Whether under NEPA the CEQ could make "alternative arrangements" that allowed the Navy to continue using MFA sonar in its training exercises off the coast of southern California without filing an EIS because the District Court’s conditional preliminary injunction constituted "emergency circumstances."
Whether the District Court abused its discretion by issuing a preliminary injunction on the "mere possibility of irreparable harm," and also by not deferring to the CEQ’s findings.
On March 22, 2007, the Natural Resources Defense Council ("NRDC") sued the United States Navy in the District Court for the Central District of California to enjoin the Navy from conducting training exercises off the coast of southern California. Specifically, the NRDC sought to prevent the Navy from using mid-frequency active ("MFA") sonar during these exercises because such use harmed whales and other marine mammals, in violation of several environmental laws. The District Court concluded in January 2008 that NRDC had proven that allowing the exercises to continue would cause near certain harm to the environment and issued a preliminary injunction. In response to the injunction, both the President and the Council for Environmental Quality ("CEQ") exempted the Navy from two environmental statutes, finding that emergency circumstances existed which allowed the training to continue. The District Court, however, found the exemptions were improper and upheld its preliminary injunction, and the Ninth Circuit affirmed. The Navy challenges this decision by arguing that courts below used too lax of a standard when deciding that a preliminary injunction was justified and that the judiciary improperly interfered with the executive branch’s authority to control the military. How the Supreme Court decides this case will not only reflect its view on balancing environmental protection and national security, but also clarify the roles each Federal branch has in these matters.
Questions as Framed for the Court by the Parties
1. Whether CEQ permissibly construed its own regulation in finding "emergency circumstances."
2. Whether, in any event, the preliminary injunction, based on a preliminary finding that the Navy had not satisfied NEPA’s procedural requirements, is inconsistent with established equitable principles limiting discretionary injunctive relief.
The United States Navy uses mid-frequency active ("MFA") sonar to detect submerged submarines. Natural Resources Defense Council, Inc. v. Winter, 518 F.3d 658, 664 (9th Cir. 2008) (hereinafter NRDC). To discover such submarines, a Navy vessel emits a loud noise underwater and listens for it to echo back, indicating that the sound may have ricocheted off the side of another vessel. See Id. Studies have shown that the sound the MFA sonar generates can result in temporary deafness and internal bleeding for marine wildlife. See Id. at 666.
Under the National Environmental Policy Act ("NEPA"), agencies must prepare an Environmental Impact Statement ("EIS") for all federal actions "significantly affecting the quality of the human environment." National Environmental Policy Act, 42 U.S.C. § 4321(2)(C). Because completing an EIS may be costly and time-consuming, agencies are required to complete an Environmental Assessment ("EA") first, to determine if an EIS is necessary. 40 C.F.R. § 1508.9.
In February 2007, the Navy issued an EA for fourteen training exercises off the coast of southern California between February 2007 and January 2009, which set forth the Navy’s estimate of how much harm on marine mammals the use of MFA sonar would cause. NRDC, 518 F.3dat 667. During these exercises, individual naval units such as ships, submarines, and aviation squadrons would learn how to work together "as members of a strike group." Id. at 663–64. These exercises involved the regular use of MFA sonar. See Id. at 664. The coast of southern California contains at least nine species that are listed as threatened or endangered under the Endangered Species Act, and eight species of beaked whales, which are known to be particularly vulnerable to MFA sonar. See Id. at 665. However, the Navy’s EA determined that the exercises would not significantly impact marine wildlife, and that the Navy could commence with its training without completing an EIS. See Brief for Petitioners at 10.
On March 22, 2007, the National Resources Defense Council ("NRDC") and other environmental groups sued the Navy in the United States District Court for the Central District of California for violating several federal laws, particularly for violating NEPA by not filing an EIS, and for violating the Coastal Zone Management Act ("CZMA") by failing to reveal to the California Coastal Commission the effects of MFA sonar on marine wildlife. See NRDC, 518 F.3d at 661. On January 3, 2008, the District Court found that NRDC had demonstrated probable success on the merits of its claim that the Navy violated both NEPA and CZMA, and issued a preliminary injunction conditioning the use of the Navy’s MFA sonar. See Id. at 662. The two conditions that the Navy takes issue with require that it shut down the MFA sonar when a marine mammal is spotted within 2,200 feet of the sonar’s source and that it reduce the sonar level whenever "significant surface ducting conditions" occur. Id. at 676.
