In a feat of speedy legal writing, the U.S. Supreme Court struck down parts of an injunction limiting the Navy's use of sonar in training off the coast of California. The case is Winter v. NRDC. Oral argument was last month and, as Orin Kerr notes, this is the first argued decision of the term. The fear (shared by me) that the court would okay the Navy's attempt to circumvent the courts via an "appeal" to an executive agency appear to have been unfounded--Chief Justice Roberts's decision is based squarely on the review of the decisions of the district and appellate courts. The executive branch's Council on Environmental Quality makes an appearance in the procedural parts of the majority opinion, and is dissed in Justice Ginsburg's dissent, but does not play a role in the court's conclusions. That's one bullet dodged.
The dispute in the district court was between environmentalists who claimed the sonar training would significantly impact marine mammals, particularly beaked whales, and military officers who emphasized the importance of unfettered training to military preparedness. By the time the appeal reached the Supreme Court, the Navy had accepted several policies designed to mitigate the effect of their exercises and begun the full evaluation, called an EIS, it should have done in the first place. The majority expressly declined to reach the merits of the claim and only ruled on the injunction. So on the bright side, the decision today does not end the NRDC's claim.
That said, the majority opinion is not good law for animals. From the author of the "hapless toad" dissent, C.J. Robert's opinion is downright respectful: "We do not discount the importance of plaintiffs’ ecological, scientific, and recreational interests in marine mammals." He goes on, however, to say that "[t]hose interests ... 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." The majority opinion is bookended with quotes from two presidents (George Washington and Theodore Roosevelt) and the analysis in between favors military/executive concerns. Although the court says security interests will not always prevail, its emphasis on the testimony of Navy witnesses before the district court indicates such opinions enjoy special deference. As noted by this comment off the Kerr post, the court uses precedent to justify this attitude. Yes, military leaders should be given due for their expertise, but so should marine biologists as well. According super-deference to the military, especially against the interests of nonhumans, will always result in the Armed Forces winning.
As the quotes above make clear, however, the interests of animals themselves are, as usual, only considered secondhand. The harm--the reason NRDC presumably sued--is that the whales, dolphins, and sea lions in the area will (the court would say "could") have their lives disrupted or their bodily integrity violated by the training exercises. The majority however only weighs the human interest in observing them in determining whether the Navy action will cause irreparable harm. I'm not sure if this approach--which echoes the requirement of a concrete, personal injury in determining standing--is correct. Justice Ginsburg's dissent defines the harm not as harm to whale-watchers but to whales: "170,000 behavioral disturbances, including 8,000 instances of temporary hearing loss; and 564 Level A harms, including 436 injuries to a beaked whale population numbering only 1,121."
Even assuming the question of harm only encompasses the interests of human litigants, the majority had another opportunity to consider the interests of animals in determining whether an injunction would be in the "public interest." By defining public interest exclusively in terms of defense, the majority betrays its version of what is important to the U.S. public and government policy. The result, of course, is a loss for the only "public interest" party before the court.
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