Winter v. Natural Resources Defense Council, Inc., 555 U.S.

7 (2008)
129 S.Ct. 365, 67 ERC 1225, 172 L.Ed.2d 249, 77 USLW 4001...

(MFA) sonar was outweighed by the public interest and
the Navy's interest in effective, realistic training of its
KeyCite Yellow Flag - Negative Treatment sailors.
Disagreement Recognized by Johnson v. Nguyen, D.Nev., January 7, 
129 S.Ct. 365 Reversed.
Supreme Court of the United States
Justice Breyer, with whom Justice Stevens joined as to
Donald C. WINTER, Secretary
Part I, concurred in part and dissented in part, and filed
of the Navy, et al., Petitioners,
NATURAL RESOURCES Justice Ginsburg, with whom Justice Souter joined,
DEFENSE COUNCIL, INC., et al. dissented and filed opinion.

No. 07–1239.
Argued Oct. 8, 2008. West Headnotes (6)
Decided Nov. 12, 2008.
[1] Injunction
Synopsis Grounds in general; multiple factors
Background: Environmental organizations, which were A plaintiff seeking a preliminary injunction
concerned that the Navy's use of mid-frequency active must establish that he is likely to succeed on
(MFA) sonar in training exercises would cause serious the merits, that he is likely to suffer irreparable
harm to various species of marine mammals present harm in the absence of preliminary relief, that
in the southern California waters, sought a preliminary the balance of equities tips in his favor, and
injunction based on alleged violations of the National that an injunction is in the public interest.
Environmental Policy Act (NEPA), the Endangered
Species Act (ESA), the Administrative Procedure Act 7733 Cases that cite this headnote
(APA), and the Coastal Zone Management Act (CZMA).
The United States District Court for the Central District [2] Injunction
of California, Florence Marie Cooper, J., 530 F.Supp.2d Irreparable injury
1110, granted motion for preliminary injunction. Navy
Plaintiffs seeking preliminary relief are
appealed. The Court of Appeals for the Ninth Circuit,
required to demonstrate that irreparable
518 F.3d 658, Betty B. Fletcher, Circuit Judge, upheld
injury is likely in the absence of an injunction;
preliminary injunction imposing restrictions on the Navy's
abrogating Faith Center Church Evangelistic
sonar training. Certiorari was granted.
Ministries v. Glover, 480 F.3d 891; Earth
Island Inst. v. United States Forest Serv., 442
F.3d 1147.
[Holding:] The Supreme Court, Chief Justice Roberts, held
that: 1457 Cases that cite this headnote

[1] plaintiffs seeking preliminary relief are required to [3] Environmental Law
demonstrate that irreparable injury is likely in absence of Duty of government bodies to consider
injunction; abrogating Faith Center Church Evangelistic environment in general
Ministries v. Glover, 480 F.3d 891; Earth Island Inst. v. When the Government conducts an activity,
United States Forest Serv., 442 F.3d 1147, and the National Environmental Policy Act
(NEPA) itself does not mandate particular
[2] alleged irreparable injury to marine mammals resulting results; instead, NEPA imposes only
from Navy's training exercises using mid-frequency active

© 2017 Thomson Reuters. No claim to original U.S. Government Works. 1

Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7 (2008)
129 S.Ct. 365, 67 ERC 1225, 172 L.Ed.2d 249, 77 USLW 4001...

procedural requirements to ensure that
the agency, in reaching its decision, 2704 Cases that cite this headnote
will have available, and will carefully
consider, detailed information concerning [6] Injunction
significant environmental impacts. National Extraordinary or unusual nature of
Environmental Policy Act of 1969, § 2 et seq., remedy
42 U.S.C.A. § 4321 et seq.
71 Cases that cite this headnote Public interest considerations
In exercising their sound discretion, courts
of equity should pay particular regard for
[4] Environmental Law
the public consequences in employing the
Preliminary injunction
extraordinary remedy of injunction.
Alleged irreparable injury to marine mammals
resulting from Navy's training exercises using 688 Cases that cite this headnote
mid-frequency active (MFA) sonar was
outweighed by the public interest and the
Navy's interest in effective, realistic training
of its sailors, and therefore preliminary
injunction imposing a 2,200-yard shutdown **366 Syllabus *
zone and requiring the Navy to power down
its MFA sonar during significant surface * The syllabus constitutes no part of the opinion of
ducting conditions would be vacated; for the Court but has been prepared by the Reporter
environmental organization plaintiffs, the of Decisions for the convenience of the reader. See
most serious possible injury would be harm United States v. Detroit Timber & Lumber Co., 200
to an unknown number of the marine U.S. 321, 337, 26 S.Ct. 282, 50 L.Ed. 499.
mammals that they studied and observed, Antisubmarine warfare is one of the Navy's highest
and, in contrast, forcing the Navy to deploy priorities. The Navy's fleet faces a significant threat from
an inadequately trained antisubmarine force modern diesel-electric submarines, which are extremely
would jeopardize the safety of the fleet, as difficult to detect and track because they can operate
active sonar was the only reliable technology almost silently. The most effective tool for identifying
for detecting and tracking enemy diesel- submerged diesel-electric submarines is active sonar,
electric submarines, and the President had which emits pulses of sound underwater and then receives
determined that training with active sonar was the acoustic waves that echo off the target. Active sonar is
essential to national security. a complex technology, and sonar operators must undergo
extensive training to become proficient in its use.
273 Cases that cite this headnote
This case concerns the Navy's use of “mid-frequency
[5] Injunction active” (MFA) sonar during integrated training exercises
Extraordinary or unusual nature of in the waters off southern California (SOCAL). In these
remedy exercises, ships, submarines, and aircraft train together as
Injunction members of a “strike group.” Due to the importance of
Balancing or weighing hardship or injury antisubmarine warfare, a strike group may not be certified
for deployment until it demonstrates proficiency in the
A preliminary injunction is an extraordinary
use of active sonar to detect, track, and neutralize enemy
remedy never awarded as of right; in each case,
courts must balance the competing claims of
injury and must consider the effect on each
The SOCAL waters contain at least 37 species of marine
party of the granting or withholding of the
mammals. The plaintiffs—groups and individuals devoted
requested relief.
to the protection of marine mammals and ocean habitats

© 2017 Thomson Reuters. No claim to original U.S. Government Works. 2

(b) A preliminary injunction is an extraordinary remedy never awarded as of right. 106 S. and the Court of paying particular regard to the public consequences.200 yards demonstrate that irreparable injury is likely in the absence of a vessel. 312.. interest favored the plaintiffs. always trump other considerations. because such conditions 40 years without a single documented sonar-related injury are rare and the Navy has previously certified strike to any marine mammal. Weinberger. seeking groups not trained under these conditions.Ct. 503. Plaintiffs sued the Navy. 1310. 67 ERC 1225. The conducting the latest round of SOCAL exercises. —assert that MFA sonar causes serious injuries to these systems are often shut down during training exercises.Winter v. The District Court demonstrates a strong likelihood of success on the merits. then entered another preliminary injunction.” and Here. The District Court refused to do so. 3 . 365. all of whom underscored unlikely to affect naval operations. The Navy disputes that claim..S. 7 (2008) 129 S. the standard is too lenient.200–yard shutdown zone was Navy's most senior officers. Natural Resources Defense Council. prohibiting the Navy from using MFA sonar during Pp. 1798. 456 U. 475 U. Inc.Ed. and that the professional judgment of military authorities concerning preliminary injunction was appropriate because the the relative importance of a particular military interest. and animals. courts must The Navy moved to vacate the District Court's balance the competing claims of injury and consider the preliminary injunction in light of the CEQ's actions.” The CEQ allowed the plaintiffs have established a likelihood of success on the Navy to continue its training exercises under voluntary merits. The Court of Appeals 89 L. plaintiffs contend that the Navy should have the public interest—which were barely addressed by the prepared an environmental impact statement (EIS) before District Court—tip strongly in favor of the Navy. For the same reason. 72 L.S. 374 – 382. but courts must give deference to the a “possibility” of irreparable injury. because MFA sonar the threat posed by enemy submarines and the need © 2017 Thomson Reuters. The Council on Environmental public interest and the Navy's interest in effective.Ed. the record contains declarations from some of the determined that (1) the 2. Navy's need to conduct realistic training with active sonar to respond to the threat posed by enemy submarines The District Court entered a preliminary injunction plainly outweighs the interests advanced by the plaintiffs.2d 249.. it “alternative arrangements” to NEPA compliance in light is unnecessary to address the lower courts' holding that of “emergency circumstances. 555 U. emphasized that any negative impact of the injunction on the Navy's training exercises was “speculative. As relevant to this case. and the Court has not that plaintiffs had carried their burden of establishing held that they do. in challenged by the Navy. The “possibility” SOCAL training exercises. The Court of Appeals held that this injunction was overbroad and remanded to the (a) The lower courts held that when a plaintiff District Court for a narrower remedy. declaratory and injunctive relief on the grounds that the training exercises violated the National Environmental Held: The preliminary injunction is vacated to the extent Policy Act of 1969 (NEPA) and other federal laws. its training exercises. Pp. 507. 102 was a serious question whether the CEQ's interpretation S. such injury is outweighed by the Executive Branch.Ed. Military interests do not of the “emergency circumstances” regulation was lawful.” Even if plaintiffs have demonstrated a likelihood of **367 The Navy then sought relief from the irreparable injury. The balance of equities and particular. Appeals affirmed. mitigation procedures that the Navy had previously adopted. and to power down sonar by 6 decibels during of an injunction.S. 77 USLW 4001.2d 91. 305. 172 L. The Court of Appeals held that there Weinberger v. 374 – 377.S.Ct. Romero–Barcelo. balance of hardships and consideration of the public Goldman v. Government Works.Ct. conditions known as “surface ducting. imposing a preliminary injunction may be entered based only on six restrictions on the Navy's use of sonar during its a “possibility” of irreparable harm. This Court's frequently reiterated injunction required the Navy to shut down MFA sonar standard requires plaintiffs seeking preliminary relief to when a marine mammal was spotted within 2. effect of granting or withholding the requested relief. noting that MFA (2) the power-down requirement during surface ducting sonar training in SOCAL waters has been conducted for conditions was not unreasonable. In each case.2d 478. Quality (CEQ) authorized the Navy to implement realistic training of its sailors. No claim to original U.