While the preliminary injunction was still on appeal, the President found that using MFA sonar during the Navy’s training was "essential to national security" and in the "paramount interest of the United States," and thus, pursuant to 16 U.S.C. § 1456(c)(1)(B), exempted the Navy from complying with the CZMA. NRDC, 518 F.3d at 662. Additionally, the Council on Environmental Quality ("CEQ"), an executive branch agency that coordinates federal environmental efforts, found that emergency circumstances existed pursuant to 40 C.F.R. § 1506.11 because the mitigation measures in the District Court’s preliminary injunction prevented the Navy from effectively training its strike groups. Consequently, it prescribed alternative NEPA arrangements which would allow the Navy to continue its routine MFA sonar training without filing an EIS and without following the mitigation measures imposed by the district court’s injunction. See Id. at 680. The alternative arrangements consisted primarily of several lookouts monitoring for marine mammals during the exercises, and reports after each exercise assessing the results of the surveillance. See Decision Memorandum Accepting Alternative Arrangements for the U.S. Navy’s SOCAL Exercises, 73 Fed. Reg. 4189, 4192 (Jan. 24, 2008). The Navy accepted these alternative arrangements, and the Ninth Circuit remanded the matter to the District Court to consider these developments. See Id. at 663. In February 2008, the District Court left the original preliminary injunction in place because it found that there were no emergency circumstances, and that therefore, the CEQ’s approval of alternative NEPA arrangements was invalid. See Id. The Court, however, did not reach the issue of the President’s CZMA exemption because it concluded that the NEPA grounds sufficiently supported its holding. See Id. at 661. The Ninth Circuit affirmed the lower court, keeping the injunction in place. See Id. at 703. It held that the lower court did not abuse its discretion and that NRDC had shown a strong likelihood of success on the merits, as well as the possibility of irreparable injury if relief was not granted. See Id.
The Supreme Court granted certiorari on June 23, 2008 to consider whether the lower courts properly enjoined the Navy from conducting training exercises because it did not file an EIS pursuant to NEPA. See Docket No. 07-1239.
CEQ's authority and the Separation of Powers
The National Environmental Policy Act of 1969 (NEPA) established an executive-branch administrative agency known as the Council for Environmental Quality ("CEQ"). 42 U.S.C. § 4321. When the National Resources Defense Council ("NRDC") and other environmental groups brought suit against the United States Navy, the district court granted a preliminary injunction preventing the Navy from pursuing anti-submarine warfare training using mid-frequency active ("MFA") sonar. NRDC, 518 F.3d at 661. Repeated modifications of this preliminary injunction by both the United States District Court for the Central District of California and the Ninth Circuit Court of Appeals resulted in certain restrictions on how the Navy may make use of MFA sonar in training exercises. Id. at 662.
The Council on Environmental Quality (CEQ) has authority under 40 C.F.R. 1506.11 to authorize alternative arrangements for NEPA compliance in "emergency circumstances." See Brief of Petitioner at 15. In the wake of the district court's preliminary injunction, the CEQ found that emergency circumstances exist because the injunction "greatly risks the Navy’s ability to train strike groups for deployments that are essential to national security and because there would be insufficient time to complete an EIS before such deployments must occur." Id. at 17. The district court found, contrary to the CEQ, that there were no emergency circumstances because the word "emergency" is limited to sudden, unanticipated events. Id. The Ninth Circuit, while recognizing the broad scope of the word emergency, upheld the district court ruling as "neither plainly erroneous nor plainly inconsistent with Section 1506.11." Id.
The Navy and amici contend that the Ninth Circuit was wrong to defer to the district court’s legal interpretation under an abuse-of-discretion standard. Id. at 18. Because the CEQ was "established by NEPA with authority to issue regulations interpreting it" (Id. at 22), the CEQ’s interpretation of the term "emergency circumstances" and it basis for deciding such circumstances existed in this case should have been given "controlling weight unless it is plainly erroneous or inconsistent with the regulation itself." Id. at 23.
