Protecting Marine Mammals (Wildlife Protection, Estruction and Extinction Series)

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WILDLIFE PROTECTION, DESTRUCTION AND EXTINCTION SERIES

PROTECTING MARINE MAMMALS

No part of this digital document may be reproduced, stored in a retrieval system or transmitted in any form or by any means. The publisher has taken reasonable care in the preparation of this digital document, but makes no expressed or implied warranty of any kind and assumes no responsibility for any errors or omissions. No liability is assumed for incidental or consequential damages in connection with or arising out of information contained herein. This digital document is sold with the clear understanding that the publisher is not engaged in rendering legal, medical or any other professional services.

WILDLIFE PROTECTION, DESTRUCTION AND EXTINCTION SERIES International Illegal Trade in Wildlife Liana Sun Wyler and Pervaze A. Sheikh 2008. ISBN: 978-1-60456-757-1 Fishing, Hunting, and Wildlife Associated Recreation Dustin N. Worley (Editors) 2009. ISBN: 978-1-60692-128-9 Wildlife: Destruction, Conservation and Biodiversity John D. Harris and Paul L. Brown (Editors) 2009. ISBN: 978-1-60692-974-2 Protecting Marine Mammals Marielle de Vries (Editor 2009. ISBN: 978-1-60741-569-5 National Parks and Rivers: Background, Protection and Use Issues Yolanda A. Reddy (Editor) 2009. ISBN: 978-1-60741-801-6 Wildlife Refuges: Factors and Concerns about Future Sustainability Earl B. Taylor (Editor) 2010. ISBN: 978-1-60692-683-3 National Parks: Biodiversity, Conservation and Tourism Angus O'Reilly and Doran Murphy (Editors) 2010. ISBN: 978-1-60741-465-0 Protection at the Wildlife - Urban Interface Ernesto Di Bello (Editosr) 2010. ISBN: 978-1-60876-093-0

Conservation Research in Uganda’s Forests: A Review of Site History, Research, and Use of Research in Uganda’s Forest Parks and Budongo Forest Reserve William Olupot and Andrew J. Plumptre 2010. ISBN: 978-1-60876-577-5 Conservation Research in Uganda's Savannas: A Review of Park History, Applied Research, and Application of Research to Park Management William Olupot, Luke Parry, Michelle Gunness and Andrew J. Plumptre 2010. ISBN: 978-1-60876-575-1 Biology, Evolution and Conservation of River Dolphins within South America and Asia Manuel Ruiz-Garcia, Joseph Mark Shostell (Editosr) 2010. ISBN: 978-1-60876-633-8 National Parks: Vegetation, Wildlife and Threats Grazia Polisciano and Olmo Farina (Editors) 2010. ISBN: 978-1-60876-742-7 Are Animals in Zoos Rather Conspicuous Than Endangered? Frynta, D., Marešová, J., Landová, E., Lišková, S., Šimková, O., Tichá, I., Zelenková, M., and Fuchs, R. 2010. ISBN: 978-1-61668-234-7 Are Animals in Zoos Rather Conspicuous Than Endangered? Frynta, D., Marešová, J., Landová, E., Lišková, S., Šimková, O., Tichá, I., Zelenková, M., and Fuchs, R. 2010. ISBN: 978-1-61668-499-0

WILDLIFE PROTECTION, DESTRUCTION AND EXTINCTION SERIES

PROTECTING MARINE MAMMALS

MARIELLE DE VRIES EDITOR

Nova Science Publishers, Inc. New York

Copyright © 2010 by Nova Science Publishers, Inc. All rights reserved. No part of this book may be reproduced, stored in a retrieval system or transmitted in any form or by any means: electronic, electrostatic, magnetic, tape, mechanical photocopying, recording or otherwise without the written permission of the Publisher. For permission to use material from this book please contact us: Telephone 631-231-7269; Fax 631-231-8175 Web Site: http://www.novapublishers.com NOTICE TO THE READER The Publisher has taken reasonable care in the preparation of this book, but makes no expressed or implied warranty of any kind and assumes no responsibility for any errors or omissions. No liability is assumed for incidental or consequential damages in connection with or arising out of information contained in this book. The Publisher shall not be liable for any special, consequential, or exemplary damages resulting, in whole or in part, from the readers‘ use of, or reliance upon, this material. Any parts of this book based on government reports are so indicated and copyright is claimed for those parts to the extent applicable to compilations of such works. Independent verification should be sought for any data, advice or recommendations contained in this book. In addition, no responsibility is assumed by the publisher for any injury and/or damage to persons or property arising from any methods, products, instructions, ideas or otherwise contained in this publication. This publication is designed to provide accurate and authoritative information with regard to the subject matter covered herein. It is sold with the clear understanding that the Publisher is not engaged in rendering legal or any other professional services. If legal or any other expert assistance is required, the services of a competent person should be sought. FROM A DECLARATION OF PARTICIPANTS JOINTLY ADOPTED BY A COMMITTEE OF THE AMERICAN BAR ASSOCIATION AND A COMMITTEE OF PUBLISHERS. LIBRARY OF CONGRESS CATALOGING-IN-PUBLICATION DATA Protecting marine mammals / editor, Marielle de Vries. p. cm. Includes bibliographical references and index. ISBN 978-1-61470-703-5 (eBook) 1. Marine mammals--Effect of sound on. 2. Sonar--Environmental aspects. 3. United States. Navy--Environmental aspects. 4. Marine mammals--Conservation--Law and legislation-United States. I. Vries, Marielle de. QL713.2P76 2009 333.95'95--dc22 2009032475

Published by Nova Science Publishers, Inc. † New York

CONTENTS Preface Chapter 1

ix Whales and Sonar: Environmental Exemptions for the Navy‘s Mid-Frequency Active Sonar Training Kristina Alexander

1

Chapter 2

Exemption from Requirements and Mitigation Measures Deputy Secretary of Defense

23

Chapter 3

Navy and Marine Mammal Protection Fact Sheet Chief of Naval Operations Environmental Readiness Division

31

Chapter 4

Supreme Court Decision on Navy Sonar Issue Marielle de Vries

35

Index

73

PREFACE This book summarizes legal and political events related to active sonar and marine mammals. While strandings and mortality of marine mammals, primarily beaked whales, have been observed in concurrence with mid-frequency sonar operation, additional controversy has focused on the development of lowfrequency active (LFA) sonar. Some peacetime use of military sonar has been regulated under the Marine Mammal Protection Act (MMPA) and other statutes due to concerns that active military sonars are operated at frequencies used by some cetaceans (i.e., whales, porpoises, and dolphins), and their high-intensity sound pulses may travel long distances in the ocean. Although mid-frequency sonar has been implicated in several beaked whale strandings, there is scientific uncertainty surrounding the totality of the effects active sonar transmissions may have on marine mammals. This book also addresses the concern regarding environmental effects of ocean noise on three activities – military sonar exercises, oil and gas exploration, and commercial shipping. This is an edited, excerpted and augmented edition of a CRS publication. Chapter 1 - Mid-frequency active (MFA) sonar emits pulses of sound from an underwater transmitter to help determine the size, distance, and speed of objects. The sound waves bounce off objects and reflect back to underwater acoustic receivers as an echo. MFA sonar has been used since World War II, and the Navy indicates it is the only reliable way to track submarines, especially more recently designed submarines that operate more quietly, making them more difficult to detect. Scientists have asserted that sonar may harm certain marine mammals under certain conditions, especially beaked whales. Depending on the exposure, they believe that sonar may damage the ears of the mammals, causing hemorrhaging and/or disorientation. The Navy agrees that the sonar may harm some marine

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mammals, but says it has taken protective measures so that animals are not harmed. MFA training must comply with a variety of environmental laws, unless an exemption is granted by the appropriate authority. Marine mammals are protected under the Marine Mammal Protection Act (MMPA) and some under the Endangered Species Act (ESA). The training program must also comply with the National Environmental Policy Act (NEPA), and in some cases the Coastal Zone Management Act (CZMA). Each of these laws provides some exemption for certain federal actions. The Navy has invoked all of the exemptions to continue its sonar training exercises. Litigation challenging the MFA training off the coast of Southern California ended with a November 2008 U.S. Supreme Court decision. The Supreme Court said that the lower court had improperly favored the possibility of injuring marine animals over the importance of military readiness. The Supreme Court‘s ruling allowed the training to continue without the limitations imposed on it by other courts. Chapter 2 is a copy of a memo to the Secretary of the Navy. Chapter 3 - The U.S. Navy is a responsible environmental steward, and we recognize the need to protect marine life. At the same time, the growing number of modern, quiet submarines in recent years has made active sonar even more crucial as a tool for the Navy to protect against serious threats to national security, maintain the safety of our armed forces, and ensure our nation‘s economic vitality. More than 300 extremely quiet diesel electric submarines are operated by over 40 countries worldwide. These submarines are cheap, mass produced, and readily available to any country that wants to pursue the technology. Active sonar is the only effective means available today to detect, track, and target modern subs under all ocean conditions. Chapter 4 - Antisubmarine warfare is one of the Navy‘s highest priorities. The Navy‘s fleet faces a significant threat from modern diesel-electric submarines, which are extremely difficult to detect and track because they can operate almost silently. The most effective tool for identifying submerged dieselelectric submarines is active sonar, which emits pulses of sound underwater and then receives the acoustic waves that echo off the target. Active sonar is a complex technology, and sonar operators must undergo extensive training to become proficient in its use. This case concerns the Navy‘s use of ―mid-frequency active‖ (MFA) sonar during integrated training exercises in the waters off southern California (SOCAL). In these exercises, ships, submarines, and aircraft train together as members of a ―strike group.‖ Due to the importance of antisubmarine warfare, a

Preface

xi

strike group may not be certified for deployment until it demonstrates proficiency in the use of active sonar to detect, track, and neutralize enemy submarines. The SOCAL waters contain at least 37 species of marine mammals. The plaintiffs—groups and individuals devoted to the protection of marine mammals and ocean habitats—assert that MFA sonar causes serious injuries to these animals. The Navy disputes that claim, noting that MFA sonar training in SOCAL waters has been conducted for 40 years without a single documented sonar-related injury to any marine mammal. Plaintiffs sued the Navy, seeking declaratory and injunctive relief on the grounds that the training exercises violated the National Environmental Policy Act of 1969 (NEPA) and other federal laws; in particular, plaintiffs contend that the Navy should have prepared an environmental impact statement (EIS) before conducting the latest round of SOCAL exercises.

In: Protecting Marine Mammals Editor: Marielle de Vries

ISBN: 978-1-60741-569-5 © 2010 Nova Science Publishers, Inc.

Chapter 1

WHALES AND SONAR: ENVIRONMENTAL EXEMPTIONS FOR THE NAVY’S MIDFREQUENCY ACTIVE SONAR TRAINING 

Kristina Alexander American Law Division

SUMMARY Mid-frequency active (MFA) sonar emits pulses of sound from an underwater transmitter to help determine the size, distance, and speed of objects. The sound waves bounce off objects and reflect back to underwater acoustic receivers as an echo. MFA sonar has been used since World War II, and the Navy indicates it is the only reliable way to track submarines, especially more recently designed submarines that operate more quietly, making them more difficult to detect. Scientists have asserted that sonar may harm certain marine mammals under certain conditions, especially beaked whales. Depending on the exposure, they believe that sonar may damage the ears of the mammals, causing hemorrhaging and/or disorientation. The Navy agrees that the sonar 

This is an edited, reformatted and augmented version of a CRS Report for Congress publication dated November 2008.

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Kristina Alexander

may harm some marine mammals, but says it has taken protective measures so that animals are not harmed. MFA training must comply with a variety of environmental laws, unless an exemption is granted by the appropriate authority. Marine mammals are protected under the Marine Mammal Protection Act (MMPA) and some under the Endangered Species Act (ESA). The training program must also comply with the National Environmental Policy Act (NEPA), and in some cases the Coastal Zone Management Act (CZMA). Each of these laws provides some exemption for certain federal actions. The Navy has invoked all of the exemptions to continue its sonar training exercises. Litigation challenging the MFA training off the coast of Southern California ended with a November 2008 U.S. Supreme Court decision. The Supreme Court said that the lower court had improperly favored the possibility of injuring marine animals over the importance of military readiness. The Supreme Court‘s ruling allowed the training to continue without the limitations imposed on it by other courts.

INTRODUCTION The use of sonar in Navy training exercises has been contentious. Some argue that the noise harms marine mammals. Others note that a well-trained military is a national priority. In the case of mid-frequency active sonar training exercises, the controversy was brought before the U.S. Supreme Court. The Supreme Court did not consider the merits of the action — meaning it did not evaluate whether the Navy had met all of its environmental obligations in preparing for the training — but it held that the Navy could not be enjoined from training in this case based on the evidence of merely the possibility of harming marine life.1 This report will discuss that litigation. Mid-frequency active (MFA) sonar emits pulses of sound from an underwater transmitter to help determine the size, distance, direction, and speed of objects. The sound waves bounce off objects and reflect back to underwater acoustic receivers as an echo.2 MFA sonar has been used since World War II, and, according to the Navy, ―is the only reliable way to identify, track, and target submarines.‖3 MFA sonar has a range of up to 10 nautical miles (nm). Active sonar differs from passive sonar in that passive sonar only receives sound waves and does not emit them. The Navy indicates that passive

Whales and Sonar: Environmental Exemptions for the Navy‘s…

3

sonar is ineffective at detecting quiet submarines, such as those that run on batteries. To prepare its fleet, the Navy conducts training exercises on a regularly scheduled rotation. This report considers the MFA training exercises conducted off the coast of California, which have been challenged on environmental grounds.4 Scientists have suggested that MFA sonar may harm some marine mammals, especially beaked whales. Some opponents have noted that the sonar is emitted at 170 to 195 dB, eight to more than 10 times louder than levels for which OSHA requires hearing protection for humans.5 However, noise intensities in air and water are different because of the different densities of the media and cannot be directly compared. Excessive noise can rupture the ears of mammals, or can disorient the animals so that they surface too quickly, giving them what is commonly called ―the bends,‖ when nitrogen is released from solution in the blood, which can be fatal. The Navy agrees that the sonar could harm marine mammals under certain circumstances, but argues that the Navy takes additional protective measures to prevent harm. In a press release of December 20, 2007, the Navy indicated that it takes 29 mitigation measures to protect marine mammals during sonar exercises, and that no injuries have been attributed to sonar use since the measures were put in place in January 2007.6 The Navy‘s program could affect marine mammals that are protected under the Marine Mammal Protection Act (MMPA) and some under the Endangered Species Act (ESA). The training program must also comply with the National Environmental Policy Act (NEPA) and in some cases, the Coastal Zone Management Act (CZMA). Each of these laws has provisions where a federal action may be exempted from full compliance. The Navy has invoked exemptions under each of these laws to continue this program. This report will discuss each of these laws generally, and then review the litigation surrounding the Navy‘s compliance with these laws in the context of midfrequency active sonar for training purposes off California‘s coast.

MARINE MAMMAL PROTECTION ACT (MMPA) The Marine Mammal Protection Act (MMPA) (16 U.S.C. §§ 1361 et seq.) prohibits harming marine mammals so that their populations would not diminish below their ―optimal sustainable population.‖7 The MMPA is

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Kristina Alexander

intended to ―protect essential habitats ... for each species of marine mammal from the adverse effect of man‘s actions.‖8 The act imposes a moratorium on the taking of or transporting marine mammals or products from marine mammals.9 Moratorium is defined in the act as ―a complete cessation.‖10 There are exceptions, however. Some of those exceptions were created by amendments in 2003 in the National Defense Authorization Act of 2004 to allow for military readiness exercises and national defense. Maritime military actions may be exempt from the MMPA if, after conferring with the Secretary of Commerce, the Secretary of Defense determines the actions are necessary for national defense.11 The exemption may apply for up to two years and additional exemptions are allowed. Congress must be given notice of the exemption. The MMPA has other adjustments for military actions. The MMPA has a different definition for harassment when conducted as part of a military readiness activity. Under the 2003 Amendments, the two types of harassment were redefined for military readiness activities: ―Level A harassment,‖ meaning an act that injures or has the significant potential to injure a marine mammal or marine mammal stock; and ―Level B harassment,‖ meaning the act disturbs or is likely to disturb a marine mammal or marine mammal stock by causing disruption of behavioral patterns, such as migration, breathing, nursing, breeding, feeding, or sheltering, to a point where such behavioral patterns are abandoned or significantly altered.12 This is distinct from the other definition of harassment, which is an act that (i) has the potential to injure a marine mammal or marine mammal stock in the wild; or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering. 16 U.S.C. § 1362(18). In other words, more harm is required for military readiness activities before they rise to the statutory level of harassment. The other aspect of the MMPA that is different for the Department of Defense than for others is the provision for incidental take permits. For any taking, it must be shown that the activity will make ―the least practical adverse impact on such species or stock and its habitat.‖13 As mentioned earlier, activities for the national defense are exempt if invoked. For military readiness activities, the factors to consider in determining the least practical adverse


5

impact include personnel safety,practicality of implementation, and impact on the effectiveness of the activity.14

ENDANGERED SPECIES ACT (ESA) The Endangered Species Act (ESA) (16 U.S.C. §§ 1531 et seq.) protects certain species and their habitats. It is illegal under the ESA to harm a species that has been listed as endangered (a species that is in danger of extinction).15 Additional protections are provided for threatened species (a species that is likely to become an endangered species within the foreseeable future).16 While the MMPA protects marine mammals, the ESA covers only those marine mammals that are listed. Just as under the MMPA, the ESA has some exceptions. The law provides that species may be killed or harmed without penalty if the injury is incidental to a lawful purpose and certain procedures are followed.17 Actions by the federal government, including the military, require the agency to consult with either the Secretary of Commerce or the Secretary of the Interior to ensure that the project is not likely to jeopardize the continued existence of any endangered or threatened species or result in destruction or adverse modification of critical habitat.18 This process is called a Section 7 consultation. The Secretary is required to use the ―best scientific and commercial data available‖ to identify whether any endangered or threatened species may be present, in which case the agency will prepare a biological assessment to identify any such species likely to be affected. The Secretary must issue an incidental take statement with reasonable and prudent alternative actions for the agency to take if the action is likely to jeopardize a species. If a ―no jeopardy‖ conclusion is reached, the incidental take statement will specify reasonable and prudent measures to take to minimize impacts of the action. Where a marine mammal is involved, the incidental take statement must also consider compliance with the MMPA.19

NATIONAL ENVIRONMENTAL POLICY ACT (NEPA) The purpose of the National Environmental Policy Act (NEPA) is to have federal agencies consider the impacts of their actions on the environment.20 For major federal actions that significantly affect the environment, an agency

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is required to produce an environmental impact statement (EIS), evaluating the environmental impact, any adverse environmental effects of the proposed action, and alternatives to the action. When an agency is not certain that its action will significantly affect the environment, it will prepare an environmental assessment (EA). The EA also considers the environmental impacts and alternatives, but is not as in-depth as the EIS. If the EA concludes that there are no significant impacts, no EIS is required, and a Finding of No Significant Impact (FONSI) is issued. There is no blanket exemption for NEPA, although alternative arrangements may be provided in the case of emergencies, and certain statutes excuse specific actions from compliance. Under the regulation applying to emergencies, 40 C.F.R. § 1506.11, the Council on Environmental Quality (CEQ), an office of the White House, may allow an agency to take different steps to be in compliance, or allow an action to commence prior to completion of the required review. Section 1506.11 states: Where emergency circumstances make it necessary to take an action with significant environmental impact without observing the provisions of these regulations, the Federal agency taking the action should consult with the Council about alternative arrangements. Agencies and the Council will limit such arrangements to actions necessary to control the immediate impacts of the emergency. Other actions remain subject to NEPA review.

