Winter v. Natural Resources Defense Council, Inc. - Oral Argument

ORAL ARGUMENT OF GREGORY G. GARRE ON BEHALF OF THE PETITIONERS

Chief Justice Roberts: We will hear argument first in Case 07-1239, Winter v. Natural Resources Defense Council. General Garre.

General Garre: Thank you, Mr.

Chief Justice, and may it please the Court:

The ability to locate and track an enemy submarine through the use of mid-frequency active sonar is vitally important to the survival of our naval strike groups deployed around the world and therefore critical to the nation's own security. In this case the Ninth Circuit affirmed a preliminary injunction that places serious restrictions on the Navy's use of MFA sonar in training exercises that in the judgment of the President and his top naval officers are in the paramount interests of the United States. That injunction is fundamentally flawed for three principal reasons.

First, it is based on an erroneous assessment of the likelihood of success on Respondent's NEPA claim. Second it is based on an erroneous conception of the showing of irreparable injury necessary to secure what this Court has aptly called "the extraordinary and dramatic remedy" of a preliminary injunction. And finally, it fails to take account the vital public interests in conducting the training exercises at issue unencumbered by the injunction's restrictions.

Justice Ginsburg: General Garre, when you address the injunction, do you mean the injunction as originally ordered by the district court or are you taking account of the modification made by the Ninth Circuit, and would you say that the three points you just made would apply as well to the injunction as modified?

General Garre: Certainly we would, Justice Ginsburg. Obviously our position on the NEPA claim is the same with respect to any aspect of the injunction. So too with the risk of irreparable harm which we think Respondents haven't shown. The Ninth Circuit did modify the injunction by issuing a partial stay. It's important to keep in mind that its modifications were tied only to a stay. It didn't actually modify the injunction. So even if this Court thought those modifications were appropriate, it would have to vacate the Ninth Circuit decision.

Justice Scalia: Say it again? I'm not sure I --

General Garre: The Ninth Circuit framed its modifications in terms of a partial stay of its decision affirming the district court's preliminary injunction.

That stay and therefore those modifications remained in effect only until this Court issued its decision in this case.

stay pend

Chief Justice Roberts:

General Garre: Right.

Chief Justice Roberts: ing certiorari, right? That's the temporary I think what Justice Ginsburg was talking about -- and she can correct me if I am wrong -- were the modifications from the initial preliminary injunction and the modified preliminary injunction.

General Garre: Well, yes, we are here complaining about the restriction on the 2200-yard shutdown requirement, where if a marine mammal comes within 2200 yards of a naval vessel part of one of these strike groups it has to shut down sonar operations, as well as the 75 percent powerdown requirement when significant surface ducting conditions are present regardless of the presence of marine mammals.

Justice Alito: You mentioned the effect on naval operations. On the other side, could you say what the record shows about the number of marine mammals that are likely to be killed or receive actual physical injury if the -- as opposed to some sort of behavioral modification, if the injunction is allowed to continue?

General Garre: The record -- and here I'm referring to the environmental assessment and the opinion of the National Marine Fisheries Services in the petition appendix and the joint appendix -- indicates that no marine mammal will be killed as a result of these exercises. The environmental assessment predicted there would be eight instances of injurious harm. These eight instances would take place only with respect to a common species of dolphins of which there are hundreds of thousands in the Southern California Operating Area.

Now, the environmental assessment also predicted that there would be a much greater number, 170,000 over the course of two years, of so-called Level B takes. These are temporary and by definition non-injurious disturbances and that's made clear at pages 258a of the petition appendix and page 175 of the JA, which make clear that these Level B disturbances, the vast majority of the disturbances predicted by the environmental assessment, are temporary and non-injurious.

Justice Stevens: Just as to dolphins?

General Garre: The vast majority of those disturbances, some almost 90 percent, pertain only to dolphins.

Justice Stevens: And what percentage is that of the total population in the area?

General Garre: Well, I think that the statistics I have indicate that there are more than I think 500,000 dolphins on the western coast there. As to -- the number may be actually a little bit lower in the Southern California Operating Area. But this is -- no one suggests that is in any way a threatened species.

With respect to the species that are endangered, threatened, or even strategic under the Marine Mammal Protection Act, the National Marine Fisheries Services concluded there would be no adverse harm on the population level or with respect to annual recruitment rates with respect to those endangered or threatened species in the biological opinion that the district court sustained and that Respondents are not challenging on appeal.

The focus of their claim of irreparable injury -- and keep in mind that that environmental assessment comes against the backdrop of a 40-year history of the Navy's use of MFA sonar in the Southern California Operating Area at the same frequency and, if anything, during more frequent training exercises than have been conducted in recent years.

Justice Ginsburg: You didn't mention the 564 exposures that were typed Level A in the environmental assessment.

General Garre: With respect to beaked whales, Justice Ginsburg, that's correct. Those disturbances are temporary, non-injurious disturbances.

That's important. Let me give you the page cites to the record on that because it's an important point. JA 178 to 180, JA 185 to 188, and JA 198 to 200 discuss each species of the beaked whales and explain that the harms that are predicted in the environmental assessment are non-injurious, temporary harms.

Now as a policy matter --

Justice Alito: In lay terms, what does that mean? Does it mean an alteration of their swimming pattern, their migration pattern? What does it mean?

General Garre: In most cases it means that there's an alerting response, they hear the sound and they go in the opposite direction, as one who hears a noise that disturbs them would ordinarily do. It can also mean that they could have some temporary effect on their feeding or breeding patterns, but it's a temporary effect.

Justice Alito: It doesn't necessarily mean that there's a physical injury to them, does it?

General Garre: No.

Justice Alito: It means that they may just swim in a different direction.

General Garre: That's right. By definition only a Level A take involves an injurious harm, that is a physical harm which results in permanent damage to tissue.

Justice Ginsburg: I thought the 564 number was Level A, which I also thought meant exposure resulting in severe harm.

General Garre: It is confusing, Justice Ginsburg. The Navy as a policy matter described for purposes of the environmental assessment the Level B takes with respect to beaked whales as Level A takes because the Navy acknowledged that there is uncertainty about the effects of sonar on beaked whales. But when you look at what the environmental assessment says as to the actual injuries that the National Marine Fish and Wildlife Service and the Navy predicted based on the best science available to them and to us today, they are non-injurious, temporary exposures, and that is made clear at the portions of the JA that I mentioned.

