November 12, 2008

Whales and dolphins suffer a bitter defeat in the Supreme Court

Chief Justice Roberts writes for the majority in Winter v. Natural Resources Defense Council. He begins with a quote from George Washington: "To be prepared for war is one of the most effectual means of preserving peace." And the Navy wins.
The plaintiffs are the Natural Resources Defense Council, Jean-Michael Cousteau (an environmental enthusiast and filmmaker), and several other groups devoted to the protection of marine mammals and ocean habitats. They contend that MFA sonar can cause much more serious injuries to marine mammals than the Navy acknowledges, including permanent hearing loss, decompression sickness, and major behavioral disruptions. According to the plaintiffs, several mass strandings of marine mammals (outside of SOCAL) have been “associated” with the use of active sonar. They argue that certain species of marine mammals—such as beaked whales—are uniquely susceptible to injury from active sonar; these injuries would not necessarily be detected by the Navy, given that beaked whales are “very deep divers” that spend little time at the surface.
An enthusiast, eh?
[E]ven if plaintiffs have shown irreparable injury from the Navy’s training exercises, any such injury is outweighed by the public interest and the Navy’s interest in effective, realistic training of its sailors. A proper consideration of these factors alone requires denial of the requested injunctive relief....

For the plaintiffs, the most serious possible injury would be harm to an unknown number of the marine mammals that they study and observe. In contrast, forcing the Navy to deploy an inadequately trained antisubmarine force jeopardizes the safety of the fleet. Active sonar is the only reliable technology for detecting and tracking enemy diesel-electric submarines, and the President—the Commander in Chief—has determined that training with active sonar is “essential to national security.”

Justice Ginsburg dissents, joined by Justice Souter:
Flexibility is a hallmark of equity jurisdiction.... [C]ourts do not insist that litigants uniformly show a particular, predetermined quantum of probable success or injury before awarding equitable relief....

The Navy’s own EA predicted substantial and irreparable harm to marine mammals. Sonar is linked to mass strandings of marine mammals, hemorrhaging around the brain and ears, acute spongiotic changes in the central nervous system, and lesions in vital organs....

In my view, this likely harm—170,000 behavioral disturbances, including 8,000 instances of temporary hearing loss; and 564 Level A harms, including 436 injuries to a beaked whale population numbering only 1,121—cannot be lightly dismissed, even in the face of an alleged risk to the effectiveness of the Navy’s 14 training exercises.
(There's also an opinion by Justice Breyer, joined by Justice Stevens, taking a middle position.)

30 comments:

Hoosier Daddy said...

Justice Ginsburg In my view, this likely harm—.....cannot be lightly dismissed, even in the face of an alleged risk to the effectiveness of the Navy’s 14 training exercises.

To paraphrase Chevy Chase in X-mas Vacation, if Ginsburg had not dissented I couldn't be more shocked if I woked up with my head sown to the carpet.

Original George said...

HONOLULU–In an announcement with grave implications for the primacy of the species of man, marine biologists at the Hawaii Oceanographic Institute reported Monday that dolphins, or family Delphinidae, have evolved opposable thumbs on their pectoral fins.

SGT Ted said...

What it shows is that the courts leftists would weaken the Nations Navy in favor of animals, who aren't mentioned in the COnstitution.

Nichevo said...

I'm trying to think of the proper machine tool to run around the inside of Judge Ginsburg's mouth till she decides to retire, but the name escapes me. Not a router, not a jigsaw...Depends on whether her teeth are real.

Has she ever weighed anything as being less important than national security? There is certainly nothing she knows less about.

On the tech solution front, can't they clear the zone first with warning blasts of annoying but nonlethal sonar?

Maguro said...

China's Chief of Naval Operations must find this case amazing and hilarious.

MadisonMan said...

So is there a reason that the Armed Forces weren't granted an exclusion when the law was written?

Hoosier Daddy said...

China's Chief of Naval Operations must find this case amazing and hilarious.

I think its safe to say any nation with a navy finds it hilarious.

I still think that Osama is sitting in a cave somewhere thinking: "How the fuck can I be losing to these idiots?"

John Lynch said...

The loss of one aircraft carrier to a submarine would kill more of our men and women than the entire Iraq war.

Sorry, whales, but I care more about people.

Subs have gotten so quiet we can't hear them anymore. Without active sonar they are invisible.

SteveR said...

Since this fits into my small universe of "expertise", I can say a couple things with confidence, although I can not say anything more appropriate than Hossier Daddy.

1. The NRDC when it is not crying wolf, can be found using environmnetal laws (i.e. Citizens Suits) to extort, er I mean get money from organizations basically by threatening to sue, but withdrawing for a price far below what it would cost a company even if they were to fight and win.

2. The people who write the Environmental Assessments for DoD are contractors who at best will overstate any potential impacts to maintain a prentence of objectivity and because using worse case scenarios is the most defensible route.

All that to say, I think SCOTUS did the right thing.

SGT Ted said...

So is there a reason that the Armed Forces weren't granted an exclusion when the law was written?

Because when this law was written, people didn't think of a group of obseesive compulsive leftwing, anti-military Enviro-religious nutbars would sue everytime some animal might be harmed.

John Burgess said...

When I was in university in DC, lo these many years ago, one could order whale steaks in popular restaurants. Even in maximalist leftist restaurants around DuPont Circle!