S. Natural Resources Defense Council. 380 – 382. The Navy is effectiveness of the Navy's SOCAL training exercises. The useful near the surface. not required to wait until it is unable to train sufficient 377 – 378. The determination of where the public interest lies occurs relatively rarely.S. But the court ignored undisputed evidence that these voluntary © 2017 Thomson Reuters. Moreover. The Court of Appeals also concluded that the security. for extensive sonar training to counter this threat. The lower courts failed properly to defer the Navy could return to the District Court to seek to senior Navy officers' specific. 380 – 381. Plaintiffs' ultimate legal claim is injunction will increase the radius of the shutdown zone that the Navy must prepare an EIS. these conditions when they occur. No claim to original U. 172 L. scientific. but less effective at greater Court does not question the importance of plaintiffs' depths. Pp. which expands its surface area cease sonar training.200–yard (3) The District Court also abused its discretion by shutdown zone and the power-down requirement during requiring the Navy to power down MFA sonar by 6 surface ducting conditions. 378 – 380. There is accordingly no basis for by a factor of over 100. because training enjoining such training pending preparation of an EIS scenarios can take several days to develop.200 yards of a sonar-emitting (d) This Court does not address the underlying merits vessel. that do not carry such prior exercises when marine mammals were spotted well dire consequences. realistic conditions during training exercises is clearly of When surface ducting occurs. the preliminary injunction. (1) The District Court did not give serious consideration to (4) The Navy has previously taken voluntary measures the balance of equities and the public interest..Winter v..Ct. it is (c) The lower courts' justifications for entering the especially important for the Navy to be able to train under preliminary injunction are not persuasive. Pp.” But that is almost always the case when that other. 376 – 378. There are many other remedial tools available. conditions.. Inc. the Navy to shut down MFA sonar when a marine mammal is spotted within 2. 67 ERC 1225. and has of Appeals did consider these factors and conclude that chosen not to challenge four other restrictions imposed the Navy's concerns about the preliminary injunction were by the District Court in this case. be accomplished under the two challenged restrictions imposed **368 by the District Court—the 2. and the Navy has previously in this case does not strike the Court as a close question. The Court of Appeals concluded that the zone of plaintiffs' claims. Pp. This reasoning is backwards. each additional —if one is determined to be required—when doing so shutdown can result in the loss of several days' worth of is credibly alleged to pose a serious threat to national training. forces for national defense before seeking dissolution of the preliminary injunction. 555 U. predictive judgments modification of the **369 preliminary injunction if it about how the preliminary injunction would reduce the actually resulted in an inability to train. but the foregoing analysis makes would not be overly burdensome because marine mammal clear that it would also be an abuse of discretion to sightings during training exercises are relatively rare. 365.Ed. Government Works. 7 (2008) 129 S. but it advantage of these distortions to avoid being detected by concludes that the balance of equities and consideration sonar. (2) The District Court abused its discretion by requiring 380 – 381. not that it must from 200 to 2. 377 – 381. Diesel-electric submariners are trained to take ecological. 4 . By then it may be too late. But that hardly means “speculative. enter a permanent injunction along the same lines as the But regardless of the frequency of such sightings. certified strike groups that did not train under such Pp. Given that surface ducting is both rare and unpredictable. The Court of Appeals concluded that the power- of the overall public interest tip strongly in favor of the down requirement was reasonable because surface ducting Navy. 77 USLW 4001. active sonar becomes more the utmost importance to the Navy and the Nation. beyond the Navy's self-imposed 200–yard zone. shutdown zone would not be overly burdensome because including declaratory relief or an injunction specifically the Navy had shut down MFA sonar several times during tailored to preparation of an EIS. and recreational interests. The Court to address concerns about marine mammals. The use of MFA sonar under decibels during significant surface ducting conditions. more intrusive restrictions pose no threat to a plaintiff seeks injunctive relief to alter a defendant's preparedness for war. Pp. Pp.200 yards. Pp.2d 249. shutdowns only occurred during tactically insignificant Those officers emphasized that realistic training cannot times. The Court of Appeals noted that conduct.

Washington. Department of Justice. D. 365. impact statement before commencing its latest round of training exercises. J... Counsel of sonar-training program harmed marine mammals. Counsel. Garre. Irell & Manella LLP.. Inc. Kneedler. Thomas sonar training. Acting General Counsel. Department “the record contains no evidence that marine mammals of the Navy. 172 L. The Court of Appeals was wrong. have been harmed” by the Navy's exercises. for and maintenance of force protection. 5 . Boling. 518 F.. in which SOUTER. Dell'Orto. joined. in Opinion which SCALIA. Robert N.C. in which STEVENS. pp. for petitioners. App. Assistant to the Solicitor General. 518 F. Lily Fu Claffee. part and dissenting in part. Hajek. Ledvina. Antisubmarine warfare is currently the Pacific Fleet's Edmund G. 382 – 387. Anthony A. Los Angeles. Jr. Edward A. diesel-electric submarines pose a significant threat to Manuel M. Washington. Brown.2d 249. Joel R. Harry A. Andrew C. Gordon.S. J. So said George Washington in his first Annual Address to Congress. Gregory A. Nelson. respondents here. These exercises include training in the use of modern sonar to detect and track enemy submarines. General Counsel. Matthew Rodriquez. B. General 696 (C.C. Deputy Solicitor General. Inc.App. Department preliminary injunction imposing restrictions on the Navy's of Defense. respondents Natural Resources Defense Council. the Navy CA. means of preserving peace. complained that the Navy's Gregory G.. Gordon Burns. 110–111. Reynolds. for petitioners. J. submarines. Gregory G. Acting Solicitor General. Brabender. execution of military missions. Before deploying a strike group. Stephen Zak Smith..9 2008). Jane C. Page Turney. Jimenez. Chief Assistant Attorney General. Mary Beth Ward. Richardson comp. post. Tenpas. and Record. Counsel of Record. and ALITO. filed a *12 “To be prepared for war is one of the most effectual dissenting opinion. even though that court acknowledged that N. Department of Commerce.. Joel La Bissonniere.. 270a–271a.” 1 Messages and Papers of the 387 – 393. Klieger. Attorney General of California. One of the most important ways the Navy Attorneys and Law Firms prepares for war is through integrated training exercises Gregory G. Solicitor General. Acting Solicitor General. something the Navy has done for the past 40 years. The Court of Appeals upheld a Daniel J. BREYER.Ct. C. Counsel of © 2017 Thomson Reuters. San Diego. Seamless coordination among strike-group assets Natural Resources Defense Council. App. 316a–317a (Pet. Santa Monica. Coastal Commission. Richard B. Assistant Attorney General. reversed.S. Luther The Navy deploys its forces in “strike groups. D. Luxton. Frank R. 218 years ago.3d 658. The plaintiffs. Kendall.). post. National Oceanic and Atmospheric Admin. 555 U.” which are L. Government Works. Fayer.. Allen M. joined. ROBERTS. App. J. Yang.. Inc.Winter v. joined as to Part I. No claim to original U. 67 ERC 1225. Jamee Jordan Patterson. Pet. Navy vessels because they can operate almost silently. for respondent California part. Jensen. 1897). Presidents 57 (J.Ed. preliminary injunction vacated in Record. Natural Resources Defense Council.. CA. CA.. reversed.. and aircraft centered Washington. J.A. top war-fighting priority. Washington.. Department of Justice. GINSBURG. Garre. Craig D. is critical. Supervising Deputy Attorney General. Joshua prioritization of threats. Michael R. to Pet. Richard B. Kendall. Ronald J. at sea. groups of surface ships. for Cert. Medeiros. KENNEDY. Council on Environmental Quality. DC. for that the Navy should have prepared an environmental petitioners. delivered the opinion of the Court. Edwin S. Counsel of Record.C. D. Deputy Assistant Attorney I General. Deputy Solicitor General. CA. Los Angeles. making them extremely *13 difficult to detect and track. 77 USLW 4001. and its decision is General Counsel. General Counsel.3d 658. **370 Chief Justice ROBERTS delivered the opinion of JJ. THOMAS. around either an aircraft carrier or an amphibious assault ship. Cara A. filed an opinion concurring in the Court. 7 (2008) 129 S. pp. Mergen.. Eitel. Horowitz. requires extensive integrated training in analysis and Mittleman. for respondents. Ryan D. Modern J.J. Garre.

and sea lions. but does not introduce sound into the water. 7 (2008) 129 S. At issue in this case are the Composite Training Unit The procedural history of this case is rather complicated.. In light of 300 of these submarines. A strike “taking” a marine mammal. given that beaked whales are “very The waters off the coast of southern California (SOCAL) deep divers” that spend little time at the surface.Ed. and aircraft) 86 Stat.S. and sea bases. Id. as this is the only area on the west coast that is relatively close to land. Potential adversaries of the United States possess at least simulated hostile conditions. Id. 274a. 16 U. App. at most. The parties strongly dispute the frequency active” (MFA) sonar. When working as part of a strike group. than active sonar. group cannot be certified for deployment until it has capturing. 365. Passive sonar also has a more limited range mammals' behavioral patterns. 77 USLW 4001. 172 L. The Navy emphasizes that it has used MFA sonar during 1 training exercises in SOCAL for 40 years. and major behavioral 279a. these injuries would not necessarily be detected by the Navy. currents. defined as harassing. decompression sickness. the bearing and the distance of target submarines. the SOCAL exercises include extensive diesel-electric submarines within their torpedo range is training in detecting. conducts regular training exercises **371 under realistic They argue that certain species of marine mammals— conditions to ensure that sonar operators are thoroughly such as beaked whales—are uniquely susceptible to injury skilled in its use in a variety of situations. in which The Marine Mammal Protection Act of 1972 (MMPA). 571. as II well as amphibious *14 landing areas.. hunting. air. individual naval units (ships. enthusiast and filmmaker).2d 249. including the much more serious injuries to marine mammals than time of day. 67 ERC 1225. They contend that MFA sonar can cause be affected by countless different factors. generally prohibits any individual from train together as members of a strike group. the threat posed by enemy submarines. at 564–565..” given that MFA sonar is the only echo off the target. 6 . which involves emitting pulses of sound submarines.. Inc. submarines. including dolphins. and the contours of the sea floor. 266a–267a. Inc.S. including permanent hearing conditions. those animals or disrupt their behavioral patterns. §§ 1362(13). at 278a– loss.. According to the plaintiffs. tracking. Id.. weather the Navy acknowledges.C. The Secretary of Defense may “exempt any action or including a demonstration of its ability to operate under category of actions” from the MMPA if such actions are © 2017 Thomson Reuters. No claim to original U. successfully completed the integrated training exercises. it is also sensitive enough to allow the Navy to track enemy Sharing the waters in the SOCAL operating area are at submarines that are quieter than the surrounding marine least 37 species of marine mammals. water density. MFA sonar may cause sonar is not effective for tracking diesel-electric submarines because those vessels can operate almost temporary hearing loss or brief disruptions of marine silently. whales. at 568–571. all strike groups must demonstrate proficiency in antisubmarine warfare.App. and several other groups and sonar operators must undergo extensive training devoted to the protection of marine mammals and ocean to become proficient in its use. Jean–Michael Cousteau (an environmental Not surprisingly. and cannot identify the exact location of an enemy submarine. are an ideal location for conducting integrated training exercises.S. Government Works. Council. 266a– The plaintiffs are the Natural Resources Defense 271a. Pet. 141–142.Ct.Winter v. several mass operators must be able to coordinate with other Navy strandings of marine mammals (outside of SOCAL) *15 ships and planes while avoiding interference. passive sonar “listens” for sound waves documented sonar-related injury to any marine mammal.. and neutralizing enemy active sonar. Active proven method of identifying submerged diesel-electric sonar is a particularly useful tool because it provides both submarines operating on battery power. Sonar reception can habitats. sonar disruptions. 1372(a). Passive The Navy asserts that. The use of MFA sonar during these exercises underwater and then receiving the acoustic waves that is “mission-critical. MFA sonar is a complex technology.App. from active sonar. Exercises and the Joint Tactical Force Exercises. salinity. 1027. which transmits sound extent to which the Navy's training activities will harm waves at frequencies between 1 kHz and 10 kHz. The most effective technology for identifying submerged Accordingly. The Navy have been “associated” with the use of active sonar. 555 U. 1 This case concerns the Navy's use of “mid. environment. App. or killing it. Natural Resources Defense Council. Pet. without a single In contrast.

