Winter v. Natural Resources Defense Council

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Winter v. Natural Resources Defense Council
Seal of the United States Supreme Court.svg
Argued October 8, 2008
Decided November 12, 2008
Full case name Donald C. Winter, Secretary of the Navy, et al., Petitioners v. Natural Resources Defense Council, Inc., et al.
Docket nos. 07-1239
Citations 555 U.S. 7 (more)
129 S.Ct. 365
Prior history Certiorari to the United States Court of Appeals for the Ninth Circuit
Military preparedness outweighs environmental concerns, as Navy needs to train its crews to detect modern, silent submarines, and it cannot be forced to turn off its sonar when whales are spotted nearby.
Court membership
Case opinions
Majority Roberts, joined by Scalia, Kennedy, Thomas, Alito
Concur/dissent Breyer, joined by Stevens
Dissent Ginsburg, joined by Souter

Winter v. Natural Resources Defense Council, 555 U.S. 7 (2008), was a case heard before the United States Supreme Court on October 8, 2008 concerning the United States Navy ability to use sonar during drills causing possible harm to whales and other marine mammals.[1]

In balancing military preparedness against environmental concerns, the majority came down solidly on the side of national security. Chief Justice Roberts wrote in his opinion, “the most serious possible injury would be harm to an unknown number of marine mammals that they study and observe.” By contrast, he continued, “forcing the Navy to deploy an inadequately trained antisubmarine force jeopardizes the safety of the fleet.”[2]

Environmentalists contend that the sonar has a possible deafening effect on the whales. They said studies conducted around the world have shown the piercing underwater sounds cause whales to flee in panic or to dive too deeply. Whales have been found beached in Greece, the Canary Islands and in the Bahamas after sonar was used in the area, and necropsies showed signs of internal bleeding near the ears.[3]

Background and procedural history[edit]

The Navy scheduled 14 training exercises through January 2009 off the coast of southern California. These exercises involve the use of “mid-frequency active sonar” to detect enemy submarines. Environmentalists claim that the high decibel levels used harm whales, causing beach strandings. In February 2007, however, the Navy issued an environmental impact assessment under the National Environmental Policy Act (NEPA), concluding that the use of mid-frequency active sonar during the exercises would cause minimal harm to marine mammals.

Petitioners, mostly environmental groups, sought declaratory and injunctive relief against the exercises, on the ground that they violated NEPA, plus other environmental laws not material to the Supreme Court decision. The district court granted a preliminary injunction barring conduct of the exercises. On remand from the Court of Appeals for the Ninth Circuit, the district court modified the preliminary injunction to allow the Navy to use the sonar if it used mitigation measures. On the Navy’s second appeal, challenging two of the mitigation measures, the Ninth Circuit affirmed the modified injunction,[4] noting that plaintiffs (petitioners in the Supreme Court) had carried their burden of showing a “possibility” of irreparable injury and that the balance of hardships weighed in favor of plaintiffs.

Opinion of the court[edit]

The majority opinion held that as an initial matter the Ninth Circuit’s “possibility” test for issuance of a preliminary injunction is too lenient; plaintiffs must show that irreparable injury is “likely” in the absence of an injunction. However, the Court continued, even if plaintiffs had shown irreparable injury (and, too, likelihood of success on the merits), it is “plainly outweighed” by the Navy’s interest in effective, realistic training of its sailors. That factor alone requires denial of the requested injunctive relief. For the plaintiffs, the most serious possible injury would be the loss of ability to observe an unknown number of marine mammals. In light of the foregoing, the Court reversed the decision below and vacated the preliminary injunction.

Parenthetically, said the Court, the same balancing factor requiring vacatur of the preliminary injunction here would also bear on a challenge to any future permanent injunction.

The Court did not address the merits of the lawsuit—that is, whether the Navy exercises violated NEPA or the other federal environmental laws claimed to be violated.


Excerpted from CRS Report:[5]

This case was accepted by the Supreme Court in an unusual posture: as a challenge to a preliminary injunction, rather than to the merits of petitioners’ statutory claims. The Court made clear, however, that its perception of an overriding national security interest in the challenged training exercises should lead the district court to reject a final injunction as well, in the event the military is found to have violated an environmental statute. Note, too, that the United States had sought the judicial rejection of the Ninth Circuit’s “mere possibility” test for issuance of injunctions before, succeeding this time.

The Ninth Circuit is widely regarded as an environmentally friendly circuit, and the Supreme Court, in reversing it here, was doing what it has done many times before.[citation needed]

See also[edit]


  1. ^ Markon, Jerry; Eilperin, Juliet (2008-10-09). "NOAA, Court Focus On Marine Mammals: Ship Speed Limited; Sonar Use Debated". Washington Post. 
  2. ^ Liptak, Adam (2008-11-12). "Supreme Court Rules for Navy in Sonar Case". The New York Times. 
  3. ^ Savage, David G.; Weiss, Kenneth R. (2008-11-12). "Ruling unlikely to quell sonar storm". Los Angeles Times. 
  4. ^ 518 F.3d 658 (9 Cir. 2008).
  5. ^ U.S. Supreme Court Accepts Five Environmental Cases

External links[edit]