Winter v. Natural Resources Defense Council,

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It is so ordered.

Opinion of BREYER, J.

SUPREME COURT OF THE UNITED STATES
No. 07–1239

DONALD C. WINTER, SECRETARY OF THE NAVY,
ET AL., PETITIONERS v. NATURAL RESOURCES
DEFENSE COUNCIL, INC., ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[November 12, 2008]

JUSTICE BREYER, with whom JUSTICE STEVENS joins as to Part I, concurring in part and dissenting in part.

As of December 2006, the United States Navy planned to engage in a series of 14 antisubmarine warfare training exercises off the southern California coast. The Natural Resources Defense Council, Inc., and others (hereinafter NRDC) brought this case in Federal District Court claiming that the National Environmental Policy Act of 1969 (NEPA) requires the Navy to prepare an environmental impact statement (EIS) (assessing the impact of the exercises on marine mammals) prior to its engaging in the exercises. As the case reaches us, the District Court has found that the NRDC will likely prevail on its demand for an EIS; the Navy has agreed to prepare an EIS; the District Court has forbidden the Navy to proceed with the exercises unless it adopts six mitigating measures; and the Navy has agreed to adopt all but two of those measures.

The controversy between the parties now concerns the two measures that the Navy is unwilling to adopt. The first concerns the “shutdown zone,” a circle with a ship at the center within which the Navy must try to spot marine mammals and shut down its sonar if one is found. The controverter condition would enlarge the radius of that circle from about one-tenth of a mile (200 yards) to one and one-quarter mile (2,200 yards). The second concerns special ocean conditions called “surface ducting conditions.” The controverter condition would require the Navy, when it encounters any such condition, to diminish the sonar’s power by 75%. The Court of Appeals affirmed the District Court order that contained these two conditions. 518 F. 3d 658, 703 (CA9 2008).

I

We must now decide whether the District Court was legally correct in forbidding the training exercises unless the Navy implemented the two controverter conditions. In doing so, I assume, like the Court, that the NRDC will prevail on its demand for an EIS. (Indeed, the Navy is in the process of preparing one.) And, I would ask whether, in imposing these conditions, the District Court properly “balance [d the] harms.” See, e.g., Amoco Production Co. v. Gambell, 480 U. S. 531, 545 (1987). Respondents’ (hereinafter plaintiffs) argument favor-ing the District Court injunction is a strong one. As JUS-TICE GINSBURG well points out, see post, at 4–5 (dissenting opinion), the very point of NEPA’s insistence upon the writing of an EIS is to force an agency “carefully” to “consider . . . detailed information concerning significant environmental impacts,” while “giv[ing] the public the assurance that the agency ‘has indeed considered environmental concerns in its decision-making process.’” Robertson v. Methow Valley Citizens Council, 490 U. S. 332, 349 (1989). NEPA seeks to assure that when Government officials consider taking action that may affect the environment, they do so fully aware of the relevant environmental considerations. An EIS does not force them to make any particular decision, but it does lead them to take environmental considerations into account when they decide whether, or how, to act. Id., at 354. Thus, when a decision to which EIS obligations attach is made without the informed environmental consideration that NEPA requires, much of the harm that NEPA seeks to prevent has already taken place. In this case, for example, the absence of an injunction means that the Navy will proceed with its exercises in the absence of the fuller consideration of environmental effects that an EIS is intended to bring. The absence of an injunction thereby threatens to cause the very environmental harm that a full pre action EIS might have led the Navy to avoid (say, by adopting the two additional mitigation measures that the NRDC proposes). Consequently, if the exercises are to continue, conditions designed to mitigate interim environmental harm may well be appropriate.

On the other hand, several features of this case lead me to conclude that the record, as now before us, lacks adequate support for an injunction imposing the two controverter requirements. First, the evidence of need for the two special conditions is weak or uncertain. The record does show that the exercises as the Navy originally pro-posed them could harm marine mammals. The District Court found (based on the Navy’s study of the matter) that the exercises might cause 466 instances of Level A harm and 170,000 instances of Level B harm. App. to Pet. For Cert. 196a–197a. (The environmental assessment (EA)actually predicted 564 instances of Level A harm. See App. 223–224.) The study defines Level A injury as “any act that injures or has the significant potential to injure a marine mammal or marine mammal stock in the wild” through “destruction or loss of biological tissue,” whether “slight to severe.” Id., at 160. It defines Level B harm as “‘any act that disturbs or is likely to disturb a marine mammal . . . by causing disruption of natural behavioral patterns including, but not limited to, migration, surfacing, nursing, breeding, feeding, or sheltering to a point where such behaviors are abandoned or significantly altered’” and describes it as a “short term” and "temporary" “disturbance.” Id., at 161, 175.

