Hounded, Cowed, & Badgered

Supreme Court invalidates limits on Navy sonar

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.

Navy sonar roundup

Last week, the Supreme Court heard oral argument in the National Resources Defense Council's lawsuit against the Navy. (Hat tip: Change.org). I'm out of my depth when reading cases involving federal environmental statutes, so I've tried to gather links to some people who know what they're talking about. Here's how the NRDC frames the issues in its brief:

The district court found that Petitioners (“the Navy”) had likely violated the National Environmental Policy Act of 1969 (“NEPA”) by failing to prepare an environmental impact statement to consider the effects that certain long-planned naval training exercises using high-intensity sonar would have on marine mammals off the coast of Southern California. The Navy does not question that finding in this Court.... Instead, the Navy argues that the district court erred when it refused to strike from its injunction two mitigation measures because of their alleged effect on the Navy’s training and certification program....

The Navy argues that a letter it procured from another executive-branch agency, the White House Counsel on Environmental Quality (“CEQ”), disagreeing with the district court’s finding, compelled the court to strike the challenged measures. This novel argument, reduced to its essentials, is that an Article III court must set aside its findings of fact and modify an injunction because an administrative agency in which Congress has vested no adjudicatory authority, and which lacks any expertise in the issue in dispute, disagrees with the court’s findings.

The NRDC has a great blow-by-blow of the argument, complete with pictures and a (non)prediction as to the outcome: "I haven't got a clue. And I doubt that anyone else does, either." (An expert at the New York Times says NRDC faces long odds.) Hawaii Ocean Law has more press coverage and all the filings. On perusing the transcripts of the oral arguments, I was unhappy to see Justice Scalia raise the notion of standing, a doctrine that judges have used to keep public interest litigants out of court, even when Congress has given them a way to sue.

For more on the separation of powers issues in the case, check out SCOTUS Blog. The CEQ justified the lack of environmental review by invoking the national security interest in testing sonar for submarines. This is another appearance of the Bush Administration's argument that, in these post-9/11 times, security interests are so surpassingly important that all other interests must fall to the wayside, and a variation on the claim that it is for the executive, rather than the judiciary, to determine how to balance the interests. The acceptance of this argument in this case by the Supreme Court would have dire consequences for whales and for all animals protected by federal law.

Federal farm law: CAFOs, "stewardship" purchasing

Andrew Martin of the Chicago Tribune has a piece on the push against CAFOs/factory farms and the industry's push back. Martin, coauthor of a recent article on "Hog Wars", focuses on political doings over pollution from poultry farming. Specifically, factory farmers are making the issue federal. After a similar attempt in Oklahoma failed, a bill to exclude manure from the definition of "hazardous substance" for the federal Superfund statute is gaining cosponsors in the House, ninety in the last three months. (Legal background here; two fine, if slightly dated, explanations of poultry pollution are this United Poultry Concerns factsheet and this Peter Goodman article.) According to Martin, H.R. 4341 is designed to head off not lawsuits by local citizens, but suits by municipal and state governments, most notably a lawsuit by Oklahoma AG Drew Edmonson. The folksy anecdotes in Martin's piece and in the Tulsa World's report on discovery in the Oklahoma lawsuit make clear that this is indeed an institutional struggle, with everyone claiming to represent the "little guy." Needless to say, though we still say it a lot, any potentially benefits accruing to nonhuman "little guys/gals," namely less crowded conditions in non-factory farms, are on no one's mind. Alright, it's on a few folks' minds...