According to CEQ, this provision has been requested just 41 times since the regulations took effect in 1978.21 It provides for alternative provisions for those instances where there is not enough time to complete the required environmental document, but limits those alternatives to just what is necessary to ―control the immediate impacts of the emergency.‖

COASTAL ZONE MANAGEMENT ACT (CZMA) The Coastal Zone Management Act (CZMA) sets up a scheme for states to manage their coastal resources with federal oversight.22 States develop coastal management plans (CMP) that regulate private and public development of coastal resources. Coastal zone is defined under the act to include coastal waters and adjacent shorelands ―strongly influenced by each other.‖23 The plans must be approved by the Secretary of Commerce. The state must find that actions that could affect coastal resources are consistent with its CMP. If


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so, the state will issue a certificate of consistency. Once the state has made its final determination, if the federal agency objects to the state‘s conclusions, it may bring the matter before the Secretary of Commerce. Where the Secretary finds that the project was consistent with the objectives of the CZMA, ornecessary for national security, the state decision may be overturned. An exemption from the CZMA is provided within the law, giving the President the right to excuse a federal agency from complying with a state CMP if the action is in the paramount interest of the United States. However, it is not available until after a court has ruled against the federal agency: After any final judgment, decree, or order of any Federal court that is appealable ... or under any other applicable provision of Federal law, that a specific Federal agency activity is not in compliance with subparagraph (A), and certification by the Secretary that mediation under subsection (h) of this section is not likely to result in such compliance, the President may, upon written request from the Secretary, exempt from compliance those elements of the Federal agency activity that are found by the Federal court to be inconsistent with an approved State program, if the President determines that the activity is in the paramount interest of the United States. No such exemption shall be granted on the basis of a lack of appropriations unless the President has specifically requested such appropriations as part of the budgetary process, and the Congress has failed to make available the requested appropriations.24

After a court has ruled an action conflicts with a state‘s CMP, the President may find that the action is of paramount interest to the nation, and exempt the federal agency from the measures imposed upon it by the court.25 There is no private right of action under the CZMA, so suits brought by nonparties to challenge an activity must be brought under the Administrative Procedure Act (APA).

MID-FREQUENCY ACTIVE SONAR LITIGATION The battle over sonar use in Navy training exercises and the impact on marine mammals has been ongoing for years. Legal challenges to the use of low-frequency sonar were brought before the District Court for the Northern District of California, but were settled by the Navy in 2008.26 The challenges to the use of MFA sonar began in the District Court for the Central District of

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California. The lead plaintiff in the MFA cases is the Natural Resources Defense Council (NRDC); four other environmental groups are plaintiffs, as well as Jean-Michel Cousteau. The defendants include the Secretary of the Navy and the National Marine Fisheries Service (NMFS) of the Department of Commerce. The first decision in the MFA challenge was issued in August 2007.27 It granted a preliminary injunction to halt the eleven remaining Navy training exercises that were planned. The plaintiffs claimed that the Navy had violated three laws: ESA, NEPA, and CZMA. The court agreed that the plaintiffs were likely to prevail on their claims under the CZMA and NEPA and issued the injunction, but held that the ESA claim was not likely to succeed. Since neither NEPA nor CZMA provides a separate right for litigation, the court reviewed claims brought related to these statutes under the standard set by the APA — to see whether the agency action was arbitrary and capricious. The Navy had prepared an EA-FONSI under NEPA, concluding that there were no significant adverse environment effects that would require an EIS. Among the adverse environmental affects the environmental review estimated to occur as a result of the training exercises were 170,000 incidents of Level B harassment to marine mammals, 466 permanent injuries to beaked or ziphiid whales (some of which are endangered), and 28 Temporary Threshold Shift exposures to endangered blue, fin, humpback, sei, and sperm whales. The court said it was likely to be held that the Navy should have prepared an EIS after finding these effects, and that the Navy did not adequately review alternatives to its training plan. The court also found that there was a likelihood that the Navy violated the CZMA. According to the Navy, the MFA training was consistent with the state CMP because it would not affect California‘s coastal resources, and the Navy did not need to adopt the mitigation measures California deemed necessary. The court suggested that the Navy‘s determination that its exercises would not harm coastal resources could be found arbitrary and capricious. The court issued a preliminary injunction, halting the training activities until a full review could be conducted. The Navy appealed, and on August 31, 2007, the Ninth Circuit Court of Appeals stayed the injunction, meaning the injunction was put aside, but not rejected outright.28 Later, in November, the Ninth Circuit dissolved the stay, meaning the Navy was again enjoined from conducting MFA exercises.29 The case was remanded to the district court, with instructions from the Ninth Circuit that the injunction should be fitted to the circumstances.


9

On January 3, 2008, the district court again issued a preliminary injunction, stopping the Navy from conducting MFA training unless certain mitigation measures were taken. According to the court order, those measures were  12-mile exclusion zone off California coast,  2200-yard sonar shut down,  60-minute monitoring period using two trained monitors at all times and using helicopters,  for active dipping sonar, helicopter monitoring for 10 minutes,  where surface ducting conditions are found, sonar reduced by 6 dB,  no MFA in Catalina basin, because it is a choke point for animals,  no MFA within 5 nautical miles (nm) of San Clemente Island, and  mitigation measures from the 2007 National Defense Exemption (―NDE II‖) to the MMPA unless they are not as strict as this order.30 A second order on January 10, 2008, was issued to clarify the January 3, 2008, decision. On January 10, 2008, the Navy wrote CEQ asking for alternative arrangements to NEPA that would allow them to conduct the remaining training exercises as scheduled. CEQ said the Navy indicated that some of the mitigation measures required by the district court would ―create a significant and unreasonable risk that Strike Groups will not be able to train and be certified as fully mission capable.‖31 On January 15, 2008, CEQ provided alternative arrangements that paralleled the 2007 NDE mitigation measures (see Table 3). Also on January 15, 2008, the President of the United States exempted the Navy exercises from compliance with the CZMA, using the authority under 16 U.S.C. § 1456(c)(1)(B). In the memorandum granting the exemption, the President stated that ―the use of mid-frequency active sonar in these exercises [is] in the paramount interest of the United States.‖ After the two exemptions granted on January 15, the Navy applied to the Ninth Circuit to vacate the injunction. The Ninth Circuit remanded the action to the district court on January 16, 2008.32 On February 5, 2008, the district court reconsidered the preliminary injunction in light of the developments. The court held that the CEQ had acted arbitrarily and capriciously in granting alternative arrangements to the Navy when there was no actual emergency:

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Kristina Alexander CEQ apprehended the phrase ―emergency circumstances‖ to refer to sudden, unanticipated events, not the unfavorable consequences of protracted litigation. CEQ‘s contrary interpretation in this case is ―plainly erroneous and inconsistent‖ with the regulation and, concomitantly, not entitled to deference.33

Table 1. Listed Species Found Off the California Coasta Classification T T E T E T E T T T E T T T T T E E E E E E E

a.

Common Name Salmon, Chinook CA Central Valley spring-run Salmon, Chinook CA coastal Salmon, Chinook winter Sacramento R. Salmon, Coho OR, CA pop. Salmon, Coho central CA coast Sea turtle, green except where endangered Sea turtle, leatherback Sea turtle, loggerhead Sea turtle, olive ridley except where endangered Sea-lion, Steller eastern pop. Sea-lion, Steller western pop. Seal, Guadalupe fur Steelhead Central Valley CA Steelhead central CA coast Steelhead northern CA Steelhead south central CA coast Steelhead southern CA coast Blue whale Finback whale Humpback whale Killer Southern whale Resident DPS Sei whale Sperm whale

Scientific Name Oncorhynchus (=Salmo) tshawytscha Oncorhynchus (=Salmo) tshawytscha Oncorhynchus (=Salmo) tshawytscha Oncorhynchus (=Salmo) kisutch Oncorhynchus (=Salmo) kisutch Chelonia mydas Dermochelys coriacea Caretta caretta Lepidochelys olivacea Eumetopias jubatus Eumetopias jubatus Arctocephalus townsendi Oncorhynchus (=Salmo) mykiss Oncorhynchus (=Salmo) mykiss Oncorhynchus (=Salmo) mykiss Oncorhynchus (=Salmo) mykiss Oncorhynchus (=Salmo) mykiss Balaenoptera musculus Balaenoptera physalus Megaptera novaeangliae Orcinus orca Balaenoptera borealis Physeter catodon (=macrocephalus)

Information obtained from Fish and Wildlife Service website: [http://ecos.fws.gov/tess_ public/StateListing.do?status=listed&state=CA].

The court held that the Navy still had to comply with NEPA. Therefore, its injunction remained in place and the Navy could conduct MFA training only if it used the mitigation measures required by the court. The court stated that public interest was best served by requiring those mitigation measures. In that way the Navy would have the benefit of conducting training, and the


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natural resources would have limited harm from the training. The court reviewed, but did not rule on, the CZMA exemption. The Navy moved to have the injunction stayed, but the Ninth Circuit denied the request.34 On February 29, 2008, the Ninth Circuit rejected the Navy‘s appeal of the preliminary injunction.35 It found that CEQ‘s interpretation of emergency circumstances was ―overly broad.‖36 The Ninth Circuit described the course of litigation that ended in the injunction as ―a series of events [that] gives rise to a predictable outcome‖ and not a sudden and unexpected occurrence. The Ninth Circuit compared it to CEQ‘s response to Hurricane Katrina, in which alternative arrangements were provided because ―there was not sufficient time to follow the regular EIS process.‖37 Table 2. Litigation Timeline Date August 7, 2007

Action Preliminary injunction granted.

August 31, 2007 November 13, 2007

Injunction stayed.

January 3, 2008

January 9, 2008 January 10, 2008 January 15, 2008

January 15, 2008

Ninth Circuit dissolves stay. Remands to district court to narrow injunction. District court enjoins Navy, but allows training if certain measures are taken. Navy seeks stay pending appeal. District court issues modified injunction. President exempts Navy from CZMA, pursuant to 16 U.S.C. § 1456(c)(1)(B). CEQ issues alternative arrangements under NEPA for Navy, pursuant to 50 C.F.R. § 1506.11.

Decision NRDC v. Winter, 8:07-cv-00335FMC-FMOx, 2007 WL 2481037 (C.D. Cal. Aug. 7, 2007) NRDC v. Winter, 502 F.3d 859 (9th Cir. 2007) NRDC v. Winter, 508 F.3d. 885 (9th Cir. 2007)

NRDC v. Winter, 530 F. Supp. 2d 1110 (C.D. Cal. 2008)

Online at [http://www.whitehouse. gov/ceq/Letter_from_Chairman_ Connaughton_to_Secretary_Winte r.pdf]

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Date January 16, 2008

February 4, 2008

February 19, 2008 February 29, 2008 February 29, 2008

March 31, 2008

November 12, 2008

Kristina Alexander Table 2. (Continued) Action Decision Ninth Circuit remands NRDC v. Winter, 513 F. 3d 920 to district court to (9th Cir. 2008) consider Jan. 15 actions. District court finds that NRDC v. Winter, 527 F. Supp. 2d CEQ‘s actions were 1216 (C.D. Cal. 2008) arbitrary and restores injunction. Ninth Circuit rejects NRDC v. Winter, 516 F.3d 1103 Navy‘s motion for a (9th Cir. 2008) stay. Ninth Circuit affirms NRDC v. Winter, 518 F.3d 658 preliminary injunction. (9th Cir. 2008) Ninth Circuit modifies NRDC v. Winter, 2008 U.S. App. two mitigation LEXIS 4458 (9th Cir. Feb. 29, measures, allowing 2008) sonar reduction when at critical point of the exercise and during surface ducting conditions. Navy petitions the U.S. NRDC v. Winter, No. 07-1239 Supreme Court to (March 31, 2008) review the Ninth Circuit decision. U.S. Supreme Court Winter v. NRDC, No. 07-1239 finds in favor of the (Nov. 12, 2008) Navy.

In a separate opinion, the Ninth Circuit modified two of the mitigation measures required by the district court.38 The Ninth Circuit allowed the 2,200yard suspension to remain in place unless the training was at ―a critical point in the exercise,‖ in which case the Navy would reduce the sonar by 6 dB if a marine mammal was detected within 1,000 m., 10 dB if within 500 m., and suspend the activity if within 200 m. The second modification was for when significant surface ducting conditions were detected. Rather than shutting down the training, as required by the district court, the Ninth Circuit required the Navy to reduce the decibels of the activity. (See Table 3 for details.) Therefore, the Navy can conduct its training exercises provided it uses the

Table 3. Mitigation Measures (data gleaned from court documents; may be incomplete) Type of Action Powering down sonar

Lookouts

2007 NME Reduce by 6 dB when marine mammals spotted within 1,000 m.; reduce another 4 dB when within 500 m.; shut down sonar at 200 m.

2 dedicated, and 3 non-dedicated marine mammal lookouts, provide lookouts with binoculars, night vision goggles, and infrared sensors.

Plaintiffs

Court 2200 yd. sonar shut down when animals are spotted; reduce by 6 dB where surface ducting conditions are found —— Modified by Ninth Circuit: if during ―critical point in the exercise,‖ reduction by 6 dB if within 1000 m., 10 dB if within 500 m., and suspend the activity if within 200 m. Surface ducting modification: reduce by 6 dB if within 2,000 m., 10 dB within 1,000 m., and suspend sonar use if within 500 m. 60-minute monitoring period prior to each day‘s training; two NMFS trained monitors at all times during exercise; passive acoustic monitoring to be used to the maximum extent practicable; use helicopters.

CEQ Reduce by 6dB if within 1,000 m.; reduce by additional 4 dB if within 500 m.; shut down transmissions at 200 m.

2 lookouts and 3 non-dedicated watchstanders.

Table 3. (Continued) Type of Action Helicopters

2007 NME

Geographical Restrictions

Outside Channel Islands Nat‘l Marine Sanctuary; 5 nautical miles (nm) from western shore of San Clemente Island; 3 nm from its other shores.

Changes for Migration

Aerial monitoring for 60 mins before MFA exercises along Tanner & Cortez

Plaintiffs

25 nm coastal exclusion; excluded from Catalina Basin; excluded from the Westfall seamount; excluded from Cortez and Tanner Banks; and exercises located to the maximum extent possible in waters deeper than 1,500 m.

Court

CEQ

At least one dedicated helicopter for monitoring; aerial monitoring to begin 60 mins before and throughout training; additional helicopter monitoring 10 minutes before active dipping sonar. 12 mile exclusion zone off California coast; barred in Catalina basin; 5 nm exclusion from western shore of San Clemente Island.

―Aerial platforms‖ will monitor during their missions.

5 nm exclusion from western shore of San Clemente Island.

Table 3. (Continued) Type of Action

2007 NME

Plaintiffs

Court

CEQ

Banks during blue whale migration (July to Sept. 2008); pre-exercise monitoring of gray whale migration patterns between March 7-21, 2008, and April 15 - May 15, 2008. Other

Navy to submit after-action reports to NMFS 120 days after any exercise.

16

Kristina Alexander

mitigation measures indicated by the court. The Navy petitioned the U.S. Supreme Court to review the Ninth Circuit decision.39 The Supreme Court reviewed two claims brought by the Navy: whether the CEQ acted within its authority to grant the alternative arrangements, and whether the injunction based on NEPA violations was appropriate. In a 5-4 decision, the majority of the Supreme Court held that the balance of public interests favored allowing the training to continue. It did not review the merits of the case. Instead, the majority ruled that the district court did not consider the correct balance of public interests. The majority found that the public interest in national defense outweighed the public interest in protecting marine mammals: we conclude that the balance of equities and consideration of the overall public interest in this case tip strongly in favor of the Navy. 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.40

The dissenting opinion focused on the balance of interests in the context of NEPA.41 Rather than an issue of a well-trained military versus animal safety, it considered the issue as what harm would occur to the Navy by delaying training until it complied with NEPA.42 Based on that view of the case, the dissenters found the balance weighed in favor of protecting the marine mammals. The dissenters indicated that the Navy‘s agreement to prepare an EIS after the training was completed was contrary to the purpose of the statute. Only the dissenting opinion discussed the alternative arrangements provided by CEQ. The opinion said, ―CEQ lacks authority to absolve an agency of its statutory duty to prepare an EIS,‖ indicating that legislative options were available to the Navy. The legislative option would be to obtain a statutory exemption from NEPA for the training program.

LEGAL ANALYSIS The injunction ultimately was put in place by a holding that CEQ had been arbitrary and capricious in granting an emergency exception under


17

NEPA. A legal analysis of the court‘s decision is somewhat hampered by the few court decisions and the brief regulatory history of Section 1506.11. CEQ has recorded only 41 instances where it was contacted to obtain alternative arrangements since the regulation went into place in 1978, and only three (until this case) have led to published decisions.43 While the dissenting opinion openly challenges the authority of the CEQ to circumvent NEPA, noting that alternative arrangements are issued based on a ―onesided record,‖ it is persuasive authority only, and not legal precedent for interpreting the regulation. Section 1506.11 was part of the initial regulations created for CEQ to implement NEPA in response to an Executive Order.44 The regulation has no direct statutory authority, but can be supported by 42 U.S.C. § 4331(b), which states it is the responsibility of the U.S. government to ―use all practicable means, consistent with other essential considerations of national policy‖ to consider the environmental impacts of its actions.45 The final version of the alternative arrangements regulation differed only slightly from the draft. The initial wording had said that under emergency circumstances ―the Federal agency proposing to take the action should consult with the Council about alternative arrangements.‖46 Out of concern that the regulation could be construed as requiring consultation before an emergency occurred,47 the regulation was modified to read as follows: Where emergency circumstances make it necessary to take an action with significant environmental impact without observing the provisions of these regulations, the Federal agency taking the action should consult with the council about alternative arrangements. Agencies and the council will limit such arrangements to actions necessary to control the immediate impacts of the emergency. Other actions remain subject to NEPA review.48

The regulation has not changed since then. The court in the MFA cases found CEQ had acted beyond the scope of Section 1506.11 when it provided alternative actions for the Navy to conduct rather than requiring the Navy to complete an EIS as directed by the court. Courts give agencies deference regarding the interpretation of their regulations, including the emergency provision, and the CEQ‘s interpretation of its regulations is entitled to substantial deference.49 However, where an agency‘s interpretation defies the plain meaning of a regulation, courts have rejected the agency‘s interpretation.50 That has not happened before in the context of the NEPA emergency provision.

