Monday, March 3, 2008

NRDC v. Winter (Secy. of the Navy)

Feb 29: In the U.S. Court of Appeals, Ninth Circuit, Case No. 08-55054. Defendants Secretary of the Navy, Department of the Navy, Secretary of the Department of Commerce, National Marine Fisheries Service (NMFS), and two Administrators of the National Oceanographic and Atmospheric Administration (NOAA) appeal the district court’s January 3, 2008 order [See WIMS 1/7/08], as modified on January 10, 2008 , granting a motion for a preliminary injunction and imposing certain conditions on the completion of the remaining eight of fourteen large training exercises scheduled to be conducted by the Navy’s Third Fleet in the waters off the coast of southern California between February 2007 and January 2009 (the SOCAL exercises).

The motion was filed by plaintiffs Natural Resources Defense Council, Inc., International Fund for Animal Welfare, Cetacean Society International, League for Coastal Protection, Ocean Futures Society, and Jean-Michel Cousteau (collectively NRDC), who are concerned that the Navy’s use of high-intensity, mid-frequency active sonar (MFA sonar) in the SOCAL exercises will cause serious harm to various species of marine mammal present in the southern California waters, and by extension, to plaintiffs themselves.

In granting NRDC’s motion for a preliminary injunction, the district court found that NRDC had demonstrated probable success on the merits of its claim that the Navy violated the National Environmental Policy Act (NEPA), by failing to prepare an Environmental Impact Statement (EIS). The district court also found that NRDC had demonstrated probable success on the merits of its claim that the Navy violated the Coastal Zone Management Act (CZMA), by submitting a consistency determination to the California Coastal Commission (CCC) that did not take into account the planned use of MFA sonar and by failing to adopt the mitigation measures the CCC determined were necessary for the SOCAL exercises to be consistent with the California Coastal Management Program (CCMP).

On January 15, 2008, the Council on Environmental Quality (CEQ) purported to approve “alternative arrangements,” pursuant to 40 C.F.R. § 1506.11, that would permit the Navy to continue its exercise without first completing an EIS. On the same day, President George W. Bush, pursuant to 16 U.S.C. § 1456(c)(1)(B), exempted from the requirements of the CZMA the Navy’s use of MFA sonar in the SOCAL exercises [See WIMS 1/17/08]. On February 4, 2008, the district court upheld its injunction on the basis of plaintiffs’ NEPA claim, concluding CEQ’s action was invalid and therefore not entitled to deference [See WIMS 2/6/08]. The district court also expressed concerns about the constitutionality of the President’s CZMA exemption on the ground that it appeared to amount to an executive revision of a judicial decision and thus violated the principle, recognized in Hayburn’s Case, 2 U.S. (2 Dall.) 408 (1792), that Congress cannot vest review of the decisions of Article III courts in officials of the Executive Branch.

However, the court declined to decide the constitutionality of the CZMA exemption because it concluded the preliminary injunction was firmly supported on NEPA grounds. The district court also found that plaintiffs had demonstrated a possibility of irreparable harm and that the balance of hardships tipped in plaintiffs’ favor. Natural Res. Def. Council v. Winter, --- F.Supp 2d ----, 2008 WL 314192 (C.D. Cal. Feb. 4, 2008) (Feb. 4, 2008 Dist. Ct. Order). The Ninth Circuit upheld the district court’s preliminary injunction.

NRDC issued a release on March 1 saying that the, "appeals court last night rejected the Bush administration’s unprecedented effort to exempt the U.S. Navy from federal environmental laws as it engages in high-intensity sonar training off southern California." NRDC said further, "In a comprehensive 108-page opinion, a three-judge panel also upheld every element of a lower court order requiring the Navy to take precautions during the sonar training to minimize harm to whales and other marine mammals. The Navy itself estimates that its 'SOCAL' sonar exercises, an on-going series of drills being conducted over two years, will significantly disturb or injure 170,000 marine mammals, including causing permanent injury to more than 450 whales and temporary hearing impairment in at least 8,000 others. The court’s opinion is a precedent from the nation’s second-highest court that will govern ongoing and future litigation between environmental groups and the military in California, Hawaii, and elsewhere."

Richard Kendall, a senior partner at the Los Angeles law firm of Irell & Manella, and co-counsel with NRDC in the lawsuit, who argued the case in the courts said, “The court’s detailed ruling strikes the right balance between national security and environmental protection, and properly rejects the unlawful waiver the Navy obtained from the White House. Based on thousands of hours of Navy training reports, we proved that the Navy is able to conduct the necessary training of its sailors using the environmentally-responsible measures ordered by the court.”

Access the 6-page order (
click here). Access the 108-page opinion (click here). Access a lengthy release from NRDC with links to related information (click here).