On Wednesday, the U.S. Supreme Court will hear oral arguments in Winter v. Natural Resources Defense Council, the government’s appeal of a Ninth Circuit injunction of certain military training exercises. Several environmentalist groups contended, and the Ninth Circuit agreed, that the Navy’s sonar training—designed to detect silent nuclear powered submarines of the type possessed by several hostile nations—potentially could result in harm to marine mammals.
While the general issue of national security versus species protection will garner the headlines, the Court will hear arguments on an issue of much broader applicability. In the thirty years since the Supreme Court’s decision in TVA v. Hill, federal courts presented with ESA cases have been quick to enjoin activities potentially harmful to protected species regardless of the competing costs of the injunction. That is, while the traditional principles of injunctive relief require a court to "balance the harms" as between competing interests in an injunction, ESA cases tip the scales so heavily to the species that virtually nothing on the other side of the scale—economic loss, property rights, national security—functionally matters. There is nothing in the ESA itself to recommend such a result, and PLF’s amicus brief in Winter argues that the Supreme Court should use this case to restore a proper and common-sense balance.
Also to be argued on Wednesday is Summers v. Earth Island Institute, another environmental case from the Ninth Circuit. The case concerns a challenge to Forest Service adminstrative regulations that govern the notice and appeal process for forest management decisions. The central issue raised by the case is ripeness: whether, under the Administrative Procedure Act, a plaintiff can seek review of an entire regulation, or whether the right to judicial review is generally limited to the specific agency action in which the challenged regulation is implemented. PLF’s amcius brief argues that the Ninth Circuit reached the right result on the ripeness issue. A decision from the Supreme Court going the other way—precluding most facial challenges to agency regulations—would seriously undercut the ability of public interest groups to obtain adequate judicial review.