The NRDC believes that, if it were sanctioned by the Supreme Court, the Navy’s interpretation of the law would create a "gaping hole" in NEPA and would effectively make the procedural requirements of NEPA discretionary. See Brief for Respondents at 35. "If the [Navy’s] view were the law, the military could simply forgo NEPA compliance, await the inevitable court order, and then obtain an administrative determination that environmental compliance is excused by the court’s decision to enforce the law." Id. The NRDC acknowledges that NEPA exemption for military activity may exist in certain circumstances. However, such an exemption must follow either directly from a express congressional authorization of an exemption, or from the courts finding that the NEPA requirements are in conflict with another statute. Congress, according to the NRDC, has reserved for itself and repeatedly exercised exemption of agency activities from NEPA requirements. Id. at 33. Congress has not done so in this case. Furthermore, the Supreme Court has said that NEPA must be complied with unless compliance would create an "irreconcilable and fundamental conflict" with another statutory provision. Id. at 34. Here the NRDC admits that the Navy must be "organized, trained, and equipped" under 10 U.S.C. § 5062 but this does not create an irreconcilable conflict because the court has already determined that effective training can exist with the mitigating measures in place. Id. Lastly, NEPA compliance was not impossible or impracticable because the Navy could have prepared an EIS or requested a congressional exemption directly. Id. at 34-35. As of the date the NRDC filed its brief the Navy had not completed the EIS and had not once requested that Congress grant it an exemption. Id.
Preliminary injunction standards
In reviewing the district court's modified preliminary injunction, the Ninth Circuit agreed with the district court's determination that NRDC had met its burden of proof to justify preliminary injunctive relief by showing four things: 1) a strong likelihood of success on the merits; 2) the possibility of irreparable injury; 3) the balance of hardships in its favor; 4) the advancement of public interest. NRDC at 703. In its decision, the Ninth Circuit reiterated an "alternative" approach to weighing these four factors: "a court may grant the injunction if the plaintiff demonstrates either a combination of probable success on the merits and the possibility of irreparable injury or that serious questions are raised and the balance of hardships tips sharply in his favor." Freecycle Network, Inc. v. Oey, 505 F.3d 898, 902 (9th Cir.2007); see also Earth Island II, 442 F.3d at 1158." Id. at 677.
1. Merits: Did NEPA require an Environmental Impact Statement?
The National Environmental Policy Act ("NEPA") of 1969 requires federal agencies to consider environmental impact in their decision-making processes. Under NEPA, an agency must prepare an Environmental Impact Statement ("EIS") for all actions "significantly affecting the quality of the human environment." 42 U.S.C. § 4321(2)(C). If an EIS might not be necessary, an Environmental Assessment ("EA") provides "sufficient evidence and analysis for determining whether to prepare an environmental impact statement or a finding of no significant impact [("FONSI")]." 40 C.F.R. § 1508.9.
The Navy argues that an EIS was not necessary because its EA was extremely detailed and did not suggest significant impact on the environment. Regarding the depth of study, the Navy notes that NEPA regulations contemplate less than 300 pages for a final EIS report for "proposals of unusual scope and complexity." Brief for Petitioners at 8. (citing 40 C.F.R. 1502.7). Nearly as long, the Navy's EA comprised 293 pages that "comprehensively evaluated scientific evidence and the results of computer modeling to predict the effect of MFA sonar on marine mammals." Id. The NRDC, unimpressed by the length of the study, remarks that "the mere heft of a document cannot substitute for analytical soundness and public disclosure." Brief for Respondent, NRDC at 44.
Regarding impact, the Navy argues that its reading of the EA led it to conclude that the training missions would not have a significant impact on the environment, and thus NEPA did not require an EIS for those exercises. Brief for Petitioners at 8. It explains that the seemingly high calculation of 282 Level A exposures for beaked whale species was actually the result of automatically counting Level B exposures of these animals as level A exposures. In fact, the Navy’s modeling predicts only Level B exposure for these creatures. Id. Thus, the Navy’s EA shows only 8 predicted instances of permanent hearing loss exposure, which affects common dolphins only if unmitigated. The Navy contends that its own mitigation measures would be effective in preventing these relatively few serious exposures. Id. at 10. In contrast, it points out that "commercial fishing caused approximately 650,000 marine-mammal deaths annually in the 1990s, with more than 6000 annual deaths in U.S. fisheries alone. Id. Therefore, in the Navy’s opinion, there was no need for an EIS because the EA was sufficient and because there was no risk of a significant impact. Id.
