Debate Continues Over Impact of Supreme Court's Whale Ruling on Enviros' Bids to Halt Projects

Almost two years ago, the Supreme Court ruled that the Navy could continue maneuvers off the coast of California despite concerns that the use of sonar could harm whales. Most of the commentary in the immediate aftermath of the 7-2 decision in Winter v. Natural Resources Defense Council focused on national security trumping environmental concerns. End of story. But the opinion, written by Chief Justice John Roberts, also had broader implications on the ability of environmentalists to persuade judges to grant preliminary injunctions, which have the effect of putting a stop to potential environmental damage before, from activists' perspective, it is too late. The impact would be felt especially in the nine Western states within the jurisdiction of the San Francisco-based 9th U.S. Circuit Court of Appeals, which was the court that had ruled in favor of NRDC in the whale case and hears a large number of environmental cases. The whale case came to the Supreme Court because the NRDC had persuaded a federal judge in the Central District of California to impose restrictions on Navy activity because of the potential harm to whales and other marine mammals. On appeal, the 9th Circuit agreed to keep the preliminary injunction in place, a decision the Supreme Court reversed. At the time of the November 2008 ruling, experts said the case would make it harder for environmental groups to get preliminary injunctions because the Supreme Court stated that there needs to be "the likelihood of irreparable harm." Previously, in the 9th Circuit, litigants only had to show the "possibility" of irreparable harm...more