Now, the Navy -- there is nothing that prevents an agency from characterizing the particular harm one way or the other as a policy matter for purposes of an environmental assessment.

Justice Stevens: May I ask this question, Mr. Solicitor General. Is it understood, though, that there is a duty to prepare an environmental impact statement?

General Garre: Yes, there is, because we're not here arguing that, at this point, that we had no duty to prepare an environmental impact statement because of the intervening event of the Council for Environmental Quality's emergency circumstances alternative arrangements determination. That's the pertinent administrative event for purposes of Respondent's claim.

Chief Justice Roberts: Let me follow that.

You concede that you have to prepare an EIS in light of the CEQ's emergency circumstances?

General Garre: Yes, it's one of the alternative arrangements that the Navy agreed to, is that the environmental impact statement which has been under way will be completed by January 2009 with respect to all activities in the Southern California Operating Area. Now, that's not to say that we concede that an environmental impact statement was not required -- was required at the outset. The Navy doesn't concede that.

It litigated this case up to the point of the Council for Environmental Quality's determination.

Chief Justice Roberts: Why didn't you -- I mean, you emphasize the level of detail and comprehensiveness of the environmental assessment that the Navy prepared. Why didn't you just make -- why didn't you just go ahead and do an EIS from the outset if you were going to engage in such effort with respect to the environmental assessment?

General Garre: Because the Navy devoted its best resources to this and in good faith, as is indicate bide the 293-page environmental assessment, concluded that there would not be a finding of significant environmental impact, and at that point everyone agrees an environmental impact statement is not required.

Justice Breyer: Suppose you have to do it.

Given all your work so far, how long would it take? You had several months already, so how long? When could you do it by?

General Garre: It's going to be completed by January 2009, Justice Breyer, under the alternative arrangements that have been approved --

Justice Breyer: So we're talking about two months.

General Garre: Well, at this point we are.

The point that the Navy faced in January of 2008, where it had an injunction against its use of sonar in these training exercises and only an environmental impact statement, it faced, as the Council of Environmental Quality found, emergency circumstances in terms of the need to conduct these training exercises.

Justice Kennedy: I take it that you're are here because you find the decision of the Ninth Circuit, and I take it of the district court, prejudicial for the government on an ongoing basis; and what are the principal reasons for that?

General Garre: Because of its impact on national security, Justice Kennedy.

Justice Kennedy: And what particular errors? The standard for review -- pardon me. The standard for the grant or denial of injunction? What are the principal areas you want to present to us?

General Garre: I think there are three fundamental flaws, as I indicated. One, we think the Ninth Circuit just got the NEPA claim wrong. The Navy is complying with NEPA through the alternative arrangements and the regulations, but the CEQ found --

Justice Souter: Where was the statutory authority suspending the obligation to provide an EIS? You mentioned a regulation. Where in the statute does it say that the Council on Environmental Quality can dispense with this requirement?

General Garre: I think we would point to a couple of things. First, in terms of the statute, NEPA says that the obligations of the statute should be complied with to the fullest extent. And it doesn't specifically say what happens if they are not followed.

These are procedural requirements. Secondly --

Justice Souter: No, but that's not the question I am asking. I am not asking about the consequences of not complying. I am asking what is the statutory authority for the Council on Environmental Quality to dispense with the statutory obligation to prepare it?

General Garre: Well --

Justice Souter: That's what -- as I understand it, that's what you're arguing in effect, as an intervening -- as of intervening legal significance.

And I want to know what the statutory authority is for that. I don't see it in NEPA.

General Garre: The statutory authority that we find in NEPA for the CEQ's regulation providing for alternative arrangements is -- first, it's acknowledged by this Court that CEQ has rulemaking authority. The Court acknowledged that in Department of Transportation v. Public Citizen. So we take that as a given.

Justice Souter: Okay. As a general proposition that's fine, but what's the statutory authority for them to engage in rulemaking authority that dispenses with the government's obligation to comply with an EIS requirement?

General Garre: Well, let me -- I'll answer the question, but let me be clear: The government's position is that we are complying with NEPA by -- by complying with the alternative arrangements provided by the Council on Environmental Quality.

Justice Souter: But you -- I mean, the claim is that you weren't complying with it at the time the request for an injunction was brought, and everything else is consequent on that. So I want to go back to the point, in effect, at which the claim was made that the government is not complying. One of your answers to that is right now, as a result of subsequent Council on Environmental Quality action, we're not in the same situation that we were in when the suit was brought. And I want to know what the statutory authority is for the Council on Environmental Quality to take the action with the effect that you claim it has.

General Garre: And I would point, Your Honor, to the language in NEPA that says it should be complied with to the fullest extent possible --

Justice Souter: That --

General Garre: -- and I would --

Justice Souter: -- seems to cut against you. I am not getting it.

General Garre: Well, that language, coupled with -- which seems to us to suggest that compliance to the fullest extent possible would depend on the circumstances, coupled with the fact that NEPA doesn't impose, doesn't say what the consequences of noncompliance would be --

Justice Souter: Okay, but --

General Garre: -- but other --

Chief Justice Roberts: But why -- I don't know if this is Justice Souter's question, but why CEQ? I mean, NEPA doesn't really give anybody any regulatory authority -- EPA, CEQ. And it seems to me that CEQ is an odd entity to be doing this. They're more or less an office in the White House, rather than a free-standing agency.

General Garre: Well, this Court has acknowledged in numerous cases, Methow Valley and in the Public Citizen case a few years ago, that NEPA gives CEQ rulemaking authority, and that this Court gives substantial deference to the CEQ's rules.

Justice Ginsburg: Rulemaking to do what? To set up an orderly regime for Federal agencies to carry out their obligations under NEPA?