18

Kristina Alexander

The few courts that have considered challenges to a CEQ alternative arrangement have upheld the CEQ‘s determination. Those requests included agencies seeking alternative arrangements for these actions:  capturing all remaining California condors to remove them from the wild;  releasing HUD funding for an urban redevelopment project in Detroit; and  allowing night flights from an Air Force base to assist in Operation Desert Storm. The alternative arrangements illustrated by these cases differ from the MFA alternative arrangements by the fact that each of these agency actions was backed by a satisfactory NEPA document, either before or after the action.51 In the instant case, the only NEPA document, an EA-FONSI, was found insufficient. A reviewing court will look at the underlying agency action to decide whether the CEQ‘s determination is rational. In the case of the California condor, the court considered why the Fish and Wildlife Service (FWS) had changed its policy. The EA-FONSI preferred alternative had been to leave some condor in the wild and to capture others. The district court had found no emergency because FWS had reviewed the situation just months earlier in an EA. The D.C. Circuit reversed, holding that the district court erred in substituting its judgment for the CEQ. The D.C. Circuit found that FWS had a rational basis for changing its policy, especially in light of the lead poisoning death of a condor in an area believed safe. The court said that once it had determined that the underlying agency decision ―reflects sufficient attention to environmental concerns and is adequately reasoned and explained‖ its review was completed.52 The capture was consistent with the alternatives examined in the EA-FONSI. The MFA sonar case differs in that the underlying EA-FONSI has been found insufficient. Also, the court suggested the Navy lacked a rational basis for declaring the training exercises an emergency. The emergency in the case of Detroit was not one of military readiness. Instead, it was argued that a major corporation would leave the city if funding were not provided for an urban renewal project, putting the city in immediate financial peril. The Department of Housing and Urban Development (HUD) was allowed to release funding prior to the completion of an EIS.53 The EIS was subsequently completed. This differs from the MFA alternative arrangements in which an EIS was waived, rather than deferred.


19

The only military action reviewed by the courts in response to a challenge to the application of Section 1506.11 related to night flights out of an Air Force base. An EIS completed years earlier had supported the decision that flights would not occur between the hours of 10 pm and 7 am. However, concurrent with the U.S. commitment of forces to Operation Desert Storm, the Air Force began 24-hour operations out of that base. The plaintiffs asked the Air Force to conduct a supplemental EIS prior to the flights, but the Air Force sought alternative arrangements from the CEQ. The alternative arrangements proposed by CEQ allowed the flights to continue and allowed the Air Force to prepare an EA within the year. The court considered whether the Air Force or CEQ had been arbitrary and capricious in allowing the NEPA exception.54 The court found that ―the crisis in the Middle East‖ was an emergency. The court noted that the Air Force was particular in describing the emergency need: ―defendants have pointed to specific military concerns with regard to troop redeployment, flight scheduling, cargo transport, and other operations that necessitate the use of Westover AFB for C-5A operations on a twenty-four hour basis.‖55 In the instant case, the court distinguished the facts from the Air Force exception, noting the Air Force‘s circumstances had changed after an EIS had been prepared, but in this case no change had occurred. Also, the court criticized the Navy‘s characterization of the emergency, noting that these routine training exercises had been planned for a long time, and suggesting that the Navy was seeking ways to avoid preparing the EIS ordered by the court. The court said CEQ had not used the plain meaning of ―emergency.‖56 The court found CEQ chose mitigation measures that had already been rejected by the court. According to the court, this ―raises serious constitutional concerns under the Separation of Powers doctrine,‖ but the court found that because CEQ‘s application of Section 1506.11 was invalid, it did not need to examine the constitutional issue.57 The Ninth Circuit agreed with the rationale of the lower court, noting that there was no national security or military exemption within NEPA.58

End Notes 1

Winter v. NRDC, No. 07-1239 (November 12, 2008). For more on the Navy‘s sonar program, see online at [http://www.navy.mil/oceans/sonar. html]. 3 [http://www.navy.mil/oceans/sonar.html]. 4 For a broader discussion of active sonar, see CRS Report RL33133, Active Military Sonar and Marine Mammals: Events and References, by Eugene H. Buck and Kori Calvert.

2

20 5

Kristina Alexander

See 29 C.F.R. § 1910.95(a). Navy Invests in Protecting Marine Mammals, Navy Story Number NNS071220-22 (December 20, 2007), online at [http://www.navy.mil/search/print.asp?story_id=34061& VIRIN=&imagetype=0&page=1]. The cause of death of a dolphin in the area of sonar use has not been determined, although hemorrhaging in the ears and ear canals was found. Kenneth R. Weiss, Dolphin Dies Near Sonar Site, Los Angeles Times (February 22, 2007). 7 16 U.S.C. § 1361(2). 8 16 U.S.C. § 1361(2). 9 16 U.S.C. § 1371(a). 10 16 U.S.C. § 1362(8). 11 P.L. 108-136, § 319(f), 117 Stat. 1434. 12 P.L. 108-136, § 319, 117 Stat. 1433; 16 U.S.C. § 1362(18). These definitions also apply to federal scientific research activity. 13 16 U.S.C. § 1371(5)(A)(i)(II)(aa). 14 P.L. 108-136, 319, 117 Stat. 1434; 16 U.S.C. § 1371(a)(5)(A)(ii). 15 16 U.S.C. § 1538. 16 16 U.S.C. § 1532(20). 17 16 U.S.C. §§ 1536(o)(2), 1539. 18 16 U.S.C. § 1536(a)(2). 19 16 U.S.C. § 1536(b)(3)(C). 20 42 U.S.C. § 4332. 21 Information obtained via written communication with CEQ (January 22, 2008). 22 P.L. 92-583, 86 Stat. 1280 (1972); 16 U.S.C. § 1451 et seq. 23 16 U.S.C. § 1453(1). A state‘s coastal waters generally reach three nautical miles (nm) beyond its shores. 43 U.S.C. § 1301. 24 16 U.S.C. § 1456(c)(1)(B). 25 In a decision dated February 4, 2008, a federal judge suggested that this provision may be unconstitutional when it was used not to change an underlying law but to revise a court decision. The court stated that this could have the effect of the President acting as a reviewing court in violation of Article III of the Constitution. NRDC v. Winter, 527 F. Supp. 2d 1216 (C.D. Cal. 2008). This report does not evaluate this argument. 26 NRDC v. Gutierrez, No. 07-4771-EDL (N.D. Cal. August 12, 2008) (order approving the settlement agreement wherein the Navy agreed to limit low-frequency sonar training to certain areas of the Pacific Ocean, rather than the worldwide scope as originally planned). 27 NRDC v. Winter, 2007 WL 2481037 (C.D. Cal. August 7, 2007). 28 NRDC v. Winter, 502 F.3d 859 (9th Cir. 2007). 29 NRDC v. Winter, 508 F.3d. 885 (9th Cir. 2007). 30 NRDC v. Winter, 530 F. Supp. 2d 1110 (C.D. Cal. 2008). See Table 3 for the mitigation measures. 31 Letter from James L. Connaughton, Chairman, CEQ, to Donald C. Winter, Secretary of the Navy (January 15, 2008), p. 3, available online at [http://www.whitehouse.gov/ ceq/Letter_from_Chairman_Connaughton_to_Secretary_Winter.pdf]. 32 NRDC v. Winter, 513 F. 3d 920 (9th Cir. 2008). 33 NRDC v. Winter, 527 F. Supp. 2d 1216, 1229 (C.D. Cal. 2008). 34 NRDC v. Winter, 516 F.3d 1103 (9th Cir. 2008). 35 NRDC v. Winter, 518 F. 3d 658 (9th Cir. 2008). 36 NRDC v. Winter, 518 F.3d 658, 680 (9th Cir. 2008). 37 NRDC v. Winter, 518 F.3d 658, 682 (9th Cir. 2008). 38 NRDC v. Winter, 2008 U.S. App. LEXIS 4458, *4 (9th Cir. February 29, 2008). 39 NRDC v. Winter, No. 07-1239 (March 31, 2008). 40 Winter v. NRDC, No. 07-1239 (November 12, 2008) (JJ. Roberts, Scalia, Kennedy, and Thomas). 6

Whales and Sonar: Environmental Exemptions for the Navy‘s… 41

21

Two justices participated in this opinion (JJ. Ginsberg and Souter). Two others concurred in part and dissented in part (JJ. Breyer and Stevens). 42 The majority had discussed the EA, finding that, at 293 pages, it evidenced a hard look at the environmental consequences of the training. 43 Two other court decisions refer to alternative arrangements by CEQ, but the emergency exemption was not in dispute. See Miccosukee Tribe of Indians of Florida v. United States, 509 F. Supp. 2d 1288, 1291 (M.D. Fla. 2007) (discussing how the Corps of Engineers obtained alternative arrangements for a temporary operating plan); NRDC v. Peña, 20 F. Supp. 2d 45, 50 (D.D.C. 1998) (discussing that if the CEQ issued alternative arrangements, the DOE could act before completing the NEPA document required by the court‘s order). 44 43 Fed. Reg. 25230 (June 9, 1978) (draft regulations); 43 Fed. Reg. 55978 (November 29, 1978) (final regulations). Executive Order 11991 (June 9, 1978). 45 The dissenting opinion in Winter v. NRDC, No. 07-1339 (November 12, 2008) appeared to have trouble with the congressional authority behind the regulation. The dissent said that a ―rapid, self-serving resort to an office in the White House ... is surely not what Congress had in mind when it instructed agencies to comply with NEPA ‗to the fullest extent possible.‘‖ 46 43 Fed. Reg. 25230, 25243 (June 9, 1978). 47 43 Fed. Reg. 55978, 55988 (November 29, 1978). 48 43 Fed. Reg. 55978, 55988 (November 29, 1978); 40 C.F.R. § 1506.11. 49 Andrus v. Sierra Club, 442 U.S. 347, 358 (1979); Warm Springs Dam Task Force v. Gribble, 417 U.S. 1301, 1309-1310 (1974). 50 Thomas Jefferson University v. Shalala, 512 U.S. 504, 512 (1994)(―we must defer to the Secretary‘s interpretation unless an ‗alternative reading is compelled by the regulation‘s plain language or by other indications of the Secretary‘s intent at the time of the regulation‘s promulgation‘‖ (quoting Gardebring v. Jenkins, 485 U.S. 415, 430 (1988)); Bowles v. Seminole Rock and Sand, 325 U.S. 410, 414 (1945)(―the ultimate criterion is the administrative interpretation, which becomes of controlling weight unless it is plainly erroneous or inconsistent with the regulation‖). 51 See also Miccosukee Tribe of Indians of Florida v. United States, 509 F. Supp. 2d 1288, 1291 (M.D. Fla. 2007) (referring to how CEQ required an EIS after the alternative arrangements were completed). 52 National Audubon Society v. Hester, 801 F.2d 405, 407 (D.C. Cir. 1986). 53 Crosby v. Young, 512 F. Supp. 1353 (E.D. Mich. 1981). 54 Valley Citizens for a Safe Environment v. Vest, 1991 WL 330963 (D. Mass. May 6, 1991). 55 Valley Citizens for a Safe Environment v. Vest, 1991 WL 330963, *5 (D. Mass. May 6, 1991). 56 NRDC v. Winter, 527 F. Supp. 2d 1216, 1229-30 (C.D. Cal. 2008). 57 NRDC v. Winter, 527 F. Supp. 2d 1216, 1232 (C.D. Cal. 2008). 58 NRDC v. Winter, 518 F.3d 658, 684-85 (9th Cir. 2008), cert. granted sub nom. Winter v. NRDC, No. 07-1239 (June 23, 2008).



Chapter 2

EXEMPTION FROM REQUIREMENTS AND MITIGATION MEASURES 

Deputy Secretary of Defense

MEMORANDUM FOR SECRETARY OF THE NAVY Subject: National Defense Exemption from Requirements of the Marine Mammal Protection Act for Certain DoD Military Readiness Activities That Employ Mid-Frequency Active Sonar or Improved Extended Echo Ranging Sonobuoys Pursuant to Title 16, Section 1371(f), of the United States Code, and having conferred with the Secretary of Commerce, I have determined that it is necessary for the national defense to exempt all military readiness activities that employ mid-frequency active sonar or Improved Extended Echo Ranging sonobuoys (IEER), either during major training exercises, or within established Department of Defense maritime ranges or established operating areas, from compliance with the requirements of the Marine Mammal 

This is an edited, reformatted and augmented version of U. S. Department of Defense publication dated January 2007.

24


Protection Act, Title 16, Sections 1361 — 1421h, of the United States Code. For purposes of this exemption, mid-frequency active sonar is defined as those active sonar systems operating within the frequency range of 1 kHz to 10 kHz. IEER is a new sensor system that is finishing development and nearing deployment. A military readiness activity is defined in Section 315(0 of Public Law 107-314. Specific actions falling within these categories of actions are exempted for a period of two years from today's date, or the date at which the Department of Navy is granted authorization under the Marine Mammal Protection Act for one or both of these categories of actions as associated with a specific proposed activity, whichever is earliest. In the event the exemption terminates as to a specific proposed activity having been granted authorization under the Marine Mammal Protection Act for one or both of these categories of actions, the exemption shall remain in full force and effect as to all other exempted categories of actions. During the exemption period, the Department of the Navy will execute the plan coordinated with the Department of Commerce to come into full compliance with the requirements of the Marine Mammal Protection Act. During this exemption period, all exempted military readiness activities employing mid-frequency active sonar shall follow the attached "MidFrequency Active Sonar (MFAS) Mitigation Measures during Major Training Exercises or within Established DoD Maritime Ranges and Established Operating Areas." Before using IEER for training, the Department of the Navy will develop with the National Marine Fisheries Service mutually agreeable mitigation measures applicable to IEER as information evolves on its use and tactics.

Attachment:

Mid-Frequency Active Sonar Mitigation Measures during Major Training Exercises or within Established DoD Maritime Ranges and Established Operating Areas I. General Maritime Protective Measures: Personnel Training:

Exemption from Requirements and Mitigation Measures

25

1. All lookouts onboard platforms involved in ASW training events will review the NMFSapproved Marine Species Awarenes Training (MSAT) material prior to use of mid-frequency active sonar (MFA). 2. All Commanding Officers, Executive Officers, and officers standing watch on the bridge will have reviewed the MSAT material prior to a training event employing the use of MFA. 3. Navy lookouts will undertake extensive training in order to qualify as a watchstander in accordance with the Lookout Training Handbook (NAVEDTRA 12968-B). 4. Lookout training will include on-the-job instruction under the supervision of a qualified, experienced watchstander. Following successful completion of this supervised training period, lookouts will complete the Personal Qualification Standard program, certifying that they have demonstrated the necessary skills (such as detection and reporting of partially submerged objects). This does not preclude personnel being trained as lookouts from being counted as those listed in previous measures so long as supervisors monitor their progress and performance. 5. Lookouts will be trained in the most effective means to ensure quick and effective communication within the command structure in order to facilitate implementation of protective measures if marine species are spotted. II. General Maritime Protective Watchstander Responsibilities:

Measures:

Lookout

and

6. On the bridge of surface ships, there will always be at least three people on watch whose duties include observing the water surface around the vessel. 7. In addition to the three personnel on watch noted previously, all surface ships participating in ASW exercises will, have at all times during the exercise at least two additional personnel on watch as lookouts. 8. Personnel on lookout and officers on watch on the bridge will have at least one set of binoculars available for each person to aid in the detection of marine mammals. 9. On surface vessels equipped with MFA, pedestal-mounted "Big Eye" (20x110) binoculars will be present and in good working order to assist in the detection of marine mammals in the vicinity of the vessel.

26

Deputy Secretary of Defense 10. Personnel on lookout will employ visual search procedures employing a scanning methodology in accordance with the Lookout Training Handbook (NAVEDTRA 12968-B). 11. After sunset and prior to sunrise, lookouts will employ Night Lookouts Techniques in accordance with the Lookout Training Handbook. 12. Personnel on lookout will be responsible for reporting all objects or anomalies sighted in the water (regardless of the distance from the vessel) to the Officer of the Deck, since any object or disturbance (e.g., trash, periscope, surface disturbance, discoloration) in the water may be indicative of a threat to the vessel and its crew or indicative of a marine species that may need to be avoided as warranted. III. Operating Procedures 13. A Letter of Instruction, Mitigation Measures Message, or Environmental Annex to the Operational Order will be issued prior to the exercise to disseminate further the personnel training requirement and general marine mammal protective measures. 14. Commanding Officers will make use of marine species detection cues and information to limit interaction with marine species to the maximum extent possible consistent with safety of the ship. 15. All personnel engaged in passive acoustic sonar operation (including aircraft, surface ships, or submarines) will monitor for marine mammal vocalizations and report the detection of any marine mammal to the appropriate watch station for dissemination and appropriate action. 16. During MFA operations, personnel will utilize all available sensor and optical systems (such as Night Vision Goggles to aid in the detection of marine mammals. 17. Navy aircraft participating in exercises at sea will conduct and maintain, when operationally feasible and safe, surveillance for marine species of concern as long as it does not violate safety constraints or interfere with the accomplishment of primary operational duties. 18. Aircraft with deployed sonobuoys will use only the passive capability of sonobuoys when marine mammals are detected within 200 yards of the sonobuoy.


27

19. Marine mammal detections will be immediately reported to the assigned Aircraft Control Unit for further dissemination to ships in the vicinity of the marine species as appropriate when it is reasonable to conclude that the course of the ship will likely result in a closing of the distance to the detected marine mammal. 20. Safety Zones - When marine mammals are detected by any means (aircraft, shipboard lookout, or acoustically) within 1,000 yards of the sonar dome (the bow), the ship or submarine will limit active transmission levels to at least 6 dB below normal operating levels.

(i) Ships and submarines will continue to limit maximum transmission levels by this 6-dB factor until the animal has been seen to leave the area, has not been detected for 30 minutes, or the vessel has transited more than 2,000 yards beyond the location of the last detection. (ii) Should a marine mammal be detected within or closing to inside 500 yards of the sonar dome, active sonar transmissions will be limited to at least 10 dB below the equipment's normal operating level. Ships and submarines will continue to limit maximum ping levels by this 10-dB factor until the animal has been seen to leave the area, has not been detected for 30 minutes, or the vessel has transited more than 2,000 yards beyond the location of the last detection. (iii)Should the marine mammal be detected within or closing to inside 200 yards of the sonar dome, active sonar transmissions will cease. Sonar will not resume until the animal has been seen to leave the area, has not been detected for 30 minutes, or the vessel has transited more than 2,000 yards beyond the location of the last detection. (iv) Special conditions applicable for dolphins and porpoises only: If, after conducting an initial maneuver to avoid close quarters with dolphins or porpoises, the Officer of the Deck concludes that dolphins or porpoises are deliberately closing to ride the vessel's bow wave, no further mitigation actions are necessary while the dolphins or porpoises continue to exhibit bow wave riding behavior.