(6) requiring active sonar 1973(ESA). at motion for a preliminary injunction and prohibited the 222a–230a. or by 10 dB if detected the Navy.3d 859. actio[n] significantly affecting the quality of the human plaintiffs had established at least a “ ‘possibility’ ” of environment. (2) requiring at least five lookouts with beaked whales as Level A. at 186. Id. 7 (2008) 129 S. none of which would result in the MMPA for the training exercises at issue in this case. 502 F. the plaintiffs sued yards of the bow of the vessel. No claim to original U. at 185–186.” 42 U. The Navy filed an emergency appeal. “demonstrated a probability of success” on their claims 83 Stat. seeking declaratory and injunctive relief on within 500 yards. Id. Navy from using MFA sonar during its remaining training exercises.S. 172 L.. The appellate court harassments of common dolphins each year. App. at 217a. Id.” harassment. (3) have a significant impact on the environment. 1508. 555 U. marine mammals in the vicinity of the training exercises... The exemption was conditioned little time at the surface.Winter v. 852.C..” § 1371(f)(1). the Court of The Navy's computer models predicted that the SOCAL Appeals agreed with the District Court that preliminary training exercises would cause only eight Level A injunctive relief was appropriate. Natural Resources Defense Council.. under Ninth Circuit precedent. § 4332(2)(C) (2000 ed. physical injury). at 160–161.e.S. In light of its binoculars **372 on each vessel to watch for anomalies conclusion that the SOCAL training exercises would not on the water surface (including marine mammals). See 40 CFR § 1508. declarations from experts..13 (2007). 215a. major Federal appropriate because. 2 The District Court granted plaintiffs' adopting coordination and reporting procedures. Pet. at 217a–218a. Beaked whales spend Pet. and Level B policies of approved State management programs.App. and other —based on a shorter environmental assessment (EA)— evidence in the record. (5) requiring complete shutdown of the grounds that the Navy's SOCAL training exercises active sonar transmission if a marine mammal is detected violated *17 NEPA. and the Ninth and breeding. Id. 219a–220a. and the Coastal Zone Management Act of to be operated at the “lowest practicable level”. (4) requiring reduction of active sonar transmission levels by 6 dB if a marine mammal is detected within 1. and remanded the case to the District Court © 2017 Thomson Reuters. The EA divided potential resource of the coastal zone” shall carry out these injury to marine mammals into two categories: Level A activities “in a manner which is consistent to the harassment. The extent *16 possible” to prepare an environmental court also determined that equitable relief was **373 impact statement (EIS) for “every . Id. The court held that plaintiffs had The National Environmental Policy Act of 1969 (NEPA). the District Court concluded that that the proposed action will not have a significant impact there was in fact a “near certainty” of irreparable injury on the environment. however. § 1456(c)(1)(A)..000 Shortly after the Navy released its EA. 7 . surfacing. the Endangered Species Act of within 200 yards of the vessel. sonar on these mammals is unclear. to the environment. and that this injury outweighed any possible harm to the Navy. In January in large pods easily located by Navy lookouts. and that concluded. the Navy requiring aircraft and sonar operators to report detected determined that it was unnecessary to prepare a full EIS. Based agency is not required to prepare a full EIS if it determines on scientific studies... 40 CFR §§ 1508. defined as the potential destruction or loss maximum extent practicable with the enforceable of biological tissue (i.App.C. “necessary for national defense.. 865 (2007). requires federal agencies “to the fullest under NEPA and the CZMA. In February 2007.13. An irreparable harm to the environment. After hearing oral argument. that a blanket injunction prohibiting even these injuries could be avoided through the Navy's the Navy from using MFA sonar in SOCAL was voluntary mitigation measures. 365.S. 183. The EA also predicted 274 Level B harassments Secretary—granted the Navy a 2–year exemption from of beaked whales per year. Circuit stayed the injunction pending appeal. the Deputy Secretary of Defense—acting for the 177. the Navy classified all projected harassments of marine mammals. 226–227. 223. behavioral patterns such as migration. Government Works. Id. 207a. so the precise effect of active on the Navy adopting several mitigation procedures. 77 USLW 4001. at 176– 2007. defined as temporary injury or disruption of 16 U. Inc.S. feeding. 67 ERC 1225..). the Navy issued an EA concluding that the 14 SOCAL training exercises scheduled through 2 The CZMA states that federal agencies taking actions January 2009 would not have a significant impact on the “that affec [t] any land or water use or natural environment. Id. permanent injury.9(a)..Ct. given that dolphins travel overbroad. Erring on the side of including: (1) training lookouts and officers to watch for caution.. and (7) 1972 (CZMA).2d 249.Ed.

circumstances make it necessary to take an action with significant environmental impact without On remand.2008). whether there was a true “emergency” in this case.Ed.. Agencies (in addition to the measures the Navy had adopted and the Council will limit such arrangements to pursuant to its MMPA exemption): (1) imposing a 12 actions necessary to control the immediate impacts nautical mile “exclusion *18 zone” from the coastline.” Pet. unsupported by cited evidence. The CEQ determined that alternative arrangements The Court of Appeals further determined that plaintiffs were appropriate because the District Court's injunction had carried their burden of establishing a “possibility” of “create[s] a significant and unreasonable risk that Strike irreparable injury. or strike groups. the District Court entered a new preliminary observing the provisions of these regulations.S.. 77 USLW 4001. Id. Id. Natural Resources Defense Council.. 555 U. and (6) powering down MFA sonar by 6 dB during refused to do so. 1118–1121 (C. research.. 518 F.11.Supp. (5) shutting down MFA sonar the 2. The District Court vessel.S. The court also held that plaintiffs had States.” The President determined that continuation of the established a likelihood of success on their claim that the exercises as limited by the Navy was “essential to national Navy was required to prepare a full EIS for the SOCAL security. 530 F. Section of Appeals concluded that the preliminary injunction 1456(c)(1)(B) permits such exemptions if the activity in was entirely predictable in light of the parties' litigation question is “in the paramount interest of the United history.Winter v. In light of these actions.” Ibid. the Council on Environmental Quality 4 The Ninth Circuit's discussion of the plaintiffs' (CEQ) authorized the Navy to implement “alternative likelihood of success was limited to their NEPA arrangements” to NEPA compliance in light of claims. in which sound Court of Appeals affirmed.. the Navy then moved to dipping” sonar. The CEQ also imposed in favor of the plaintiffs.” 508 F.D. § 1456(c)(1)(B). The court did not discuss claims under the “emergency circumstances. Ibid. at 681.200 yards of a training in surface ducting conditions. Under the physical injuries to marine mammals. 67 ERC 1225.” Pet. Lastly.” See 40 CFR § 1506.2d 1216 (2008).3d 885.3d. impact—was “cursory. He concluded that compliance training exercises. 8 . and the significant surface ducting conditions.” (2) using lookouts to conduct additional monitoring for marine mammals. Inc. the Groups will not be *19 able to train and be certified court concluded.App. comply with NEPA from the moment it first planned the The President.Cal. unconvincing. at 693. Specifically.S. as well as 170.C. “to narrow its injunction so as to provide mitigation conditions under which the Navy may conduct its training 3 That provision states in full: “Where emergency exercises. 7 (2008) 129 S.. and reporting requirements. the court questioned of appeal.Ct. 3 CZMA or ESA. The court emphasized that additional notice. pursuant to 16 U. the Navy would be permitted disturbances *20 of marine mammals' behavior.App.” Ibid..000 alternative arrangements. The Ninth Circuit held travels further than it otherwise would due to temperature that there was a serious question regarding whether the differences in adjacent layers of water. the training exercises would cause 564 as fully mission capable. (4) limiting the use of MFA sonar in vacate the District Court's injunction with respect to geographic “choke points”. Government Works. given that the Navy has been on notice of its obligation to The Navy then sought relief from the Executive Branch.2d CEQ's interpretation of the “emergency circumstances” 1110. the Court of Appeals held that the balance of procedures adopted in conjunction with the exemption hardships and consideration of the public interest weighed **374 from the MMPA. 232a. 527 F. 172 L. The Ninth Circuit agreed with the District Court's injunction would “undermine with the District Court's holding that the Navy's EA— the Navy's ability to conduct realistic training exercises which resulted in a finding of no significant environmental that are necessary to ensure the combat effectiveness of . 887 (2007).Supp. No claim to original U. 365.2d 249. Even under the Navy's own figures. challenging only the last two restrictions. 4 Simultaneously. The Court granted the Navy an exemption from the CZMA. of the emergency. 238a. (3) restricting the use of “helicopter. The Navy filed a notice regulation was lawful.200–yard shutdown zone and the restrictions on when a marine mammal is spotted within 2. at to conduct its training exercises under the mitigation 696. SOCAL training exercises. Other actions remain subject to NEPA review. the injunction allowing the Navy to use MFA sonar only as Federal agency taking the action should consult with long as it implemented the following mitigation measures the Council about alternative arrangements. the negative impact on the Navy's training exercises was © 2017 Thomson Reuters.

Id. 103 S.Ct. 553 U. 77 USLW 4001. circumstances” does not encompass a court order that 1113. No claim to original U.Ct. 171 L.S.S.9 2006)).2d 91 (1982).Ed. 2207.Ct. 1396. that the Navy's training program began 40 years ago. had not trained under such conditions. because the to conduct adjudications. 530 F..3d 1147.S. v. Earth Island Inst.Ed. the court determined that: (1) The interpretations of NEPA are not entitled to deference 2.3d preliminary injunction struck a proper balance between 891. Government Works. 107 S. arguing that III plaintiffs must demonstrate a likelihood of irreparable injury—not just a possibility—in order to obtain A preliminary relief. and 542 (1987). at 699–702. before this Court barely discuss the ground relied upon by 95.Ed. 531.2d 675 (1983).11.Ed.Ed. 9 . 441. Kane. at 681. plaintiffs contend 11A C. 72 L. 555 U. On the facts of this case. Plaintiffs' briefs absence of an injunction. “speculative.Ct. Glover. they assert that the CEQ's 698–699. marine mammals. 39 L.9 2007). 916. Id. 480 U.2d 249. In particular. 94 S. Natural Resources Defense Council. Lyons. at 696–697.2d would adversely affect their scientific.. 40 CFR § 1506. Inc.S. and that an injunction is in the public interest. at 1118 (quoting Faith The Ninth Circuit concluded that the District Court's Center Church Evangelistic Ministries v. 1660.. Granny the lower courts—that the plain meaning of “emergency Goose Foods. 365. the Navy asserts that plaintiffs have 2218–2219. 103. 305. 906 (C. training exercises would cause irreparable harm to the environment. Los Angeles v. 102 S. there he is likely to suffer irreparable harm in the absence of has been no documented case of sonar-related injury to preliminary relief. 94 L.Winter v. 669.2d. 542.S.2d 674 (1974).2d 1 (2008). Gambell.S. 128 S.S. 689 – 690. & M. The lower courts held that plaintiffs had met this standard because We granted certiorari. the Navy contends that plaintiffs' alleged injuries are too speculative [1] A plaintiff seeking a preliminary injunction must to give rise to irreparable injury. The Navy strongly disputes this determination. 480 F. Navy often shuts down its MFA sonar systems during the course of training exercises. 423. 75 L.Ed. recreational.2d 435 (1974). Weinberger v. 456 U. 530 F. 442 F. at Article III court. arguing [2] We agree with the Navy that the Ninth Circuit's that plaintiffs' likelihood of success is low because “possibility” standard is too lenient. 1798.2d 883 (2008). Teamsters. Miller.Ct.. O'Shea v.S. 554 U.Supp.Ed. 415 U. Inc.S. Wright.A. failed to offer evidence of species-level harm that *22 v. 414 U. 38 L. success on the merits of their NEPA claim. Id. 94 S. and other evidence in 171 L.2d. declarations. 128 S. For their part. Federal Practice that the CEQ's actions violated the separation of powers © 2017 Thomson Reuters. 172 L. United States the competing interests at stake. the scientific studies. Amoco Production Co. given that ever since establish that he is likely to succeed on the merits. v. that the balance of equities tips in his marine mammals in SOCAL. ecological interests. Forest Serv. 2964. 461 U.Ct. 502. And even if MFA sonar favor. Littleton. Moreover. was “entirely predictable” in light of the parties' litigation 488. 518 F.Ct. and (2) the power-down The District Court and the Ninth Circuit also held that requirement during significant surface ducting conditions when a plaintiff demonstrates a strong likelihood of was not unreasonable because such conditions are rare.Ct. See does cause a limited number of injuries to individual Munaf v.Supp. at 1118.3d. Romero–Barcelo. 674. that they would prevail under any formulation of the irreparable injury standard. The Navy challenges these holdings.” since the Navy has never before operated by readjudicating a factual issue already decided by an under the procedures required by the District Court.. 67 ERC 1225. plaintiffs assert 311–312. prevailing on the merits. 1159 (C. and now reverse and vacate the the record established to “a near certainty” that the Navy's injunction. Geren. Our frequently the CEQ reasonably concluded that “emergency *21 reiterated standard requires plaintiffs seeking preliminary circumstances” justified alternative arrangements to relief to demonstrate that irreparable injury is likely in the NEPA compliance. Instead.. 7 (2008) 129 S.200–yard shutdown zone imposed by the District Court because the CEQ has not been given statutory authority was unlikely to affect the Navy's operations.Ed.. A. a preliminary injunction may be and the Navy has previously certified strike groups that entered based only on a “possibility” of irreparable harm. see also history. because the District Court **375 The District Court and the Ninth Circuit found that they had established a “near certainty” of concluded that plaintiffs have shown a likelihood of irreparable harm.A.