The raw numbers seem large. But the parties argue about the extent to which they mean likely harm. The Navy says the classifications and estimates err on the side of caution. (When in doubt about the amount of harm to a mammal, the study assumed the harm would qualify as Level A harassment. Id., at 200.) The Navy also points out that, by definition, mammals recover from Level B injuries, often very quickly. It notes that, despite 40 years of naval exercises off the southern California coast, no injured marine mammal has ever been found. App. to Pet. for Cert. 274a–275a. (It adds that dolphins often swim alongside the ships. Id., at 290, 346.) At the same time, plaintiffs point to instances where whales have been found stranded. They add that scientific studies have found a connection between those beaching and the Navy’s use of sonar, see, e.g., App. 600–602, and the Navy has even acknowledged one stranding where “U. S. Navy mid-frequency sonar has been identified as the most plausible contributory source to the stranding event,” id., at 168.
Given the uncertainty the figures create in respect to the harm caused by the Navy’s original training plans, it would seem important to have before us at least some estimate of the harm likely avoided by the Navy’s decision not to contest here four of the six mitigating conditions that the District Court ordered. Without such evidence, it is difficult to assess the relevant harm—that is, the environmental harm likely caused by the Navy’s exercises with the four uncontested mitigation measures (but without the two contested mitigation measures) in place.
Second, the Navy has filed multiple affidavits from Navy officials explaining in detail the seriousness of the harm that the delay associated with completion of this EIS(approximately one year) would create in respect to the Navy’s ability to maintain an adequate national defense. See generally App. to Pet. for Cert. 260a–357a. Taken by themselves, those affidavits make a strong case for the proposition that insistence upon the two additional mitigating conditions would seriously interfere with necessary defense training.
The affidavits explain the importance of training in antisubmarine warfare, id., at 263a; the need to use active sonar to detect enemy submarines, id., at 266a–267a, App. 566; the complexity of a training exercise involving sonar, App. to Pet. for Cert. 343a; the need for realistic conditions when training exercises take place, id., at 299a–300a, App. 566; the “cascading” negative “effect” that delay in one important aspect of a set of coordinated training exercises has upon the Navy’s ability “to provide combat ready forces,” App. to Pet. for Cert. 343a; the cost and disruption that would accompany the adoption of the two additional mitigating conditions that the NRDC seeks, ibid.; the Navy’s resulting inability adequately to train personnel, id., at 278a; the effectiveness of the mammal-protecting measures that the Navy has taken in the past, id., at 285a–298a; and the reasonable likelihood that the mitigating conditions to which it has agreed will prove adequate, id., at 296a.

Third, and particularly important in my view, the District Court did not explain why it rejected the Navy’s affidavit-supported contentions. In its first opinion enjoining the use of sonar, the District Court simply stated:
“The Court is . . . satisfied that the balance of hard-ships tips in favor of granting an injunction, as the harm to the environment, Plaintiffs, and public interest outweighs the harm that Defendants would incur if prevented from using [mid-frequency active (MFA)]sonar, absent the use of effective mitigation measures, during a subset of their regular activities in one part of one state for a limited period.” Id., at 217a–218a. Following remand from the Court of Appeals, the District Court simply repeated, word for word, this same statement. It said: “The Court is . . . satisfied that the balance of hard-ships tips in favor of granting an injunction, as the harm to the environment, Plaintiffs, and public interest outweighs the harm that Defendants would incur(or the public interest would suffer) if Defendants were prevented from using MFA sonar, absent the use of effective mitigation measures, during a subset of their regular activities in one part of one state for a limited period.” 530 F. Supp. 2d 1110, 1118 (CD Cal. 2008).
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