General Garre: To implement the statute, that's right. And there are a number of important procedural requirements that go far beyond what the statute requires that the CEQ has laid out in its regulations. One of the regulations -- and this has been on the books since 1979 and has been implemented some 40 times. So this isn't something that was made up in this case. It's an established regulatory practice under NEPA that where there are emergency circumstances an agency can come up with alternative arrangements to comply with its NEPA obligations. And here those alternative arrangements were: One, to complete an EIS that is under way for all sonar activities and all other activities by the Navy in the Southern California operating area by January 2009. The Navy is going to meet that goal. Two, to adopt the mitigation measures spelled out in the alternative arrangements. Three, to provide for public participation so that there could be comment on any concerns to marine mammals in the area.

And four, to provide for research into harms to marine mammals. These were significant arrangements that the Navy agreed to.

Justice Ginsburg: But what good is it if, as I understand it, the whole training program will be over in December, and then the environmental impact statement, which was supposed to come first, is going to come after the whole project is concluded?

General Garre: Well, it has -- it's important because the environmental impact statement that's going to be completed pertains not only to COMPTUEX and JTF exercises that will be completed in the Southern California Operating Area in the future, but all activities. So that environmental impact statement is going to be very meaningful.

Justice Souter: Let me -- let me switch back. Chief? Let me switch back in time for a second to the beginning of these exercises. One of the -- I mean, one of the arguments, and you have alluded to it, for I guess the appropriateness of the Council on Environmental Quality's action, if it has any power to act, is emergency circumstances. My understanding, and correct me if I'm wrong on the facts, is that the exercises began in February of 2007. My understanding is that it was in that same month of February 2007 that the Navy produced the EA, the environmental assessment, so that in effect, as I understand it, the Navy disclosed the fact that it would not provide an EIS at just about the same moment that it began the exercises.

General Garre: I think --

Justice Souter: And I guess my question is, to the extent that there was an emergency, wasn't the emergency created by the failure of the Navy to take any timely action? I am assuming in my question that the Navy had decided before February 1st, 2007, that it was going to have these exercises. So it sounds to me as though that, if there is an emergency, it's one that the Navy created simply by failing to start an EIS preparation in a timely way at which it tried in effect to sort of neutralize by keeping everybody in the dark until the last moment. So, why -- why shouldn't we say that -- even assuming the Council on Environmental Quality can somehow dispense with the statute, why shouldn't we say that there was no emergency here except one which was created by the Navy's apparently deliberate inattention?

General Garre: For several reasons, Justice Souter. First, there was a gap between when the Navy issued its environmental assessment and when the first training exercises began.

Justice Souter: Well, it was a gap of less than month, right?

General Garre: I believe -- I believe that's right, but there was a gap and there's no -- I don't think there can be any --

Justice Souter: And how long does it -- how long does it take -- going back to Justice Breyer's question, how long does it take to prepare an environmental impact statement? It takes more than --

General Garre: Well, I --

Justice Souter: It takes more than a month, doesn't it.

General Garre: Sure. Absolutely.

Justice Souter: Okay.

General Garre: But I don't think --

Justice Souter: And the Navy knew more than the 1st -- earlier than the 1st of February that it was going to engage in these exercises, didn't it?

General Garre: It did, and it also knew that it was in the process of finalizing an environmental impact statement that it prepared in good faith, a 293-page statement, which concluded that there would be --

Chief Justice Roberts: An environmental assessment.

General Garre: An environmental assessment, that's right, with the finding of no significant environmental impact.

This Court presumes the regularity of administrative actions. There's no reason for the Navy, particularly on this record, to have assumed that that EA would not have been sustained. The emergency circumstances arose in January 2008, when the district court enjoined the use of MFA sonar in these exercises when the Navy had several exercises.

Justice Souter: Sure, but they wouldn't have been in the situation in January of 2008 if they hadn't been in the situation I described in February of 2007. And it sounds to me as though the Navy played its cards very close to its vest --

General Garre: Well --

Justice Souter: -- in 2007.

General Garre: Well, with respect, I don't think that a 293-page environmental assessment with the kind of detail and support that this assessment has --

Justice Scalia: Look, the problem you face -- and maybe you're being whipsawed -- is that you are effectively estopped from the argument that no EIS is necessary by the fact that you have agreed to these alternative arrangements. But you should not be estopped from arguing that at the time the EA was issued that was not a good faith completion of all the Navy's responsibilities. And that's the argument that is being made against you now. It assumes that the EA wasn't enough. And I'm not sure that we -- that that assumption is valid.

General Garre: Well, that's right. And as I indicated earlier -- I want to be clear -- the Navy believes that its environmental assessment was not only prepared in good faith, but was appropriate and reached the right conclusions.

Justice Breyer: That's exactly what Justice Kennedy started to ask. I mean, I said why doesn't this thing go away after two months. I mean, you've done it anyway, and Justice Kennedy said because you want a holding from the Court that will help you in other cases because you think what the court below did here was wrong. And you said "three reasons," and you got out the first one, and I would like to hear the other two.

General Garre: The other two are: One, the injunction. Even if you agree with Respondents on the likelihood of success of the NEPA claim, it's based on a showing of irreparable injury that is fundamentally flawed. The Ninth Circuit and the district court looked to whether there was irreparable injury under a possibility standard.

Justice Souter: Didn't both the circuit and the district court, although they mentioned that, in fact find that it was -- I forget what their phrase was -- beyond question.

Justice Ginsburg: Near -- "near certainty."

Justice Souter: "Near certainty."

General Garre: They did, Justice Souter, and we think --

Justice Souter: There is no -- there is no harm. I mean, the standard may or may not be bright, but there is no harm to the Navy in this case from -- from the use of that standard, I take it.

General Garre: Well, I don't think that a court could say that, Justice Souter, for a couple of reasons.

First, when a lower court applies a fundamentally wrong standard to assess -- to make a determination, this Court usually corrects that legal standard and gives the -- the lower court an opportunity to do it again.

Justice Souter: Well, we -- we may, but so far as the case is concerned we may -- and we frequently do -- say there -- there -- that certainly there's no harm in this case, the error was harmless.

General Garre: And, two, the finding, which is a sentence in the district court decision repeated by the court of appeals, of "near certainty of harm to marine mammals" is utterly belied by the environmental assessment in this case as well as the fact that -- and the Ninth Circuit acknowledged this -- the Navy has been using MFA sonar in the Southern California Operating Area for more than 40 years and no one can point to any harm to marine mammals.

