Constitutional Law

Supreme Court ruling on whales and sonar and NEPA

Winters v. Natural Resources Defense Council, handed down this morning.

I'm posting it because the majority opinion isn't about whales and sonar: it's about injunction as a remedy, which is what you aim for in a test case. You start out seeking a preliminary injunction (order the other guy to stop it until we can get this case to trial) and end up seeking a permanent injunction (order him to stop it, permanently, after trial).

Preliminary injunction: there are four criteria, the two most important being likelihood of success on the merits (when it does get to trial you'll probably win) and likelihood of irreparable harm happening before trial if the conduct isn't stopped.

9th Circuit (and possibly others, I don't know) had a relatively permissive standard there. If you show a strong probability of success, you can get by with a lower probability of irreparable harm, the two can balance off, and with really high odds of winning you could get by with merely a "possibility" of irreparable harm.

Supreme Court says no to that idea. A plaintiff must prove both probability of success and likelihood of irreparable harm, and one doesn't balance off the other.

And at the end, it says that a permanent injunction is treated the same as a preliminary, except you must win on the merits. That means you have to meet the four criteria, including a showing of irreparable harm. Just because you won on the merits doesn't mean you automatically get an injunction (tho you may get declaratory relief).

I wonder why NRDC brought it in the first place. The Navy had gotten a "dispensation" as it were from the Council on Environmental Quality, which administers NEPA, the statute they sued under. An injunction limiting Navy anti-sub training doesn't seem like a good idea. Maybe they figured they were in the 9th Circuit, which loves enviro suits, but an injunction of this type would be something the Supreme Court would snap at. Which it did, and now NRDC is stuck with case law that hurts its lawsuits.

Full post as published by Of Arms and the Law on November 12, 2008 (boomark / email).