we *24 do not address the established a “ ‘near certainty’ ” of irreparable harm. 94 exercises that have been taking place in SOCAL for the S. detailed information concerning significant decisions as to the composition.S. at 373 – 374.” Id.. [4] [5] [6] A preliminary injunction is an extraordinary See supra. 1396. the District Court and completely unknown effects on the environment.S.Ct.S. 456 U. Natural Resources Defense Council.. “NEPA itself does the preliminary injunction would impose on the Navy's not mandate particular results. at 689 reconsider the likelihood of irreparable harm in light of – 690.2d 249. 332. 7 (2008) 129 S. Armstrong. id. “In exercising their sound —“would bar the use of MFA sonar in a significant discretion. 490 U.Ed. The District Court did not remedy never awarded as of right. 138 L. and the Valley Citizens Council.Ct. courts “must the four restrictions not challenged by the Navy. For the same reason.Ct. at 349. and Procedure § 2948. 61 S. at 350. This balance the competing claims of injury and must consider failure is significant in light of the District Court's own the effect on each party of the granting or withholding statement that the 12 nautical mile exclusion zone from the of the requested relief. 102 S. 117 S. Instead.S. the nature a likelihood of success on the merits. Sierra Club. n.Ed.” which are “essentially of the harm NEPA attempts to prevent in requiring an EIS professional military judgments.. any such injury is outweighed by the public affected the Ninth Circuit's analysis of irreparable harm.” id.Ct. and will carefully This case involves “complex.Ct. NEPA imposes only interest in national defense. 968. in reaching its decision. 427 U.Ed. Government Works. No claim to original U. 500. A proper consideration of these and cited Circuit precedent along the same lines. 480 coastline—one of the unchallenged mitigation restrictions U. Issuing a preliminary injunction based only on environmental consequences. clear showing that the plaintiff is entitled to such relief.. 1865. 1835 a possibility of irreparable harm is inconsistent with (quoting Kleppe v. our **376 characterization of injunctive relief as an 96 S. In this case.” Robertson v. procedural requirements to “ensur[e] that the agency. Here.1. 109 S. 971 (1941). even if plaintiffs have shown irreparable injury from the Navy's training It is not clear that articulating the incorrect standard exercises. 410. 1835.1995) (hereinafter is that. Inc. When the Ninth Circuit significantly understated the burden the Government conducts an activity. 128 S. and professional consider. 496. at 2218–2219. interest and the Navy's interest in effective.Ed. 77 USLW 4001. equipping. 553 U. The District Court originally found irreparable harm from sonar-training exercises generally. in contrast. 2718.Ct.Ed. training of its sailors. 643.S.Ct. subtle.2d 162 (1997) (per curiam). courts of equity should pay particular regard portion of important marine mammal habitat. however.S. 1798. the plaintiffs is likely to suffer irreparable harm before a decision are seeking to enjoin—or substantially restrict—training on the merits can be rendered”).. 520 U.” Amoco Production Co. at 154 – 155. there may be little if any information Wright & Miller) (applicant must demonstrate that in about prospective environmental harms and potential the absence of a preliminary injunction.3d. 413 © 2017 Thomson Reuters. as evidenced by the issuance of a detailed.. at 542.S. injunction's consequent adverse impact on the public 104 L..Supp. at 1119. will have available.Ct.S. Pullman Co. 365. realistic Although the court referred to the “possibility” standard.2d 351 (1989). environmental impacts. at 696–697.. 390. “the applicant mitigating measures. 669 (“[A] preliminary injunction will not be issued last 40 years..Ct. 109 S. 21. extraordinary remedy of injunction. 109 S. 293–page EA. 1835. v. 350. p. at 312. And the latest series of exercises were not simply to prevent the possibility of some remote future approved until after the defendant took a “hard look at injury”). 49 L.Winter v.” 530 for the **377 public consequences in employing the F. In each case.. Methow ability to conduct realistic training exercises. 10 .Ct. 518 lower courts' holding that plaintiffs have also established F. But by the time of B the District Court's final decision. training.. it factors alone requires denial of the requested injunctive affirmed the District Court's conclusion that plaintiffs had relief. As explained in the next section. Munaf.Ct. At the same time. internal quotation extraordinary remedy that may only be awarded upon a marks omitted).2d 576 (1976). Morgan. see also Railroad Comm'n [3] We also find it pertinent that this is not a case in which of Tex. of the District Court's conclusion is itself unclear. 107 S. Mazurek v.2d. 67 ERC 1225.S. 555 U. without one..” Gilligan v. 139 (2d ed. 172 L. the Navy challenged only two of six restrictions *23 imposed by the court. 312 U. Part and control of a military force. 972.” Romero–Barcelo. the defendant is conducting a new type of activity with 85 L.

507. scientific. 37 L.. 475 submitted declarations asserting that they take whale U. the realistic conditions. Id. Bush.” Goldman v. 365..” Pet. e. Gary *25 Roughead—the Chief of Naval Operations— the most serious possible injury would be harm to an stated that during training exercises: unknown number of the marine mammals that they study and observe. 503. The court's entire discussion of these factors consisted of Pet.App. that the balance of hardships tips in favor of granting at 356a (shutdown zone would “result in a significant. 77 USLW 4001. “clutter” from ocean floor topography and environmental conditions.” Id. We accept these and public interest outweighs the harm that Defendants officers' assertions that the use of MFA sonar under would incur if prevented from using MFA sonar. an injunction. 67 ERC 1225.2d 407 (1973). Plaintiffs.2d 478 (1986). 10. 1310. at 577.S. 2229. and the President—the Commander other elements would also be degraded. the day with briefings that may describe new and serious Plaintiffs contend that the Navy's use of MFA sonar will threats to our Nation and its people. in Chief—has determined that training with active sonar 342a..Ct. Active sonar is the only reliable elements were impacted—for example. Weinberger. Several Navy officers C emphasized that realistic training cannot be accomplished 1.Ed. 93 S.Winter v.. If one of these training the safety of the fleet. U. For the plaintiffs..App. and recreational interests military authorities concerning the relative importance of that are legitimately before this Court. 723. at App.. the animals.. During training exercises. 570–571. injure marine **378 mammals or alter their behavioral 553 U.S. is “essential to national security. 11 . adverse impact to realistic training”). Natural Resources Defense Council.S. 172 L. 2008 patterns. a subset of their regular activities in one part of one © 2017 Thomson Reuters. at 574.Ct. Government Works.” App.. See. Of course.” Boumediene v. He the interests advanced by the plaintiffs. 1. No claim to original U. military described the ability to operate MFA sonar as a “highly interests do not always trump other considerations. Here.200–yard shutdown zone and the to grant a preliminary injunction.Ed.S.2d 249. proper determination of where the public interest lies does MFA sonar operators learn how to avoid sound-reducing not strike us as a close question.Ct.Ct. 171 L. as the harm to the environment. impairing plaintiffs' ability to study and observe WL 4722127 (2008). 89 L. In contrast. however.. Admiral tip strongly in favor of the Navy. As the Court emphasized just last Term. Captain Martin May—the Third Fleet's Assistant Chief The public interest in conducting training exercises with of Staff for Training and Readiness—emphasized that the active sonar under realistic conditions plainly outweighs use of MFA sonar is “mission-critical. forcing the Navy to deploy “It is important to stress the ship crews in all dimensions an inadequately trained antisubmarine force jeopardizes of warfare simultaneously.Ed. they also learn how to avoid interference and how to coordinate their efforts with other sonar operators in the strike group. Id.g. the District Court requirement that the Navy power down its sonar systems addressed these considerations in only a cursory fashion. 128 S. 2440.S.. Plaintiffs have a particular military interest. all of whom underscored interests. “neither the conduct scientific *26 research on marine mammals.Ed.2d 41. absent realistic conditions during training exercises is of the the use of effective mitigation *27 measures. 555 U. we conclude that the balance of equities and the threat posed by enemy submarines and the need for consideration of the overall public interest in this case extensive sonar training to counter this threat. during significant surface ducting conditions. In this case. the record contains declarations from some of the While we do not question the seriousness of these Navy's most senior officers. watching trips. observe marine mammals underwater. Inc. We These interests must be weighed against the possible harm “give great deference to the professional judgment of to the ecological. 106 S. 333a (powering down in presence of surface one (albeit lengthy) sentence: “The Court is also satisfied ducting “unreasonably prevent[s] realistic training”). Despite the importance of assessing the balance of under the two challenged restrictions imposed by the equities and the public interest in determining whether District Court—the 2.. 7 (2008) 129 S. 232a. Members of this Court nor most federal judges begin and photograph these animals in their natural habitats. id. if effective sonar technology for detecting and tracking enemy diesel- training were not possible—the training value of the electric submarines. 797. and perishable skill” that must be repeatedly practiced under we have not held that they do. during utmost importance to the Navy and the Nation.

.3d.664 square yards to 15. As the an exponential relationship between radius length and prior Ninth Circuit panel in this case put it. situation through the constant stopping and starting of Id. the injunction will greatly increase the reaching this conclusion. at 1118. predictive judgments sonar shutdowns the Navy is forced to perform during its about how the preliminary injunction would reduce the SOCAL training exercises. but only minutes to confound the results upon before. See Wright & Miller § 2948. see also id.App. in staying surface area (Area = r 2 ). state for a limited period.200– policy against the imposition of judicial restraints prior yard shutdown zone would not be overly burdensome to an adjudication of the merits becomes more significant because the Navy had shut down MFA sonar 27 times when there is reason to believe that the decree will be during its eight *29 prior training exercises in SOCAL. each additional shutdown can result in the loss discretion was barely exercised here. 7 (2008) 129 S.” 502 F. square yards). There is contact or if regulatory reasons dictate otherwise. if a commanding officer is in contact with a include a graduated power-down. Ibid. and to “would not shut down sonar until legally required to do completely turn off the system at 200 yards. 354a–355a. the Navy turned off its sonar when marine mammals were spotted well beyond the 2.200 yards of a sonar-emitting vessel. 217a–218a.200 yards of a sonar-emitting vessel. at 217a–218a. so if in contact with a submarine. in several of these cases. largely based last for less than two weeks. The subsequent Ninth Circuit views of several top Navy officers.2d. 365. down its MFA sonar if a **379 marine mammal is at 700.” Id. instead requiring a total target submarine. Ibid. in from the MMPA. 518 F. at 356a (“It may about the preliminary injunction “speculative” because take days to get to the pivotal attack in antisubmarine the Navy had not operated under similar procedures warfare. 12 . Id..2. the preliminary conduct. 67 ERC 1225. Government Works. the Court of Appeals ignored size of the shutdown zone. the Ninth Circuit discounted this relatively rare. at 697–699. burdensome”).Ed. at © 2017 Thomson Reuters. The lower courts did not give sufficient weight to the with Pet. Pursuant to its exemption key portions of Vice Admiral Locklear's declaration.” Pet. who emphasized panel framed its opinion as reviewing the District Court's that because training scenarios can take several days to exercise of discretion.Ct. 172 L..” Id. But this is almost always the case when which certification is based”).S. Limiting the number of sonar shutdowns is particularly important The Court of Appeals held that the balance of equities during the Joint Tactical Force Exercises. In mammal sightings..Winter v.000 yards and 500 yards.2d 249. at 698–699.200–yard shutdown shutdowns beyond the 200–yard zone were voluntary zone would not be overly burdensome because sightings avoidance measures that likely took place at tactically of marine mammals *28 during training exercises are insignificant times. Ibid. at 167 – 168 (“The The Court of Appeals also concluded that the 2. Natural Resources Defense Council. but that develop. The District of over 100 (from 125.Supp.205. “the CO will be expected to continue to shutdown of MFA sonar if a marine mammal is detected use active sonar unless another ship or helicopter can gain within 2. effectiveness of the Navy's SOCAL training exercises. the Navy agreed to reduce the power which he stated unequivocally that commanding officers of its MFA sonar at 1.. The preliminary injunction requires the Navy to shut Navy's self-imposed 200–yard shutdown zone. which usually and the public interest favored the plaintiffs.308 Court's order on remand did nothing to cure this defect.” Id. 222a–230a. at 344a.200–yard shutdown zone would cause fact impose a significant burden on the Navy's ability to operational commanders to “lose awareness of the tactical conduct its training exercises and certify its strike groups. Vice Admiral Samuel Locklear III—the detected within 2. 555 U. 77 USLW 4001. But regardless of the frequency of marine explanation as not supported by the record. The District Court's injunction does not Similarly.. but simply repeated nearly verbatim the same sentence from its previous order.. at 332a. 518 F. Increasing the radius of the the District Court's original preliminary injunction. Even if there is a low a plaintiff seeks injunctive relief to alter a defendant's likelihood of a marine mammal sighting.3d.200 yards would accordingly district court did not give serious consideration to the expand the surface area of the shutdown zone by a factor public interest factor.App. Compare 530 F. Commander of the Navy's Third Fleet—stated that any The Ninth Circuit stated that the 2. The court deemed the Navy's concerns MFA [sonar]. of several days' worth of training. n. “[t]he shutdown zone from 200 to 2.S. The lower courts failed properly to defer injunction would clearly increase the number of disruptive to senior Navy officers' specific. No claim to original U. Inc. Pet. at 863..App.3d. 65.. Rear Admiral John Bird on its view that the preliminary injunction would not in explained that the 2.