The NRDC, on the other hand, disputes the Navy's contention that there have been no observed or documented incidents of injury or death to marine mammals because of MFA sonar in the past 40 years of its use. See Brief for Respondent, NRDC at 29-30. The NRDC points to evidence of mass-strandings and potentially population-level effects attributable to MFA sonar. Id. at 30-31.
2. Irreparable Injury
The Navy contends that the Ninth Circuit erroneously requires only the "mere possibility", as opposed to a "likelihood", of irreparable injury. See Brief for Petitioners at 19. Because a preliminary injunction is "an extraordinary and drastic remedy"(Id.; see Mazurek v. Armstrong, 520 U.S. 968, 972 (1997)), such a lax standard "expands the courts' equitable powers well beyond their traditional moorings" (Id. at 38.) and "fundamentally alters – and diminishes – the threshold requirement that a clear showing be made of a "likelihood" of irreparable injury" Id. at 39. Amici California Forestry Association et al. ("CFA") argue that "such a standard will often be met and is tantamount to no standard at all." Brief of Amici Curiae California Forestry Association et al. in Support of Petitioners at 9.
The NRDC believes that the Navy misread the language of the Ninth Circuit's opinion. See Brief for Respondent, NRDC at 50. Respondent CAA further notes that the district court, contrary to the Navy’s argument that there was only a "mere possibility" of irreparable harm, found that irreparable harm was "likely". Brief for Respondent, CAA,at 28. Indeed, the NRDC points out, the court found that irreparable harm was a "near certainty." Id. The proper role of the appellate court was therefore to not decide this issue of fact de novo but to defer to the district court’s factual findings unless they are clearly erroneous. Id.
3. Balance of Hardships
NRDC argues that the district court applied the proper preliminary injunction standard because it employed the same standard that the Supreme Court used in Amoco Construction Co. v. Gambell: "Environmental injury, by its nature, can seldom be adequately remedied by money damages, and is often permanent, or at least of long duration, i.e., irreparable. If such injury is sufficiently likely, therefore, the balance of harms will usually favor the issuance of an injunction to protect the environment." Amoco Construction Co. v. Gambell 480 U.S. 531, 545 (1987).
According to Navy supporters, however, environmental concerns, particularly in the Ninth Circuit, are incorrectly seen to be elevated above the "traditional equitable factors such as the balance of harms and the public interest". Brief of Amici Curiae Pacific Legal Foundation in Support of Petitioners at 5. The Navy decries the "asymmetrical approach to the court's "balancing" of the hardships", wherein possible environmental harm merits an injunction, but possible harm to strike group readiness gains the Navy only the privilege of requesting emergency relief. Brief for Petitioners at 47.
4. Public Interest
The public interest weighs on both sides of this issue. On one hand, the public has an interest in the health and beauty of the surrounding environment. On the other hand, the public has an interest in economic vitality and security.
The Navy contends that the courts have ignored the public interest in safety. The Chief of Naval Operations (CNO), who is responsible for organizing, training, and equipping the Navy (see 10 U.S.C. § 5032), determined that the mitigation measures imposed by the district court would unacceptably risk Navy training and national security. In particular, the measures would cause too many disruptions in sonar broadcasting and the 75% reduction in sonar power would "drastically reduce" the likelihood of detecting a submarine. This could negate the effectiveness of the entire training exercise. Brief for Petitioners at 13-14.
The NRDC counters by saying that the court conscientiously weighed the public interest, and the interest in public safety is fully accounted for in the preliminary injunction provisions. Indeed, the district court found that the Navy could train effectively and certify its strike groups under the terms of the injunction. See Brief for Respondent, NRDC at 14. Thus, because it is the province of the trial court to make findings of fact and because the facts show that the training is still effective the public interest in safety is not compromised by granting the preliminary injunction. Id.
