Dangerous Waters? The Future of Irreparable Harm Under NEPA After Winter v. NRDC

Date01 November 2009
11-2009 NEWS & ANALYSIS 39 ELR 11109
Waters? The
Future of
Irreparable Harm
Under NEPA
After Winter v.
by Christopher Kendall
Christopher Kendall is a 3L at University of
Southern California, Gould School of Law.
Editors’ Summary
e debate between Justices Scalia and Breyer during oral
argument in Winter v. NRDC examines whether an
NEPA violation constitutes irreparable harm for the pur-
poses of injunctive relief. Whereas Justice Scalia conated
the showing of harm required for standing with the irrep-
arable harm element of injunctive relief, Justice Breyer
argued persuasively, as he did in his First Circuit opinions,
that the harm from a violation of NEPA is irreparable in
itself. Although Justice Breyer’s position is both correct and
will eventually prevail, given the current makeup of the
Court, it may be some time before it becomes law.
“[W]hen a decision to which EIS obligations attach is made
without the i nformed environmental consideration t hat
NEPA requires, much of the harm t hat NEPA seeks to pre-
vent has already taken plac e.
Justice Stephen Breyer1
“Our cases say that procedural injur y alone is not the ki nd
of injury that c onfers standing; t hat there h as to be some
concrete harm.”
—Justice Antonin Scalia2
In a highly publicized case between environmental groups
and the U.S. Navy, the U.S. Supreme Court had to decide
whether to uphold a preliminary injunction enjoining
the Navy from its use of environmentally harmful mid-
frequency sonar.3 In this case, Winter v. Natural Resources
Defense Council,4 although t he Supreme Court ruled for the
Navy, the holding was narrow and limited to the balancing
of equities, which favored the interests of the Navy given the
lack of evidence of any correlation between naval action and
injuries to marine mammals over the 40-year span of train-
ing exercises in southern California.5
In reaching its decision, the Supreme Court could have
considered one of many facets to this case—the balancing of
the equities, irreparable harm, and separation of powers—
but the Court made its eventual holding based on the bal-
ance of the equities: “We do not discount the importance
of plaintis’ ecological, scientic, and recreational interests
in marine mamma ls. ose interests, however, are plainly
outweighed by the Navy’s need to conduct realistic training
exercises to ensure that it is able to neutralize the threat posed
by enemy submarines.”6 In addition, the Supreme Court
looked at the U.S. Court of Appeals for the Ninth Circuit’s
nding that a preliminary injunction may be granted “based
only on a ‘possibility’ of irreparable harm,” as determined
by scientic studies and other evidence, which established
a “near cer tainty” of irreparable harm to the environment.7
Agreeing with the Navy in dictum, t he majority held that
the Natural Resources Defense Council ( NRDC) had to
demonstrate “a likelihood of irreparable injury,” and that a
“possibility” was not sucient.8 In particular, even if mid-
frequency sonar causes some degree of harm, NRDC failed
to show an adverse eect to “their scientic, recreational,
and ecological interests.”9 Even assuming that NR DC had
1. Winter v. Natural Res. Def. Council, 129 S. Ct. 365, 383, 38 ELR 20279
(2008) (Breyer, J., concurring).
2. Transcript of Oral Argument at 24, Winter, 129 S. Ct. 365 (No. 07-1239).
3. In addition, a secondary issue was one of separation of powers, not discussed
in this Article.
4. 129 S. Ct. 365.
5. Id. at 375.
6. Id. at 382.
7. Id. at 375.
8. Id. (emphasis added).
9. Id.
Copyright © 2009 Environmental Law Institute®, Washington, DC. reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.

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