Winter v. NRDC, 129 S. Ct. 365 (2008).

Terra Bowling, J.D.

The Supreme Court has ruled that the Navy may continue the use of mid-frequency active sonar in its training exercises off the coast of southern California. The ruling overturns a portion of the Ninth Circuit’s preliminary injunction requiring the Navy to suspend or limit its use of sonar when marine mammals are in the vicinity.

Background
The Navy uses mid-frequency active (MFA) sonar during training exercises off the coast of Southern California. In the exercises, ships, aircraft, and submarines use the sonar to identify submerged targets, such as enemy submarines. Many environmentalists, including the Natural Resources Defense Council (NRDC), contend that the sonar causes serious injury, including hearing loss, decompression sickness, and strandings, to the 37 species of marine mammals inhabiting Southern California waters. The Navy contests this claim, citing a forty-year record of conducting the exercises with no documented injuries to marine mammals.
      The Navy planned to use mid-frequency sonar in fourteen large-scale training exercises off the coast of Southern California between February 2007 and January 2009. The Navy completed an environmental assessment on the exercises, concluding that they would not have a significant impact on the environment.         NRDC and other environmental groups brought suit against the Navy claiming that the training exercises violated several federal laws. Primarily, NRDC claimed that the Navy violated the National Environmental Policy Act (NEPA) in its failure to prepare an environmental impact statement (EIS) before conducting the exercises. The plaintiffs sought a preliminary injunction to stop the MFA sonar training.
      In granting a preliminary injunction, a plaintiff must show a likelihood of success; a likelihood that he will suffer irreparable harm absent preliminary relief; that the balance of equities tips in his favor; and that an injunction is in the public interest. In August 2007, the federal district court issued a preliminary injunction prohibiting the use of MFA sonar during training. The district court found that because there was a likelihood of success on the plaintiffs’ NEPA claim and a possibility of irreparable harm to the marine mammals, the balance of harms tipped in favor of the plaintiffs.
      On appeal, the Ninth Circuit found the injunction overbroad and remanded the case. The district court then entered an injunction imposing six restrictions on the Navy’s training exercises. Among other requirements, the re­ strictions mandated that sonar be shut off when a marine mammal was spotted within 2,200 yards and that MFA should be powered down in “surface ducting” conditions. The Navy ap­ pealed these requirements.
      In the meantime, the Navy sought relief from the Executive Branch. Citing national security reasons, President Bush and the Council on Environmental Quality (CEQ) granted the Navy exemptions from NEPA and the Coastal Zone Management Act that would allow the Navy to continue its exercises without first preparing an Environmental Impact State­ ment (EIS). In light of these orders, the Navy sought to vacate the two aforementioned requirements in the preliminary injunction. The Ninth Circuit upheld the injunction, finding that it was warranted by the possibility of irreparable injury to the marine mammals. The appellate court also questioned the actions of the executive branch in issuing the orders.
      The U.S. Supreme Court granted certiorari to hear the case. In granting cert, the Court looked at whether the lower courts abused their discretion in granting the preliminary injunction regarding the two contested requirements.

Possibility of Irreparable Injury
The Supreme Court first looked at the standard used by the lower courts in granting the preliminary injunction. The Court noted the lower court’s finding that when a plaintiff demonstrates a strong likelihood of success on the merits, a preliminary injunction may be en­ tered based on only a “possibility” of irreparable injury. The court found that this standard was “too lenient,”1 citing precedent requiring plaintiffs seeking a preliminary injunction to show that without an injunction irreparable injury is “likely.”

Abuse of Discretion
The Court held that even if the NRDC had shown a likelihood of success on the merits and irreparable injury, it would deny injunctive relief based on the Navy and the public’s interest in national security. The Court found that the lower courts did not seriously consider the balance of harm to the parties, especially the harm to the public interest in national defense. The Court emphasized the lower court’s lack of deference to Navy officers’ judgments about how the injunction would reduce the effectiveness of the Navy’s training. The Supreme Court noted the Navy’s testimony that the threat posed by enemy submarines required extensive sonar training that could not be accomplished under the preliminary injunction restrictions. In this instance, the Court found that the balance of harms “tip strongly in favor of the Navy.”2
      The Supreme Court found that the lower courts abused their discretion in requiring the Navy to shut down MFA sonar when a marine mammal is spotted within 2,200 yards of a vessel. The Ninth Circuit had found that because marine mammal sightings were rare and be­ cause the Navy had shutdown MFA beyond its self-imposed zone of 200 yards during prior exercises, the shutdown would not be overly burdensome. The Supreme Court noted, however, that the injunction would expand the radius from 200 to 2,200 yards and that if the shutdowns occurred during critical times it could delay training for several days, imposing a significant burden on the Navy.
      The Court found that the lower courts also abused their discretion in requiring the Navy to power down during “surface ducting” conditions. Surface ducting is “a phenomenon in which relatively little sound energy penetrates beyond a narrow layer near the surface of the water.”3 The Ninth Circuit had found that the rule was reasonable, citing the rarity of surface ducting and the fact that the Navy had certified other training groups without performing surface ducting. The Supreme Court again disagreed, finding that because submariners take advantage of the phenomenon to avoid being detected by sonar and because the phenomenon is rare, it is particularly important for the Navy to be able to train under these conditions.

Conclusion
The majority held that the possible harm to the marine mammals was outweighed by the Navy’s need to conduct realistic training with active sonar to respond to underwater threats from enemy submarines. Justice Ginsburg wrote a dissenting opinion, joined by Justice Souter, finding that the lower courts did not abuse their discretion in granting the preliminary injunction. The dissent concluded that the Navy undermined NEPA in seeking an exemption from the White House. The majority did not consider the executive orders in its opinion.

Endnotes
1. Winter v. NRDC, 129 S. Ct. 365, 375 (2008).
2.  Id. at 378.
3.  Id. at 380.