Justice Kennedy: Let me ask you --

Justice Stevens: Mr. Garre, could I ask you a question?

General Garre: Yes.

Justice Stevens: If this were not a Navy case with all of the implications of the Navy, but an ordinary case in which it was demonstrated that an EIS had to be filed, would it not be normal -- normal action to enjoin the -- the government action until the EIS was filed? Because the -- the very fact that you need an EIS is -- is because you don't know what environmental consequences may ensue. That's the purpose of the EIS.

So isn't it the normal practice to enjoin government action until the EIS is filed when it is clear there is a duty to file?

General Garre: I don't think it is, Justice Stevens. I think it is -- the normal practice is to require someone who seeks the extraordinary remedy of a preliminary injunction to show irreparable injury, a likelihood of irreparable injury.

Justice Kennedy: Would the irreparable injury have to -- and this just repeats Justice Stevens's question. It is the same concern I have.

Let's assume an EIS is required; let's assume it hasn't been prepared; let's assume the government project is going to proceed. You still have to show irreparable harm before you can get the injunction?

General Garre: You do.

Justice Kennedy: Do you have authority for that in the -- are the circuits unanimous on that point?

General Garre: Well, I don't have authority for that precise proposition because I don't --

Justice Scalia: Well, yes, you do, but it may not be in the circuits. Our cases say that procedural injury alone is not the kind of injury that confers standing; that there has to be some concrete harm.

General Garre: Well --

Justice Scalia: And -- and the only injury that -- that follows from the mere failure to file an EIS is -- is a procedural injury that affects the entire population.

Justice Kennedy: Then, let's -- let's assume standing. Let's assume standing. Let's -- let's assume people have standing.

General Garre: I -- I think that that's right, Judge Scalia.

Justice Breyer: Well, I wouldn't -- look, you have an EIS for the reason that the agency itself, once it reads it, might decide to do something else.

That's the whole point of an EIS. So if the agency goes ahead with the action before reading the EIS, it becomes committed to that course of action, and the chances that the EIS will lead it to back up are the same as the chances that any big agency will back up once it's committed to a course, namely a lot lower. And that I always thought was the whole harm that the EIS is there to stop.

General Garre: Clearly, the purpose of the requirements under NEPA are to ensure that the agency has -- is making an informed decision, and here I don't think there is any question that the Navy was after its 293-page assessment.

I am not aware of any --

Justice Souter: But that -- in effect, you are saying the EA is the equivalent to an EIS.

General Garre: No, I'm not, Justice Souter.

I am saying --

Justice Souter: What is the difference between them? I -- I assume the difference is the EIS is a more comprehensive survey and -- and set of conclusions.

General Garre: That's right, but then --

Justice Souter: So that without the EIS, the Navy is acting in -- in a state of -- of some degree of ignorance greater than would be the case if -- if it had done -- done the EIS.

General Garre: I -- the EIS --

Justice Souter: And that, I presume, is the harm that the -- that the statute is intended to prevent.

General Garre: But it is not a likely -- they have not shown a likelihood of irreparable injury.

Justice Scalia: The EA demonstrates in your view that the EIS would -- would very likely say that this -- this action by the Navy is okay. And since that is the case, there is -- there is no probability of irreparable harm; to the contrary, there is the probability of no irreparable harm because of the EA.

General Garre: Well, we agree with that.

We think it's important, though, to separate out the likelihood of success on the NEPA claim with the distinct question of whether there is irreparable injury and look to the record of whether there is irreparable injury. And we think they have not come close to establishing that. The one final --

Justice Kennedy: Are there any authorities in the circuits which would indicate that irreparable injury is not required when there's standing, when an EIS is required, when an EIS has not been prepared, and when the government is ready to proceed? There is always irreparable injury before you can get an injunction? That's what all the circuits say?

General Garre: Justice Kennedy, I haven't completed that -- that research with respect to all of the circuits, but I am confident in saying I am not aware of a decision in which a court has said that the irreparable injury requirement does not have to be met or is automatically met.

Justice Stevens: The whole theory of the -- of the environmental impact statement is that we don't really know what the harm will be. So how can you say that in order to get an injunction against the government action you have to prove irreparable harm?

General Garre: And it may be easier in some cases than others, Justice Stevens. But I think in this case where you have the record that has been compiled, they cannot -- they cannot --

Justice Stevens: But you're really arguing that an -- that a temporary statement is enough, will always be enough.

General Garre: We're not taking that position, Justice Stevens. We're taking the position that the record in this case does not show a likelihood of irreparable injury.

Justice Scalia: In all -- in all of these cases it is controverted, or in most of them, whether an EIS is either necessary -- is even necessary. So if the mere allegation that it was necessary gives rise to an allegation of irreparable harm, you are going to get a preliminary injunction in all cases?

General Garre: I think that's right. I think that fundamentally --

Justice Ginsburg: I thought that you were not suggesting --

Justice Stevens: But there is a finding that it is necessary, and here we have that finding as I understand it.

Justice Ginsburg: And you are not suggesting that -- that there is a probability of success on the claim that you had to file an environmental impact statement.

General Garre: We -- we are contesting that. And if I could reserve the remainder of my time.

And one must -- I can explain, if you would like, Justice.

Justice Ginsburg: Yes. I thought you conceded that point.

General Garre: If I misspoke, I apologize.

My point was that the administrative determination that is at issue now in evaluating the NEPA claim is the finding of alternative arrangements. The Navy has never conceded that it was required to do an EIS at the outset. It simply has agreed to live with the alternative arrangements approved by the Council on Environmental Quality.

Chief Justice Roberts: Thank you, counsel.

General Garre: Thank you.

ORAL ARGUMENT OF RICHARD B. KENDALL ON BEHALF OF THE RESPONDENTS

Chief Justice Roberts: Mr. Kendall.

Mr. Kendall: Mr. Chief Justice, and may it please the Court:

The fundamental question in this case is a very traditional question of equity jurisprudence. The fundamental question is whether the district court's factual finding that the injunction will permit the Navy to train and certify its sailors is supported by the evidence. Because if it is supported by the evidence it cannot be clearly erroneous. And if it is not clearly erroneous, it cannot be reversed.

