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

• Date: 01 November 2009

11-2009 NEWS & ANALYSIS 39 ELR 11109

Dangerous

Waters? The

Future of

Irreparable Harm

Under NEPA

After Winter v.

NRDC

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 plaintis’ 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.