Supreme Court Majority Supports Navy Sonar Tests without an EIS

posted in: December 2008 | 0

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 preliminary injunction imposed on its use of mid-frequency sonar in anti-submarine warfare exercises off the coast of Southern California.

The answer, in a 5-4 decision handed up November 12 and written by Chief Justice John Roberts, is a qualified “yes – sometimes.”

But 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.

Although the 9th U.S. Circuit Court of Appeals had upheld a preliminary injunction against the Navy that set conditions on the Navy’s 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’s 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 – and which were the subject of the lawsuit filed by the Natural Resources Defense Council and other groups – 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 – so-called surface ducting – and required sonar to be shut down entirely whenever a marine mammal was sighted within 2,200 yards of a sonar source.)

In Hawai`i, the Navy conducts similar training exercises using MFA sonar. In 2007, a coalition of environmental groups – Ocean Mammal Institute, Animal Welfare Institute, KAHEA, the Center for Biological Diversity, and Surfrider Foundation, Kaua`i Chapter – 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.

Judge Ezra, like his California counterpart, granted a preliminary injunction last February that set conditions on the sonar exercises, which were modified somewhat in March.

As Paul Achitoff, an attorney with Earthjustice representing the environmental groups, explains, only one of the conditions in Ezra’s injunction – the limit on exercises when surface ducting is present – 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.

The 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.)

The 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.

Now that the Supreme Court has issued its ruling, Achitoff says he expects to be back in court “fairly soon.”

“Before 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,” 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’s preliminary injunction are moot.

The Court’s Decision

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.

The majority opinion gave deference to the Navy’s need to train and the claims of national security interests it put forward. “Antisubmarine warfare is currently the Pacific Fleet’s top war-fighting priority,” 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 “extensive training to become proficient in its use.”

The 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 “possibility” of irreparable harm, the injunction was justified. The Navy argued that “possibility” alone was not sufficient to warrant an injunction; the threshold that needed to be crossed was “likelihood,” it said – and the Supreme Court majority agreed. “Our frequently reiterated standard requires plaintiffs seeking preliminary relief to demonstrate that irreparable injury is likely in the absence of an injunction,” Roberts wrote. “Issuing 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.”

But even if the plaintiffs had shown “irreparable injury” from the Navy’s actions, Roberts continued, “any such injury is outweighed by the public interest and the Navy’s interest in effective, realistic training of its sailors. A proper consideration of these factors alone requires denial of the requested injunctive relief.” 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.

In discussing the seriousness of the Navy’s need for sonar training, Roberts holds it up against the plaintiffs’ interests, which, in his description, seem trivial indeed. The Navy’s interests, he wrote, “must be weighed against the possible harm to the ecological, scientific, and recreational interests that are legitimately before this Court,” including whale-watching trips, underwater observation of marine mammals, scientific research, and photography. “While 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.” Still, he added, “Of 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.”

Further, he wrote, the case itself centers around the “legal claim… that the Navy must prepare an EIS, not that it must cease sonar training.” Thus, “there is no basis for enjoining such training in a manner credibly alleged to pose a serious threat to national security.”

Concurring and Dissenting

Breyer’s separate concurring and dissenting opinion focused on the issue of whether the district court was “legally correct in forbidding the training exercises unless the Navy implemented the two controverted conditions.”

“Several features of this case lead me to conclude that the record, as now before us, lacks adequate support for an injunction,” he wrote. “Given the uncertainty the figures [of potentially harmed marine mammals under the injunction] create in respect to the harm caused by the Navy’s original training plans,” Breyer wrote, “it would seem important to have before us at least some estimate of the harm likely avoided by the Navy’s 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 – that is, the environmental harm likely caused by the Navy’s exercises with the four uncontested mitigation measures (but without the two contested mitigation measures) in place.”

Breyer also questioned why lower courts did not give deference to Navy officials’ claims of vital national security interests and their objections to the two conditions they challenged. “I would thus vacate the preliminary injunction … to the extent it has been challenged by the Navy,” he wrote, with Stevens concurring.

Stevens agreed with Breyer’s 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. “At 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,” he wrote. “Thus, by the time the District Court would have an opportunity to impose new conditions, the case could very well be moot.”

“In my view, the modified conditions imposed by the Court of Appeals … 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’ February 29, 2008, order so that the provisional conditions it contains remain in place until the Navy’s completion of an acceptable EIS.”

In her dissent, in which Justice Souter joined, Justice Ginsburg clearly sided with the lower courts. “If the Navy had completed the EIS before taking action, as NEPA instructs, the parties and the public could have benefited from the environmental analysis – and the Navy’s 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’s 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.”

“The EIS is NEPA’s core requirement,” Ginsburg continued, citing past Supreme Court decisions to support her position. An EIS, she wrote, “demonstrates that an agency has indeed considered environmental concerns, and ‘perhaps more significantly, provides a springboard for public comment.’”

The fact that the Navy would be releasing an EIS only after completion of its 14 planned exercises in Southern California “defeats NEPA’s informational and participatory purposes,” she wrote. “The Navy’s 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’s exercises.”

Ginsburg was especially critical of the Navy’s recourse to the Council on Environmental Quality. The “alternative arrangements” 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’s “considered judgment,” on the other hand, was “based 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.”

“In light of the likely, substantial harm to the environment, NRDC’s 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,” Ginsburg concluded. “For the reasons stated, I would affirm the judgment of the Ninth Circuit.”

— Patricia Tummons

Volume 19, Number 6 December 2008

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