Justice Alito: Isn't there something incredibly odd about a single district judge making a determination on that defense question that is contrary to the determination that the Navy has made?

Mr. Kendall: Justice Alito, I submit not, and here is why. This was an issue of fact. The question was whether, in light of the Navy's past training, which was abundantly shown in the record, their post-complaint, during the litigation, lawyer- crafted declarations were sufficiently persuasive to undo all that evidence that showed that the Navy had repeatedly used safety zones.

Now, what happened here was that the judge was extraordinarily deferential to the Navy. The judge rejected most of the measures that plaintiffs sought, crediting where the evidence was not to the contrary the declarations of the Navy saying, for example, we need to train at night.

Justice Breyer: I didn't see evidence to the contrary on two important points. The first was that the Navy had affidavits which says -- they say -- I read them. Maybe I just missed the contrary. But they said that: You are requiring us, judge, to turn the sonar down to six decibels or up to six, whatever, whenever we had to run into a situation called layering of different temperature levels. And we tell you, as naval officers, that that's just where submarines like to hide. And we also tell you that if we can't train people to do that they will miss out on an important part of how to find these submarines.

I saw no answer to that.

The second thing they said was that: We're willing to turn off the sonar if there's any marine mammal that comes within 500 yards, which is a quarter of a mile, about. But you insist that we turn off the sonar when any animal comes within a mile and a quarter.

And that's quite a big distance more. A lot of animals come in there, and if we have to turn off the sonar all those times, we are not going to be able to get much training done.

Now, those two things seem to be quite important. And I just might have missed, which I might have, which is why I'm asking, what the response was by equivalent experts to those points.

Mr. Kendall: Justice Breyer, the response in the record appears in the after-action reports of the eight prior exercises in Southern California. There were four from the series that we challenge and four after-action reports, prepared earlier ones. And you will find those in the joint appendix at 326 to -45.

What the court found was that the Navy had trained and certified its troops during those eight SOCAL exercises despite the complete absence of surface ducting conditions. And it was conceded --

Justice Breyer: What do you mean, despite the complete absence?

Mr. Kendall: Because surface ducting conditions are, as it happens, quite rare.

Justice Breyer: That's the whole point.

That's why I thought they didn't prove anything. Fine, they went on some exercises and they didn't run into these layered things. So obviously they couldn't have training.

Mr. Kendall: Right.

Justice Breyer: Now, what they are saying is, when you do run into that situation you've got to train people to deal with it. It doesn't prove much that when you didn't run into it they didn't train people to deal with it. How could they have?

Mr. Kendall: Well, the question before the court was balancing the requirement that the Navy comply with the law and the environmental harms against the Navy's interest. And our point --

Chief Justice Roberts: Well, with one important qualification. The question was the balance of those equities on a preliminary basis. In other words, before we reach a final decision, we're going to prevent the Navy from engaging in the sonar exercises that they think are necessary. Not even after we have decided they were wrong, just because we think there is a likelihood that they might be wrong.

Mr. Kendall: That's quite right. And of course, in this litigation that was the whole ball game, because by the time you had reached trial in this case all of the exercises --

Chief Justice Roberts: Well, I thought that would have been the whole ball game until I read your brief. Your brief does not spend a page defending the decision on the merits of the lower courts. Nothing about emergency circumstances or CEQ. Instead, you raise other arguments on which the district court did not rely in finding likelihood of success. So given that, I would have thought we would have a lot more to talk about when it gets to the permanent injunction on the merits.

Mr. Kendall: I respectfully disagree. We took the position from the beginning --

Chief Justice Roberts: Oh, yes, yes. You certainly raised those issues. I'm not saying that.

What I am saying the district court didn't rely on those in finding likelihood of success.

Mr. Kendall: Well, I also disagree on that point. You will find at page 97a of the appendix that was submitted with the petition for certiorari the court's declaration that there was no emergency. You will find --

Chief Justice Roberts: Yes.

Mr. Kendall: But that's the question.

Chief Justice Roberts: That's what the district court relied on. Where in your brief do I see a defense of the district court's analysis, as opposed to the very coherent argument about Hayburn's case and everything else, issues the district court didn't reach?

Mr. Kendall: The district court did reach the question of whether the Navy could train. That negated any emergency under any definition of the term.

It doesn't matter whether -- and there was debate about this below -- an emergency can be foreseeable and expected, as Justice Souter was -- his questions were probing, or whether the emergency can be -- must be unexpected. There was debate about that below. But the position that we took and the position that the district court took was there is no emergency.

The reason there is no emergency is because the Navy -- the Navy is perfectly able to train under these circumstances.

Justice Breyer: That's what I can't -- look, I don't know anything about this. I'm not a naval officer. But if I see an admiral come along with an affidavit that says -- on its face it's plausible -- that you've got to train people when there are these layers, all right, or there will be subs hiding there with all kinds of terrible weapons, and he swears that under oath. And I see on the other side a district judge who just says, you're wrong, I then have to look to see what the basis is, because I know that district judge doesn't know about it, either.

So, the basis so far I'm thinking on this one is zero. That's -- because what you have told me is they completed some exercise where they didn't find any layering.

Mr. Kendall: There was also prior exercise in Hawaii. You will recall from the brief that we had a prior litigation that resulted in the consent decree in Hawaii. In that consent decree the Navy agreed to train with a surface ducting powerdown. So, they had previously told the same judge that they were capable of training in surface ducting conditions with that powerdown, else they would not have agreed to that decree. There was evidence in the record.

The problem that the judge had is that the Navy cannot be judge of its own cause. Deference does have its limits. And this judge was in a position of reviewing facts of prior exercises and what the Navy --

Justice Breyer: Generalities. You see -- of course, I agree with you as a generality. What I am missing here is the specifics, because I am nervous about it, as you can see. And what I am nervous about is that there just wasn't enough on the other side, on your side.

Mr. Kendall: If I may proceed then to the safety zone specifics, because that's the other issue.

Remember there were a number of injunctive measures that the Navy objected to in the district court that they no longer object to. They ceased to object to them in the court of appeals and they haven't brought them up here.

