The Supreme Court yesterday heard arguments in Winter v. Natural Resources Defense Council, a case revolving around Navy sonar exercises off the coast of California and their potential impact on the environment.
Justices on both sides of the normal ideological division seemed unpersuaded by the NRDC. Justice Breyer at one time asked,
I will express a little frustration. Not your fault. But why couldn’t you work this thing out? I mean, they are willing to give you quite a lot of conditions, and you say, well, we have got to have more conditions. And you are asking us who know nothing about whales and less about the military to start reading all these documents to try to figure out who’s right in the case where the other side says the other side is totally unreasonable. And the issue at law seems to be something that is going to last for two months. So — so, why? What is so — what is the important thing here?
The argument eventually came down to deciding whether or not the Navy was required to file an Environmental Impact Statement before it could proceed with the sonar training. An Environmental Assessment had been conducted which concluded that the training was most likely harmless to marine mammals in the area. The Navy failed to file a more comprehensive EIS and Justice Souter noted that the Navy was acting “in a state of some degree of ignorance greater than would e the case if it .. had done the EIS” Justice Scalia was adamant that the only harm caused here was procedural – that no EIS had been filed – and that was insufficient to confer standing to the NRDC to file against the Navy.
The NRDC argued quite simply that the original finding by the district court was justified by evidence in the case and unless it was ‘clearly erroneous,’ it should not be overturned by this court. Justice Alito found it odd to justify a single judge’s opinion of a military exercise overturning the determination of the Military.
In the end, it looks like Justice Breyer will almost certainly side with the Chief Justice and Justices Scalia and Alito. As usual, Justice Thomas didn’t say anything but if you assume that he will side with his fellow conservatives, then the case is closed. Justice Kennedy is harder to read although he expressed some skepticism at the NRDC’s claims and to be honest- the standing argument is pretty persuasive. The NRDC also pushed the idea that beaked whales were being beached en mass by the Navy’s use of sonar and the Navy refuted that claim, but the science of the matter may be lost on both sides. The conservatives will likely claim that the experts and evidence point in their direction, the liberals will claim that it weighs in their favor.