28


(v) If the need for power-down should arise as detailed in "Safety Zones" above, the ship or submarine shall follow the requirements as though they were operating at 235 dB - the normal operating level (i.e., the first power-down will be to 229 dB, regardless of at what level above 235 sonar was being operated). 21. Prior to start-up or restart of active sonar, operators will check that the Safety Zone radius around the sound source is clear of marine mammals. 22. Sonar levels (generally) — The ship or submarine will operate sonar at the lowest practicable level, not to exceed 235 dB, except as required to meet tactical training objectives. 23. Helicopters shall observe/survey the vicinity of an ASW exercise for 10 minutes before the first deployment of active (dipping) sonar in the water. 24. Helicopters shall not dip their sonar within 200 yards of a marine mammal and shall cease pinging if a marine mammal closes within 200 yards after pinging has begun. 25. Submarine sonar operators will review detection indicators of closeaboard marine mammals prior to the commencement of ASW operations involving active mid-frequency sonar. 26. Increased vigilance during major ASW training exercises with tactical active sonar when critical conditions are present: Based on lessons learned from strandings in the Bahamas (2000), the Madeiras (2000), the Canaries (2002) and Spain (2006), beached whales are of particular concern since they have been associated with MFA operations. Navy should avoid planning major ASW training exercises with MFA in areas where they will encounter conditions that, in their aggregate, may contribute to a marine mammal stranding event. The conditions to be considered during exercise planning include: (1) Areas of at least 1,000 m depth near a shoreline where there is a rapid change in bathymetry on the order of 1,000-6,000 meters occurring across a relatively short horizontal distance (e.g., 5 nm). (2) Cases for which multiple ships or submarines ( 3)_operating MFA in the same area over extended periods of time ( 6 hours) in close proximity ( 10 nm apart).


29

(3) An area surrounded by land masses, separated by less than 35 nm and at least 10 nm in length, or an embayment, wherein operations involving multiple ships/subs ( 3) employing MFA near land may produce sound directed toward the channel or embayment that may cut off the lines of egress for marine mammals. (4) Although not as dominant a condition as bathymetric features, the historical presence of a significant surface duct (i.e., a mixed layer of constant water temperature extending from the sea surface to 100 or more feet). If the major exercise must occur in an area where the above conditions exist in their aggregate, these conditions must be fully analyzed in environmental planning documentation. Navy will increase vigilance by undertaking the following additional protective measure: A dedicated aircraft (Navy asset or contracted aircraft) will undertake reconnaissance of the embayment or channel ahead of the exercise participants to detect marine mammals that may be in the area exposed to active sonar. Where practical, advance survey should occur within about two hours prior to MFA use, and periodic surveillance should continue for the duration of the exercise. Any unusual conditions (e.g., presence of sensitive species, groups of species milling out of habitat, any stranded animals) shall be reported to the Officer in Tactical Command (OTC), who should give consideration to delaying, suspending or altering the exercise. All Safety Zone requirements described in Measure 20 apply. The post-exercise report must include specific reference to any event conducted in areas where the above conditions exist, with exact location and time/duration of the event, and noting results of surveys conducted. IV. Coordination and Reporting 27. Navy will coordinate with the local NMFS Stranding Coordinator regarding any unusual marine mammal behavior and any stranding, beached live/dead, or floating marine mammals that may occur at any time during or within 24 hours after completion of mid-frequency active sonar use associated with ASW training activities. 28. Navy will submit a report to the Office of Protected Resources, NMFS, within 120 days of the completion of a Major Exercise. This report must contain a discussion of the nature of the effects, if

30

Deputy Secretary of Defense observed, based on both modeled results of real-time events and sightings of marine mammals. 29. If a stranding occurs during an ASW exercise, NMFS and Navy will coordinate to determine if MFA should be temporarily discontinued while the facts surrounding the stranding are collected.



Chapter 3

NAVY AND MARINE MAMMAL PROTECTION FACT SHEET 

Chief of Naval Operations Environmental Readiness Division, Washington, DC NAVY’S NEED FOR SONAR AND MARINE MAMMAL PROTECTION EFFORTS The Need for Active Sonar Training The U.S. Navy is a responsible environmental steward, and we recognize the need to protect marine life. At the same time, the growing number of modern, quiet submarines in recent years has made active sonar even more crucial as a tool for the Navy to protect against serious threats to national security, maintain the safety of our armed forces, and ensure our nation‘s economic vitality. More than 300 extremely quiet diesel electric submarines are operated by over 40 countries worldwide. These submarines are cheap, mass produced, and readily available to any country that wants to pursue the technology.



This is an edited, reformatted and augmented version of a Chief of Naval Operstions Environmental Readiness Division publication dated September 2008.

32

Chief of Naval Operations Environmental Readiness Division

Active sonar is the only effective means available today to detect, track, and target modern subs under all ocean conditions.

UNDERSTANDING SONAR IN CONTEXT Approximately 15,000 large ships make use of the world‘s oceans daily. In contrast, only about 140 U.S. Navy ships are presently underway, which is less than 1 percent of ships at sea. The number of submarines underway is even less, about 35. About 60 percent of U.S. Navy ships and all subs are equipped with active sonar, which is used sparingly because it reveals the sending ship‘s position. Navy vessels prefer to use passive sonar the majority of the time. The U.S Navy recognizes that active sonar may affect marine mammals under certain conditions. However, even considering incidents with only circumstantial evidence of sonar involvement, sonar-related strandings occur very rarely. Worldwide naval use of active sonar for all countries has been correlated with the stranding deaths of approximately 40 whales during the 10year period from 1996-2006. To help put this number in perspective, this equates to less than 1/4 of 1 percent of the 3500+ strandings that occur each year on U.S. shores. Placed into context with the thousands of strandings that occur every year around the world, it is clear that many other factors are being ignored. For example, more than 600,000 marine mammals are killed each year by commercial fishing interests (Read, Drinker, Northridge. 2006. Bycatch of Marine Mammals in U.S. and Global Fisheries. Conservation Biology 20:1639). Other overlooked causes of strandings include:      

Pollution Disease Parasite infestation Ship Strikes Trauma Starvation

Strandings also occur after unusual weather or oceanographic events.

Navy and Marine Mammal Protection Fact Sheet

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The Navy’s Marine Mammal Research The U.S. Navy is a world leader in marine mammal research. It will spend nearly $26 million annually from FY07-09 on research intended to:

    

Determine the distribution and abundance of protected marine species and their habitats. Improve understanding of effects of sound on marine mammals. Establish criteria and thresholds to measure potential effects of Navy training operations on marine mammals. Develop improved marine mammal protection measures to lessen such effects. Improve passive acoustic monitoring techniques to detect and localize marine species, particularly on Navy undersea ranges.

Navy Marine Mammal Protection Efforts The U.S. Navy exercises caution when operating in areas likely to contain marine mammals. Efforts to minimize potential effects on mammals include the following: 



Using software tools to help operators determine if an operating area has any aspects that could lead to harming marine mammals. This allows ships and aircraft to analyze the training area where a specific exercise will take place and then use protective measures as appropriate. Scanning for animals with passive sonar, trained shipboard lookouts and available airborne assets prior to commencing an exercise. Navy

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Chief of Naval Operations Environmental Readiness Division



lookouts are skilled in spotting small objects at sea under all conditions. Reducing sonar levels or ceasing use of sonar altogether if whales or dolphins are detected within certain distances of the vessel's sonar dome.

Navy and Environmental Compliance Navy's policy is to operate in full compliance with environmental laws. To this end, we analyze the potential effects of our training on the environment and cooperate with environmental regulatory agencies, as appropriate, based on those effects.



Chapter 4

SUPREME COURT DECISION ON NAVY SONAR ISSUE 

Marielle de Vries SUPREME COURT OF THE UNITED STATES Winter, Secretary of the Navy, et al. v Natural Resources defense Council, Inc., et al. Certiorari to the United States Court of Appeals for the Ninth Circuit No. 07–1239. Argued October 8, 2008—Decided November 12, 2008 Antisubmarine warfare is one of the Navy‘s highest priorities. The Navy‘s fleet faces a significant threat from modern diesel-electric submarines, which are extremely difficult to detect and track because they can operate almost silently. The most effective tool for identifying submerged diesel-electric submarines is active sonar, which emits pulses of sound underwater and then receives the acoustic waves that echo off the target. Active sonar is a complex technology, and sonar operators must undergo extensive training to become proficient in its use. 

This is an edited, reformatted and augmented version of a U. S. Supreme Court publication dated October 2008.

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This case concerns the Navy‘s use of ―mid-frequency active‖ (MFA) sonar during integrated training exercises in the waters off southern California (SOCAL). In these exercises, ships, submarines, and aircraft train together as members of a ―strike group.‖ Due to the importance of antisubmarine warfare, a strike group may not be certified for deployment until it demonstrates proficiency in the use of active sonar to detect, track, and neutralize enemy submarines. The SOCAL waters contain at least 37 species of marine mammals. The plaintiffs—groups and individuals devoted to the protection of marine mammals and ocean habitats—assert that MFA sonar causes serious injuries to these animals. The Navy disputes that claim, noting that MFA sonar training in SOCAL waters has been conducted for 40 years without a single documented sonar-related injury to any marine mammal. Plaintiffs sued the Navy, seeking declaratory and injunctive relief on the grounds that the training exercises violated the National Environmental Policy Act of 1969 (NEPA) and other federal laws; in particular, plaintiffs contend that the Navy should have prepared an environmental impact statement (EIS) before conducting the latest round of SOCAL exercises. The District Court entered a preliminary injunction prohibiting the Navy from using MFA sonar during its training exercises. The Court of Appeals held that this injunction was overbroad and remanded to the District Court for a narrower remedy. The District Court then entered another preliminary injunction, imposing six restrictions on the Navy‘s use of sonar during its SOCAL training exercises. As relevant to this case, the injunction required the Navy to shut down MFA sonar when a marine mammal was spotted within 2,200 yards of a vessel, and to power down sonar by 6 decibels during conditions known as ―surface ducting.‖ The Navy then sought relief from the Executive Branch. The Council on Environmental Quality (CEQ) authorized the Navy to implement ―alternative arrangements‖ to NEPA compliance in light of ―emergency circumstances.‖ The CEQ allowed the Navy to continue its training exercises under voluntary mitigation procedures that the Navy had previously adopted. The Navy moved to vacate the District Court‘s preliminary injunction in light of the CEQ‘s actions. The District Court refused to do so, and the Court of Appeals affirmed. The Court of Appeals held that there was a serious question whether the CEQ‘s interpretation of the ―emergency circumstances‖ regulation was lawful, that plaintiffs had carried their burden of establishing a ―possibility‖ of irreparable injury, and that the preliminary injunction was appropriate because the balance of hardships and consideration of the public

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interest favored the plaintiffs. The Court of Appeals emphasized that any negative impact of the injunction on the Navy‘s training exercises was ―speculative,‖ and determined that (1) the 2,200-yard shutdown zone was unlikely to affect naval operations, because MFA sonar systems are often shut down during training exercises; and (2) the power-down requirement during surface ducting conditions was not unreasonable, because such conditions are rare and the Navy has previously certified strike groups not trained under these conditions. Held: The preliminary injunction is vacated to the extent challenged by the Navy. The balance of equities and the public interest—which were barely addressed by the District Court—tip strongly in favor of the Navy. The Navy‘s need to conduct realistic training with active sonar to respond to the threat posed by enemy submarines plainly outweighs the interests advanced by the plaintiffs. Pp. 10–24. (a) The lower courts held that when a plaintiff demonstrates a strong likelihood of success on the merits, a preliminary injunction may be entered based only on a ―possibility‖ of irreparable harm. The ―possibility‖ standard is too lenient. This Court‘s frequently reiterated standard requires plaintiffs seeking preliminary relief to demonstrate that irreparable injury is likely in the absence of an injunction. Even if plaintiffs have demonstrated a likelihood of irreparable injury, such injury is outweighed by the public interest and the Navy‘s interest in effective, realistic training of its sailors. For the same reason, it is unnecessary to address the lower courts‘ holding that plaintiffs have established a likelihood of success on the merits. Pp. 10–14. (b) A preliminary injunction is an extraordinary remedy never awarded as of right. In each case, courts must balance the competing claims of injury and consider the effect of granting or withholding the requested relief, paying particular regard to the public consequences. Weinberger v. Romero-Barcelo, 456 U. S. 305, 312. Military interests do not always trump other considerations, and the Court has not held that they do, but courts must give deference to the professional judgment of military authorities concerning the relative importance of a particular military interest. Goldman v. Weinberger, 475 U. S. 503, 507. Here, the record contains declarations from some of the Navy‘s most senior officers, all of whom underscored the threat posed by enemy

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Marielle de Vries submarines and the need for extensive sonar training to counter this threat. Those officers emphasized that realistic training cannot be accomplished under the two challenged restrictions imposed by the District Court—the 2,200-yard shutdown zone and the powerdown requirement during surface ducting conditions. The use of MFA sonar under realistic conditions during training exercises is clearly of the utmost importance to the Navy and the Nation. The Court does not question the importance of plaintiffs‘ ecological, scientific, and recreational interests, but it concludes that the balance of equities and consideration of the overall public interest tip strongly in favor of the Navy. The determination of where the public interest lies in this case does not strike the Court as a close question. Pp. 14–16. (c) The lower courts‘ justifications for entering the preliminary injunction are not persuasive. Pp. 16–21. (1) The District Court did not give serious consideration to the balance of equities and the public interest. The Court of Appeals did consider these factors and conclude that the Navy‘s concerns about the preliminary injunction were ―speculative.‖ But that is almost always the case when a plaintiff seeks injunctive relief to alter a defendant‘s conduct. The lower courts failed properly to defer to senior Navy officers‘ specific, predictive judgments about how the preliminary injunction would reduce the effectiveness of the Navy‘s SOCAL training exercises. Pp. 16–17. (2) The District Court abused its discretion by requiring the Navy to shut down MFA sonar when a marine mammal is spotted within 2,200 yards of a sonar-emitting vessel. The Court of Appeals concluded that the zone would not be overly burdensome because marine mammal sightings during training exercises are relatively rare. But regardless of the frequency of such sightings, the injunction will increase the radius of the shutdown zone from 200 to 2,200 yards, which expands its surface area by a factor of over 100. Moreover, because training scenarios can take several days to develop, each additional shutdown can result in the loss of several days‘ worth of training. The Court of Appeals also concluded that the shutdown zone would not be overly burdensome because the Navy had shut down MFA sonar several times during prior exercises when marine mammals were spotted well beyond the Navy‘s self-imposed 200-yard zone. But the court ignored undisputed evidence that these voluntary shutdowns only occurred during tactically insignificant times. Pp. 18–20.


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(3) The District Court also abused its discretion by requiring the Navy to power down MFA sonar by 6 decibels during significant surface ducting conditions. When surface ducting occurs, active sonar becomes more useful near the surface, but less effective at greater depths. Diesel-electric submariners are trained to take advantage of these distortions to avoid being detected by sonar. The Court of Appeals concluded that the power-down requirement was reasonable because surface ducting occurs relatively rarely, and the Navy has previously certified strike groups that did not train under such conditions. This reasoning is backwards. Given that surface ducting is both rare and unpredictable, it is especially important for the Navy to be able to train under these conditions when they occur. Pp. 20–21. (4) The Navy has previously taken voluntary measures to address concerns about marine mammals, and has chosen not to challenge four other restrictions imposed by the District Court in this case. But that hardly means that other, more intrusive restrictions pose no threat to preparedness for war. The Court of Appeals noted that the Navy could return to the District Court to seek modification of the preliminary injunction if it actually resulted in an inability to train. The Navy is not required to wait until it is unable to train sufficient forces for national defense before seeking dissolution of the preliminary injunction. By then it may be too late. P. 21. (d) This Court does not address the underlying merits of plaintiffs‘ claims, but the foregoing analysis makes clear that it would also be an abuse of discretion to enter a permanent injunction along the same lines as the preliminary injunction. Plaintiffs‘ ultimate legal claim is that the Navy must prepare an EIS, not that it must cease sonar training. There is accordingly no basis for enjoining such training pending preparation of an EIS—if one is determined to be required — when doing so is credibly alleged to pose a serious threat to national security. There are many other remedial tools available, including declaratory relief or an injunction specifically tailored to preparation of an EIS, that do not carry such dire consequences. Pp. 21–23. 518 F. 3d 658, reversed; preliminary injunction vacated in part. ROBERTS, C. J., delivered the opinion of the Court, in which SCALIA, KENNEDY, THOMAS, and ALITO, JJ., joined. BREYER, J., filed an opinion concurring in part and dissenting in part, in which STEVENS, J.,

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joined as to Part I. GINSBURG, J., filed a dissenting opinion, in which SOUTER, J., joined.

Donald C. Winter, Secretary of the Navy, et al., Petitioners v. Natural Resources Defense Council, Inc., et al. On Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit [November 12, 2008] CHIEF JUSTICE ROBERTS delivered the opinion of the Court. ―To be prepared for war is one of the most effectual means of preserving peace.‖ 1 Messages and Papers of the Presidents 57 (J. Richardson comp. 1897). So said George Washington in his first Annual Address to Congress, 218 years ago. One of the most important ways the Navy prepares for war is through integrated training exercises at sea. These exercises include training in the use of modern sonar to detect and track enemy submarines, something the Navy has done for the past 40 years. The plaintiffs complained that the Navy‘s sonar training program harmed marine mammals, and that the Navy should have prepared an environmental impact statement before commencing its latest round of training exercises. The Court of Appeals upheld a preliminary injunction imposing restrictions on the Navy‘s sonar training, even though that court acknowledged that ―the record contains no evidence that marine mammals have been harmed‖ by the Navy‘s exercises. 518 F. 3d 658, 696 (CA9 2008). The Court of Appeals was wrong, and its decision is reversed.

I The Navy deploys its forces in ―strike groups,‖ which are groups of surface ships, submarines, and aircraft centered around either an aircraft carrier or an amphibious assault ship. App. to Pet. for Cert. (Pet. App.) 316a– 317a. Seamless coordination among strike-group assets is critical. Before deploying a strike group, the Navy requires extensive integrated training in analysis and prioritization of threats, execution of military missions, and maintenance of force protection. App. 110–111.


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Antisubmarine warfare is currently the Pacific Fleet‘s top war-fighting priority. Pet. App. 270a–271a. Modern diesel-electric submarines pose a significant threat to Navy vessels because they can operate almost silently, making them extremely difficult to detect and track. Potential adversaries of the United States possess at least 300 of these submarines. App. 571. The most effective technology for identifying submerged diesel-electric submarines within their torpedo range is active sonar, which involves emitting pulses of sound underwater and then receiving the acoustic waves that echo off the target. Pet. App. 266a–267a, 274a. Active sonar is a particularly useful tool because it provides both the bearing and the distance of target submarines; it is also sensitive enough to allow the Navy to track enemy submarines that are quieter than the surrounding marine environment.1 This case concerns the Navy‘s use of ―midfrequency active‖ (MFA) sonar, which transmits sound waves at frequencies between 1 kHz and 10 kHz. Not surprisingly, MFA sonar is a complex technology, and sonar operators must undergo extensive training to become proficient in its use. Sonar reception can be affected by countless different factors, including the time of day, water density, salinity, currents, weather conditions, and the contours of the sea floor. Id., at 278a–279a. When working as part of a strike group, sonar operators must be able to coordinate with other Navy ships and planes while avoiding interference. The Navy conducts regular training exercises under realistic conditions to ensure that sonar operators are thoroughly skilled in its use in a variety of situations. The waters off the coast of southern California (SOCAL) are an ideal location for conducting integrated training exercises, as this is the only area on the west coast that is relatively close to land, air, and sea bases, as well as amphibious landing areas. App. 141–142. At issue in this case are the Composite Training Unit Exercises and the Joint Tactical Force Exercises, in which individual naval units (ships, submarines, and aircraft) train together as members of a strike group. A strike group cannot be certified for deployment until it has successfully completed the integrated training exercises, including a demonstration of its ability to operate under simulated hostile conditions. Id., at 564–565. In light of the threat posed by enemy submarines, all strike groups must demonstrate proficiency in antisubmarine warfare. Accordingly, the SOCAL exercises include extensive training in detecting, tracking, and neutralizing enemy submarines. The use of MFA sonar during these exercises is ―mission-critical,‖ given that MFA sonar is the only proven method of identifying submerged diesel-electric submarines operating on battery power. Id., at 568–571.

