The Ecological Society of America filed an amicus, or friend of the court, brief in support of NRDC in the Winter v. NRDC case pending before the U.S. Supreme Court. Its brief is here.
The Ecological Society of America's arguments are three-fold:
I. Scientific evidence supports the injunction. The peer-reviewed, published literature has led scientists to conclude that “compelling evidence” links military sonar to death and injury in marine mammals. The Navy, too, admits the connection but downplays the effects of sonar on cetacean populations. But the scientific evidence leaves no room for doubt: mid-frequency active (MFA) sonar harms cetaceans through direct acoustic trauma, through behavior modifications or other effects that make whales vulnerable to gas emboli; through adverse effects on the animals’ ability to communicate, forage, avoid predators, and breed; and through “ripple effects” that affect the marine ecology and other marine species in ways potentially disproportionate to the harm experienced by the mammals themselves. Accordingly, the courts below were well on target in concluding that plaintiffs here established, to a “near certainty,” that the Navy’s use of MFA sonar in training exercises could cause irreparable harm.
II. There is no requirement that plaintiffs demonstrate species-level harm to obtain an injunction. Rather, looking to the statutory purpose of NEPA, injunctive relief is available to remedy environmental harm that results from uninformed agency action. See
Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 371 (1989) (NEPA’s “manifest concern [is] preventing uninformed action”; its purpose is to preclude agencies from acting on an incomplete record). The environmental injury stemming from a NEPA violation is irreparable when agency action reaches a tipping point, when investment in and commitment to the project is too advanced for an environmental impact statement to make a difference in the agency’s choices. Moreover, even if plaintiffs had to show irreparable injury to their memberships, such harm does not need to be at the species level to warrant injunctive relief. The irreparable injury inquiry focuses on whether the injury has an adequate legal remedy. Environmental injury will usually meet this standard. See Amoco Prod. Co. v. Village of Gambell, 480 U.S. 531, 545 (1987) (“Environmental injury * * * can seldom be adequately remedied by money damages and is often permanent or at least of long duration, i.e., irreparable.”). And here the district court concluded that the evidence demonstrated “to a near certainty” that MFA sonar would cause irreparable harm to the environment and to Plaintiffs’ standing declarants. Natural Res. Def. Council v. Winter, 530 F. Supp. 2d 1110, 1118 (C.D. Cal. 2008). In addition, harm to marine mammals, even at less than a population level, can have cascading ecological effects because of the key place these mammals occupy in their environment. Similarly, the aesthetic harm that plaintiffs themselves would suffer—loss of opportunity to view, study, and appreciate animals—has no adequate legal remedy and is sufficient to warrant injunctive relief.
III. Policy considerations and legal precedents both support preserving courts’ authority to grant tailored injunctions to remedy NEPA violations. It is the courts’ role to rigorously enforce NEPA’s requirements. Without the means to do so—including injunctions when appropriate—NEPA would be rendered ineffective not just as to the procedural obligations it imposes but also as to the “significant substantive goals” that this Court has recognized that NEPA embodies.
Vermont Yankee Nuclear Power Corp. v. Natural Res. Def. Council, 435 U.S. 519, 558 (1978). Without the threat that agency action might be enjoined, courts’ NEPA-enforcement function would be toothless, and agencies would have no incentive to comply with NEPA or prepare an environmental impact statement. Moreover, this Court’s decisions involving procedural violations of environmental statutes—along with decades of NEPA cases—confirm that courts must use traditional equitable principles in enjoining NEPA violations. In case after case, this authority has included the flexibility to craft injunctions that prevent environmental harm while permitting some agency action to continue.
My earlier post with other amicus favoring the NRDC is here.
The brief we filed on behalf of nine retired Admirals, the Navy League and other civic organizations is here. The California Forestry Association's brief here, the Pacific Legal Foundation's brief here, and the Washington Legal Foundation's brief here.
The Government's Brief is here. My earlier posts are here, here, and here.
The opinion below is here, the government's petition here, NRDC's Opposition is here and the government's Reply is here.
