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Habeas Porpoise - Marine Mammals vs. Navy Sonar:

I never got around to posting on Winter v. NRDC, the Navy's challenge to a federal court injunction limiting its use of sonar in training activities due to its failure to adequately assess the potential impacts of sonar use on whales under the National Environmental Policy Act (NEPA). The result — a 7-2 or 6-3 victory for the Navy (depending on how one counts Justice Breyer) — was not much of a surprise. Nor was the narrowness of Chief Justice Roberts' majority opinion. The Court side-stepped the potentially thorny (and quite interesting) separation of powers issue, focusing instead on how the lower courts' should have balanced the equities and the public interest in weighing NRDC's request for injunctive relief.

While Winter was a fascinating case, I don't think it will have much impact outside of the national security context. Few NEPA cases involve equally weighty government interests, so I doubt Winter will effect how lower courts weigh NEPA claims in more ordinary contexts. Further, environmentalist groups have never had much success advancing NEPA claims before the High Court — indeed, I don't think they've ever won a NEPA case there — so I don't think Winter sets them back all that much.

For more on the case, check out Jamie Colburn's post at Dorf on Law (from which the title of this post is taken).

Related Posts (on one page):

  1. Navy, NRDC Settle Whale Suit:
  2. Habeas Porpoise - Marine Mammals vs. Navy Sonar:
marksleen (mail):
Really? I thought the rejection of the Ninth Circuit's standard for injunctions might have some long term significance.
11.29.2008 1:33pm
Gabriel Malor (mail):
I thought the rejection of the Ninth Circuit's standard for injunctions might have some long term significance.


Yes.
11.29.2008 3:10pm
Michael B (mail):
I believe this is more in line with a 5-4, not a 6-3 or 7-2 decision, by the Supremes. Breyer and Stevens join in one dissent and Ginsburg and Souter in another.

For some perspective:

+ Diesel submarines (which make up the bulk of enemy and potential enemy concerns) are not in the WWII mold, they are extremely quiet and resistant to detection. The reason they are extremely quiet is the technology has advanced vastly since WWII (e.g., they are capable of running solely on batteries for an extended period of time, they do not need to resurface to recharge their batteries).

+ The technology, as pertains to active and passive sonar, is of course hugely advanced as well and as such is as much an art as it is a science. It's no exaggeration to say that it takes a full career - a "lifetime" - to train sonar operators. The technology evolves perpetually and the subtleties involved in various forms of detection via active and passive technologies are considerable.

+ Iran has purchased Kilo class submarines (see wiki) from Russia, China also has a sizeable and growing fleet of Kilo class and similar subs.

+ A basic concern involves the fact that subs can operate in litoral (shallow) waters, including those litoral waters that are within countries' maritime borders, within which surface ships cannot operate in.

There are several other factors, such as the fact the Navy does comply with many, many environmental regulations, in part because they are not the manichean caricatures as depicted by environmental presumptives and alarmists and in part because the presence of whales can detract from some aspects of detection training.

(As to environmental presumptives and alarmists, Prof. Michael Dorf happily provides a caricature of that type when he sneers about "drill baby drill" and "kill baby kill". The inadequacies in Winter, from the enviros' pov, are fundamental and are obvious enough for those who are both familiar with the facts and also capable of balanced, responsible deliberations - i.e. are not given to demonizing, sneering caricatures in order to advance an insubstantial cause. Dorf's sneer-baby-sneer presumption is indicative of a much wider phenomenon.)
11.29.2008 3:12pm
John (mail):
When it comes to the safety of a porpoise or my daughter, I choose my daughter.

How about an environmental group that would like to protect Americans' habitat?
11.29.2008 4:10pm
NYOPINION (mail):
This is one NEPA case that should have not reached the SC. National security prevailed - as it shoud have - over the desired but unnecessary injunction in this case. A lenghty environmental assessment was already prepared and the Navy will complete a full EIS which is likely to mitigate adverse impacts to the extent practicable resulting in a compromised win-win sitution. NRDC will get another shot if the Navy doesn't take the requisite hard look. Aside from CEQ's involvement leading to an interesting separation of powers issue, it was never destined to be a determinative factor here. I agree with Jonathan's conclusion that this case will not have much impact. I thought the navy fighter jets vs snow geese case (Audobon v Navy 422 F.3d 174) was more interesting.

...and John wouldn't it be nice if your daughter could be both safe and still experience whales and snow geese - balancing impacts and benefits is what NEPA is all about
11.29.2008 4:46pm
MartyA:
This decision will have a long term impact/ From now on out, every time a whale or maritime mammal is in trouble, i.e., washes up on a beach, gets lost up an estuary or gets iced in, some doofus will proclaim that the reason is that the unfortunate critter had been blinded by rays from the USN.
The first set of comments will claim that there are so many new stories that it must be so with no consideration given to the fact that the left wing media is simply printing EVERY some incident where once they did not. Watch.
11.29.2008 5:13pm
sonicfrog (mail) (www):
"Habeas Porpoise"

God, that's awful. I Love It!!!!!
11.29.2008 6:21pm
Dave N (mail):
"Habeas Porpoise"

God, that's awful. I Love It!!!!!
I did too. I also love "Sonicfrog" as an avatar.

