United States of America
Injunctive Relief, Declaratory Relief, Environmental Impact Assessments, Remedies, Wildlife, Evidence, Forests, Jurisdiction, Permits
The Navy scheduled 14 training exercises through January 2009 off the coast of southern California. These exercises involve the use of “mid-frequency active sonar” to detect enemy submarines. Environmentalists claim that the high decibel levels used harm whales, causing beach strandings. In February 2007, however, the Navy issued an environmental impact assessment under the National Environmental Policy Act (NEPA), concluding that the use of mid-frequency active sonar during the exercises would cause minimal harm to marine mammals. Petitioners, mostly environmental groups, sought declaratory and injunctive relief against the exercises, on the ground that they violated NEPA, plus other environmental laws not material to the Supreme Court decision. The district court granted a preliminary injunction barring conduct of the exercises. On remand from the Court of Appeals for the Ninth Circuit, the district court modified the preliminary injunction to allow the Navy to use the sonar if it used mitigation measures. On the Navy’s second appeal, challenging two of the mitigation measures, the Ninth Circuit affirmed the modified injunction, noting that plaintiffs (petitioners in the Supreme Court) had carried their burden of showing a “possibility” of irreparable injury and that the balance of hardships weighed in favor of plaintiffs. The majority opinion held that as an initial matter the Ninth Circuit’s “possibility” test for issuance of a preliminary injunction is too lenient; plaintiffs must show that irreparable injury is “likely” in the absence of an injunction. However, the Court continued, even if plaintiffs had shown irreparable injury (and, too, likelihood of success on the merits), it is “plainly outweighed” by the Navy’s interest in effective, realistic training of its sailors. That factor alone requires denial of the requested injunctive relief. For the plaintiffs, the most serious possible injury would be harm to an unknown number of marine mammals. In light of the foregoing, the Court reversed the decision below and vacated the preliminary injunction. Parenthetically, said the Court, the same balancing factor requiring vacatur of the preliminary injunction here would also bear on a challenge to any future permanent injunction. The Court did not address the merits of the lawsuit—that is, whether the Navy exercises violated NEPA or the other federal environmental laws claimed to be violated.