So the next issue is the 2200-yard safety zone. Now, first, why was the safety zone chosen? It was chosen because that is the Navy's preferred method of mitigation. They have always mitigated using safety zones. They have preferred to mitigate using a safety zone that is 1,000 yards. We asked for one that was 2,200 yards.

The question was, what is the difference in training capability in the two zones? So we looked at that. And where did we look? We looked at the statistics from the after-action reports.

Now, in this case we had helpful information to use, because the after-action reports reveal that the effect of widening the safety zone would have been at most one more shutdown or powerdown each exercise.

Chief Justice Roberts: It would have increased exponentially the area that the Navy had to scrutinize to determine if there were marine mammals there.

Mr. Kendall: Incorrect. Incorrect. It would --

Chief Justice Roberts: Well, the increase -- you keep saying it's just 1,000 yards. But it's 1,000 yards of circle. And if I remember high school geometry right, that's a squared increase.

Mr. Kendall: But think about how this is being done. The way it's being done is that you have somebody on the deck with binoculars and they are looking straight ahead and they can either look out 1,000 yards or out 2,000 yards.

Chief Justice Roberts: And there are people in airplanes?

Mr. Kendall: Yes. Yes.

Chief Justice Roberts: Not just straight ahead.

Mr. Kendall: There are people in airplanes and they are looking down and they can see as much as they can see within that area. And if they see a marine mammal, there will be a shutdown or a powerdown; and if they don't see it, there won't be one. You can only shut down or power down when you see one.

Chief Justice Roberts: I guess my question was, that increases the area exponentially that has to be scrutinized. And I don't see why, as you said, that was wrong.

Mr. Kendall: Because they argued -- and perhaps I misunderstood, Mr. Chief Justice, that you were referring to their argument -- which is not that the area was exponentially larger and that creates difficulties of observation; they argued it would create an exponentially greater number of shutdowns. And that is mathematically proven false by the after-action reports, because it's one per exercise.

And this judge, keep in mind, had been listening to the Navy make factual assertions from the very beginning. And the factual assertions that the Navy made at the start of this case about the nature of the environmental harms were completely disproven by the EA and by the expert evidence that was brought to bear.

And there are a number of statements that General Garre may that I think I should address.

One of them in answer to questions from Justice Ginsburg had to do with the Level A takes on beaked whales. The Navy tries to dismiss those by saying we only graded the effects on beaked whales as Level A because we did that as a matter of generous policy.

They didn't do it for policy reasons. They did it because that's what the science compels, because beaked whales have stranded repeatedly around the world correlated -- caused by in the views of scientists, and the evidence is overwhelming, by sonar. And the reason that happens especially to beaked whales is because they dive for very long periods of time. And when they dive for very long periods of time, and they are then bombarded with sonar, which by the way in sound intensity, in this courtroom if we had a jet engine and you multiplied that noise by 2,000 times, correcting for water, that's the sound's intensity that would be going on in the water if you were a marine mammal near that source. The beaked whales, the scientists believe, adjust their diving patterns; since they dive down for so long, if they come up too fast, they get the bends so there is evidence of -- when they do the necropsies of these beaked whales, they find hemorrhaging, the embolisms in various parts of the bloodstream and many, many deaths. So there is enormous scientific evidence that there is a greater harm to beaked whales that is caused by sonar and that is precisely why the Navy was compelled in the EA to recognize that evidence.

Now, one thing that was said here which I found --

Justice Alito: Where in the record -- this was the question I asked General Garre. Where in the record is there evidence of -- that beaked whales would be killed?

Mr. Kendall: The evidence of the prediction of the Level A takes, in the --

Justice Alito: Well, what does Level A take -- maybe can you put this in lay terms. Let's start with kill. Where is the evidence that beaked whales would be killed?

Mr. Kendall: It is in the -- there is a table on page 223 of volume 1 of the joint appendix.

And then there are the discussions of beaked whale injuries that General Garre referred to, and what they show is that beaked whales will experience the effects I described. But there is also expert evidence in the record in the form of a number of declarations by scientists who have studied beaked whales for -- for quite some time. The evidence you can find, and it's referred to on page 4 of our brief. Joint appendix 600-602, 673-89, 738-41, 760, the supplemental excerpt of record at 180; also joint appendix 601, 666-667, 674-76, 680, 685. And there are a few other references on page 4 of our brief.

I also wanted to talk about the behavioral changes, because it's --

Justice Breyer: This is -- I want to give you a chance to say what's so terrible about what they're doing. I will express a little frustration.

Not your fault. But why couldn't you work this thing out? I mean, they are willing to give you quite a lot of conditions, and you say, well, we have got to have more conditions. And you are asking us who know nothing about whales and less about the military to start reading all these documents to try to figure out who's right in the case where the other side says the other side is totally unreasonable. And the issue at law seems to be something that is going to last for two months.

So -- so, why? What is so -- what is the important thing here?

Mr. Kendall: The important thing here is that the Navy is focused on having it its way or no way.

Chief Justice Roberts: Well, that's very unfair. There were six conditions imposed by the district court. The Navy didn't even appeal four of them. They gave up on four out of the six issues.

That's not insisting on having it their way.

Mr. Kendall: No -- I agree, although the reason I believe that they conceded those is that the record was -- was so overwhelming on each of those points, they hadn't even put in evidence to suggest that those measures would cause them any problem. They simply didn't have the declaration, and even the --

Chief Justice Roberts: The other ways it struck me how the district court relied on the fact that the Navy had taken actions to protect marine mammals in the past to say well, there can't be any problem with adding more protection. No good deed goes unpunished.

Mr. Kendall: Well, if I can -- if I can answer that this way. We negotiated with the Navy for months and months and months, the Brinpack case, I settled with them. We tried very hard to resolve this case, but keep in mind that the Navy until the district court ruled refused to agree to any measures that we proposed -- any measures. So it was a binary --

Chief Justice Roberts: They had already taken actions unilaterally to protect marine mammals.

Now you say that wasn't.

Mr. Kendall: Right.

Chief Justice Roberts: But they were taking some actions.