Or to paraphrase Dave Barry, "Sonicfrog" would be a great name for a rock band.
11.29.2008 6:38pm
Dilan Esper (mail) (www):
Really? I thought the rejection of the Ninth Circuit's standard for injunctions might have some long term significance.

It could have a huge one, and not just in the 9th Circuit. Courts have been presuming irreparable harm, not only in environmental cases but in First Amendment, copyright, and many other areas, making an injunction available whenever a plaintiff establishes that he or she is more likely than not to win the case on the merits.

Roberts took a strong stand against these presumptions, holding that irreparable harm must ALWAYS be shown by the moving party or an injunction will not issue. If this is taken seriously, preliminary injunctions will become much harder to obtain.
11.29.2008 10:26pm
Harry Eagar (mail):
'the left wing media is simply printing EVERY some incident where once they did not. Watch.'

Nonsense.
11.30.2008 12:01am
Michael B (mail):
"... wouldn't it be nice if your daughter could be both safe and still experience whales and snow geese - balancing impacts and benefits is what NEPA is all about"

It can be argued it's what NEPA is all about, but it's not what myopic advocacy groups such as the NRDC are all about.

As to whales and snow geese: the Navy has been using and testing with the active sonar in question in the southern California area now for forty years, and there has not been a single documented instance where whales or other marine life has been harmed - not one lone solitary instance.
11.30.2008 2:03pm
Michael B (mail):
"Roberts took a strong stand against these presumptions, holding that irreparable harm must ALWAYS be shown by the moving party or an injunction will not issue. If this is taken seriously, preliminary injunctions will become much harder to obtain."

It's not in the least clear such is the case. For example, national security issues are both an explicit and pivotal aspect of Roberts' majority opinion. J. Adler's description of Roberts' opinion as "narrow" seems accurate.
11.30.2008 2:07pm
Splunge:
And here I thought porpoises and whales are supposed to be smart. I mean, shine a bright light in a dog's eyes and he'll look away. Make loud noises -- even painfully loud noises -- and he'll run away.

Even given that sonar is destructively loud to the ears (or spermaceti organs, whatever) of cetaceans, it's a damn big ocean. I'd expect them just to swim away to where it's quieter.

Next up, bad news for truckers. Turns out if you drive 80 MPH on a freeway, you're hurling heavy metal through the very air through which songbirds fly, and you can imagine what would happen to one of them poor fellas if he got hit by a truck going 80. I think the only solution is to bury all the Interstates underground. I propose a 98% tax on the income of lawyers to raise the necessary dough.

Honestly, I'm a tree-hugger from way back, and I despise these fools. They give serious environmentalism a Daffy Duck image that lets people dismiss all our concerns, including those that make sense, as equally loony.
12.1.2008 10:08am
Happyshooter:
I think the decision is correct, but failed to crush a nasty habit that federal judges have fallen into. I refer to the current trend of judges making defense/military value judgments.

This sonar case is pretty bad, but far worse is the Stryker Brigade case. Background: Army decides to convert a unit in Hawaii to the Stryker equipment from stright infantry (Stryker is kind of a combo tank and wheeled APC).

The usual anti-military/pro-environmental crowd doesn't like it because of the usual reasons and sues. The court rules that the Army has other Stryker basing options that are just as good to defend America and project force in the far east rim.

In the Ninth Circuit case, the court (under the heading "Where the Army went wrong) wrote:

What is missing is the consideration of alternate ways to accomplish its stated mission. The Army states its mission as follows: "to enable the Army to achieve the force characteristics articulated in the Army Vision in the most timely and efficient manner possible and without compromising readiness and responsiveness. . . . Transformation is needed to address the changing circumstances of the 21st Century." Final PEIS at 1-2, AR 0003865. It then leaps to the assumption that transformation in Hawaii or no action are the only alternatives. This is where the impermissible "narrowing" takes place. The Army violated NEPA by not considering alternatives that include transformation of the 2nd Brigade outside of Hawaii.

'Ilio'Ulaokalani Coalition v. Rumsfeld, 464 F.3d 1083

In other words, we the judges think there are other options, and you Army must formally in public publish reasons why other basing options are not as good. Make sure you publish them where our enemies and future enemies can find them, and you reasons must convince our noble black robed selves that you are correct.

I must say, though, that the federal judge's ability to pass law school and the bar, and kiss Clinton's butt enough to get appointed after a life spent doing commerical disputes or poverty law-- makes the judge much more qualified to make military decisions than some simple general who graduated from the military academy, has spent 35 years in uniform leading and commanding, and who has at least a masters in national security, and who has a huge staff full of similar but lower ranked officers.
12.1.2008 1:18pm