Palladian said...

"170,000 behavioral disturbances, including 8,000 instances of temporary hearing loss; and 564 Level A harms,"

And that was Justice Ginsburg's record in the 2006-7 term alone!

Simon said...

I have difficulty understanding why these plaintiffs have standing, even by the general standards of the court's apallingly lax treatment of plaintiffs in environmental cases. What exactly is the injury that these people have suffered or will suffer? The court doesn't mention any of this, which I find a little odd given that Roberts is up there with Sykes as a standing hawk.

Trooper York said...

Hey this sonar stuff is a lot of bullshit.

I didn't buy it when Dan Marino said that was why he couldn't win the Super Bowl and I don't buy it now.

What a bunch of whiney losers.

Did I tell you lately that the Giants won the Super Bowl?

Simon said...

I mean, Ann's post title says it all: "Whales and dolphins suffer a bitter defeat in the Supreme Court." Whales and dolphins were the real parties in interest, but they aren't the ones who brought the suit; I'm not saying that no one else but them could have standing, but alarm bells should have been going off.

Skyler said...

Wow, it's so nice when common sense actually wins.

Skyler said...

It's almost Buddhist to be worried about every dolphin with hurt ears or every snail that gets squashed by a tank tread.

Let's all sing, "Every sperm whale is sacred . . ."

knox said...

What a coincidence, they addressed this on "Go, Diego, Go!" this morning.

Cedarford said...

Perhaps a plus of Obama is that he has a high chance of getting rid of BOTH Ginsburg and Souter.
I don't think he can do worse than the two, although his replacements will be around a long, long time.

Daniel said...

Ah yes, why should we worry about

"every dolphin with hurt ears"?

That reminds me: why should we worry about terrorists getting smacked around a little?

Here's my understanding of the decision-making process:
Step 1. Define injury down.
Step 2. Define national security stakes up.
Step 3. Dance with straw man!

Robert said...

Skyler, it would be nicer if common sense won unanimously...or even better, if it resulted in junk cases like this being vaporized long before reaching the Supremes.

Simon Kenton said...

Anybody else for a constitutional amendment limiting supreme court justices to 1 term of 18 years?

Oligonicella said...

"170,000 behavioral disturbances, including 8,000 instances of temporary hearing loss; and 564 Level A harms,"

That line is simply bullshit. I have a great interest in cetaceans because of their language abilities and I see no way someone could actually 'link' just short of a quarter million behavioral disturbances with sonar. Whales have beached themselves since humans started noticing them. Add to that my intense doubt about their being able to tell there's a hearing loss in wild cetaceans at all.

Host with the Most said...

Sorry, but Ginsburg and Souter are fucked in the brain. They are dangerous to the health and well being of the species American human.

Freeman Hunt said...

This does, at least, make me feel a little better about Obama's possible Supreme Court picks.

On this occasion, I agree with Cedarford. I don't see how we can do worse than Ginsburg and Souter.

Simon, you made me picture a whale wearing a suit waddling into a courthouse on the fins of his tail to file a lawsuit.

DKWalser said...

Regarding the question of standing: Environmental groups have standing because Congress (un)wisely gave citizens standing to sue to enforce environmental laws. It was one of those ideas that sounded good at the time, but it has produced disastrous consequences. As has been noted above, these groups frequently use their ability to sue to block projects they don't like, delay projects they cannot stop, and extort money from the promoters of projects the groups don't object to too much.

Simon said...

DKWalser - I mean, what's their Article III standing. Congress can expand the range of things that qualify as an injury, but it can't obviate the requirement that at least one plaintiff be injured, per Lujan. What, specifically, is the injury here?

SteveR said...

Simon, I am not an expert on the issue of standing but the reality is that many companies have been sued under these Citizens Suit provisions and its been going on for a long time so I can't imagine your concern hasn't been raised.

I do know the basis for a suit has to be that the agency in charge of enforcing some regulation is seen as not doing its job, so the citizens can go after its own civil penalties, so to speak.

I had a situation with a previous employer where the company was having difficulty staying in compliance with new requirements and was spending a lot of money trying to upgrade a treatment process. The city was aware of the problems and was willing to give us some time, knowing there was no short term damage taking place in the mean time.

But in short order Friends of the Honeysuckle Green Minnow came around and for $50k "donation, they went away and used the money to dig up some dirt on another company.

Father Martin Fox said...

Would those who know the law be willing to comment on the following question?

I was thinking, in a case like this, how could national security and the determination of the commander-in-chief not trump?

I'm not saying the President can do anything; but Roberts reasoning, in the pulled quote, seems so obvious: the commander in chief says this training is essential (well duh!). Is it really the Supreme Court's job to second-guess such a determination?

Here's a question to our wonderful blog-hostess: you've said how balanced the Supreme Court is: isn't this case an example of a weird balance between common sense--which got 5-1/2 votes (counting Stevens as half), and constitutional bizarro-world got 3-1/2 votes?

Nichevo said...

Oh shut up, fox, you voted for obama, who cares what you think? Stop talking for once and listen for all those screaming fetuses being chopped up by your guy and his minions. You gave him 4 years of power, you gave him 4 years of SCOTUS nominations, if you don't like this verdict, wait a bit, it'll change.