Mr. Kendall: That's right. And -- and so we had a litigation that was focused on were there additional actions that should be taken; and there is extensive evidence taken and extensive argument and then the district court ruled. And the correct path, if the Navy was aggrieved by that decision, was a higher court.

But instead, in order to avoid the clearly erroneous standard -- and remember, that the clearly erroneous standard as this Court said in the Anderson v. Bessemer City case, says when there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous.

So in order to evade that, and this is typical of the tactics that we experienced and the uncompromising nature of their approach that we experienced, they went to CEQ to try to trump the entire injunctive process. Now that they did without any authority in NEPA --

Justice Breyer: How does the basic thing work? Because to a layperson, when I think of the armed forces preparing an environmental impact statement, I think, the whole point of the armed forces is to hurt the environment. I mean -- (Laughter.)

Justice Breyer: I don't under -- I don't understand how it's supposed to work. Of course they are going to do something that is harmful.

Mr. Kendall: You know, the whole point of the armed forces, I think is to --

Justice Breyer: You see the point, I am trying to give you a -- overstating it.

Mr. Kendall: I think the point of the armed forces is to safeguard our freedoms causing the least damage possible to our environment. And this Court has recognized that repeatedly.

Justice Breyer: You go on a bombing mission, do they have to prepare an environmental impact statement first?

Mr. Kendall: No.

Justice Breyer: No.

Mr. Kendall: They don't.

Justice Breyer: How does it work?

Mr. Kendall: We have never, ever contended that any of our proposed restrictions should apply to combat at all, and it doesn't.

This training was planned for a very long time. Had -- there were questions earlier, Justice Scalia I think raised a question is the EA as good as the EIS? There is a big, big difference. There are really two, between an EA and EIS. The substantive difference is that an EA doesn't have the same alternatives analysis that an EIS has, and the procedural difference, which in a country that values transparency and ideas and exchange with the public, is the notice and comment that EIS requires.

Justice Scalia: I -- I didn't assert that they are -- that they are the same thing substantively.

My -- my only question is whether your assertion of bad faith on -- on the part of the Navy holds water so long as they were doing an EA. If -- you do an EA to see if an EIS is necessary. And you say if there's no -- if there is no significant harm to the environment, you don't even need an EIS.

Mr. Kendall: That --

Justice Scalia: And that's how they started. That's step one, and many agencies do that.

They are authorized to do that. I don't know why you have to attribute bad faith to the Navy simply because it began with an EA.

Mr. Kendall: That focus is not an element of our case. I was simply responding to Justice Breyer's question as, I admit, a somewhat frustrated lawyer who tried to work things out as to why it happened that they weren't worked out.

I do want to speak a bit about some of the comments that General Garre made in response to Justice Kennedy and Justice Scalia's questions about--

Chief Justice Roberts: Can I -- can I derail you a little bit to get back to the balance of equities question? As I read the opinions most of the balancing here was done by the Ninth Circuit, not the district court. I found the district court's balancing in only one sentence. The court after all of its prior -- the court is also satisfied that the balance of hardships tips in favor -- favor of granting an injunction. " It goes on. But it's just one sentence.

The Ninth Circuit talked about deferring to the district court but in fact it supplied all the balance of the analysis for the balance.

Mr. Kendall: Well, I -- with respect I think the district court spoke in several different opinions. So you can -- you can find out what the district court was thinking by looking not only at the injunction, but also at the -- at the responsible district court denying the motion to vacate.

Chief Justice Roberts: Suppose it's still fair to say that on all of those it focused most of its attention on likelihood of success on the merits and irreparable harm rather than a balancing of the equities.

Mr. Kendall: Well I would disagree in one respect, which is the court was very focused on which measures to impose and which measures not to impose.

There were, you know, at least 10 pages of her injunctive opinion going through that, and each -- and the denial of the motion to vacate did the same thing, because -- after the Ninth Circuit ordered Judge Cooper to issue a tailored injunction, each side briefed very extensively, with a huge amount of supporting evidence, the issue of which measures should be imposed. And Judge Cooper decided that certain measures would not be imposed and certain ones would, and she explained why.

And she did that against the background of the harms that were designed to be prevented. And so what I would submit is --

Chief Justice Roberts: I think that's -- I think that's quite right.

My question, though, is that at no point that did the district judge undertake a balancing of the equities, putting on the one side the potential for harm to marine mammals that she found -- and that's your point about the record -- and putting on the other side the potential that a North Korean diesel electric submarine will get within range of Pearl Harbor undetected. Now, I think that's a pretty clear balance.

And the district court never entered -- never went into that analysis.

Mr. Kendall: There's a good reason why she didn't balance that. And that gets back to my opening remarks, which is that the premise of that question and why, Mr. Chief Justice, you would be concerned about that is that there would be an exposure to that submarine, that North Korean submarine. But the judge had made a factual finding, and the factual finding she made was that training would not be affected. So, on the one hand, you have a factual finding that there is no harm to the training at all, which means that in the balance the harms to the environment are much heavier.

Justice Alito: Do you -- how much deference, if any, do you think the district court was obligated to give to the Navy on that military issue about whether the training would be effective? Is judge Cooper an expert on antisubmarine warfare?

Mr. Kendall: No. Judge Cooper, like all judges, has to sift through the evidence of experts, and Judge Cooper gave great weight to the Navy on everything that the Navy said. But there was a place where she had to stop because, after all, she's a judge, and where she had to stop was where the evidence belied the declarations. And, you know, this Court has had in a number of decisions to confront the question of whether wartime exigencies forced the courts to suspend their powers of judgment. I submit that what happened here is that this court didn't, and that's what --

Chief Justice Roberts: Even the district -- even the district court recognized, in the words of her opinion, that it would propose "a substantial challenge" -- that's a quote -- for the Navy to shift the regime that she imposed in the injunction.

Mr. Kendall: That's right, and it will in fact pose a challenge and the proof is then in the pudding, which is that the Navy has now conducted 13 out of 14 exercises, the last 8 of which had been conducted under this regime as modified by the circuit. And they have not, as they were invited, had to come back and ask for relief despite the fact that they had the opportunity.

