When a Loss Is Almost a Victory
| Author | Richard Lazarus |
| Position | Law faculty of Georgetown University |
| Pages | 14-14 |
Page 14 ❧ THE ENVIRONMENTAL FORUM Copyright © 2009, Environmental Law Institute®, Washington, D.C. www.eli.org.
Reprinted by permission from The Environmental Forum®, March/April 2009
By Richard Lazarus
When a Loss Is
Almost a Victory
At first glance, the Supreme Court’s
recent ruling in Winter v. NRDC
would seem to contain no surprises.
After almost 40 years, the refrain is
certainly familiar. First, environmental-
ists prevail in the lower courts in a Na-
tional Environmental Policy Act case,
and then the Supreme Court reverses.
Winter is the 16th time this has hap-
pened out of 16 NEPA cases heard by
the High Court on plenary review.
e only obvious immediate dif-
ference is that the environmentalists
in Winter actually received some votes!
Two justices (Stephen Breyer and John
Paul Stevens) dissented in part and two
justices (Ruth Bader Ginsburg and Da-
vid Souter) dissented entirely. e last
time the environmentalists received any
votes in a NEPA case subject to plenary
review was their 1976 loss in Kleppe v.
Sierra Club.
Winter, however, underscores that
not all Supreme Court losses are the
same and sometimes significant victories
may be embedded in an opinion that
otherwise has all the formal trappings
of a loss. e case is also a reminder of
how an opinion author may deftly use
language that, in the longer term, may
prove far more significant than any of
the actual rulings of the Court.
As soon as the Court granted re-
view in Winter, the bottom-line result
was obvious: a quick reversal. For this
reason, NRDC’s true challenge was
to achieve what Supreme Court advo-
cates describe as a “soft landing,” a rul-
ing with minimal precedential effect.
In many, but not all respects, NRDC
achieved just that.
First, NRDC embraced the unorth-
odox tactic of virtually abandoning any
pretense of defending the lower courts’
ruling on the first question presented
by the solicitor general: whether the
Council on Environmental Quality
had validly invoked its “emergency”
regulation to allow the Navy to com-
ply with NEPA based on “alternative
arrangements” determined by CEQ.
e lower courts had ruled that CEQ
had not, because the term “emergency”
applies only when the federal agency’s
circumstances are unanticipated and
unforeseen rather than, as in Winter,
the product of the Navy’s own inade-
quate compliance efforts. But instead of
defending the lower courts’ reasoning,
NRDC challenged CEQ’s statutory
and constitutional authority to excuse
the Navy, thereby rais-
ing a legal issue not
ruled on by the courts
below and therefore
also not one that the
Supreme Court was
likely to address.
e Court, more-
over, responded to
NRDC’s tactic not by ruling against
the organization on the first issue, but
instead by skipping it altogether and re-
versing instead on a narrow fact-bound
basis: the failure of the lower courts to
give adequate deference to the beliefs of
Navy commanders and the president
that two of the preliminary injunc-
tion conditions would unduly under-
mine the Navy’s ability to train. e
Court’s maneuver is intriguing. Based
on questions posed by the justices at
oral argument, including the chief jus-
tice, NRDC may have raised enough
doubts about the legitimacy of CEQ’s
emergency authority to prompt the
Court to avoid the first question.
Second, the Court declined to ad-
dress some of the solicitor general’s
broader arguments. For instance, the
Court did not rule on the SG’s claim
that environmentalists could not dem-
onstrate irreparable injury — either as
required for a preliminary injunction or
for Article III standing — absent a far
greater showing of species injury: the
SG had argued that respondents “have
no legally cognizable interest in indi-
vidual members of a species” and “any
finding of irreparable injury . . . must
rest upon likelihood of a harm to the
species as a whole.” Such a ruling could
have dramatically limited the ability
of environmental groups to maintain
standing and obtain injunctive relief in
many future wildlife and marine mam-
mal cases.
Finally, the Court repeatedly em-
phasized that the Navy had appealed
only two of many injunction condi-
tions that the district court had im-
posed on its sonar. e Court’s rul-
ing, accordingly, left in place much
of the relief obtained by NRDC. In
that respect, NRDC was very much
a winner. Based on NEPA’s proce-
dural requirements,
the group achieved
significant modifica-
tion of the Navy’s use
of active sonar in its
recent exercises and
likely in future exer-
cises as well.
Environmentalists
should nonetheless be wary of too much
celebration. e chief justice’s opinion
for the Court contains language that
government lawyers will most likely in-
voke to argue against injunctions based
on NEPA violations in future cases.
Rather than embrace the view of some
lower courts and many academics that
a NEPA violation, by its nature, should
normally warrant injunctive relief, the
majority twice intimates that NEPA’s
procedural character in fact cuts the
other way, at least where the govern-
mental action is not “new” and its im-
pacts not “completely unknown.”
In short, there is some silver lining in
Winter for environmentalists, but there
is also reason for concern.
Richard Lazarus is on the la w faculty of
Georgetown University. He can be reached at
lazarusr@law.georgetown.edu.
I C
e Court le in place
much of the relief. In that
respect, NR DC was very
much a winner
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