Winter v. Natural Resource Defense Council--

This is a case of fair complexity that, nevertheless, can be "visualized" very easily. The purpose of this essay is to help us "see" the case, and then fill in with appropriate legal language and statutes as necessary.

Our case has to do with whether the US Navy can conduct its submarine-training missions off the coast of Southern CA when a major component of that training--the use of so-called "mid-frequency active (MFA) sonar," will harm, perhaps irreparably, many species of marine life during the missions. Do the requirements of national defense in our time, and especially the reality that activitation of this sonar seemingly is the only reliable way to detect enemy submarines before the submarines come within striking distance of our subs, mean that some harm to marine life ought to be countenanced? And, to make the issue more pointed, the harm that might be experienced through the series of fourteen submarine exercises between early 2007 and early 2009, are only miniscule compared to marine life loss during normal commerical fishing ventures.

Well, as anyone who thinks about it will conclude, it all depends on the nature and extent of the harm to the marine life. Those who believe that the damage should be miniscule will use the environmental statutes passed in the last 40 years (including the Endangered Species Act, the Marine Mammal Protection Act, the Coastal Zones Management Act, and the National Environmental Policy Act) to try to derail the training; those who want the submarine training will certainly try to comply with these laws but, if they can't, they will try to get exemptions or emergency stays to continue with what they want to do.

Thus, you know all this even before you read one document in this case. You can just "imagine" it to be true and you would be right. But law isn't simply about imagining things; you have to deal with real facts and real struggles. Here are a few of them.

A Few Facts

If you have the following eight facts in mind, you will be ready to talk about this case:

1. The US Navy has been conducting MFA within the Southern CA Operating Area for over 40 years. The use of MFA sonar to detect submarines is an essential element of these exercises. The sonar, obviously, releases some kind of "sound wave" that "picks up on" the presence of enemy subs even before they are within "striking range" of our subs. Fourteen of these exercises have been scheduled for 2007-2009; at least seven have already been completed. When suit was filed in 2007, the Navy claimed that these exercises have provided "no evidence of sonar-related harm to any marine mammal" (Petitioner's Petition for Certioriari). This could be a function of the fact that the harm was never measured...but the brief doesn't go into this.

2. The complexity of coordinating massive naval operations means that only a few theaters are possible to hold these exercises. Southern CA is the only place on the West Coast to do it. Simulations include use of live "opposition forces." MFA sonar is the only technology in use today that can detect "modern quiet-running diesel-electric submarines" operated by our nation's potential adversaries.

3. A preliminary Environmental Assessment of risk to marine wildlife, required by NEPA, used a computer model dividing risk into two categories: Level "A" risk (slight harm) and Level "B" risk (disruption of natural behavior patterns, with some short-term hearing loss, or even worse conditions). The model predicted about 80,000 annual low-level Level "B" risks, nearly 79,000 of which involved various non-endangered, non-threatened dolphin species.

4. Because the Navy concluded that the impact on marine life through these exercises would not be significant, it did not file an Environmental Impact Statement ("EIS"--a more detailed analysis) for these exercises.

5. Respondents filed suit on March 22, 2007 in federal court in the Central District of CA, seeking to declare the exercises in violation of NEPA (no EIS), the Coastal Zone Management Act and the Endangered Species Act. The District Court issued a preliminary injunction on August 7, 2007, concluding that the respondents would likely prevail on the NEPA and CZMA claims, but not the ESA claim. The court concluded that the approx. 170,000 incidents of marine-mammal harassment incidents over the two-year period would be too much for the law to bear [I don't know how these numbers in the court's analysis relate to the numbers give by the petitioner in its Petition for Certiorari].

6. The Ninth Circuit stayed the preliminary injunction during appeal, and then ordered the district court to narrow its injunction to provide mitigation conditions under which the Navy could conduct its exercises. In response, the district court issued another preliminary injunction on Jan. 3, 2008. Crucial in this was a "2200-yard shut-down requirement"--requiring the shutting down of the sonar when within that distance of marine mammals.

7. The political branches then got into the act, once the Chief of Naval Operations concluded that this 2200-yard shut-down requirement "crippled" the Navy's ability to conduct realistic pre-deployment training. On Jan. 15, 2008 the President exercised his authority under the CZMA to exempt this activity from CZMA compliance because he found the training exercises to be in the paramount interest of the US. At the same time the Council on Environmental Quality (CEQ) authorized alternative arrangements for NEPA compliance in "emergency circumstances."

8. These decisions were litigated, and the District Court, followed by the Ninth Circuit, affirmed the earlier court actions. I think that the courts were a little miffed that the executive branch was trying to render their decisions "advisory opinions."

Conclusion

I think I "smell" reversal here. The Court loves to take the Ninth Circuit to task at least once or twice per term. This case seems the perfect vehicle for it. Which would you rather have, a few deaf seals or a safe country? The issue won't be argued that starkly, but that may be the visceral reaction to it from some members of the Court...

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