Today, the Supreme Court in Winter v. Natural Resources Defense Council overruled the Ninth Circuit yet again, holding that the Navy could conduct realistic antisubmarine training off the California coast using medium-frequency active sonar – the preferred method of submarine detection for diesel-electric submarines that are now quieter than the background ocean noise.
The District Court in California issued an injunction at the behest of the Natural Resources Defense Council, which had alleged that active sonar would injure marine mammals. The injunction, upheld by the Ninth Circuit, allowed the Navy to use its active sonar in the training area only if the Navy operated under the following conditions:
(1) imposing a 12-mile “exclusion zone” from the coastline; (2) using lookouts to conduct additional monitoring for marine mammals; (3) restricting the use of “helicopter-dipping” sonar; (4) limit-ing the use of MFA sonar in geographic “choke points”; (5) shutting down MFA sonar when a marine mammal is spotted within 2,200 yards of a vessel; and (6) powering down MFA sonar by 6 dB during significant surface ducting conditions, in which sound travels further than it otherwise would due to temperature differences in adjacent layers of water.
Here’s why appointing rational justices to the SC is important: Justices Roberts, Alito, Scalia and Thomas voted to overrule the Ninth Circuit. Breyer and Stevens concurred in the holding but dissented from some of the other reasoning.
But Ginsberg and Souter would have upheld the Ninth Circuit and preserved the injunction, arguing that the harm alleged to sea creatures would outweigh the Navy’s need to protect us.
Compare and contrast.
Roberts, Alito, Scalia, Thomas:
As explained in the next section, even if plaintiffs have shown irreparable injury from the Navy’s training exercises, any such injury is outweighed by the public interest and the Navy’s interest in effective, realistic training of its sailors. A proper consideration of these factors alone requires denial of the requested injunctive relief. For the same reason, we do not address the lower courts’ holding that plaintiffs have also established a likelihood of success on the merits.
Ginsberg and Souter:
In my view, this likely harm—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—cannot be lightly dismissed, even in the face of an alleged risk to the effectiveness of the Navy’s 14 training exercises. There is no doubt that the training exercises serve critical interests. But those interests do not authorize the Navy to violate a statutory command, especially when recourse to the Legislature remains open. “Of course, military interests do not always trump other considerations, and we have not held that they do.”
Any questions?
Full opinion is here.
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