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Sharing the waters in the SOCAL operating area are at least 37 species of marine mammals, including dolphins, whales, and sea lions. The parties strongly dispute the extent to which the Navy‘s training activities will harm those animals or disrupt their behavioral patterns. The Navy emphasizes that it has used MFA sonar during training exercises in SOCAL for 40 years, without a single documented sonar-related injury to any marine mammal. The Navy asserts that, at most, MFA sonar may cause temporary hearing loss or brief disruptions of marine mammals‘ behavioral patterns. 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.

II The procedural history of this case is rather complicated. The Marine Mammal Protection Act of 1972 (MMPA), 86 Stat. 1027, generally prohibits any individual from ―taking‖ a marine mammal, defined as harassing, hunting, capturing, or killing it. 16 U. S. C. §§1362(13), 1372(a). The Secretary of Defense may ―exempt any action or category of actions‖ from the MMPA if such actions are ―necessary for national defense.‖ §1371(f)(1). In January 2007, the Deputy Secretary of Defense—acting for the Secretary—granted the Navy a 2-year exemption from the MMPA for the training exercises at issue in this case. Pet. App. 219a–220a. The exemption was conditioned on the Navy adopting several mitigation procedures, including: (1) training lookouts and officers to watch for marine mammals; (2) requiring at least five lookouts with binoculars on each vessel to watch for anomalies on the water surface (including marine mammals); (3) requiring aircraft and sonar operators to report detected marine mammals in the vicinity of the training exercises; (4)


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requiring reduction of active sonar transmission levels by 6 dB if a marine mammal is detected within 1,000 yards of the bow of the vessel, or by 10 dB if detected within 500 yards; (5) requiring complete shutdown of active sonar transmission if a marine mammal is detected within 200 yards of the vessel; (6) requiring active sonar to be operated at the ―lowest practicable level‖; and (7) adopting coordination and reporting procedures. Id., at 222a–230a. The National Environmental Policy Act of 1969 (NEPA), 83 Stat. 852, requires federal agencies ―to the fullest extent possible‖ to prepare an environmental impact statement (EIS) for ―every . . . major Federal actio[n] significantly affecting the quality of the human environment.‖ 42 U. S. C. §4332(2)(C) (2000 ed.). An agency is not required to prepare a full EIS if it determines—based on a shorter environmental assessment (EA)—that the proposed action will not have a significant impact on the environment. 40 CFR §§1508.9(a), 1508.13 (2007). In February 2007, the Navy issued an EA concluding that the 14 SOCAL training exercises scheduled through January 2009 would not have a significant impact on the environment. App. 226–227. The EA divided potential injury to marine mammals into two categories: Level A harassment, defined as the potential destruction or loss of biological tissue (i.e., physical injury), and Level B harassment, defined as temporary injury or disruption of behavioral patterns such as migration, feeding, surfacing, and breeding. Id., at 160–161. The Navy‘s computer models predicted that the SOCAL training exercises would cause only eight Level A harassments of common dolphins each year, and that even these injuries could be avoided through the Navy‘s voluntary mitigation measures, given that dolphins travel in large pods easily located by Navy lookouts. Id., at 176–177, 183. The EA also predicted 274 Level B harassments of beaked whales per year, none of which would result in permanent injury. Id., at 185–186. Beaked whales spend little time at the surface, so the precise effect of active sonar on these mammals is unclear. Erring on the side of caution, the Navy classified all projected harassments of beaked whales as Level A. Id., at 186, 223. In light of its conclusion that the SOCAL training exercises would not have a significant impact on the environment, the Navy determined that it was unnecessary to prepare a full EIS. See 40 CFR §1508.13. Shortly after the Navy released its EA, the plaintiffs sued the Navy, seeking declaratory and injunctive relief on the grounds that the Navy‘s SOCAL training exercises violated NEPA, the Endangered Species Act of 1973 (ESA), and the Coastal Zone Management Act of 1972 (CZMA).2 The

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District Court granted plaintiffs‘ motion for a preliminary injunction and prohibited the Navy from using MFA sonar during its remaining training exercises. The court held that plaintiffs had ―demonstrated a probability of success‖ on their claims under NEPA and the CZMA. Pet. App. 207a, 215a. The court also determined that equitable relief was appropriate because, under Ninth Circuit precedent, plaintiffs had established at least a ―‗possibility‘ ‖ of irreparable harm to the environment. Id., at 217a. Based on scientific studies, declarations from experts, and other evidence in the record, the District Court concluded that there was in fact a ―near certainty‖ of irreparable injury to the environment, and that this injury outweighed any possible harm to the Navy. Id., at 217a–218a. The Navy filed an emergency appeal, and the Ninth Circuit stayed the injunction pending appeal. 502 F. 3d 859, 865 (2007). After hearing oral argument, the Court of Appeals agreed with the District Court that preliminary injunctive relief was appropriate. The appellate court concluded, however, that a blanket injunction prohibiting the Navy from using MFA sonar in SOCAL was overbroad, and remanded the case to the District Court ―to narrow its injunction so as to provide mitigation conditions under which the Navy may conduct its training exercises.‖ 508 F. 3d 885, 887 (2007). On remand, the District Court entered a new preliminary injunction allowing the Navy to use MFA sonar only as long as it implemented the following mitigation measures (in addition to the measures the Navy had adopted pursuant to its MMPA exemption): (1) imposing a 12-mile ―exclusion zone‖ from the coastline; (2) using lookouts to conduct additional monitoring for marine mammals; (3) restricting the use of ―helicopter-dipping‖ sonar; (4) limiting the use of MFA sonar in geographic ―choke points‖; (5) shutting down MFA sonar when a marine mammal is spotted within 2,200 yards of a vessel; and (6) powering down MFA sonar by 6 dB during significant surface ducting conditions, in which sound travels further than it otherwise would due to temperature differences in adjacent layers of water. 530 F. Supp. 2d 1110, 1118–1121 (CD Cal. 2008). The Navy filed a notice of appeal, challenging only the last two restrictions. The Navy then sought relief from the Executive Branch. The President, pursuant to 16 U. S. C. §1456(c)(1)(B), granted the Navy an exemption from the CZMA. Section 1456(c)(1)(B) permits such exemptions if the activity in question is ―in the paramount interest of the United States.‖ The President determined that continuation of the exercises as limited by the Navy was ―essential to national security.‖ Pet. App. 232a. He concluded that compliance with the District Court‘s injunction would ―undermine the Navy‘s ability to


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conduct realistic training exercises that are necessary to ensure the combat effectiveness of . . . strike groups.‖ Ibid. Simultaneously, the Council on Environmental Quality (CEQ) authorized the Navy to implement ―alternative arrangements‖ to NEPA compliance in light of ―emergency circumstances.‖ See 40 CFR §1506.11.3 The CEQ determined that alternative arrangements were appropriate because the District Court‘s injunction ―create[s] a significant and unreasonable risk that Strike Groups will not be able to train and be certified as fully mission capable.‖ Pet. App. 238a. Under the alternative arrangements, the Navy would be permitted to conduct its training exercises under the mitigation procedures adopted in conjunction with the exemption from the MMPA. The CEQ also imposed additional notice, research, and reporting requirements. In light of these actions, the Navy then moved to vacate the District Court‘s injunction with respect to the 2,200-yard shutdown zone and the restrictions on training in surface ducting conditions. The District Court refused to do so, 527 F. Supp. 2d 1216 (2008), and the Court of Appeals affirmed. The Ninth Circuit held that there was a serious question regarding whether the CEQ‘s interpretation of the ―emergency circumstances‖ regulation was lawful. Specifically, the court questioned whether there was a true ―emergency‖ in this case, given that the Navy has been on notice of its obligation to comply with NEPA from the moment it first planned the SOCAL training exercises. 518 F. 3d, at 681. The Court of Appeals concluded that the preliminary injunction was entirely predictable in light of the parties‘ litigation history. Ibid. The court also held that plaintiffs had established a likelihood of success on their claim that the Navy was required to prepare a full EIS for the SOCAL training exercises. Id., at 693. The Ninth Circuit agreed with the District Court‘s holding that the Navy‘s EA—which resulted in a finding of no significant environmental impact—was ―cursory, unsupported by cited evidence, or unconvincing.‖ Ibid.4 The Court of Appeals further determined that plaintiffs had carried their burden of establishing a ―possibility‖ of irreparable injury. Even under the Navy‘s own figures, the court concluded, the training exercises would cause 564 physical injuries to marine mammals, as well as 170,000 disturbances of marine mammals‘ behavior. Id., at 696. Lastly, the Court of Appeals held that the balance of hardships and consideration of the public interest weighed in favor of the plaintiffs. The court emphasized that the negative impact on the Navy‘s training exercises was ―speculative,‖ since the Navy has never before operated under the procedures required by the District Court. Id., at 698–699. In particular, the court determined that: (1) the 2,200-yard shutdown zone

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imposed by the District Court was unlikely to affect the Navy‘s operations, because the Navy often shuts down its MFA sonar systems during the course of training exercises; and (2) the powerdown requirement during significant surface ducting conditions was not unreasonable because such conditions are rare, and the Navy has previously certified strike groups that had not trained under such conditions. Id., at 699–702. The Ninth Circuit concluded that the District Court‘s preliminary injunction struck a proper balance between the competing interests at stake. We granted certiorari, 554 U. S. __ (2008), and now reverse and vacate the injunction.

III A A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest. See Munaf v. Geren, 553 U. S. __, __ (2008) (slip op., at 12); Amoco Production Co. v. Gambell, 480 U. S. 531, 542 (1987); Weinberger v. Romero-Barcelo, 456 U. S. 305, 311–312 (1982). The District Court and the Ninth Circuit concluded that plaintiffs have shown a likelihood of success on the merits of their NEPA claim. The Navy strongly disputes this determination, arguing that plaintiffs‘ likelihood of success is low because the CEQ reasonably concluded that ―emergency circumstances‖ justified alternative arrangements to NEPA compliance. 40 CFR §1506.11. Plaintiffs‘ briefs before this Court barely discuss the ground relied upon by the lower courts—that the plain meaning of ―emergency circumstances‖ does not encompass a court order that was ―entirely predictable‖ in light of the parties‘ litigation history. 518 F. 3d, at 681. Instead, plaintiffs contend that the CEQ‘s actions violated the separation of powers by readjudicating a factual issue already decided by an Article III court. Moreover, they assert that the CEQ‘s interpretations of NEPA are not entitled to deference because the CEQ has not been given statutory authority to conduct adjudications. The District Court and the Ninth Circuit also held that when a plaintiff demonstrates a strong likelihood of prevailing on the merits, a preliminary


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injunction may be entered based only on a ―possibility‖ of irreparable harm. Id., at 696–697; 530 F. Supp. 2d, at 1118 (quoting Faith Center Church Evangelistic Ministries v. Glover, 480 F. 3d 891, 906 (CA9 2007); Earth Island Inst. v. United States Forest Serv., 442 F. 3d 1147, 1159 (CA9 2006)). The lower courts held that plaintiffs had met this standard because the scientific studies, declarations, and other evidence in the record established to ―a near certainty‖ that the Navy‘s training exercises would cause irreparable harm to the environment. 530 F. Supp. 2d, at 1118. The Navy challenges these holdings, arguing that plaintiffs must demonstrate a likelihood of irreparable injury— not just a possibility—in order to obtain preliminary relief. On the facts of this case, the Navy contends that plaintiffs‘ alleged injuries are too speculative to give rise to irreparable injury, given that ever since the Navy‘s training program began 40 years ago, there has been no documented case of sonar-related injury to marine mammals in SOCAL. And even if MFA sonar does cause a limited number of injuries to individual marine mammals, the Navy asserts that plaintiffs have failed to offer evidence of species-level harm that would adversely affect their scientific, recreational, and ecological interests. For their part, plaintiffs assert that they would prevail under any formulation of the irreparable injury standard, because the District Court found that they had established a ―near certainty‖ of irreparable harm. We agree with the Navy that the Ninth Circuit‘s ―possibility‖ standard is too lenient. Our frequently reiterated standard requires plaintiffs seeking preliminary relief to demonstrate that irreparable injury is likely in the absence of an injunction. Los Angeles v. Lyons, 461 U. S. 95, 103 (1983); Granny Goose Foods, Inc. v. Teamsters, 415 U. S. 423, 441 (1974); O’Shea v. Littleton, 414 U. S. 488, 502 (1974); see also 11A C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure §2948.1, p. 139 (2d ed. 1995) (hereinafter Wright & Miller) (applicant must demonstrate that in the absence of a preliminary injunction, ―the applicant is likely to suffer irreparable harm before a decision on the merits can be rendered‖); id., at 155 (―a preliminary injunction will not be issued simply to prevent the possibility of some remote future injury‖). Issuing a preliminary injunction based only on a possibility of irreparable harm is inconsistent with our characterization of injunctive relief as an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief. Mazurek v. Armstrong, 520 U. S. 968, 972 (1997) (per curiam). It is not clear that articulating the incorrect standard affected the Ninth Circuit‘s analysis of irreparable harm. Although the court referred to the

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―possibility‖ standard, and cited Circuit precedent along the same lines, it affirmed the District Court‘s conclusion that plaintiffs had established a ―‗near certainty‘ ‖ of irreparable harm. 518 F. 3d, at 696–697. At the same time, however, the nature of the District Court‘s conclusion is itself unclear. The District Court originally found irreparable harm from sonar-training exercises generally. But by the time of the District Court‘s final decision, the Navy challenged only two of six restrictions imposed by the court. See supra, at 7–8. The District Court did not reconsider the likelihood of irreparable harm in light of the four restrictions not challenged by the Navy. This failure is significant in light of the District Court‘s own statement that the 12-mile exclusion zone from the coastline—one of the unchallenged mitigation restrictions—―would bar the use of MFA sonar in a significant portion of important marine mammal habitat.‖ 530 F. Supp. 2d, at 1119. We also find it pertinent that this is not a case in which the defendant is conducting a new type of activity with completely unknown effects on the environment. When the Government conducts an activity, ―NEPA itself does not mandate particular results.‖ Robertson v. Methow Valley Citizens Council, 490 U. S. 332, 350 (1989). Instead, NEPA imposes only procedural requirements to ―ensur[e] that the agency, in reaching its decision, will have available, and will carefully consider, detailed information concerning significant environmental impacts.‖ Id., at 349. Part of the harm NEPA attempts to prevent in requiring an EIS is that, without one, there may be little if any information about prospective environmental harms and potential mitigating measures. Here, in contrast, the plaintiffs are seeking to enjoin—or substantially restrict— training exercises that have been taking place in SOCAL for the last 40 years. And the latest series of exercises were not approved until after the defendant took a ―hard look at environmental consequences,‖ id., at 350 (quoting Kleppe v. Sierra Club, 427 U. S. 390, 410, n. 21 (1976) (internal quotation marks omitted)), as evidenced by the issuance of a detailed, 293-page EA. As explained in the next section, even 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 same reason, we do not address the lower courts‘ holding that plaintiffs have also established a likelihood of success on the merits.


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B A preliminary injunction is an extraordinary remedy never awarded as of right. Munaf, 553 U. S., at __ (slip op., at 12). In each case, courts ―must balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief.‖ Amoco Production Co., 480 U. S., at 542. ―In exercising their sound discretion, courts of equity should pay particular regard for the public consequences in employing the extraordinary remedy of injunction.‖ Romero-Barcelo, 456 U. S., at 312; see also Railroad Comm’n of Tex. v. Pullman Co., 312 U. S. 496, 500 (1941). In this case, the District Court and the Ninth Circuit significantly understated the burden the preliminary injunction would impose on the Navy‘s ability to conduct realistic training exercises, and the injunction‘s consequent adverse impact on the public interest in national defense. This case involves ―complex, subtle, and professional decisions as to the composition, training, equipping, and control of a military force,‖ which are ―essentially professional military judgments.‖ Gilligan v. Morgan, 413 U. S. 1, 10 (1973). We ―give great deference to the professional judgment of military authorities concerning the relative importance of a particular military interest.‖ Goldman v. Weinberger, 475 U. S. 503, 507 (1986). As the Court emphasized just last Term, ―neither the Members of this Court nor most federal judges begin the day with briefings that may describe new and serious threats to our Nation and its people.‖ Boumediene v. Bush, 553 U. S. __, __ (2008) (slip op., at 68). Here, the record contains declarations from some of the Navy‘s most senior officers, all of whom underscored the threat posed by enemy submarines and the need for extensive sonar training to counter this threat. Admiral Gary Roughead—the Chief of Naval Operations—stated that during training exercises: ―It is important to stress the ship crews in all dimensions of warfare simultaneously. If one of these training elements were impacted—for example, if effective sonar training were not possible—the training value of the other elements would also be degraded . . . .‖ Pet. App. 342a.

Captain Martin May—the Third Fleet‘s Assistant Chief of Staff for Training and Readiness—emphasized that the use of MFA sonar is ―missioncritical.‖ App. 570–571. He described the ability to operate MFA sonar as a ―highly perishable skill‖ that must be repeatedly practiced under realistic

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conditions. Id., at 577. During training exercises, MFA sonar operators learn how to avoid sound-reducing ―clutter‖ from ocean floor topography and environmental conditions; they also learn how to avoid interference and how to coordinate their efforts with other sonar operators in the strike group. Id., at 574. Several Navy officers emphasized that realistic training cannot be accomplished under the two challenged restrictions imposed by the District Court—the 2,200-yard shutdown zone and the requirement that the Navy power down its sonar systems during significant surface ducting conditions. See, e.g., Pet. App. 333a (powering down in presence of surface ducting ―unreasonably prevent[s] realistic training‖); id., at 356a (shutdown zone would ―result in a significant, adverse impact to realistic training‖). We accept these officers‘ assertions that the use of MFA sonar under realistic conditions during training exercises is of the utmost importance to the Navy and the Nation. These interests must be weighed against the possible harm to the ecological, scientific, and recreational interests that are legitimately before this Court. Plaintiffs Opinion of the Court have submitted declarations asserting that they take whale watching trips, observe marine mammals underwater, conduct scientific research on marine mammals, and photograph these animals in their natural habitats. Plaintiffs contend that the Navy‘s use of MFA sonar will injure marine mammals or alter their behavioral patterns, impairing plaintiffs‘ ability to study and observe the animals. While we do not question the seriousness of these interests, we conclude that the balance of equities and consideration of the overall public interest in this case tip strongly in favor of the Navy. 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.‖ Pet. App. 232a. The public interest in conducting training exercises with active sonar under realistic conditions plainly outweighs the interests advanced by the plaintiffs. Of course, military interests do not always trump other considerations, and we have not held that they do. In this case, however, the proper determination of where the public interest lies does not strike us as a close question.