The NRDC points to the procedural history of the case to bolster its argument that the public interest in military training was not ignored. Specifically, it points out that the appellate court tailored the district court's final preliminary injunction to allow for effective training in the use of sonar. Id. at 52. Furthermore, the fact that the provisions of the preliminary injunction were bounced back and forth between the two courts shows this balance of the competing interests in action. Id. The affirmations of the Chief of Naval Operations were also given due consideration by the courts. Id. In fact, the district court rejected several of the mitigation measures proposed by the NRDC in deference to the Navy and the assertions made by the Chief of Naval Operations that these measures might overly burden effective training. Id. Perhaps the most telling judicial action indicating that the court carefully considered the public interest in military training is that the Ninth Circuit decided sua sponte (on its own initiative without the prompting of any party) to modify the terms of the preliminary injunction to allow for more effective training.
Did the Ninth Circuit ignore Congress’s judgment that the public interest lies in permitting military activity?
The Navy and amici argue that Congress wrote into the Marine Mammal Protection Act (MMPA) its judgment that the public interest lies in permitting military activity. Id. at 18. Where, as here, the Deputy Secretary of Defense and the Secretary of Commerce concur in their belief that military readiness outweighs the interest in protecting marine mammals, the MMPA allows exemption of specific readiness activities. Id. Because Congress wrote into the MMPA this procedure for exemption, the priority of interests were already established and courts lacked the authority to disregard this Congressional mandate. Id.
The NRDC responds to this argument that the Navy is simply excerpting favorable language from the MMPA and applying it to the NEPA, an entirely different statute. NRDC points out that Congress has never once inserted a national security exemption into NEPA in the 39 years since its original enactment. See Brief of Respondents at 39. In this respect Congress did not write into NEPA its judgment that the public interest lies in permitting military activity. To the contrary, NEPA’s "manifest concern [is] preventing uninformed action" such as here where the Navy undertakes to conduct possibly harmful training without fully evaluating the environmental risks. Id. at 40. Thus, the Navy is failing the purpose of the NEPA by conducting only a cursory EA and not fully evaluating the environmental impact through a proper EIS. The EA is not an acceptable replacement for the EIS because of the Navy’s "failure to study and analyze the potential for . . . cumulative impacts." Id. at 43.
This case raises numerous issues concerning not only environmental policies, but also the separation of power between the three branches of government and the standard of proof for injunctive relief.
The Navy argues that there is an overriding public interest in a properly-trained navy, and by issuing the preliminary injunction, the lower courts have jeopardized national security. See Brief for Petitioners at 13. The Navy then contends that by issuing an injunction upon a showing of the "possibility of irreparable harm," the lower courts contradicted the notion that a preliminary injunction is an "extraordinary and drastic remedy." Id. at 21; Munaf v. Geren, 128 S. Ct. 2207, 2219 (2008).
The NRDC argues, however, that the evidence established "to a near certainty" that irreparable harm to the environment would occur from the Navy’s use of MFA sonar. See Brief for Respondents, NRDC at 41. As a result, it contends that the courts properly weighed the equities of the case in granting the preliminary injunction. See Id. Ultimately, NRDC argues that despite the conditions imposed by the preliminary injunction, the Navy can still successfully train an effective navy for anti-submarine warfare. See Id. at 52.
Balancing National Security with Environmental Protection
A ruling for NRDC and other respondents, the Navy and amici argue, would endanger national security. The Washington Legal Foundation emphasizes that an effective Navy is essential to national security, especially since it is "the only service…that can address the threat from submarines . . . ." Brief of Amici Curiae The Washington Legal Foundation et al. in Support of Petitioners at 11. Modern submarine technology makes long-range weapons nearly impossible to detect without the use of MFA sonar, and the key to a well-prepared navy is using MFA sonar in realistic anti-submarine warfare training. See Id. at 12.
However, the NRDC responds that the District Court did not ignore national security interests when it issued the injunction. See Brief for Respondents at 52. It argues that the District Court carefully considered the effects of the mitigation measures imposed by the injunction, ensuring that the Navy could effectively train its strike groups. See Id. Furthermore, the NRDC argues, the Ninth Circuit went even further to reduce the potential risk to national security by relaxing the injunction’s limitations on MFA sonar use. See Id. at 56–57.
Looser restrictions or not, the Navy League argues that the lower courts enjoined the Navy’s training on inadequate evidence. See Brief of Amici Curiae The Navy League et al. in Support of Petitioners at 19. It contends that there was no proof of significant environmental impact, nor any record of injury or harm to any marine mammal in the southern California area. Id.