Justice Kennedy: By the time this case got back to the court -- the district court a second time, the President had made a determination that this was in the paramount interest of the United States. The Defense and Commerce Department jointly had made a determination that this is necessary for the national defense. And it seems to me, even if those determinations don't resolve the EIS statement, they certainly must be given great weight by the district court in determining whether to continue the injunction.

If you could comment on that, incorporate it also in what you were going to say about Mr. Garre's argument with reference to the standard.

Mr. Kendall: Yes. First, responding to that very point, it's common ground among the litigants and certainly with the court that the interests ascribed by the President and by every other government official with respect to Naval training are of the highest importance. The question was -- and this is the court's factual finding, and the question is whether there was sufficient record evidence to support it, whether she was right that there wouldn't be an adverse effect except for possibly some logistical changes, but no adverse effect in terms of an achievement of the training. If there's no adverse effect, then what the President is speaking to is speaking past what's concerning the court.

Now, with respect to irreparable harm, the argument that General Garre made I think mistakenly collapses the normal equity issue in this following sense: Once a plaintiff satisfies Article III, very important, and under the Japan Whaling case, the Lujan v. National Wildlife case, there is no question that these plaintiffs deserve to be in court, and it has never been contested.

Then you move to the traditional equity standard for assessing irreparable harm, Hecht v. Bowles, but in the environmental area we have a decision, the Amoco v. Gambell decision.

Justice Scalia: Excuse me. That irreparable harm is the assessment of -- for purposes of the injunction -- refers to the same harm that is the harm which is the basis for standing, is it not?

Mr. Kendall: It always does, and the question is somewhat different. And I think, Justice Scalia, if you look at your opinion in the second Lujan case and you think about the imminence requirement of standing there, what irreparable harm adds to that is the traditional need to show that the harm you suffer cannot be quantified in damages or it's difficult to quantify, and that a remedy at law will not achieve the adjustment between the parties that's required. That's what equity does. Equity preserves the positions of the parties.

And as this Court said in Amoco, environmental injury, by it's very nature, can seldom be adequately remedied by money damages and is often permanent or at least of long-lasting duration, i.e., irreparable; that is Amoco at page 545. If such injury is sufficiently likely, therefore, the Court said, the balance of harms will usually favor the issuance of an injunction.

Now, there's one other point which was briefly touched on here. Justice Kennedy was asking what the circuits have said. Now, the circuits have said different things about irreparable harm. The leading edge of discussion in the circuits began with then-Judge Breyer on the First Circuit in the Massachusetts v. Watt and Sierra Club v. Marsh cases, where he pointed out that NEPA itself has, while it's a procedural statute, a substantive purpose, the substantive purpose being informed decisionmaking. And if there is not informed decisionmaking before there is an agency committed to action, a harm has occurred.

That's the harm that --

Justice Scalia: That's unfortunately contrary to what our opinions have said, which was quite clearly that procedural -- (Laughter.)

Justice Scalia: -- procedural injury is not the kind of injury that gives rise to Article III standing.

Mr. Kendall: Can I --

Justice Scalia: The whole country can complain about the failure to issue an EIS. That is not the kind of injury that gives standing.

Mr. Kendall: I was only responding to Justice Kennedy's question as to what the circuits have said. That's the leading edge of what the circuits have said.

Justice Breyer: I don't see why you backed down on this.

(Laughter.)

Chief Justice Roberts: Mr. Kendall, you wanted to respond to some comments by the Solicitor General. I wanted to make sure that you've had an opportunity to do that. I -- you were derailed by questioning, but I know you responded to some. Are you

Mr. Kendall: That's very kind. I think there's just one other point perhaps I should make, which is there was some discussion of whether NEPA actually authorizes CEQ to conduct this kind of examination of a district court's ruling. I submit that there is nothing anywhere in NEPA and certainly not in the "fullest extent possible" language which gives that authority. This Court has already decided that point in the Flint Ridge case, where it said that NEPA does not give way unless there is an irreconcilable conflict between NEPA and another statute. They have pointed to no such thing.

Chief Justice Roberts: Thank you, counsel.

Mr. Garre, have you one minute remaining.

General Garre: Thank you, Mr. Chief Justice.

First, the Court of Appeals did not adequately consider the balance of equities. It completely disregarded the President's determination of the paramount interests in these exercises. It disregarded the Chief Naval Officer's evidence on the harm of the 2200-yard shutdown, at Pet. App. 344-345A.

It disregard the harm as to surface ducting, Pet. App.

33 A.

Justice Alito, there is -- the EA says, quote, on page 200 of the JA, "No serious injury or mortality of any marine mammal species is reasonably foreseeable because of these exercises." Page 170 makes clear that that applies to beaked whales as well.

And finally I think I heard my colleague, my friend, concede that you have to show Article III injury in order to show irreparable injury. They not only have to show irreparable injury to marine mammals, which they haven't; they have to show irreparable injury to themselves, and particularly as to beaked whales, which none of the declarants and none of their members have ever asserted they have seen. They can't possibly establish any irreparable injury from any conceivable harm to beaked whales, even though the record in this case makes clear that all harms to the marine mammals that we have been discussing today are temporary non-injurious harms.

We would ask this Court to set aside the decision of the Ninth Circuit, which seriously interferes with critical training exercises that the President, his chief Naval officers have determined to be in the paramount interests of the United States.

Justice Scalia: Can I -- before you sit down. I thought I recalled something in your briefing dealing with the beaching -- your friend made a point regarding the beaching of beaked whales, that very substantially showed that they were caused by sonar.

You had something in your briefs about beaching, but I wasn't sure whether it was beaked whales or only dolphins.

General Garre: It pertains to beaked whales as well. Page 256 of the petition appendix is the National Marine Fisheries Service's determination that the conditions which led to strandings with respect to beaked whales in other parts of the world are not likely to lead to strandings in the Southern California Operating Area. Those conditions are taken into account in the national defense exemption mitigation measures at page 258 of the petition appendix. There have been beachings of beaked whales in Southern California. None have been tied to sonar operations, and that further underscores the absence any injury to any marine mammal in Southern California despite 40 years of the Navy's use of sonar operations in that area.

Chief Justice Roberts: Thank you, counsel.

The case is submitted.