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C 1. Despite the importance of assessing the balance of equities and the public interest in determining whether to grant a preliminary injunction, the District Court addressed these considerations in only a cursory fashion. The court‘s entire discussion of these factors consisted of one (albeit lengthy) sentence: ―The Court is also satisfied that the balance of hardships tips in favor of granting an injunction, as the harm to the environment, Plaintiffs, and public interest outweighs the harm that Defendants would incur if prevented from using MFA sonar, absent the use of effective mitigation measures, during a subset of their regular activities in one part of one state for a limited period.‖ Id., at 217a–218a. As the prior Ninth Circuit panel in this case put it, in staying the District Court‘s original preliminary injunction, ―[t]he district court did not give serious consideration to the public interest factor.‖ 502 F. 3d, at 863. The District Court‘s order on remand did nothing to cure this defect, but simply repeated nearly verbatim the same sentence from its previous order. Compare 530 F. Supp. 2d, at 1118, with Pet. App. 217a–218a. The subsequent Ninth Circuit panel framed its opinion as reviewing the District Court‘s exercise of discretion, 518 F. 3d, at 697–699, but that discretion was barely exercised here. The Court of Appeals held that the balance of equities and the public interest favored the plaintiffs, largely based on its view that the preliminary injunction would not in fact impose a significant burden on the Navy‘s ability to conduct its training exercises and certify its strike groups. Id., at 698–699. The court deemed the Navy‘s concerns about the preliminary injunction ―speculative‖ because the Navy had not operated under similar procedures before. Ibid. But this is almost always the case when a plaintiff seeks injunctive relief to alter a defendant‘s conduct. The lower courts failed properly to defer to senior Navy officers‘ specific, predictive judgments about how the preliminary injunction would reduce the effectiveness of the Navy‘s SOCAL training exercises. See Wright & Miller §2948.2, at 167–68 (―The policy against the imposition of judicial restraints prior to an adjudication of the merits becomes more significant when there is reason to believe that the decree will be burdensome‖). 2. The preliminary injunction requires the Navy to shut down its MFA sonar if a marine mammal is detected within 2,200 yards of a sonar-

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Marielle de Vries emitting vessel. The Ninth Circuit stated that the 2,200-yard shutdown zone would not be overly burdensome because sightings of marine mammals during training exercises are relatively rare. But regardless of the frequency of marine mammal sightings, the injunction will greatly increase the size of the shutdown zone. Pursuant to its exemption from the MMPA, the Navy agreed to reduce the power of its MFA sonar at 1,000 yards and 500 yards, and to completely turn off the system at 200 yards. Pet. App. 222a–230a. The District Court‘s injunction does not include a graduated power-down, instead requiring a total shutdown of MFA sonar if a marine mammal is detected within 2,200 yards of a sonar-emitting vessel. There is an exponential relationship between radius length and surface area (Area =  r2). Increasing the radius of the shutdown zone from 200 to 2,200 yards would accordingly expand the surface area of the shutdown zone by a factor of over 100 (from 125,664 square yards to 15,205,308 square yards). The lower courts did not give sufficient weight to the views of several top Navy officers, who emphasized that because training scenarios can take several days to develop, each additional shutdown can result in the loss of several days‘ worth of training. Id., at 344a. Limiting the number of sonar shutdowns is particularly important during the Joint Tactical Force Exercises, which usually last for less than two weeks. Ibid. Admiral Bird explained that the 2,200-yard shutdown zone would cause operational commanders to ―lose awareness of the tactical situation through the constant stopping and starting of MFA [sonar].‖ Id., at 332a; see also id., at 356a (―It may take days to get to the pivotal attack in antisubmarine warfare, but only minutes to confound the results upon which certification is based‖). Even if there is a low likelihood of a marine mammal sighting, the preliminary injunction would clearly increase the number of disruptive sonar shutdowns the Navy is forced to perform during its SOCAL training exercises. The Court of Appeals also concluded that the 2,200-yard shutdown zone would not be overly burdensome because the Navy had shut down MFA sonar 27 times during its eight prior training exercises in SOCAL; in several of these cases, the Navy turned off its sonar when marine mammals were spotted well beyond the Navy‘s selfimposed 200-yard shutdown zone. 518 F. 3d, at 700, n. 65. Admiral Locklear—the Commander of the Navy‘s Third Fleet—stated that any


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shutdowns beyond the 200-yard zone were voluntary avoidance measures that likely took place at tactically insignificant times; the Ninth Circuit discounted this explanation as not supported by the record. Ibid. In reaching this conclusion, the Court of Appeals ignored key portions of Admiral Locklear‘s declaration, in which he stated unequivocally that commanding officers ―would not shut down sonar until legally required to do so if in contact with a submarine.‖ Pet. App. 354a– 355a. Similarly, if a commanding officer is in contact with a target submarine, ―the CO will be expected to continue to use active sonar unless another ship or helicopter can gain contact or if regulatory reasons dictate otherwise.‖ Id., at 355a. The record supports the Navy‘s contention that its shutdowns of MFA sonar during prior training exercises only occurred during tactically insignificant times; those voluntary shutdowns do not justify the District Court‘s imposition of a mandatory 2,200-yard shutdown zone. Lastly, the Ninth Circuit stated that a 2,200-yard shutdown zone was feasible because the Navy had previously adopted a 2,000-meter zone for low-frequency active (LFA) sonar. The Court of Appeals failed to give sufficient weight to the fact that LFA sonar is used for longrange detection of enemy submarines, and thus its use and shutdown involve tactical considerations quite different from those associated with MFA sonar. See App. 508 (noting that equating MFA sonar with LFA sonar ―is completely misleading and is like comparing 20 degrees Fahrenheit to 20 degrees Celsius‖). 3. The Court of Appeals also concluded that the Navy‘s training exercises would not be significantly affected by the requirement that it power down MFA sonar by 6 Db during significant surface ducting conditions. Again, we think the Ninth Circuit understated the burden this requirement would impose on the Navy‘s ability to conduct realistic training exercises. Surface ducting is a phenomenon in which relatively little sound energy penetrates beyond a narrow layer near the surface of the water. When surface ducting occurs, active sonar becomes more useful near the surface but less useful at greater depths. Pet. App. 299a–300a. Dieselelectric submariners are trained to take advantage of these distortions to avoid being detected by sonar. Id., at 333a. The Ninth Circuit determined that the power-down requirement during surface ducting conditions was unlikely to affect certification of the Navy‘s strike groups because surface ducting occurs relatively

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Marielle de Vries rarely, and the Navy has previously certified strike groups that did not train under such conditions. 518 F. 3d, at 701–702. This reasoning is backwards. Given that surface ducting is both rare and unpredictable, it is especially important for the Navy to be able to train under these conditions when they occur. Admiral Bird explained that the 6 dB powerdown requirement makes the training less valuable because it ―exposes [sonar operators] to unrealistically lower levels of mutual interference caused by multiple sonar systems operating together by the ships within the Strike Group.‖ Pet. App. 281a (footnote omitted). Although a 6 dB reduction may not seem terribly significant, decibels are measured on a logarithmic scale, so a 6 dB decrease in power equates to a 75% reduction. Id., at 284a–285a. 4. The District Court acknowledged that ― ‗the imposition of these mitigation measures will require the Navy to alter and adapt the way it conducts antisubmarine warfare training—a substantial challenge. Nevertheless, evidence presented to the Court reflects that the Navy has employed mitigation measures in the past, without sacrificing training objectives.‘‖ 527 F. Supp. 2d, at 1238. Apparently no good deed goes unpunished. The fact that the Navy has taken measures in the past to address concerns about marine mammals—or, for that matter, has elected not to challenge four additional restrictions imposed by the District Court in this case, see supra, at 7– 8—hardly means that other, more intrusive restrictions pose no threat to preparedness for war. The Court of Appeals concluded its opinion by stating that ―the Navy may return to the district court to request relief on an emergency basis‖ if the preliminary injunction ―actually result[s] in an inability to train and certify sufficient naval forces to provide for the national defense.‖ 518 F. 3d, at 703. This is cold comfort to the Navy. The Navy contends that the injunction will hinder efforts to train sonar operators under realistic conditions, ultimately leaving strike groups more vulnerable to enemy submarines. Unlike the Ninth Circuit, we do not think the Navy is required to wait until the injunction ―actually result[s] in an inability to train . . . sufficient naval forces for the national defense‖ before seeking its dissolution. By then it may be too late.


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IV As noted above, we do not address the underlying merits of plaintiffs‘ claims. While we have authority to proceed to such a decision at this point, see Munaf, 553 U. S., at __ (slip op., at 13–14), doing so is not necessary here. In addition, reaching the merits is complicated by the fact that the lower courts addressed only one of several issues raised, and plaintiffs have largely chosen not to defend the decision below on that ground.5 At the same time, what we have said makes clear that it would be an abuse of discretion to enter a permanent injunction, after final decision on the merits, along the same lines as the preliminary injunction. An injunction is a matter of equitable discretion; it does not follow from success on the merits as a matter of course. Romero- Barcelo, 456 U. S., at 313 (―a federal judge sitting as chancellor is not mechanically obligated to grant an injunction for every violation of law‖). The factors examined above—the balance of equities and consideration of the public interest—are pertinent in assessing the propriety of any injunctive relief, preliminary or permanent. See Amoco Production Co., 480 U. S., at 546, n. 12 (―The standard for a preliminary injunction is essentially the same as for a permanent injunction with the exception that the plaintiff must show a likelihood of success on the merits rather than actual success‖). Given that the ultimate legal claim is that the Navy must prepare an EIS, not that it must cease sonar training, there is no basis for enjoining such training in a manner credibly alleged to pose a serious threat to national security. This is particularly true in light of the fact that the training has been going on for 40 years with no documented episode of harm to a marine mammal. A court concluding that the Navy is required to prepare an EIS has many remedial tools at its disposal, including declaratory relief or an injunction tailored to the preparation of an EIS rather than the Navy‘s training in the interim. See, e.g., Steffel v. Thompson, 415 U. S. 452, 466 (1974) (―Congress plainly intended declaratory relief to act as an alternative to the strong medicine of the injunction‖). In the meantime, we see no basis for jeopardizing national security, as the present injunction does. Plaintiffs confirmed at oral argument that the preliminary injunction was ―the whole ball game,‖ Tr. of Oral Arg. 33, and our analysis of the propriety of preliminary relief is applicable to any permanent injunction as well. President Theodore Roosevelt explained that ―the only way in which a navy can ever be made efficient is by practice at sea, under all the conditions

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which would have to be met if war existed.‖ President‘s Annual Message, 42 Cong. Rec. 67, 81 (1907). We do not discount the importance of plaintiffs‘ ecological, scientific, and recreational interests in marine mammals. Those interests, however, are plainly outweighed by the Navy‘s need to conduct realistic training exercises to ensure that it is able to neutralize the threat posed by enemy submarines. The District Court abused its discretion by imposing a 2,200- yard shutdown zone and by requiring the Navy to power down its MFA sonar during significant surface ducting conditions. The judgment of the Court of Appeals is reversed, and the preliminary injunction is vacated to the extent it has been challenged by the Navy. It is so ordered.

Donald C. Winter, Secretary of the Navy, et al., Petitioners v. Natural Resources Defense Council, Inc., et al. On Writ of Certiorari to the United States Court of Appeals for the ninth Circuit [November 12, 2008] JUSTICE BREYER, with whom JUSTICE STEVENS joins as to Part I, concurring in part and dissenting in part. As of December 2006, the United States Navy planned to engage in a series of 14 antisubmarine warfare training exercises off the southern California coast. The Natural Resources Defense Council, Inc., and others (hereinafter NRDC) brought this case in Federal District Court claiming that the National Environmental Policy Act of 1969 (NEPA) requires the Navy to prepare an environmental impact statement (EIS) (assessing the impact of the exercises on marine mammals) prior to its engaging in the exercises. As the case reaches us, the District Court has found that the NRDC will likely prevail on its demand for an EIS; the Navy has agreed to prepare an EIS; the District Court has forbidden the Navy to proceed with the exercises unless it adopts six mitigating measures; and the Navy has agreed to adopt all but two of those measures. The controversy between the parties now concerns the two measures that the Navy is unwilling to adopt. The first concerns the ―shutdown zone,‖ a circle with a ship at the center within which the Navy must try to spot marine mammals and shut down its sonar if one is found. The controverted condition


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would enlarge the radius of that circle from about one-tenth of a mile (200 yards) to one and one-quarter mile (2,200 yards). The second concerns special ocean conditions called ―surface ducting conditions.‖ The controverted condition would require the Navy, when it encounters any such condition, to diminish the sonar‘s power by 75%. The Court of Appeals affirmed the District Court order that contained these two conditions. 518 F. 3d 658, 703 (CA9 2008).

I We must now decide whether the District Court was legally correct in forbidding the training exercises unless the Navy implemented the two controverted conditions. In doing so, I assume, like the Court, that the NRDC will prevail on its demand for an EIS. (Indeed, the Navy is in the process of preparing one.) And, I would ask whether, in imposing these conditions, the District Court properly ―balance[d the] harms.‖ See, e.g., Amoco Production Co. v. Gambell, 480 U. S. 531, 545 (1987). Respondents‘ (hereinafter plaintiffs) argument favoring the District Court injunction is a strong one. As JUSTICE GINSBURG well points out, see post, at 4–5 (dissenting opinion), the very point of NEPA‘s insistence upon the writing of an EIS is to force an agency ―carefully‖ to ―consider . . . detailed information concerning significant environmental impacts,‖ while ―giv[ing] the public the assurance that the agency ‗has indeed considered environmental concerns in its decisionmaking process.‘ ‖ Robertson v. Methow Valley Citizens Council, 490 U. S. 332, 349 (1989). NEPA seeks to assure that when Government officials consider taking action that may affect the environment, they do so fully aware of the relevant environmental considerations. An EIS does not force them to make any particular decision, but it does lead them to take environmental considerations into account when they decide whether, or how, to act. Id., at 354. Thus, when a decision to which EIS obligations attach is made without the informed environmental consideration that NEPA requires, much of the harm that NEPA seeks to prevent has already taken place. In this case, for example, the absence of an injunction means that the Navy will proceed with its exercises in the absence of the fuller consideration of environmental effects that an EIS is intended to bring. The absence of an injunction thereby threatens to cause the very environmental harm that a full preaction EIS might have led the Navy to avoid (say, by adopting the two

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additional mitigation measures that the NRDC proposes). Consequently, if the exercises are to continue, conditions designed to mitigate interim environmental harm may well be appropriate. On the other hand, several features of this case lead me to conclude that the record, as now before us, lacks adequate support for an injunction imposing the two controverted requirements. First, the evidence of need for the two special conditions is weak or uncertain. The record does show that the exercises as the Navy originally proposed them could harm marine mammals. The District Court found (based on the Navy‘s study of the matter) that the exercises might cause 466 instances of Level A harm and 170,000 instances of Level B harm. App. to Pet. For Cert. 196a–197a. (The environmental assessment (EA) actually predicted 564 instances of Level A harm. See App. 223–224.) The study defines Level A injury as ―any act that injures or has the significant potential to injure a marine mammal or marine mammal stock in the wild‖ through ―destruction or loss of biological tissue,‖ whether ―slight to severe.‖ Id., at 160. It defines Level B harm as ―‗any act that disturbs or is likely to disturb a marine mammal . . . by causing disruption of natural behavioral patterns including, but not limited to, migration, surfacing, nursing, breeding, feeding, or sheltering to a point where such behaviors are abandoned or significantly altered‘‖ and describes it as a ―short term‖ and ―temporary‖ ―disturbance.‖ Id., at 161, 175. The raw numbers seem large. But the parties argue about the extent to which they mean likely harm. The Navy says the classifications and estimates err on the side of caution. (When in doubt about the amount of harm to a mammal, the study assumed the harm would qualify as Level A harassment. Id., at 200.) The Navy also points out that, by definition, mammals recover from Level B injuries, often very quickly. It notes that, despite 40 years of naval exercises off the southern California coast, no injured marine mammal has ever been found. App. to Pet.for Cert. 274a–275a. (It adds that dolphins often swim alongside the ships. Id., at 290, 346.) At the same time, plaintiffs point to instances where whales have been found stranded. They add that scientific studies have found a connection between those beachings and the Navy‘s use of sonar, see, e.g., App. 600–602, and the Navy has even acknowledged one stranding where ―U. S. Navy midfrequency sonar has been identified as the most plausible contributory source to the stranding event,‖ id., at 168. Given the uncertainty the figures create in respect to the harm caused by the Navy‘s original training plans, it would seem important to have before us at least some estimate of the harm likely avoided by the Navy‘s decision not to


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contest here four of the six mitigating conditions that the District Court ordered. Without such evidence, it is difficult to assess the relevant harm— that is, the environmental harm likely caused by the Navy‘s exercises with the four uncontested mitigation measures (but without the two contested mitigation measures) in place. Second, the Navy has filed multiple affidavits from Navy officials explaining in detail the seriousness of the harm that the delay associated with completion of this EIS (approximately one year) would create in respect to the Navy‘s ability to maintain an adequate national defense. See generally App. to Pet. for Cert. 260a–357a. Taken by themselves, those affidavits make a strong case for the proposition that insistence upon the two additional mitigating conditions would seriously interfere with necessary defense training. The affidavits explain the importance of training in antisubmarine warfare, id., at 263a; the need to use active sonar to detect enemy submarines, id., at 266a–267a, App. 566; the complexity of a training exercise involving sonar, App. to Pet. for Cert. 343a; the need for realistic conditions when training exercises take place, id., at 299a–300a, App. 566; the ―cascading‖ negative ―effect‖ that delay in one important aspect of a set of coordinated training exercises has upon the Navy‘s ability ―to provide combat ready forces,‖ App. to Pet. for Cert. 343a; the cost and disruption that would accompany the adoption of the two additional mitigating conditions that the NRDC seeks, ibid.; the Navy‘s resulting inability adequately to train personnel, id., at 278a; the effectiveness of the mammal-protecting measures that the Navy has taken in the past, id., at 285a–298a; and the reasonable likelihood that the mitigating conditions to which it has agreed will prove adequate, id., at 296a. Third, and particularly important in my view, the District Court did not explain why it rejected the Navy‘s affidavit-supported contentions. In its first opinion enjoining the use of sonar, the District Court simply stated: ―The Court is . . . satisfied that the balance of hardships tips in favor of granting an injunction, as the harm to the environment, Plaintiffs, and public interest outweighs the harm that Defendants would incur if prevented from using [mid-frequency active (MFA)] sonar, absent the use of effective mitigation measures, during a subset of their regular activities in one part of one state for a limited period.‖ Id., at 217a–218a.

Following remand from the Court of Appeals, the District Court simply repeated, word for word, this same statement. It said:

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Marielle de Vries ―The Court is . . . satisfied that the balance of hardships tips in favor of granting an injunction, as the harm to the environment, Plaintiffs, and public interest outweighs the harm that Defendants would incur (or the public interest would suffer) if Defendants were prevented from using MFA sonar, absent the use of effective mitigation measures, during a subset of their regular activities in one part of one state for a limited period.‖ 530 F. Supp. 2d 1110, 1118 (CD Cal. 2008).