553 U.S. and plaintiffs have largely chosen not to because it “exposes [sonar operators] to unrealistically defend the decision below on that ground.” Pet. In addition. imposition of a mandatory 2.Ct.Supp. active **380 (LFA) sonar. completely misleading and is like comparing 20 degrees has elected not to challenge four additional restrictions Fahrenheit to 20 degrees Celsius”).’ ” 527 F.S. 172 L. For the reasons stated. at 284a–285a.S. This is cold comfort to the Surface ducting is a phenomenon in which relatively little Navy. 77 USLW 4001. reaching the merits is complicated by the they occur. Inc. that “the Navy may return to the district court to Again. The Court of Appeals failed evidence presented to the Court reflects that the Navy to give sufficient weight to the fact that LFA sonar is used has employed mitigation measures in the past. 7 (2008) 129 S. 518 F. at 333a. No claim to original U. without for long-range detection of enemy submarines. so a 6 dB decrease in power equates to voluntary shutdowns do not justify the District Court's a 75% reduction.. the surface of the water.Ed.. at 703.. Id. at its use and shutdown involve tactical considerations quite 1238... it is especially important for the – 692. more intrusive 3. While we have authority to proceed to reasoning is backwards. By then it may be too late. 355a. The District Court acknowledged that “ ‘the imposition Lastly. 299a–300a.. the Navy is required to wait until the injunction “actually electric submariners are trained to take advantage of these result[s] in an inability to train . sufficient naval forces distortions to avoid being detected by sonar. Diesel. 128 S.App. ultimately leaving strike groups more vulnerable to enemy active sonar becomes more useful near the surface but submarines. The Ninth Circuit determined that the power-down requirement during surface ducting conditions was unlikely to affect certification of the Navy's strike groups IV because surface ducting occurs relatively rarely.2d 249. at 373 – 374—hardly means that other. for the national defense” before **381 seeking its dissolution. Unlike the Ninth Circuit.200–yard of these mitigation measures will require the Navy shutdown zone was feasible because the Navy had to alter and adapt the way it conducts antisubmarine previously adopted a 2. 281a (footnote and some to the merits.200–yard shutdown zone.. This of plaintiffs' claims. and thus sacrificing training *31 objectives. The Navy contends that the injunction will hinder sound energy penetrates beyond a narrow layer near efforts to train sonar operators under realistic conditions.Winter v. Pet. 5 lower levels of mutual interference caused by multiple sonar systems operating together by the ships within 5 The bulk of Justice GINSBURG's dissent is devoted the Strike Group. those logarithmic scale. Natural Resources Defense Council. Given that surface ducting is both such a decision at this point. 365.App.000–meter zone for low-frequency warfare training—a substantial challenge. Nevertheless. we find © 2017 Thomson Reuters. 555 U. Apparently no good deed goes unpunished. that the Navy has taken measures in the past to address 508 (noting that equating MFA sonar with LFA sonar “is concerns about marine mammals—or. Rear Admiral Bird explained that the 6 dB fact that the lower courts addressed only one of several power-down requirement makes the training less valuable issues raised. Id. see Munaf. the Ninth Circuit stated that a 2. at 691 rare and unpredictable. 13 . and the Navy has previously certified strike groups that did not As noted above. Although a 6 dB reduction may shutdowns of MFA sonar during prior training exercises not seem terribly significant. The Court of Appeals also concluded that the Navy's restrictions pose no threat to preparedness for war. see supra. training exercises would not be significantly affected by the requirement that it power down MFA sonar by 6 The Court of Appeals concluded its opinion by stating dB during *30 significant surface ducting conditions.3d. we do not think less useful at greater depths. imposed by the District Court in this case. decibels are measured on a only occurred during tactically insignificant times. Government Works. doing so is not necessary Navy to be able to train under these conditions when here.. certify sufficient naval forces to provide for the national defense. The fact different from those associated with MFA sonar.3d. 4. at 701–702. When surface ducting occurs.Ct. we think the Ninth Circuit understated the burden request relief on an emergency basis” if the preliminary this requirement would impose on the Navy's ability to injunction “actually result[s] in an inability to train and conduct realistic training exercises. we do not address the underlying merits train under such conditions. See App. at 2219 – 2220.. for that matter.” 518 F.2d. The record supports the Navy's contention that its capitalization omitted). 67 ERC 1225.

We do not discount *32 At the same time. A stay is a useful tool for managing the impact of injunctive relief pending further appeal. 33. not that it must exercises off the southern California coast. 39 L. The Natural cease sonar training. The judgment of the Court of Appeals is reversed. 7 (2008) 129 S. Message. 456 U.Ed.Winter v. including declaratory relief or an 393. and the documented injunction tailored to the preparation of an EIS rather risks to national security. No claim to original U..A. injunction. at 383 – 386 (opinion concurring in part and dissenting in part).” President's Annual preliminary injunction by this Court. Government Works. 102 S. A court concluding that the underlying merits.. post. along the however. and it would be an abuse of discretion to enter a permanent recreational interests in marine mammals...S. under all the conditions which would for what would be in effect the entry of a new have to be met if war existed. but once the Court resolves the merits of the appeal.Ct.S. but disagree with his to act as an alternative to the strong medicine of the conclusion that the modified conditions imposed injunction”). 466. the stay injunction as well.S.Ed. the dissent Navy is required to prepare an EIS has many remedial barely mentions the Navy's interests. The does. 1209. and our analysis of the **382 propriety as Justice BREYER does. In the meantime.3d 704. 1396 (“The standard for a preliminary injunction is essentially the same as for a permanent *34 Justice BREYER. e. and others (NRDC) *33 training in a manner credibly alleged to pose a brought this case in Federal District Court claiming that serious threat to national security. 555 U. 365. even if plaintiffs are correct on the harm to a marine mammal. it does not follow from able to neutralize the threat posed by enemy submarines. 452. concurring in part and dissenting in part. See Amoco Production Co. 1798 (“[A] federal 2. 94 S.Ct.200–yard shutdown zone and by requiring the Navy judge sitting as chancellor is not mechanically obligated to to power down its MFA sonar during significant surface grant an injunction for every violation of law”).9 2008) (“[T]he partial stay . and the preliminary injunction is vacated to The factors examined above—the balance of equities the extent it has been challenged by the Navy. Inc. 172 L. of of the preliminary injunction. 14 . Plaintiffs confirmed at oral argument that the Court is reviewing the District Court's imposition preliminary injunction was “the whole ball game. *** See 518 F. clearly outweigh the harm than the Navy's training in the interim. the United States Navy planned actual success”).Ct. as the present injunction Navy completes its EIS. 77 USLW 4001.S. ducting conditions. Those interests. with whom Justice STEVENS injunction with the exception that the plaintiff must joins as to Part I. on the other side of the balance. Post. we see no basis for by the stay order should remain in force until the jeopardizing national security. at 313. 67 ERC 1225. at 546.. preliminary It is so ordered. shall remain in effect until final disposition President Theodore Roosevelt explained that “the only by the Supreme Court”). Natural Resources Defense Council. Oral Arg.. We find that those interests. order is no longer pertinent. Unexamined conditions way in which a navy can ever be made efficient is by imposed by the stay order are certainly no basis practice at sea. scientific. once we conclude. success on the merits as a matter of course. 706 (C. 107 S. See. are plainly outweighed by the Navy's need to same lines as the preliminary injunction.g. As to the injunction.. what we have said makes clear that the importance of plaintiffs' ecological. Given that the ultimate legal claim is to engage in a series of 14 antisubmarine warfare training that the Navy must prepare an EIS.Ct. at 386. 81 (1907).2d We agree with much of Justice BREYER's analysis. Steffel v.. n. Thompson. 12. post. 415 U.S. Inc. 42 Cong. that the of preliminary relief is applicable to any permanent preliminary injunction should be vacated. at 392 – tools at its disposal. after final decision on the merits.2d 249. 480 U. the injunctive relief granted in this case an abuse going on for 40 years with no documented episode of of discretion. and consideration of the public interest—are pertinent in assessing the propriety of any injunctive relief.. there is no basis for enjoining such Resources Defense Council. This is particularly the National Environmental Policy Act of 1969 (NEPA) true in light of the fact that the training has been requires the Navy to prepare an environmental impact © 2017 Thomson Reuters.. at 386 – 387. An injunction is conduct realistic training exercises to ensure that it is a matter of equitable discretion. the stay ceases to be relevant. or permanent. 505 (1974) (“Congress plainly intended declaratory relief post. show a likelihood of success on the merits rather than As of December 2006. Rec. Romero– The District Court abused its discretion by imposing a Barcelo.” Tr.

