In the Navy: the Future Strength of Preliminary Injunctions Under Nepa in Light of Nrdc v. Winter

• Publication year: 2008
• Citation: Vol. 10 No. 2008

William Krueger⁰

A preliminary injunction is an incredibly useful and important tool in cases involving the enforcement of environmental statutes and regulations. Parties hoping to protect the environment will often seek preliminary injunctions to prevent environmental harm from occurring while the case is being litigated in court. In Winter v. National Resource Defense Council (NRDC), the Supreme Court held that a lower court acted improperly in issuing a preliminary injunction that placed restrictions on the Navy's ability to conduct training exercises off the coast of southern California. The Court's decision in this case is improper and calls into question the efficacy of preliminary injunctions in future environmental enforcement cases, especially when it comes to cases brought against the military. In cases like this one, the Court should adopt a new approach in reviewing preliminary injunctions that will uphold the power and meaning of environmental protection laws.

I. Introduction: Injunctions and the Environment

Since the 1970s, many laws have been passed with the overarching goal of protecting the environment.¹ Without proper enforcement of environmental protection laws, the environment will likely suffer from increased pollution levels and less biological diversity. Therefore, it is critical to ensure that these laws are enforced. A person or agency with proper standing can bring a citizen suit to enforce environmental protection laws against alleged perpetrators.² To ensure that the perpetrator does not continue to harm the environment while the action is pending in court, the plaintiff will often seek a preliminary injunction³ to force the perpetrator to stop or alter his environmentally detrimental practices.⁴ Without the preliminary injunction, enforcement of environmental statutes would be much more difficult.

On November 12, 2008, the Supreme Court handed down its decision in Winter v. Natural Resources Defense Council.⁵ The Court's primary concern in this case was whether a preliminary injunction which forbade the Navy's use of mid-frequency active ("MFA") sonar⁶ during certain portions of its submarine training exercises off the coast of southern California was properly issued.⁷ The injunction was sought by the National Resources Defense Council (NRDC),⁸ a handful of other environmental interest

groups, and several concerned citizens. The injunction was granted by the United States District Court for the Central District of California on January 3, 2008,⁹ and upheld by the Court of Appeals for the Ninth Circuit on February 29, 2008.¹⁰ The district court granted the injunction because the Navy failed to comply with the requirements of the National Environmental Policy Act (NEPA).¹¹ Specifically, the Navy failed to prepare an adequate Environmental Assessment (EA)¹² or a subsequent Environmental Impact Statement (EIS),¹³ both of which must be prepared for proposed "major Federal actions significantly affecting the human environment."¹⁴ The injunction imposed several restrictions on the Navy's ability to use its MFA sonar in training exercises.¹⁵

The Navy eventually appealed to the Supreme Court, which published three very divided opinions.¹⁶ The Roberts majority opined that the environmentalists' interests were "plainly outweighed by the Navy's need to conduct realistic training exercises."¹⁷ The majority focused on two primary factors before holding that the district court had abused its discretion by granting a preliminary injunction.¹⁸ First, the Court challenged the level of probability that the district court assigned to the likelihood of the plaintiffs' success at trial.¹⁹ Second, the Court felt that neither the district court nor the Ninth Circuit adequately considered the balance of equities between the plaintiffs and the Navy.²⁰ For these two reasons, the Court held that the district court abused its discretion by imposing the injunctive measures challenged here by the Navy.²¹ Therefore, the Court vacated the portion of the district court's injunction that the Navy challenged.²²

There were two other opinions which differed from the majority. Justice Bryer, concurring in part and dissenting in part, believed that the proper solution was an injunction restricting the Navy's use of MFA. However, the injunction should not be as stringent as the district court's original injunction.²³ On the other hand, Justice Ginsburg, who dissented, would have affirmed the lower courts' decisions and upheld the district court's injunction.²⁴ Her dissent focused on the "central question" of "whether the Navy must prepare an [EIS]."²⁵ Justice Ginsburg believed that by attempting to circumvent the NEPA process, the Navy's actions in this case "undermined NEPA" by appealing to the Council on Environmental Quality (CEQ), a division of the White House.²⁶