With respect to the imposition of the 2,200 yard shutdown zone, the District Court noted evidence of the harm that MFA sonar poses to marine mammals, and then concluded that ―[t]he Court therefore is persuaded that while the 2200 yard shutdown requirement may protect marine mammals from the harshest of sonar-related consequences, it represents a minimal imposition [on] the Navy‘s training exercises.‖ Id., at 1119. The District Court did not there explain the basis for that conclusion. With respect to the imposition of the surface ducting condition, the District Court said nothing about the Navy‘s interests at all. Id., at 1120–1121. While a District Court is often free simply to state its conclusion in summary fashion, in this instance neither that conclusion, nor anything else I have found in the District Court‘s opinion, answers the Navy‘s documented claims that the two extra conditions the District Court imposed will, in effect, seriously interfere with its ability to carry out necessary training exercises. The first condition requires the Navy to reduce the power of its sonar equipment by 75% when the ship encounters a condition called ―surface ducting‖ that occurs when the presence of layers of water of different temperature make it unusually difficult for sonar operators to determine whether a diesel submarine is hiding below. Rear Admiral John Bird, an expert in submarine warfare, made clear that the 75% power-reduction requirement was equivalent to forbidding any related training. App. to Pet. for Cert. 297a. But he says in paragraph 52 of his declaration: ―Training in surface ducting conditions is critical to effective training because sonar operators need to learn how sonar transmissions are altered due to surface ducting and how submarines may take advantage of them.‖ Id., at 299a–300a. The District Court, as far as I can tell, did not even acknowledge in its opinion the Navy‘s asserted interest in being able to train under these conditions. 530 F. Supp. 2d, at 1120–1121. The second condition requires the Navy to expand the sonar ―shutdown‖ area surrounding a ship (i.e., turn off the sonar if a mammal is spotted in the area) from a circle with a radius of about one-tenth of a mile to a circle with a


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radius of about one mile and a quarter. Both sides agree that this requirement will lead to more shutdowns. Admiral Gary Roughead, Chief of Naval Operations, states in paragraph 12 of his declaration that this expanded zone requirement ―will result in increased interruptions to training exercises, . . . vastly increas[ing] the risk of negating training effectiveness, preventing strike group certification, and disrupting carefully orchestrated deployment plans to meet world-wide operational commitments.‖ App. to Pet. for Cert. 344a. Again, I can find nothing in the District Court‘s opinion that specifically explains why this is not so. 530 F. Supp. 2d, at 1119–1120. Fourth, the Court of Appeals sought, through its own thorough examination of the record, to supply the missing explanations. But those explanations are not sufficient. In respect to the surface ducting conditions, the Court of Appeals rejected the Navy‘s contentions on the ground that those conditions are ―rar[e],‖ and the Navy has certified trainings that did not involve any encounter with those conditions. 518 F. 3d, at 701–702. I am not certain, however, why the rarity of the condition supports the District Court‘s conclusion. Rarity argues as strongly for training when the condition is encountered as it argues for the contrary. In respect to the expansion of the ―shutdown‖ area, the Court of Appeals noted that (1) the Navy in earlier exercises had shut down its sonar when marine mammals were sited within about one-half a mile, (2) the Navy has used a larger shutdown area when engaged in exercises with lower frequency sonar equipment, and (3) foreign navies have used larger shutdown areas. Id., at 699–701, and nn. 63, 67. But the Navy‘s affidavits state that (1) earlier shutdowns when marine mammals were spotted at farther distances ―likely occurred during tactically insignificant times,‖ App. to Pet. for Cert. 356a, (2) ships with low frequency sonar (unlike the sonar here at issue) have equipment that makes it easier to monitor the larger area, particularly by significantly reducing the number of monitoring personnel necessarily involved, and (3) foreign navy experience is not relevant given the potentially different military demands upon those navies, App. 508–509. Finally, the Court of Appeals, mirroring a similar District Court suggestion in the language I have quoted, says that ―the exercises in southern California are only a subset of the Navy‘s training activities involving active sonar.‖ 518 F. 3d, at 702. It adds that the Navy‘s study ―shows the Navy is still able to conduct its exercises in alternative locations, in reduced number, or through simulation.‖ Ibid., n. 69. The Court of Appeals, however, also concluded that the study ―provides reasonably detailed justifications for why the Southern California Operating Area is uniquely suited to these exercises,

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and demonstrates that the Navy would suffer a certain hardship if the considered alternatives were employed instead.‖ Ibid. Fifth, when the Court of Appeals first heard this case following the District Court‘s imposition of a broad, absolute injunction, it held that any injunction must be crafted so that the Navy could continue its training exercises. Noting that the Navy had, in the past, been able to use mitigation measures to ―reduce the harmful effects of its active sonar,‖ it ―vacate[d] the stay and remand[ed] this matter to the district court to narrow its injunction so as to provide mitigation conditions under which the Navy may conduct its training exercises.‖ 508 F. 3d 885, 887 (CA9 2007) (emphasis added). For the reasons just stated, neither the District Court nor the Court of Appeals has explained why we should reject the Navy‘s assertions that it cannot effectively conduct its training exercises under the mitigation conditions imposed by the District Court. I would thus vacate the preliminary injunction imposed by the District Court to the extent it has been challenged by the Navy. Neither the District Court nor the Court of Appeals has adequately explained its conclusion that the balance of the equities tips in favor of plaintiffs. Nor do those parts of the record to which the parties have pointed supply the missing explanation.

II Nonetheless, as the Court of Appeals held when it first considered this case, the Navy‘s past use of mitigation conditions makes clear that the Navy can effectively train under some mitigation conditions. In the ordinary course, I would remand so the District Court could, pursuant to the Court of Appeals‘ direction, set forth mitigation conditions that will protect the marine wildlife while also enabling the Navy to carry out its exercises. But, at this point, the Navy has informed us that this set of exercises will be complete by January, at the latest, and an EIS will likely be complete at that point, as well. Thus, by the time the District Court would have an opportunity to impose new conditions, the case could very well be moot. In February of this year, the Court of Appeals stayed the injunction imposed by the District Court—but only pending this Court’s resolution of the case. The Court of appeals concluded that ―[i]n light of the short time before the Navy is to commence its next exercise, the importance of the Navy‘s mission to provide for the national defense and the representation by the Chief


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of Naval Operations that the district court‘s preliminary injunction in its current form will ‗unacceptably risk‘ effective training and strike group certification and thereby interfere with his statutory responsibility . . . to ‗organiz[e], train[], and equip[] the Navy,‘‖ interim relief was appropriate, and the court then modified the two mitigation conditions at issue. 518 F. 3d 704, 705 (CA9 2008). With respect to the 2,200 yard shutdown zone, it required the Navy to suspend its use of the sonar if a marine mammal is detected within 2,200 yards, except when sonar is being used at a ―critical point in the exercise,‖ in which case the amount by which the Navy must power down is proportional to the mammal‘s proximity to the sonar. Id., at 705–706 (internal quotation marks omitted). With respect to surface ducting, the Navy is only required to shut down sonar altogether when a marine mammal is detected within 500 meters and the amount by which it is otherwise required to power down is again proportional to the mammal‘s proximity to the sonar source. Id., at 705– 706. The court believed these conditions would permit the Navy to go forward with its imminently planned exercises while at the same time minimizing the harm to marine wildlife. In my view, the modified conditions imposed by the Court of Appeals in its February stay order reflect the best equitable conditions that can be created in the short time available before the exercises are complete and the EIS is ready. The Navy has been training under these conditions since February, so allowing them to remain in place will, in effect, maintain what has become the status quo. Therefore, I would modify the Court of Appeals‘ February 29, 2008, order so that the provisional conditions it contains remain in place until the Navy‘s completion of an acceptable EIS.

Donald C. Winter, Secretary of the Navy, et al., Petitioners v. Natural Resources Defense Council, Inc., et al. On Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit [November 12, 2008] JUSTICE GINSBURG, with whom JUSTICE SOUTER joins, dissenting. The central question in this action under the National Environmental Policy Act of 1969 (NEPA) was whether the Navy must prepare an

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environmental impact statement (EIS). The Navy does not challenge its obligation to do so, and it represents that the EIS will be complete in January 2009—one month after the instant exercises conclude. If the Navy had completed the EIS before taking action, as NEPA instructs, the parties and the public could have benefited from the environmental analysis— and the Navy‘s training could have proceeded without interruption. Instead, the Navy acted first, and thus thwarted the very purpose an EIS is intended to serve. To justify its course, the Navy sought dispensation not from Congress, but from an executive council that lacks authority to countermand or revise NEPA‘s requirements. I would hold that, in imposing manageable measures to mitigate harm until completion of the EIS, the District Court conscientiously balanced the equities and did not abuse its discretion. In December 2006, the Navy announced its intent to prepare an EIS to address the potential environmental effects of its naval readiness activities in the Southern California (SOCAL) Range Complex. See 71 Fed. Reg. 76639 (2006). These readiness activities include expansion and intensification of naval training, as well as research, development, and testing of various systems and weapons. Id., at 76639, 76640. The EIS process is underway, and the Navy represents that it will be complete in January 2009. Brief for Petitioners 11; Tr. of Oral Arg. 11. In February 2007, seeking to commence training before completion of the EIS, the Navy prepared an Environmental Assessment (EA) for the 14 exercises it planned to undertake in the interim. See App. L to Pet. for Cert. 235a.6 On February 12, the Navy concluded the EA with a finding of no significant impact. App. 225–226. The same day, the Navy commenced its training exercises. Id., at 227 (―The Proposed Action is hereby implemented.‖). On March 22, 2007, the Natural Resources Defense Council (NRDC) filed suit in the U. S. District Court for the Central District of California, seeking declaratory and injunctive relief based on the Navy‘s alleged violations of NEPA and other environmental statutes. As relevant here, the District Court determined that NRDC was likely to succeed on its NEPA claim and that equitable principles warranted preliminary relief. On August 7, 2007, the court enjoined the Navy‘s use of mid-frequency active (MFA) sonar during the 11 remaining exercises at issue. On August 31, the Court of Appeals for the Ninth Circuit stayed the injunction pending disposition of the Navy‘s appeal, and the Navy proceeded with two more exercises. In a November 13 order, the Court of Appeals vacated the stay, stating that NRDC had shown ―a strong likelihood of success


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on the merits‖ and that preliminary injunctive relief was appropriate. 508 F. 3d 885, 886 (2007). The Court of Appeals remanded, however, instructing the District Court to provide mitigation measures under which the Navy could conduct its remaining exercises. On remand, the District Court received briefing from both parties. In addition, the court ―toured the USS Milius at the naval base in San Diego, California, to improve its understanding of the Navy‘s sonar training procedures and the feasibility of the parties‘ proposed mitigation measures. Counsel for both [parties] were present.‖ 530 F. Supp. 2d 1110, 1112 (2008). On January 3, 2008, the District Court entered a modified preliminary injunction imposing six mitigation measures. The court revised the modified injunction slightly on January 10 in response to filings by the Navy, and four days later, denied the Navy‘s application for a stay pending appeal. On the following day, January 15, the Council on Environmental Quality (CEQ), an advisory body within the Executive Office of the President, responded to the Navy‘s request for ―alternative arrangements‖ for NEPA compliance. App. L to Pet. for Cert. 233a. The ―arrangements‖ CEQ set out purported to permit the Navy to continue its training without timely environmental review. Id., at 241a–247a. The Navy accepted the arrangements on the same day. App. 228. The Navy then filed an emergency motion in the Court of Appeals requesting immediate vacatur of the District Court‘s modified injunction. CEQ‘s action, the Navy urged, eliminated the injunction‘s legal foundation. In the alternative, the Navy sought a stay of two aspects of the injunction pending its appeal: the 2,200-yard mandatory shutdown zone and the power-down requirement in significant surface ducting conditions, see ante, at 7–8. While targeting in its stay application only two of the six measures imposed by the District Court, the Navy explicitly reserved the right to challenge on appeal each of the six mitigation measures. Responding to the Navy‘s emergency motion, the Court of Appeals remanded the matter to allow the District Court to determine in the first instance the effect of the intervening executive action. Pending its own consideration of the Navy‘s motion, the District Court stayed the injunction, and the Navy conducted its sixth exercise. On February 4, after briefing and oral argument, the District Court denied the Navy‘s motion. The Navy appealed, reiterating its position that CEQ‘s action eliminated all justification for the injunction. The Navy also argued that vacatur of the entire injunction was required irrespective of CEQ‘s action, in part because the ―conditions imposed, in particular the 2,200 yard mandatory shutdown zone and the six decibel (75%) power-down in significant surface

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ducting conditions, severely degrade the Navy‘s training.‖ Brief for Appellants in No. 08–55054 (CA9), p. 15. In the February 29 decision now under review, the Court of Appeals affirmed the District Court‘s judgment. 518 F. 3d 658, 703 (2008). The Navy has continued training in the meantime and plans to complete its final exercise in December 2008. As the procedural history indicates, the courts below determined that an EIS was required for the 14 exercises. The Navy does not challenge that decision in this Court. Instead, the Navy defends its failure to complete an EIS before launching the exercises based upon CEQ‘s ―alternative arrangements‖—arrangements the Navy sought and obtained in order to overcome the lower courts‘ rulings. As explained below, the Navy‘s actions undermined NEPA and took an extraordinary course.

II NEPA ―promotes its sweeping commitment‖ to environmental integrity ―by focusing Government and public attention on the environmental effects of proposed agency action.‖ Marsh v. Oregon Natural Resources Council, 490 U. S. 360, 371 (1989). ―By so focusing agency attention, NEPA ensures that the agency will not act on incomplete information, only to regret its decision after it is too late to correct.‖ Ibid. The EIS is NEPA‘s core requirement. Department of Transportation v. Public Citizen, 541 U. S. 752, 757 (2004). This Court has characterized the requirement as ―action-forcing.‖ Andrus v. Sierra Club, 442 U. S. 347, 350 (1979) (internal quotation marks omitted). Environmental concerns must be ―integrated into the very process of agency decisionmaking‖ and ―interwoven into the fabric of agency planning.‖ Id., at 350–351. In addition to discussing potential consequences, an EIS must describe potential mitigation measures and alternatives to the proposed course of action. See Robertson v. Methow Valley Citizens Council, 490 U. S. 332, 351–352 (1989) (citing 40 CFR §§1508.25(b), 1502.14(f), 1502.16(h), 1505.2(c) (1987)). The EIS requirement ―ensures that important effects will not be overlooked or underestimated only to be discovered after resources have been committed or the die otherwise cast.‖ 490 U. S., at 349. ―Publication of an EIS . . . also serves a larger informational role.‖ Ibid. It demonstrates that an agency has indeed considered environmental concerns, and ―perhaps more significantly, provides a springboard for public comment.‖


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Ibid. At the same time, it affords other affected governmental bodies ―notice of the expected consequences and the opportunity to plan and implement corrective measures in a timely manner.‖ Id., at 350. In light of these objectives, the timing of an EIS is critical. CEQ regulations instruct agencies to ―integrate the NEPA process with other planning at the earliest possible time to insure that planning and decisions reflect environmental values.‖ 40 CFR §1501.2 (1987). An EIS must be prepared ―early enough so that it can serve practically as an important contribution to the decisionmaking process and will not be used to rationalize or justify decisions already made.‖ Andrus, 442 U. S., at 351–352, n. 3 (quoting 40 CFR §1502.5 (1979)). The Navy‘s publication of its EIS in this case, scheduled to occur after the 14 exercises are completed, defeats NEPA‘s informational and participatory purposes. The Navy‘s inverted timing, it bears emphasis, is the very reason why the District Court had to confront the question of mitigation measures at all. Had the Navy prepared a legally sufficient EIS before beginning the SOCAL exercises, NEPA would have functioned as its drafters intended: The EIS process and associated public input might have convinced the Navy voluntarily to adopt mitigation measures, but NEPA itself would not have impeded the Navy‘s exercises. See Public Citizen, 541 U. S., at 756, 769, n. 2 (noting that NEPA does not mandate particular results, but rather establishes procedural requirements with a ―focus on improving agency decisionmaking‖). The Navy had other options. Most importantly, it could have requested assistance from Congress. The Government has sometimes obtained congressional authorization to proceed with planned activities without fulfilling NEPA‘s requirements. See, e.g., Floyd D. Spence National Defense Authorization Act for Fiscal Year 2001, Pub. L. 106–398, §317, 114 Stat. 1654A–57 (exempting the military from preparing a programmatic EIS for low-level flight training); 42 U. S. C. §10141(c) (exempting the Environmental Protection Agency from preparing an EIS for the development of criteria for handling spent nuclear fuel and high-level radioactive waste); 43 U. S. C. §1652(d) (exempting construction of the trans-Alaska oil pipeline from further NEPA compliance). Rather than resorting to Congress, the Navy ―sought relief from the Executive Branch.‖ Ante, at 8. On January 10, 2008, the Navy asked CEQ, adviser to the President, to approve alternative arrangements for NEPA compliance pursuant to 40 CFR §1506.11 (1987). App. L to Pet. For Cert. 233a; see ante, at 8, n. 3. The next day, the Navy submitted supplementary

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material to CEQ, including the Navy‘s EA and after-action reports, the District Court‘s orders, and two analyses by the National Marine Fisheries Service (NMFS). App. L to Pet. for Cert. 237a–238a. Neither the Navy nor CEQ notified NRDC, and CEQ did not request or consider any of the materials underlying the District Court orders it addressed. Four days later, on January 15, the Chairman of CEQ issued a letter to the Secretary of the Navy. Repeating the Navy‘s submissions with little independent analysis, the letter stated that the District Court‘s orders posed risks to the Navy‘s training exercises. See id., at 238a (―You have explained that the training restrictions set forth in the . . . injunctive orders prevent the Navy from providing Strike Groups with adequate proficiency training and create a substantial risk of precluding certification of the Strike Groups as combat ready.‖). The letter continued: ―Discussions between our staffs, your letter and supporting documents, and the classified declaration and briefings I have received, have clearly determined that the Navy cannot ensure the necessary training to certify strike groups for deployment under the terms of the injunctive orders. Based on the record supporting your request . . . CEQ has concluded that the Navy must be able to conduct the [exercises] . . . in a timeframe that does not provide sufficient time to complete an EIS. Therefore, emergency circumstances are present for the nine exercises and alternative arrangements for compliance with NEPA under CEQ regulation 40 C.F.R. §1506.11 are warranted.‖ Id., at 240a.