at 354.. 7 (2008) 129 S. at 389 – 390 Level B harm as “ ‘any act that disturbs or is likely (dissenting opinion). Gambell. breeding. 109 S. the District Court has found that the may affect the environment.9 2008). An EIS does Navy has agreed to prepare an EIS.” Id. to adopt all but two of those measures. the very point of NEPA's insistence to disturb a marine mammal . as “any act that injures or has the significant potential to injure a marine mammal or marine mammal stock Respondents' (the plaintiffs) argument favoring the in the wild” through “destruction or loss of biological District Court injunction is a strong one. statement (EIS) (assessing the impact of the exercises on 104 L. Thus. 196a–197a. the District App. Inc.. The that circle from about one-tenth of a mile (200 yards) absence of an injunction thereby threatens to cause the to one and one-quarter miles (2.. v. when a decision to which EIS obligations attach is made without the informed The controversy between the parties now concerns the environmental consideration that NEPA requires.” Id.Ed.S.” See... detailed information to. The second very environmental harm that a full preaction EIS might concerns special ocean conditions called “surface ducting have led the Navy to avoid (say. 77 USLW 4001. 175.S.2d 249. (The environmental Court properly “balance[d the] harms. In *35 doing so. to Consequently. in imposing these conditions. 223–224. 555 U.Ct. legally correct in forbidding the training exercises unless The record does show that the exercises as the Navy the Navy implemented the two controverted conditions. but not limited agency “carefully” to “consider .000 instances of Level B harm.” while sheltering to a point where such behaviors are abandoned “giv[ing] the public the assurance that the agency or significantly altered’ ” and describes it as a “short term” ‘has indeed considered environmental concerns in its and “temporary” “disturbance. The of the harm that NEPA seeks to prevent has already first concerns the “shutdown zone. 15 . when it encounters any such condition.A. if the exercises are to continue. (Indeed. like the Court. surfacing. or how.S. at 160. for example. as now before us. the the matter) that the exercises might cause 466 instances Navy is in the process of preparing one. by adopting the two conditions. the the relevant environmental considerations.3d 658. to Pet. NEPA seeks to assure that marine mammals) prior to its engaging in the exercises. conditions diminish the sonar's power by 75%. the evidence of We must now decide whether the District Court was need for the two special conditions is weak or uncertain.S.) And. No claim to original U... 545. lacks adequate support for an injunction imposing the I two controverted requirements. much two measures that the Navy is unwilling to adopt. © 2017 Thomson Reuters. The Court of Appeals designed to mitigate interim environmental harm may well affirmed the District Court order that contained these two be appropriate. exercises in the absence of the fuller consideration of The controverted condition would enlarge the radius of environmental effects that an EIS is intended to bring.200 yards). 518 F. I would of Level A harm and 170. see post. 107 S. 703 (C. 365. the Navy. conditions. migration. to act. for Cert.Winter v. the District Court has not force them to make any particular decision. 531. 332. originally proposed them could harm marine mammals. 490 U. Natural Resources Defense Council. 1835. Methow Valley Citizens Council. Amoco assessment actually predicted 564 instances of Level A Production Co. ask whether.. 480 U. several features of this case lead me to conclude that the record. 349. or concerning significant environmental impacts. e. 109 S. As when Government officials consider taking action that the case reaches us. nursing.Ct.. Id. First.” whether “slight to severe. 67 ERC 1225. they do so fully aware of NRDC will likely prevail on its demand for an EIS. It defines GINSBURG well points out. the absenceof an at the center within which the Navy must try to spot injunction means that the Navy will proceed with its marine mammals and shut down its sonar if one is found. harm.Ed. *36 On the other hand.” a circle with a ship taken place.. feeding. and the Navy has agreed account when they decide whether.” The controverted condition would require additional mitigation measures that the NRDC proposes).2d 351 (1989).Ct.Ed. In this case.Ct. 1835. As Justice tissue. See App. by causing disruption upon the writing of an EIS is to **383 force an of natural behavioral patterns including. at 161. decisionmaking process. Government Works.2d 542 (1987). that the The District Court found (based on the Navy's study of NRDC will prevail on its demand for an EIS..’ ” Robertson v. 172 L. but it forbidden the Navy to proceed with the exercises unless it does lead them to take environmental considerations into adopts six mitigating measures.) The study defines Level A injury 1396.g. I assume. 94 L.

at 266a–267a.. 566. despite 40 years train personnel. the cost mammal.S. at 168.. zone. at 299a– District Court did not there explain the basis for that © 2017 Thomson Reuters. evidence.. 172 L. at 285a–298a. No claim to original U.. and the **384 Navy supported contentions. for Cert. the study assumed the harm would qualify as and disruption that would accompany the adoption of the Level A harassment. as the harm to the Given the uncertainty the figures create in respect to environment. App.Supp. at 296a.2d 1110. case for the proposition that insistence upon the two additional mitigating conditions would seriously interfere With respect to the imposition of the 2. id.) At the same time. 566. The Navy delay in one important aspect of a set of coordinated says the classifications and estimates err on the side of training exercises has upon the Navy's ability “to provide caution. 600–602. the Navy's resulting inability adequately to injuries.” Id. use of sonar. id. and public interest outweighs the harm caused by the Navy's original training plans. the District a connection between those beachings and the Navy's use Court did not explain why it rejected the Navy's affidavit- of sonar.. Natural Resources Defense Council. to Pet. id. Plaintiffs. the effectiveness of the of naval exercises off the southern California coast.g. In its first opinion enjoining the has acknowledged one stranding where “U.. satisfied that the balance of hardships tips in favor of granting an injunction. during a subset of decision not to contest here four of the six mitigating their regular activities in one part of one state for a conditions that the District Court ordered. to Pet. at 200. 343a.Winter v. the harm that Defendants would incur if prevented from it would seem important to have before us at least using [mid-frequency active (MFA) ] sonar. to Pet. the need for realistic [on] the Navy's training exercises. Id. It said: (but without the two contested mitigation measures) in place. the is. absent the use of effective to the Navy's ability to maintain an adequate national mitigation measures. 16 . 7 (2008) 129 S. ibid. protect marine mammals *39 from the harshest of sonar- App. id. and the reasonable likelihood for Cert. the Navy has filed multiple affidavits from environment. Plaintiffs. 67 ERC 1225.S. prove adequate. 555 U. satisfied that the balance of hardships tips in favor of granting an injunction. at 1119. Inc. (When in doubt about the amount of harm to a combat ready forces. Navy mid. It notes that. App.. the environmental harm likely caused by the Navy's District Court simply repeated. the District Court simply stated: frequency sonar has been identified as the most plausible contributory source to the stranding event. e. word for word.. to Pet. App. 346a.. The raw numbers seem large.. those affidavits make a strong 530 F. no mammal-protecting measures that the Navy has taken in injured marine mammal has ever been found. plaintiffs point to instances where whales have been found stranded. the complexity of a training exercise involving related consequences. Id.” id. the “cascading” negative “effect” that the extent to which they mean likely harm. it is difficult to assess the relevant harm—that Following remand from the Court of Appeals.. it represents a minimal imposition sonar. id.” Id. They add *37 that scientific studies have found Third. App. and The affidavits explain the importance of training in then concluded that “[t]he Court therefore is persuaded antisubmarine warfare. by definition.. id. at 278a.200-yard shutdown with necessary defense training. as the harm to the Second.Ed. for Cert. 77 USLW 4001.. 1118 (C.. But the parties argue about 300a. during a subset of their regular defense.S. See generally App. often very quickly...Cal. and particularly important in my view. The conditions when training exercises take place.” App.D. the need to use active that while the 2200 yard shutdown requirement may sonar to detect enemy submarines. at 290a. the District Court **385 noted evidence of the harm that MFA sonar poses to marine mammals.Ct.. at 217a–218a. “The Court is .. Government Works.” Taken by themselves. and public interest outweighs Navy officials explaining in detail the seriousness of the the harm that Defendants would incur (or the public harm that the delay associated with completion of this interest would suffer) if Defendants were prevented EIS (approximately one year) would create in respect from using MFA sonar. activities in one part of one state for a limited period.2008). Without such limited period... for Cert. absent the some estimate of the harm likely avoided by the Navy's use of effective mitigation measures. mammals recover from Level B seeks. this same exercises with the four uncontested mitigation measures statement. (It adds that dolphins often swim that the mitigating conditions to which it has agreed will alongside the ships. 343a. at 263a.) The Navy also points two additional mitigating conditions that *38 the NRDC out that. “The Court is . the past. 365. 274a–275a. 260a–357a. see.2d 249.

in reduced number. when the Court of Appeals first heard this case following the District Court's imposition of a broad.. Government Works. Rear Admiral Navy has used a larger shutdown area when engaged John Bird. 69. Again. to Pet.” App. and disrupting Operating Area is uniquely suited to these exercises. to Pet. 356a. opinion that specifically explains why this is not so.3d. hardship if the considered alternatives were employed 344a.Winter v. answers the Navy's documented those conditions. says circle with a radius of about one-tenth of a mile to a that “the exercises in southern California are only a circle with a radius of about one mile and a quarter. however. But those explanations are not sufficient.Supp. Admiral Gary Roughead. made clear in exercises with lower frequency sonar equipment. Inc.” Id. in this instance neither that those conditions are “rar[e]. But he says in paragraph 52 of his declaration: state that (1) earlier shutdowns when marine mammals “Training in surface ducting conditions is critical to were spotted at farther distances “likely occurred during effective training because sonar operators need to learn tactically insignificant times.” 518 F. nor anything else I have found in the certified trainings that did not involve any encounter with District Court's opinion. at 1120–1121. mirroring a similar District the sonar if a mammal is spotted in the area) from a Court suggestion in the language I have quoted.Ct. 7 (2008) 129 S. as far as I can tell. 508–509. why the rarity of the condition supports the imposed will. an expert in submarine warfare. 67.. at issue) have equipment that makes it easier to monitor at 299a–300a. Id. at 702.. 17 . explanations. and interest in being able to train under these conditions. But the Navy's affidavits 297a.S. and that the 75% power-reduction requirement was equivalent (3) foreign navies have used larger shutdown areas. for Cert.” App.Supp. It adds that the Navy's study shutdowns. App. 555 U.2d... I can find nothing in the District Court's instead. increased interruptions to training exercises. Both subset of the Navy's training activities involving active sides agree that this *40 requirement will lead to more sonar. 172 L. states in paragraph 12 of his declaration in alternative locations. at 699–701.3d. through its own ducting condition. The Court of Appeals. The District Court. the Court of While a district court is often free simply to state its Appeals rejected the Navy's contentions on the ground conclusion in summary fashion. Chief of Naval “shows the Navy is still able to conduct its exercises Operations. The second condition requires the Navy to expand the sonar “shutdown” area surrounding a ship (i. seriously interfere with its ability District Court's conclusion. turn off Finally. 63. © 2017 Thomson Reuters. Rarity argues as strongly for to carry out necessary training exercises. With respect to the imposition of the surface Fourth. at 701–702. and demonstrates that the Navy would suffer a certain wide operational commitments. training when the condition is encountered as it argues for the contrary. the District Court said nothing about thorough examination of the record.” Ibid.S. carefully orchestrated deployment plans to meet world. claims that the two extra conditions the District Court however. 67 ERC 1225. conclusion. Id. detailed justifications for why the Southern California preventing strike group certification. 530 (3) foreign navy experience is not relevant given the *41 F. 365. to Pet. In respect to the surface ducting conditions.e. a condition called “surface ducting” that occurs when the the Court of Appeals noted that (1) the Navy in earlier presence of layers of water of different temperature make exercises had shut down its sonar when marine mammals it unusually difficult for sonar operators to determine were sited within about one-half a **386 mile. and nn. 518 F.. to supply the missing the Navy's interests at all. how sonar transmissions are altered due to surface ducting (2) ships with low frequency sonar (unlike the sonar here and how submarines may take advantage of them. for Cert.2d 249.. Fifth.” Ibid. 530 F. vastly also concluded that the study “provides reasonably increas[ing] the risk of negating training effectiveness. App. (2) the whether a diesel submarine is hiding below.2d.. particularly by significantly reducing the not even acknowledge in its opinion the Navy's asserted number of monitoring personnel necessarily involved. the Court of Appeals sought. potentially different military demands upon those navies. 77 USLW 4001. the Court of Appeals.Ed. The first condition requires the Navy to reduce the power of its sonar equipment by 75% when the ship encounters In respect to the expansion of the “shutdown” area. did the larger area. to forbidding any related training. .. in effect. at 1119–1120. or through that this expanded zone requirement “will result in simulation. Natural Resources Defense Council.” and the Navy has that conclusion.. n. I am not certain. No claim to original U. for Cert. at 1120–1121.

