June 1, 2009

a look back at Winter v. NRDC

By Damien M. Schiff Senior Attorney

Today's Miami Herald contains an analysis of last November's Supreme Court decision on the military's sonar training and its effects on marine mammals, Winter v. NRDC. The column was written in a sort of "Dear Abby" format, but instead of Abby, we have EarthTalk to guide us through the rough seas of environmental litigation. EarthTalk, however, gives a misleading and incomplete analysis of Winter.

EarthTalk claims that in Winter, "the Supreme Court ruled that the Navy should be allowed to continue the use of some mid-frequency sonar testing for the sake of national security." International Fund for Animal Welfare's Fred O'Regan similarly suggests that the decision pitted environmental concerns squarely against national security interests, opining that "[p]rotecting whales and preserving national security are not mutually exclusive."

What is left unmentioned, however, is that the lower courts had barely even addressed the military interests that were at issue in Winter. This was the real concern of the Supreme Court: "Despite the importance of assessing the balance of equities and the public interest in determining whether to grant a preliminary injunction, the District Court addressed these considerations in only a cursory fashion. The court's entire discussion of these factors consisted of one (albeit lengthy) sentence."

EarthTalk's analysis is also misleading in that it fails to mention the length to which the Navy complied with the wishes of the environmental litigants. Likewise, the lower courts in Winter based the preliminary injunction on the harm that would be avoided by six restrictions of the sonar exercises. But the Navy did not challenge four of these restrictions, a failure the Court rightly described as "significant." EarthTalk's commentary would be a bit more credible had this fact been mentioned.

For earlier PLF on ESA coverage of Winter, visit here.

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