SCOTUS takes on prelim. injunction standard in Navy case

A divided Supreme Court vacated in part a preliminary injunction placing limits on the Navy’s use of active sonar during submarine training exercises.

The decision was highly fact-based, but also focused on the standard for injunctive relief. Assuming that the Navy had violated the National Environmental Policy Act (NEPA), the Court held that the relief granted below unduly threatened national security. The Court emphasized the injunctive relief is “never awarded as of right,” and stated that even following a final decision on the merits the relief awarded would still be inappropriate because the balance of equities and the public interest strongly favored the Navy. Significantly, the Court stated that the Ninth Circuit’s “possibility of irreparable harm” standard is “too lenient”; the correct standard is whether irreparable harm is “likely.” Winter v. Nat’l Resources Def. Council, --- S.Ct. ----, 2008 WL 4862464 (Nov. 12, 2008) (No. 07-1239).

 

Chief Justice Roberts wrote for the Court, joined by Justices Alito, Thomas, Kennedy and Scalia. Justice Breyer wrote an opinion concurring in part, joined in part by Justice Stevens. Justice Ginsburg wrote a dissent joined by Justice Souter.

 

          NRDC claimed that the Navy violated the NEPA, 42 U.S.C. § 4321 et seq., by failing to produce an environmental impact statement (EIS) before beginning its training exercises of the coast of Southern California, and that the exercises posed a threat to many marine mammal species. As Ginsburg’s dissent explains, an agency is not bound by the conclusions of an EIS; however, NEPA’s purpose is to ensure that environmental harm and possible mitigating measures are considered before a government action is taken. Thus, the Navy’s assurances that an EIS would be completed concurrent with the exercises themselves was cold comfort. The district court entered, and the Ninth Circuit affirmed, a PI placing six restrictions on the exercises in order to minimize the harm. The Navy acquiesced to four of them, but challenged two: shutting down active sonar when a marine mammal is spotted within 2,200 yards of a vessel; and power sonar down during significant “surface ducting” conditions, when it is less useful.

 

          With regard to the standard for irreparable harm, the Court stated flatly:

the Ninth Circuit's “possibility” standard is too lenient. Our frequently reiterated standard requires plaintiffs seeking preliminary relief to demonstrate that irreparable injury is likely in the absence of an injunction. Issuing a preliminary injunction based only on a possibility of irreparable harm is inconsistent with our characterization of injunctive relief as an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief. (citations omitted)

This can likely be regarded as dicta, because the Court recognized that this formulation may not have affected the Ninth Circuit’s analysis of irreparable harm. Indeed, the Ninth Circuit affirmed the district court’s finding of a “near certainty” of irreparable harm.  The Court also found the district court’s analysis of irreparable harm flawed because its final decision did not consider the Navy’s acquiescence to four of the six conditions, and thus did not focus on the harm likely to flow specifically from the two challenged conditions.

 

          The Court further held that any injury to environmental interests “is outweighed by the public interest and the Navy's interest in effective, realistic training of its sailors.” The majority went on in some detail and considerable color about the importance of the national defense in general, antisubmarine defense in particular, the importance of judicial deference to “specific, predictive judgments” by military leaders, and the affidavits of military officials that the two restrictions would unduly interfere with the certification of submarine “strike groups.” Although “military interests do not always trump other considerations,” the Court concluded, the balance of harms and the public interest in this case were not a close question.

 

          The Court emphasized that it was not reaching the merits of whether the Navy violated the NEPA, but that “a permanent injunction, after final decision on the merits, along the same lines as the preliminary injunction,” would be an abuse of discretion for the same reasons. Because injunctive relief is “never awarded as of right,” even after a final decision on the merits it can be denied based on the public interest. “Given that the ultimate legal claim is that the Navy must prepare an EIS, not that it must cease sonar training, there is no basis for enjoining such training in a manner credibly alleged to pose a serious threat to national security.” The appropriate relief would be ordering the development of an EIS, which the Navy is already doing.

 

          Justice Breyer’s concurrence underscored that when an agency improperly undertakes a program without an EIS, “conditions designed to mitigate interim environmental harm may well be appropriate.” However, he stated that the lower court rulings failed to adequately explain their balance-of-harms findings. In a section not joined by Justice Stevens, he said that modified conditions imposed by the Ninth Circuit in a stay pending Supreme Court review “reflect the best equitable conditions that can be created in the short time available before the exercises are complete and the EIS is ready,” and should remain in place.

 

          Justice Ginsburg would have upheld the challenged conditions. She pointed out that the Navy had chosen to undermine the core requirement of the NEPA rather than seek an exemption from Congress, which had been done in the past.

 

           It is important to note what the Court does not hold. It does not hold that injunctive relief to prevent environmental harm is always inappropriate under the NEPA, or even that it is always inappropriate against the military. It does not hold that the NEPA permits the development of post hoc EISes. And it is at least unclear whether the Court holds that injunctive relief invariably requires a likelihood of irreparable harm that is greater than 50%. Ginsburg’s dissent sought to minimize the majority’s discussion of the irreparable harm standard. She stated that

Flexibility is a hallmark of equity jurisdiction. Consistent with equity's character, courts do not insist that litigants uniformly show a particular, predetermined quantum of probable success or injury before awarding equitable relief. Instead, courts have evaluated claims for equitable relief on a ‘sliding scale,’ sometimes awarding relief based on a lower likelihood of harm when the likelihood of success is very high. This Court has never rejected that formulation, and I do not believe it does so today.

Ginsburg cites the same treatise – Wright & Miller’s Federal Practice & Procedure – cited by Roberts. While the Ninth Circuit may be the only one to consistently use the phrase “possibility of irreparable harm,” other circuits have repeatedly adhered to the “sliding scale” approach. Thus, the impact, if any, of Winter on the preliminary injunction standard remains to be seen.