The balance of the equities tips in favor of plaintiffs.3d 885. Therefore. The Navy does not challenge its pending this Court's resolution of the case. with whom Justice SOUTER joins. and © 2017 Thomson Reuters.9 2007) (emphasis added). Inc. as the Court of Appeals held when it first time available before the exercises are complete and the considered this case. Ibid. The Court obligation to do so. the District Court would have an opportunity to impose dissenting.S. new conditions. maintain what has become the I would remand so the District Court could. at this completion of an acceptable EIS..200 yards.200-yard shutdown zone. 77 USLW 4001. train[ ].3d 704. But. For the reasons just the Navy to suspend its use of the sonar if a marine stated. the same time minimizing the harm to marine wildlife. Court. With respect to surface ducting. it held that any injunction must effective training and strike group certification and be crafted so that the Navy could continue its training thereby interfere with his statutory responsibility .9 this matter to the district court to narrow its injunction 2008). neither the District Court nor the Court of Appeals mammal is detected within 2. The central question in this action under the National Environmental Policy Act of 1969 (NEPA) was whether In February of this year. 7 (2008) 129 S. it required 887 (C.Ct. the Navy is only required to I would thus vacate the preliminary injunction imposed shut down sonar altogether *43 when a marine mammal by the District Court to the extent it has been challenged is detected within 500 meters and the amount by which it by the Navy. In my view.S. the modified conditions imposed by the Court of Appeals in its February stay order reflect the *42 II best equitable conditions that can be created in the short Nonetheless. to exercises. 518 F. order so that the provisional conditions that will protect the marine wildlife while also conditions it contains remain in place until the Navy's enabling the Navy to carry out its exercises. as well. 18 . the Court of Appeals stayed the Navy must prepare an environmental impact the injunction imposed by the District Court—but only statement (EIS).. With respect to the 2. pursuant status quo. Neither the District Court nor the Court of is otherwise required to power down is again proportional Appeals has adequately explained its conclusion that the to the mammal's proximity to the sonar source. absolute injunction.2d 249. If the Navy had completed the EIS the importance of the Navy's mission to provide for the before taking action. the case could very well be moot.. the Navy acted first. except when sonar has explained why we should reject the Navy's assertions is being used at a “critical point in the exercise.A. as NEPA instructs.. The Navy has been training under these conditions makes clear that the Navy can effectively train conditions since February. Government Works. and equip[ ] the Navy.A. and the court then modified the two of its active sonar. point. Instead. in the past. Natural Resources Defense Council. 705 (C. and it represents that the EIS will be **387 of Appeals concluded that “[i]n light of the short complete in January 2009—one month after the instant time before the Navy is to commence its next exercise. Thus. so as to provide mitigation conditions under which the Navy may conduct its training exercises. set forth mitigation Appeals' February 29. 172 L.” 508 F.Winter v. In the ordinary course.’ ” interim relief to use mitigation measures to “reduce the harmful effects was appropriate. at the latest. Nor do court believed these conditions would permit the Navy to those parts of the record to which the parties have pointed go forward with its imminently planned exercises while at supply the missing explanation.” it “vacate[d] the stay and remand[ed] mitigation conditions at issue.Ed. Id. the Navy has informed us that this set of exercises will be complete by January. so allowing them to remain under some mitigation conditions.” in which that it cannot effectively conduct its training exercises case the amount by which the Navy must power down under the mitigation conditions imposed by the District is proportional to the mammal's proximity to the sonar. Noting that the Navy had. been able ‘organiz[e]. 555 U.. exercises conclude. at 705–706 (internal quotation marks omitted). No claim to original U. 67 ERC 1225. and an EIS will likely be complete at that point. in effect. I would modify the Court of to the Court of Appeals' direction. 2008. 365. in place will. the parties and national defense and the representation by the Chief of the public could have benefited from the environmental Naval Operations that the district court's preliminary analysis—and the Navy's training could have proceeded injunction in its current form will ‘unacceptably risk’ without interruption.. by the time Justice GINSBURG. the Navy's past use of mitigation EIS is ready.

The Navy Citizen. and four days later.2d 249. 2008.. the Navy concluded the EA Environmental Quality (CEQ). 2007. the Court of Appeals did not abuse its discretion. As relevant conditions. App. Tr. vacated the stay. Department of Transportation v. its understanding of the Navy's sonar training procedures development. 233a.2d 1110. App. *46 eliminated the injunction's legal On March 22. the Navy urged. See App.” 530 **388 Navy represents that it will be complete in January F. seeking declaratory 2. The court revised the In February 2007. Public environmental review. On August 7. The the Executive Office of the President. 11. 67 ERC 1225. 1 On February 12. the Council on Cert. planned to undertake in the interim. to Pet. 2007. and the measures. the 2009. Brief for Petitioners 11. the Court of Appeals for the Ninth I would hold that.9(a) (2003)). 2204. California. the Navy sought a stay Council. of Oral Arg. 7 (2008) 129 S. 555 U. On August 31. Id. for Cert. from Congress. the Navy sought dispensation not (MFA) sonar during the 11 remaining exercises at issue. the Navy's request for “alternative arrangements” for at 227 (“The Proposed Action is hereby implemented.Ed. The EIS process is underway. 76640. L. denied the Navy's environmental assessment (EA) for the 14 exercises it application for a stay pending appeal. the District Court's modified injunction. however. and testing of various systems and weapons. the Natural Resources Defense foundation. in imposing manageable measures Circuit stayed the injunction pending disposition of the to mitigate harm until completion of the *44 EIS.S. In a November 13 order. seeking to commence training modified injunction slightly on January 10 in response to before completion of the EIS.Ct. at 76639. the Navy announced its intent to which the Navy could conduct its remaining exercises. 235a.. On January 3.S. 225–226. These readiness activities include expansion at the naval base in San Diego. but from an executive council that lacks authority to countermand or revise NEPA's requirements. to improve and intensification of naval training.. at 371 – 372 (opinion of the Court). instructing I the District Court to provide mitigation measures under In December 2006... Inc. District Court entered a modified preliminary injunction imposing six mitigation measures.2d 60 (2004) (quoting 40 CFR § 1508.S. and the feasibility of the parties' proposed mitigation Id. 365.”).Reg. 228. No claim to original U. District Court of two aspects of the injunction pending its appeal: the for the Central District of California. for On the following day. the Navy warranted preliminary relief. to Pet.Ct. at 373 – 374 (opinion of the Court). App. 752. In addition. Counsel for both [parties] were present. 159 accepted the arrangements on the same day. the District Court received briefing from both California (SOCAL) Range Complex. Inc. By definition. the District Court determined that NRDC was likely While targeting in its stay application only two of the to succeed on its NEPA claim and that equitable principles six measures imposed by the District Court. The “arrangements” CEQ set out purported to permit 1 An EA is used “for determining whether to prepare” the Navy to continue its training without timely an EIS. the Navy's appeal.200–yard mandatory shutdown zone and the power- and injunctive relief based on the Navy's alleged violations down requirement in significant **389 surface ducting of NEPA and other environmental statutes. 124 S. an EA alone does not satisfy an The Navy then filed an emergency motion in the agency's obligation under NEPA if the effects of a Court of Appeals requesting immediate vacatur of proposed action require preparation of a full EIS. NEPA compliance. Id. Government Works. (NRDC). 172 L. 77 USLW 4001. 19 . 1112 (2008). stating that NRDC had shown “a strong likelihood of success on the merits” and that preliminary injunctive relief was appropriate. filed suit in the U. In the alternative. The Court of Appeals remanded. parties. Natural Resources Defense Council. *45 enjoined the Navy's use of mid-frequency active To justify its course. thus thwarted the very purpose an EIS is intended to serve. at 241a–247a. 541 U. January 15. the court explicitly reserved the right to challenge on appeal each © 2017 Thomson Reuters. see ante. and the Navy proceeded with two more District Court conscientiously balanced the equities and exercises. See 71 Fed. prepare an EIS to address the potential environmental effects of its naval readiness activities in the Southern On remand.3d 885.Ed.Supp. 757. 508 F. see ante. CEQ's action.Winter v. as well as research. here. the Navy prepared an filings by the Navy. an advisory body within with a finding of no significant impact. the Navy commenced its training exercises. 886 (2007). responded to same day. the court “toured the USS Milius 76639 (2006)..S.

provides a determined that an EIS was required for the 14 springboard for public comment. 60 L. 15. defeats NEPA's information.S. CEQ regulations instruct agencies to “integrate course. also serves a larger complete its final exercise in December 2008.” Andrus. 365. 555 U. Inc. the “interwoven into the fabric of agency planning. in particular the 2. matter to allow the District Court to determine in the 124 S.Ct.S. Oregon Natural Resources (1478) (codified in 40 CFR § 1502.25(b).. As *47 explained below.. in part because 490 U. an EIS must describe potential mitigation eliminated all justification for the injunction. 442 U. At the same time. at now under review. This Court first instance the effect of the intervening executive action. As the procedural history indicates.S.S. the Navy sought and obtained in order to overcome the lower courts' rulings.. NEPA The Navy's publication of its EIS in this case.Ct.S. 109 S.2d the “conditions imposed. at District Court denied the Navy's motion. the Navy defends its failure to the expected consequences and the opportunity to plan complete an EIS before launching the exercises based and implement corrective measures in a timely manner.2(c) (1987)). 371. Council. 757. is the very reason why the District Court had to confront the question of mitigation measures at all. 99 S. The Navy 350–351. Responding to the Navy's The EIS is NEPA's core requirement.3d 658. 1835. inverted timing. An EIS must be prepared “early enough so that it can II serve practically as an important contribution to the NEPA “promotes its sweeping commitment” to decisionmaking process and will not be used to rationalize environmental integrity “by focusing Government and or justify decisions already made. 351–352. 2335. at public attention on the environmental effects of proposed 351–352. 490 U. Methow Valley Citizens Council. 1851.2d 60 (2004). In the February 29 decision been committed or the die otherwise cast.. after briefing and oral argument. See Robertson v. 2335 (quoting 43 Fed. 1505..Ct.” Ibid. No claim to original U.” Id. The Navy measures and alternatives to the proposed course of also argued that vacatur of the entire injunction was action.” Pending its own consideration of the Navy's motion.Ct. Instead. informational role. 3. of the six mitigation measures. 104 L.” Brief for Appellants underestimated only to be discovered after resources have in No.” Ibid.Ed. scheduled to ensures that the agency will not act on incomplete occur after the 14 exercises are completed. 1835.200 yard 351 (1989) (citing 40 CFR §§ 1508. p. has characterized the requirement as “action-forcing. 442 U.Ct. Government Works. 109 S. the courts below and **390 “perhaps more significantly.5 (1979))). mandatory shutdown zone and the six decibel (75%) 1502.2d 377 (1989).14(f).2 (1987). 347.Winter v.” upon CEQ's “alternative arrangements”—arrangements Id. 77 USLW 4001. 360. n. 20 . 350. 518 F. the NEPA process with other planning at the earliest possible time to insure that planning and decisions reflect environmental values. 104 L. 99 S. the Court of Appeals affirmed the 349.Ed. 159 L. the timing of an EIS is actions undermined NEPA and took an extraordinary critical. required irrespective of CEQ's action. 109 S. The Navy's to correct. the Court of Appeals remanded the Transportation v. The Navy has continued training in the meantime and plans to “Publication of an EIS . Had the Navy prepared © 2017 Thomson Reuters.. 99 S.” 490 U.16(h).Ct.S. 55995 agency action..S. 541 U. In addition to discussing potential appealed. 172 L. Natural Resources Defense Council. Department of emergency motion.” Ibid. at 350.Ed. and the Navy 2335. Environmental concerns must be “integrated into the very process of agency decisionmaking” and On February 4. exercises. it bears emphasis. 109 S. District Court's judgment. 7 (2008) 129 S.. 752.” Marsh v. 703 (2008). Andrus v.Ct. “By so focusing agency attention. It demonstrates that an agency has indeed considered environmental concerns. Public Citizen. the District Court stayed the injunction.2d 943 (1979) (internal quotation marks conducted its sixth exercise.2d 249. Sierra Club. The EIS requirement power-down in significant surface ducting conditions. only to regret its decision after it is too late informational and participatory purposes. 1835. “ensures that important effects will not be overlooked or severely degrade the Navy's training.Ct.S.. 08–55054(CA9). The Navy does not challenge that decision it affords other affected governmental bodies “notice of in this Court. 2204.Ed. omitted). reiterating its position that CEQ's action consequences.Ed.Reg.” 40 CFR § 1501. 332. the Navy's *48 In light of these objectives. 1502.Ct. 67 ERC 1225.