The Farm Animal Stewardship Purchasing Act has been introduced in the House. It would require government-purchased animal food and fiber to be from animals who were given adequate shelter, food, water, and veterinary care. There is no exercise requirement (something that would sink a factory farm), but it does require an animal be given "sufficient space . . . [to] walk, move his or her head freely, rest, and turn around completely and fully extend all limbs or wings without touching any part of an enclosure." As the HSUS notes, these requirements are "quite modest." They are also revolutionary, from a welfarist perspective, insofar as they state some minimum care requirements for animals at a point other than when they're being killed or when they're being transported. (They're not really protected there either, see here and here.) Tucked into the law is also what would amount to a ban on government purchases of foie gras (a cause everyone can get behind) and some language suggesting that "downers," animals so sick they cannot walk, must be killed "promptly," rather than shipped for slaughter. H.R. 3931, which would mandate prompt killing of downers, is still in committee.

In da courts, in brief

In a cruelty case involving the killing of an opposum with a BB gun, a Florida court notes the "blurred line" between hunting and animal cruelty and suggests a legislative "fix" which would add a sadistic mindset requirement to the anticruelty statute. Bartlett v. State [pdf], No. 4D05-2232 (Fla. Ct. App. May 24, 2006).

A Washington court recently allowed damages for emotional distress arising out of the malicious injury of a companion animal. Womack v. Von Rardon,  24221-8-III (Wash. Ct. App. May 25, 2006). As the AP reports, plaintiff's attorney Adam Karp sees this as step towards the recovery of such damages for negligent injury as well. (At HC&B, Karp is a local hero.)

As another AP story notes, a federal district court recently invalidated the National Marine Fisheries Service's issuance of permits to scientists seeking to study Steller sea lions. It held that the court should have prepared an environmental impact statement, given the likelihood that such research would impact sea lion populations. HSUS v. Dep't of Commerce [pdf], No. 05-1392 (D.D.C. May 26, 2006.) Plaintiff HSUS has more info on the invasive techniques proposed by scientists in this case.

Fishing council OKs turtle-unfriendly fishing method

The AP reports plans by the Fishery Pacific Management Council to permit drift gillnet fishing and to study permitting longline fishing, two methods of fishing which can also snare leatherback sea turtles. (Hat tip: An Animal-Friendly Life.) The methods are also known among turtle advocates as "curtains of death" and "landmines of the sea." Now that's the way to frame the debate! Karen Ravn has more complete coverage at the Monterey County Herald, describing in detail how gillnet fishing works and precautions taken to avoid taking marine mammals. Ravn also notes the huge drop in leatherback turtle populations in the Pacific, from 91,000 in 1980 to less than 5,000 in 2002 and that the UN has banned such fishing on the high seas (200+ miles out) since 1991.

CA Supreme Court takes Adidas kangaroo case

The California Supreme Court has agreed to hear an appeal of a case challenging the importation of Adidas sneakers using kangaroo leather. The court of appeals, in this opinion (pdf), held that federal law preempted the California law prohibiting the importation and selling of kangaroo leather, Sec. 653o (scroll down) of the Penal Code. Currently kangaroos are not listed as threatened or endangered for the purposes of the Endangered Species Act, but were in the past. The case presents an interesting intersection between animals and state, federal, and foreign law. The international angle was a key part of the appellate court's analysis:

As a result of Fish & Wildlife’s activities, Australia has imposed kangaroo management programs that resulted in the conservation and population growth of the three species and other species—in exchange for which this country now allows the import of some kangaroo products. What impetus would Australia have to conserve kangaroos if section 653o could prevent the importation of kangaroo products into California, a primary Pacific Rim state for Australia? With the removal of the carrot, the stick would be rendered useless, and our national ESA policy regarding kangaroo conservation rendered meaningless.

This appears to be a turf war---the state AG's office had asked for review.

Protection for polar bears?

The U.S. Fish & Wildlife Service recently announced that it will be reviewing whether to list polar bears as "threatened" for the purposes of the Endangered Species Act.  The decision will be made after a period for public comment. The listing would be an environmental victory in two ways. In addition to  maintaining Alaskan polar bear populations, it would allow environmental advocates to challenge federal agency decisions affecting greenhouse gases, which are responsible for melting ice on which the bears depend. As one Greenpeace spokesperson says, "By protecting them now, we will be protecting ourselves in the future."