Jamison Colburn has two posts on Dorf on Law discussing Winter v. NRDC, in which the Supreme Court will hear the Navy's challenge to a court injunction limiting the use of a high-powered sonar system that may harm whales.
In his first post, Colburn considers what, precisely, would constitute the sort of "emergency" that could justify the Navy's failure to complete an environmental impact statement under the National Environmental Policy Act.
For perhaps strategic and perhaps tactical reasons, then, the Navy has never argued (at least in this case) that its active sonar is benign. What it argues is that the risks to marine life are justifiable under the governing law and that, if necessary, they can be authorized by the President under his authority as Commander in Chief. Which this President did. Proudly. And it turns out that, at least on the face of the rules at issue, the statutory and regulatory arguments may hold a fair bit of water. . . .His second post then considers the Winter case's potential impact on NEPA and whether the law's procedural requirements remain an effective deterrent to environmentally harmful government action.
Let us suppose the Department of Defense had decided from the start to find whatever means it could to exempt its operation from the public, proceduralistic routine of an EIS. Let us even suppose that it had done so with the White House's blessing. Should they have made better legal arguments or was this simply a matter of not anticipating the appellate panel they got (B. Fletcher, Reinhardt, and Nelson)? Was it an "emergency circumstance" that a district judge unexpectedly favored NRDC's claims about the sonar? If not, then consider this: could the Navy have simply delayed scheduling the training exercises to leave inadequate time for an EIS within its "preparedness" criteria—seemingly triggering Section 1506.11 in the most pristine, protected sense possible? All of that was and is completely within the power of the Executive to manipulate.
NEPA has always been an analytical requirement only—it does not and has never required that one decision be made instead of another. Don't be fooled, though. Its normative core has always piggy-backed on a part of the country's 'overlapping consensus' that almost certainly creates a presumption in favor of environmentally cautious decisions (that part of America that says "don't take any unnecessary risks with nature or our natural resources"). Having to document and publish a "detailed statement" justifying the use of this extremely powerful sonar is its own kind of deterrent. In the Sonar Case, the Supreme Court has agreed to decide whether an agency's effort to avoid discussing such trade-offs in public is due deference in its own right—notwithstanding a preexisting judicial action on the same matter. The agency in this case has played the trump of all trumps and it will be most interesting to see how the Court responds.For those interested in the case, both posts are worth a read.