. “Discussions between our staffs. the Navy submitted substitute for the District Court's considered judgment supplementary material to CEQ.” Id. Natural Resources Defense Council. This Court has recognized that Navy's submissions with little independent analysis. 2008.Ct. 67 ERC 1225. 555 U. to Pet.” which require the nuclear fuel and high-level *49 radioactive waste). 77 USLW 4001.F. military from preparing a programmatic EIS for low-level flight training). for Cert.” Id. 1835. 106–398. it your request .g. but rather establishes and briefings I have received. in a timeframe that Government has sometimes obtained congressional does not provide sufficient time to complete an EIS.11 indicates that CEQ may play an important have explained that the training restrictions set forth in consultative role in emergency circumstances. and CEQ to discuss the alternative relief from the Executive Branch.S. Floyd D. U. at 238a (“You § 1506. 109 S. 124 S. Id. 7 (2008) 129 S. If the *51 Navy sought to avoid its NEPA © 2017 Thomson Reuters. your letter and at 756. and a 1977 Executive Order charged CEQ with issuing regulations to federal agencies for implementation of Four days later. App. but we have the . the Navy asked arrangements also describe the Navy's existing research CEQ. The next day. the CEQ's regulations are entitled to “substantial deference. 21 . injunctive orders prevent the Navy from providing never suggested that CEQ could eliminate the statute's Strike Groups with adequate proficiency training **391 command... 237a–238a.S.S.S. § 317... 541 U.. Court orders it addressed. and 40 CFR to the Navy's training exercises.Ct. Repeating the CFR 123 (1977 Comp.” Ante.S. The be able to conduct the [exercises] .. The notices must “seek input on Alaska oil pipeline from further NEPA compliance). intended: The EIS process and associated public input might have convinced the Navy voluntarily to adopt The letter continued: mitigation measures. have clearly determined procedural requirements with a “focus on improving that the Navy cannot ensure the necessary training to agency decisionmaking”). the Navy “sought representatives . Inc. n.. and an exemplary CEQ review could not have effected the two analyses by the National Marine Fisheries Service short circuit the Navy sought.. 172 L. 43 Navy to provide notices of the alternative arrangements. See.. 3. App.C. including the Navy's EA based on a two-sided record. 233a. at 373.” letter stated that the District Court's orders posed risks Robertson. the Chairman of CEQ NEPA's procedural provisions. certify strike groups for deployment under the terms of the injunctive orders.S. even and after-action reports. § 1652(d) (exempting construction of the trans. the process for reviewing post-exercise assessments” and “include an offer to meet jointly with Navy Rather than resorting to Congress. See id. Government Works.. at 355. Spence for the nine exercises and alternative arrangements National Defense Authorization Act for Fiscal Year 2001. 490 U. the District Court's orders. at 243a–247a. 2204 (noting that NEPA supporting documents.11 (1987). Order No. to approve alternative and mitigation efforts.. at 242a–243a. No claim to original U. at 373 (opinion arrangements.. arrangements for NEPA compliance pursuant to 40 CFR § 1506.2d 249. The alternative of the Court). but NEPA itself would not have impeded the Navy's exercises. 11991. on January 15. to Pet. § 10141(c) (2000 ed. The arrangements provide EIS for the development of criteria for handling spent for “public participation measures. 769.. 365. 1654A–57 (exempting the C.Ct. 2. 42 U. NEPA established CEQ to assist and advise the or consider any of the materials underlying the District President on environmental policy.).R. 114 Stat. a legally sufficient EIS before beginning the SOCAL and create a substantial risk of precluding certification of exercises. n. CEQ has concluded that the Navy must could have requested assistance from Congress.) (exempting The alternative arrangements CEQ set forth do not the Environmental Protection Agency from preparing an vindicate NEPA's objectives. On January 10. Most importantly. CEQ lacks authority to (NMFS).C. for Cert. and the classified declaration does not mandate particular results.. See Public Citizen.. NEPA would have functioned as its drafters the Strike Groups as combat ready. adviser to the President. Exec. Based on the record supporting The Navy had other options. 242a. 42 U. Neither the absolve an agency of its statutory duty to prepare an Navy nor CEQ notified NRDC.L. authorization to proceed with planned activities without *50 Therefore. emergency circumstances are present fulfilling NEPA's requirements.Ed.”). for compliance with NEPA under CEQ regulation 40 Pub.Winter v. § 4342. 2 More fundamentally. § 1506. e. 3 issued a letter to the Secretary of the Navy.S.11 are warranted..C.. at 241a. Id. and CEQ did not request EIS. see CEQ's hasty decision on a one-sided record is no ante. at 240a..

Within those totals. and lesions in vital organs. too.” Wright & Miller. see App.Ed. Inc.121 . 72 Washington combined. According to [the National Oceanic **392 the necessities of the particular case. at 360–362. conducted a detailed analysis of the record. v.” 518 F.S. The EA does indeed state that Because an EIS is the tool for uncovering environmental “modeling predicts non-injurious Level B exposures. 172 L. 64 S. Bowles. environmental plaintiffs may often rely more App. 77 USLW 4001.2d 249. Natural Resources Defense Council.. a strong threat of irreparable injury before trial 2 is an adequate basis. 67 ERC 1225. Likewise.Ed. but also states that the EA predicted “only relief on a “sliding scale. But. § 2948. of which 321. E.3. 223–224.Ed.3d. at 691–692... obligations.” Weinberger v. the injury need not NEPA “to the fullest extent possible.. Wright.3d.” harm. § 2948. acute spongiotic changes in the central of 1972 (CZMA) pursuant to 16 U. 305. the EA also states that “all beaked whale exposures © 2017 Thomson Reuters. 1798.Ct. supra.g. however. I agree with the District explanation for the balance of hardships in issuing Court that NRDC made the required showing here. at 155).S.” 518 F. The Court B of Appeals.000 behavioral disturbances (Level B harassment). 11A C. none of which would result in permanent injury.” Kane.” sometimes awarding relief based eight Level A harassments of common dolphins each on a lower likelihood of harm when the likelihood of year” and “274 Level B harassments of beaked whales per success is very high. Consistent only 5. Government Works. 88 L. courts do not insist that litigants Offshore stocks. Flexibility is a hallmark of equity jurisdiction.. 2007. courts have evaluated claims for equitable ante. Instead. That exemption.1995).” 42 U. 3 have been inflicted when application is made or be certain to occur.).S.S. may exist in California.. self-serving resort to an “simply to prevent the possibility of some remote future office in the White House—is surely not what Congress injury. the President granted the Navy an exemption from the strandings of marine mammals..1. Level B harassments of bottlenose dolphins. § 1456(c)(1) nervous system. predetermined quantum of probable success or injury before awarding equitable The majority acknowledges the lower courts' findings. more than 8. 365.1. Miller. No claim to original U. A. 555 U.S. predictions. The Navy's own EA predicted substantial and irreparable 3 harm to marine mammals. *53 The EA classified the harassments of beaked whales Equity's flexibility is important in the NEPA context. does not affect NRDC's NEPA claim.092 L. the EA predicts that the Navy's “use of MFA sonar in the SOCAL exercises will result in 564 instances of physical injury including permanent hearing loss (Level A III harassment) and nearly 170. its injunction of August 7.Winter v. and I do not believe it does so today.C. as 1. ante. 478–479. 195 (2d ante. uniformly show a particular.” *52 Ante. year. The of harm. 22 .271 may exist in the California Coastal and with equity's character.2d 91 (1982) (quoting Hecht Co. As the Ninth Circuit by the CZMA. 321 U. This Court has never rejected that formulation. 587. as Level A. at 375 (quoting Wright & Miller. Oregon and Romero–Barcelo. 456 U. the EA predicts 1. relief. 7 (2008) 129 S. “However. Sonar is linked to mass On the same day that CEQ issued its letter. noted. had in mind when it instructed agencies to comply with supra.Ct. as the majority correctly notes. 312. at 372. as few rather than rigidity has distinguished it. 754 (1944)). Federal Practice and Procedure § 2948.C. at heavily on their probability of success than the likelihood 372. not Level B. at 696. 329. Flexibility and Atmospheric Administration (NOAA)]. The District Court may well have given too spare an at 155–156 (footnote omitted). Those numbers do not fully capture the EA's ed.Ct. 2008.000 of which would A also involve temporary hearing loss. when it closely examined each mitigation measure in issuing the modified injunction of January 3. (B) (2006 ed. § 4332. expressly authorized 600–602.S. p. its remedy lay in the Legislative Branch. 102 S. “The essence of equity jurisdiction has been the power of the “the EA predicts 436 Level A harassments of Cuvier's Chancellor to do equity and to mould each decree to beaked whales. hemorrhaging around the requirements of the Coastal Zone Management Act brain and ears. The court cured any error in this regard. 185. & M. at 374. App. The Court is correct that relief is not warranted Navy's alternative course—rapid. id.

128. 365.” Id. 4 an EIS.’ ” 518 F.. 172 L.Ed. No claim to original U. If such injury is Ante. especially when recourse the predicted exposures as Level A “[b]y Navy policy to the Legislature remains open. 7 (2008) 129 S.” of long duration. even in the face of an alleged 555 U. maintained that the methodology used was claim *54 that NEPA required the Navy to prepare based on the ‘best available science. 77 USLW 4001. 16.” Ante.Ct. The EA counted interests.” id. But the EA explains that the proposed sufficiently likely. 08 Cal. 172 L. and 564 Level A harms. in which the commander “would have the option to conduct two concurrent major range For the reasons stated. at 376. the history of this litigation. therefore. including 8. Cf. strategy. 23 . substantial harm to the environment.. beaked whales are difficult to In light of the likely. S 547 End of Document © 2017 Thomson Reuters.121— cannot be lightly dismissed.797.S. and record reflects “the known sensitivity of these species to we have not held that they do. by its nature. and the public interest.. **393 and as the majority acknowledges.990. Weekly Fed. 77 USLW 4001. No claim to original U. Inc.” App.. Government Works.Ct. are counted as Level A. Ninth Circuit. 545.” such that “this is not a case in which the injury. “Of course.A. 21 Fla.. I would affirm the judgment of the events. L. Instead. at 200. as the Ninth Circuit noted.S. NRDC's almost inevitable success on the merits of its “the EA . i. deserves less weight because the training exercises Amoco Production Co. 94 L. 365. at 669. can seldom be adequately remedied defendant is conducting a new type of activity with by money damages and is often permanent or at least completely unknown effects on the environment. I cannot agree that the mitigation measures the 4 The majority reasons that the environmental harm District Court imposed signal an abuse of discretion.2d 249. at 124.. Gambell. v.000 instances of temporary hearing loss. © 2017 Thomson Reuters. irreparable. 129 S.Ed.Ed. at 378. “have been taking place in SOCAL for the last 40 107 S.2d 249. ante.Winter v. Daily Op. In my view. the EA is based on usually favor the issuance of an injunction to protect the the Navy's proposal to employ a “surge” training environment.S.” App.S. Natural Resources Defense Council.000 behavioral disturbances.. 13. 2008 Daily There is no doubt that the training exercises serve critical Journal D. including 436 injuries All Citations to a beaked whale population numbering only 1. study.Ct. 555 U.. 185. the balance of harms will action is not a continuation of the “status quo training. risk to the effectiveness of the Navy's 14 training exercises. Government Works. The interests do not always trump other considerations. tactical sonar. 531. military developed in conjunction with NMFS. 7. at 372. this likely harm—170. Further.S. 67 ERC 1225.”).. 1396.e. But those interests do not authorize the Navy to violate a statutory command.R.2d 542 (1987) (“Environmental years. 480 U. 67 ERC 1225. at 365 (NOAA letter). Serv.” id.3d. ibid..