November 12, 2008

Supreme Court to lower courts: environmental interests are not the only ones to consider

By Supreme Court to lower courts: environmental interests are not the only ones to consider

Today the U.S. Supreme Court issued its decision in Winter v. Natural Resources Defense Council. At issue in this case was a lower court's authority to enjoin the Navy's sonar operations. NRDC and other environmental advocacy groups originally sued the Navy for alleged violations of the National Environmental Policy Act, the Coastal Zone Management Act, and the Endangered Species Act. The district court concluded that preliminary injunctive relief was warranted with respect to the NEPA and CZMA claims and required that the Navy shut down sonar training exercises when a marine mammal is spotted within 2,200 yards of a Naval vessel and that the Navy turn down its sonar decibel level in certain circumstances. The Ninth Circuit upheld the district court's preliminary injunction on NEPA grounds.

In an opinion authored by Chief Justice Roberts, the Supreme Court vacated the injunction, holding that both the district court and the Ninth Circuit failed to adequately balance the interests brought forth by the environmental plaintiffs against the Navy's interest in conducting realistic training exercises and the public interest in national defense.  As the Court noted, courts considering preliminary injunctive relief "must balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief," and in this case "the balance of equities and consideration of the overall public interest . . . tip strongly in favor of the Navy."

In so holding, the Court made it clear that when courts balance the equities–whether in an environmental or any other context–they must not do so "in only a cursory fashion." Rather, they must give serious consideration to public interest factors and must be wary of concluding that such factors favoring the defendant are speculative, as that is "almost always the case when a plaintiff seeks injunctive relief to alter a defendant's conduct."

Although he would have maintained the Ninth Circuit's stay order given the short time before the Navy's exercises are to be completed, Justice Breyer (in a partial concurrence joined by Justice Stevens) agreed with the majority that the lower courts did not properly weigh competing interests: "While a District Court is often free simply to state its conclusion in summary fashion, in this instance neither that conclusion, nor anything else I have found in the District Court's opinion, answers the Navy's documented claims that the two extra conditions the District Court imposed will, in effect, seriously interfere with its ability to carry out necessary training exercises."

Today's decision is important for Endangered Species Act purposes because it lends further question to the Court's landmark ESA decision, TVA v. Hill. That 1978 decision held that the balancing of equities was inappropriate when considering injunctive relief for a violation of Section 7 of the ESA: "Congress has spoken in the plainest of words, making it abundantly clear that the balance has been struck in favor of affording endangered species the highest of priorities."

As this blog has previously noted, there are several problems with TVA, not the least of which is that Chief Justice Burger offered little in support of his conclusion that the ESA requires something different than a traditional equitable analysis. Today's opinion in Winter v. NRDC makes it clear that federal courts should be quite hesitant to tip the scales of equity automatically in favor of one party or another: "The factors examined above–the balance of equities and consideration of the public interest–are pertinent in assessing the propriety of any injunctive relief, preliminary or permanent." (emphasis added).

Given that the Court was surely aware of the lower courts' Endangered Species Act injunctive relief jurisprudence (see, for instance, Pacific Legal Foundation's amicus brief that deals in part with this subject), it says a lot that the Court made no mention of when the balancing of equities and the consideration of the public interest is in fact not pertinent.

Also of note, the Court expressly disavowed a line of cases from the Ninth Circuit that had allowed a plaintiff to obtain preliminary injunctive relief on the showing of only a possibility of irreparable harm. The Court explained that, under traditional equitable principles, an applicant for preliminary equitable relief must demonstrate that he will likely be irreparably harmed should injunctive relief be withheld. The high court's disavowal represents a delayed victory of sorts for the government, which had unsuccessfully sought cert two Terms ago from a Ninth Circuit decision applying this relaxed standard. See Earth Island Inst. v. United States Forest Serv., 442 F. 3d 1147 (9th Cir. 2006), cert. denied, 127 S. Ct. 1829 (2007).

On another related note, it's hard to see how, as NRDC has stated, this decision is a "narrow ruling" because it "leaves in place four of the injunction’s six mitigation measures that protect marine mammals from harm caused by high-intensity sonar during training." Given that the Navy didn't challenge these four mitigation measures on appeal, this "narrow ruling" to vacate the other two measures was actually the most the Navy could expect from the Court.

For more, see Pacific Legal Foundation's press release on today's decision.  See also SCOTUSblog, The BLT, the WSJ Law BlogWSJ's Environmental Capital, and Jan Crawford Greenburg's Legalities.

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