In its response, the NRDC points to "extensive scientific evidence showing that MFA sonar causes serious . . . injuries [to] marine mammals." Brief for Respondents at 42. Notably, the Navy’s use of MFA sonar harming marine wildlife has not been denied by either party. See Id. Ultimately, the NRDC argues, the evidence establishes to a "near certainty" that irreparable harm to the environment would occur if the Navy continued using MFA sonar in its training. Id. at 41.
The Separation of Powers
The Navy and amici argue that Ninth Circuit’s ruling upsets the separation of powers by infringing on the Executive Branch’s power. The Washington Legal Foundation contends that the judiciary used NEPA, a procedural statute, to substitute its own judgment for the executive branch’s authority to "direct the training and deployment of military forces . . . in time of war." Brief of Amici Curiae The Washington Legal Foundation et al. in Support of Petitioners at 20. What the lower courts should have done, the Navy argues, was to defer to the CEQ’s finding of emergency circumstances and to allow the Navy to continue training under the alternative arrangements. See Brief of Petitioners at 21. Additionally, the Navy emphasizes that in light of the President’s exemption and his conclusion that the Navy’s use of MFA sonar during its training as particularly important, the lower courts should have been especially reluctant to ignore the Executive Branch’s findings. See Brief of Petitioners at 26.
The NRDC points to Article III of the U.S. Constitution as a response. Under Article III, it argues, court decisions are not subject to revision by the Executive Branch, so for a federal agency like the CEQ to have the power to review federal court decisions would violate the separation of powers doctrine. See Brief of Respondents at 25. By contradicting the District Court’s conclusion that the effects of its conditioned preliminary injunction would not interfere with the effective training of the Navy’s strike groups, the CEQ is essentially re-adjudicating NRDC’s claim. See Id. at 28. The NRDC argues that such infringements on the judiciary’s power would disrupt the role of an autonomous judiciary as well as individual litigants’ rights to have their claims decided by judges free from possible interference by other branches of the government. See Id. at 26.
Additionally, the both CEQ’s and the President’s actions have come under question outside of the parties and their amici. Their determinations came after the District Court issued its initial preliminary injunction, raising questions of why the Executive Branch waited until then to exempt the Navy from both the NEPA and CZMA. See What Did You Know and When Did You Know About It?, Dorf on Law, July 3, 2008.Essentially, the separation of powers issue raises significant questions about the extent of both the Executive Branch’s, particularly the President’s, commander-in-chief authority to control the military, and the Judicial Branch’s power to review the law. The Supreme Court’s decision either way could have vast implications on the balance between the two branches.
Preliminary Injunction Standards
In its amicus brief in support of the Navy, the California Forestry Association ("CFA") argues that the standard under which the preliminary injunction was issued contradicts the notion that such relief is an extraordinary and drastic remedy. See Brief of Amici Curiae California Forestry Association et al. in Support of Petitioners at 3. This standard, it claims, rests on the "mere possibility of irreparable harm." Id. The CFA contends that to set such a low standard goes against the equitable discretion of courts, and is tantamount to having no standard at all. See Id. at 9. The result of this approach, it argues, has the obvious effect of a greater number of preliminary injunctions. See Id. at 4. A greater number of injunctions could decrease economic activity and delay beneficial public projects. See Id. at 13. Additionally, the CFA claims that relaxed injunction standards could lead to forum shopping by certain environmental advocacy groups to choose more favorable venues within the Ninth Circuit to increase their chances of injunctive relief. See Id.
The NRDC responds that this concern over a lower standard for preliminary injunctions is immaterial. See Brief of Respondents at 48. It claims that the district court established to a "near certainty" that irreparable harm to the environment would occur by the Navy’s use of MFA sonar. Id. It also contends that different jurisdictions use various terminology when balancing factors for injunctive relief, but the same equitable principles underlie every balancing, thus making the lower courts’ standard entirely with the rule in other circuits. See Id. at 49.
This case addresses an important question about the significance of environmental protection. The answer may hinge on the Supreme Court’s view of the balance among the three branches of government, and the extent of the executive branch’s authority over the military. Overall, the Supreme Court’s decision on the separation of powers will have implications beyond the immediate issue of environmental protection.