The alternative arrangements CEQ set forth do not vindicate NEPA‘s objectives. The arrangements provide for ―public participation measures,‖ which require the Navy to provide notices of the alternative arrangements. Id., at 242a. The notices must ―seek input on the process for reviewing postexercise assessments‖ and ―include an offer to meet jointly with Navy representatives . . . and CEQ to discuss the alternative arrangements.‖ Id., at 242a–243a. The alternative arrangements also describe the Navy‘s existing research and mitigation efforts. Id., at 243a–247a. CEQ‘s hasty decision on a one-sided record is no substitute for the District Court‘s considered judgment based on a two-sided record.7 More fundamentally, even an exemplary CEQ review could not have effected the short circuit the Navy sought. CEQ lacks authority to absolve an agency of its statutory duty to prepare an EIS. NEPA established CEQ to assist and advise


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the President on environmental policy, 42 U. S. C. §4342, and a 1977 Executive Order charged CEQ with issuing regulations to federal agencies for implementation of NEPA‘s procedural provisions, Exec. Order No. 11991, 3 CFR 123 (1977 Comp.). This Court has recognized that CEQ‘s regulations are entitled to ―substantial deference,‖ Robertson, 490 U. S., at 355, and §1506.11 indicates that CEQ may play an important consultative role in emergency circumstances, but we have never suggested that CEQ could eliminate the statute‘s command. If the Navy sought to avoid its NEPA obligations, its remedy lay in the Legislative Branch. The Navy‘s alternative course—rapid, selfserving resort to an office in the White House—is surely not what Congress had in mind when it instructed agencies to comply with NEPA ―to the fullest extent possible.‖ 42 U. S. C. §4332.8

III A Flexibility is a hallmark of equity jurisdiction. ―The essence of equity jurisdiction has been the power of the Chancellor to do equity and to mould each decree to the necessities of the particular case. Flexibility rather than rigidity has distinguished it.‖ Weinberger v. Romero-Barcelo, 456 U. S. 305, 312 (1982) (quoting Hecht Co. v. Bowles, 321 U. S. 321, 329 (1944)). Consistent with equity‘s character, courts do not insist that litigants uniformly show a particular, predetermined quantum of probable success or injury before awarding equitable relief. Instead, courts have evaluated claims for equitable relief on a ―sliding scale,‖ sometimes awarding relief based on a lower likelihood of harm when the likelihood of success is very high. 11A C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure §2948.3, p. 195 (2d ed. 1995). This Court has never rejected that formulation, and I do not believe it does so today. Equity‘s flexibility is important in the NEPA context. Because an EIS is the tool for uncovering environmental harm, environmental plaintiffs may often rely more heavily on their probability of success than the likelihood of harm. The Court is correct that relief is not warranted ―simply to prevent the possibility of some remote future injury.‖ Ante, at 12 (quoting Wright & Miller, supra, §2948.1, at 155). ―However, the injury need not have been inflicted when application is made or be certain to occur; a strong threat of

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irreparable injury before trial is an adequate basis.‖ Wright & Miller, supra, §2948.1, at 155–156 (footnote omitted). I agree with the District Court that NRDC made the required showing here.

B 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. E.g., App. 600–602; 360– 362; 478–479. As the Ninth Circuit noted, the EA predicts that the Navy‘s ―use of MFA sonar in the SOCAL exercises will result in 564 instances of physical injury including permanent hearing loss (Level A harassment) and nearly 170,000 behavioral disturbances (Level B harassment), more than 8,000 of which would also involve temporary hearing loss.‖ 518 F. 3d, at 696; see App. 223–224. Within those totals, ―the EA predicts 436 Level A harassments of Cuvier‘s beaked whales, of which, according to NOAA, as few as 1,121 may exist in California, Oregon and Washington combined. Likewise, the EA predicts 1,092 Level B harassments of bottlenose dolphins, of which only 5,271 may exist in the California Coastal and Offshore stocks.‖ 518 F. 3d, at 691–692.

The majority acknowledges the lower courts‘ findings, ante, at 9, but also states that the EA predicted ―only eight Level A harassments of common dolphins each year‖ and ―274 Level B harassments of beaked whales per year, none of which would result in permanent injury,‖ ante, at 6. Those numbers do not fully capture the EA‘s predictions. The EA classified the harassments of beaked whales as Level A, not Level B. The EA does indeed state that ―modeling predicts non-injurious Level B exposures.‖ App. 185. But, as the majority correctly notes, ante, at 6, the EA also states that ―all beaked whale exposures are counted as Level A,‖ App. 185. The EA counted the predicted exposures as Level A ―[b]y Navy policy developed in conjunction with NMFS.‖ Id., at 200. The record reflects ―the known sensitivity of these species to tactical sonar,‖ id., at 365 (National Oceanic and Atmospheric Administration letter), and as the majority acknowledges, beaked whales are difficult to study, ante, at 6. Further, as the


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Ninth Circuit noted, ―the EA . . . maintained that the methodology used was based on the ‗best available science.‘‖ 518 F. 3d, at 669.9 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 is no doubt that the training exercises serve critical interests. But those interests do not authorize the Navy to violate a statutory command, especially when recourse to the Legislature remains open. ―Of course, military interests do not always trump other considerations, and we have not held that they do.‖ Ante, at 16. In light of the likely, substantial harm to the environment, NRDC‘s almost inevitable success on the merits of its claim that NEPA required the Navy to prepare an EIS, the history of this litigation, and the public interest, I cannot agree that the mitigation measures the District Court imposed signal an abuse of discretion. Cf. Amoco Production Co. v. Gambell, 480 U. S. 531, 545 (1987) (―Environmental injury, by its nature, can seldom be adequately remedied by money damages and is often permanent or at least of long duration, i.e., irreparable. If such injury is sufficiently likely, therefore, the balance of harms will usually favor the issuance of an injunction to protect the environment.‖). For the reasons stated, I would affirm the judgment of the Ninth Circuit.

End Notes 1

In contrast, passive sonar ―listens‖ for sound waves but does not introduce sound into the water. Passive sonar is not effective for tracking diesel-electric submarines because those vessels can operate almost silently. Passive sonar also has a more limited range than active sonar, and cannot identify the exact location of an enemy submarine. Pet. App. 266a–271a. 2 The CZMA states that federal agencies taking actions ―that affec[t] any land or water use or natural resources of the coastal zone‖ shall carry out these activities ―in a manner which is consistent to the maximum extent practicable with the enforceable policies of approved State management programs.‖ 16 U. S. C. §1456(c)(1)(A). 3 That provision states in full: ―Where emergency circumstances make it necessary to take an action with significant environmental impact without observing the provisions of these regulations, the Federal agency taking the action should consult with the Council about alternative arrangements. Agencies and the Council will limit such arrangements to actions necessary to control the immediate impacts of the emergency. Other actions remain subject to NEPA review.‖ 4 The Ninth Circuit‘s discussion of the plaintiffs‘ likelihood of success was limited to their NEPA claims. The court did not discuss claims under the CZMA or ESA.

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The bulk of JUSTICE GINSBURG‘s dissent is devoted to the merits. For the reasons stated, we find the injunctive relief granted in this case an abuse of discretion, even if plaintiffs are correct on the underlying merits. As to the injunction, the dissent barely mentions the Navy‘s interests. Post, at 11. We find that those interests, and the documented risks to national security, clearly outweigh the harm on the other side of the balance. We agree with much of JUSTICE BREYER‘s analysis, post, at 3–9 (opinion concurring in part and dissenting in part), but disagree with his conclusion that the modified conditions imposed by the stay order should remain in force until the Navy completes its EIS, post, at 9–11. The Court is reviewing the District Court‘s imposition of the preliminary injunction; once we conclude, as JUSTICE BREYER does, post, at 9, that the preliminary injunction should be vacated, the stay order is no longer pertinent. A stay is a useful tool for managing the impact of injunctive relief pending further appeal, but once the Court resolves the merits of the appeal, the stay ceases to be relevant. See 518 F. 3d 704, 706 (CA9 2008) (―the partial stay . . . shall remain in effect until final disposition by the Supreme Court‖). Unexamined conditions imposed by the stay order are certainly no basis for what would be in effect the entry of a new preliminary injunction by this Court. 6 An EA is used ―for determining whether to prepare‖ an EIS. Department of Transportation v. Public Citizen, 541 U. S. 752, 757 (2004) (quoting 40 CFR §1508.9(a) (2003)); see ante, at 5. By definition, an EA alone does not satisfy an agency‘s obligation under NEPA if the effects of a proposed action require preparation of a full EIS. 7 The District Court may well have given too spare an explanation for the balance of hardships in issuing its injunction of August 7, 2007. The court cured any error in this regard, however, when it closely examined each mitigation measure in issuing the modified injunction of January 3, 2008. The Court of Appeals, too, conducted a detailed analysis of the record. 8 On the same day that CEQ issued its letter, the President granted the Navy an exemption from the requirements of the Coastal Zone Management Act of 1972 (CZMA) pursuant to 16 U. S. C. §1456(c)(1)(B). That exemption, expressly authorized by the CZMA, does not affect NRDC‘s NEPA claim. 9 The majority reasons that the environmental harm deserves less weight because the training exercises ―have been taking place in SOCAL for the last 40 years,‖ such that ―this is not a case in which the defendant is conducting a new type of activity with completely unknown effects on the environment.‖ Ante, at 13. But the EA explains that the proposed action is not a continuation of the ―status quo training.‖ App. 128. Instead, the EA is based on the Navy‘s proposal to employ a ―surge‖ training strategy, ibid., in which the commander ―would have the option to conduct two concurrent major range events,‖ id., at 124.

INDEX A acoustic, ix, x, 1, 2, 15, 28, 35, 37, 43 acoustic waves, x, 37, 43 acute, 72 adjudication, 48, 53 administrative, 23 Administrative Procedure Act, 7 advisory body, 67 aid, 27, 28 air, 3, 43 Air Force, 20, 21 Aircraft, 28, 29 alternative, 5, 6, 9, 11, 18, 19, 20, 21, 23, 38, 47, 48, 57, 63, 67, 68, 69, 70, 71, 73 alternatives, 6, 8, 20, 64, 68 amendments, 4 animals, x, xi, 2, 3, 9, 15, 31, 35, 38, 44, 52 APA, 7, 8 application, 20, 21, 67, 71 appropriations, 7 argument, 22, 46, 57, 59, 67 armed forces, x, 33 assault, 42 assessment, 5, 6, 45, 60 assets, 35, 42 authority, x, 2, 9, 18, 19, 23, 48, 57, 66, 70 avoidance, 55 awareness, 54

B bathymetric, 31 batteries, 3 battery, 43 behavior, 29, 31, 47 blood, 3 brain, 72 breathing, 4 breeding, 4, 45, 60

C canals, 22 cargo, 21 carrier, 42 cast, 68 central nervous system, 72 certificate, 7 certification, 7, 54, 55, 63, 65, 70 coastal management, 6 coastal zone, 73 communication, 22, 27 complexity, 61 compliance, 3, 5, 6, 7, 9, 25, 26, 36, 38, 46, 47, 48, 67, 69, 70 composition, 51 constitution, 22 constraints, 28 construction, 69

74

Index

control, 6, 19, 51, 73 Council on Environmental Quality, 6, 38, 47, 67 Court of Appeals, 8, 37, 38, 40, 41, 42, 46, 47, 53, 54, 55, 56, 58, 59, 61, 63, 64, 65, 66, 67, 68, 74 courts, x, 2, 19, 20, 39, 40, 48, 49, 50, 51, 53, 54, 57, 68, 71, 72 critical habitat, 5 CRS, ix, 1, 21 cues, 28

D danger, 5 death, 20, 22, 34 decibel, 67 decisions, 18, 23, 51, 69 decompression, 44 defendants, 8, 21 defense, 4, 18, 25, 37, 41, 44, 51, 56, 61, 64 definition, 4, 60, 74 denial, 50 density, 43 Department of Commerce, 8, 26 Department of Defense, 4, 25 Department of Housing and Urban Development, 20 Department of Transportation, 68, 74 Desert Storm, 20, 21 destruction, 5, 45, 60 detection, 27, 28, 29, 30, 55 diesel, x, 33, 37, 43, 52, 62, 73 disposition, 66, 74 disputes, xi, 38, 48 disseminate, 28 dissenting opinion, 18, 19, 23, 42, 59 distortions, 41, 55 distribution, 35 draft, 19, 23 duration, 31, 73 duties, 27, 28

E ears, ix, 1, 3, 22, 72

ecological, 40, 49, 52, 58 Endangered Species Act, x, 2, 3, 5, 45 energy, 55 environment, 5, 8, 36, 45, 46, 49, 50, 53, 59, 61, 62, 73, 74 environmental conditions, 52 environmental effects, ix, 6, 59, 66, 68 environmental impact, xi, 6, 19, 38, 42, 45, 47, 50, 58, 59, 66, 73 environmental policy, 71 Environmental Protection Agency, 69 equating, 55 equities, 18, 39, 40, 48, 52, 53, 57, 64, 66 equity, 51, 71 exclusion, 9, 16, 46, 50 excuse, 6, 7 execution, 42 Executive Branch, 38, 46, 69 Executive Office of the President, 67 Executive Order, 19, 23, 71 exercise, 12, 15, 17, 27, 28, 30, 31, 32, 35, 53, 61, 64, 65, 67, 68, 70 exposure, ix, 1 extinction, 5

F fabric, 68 failure, 50, 68 Federal District Court, 58 federal government, 5 federal law, xi, 38 feeding, 4, 45, 60 feet, 31 Fish and Wildlife Service, 10, 20 fishing, 34 flexibility, 71 flight, 21, 69 floating, 31 FMC, 11 focusing, 68 fuel, 69 funding, 20

Index

G gas exploration, ix goggles, 15 greed, 46 groups, xi, 8, 31, 38, 39, 41, 42, 43, 44, 47, 48, 53, 55, 56, 70

H habitat, 4, 5, 31, 50 handling, 69 harassment, 4, 8, 45, 60, 72 hardships, 38, 47, 53, 61, 62, 74 harm, ix, 1, 3, 4, 5, 8, 11, 18, 39, 44, 46, 48, 49, 50, 52, 53, 57, 59, 60, 61, 62, 65, 66, 71, 72, 73, 74 harmful effects, 64 hearing loss, 44, 72, 73 helicopters, 9, 15 high-level, 69 HUD, 20 human, 45 humans, 3 hunting, 44

I implementation, 5, 27, 71 indicators, 30 infrared, 15 injunction, 8, 9, 10, 11, 12, 18, 38, 39, 40, 41, 42, 46, 47, 48, 49, 51, 53, 54, 56, 57, injury, xi, 5, 18, 38, 39, 44, 45, 46, 47, 49, 50, 51, 52, 60, 71, 72, 73 instruction, 27 integrity, 68 interaction, 28 interference, 43, 52, 56

J judge, 22, 51, 57 judgment, 7, 20, 39, 51, 58, 68, 70, 73 jurisdiction, 71 justification, 67

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K killing, 44

L land, 31, 43, 73 language, 23, 63 law, 5, 7, 22, 57 laws, x, xi, 2, 3, 8, 36, 38 lesions, 72 LFA, ix, 55 likelihood, 8, 39, 47, 48, 49, 50, 54, 57, 61, 66, 71, 73 limitations, x, 2 litigation, 2, 3, 8, 10, 11, 47, 48, 73 long distance, ix low-level, 69

M maintenance, 42 mammal, xi, 4, 5, 12, 15, 28, 29, 30, 31, 35, 38, 40, 44, 46, 50, 53, 54, 57, 60, 61, 62, 65, 72 management, 6, 73 marine environment, 43 marine mammals, ix, xi, 1, 2, 3, 5, 7, 8, 18, 27, 28, 29, 30, 31, 32, 34, 35, 38, 40, 41, 42, 44, 45, 46, 47, 49, 52, 54, 56, 58, 60, 62, 63, 72 maritime, 25 measures, x, 2, 3, 5, 7, 8, 9, 10, 11, 12, 21, 22, 26, 27, 28, 35, 41, 45, 46, 50, 53, 55, 56, 58, 60, 61, 62, 64, 66, 67, 68, 69, 70, 73 media, 3 mediation, 7 medicine, 57 migration, 4, 17, 45, 60 military, ix, x, 2, 4, 5, 18, 20, 21, 25, 26, 39, 42, 51, 52, 63, 69, 73 misleading, 55 missions, 16, 42 modeling, 72 models, 45

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Index

money, 73 moratorium, 4 mortality, ix motion, 12, 46, 67

N nation, x, 7, 33 National Defense Authorization Act, 4, 69 National Marine Fisheries Service, 8, 26, 70 National Oceanic and Atmospheric Administration, 72 national policy, 19 national security, x, 7, 21, 33, 41, 46, 52, 57, 74 natural habitats, 52 natural resources, 11, 73 nitrogen, 3 NOAA, 72 noise, ix, 2, 3 normal, 29, 30 nursing, 4, 60

O obligation, 2, 47, 59, 66, 71, 74 oceans, 21, 34 oil, ix, 69 olive, 10 optical systems, 28 oral, 46, 57, 67 original training, 60 OTC, 31 oversight, 6

P

power, 30, 38, 39, 41, 43, 52, 54, 55, 58, 59, 62, 65, 67, 71 preparedness, 41, 56 private, 6, 7 probability, 46, 71 program, x, 2, 3, 7, 18, 21, 27, 42, 49 proposition, 61 propriety, 57 protection, xi, 3, 35, 38, 42, 44 public interest, 10, 18, 39, 40, 47, 48, 50, 51, 52, 53, 57, 61, 62, 73 pulses, ix, x, 1, 2, 37, 43

Q quantum, 71

R radioactive waste, 69 radius, 30, 40, 54, 59, 62 range, 2, 26, 43, 55, 73, 74 reading, 23 reasoning, 41, 56 reception, 43 recreational, 40, 49, 52, 58 redevelopment, 20 regular, 11, 43, 53, 61, 62 regulation, 6, 10, 19, 23, 38, 47, 70, 71, 73 relationship, 54 resolution, 64 resources, 6, 8, 11, 68, 73 rigidity, 71 risk, 9, 47, 63, 65, 70, 73 risks, 70, 74

S parasite, 34 passive, 2, 15, 28, 34, 35, 73 penalty, 5 periodic, 31 permit, 65, 67 planning, 30, 31, 68, 69 platforms, 16, 27 play, 71 poisoning, 20 population, 3, 73

safety, x, 5, 18, 28, 33, 52 salinity, 43 scheduling, 21 sea floor, 43 search, 21, 28 Secretary of Commerce, 4, 5, 6, 25 Secretary of Defense, vii, 4, 25, 44 security, x, 7, 21, 33, 41, 46, 52, 57, 74 sensitivity, 72

Index sensors, 15 separation of powers, 48 shores, 16, 22, 34 simulation, 63 skills, 27 software, 35 species, xi, 4, 5, 27, 28, 29, 31, 35, 38, 44, 49, 72 speed, ix, 1, 2 spent nuclear fuel, 69 sperm, 8 statutes, ix, 6, 8, 66 statutory, 4, 18, 19, 48, 65, 70, 73 stock, 4, 60 stress, 51 submarines, ix, x, 1, 2, 28, 29, 30, 33, 34, 37, 38, 39, 40, 42, 43, 51, 52, 55, 56, 58, 61, 62, 73 supervision, 27 supplemental, 21 supply, 63, 64 surface area, 40, 54 surveillance, 28, 31

T tactics, 26 temperature, 31, 46, 62 threat, x, 28, 37, 39, 41, 43, 51, 56, 57, 58, 71 threatened, 5 threats, x, 33, 42, 51 thresholds, 35

77

timing, 69 tissue, 45, 60 tracking, 43, 52, 73 transmission, 29, 45 transmits, 43 transport, 21 travel, ix, 45 trial, 72 turtle, 10

U uncertainty, ix, 60 urban renewal, 20

V values, 69 vessels, 27, 34, 43, 73 vision, 15 vocalizations, 28

W war, 41, 42, 43, 56, 58 warfare, x, 37, 38, 43, 51, 54, 56, 58, 61, 62 water, 3, 27, 28, 30, 31, 43, 44, 46, 55, 62, 73 weapons, 66 wildlife, 64, 65 winter, 10 World War, ix, 1, 2 writing, 59

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