The outcome of this case is both unfortunate and improper. Its result is a signal that the Court is likely to continue to give extraordinary deference to the military in environmental cases which may involve matters of national security, without any attempt to look into the circumstances of the military's assertions of national security interests. This case also shows how easy it has become for agencies, particularly military branches, to avoid adhering to laws like NEPA. Courts should be more willing to grant preliminary injunctions when it comes to NEPA enforcement actions, lest agencies be allowed to do as they will without any regard to the rule of law. Without more stringent NEPA enforcement by the courts, the Act's purposes of "sensitiz[ing] ... federal agencies to the environment" and "foster[ing] precious resource preservation" will be thwarted.²⁷

This Recent Development explains the law involved in Winter, examines the particulars of the Court's various arguments, and offers a critique of the Court's approach to the questions at hand. Part II discusses the legal framework of NEPA and the basic law behind preliminary injunctions. Part III relates the factual and procedural history of the case. Part IV discusses the three opinions issued in this case. Part V offers an argument in favor of a different approach that courts ought to adopt when reviewing preliminary injunctions under NEPA.

II. Legal Framework: NEPA and the CEQ

A. The NEPA Process

The National Environmental Policy Act²⁸ was passed in 1969 to:

[E]ncourage productive and enjoyable harmony between man and his environment; to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man; to enrich the understanding of the ecological systems and natural resources important to the Nation; and to establish a Council on Environmental Quality.²⁹

NEPA achieves this goal by requiring that every government agency comply with certain procedural requirements before an agency takes any action which may harm the environment.³⁰

The central procedural requirement of NEPA is the EIS.³¹ An agency must prepare an EIS any time it proposes to take an action "significantly affecting the quality of the human environment."³² An EIS must detail the following:

i) [T]he environmental impact of the proposed action,

ii) any adverse environmental effects which cannot be avoided should the proposal be implemented,

iii) alternatives to the proposed action,

iv) the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity, and

v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.³³

Before an agency prepares an EIS, the agency must first determine if its proposed action will have enough effect on the environment to warrant an EIS. To do this, the agency will prepare an EA.³⁴ An EA serves largely the same function as an EIS, but it is often less formal and less extensive.³⁵

Once an agency creates an EA, it can come to one of three conclusions. The agency can find that its actions will have a significant impact on the environment, thus requiring an EIS.³⁶ Alternatively, the agency can issue a finding of no significant impact ("FONSI"), which presents the EA and discusses why the agency found no significant impact warranting the preparation of a full EIS.³⁷ The agency's third option is to issue what is called a "mitigated FONSI," in which the agency outlines mitigating measures it will undertake in conjunction with its proposed action to lower the action's impact below the threshold requiring an EIS.³⁸

If the agency determines that an EIS is required, it will prepare a draft EIS which it will submit for comment to any government agencies with jurisdiction over the action as well as to the public.³⁹ These comments become part of the administrative record surrounding the EIS.⁴⁰ The agency must then consider the comments and incorporate discussion of the comments into its final EIS.⁴¹

B. The Council on Environmental Quality

Along with creating a procedural framework within which agencies must make their decisions, NEPA creates the CEQ.⁴² The CEQ is a part of the Executive Branch, and its three members are appointed by the President.⁴³ While most of its functions are largely advisory in nature,⁴⁴ the CEQ takes on a somewhat adjudicatory role under emergency circumstances.⁴⁵

If an agency feels that "emergency circumstances" will not permit it to comply with NEPA's requirements before it takes a proposed action with significant environmental impacts, then the agency can "consult with [the CEQ] . . . about alternative arrangements."⁴⁶ This function of the CEQ allows agencies to take actions which, but for the CEQ's grant of alternative arrangements, would be violations of NEPA, provided that such agency actions are "necessary to control the immediate impacts of the emergency."⁴⁷ Any agency actions not directly related to containing the emergency can still be reviewed by the courts under NEPA.⁴⁸

III....