. \u201cOur frequently reiterated standard requires plaintiffs seeking preliminary relief to demonstrate that irreparable injury is likely in the absence of an injunction,\u201d Roberts wrote. \u201cIssuing a preliminary injunction based only on a possibility of irreparable harm is inconsistent with our characterization of injunctive relief as an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.\u201d<\/p>\n
\tBut even if the plaintiffs had shown \u201cirreparable injury\u201d from the Navy\u2019s actions, Roberts continued, \u201cany such injury is outweighed by the public interest and the Navy\u2019s interest in effective, realistic training of its sailors. A proper consideration of these factors alone requires denial of the requested injunctive relief.\u201d And because of this, he added, there was no need to address the matter of whether the plaintiffs would prevail on the merits of the case, as lower courts had held.<\/p>\n
\tIn discussing the seriousness of the Navy\u2019s need for sonar training, Roberts holds it up against the plaintiffs\u2019 interests, which, in his description, seem trivial indeed. The Navy\u2019s interests, he wrote, \u201cmust be weighed against the possible harm to the ecological, scientific, and recreational interests that are legitimately before this Court,\u201d including whale-watching trips, underwater observation of marine mammals, scientific research, and photography. \u201cWhile we do not question the seriousness of these interests, we conclude that the balance of equities and consideration of the overall public interest in this case tip strongly in favor of the Navy.\u201d Still, he added, \u201cOf course, military interests do not always trump other considerations, and we have not held that they do. In this case, however, the proper determination of where the public interest lies does not strike us as a close question.\u201d<\/p>\n
\tFurther, he wrote, the case itself centers around the \u201clegal claim\u2026 that the Navy must prepare an EIS, not that it must cease sonar training.\u201d Thus, \u201cthere is no basis for enjoining such training in a manner credibly alleged to pose a serious threat to national security.\u201d<\/p>\n
Concurring and Dissenting<\/i><\/b><\/p>\n
Breyer\u2019s separate concurring and dissenting opinion focused on the issue of whether the district court was \u201clegally correct in forbidding the training exercises unless the Navy implemented the two controverted conditions.\u201d<\/p>\n
\t\u201cSeveral features of this case lead me to conclude that the record, as now before us, lacks adequate support for an injunction,\u201d he wrote. \u201cGiven the uncertainty the figures [of potentially harmed marine mammals under the injunction] create in respect to the harm caused by the Navy\u2019s original training plans,\u201d Breyer wrote, \u201cit would seem important to have before us at least some estimate of the harm likely avoided by the Navy\u2019s decision not to contest here four of the six mitigating conditions that the District Court ordered. Without such evidence, it is difficult to assess the relevant harm \u2013 that is, the environmental harm likely caused by the Navy\u2019s exercises with the four uncontested mitigation measures (but without the two contested mitigation measures) in place.\u201d<\/p>\n
\tBreyer also questioned why lower courts did not give deference to Navy officials\u2019 claims of vital national security interests and their objections to the two conditions they challenged. \u201cI would thus vacate the preliminary injunction \u2026 to the extent it has been challenged by the Navy,\u201d he wrote, with Stevens concurring.<\/p>\n
\tStevens agreed with Breyer\u2019s analysis of the case. But Breyer then went on to say that while vacating the injunction and remanding it to a lower court would be his decision under ordinary circumstances, those circumstances did not apply in the present case. \u201cAt this point, the Navy has informed us that this set of exercises will be complete by January, at the latest, and an EIS will likely be complete at that point, as well,\u201d he wrote. \u201cThus, by the time the District Court would have an opportunity to impose new conditions, the case could very well be moot.\u201d<\/p>\n
\t\u201cIn my view, the modified conditions imposed by the Court of Appeals \u2026 reflect the best equitable conditions that can be created in the short time available before the exercises are complete and the EIS is ready. The Navy has been training under these conditions since February, so allowing them to remain in place will, in effect, maintain what has become the status quo. Therefore, I would modify the Court of Appeals\u2019 February 29, 2008, order so that the provisional conditions it contains remain in place until the Navy\u2019s completion of an acceptable EIS.\u201d<\/p>\n
\tIn her dissent, in which Justice Souter joined, Justice Ginsburg clearly sided with the lower courts. \u201cIf the Navy had completed the EIS before taking action, as NEPA instructs, the parties and the public could have benefited from the environmental analysis \u2013 and the Navy\u2019s training could have proceeded without interruption. Instead, the Navy acted first, and thus thwarted the very purpose an EIS is intended to serve. To justify its course, the Navy sought dispensation not from Congress, but from an executive council [the Council on Environmental Quality] that lacks authority to countermand or revise NEPA\u2019s requirements. I would hold that, in imposing manageable measures to mitigate harm until completion of the EIS, the District Court conscientiously balanced the equities and did not abuse its discretion.\u201d<\/p>\n
\t\u201cThe EIS is NEPA\u2019s core requirement,\u201d Ginsburg continued, citing past Supreme Court decisions to support her position. An EIS, she wrote, \u201cdemonstrates that an agency has indeed considered environmental concerns, and \u2018perhaps more significantly, provides a springboard for public comment.\u2019\u201d<\/p>\n
\tThe fact that the Navy would be releasing an EIS only after completion of its 14 planned exercises in Southern California \u201cdefeats NEPA\u2019s informational and participatory purposes,\u201d she wrote. \u201cThe Navy\u2019s inverted timing, it bears emphasis, is the very reason why the District Court had to confront the question of mitigation measures at all. Had the Navy prepared a legally sufficient EIS before beginning the SOCAL exercises, NEPA would have functioned as its drafters intended: The EIS process and associated public input might have convinced the Navy voluntarily to adopt mitigation measures, but NEPA itself would not have impeded the Navy\u2019s exercises.\u201d<\/p>\n
\tGinsburg was especially critical of the Navy\u2019s recourse to the Council on Environmental Quality. The \u201calternative arrangements\u201d it devised offered no chance for public participation and were one-sided, based only on information provided by the Navy, she wrote. The District Court\u2019s \u201cconsidered judgment,\u201d on the other hand, was \u201cbased on a two-sided record. More fundamentally, even an exemplary CEQ review could not have effected the short-circuit the Navy sought. CEQ lacks authority to absolve an agency of its statutory duty to prepare an EIS.\u201d<\/p>\n
\t\u201cIn light of the likely, substantial harm to the environment, NRDC\u2019s almost inevitable success on the merits of its claim that NEPA required the Navy to prepare an EIS, the history of this litigation, and the public interest, I cannot agree that the mitigation measures the District Court imposed signal an abuse of discretion,\u201d Ginsburg concluded. \u201cFor the reasons stated, I would affirm the judgment of the Ninth Circuit.\u201d<\/p>\n
— Patricia Tummons<\/p>\n
Volume 19, Number 6 December 2008<\/p>\n","protected":false},"excerpt":{"rendered":"
Do the interests of national security trump those of the environment? In a nutshell, that is the question that was posed to the U.S. Supreme Court as it considered the challenge of the U.S. Navy to two conditions of a … Continued<\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[165],"tags":[],"class_list":["post-1242","post","type-post","status-publish","format-standard","hentry","category-december-2008"],"_links":{"self":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/1242","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=1242"}],"version-history":[{"count":0,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/1242\/revisions"}],"wp:attachment":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=1242"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=1242"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=1242"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}