During oral argument last month, Justice Stephen Breyer put this question: “You go on a bombing mission — do you have to prepare an environmental impact statement?”
Los Angeles lawyer Richard Kendall, representing the Natural Resources Defense Council, was the man responsible for answering. In Winter v. NRDC, environmental advocates were urging the Supreme Court to uphold the orders of federal courts in California (against Navy Secretary Winter) which would have sharply constrained planned navy training exercises off the Pacific coast. NRDC had persuaded west coast judges that the sonar equipment to be used by the navy might injure whales and dolphins and so should be restrained until the navy completed a full scale environmental impact statement, assessing the relevant risks.
So Breyer’s question was quite pertinent. If courts could restrain training exercises, why not actual combat missions? Kendall’s answer was straight-forward: “No, of course not in combat. But here in a training exercise, the military is supposed to minimize the damage.”
But the underlying statute, the National Environmental Policy Act of 1969, makes no explicit exception for combat operations. It calls for federal agencies to prepare an environmental impact statement for any “major Federal action significantly affecting the quality of the human environment,” cautioning only that this obligation should be honored “to the fullest extent possible.”
The Marine Mammal Protection Act of 1972, which might have been relevant as well in this case, includes an explicit authorization for the Secretary of Defense to exempt from its prohibitions “any action or category of actions … necessary for national defense.” Was it any stretch to assume that NEPA should be read to authorize something similar?
The navy certainly made strong arguments for the importance to “national defense” of the particular sonar training involved here. Sonar operators need practice in order to track the position and direction of enemy submarines, but the navy also needs to practice coordinating information and responses with other ships in a “strike group” (usually organized around an aircraft carrier). The navy wanted to give such groups practice in joint operations off the California coast before setting off to more hostile waters in the Middle East.
The navy won the case — at least in the form it was put to the Supreme Court. But what’s most notable about the Court’s decision in Winter v. NRDC is how very narrow and cautious it is. Only five justices signed on to the majority opinion by Chief Justice Roberts, which emphasized the rather technical point that the lower courts should have reconsidered their claims, given the navy’s willingness to adhere to four of the six restrictions originally imposed by the district court.
So far from urging general deference to military considerations, the majority opinion took pains to emphasize that environmental claims might triumph in the next case: “Of course, military interests do not always trump other considerations and we have not held that they do.”
The Pentagon certainly does devote a great deal of effort to assessing (and then trying to ameliorate) environmental harms that might result from all its construction projects, its far-flung bases and ports and transport systems. Even in this case, the navy had promised to produce a full environmental impact statement for future training exercises with sonar and had already undertaken a streamlined “environmental assessment” to reassure critics that the dangers to marine mammals were not excessive.
So you might think there would be a lot of case law on how to balance environmental priorities with military needs. But Winter cites no case on point. No case of this kind has reached the Supreme Court, and the handful of cases in lower courts have questioned the siting of bases, rather than asking courts to review precise military practices in combat-simulating exercises.
What Winter really suggests, therefore, is that old assumptions about deference are fading. The dissent by Justices Ginsburg and Souter protests that if the navy needed an exemption, it should have asked Congress to enact such a measure rather than seeking — as it did — guidance from “an executive council” (the White House Council on Environmental Quality, which approved the navy’s proposed training exercises with some slight modifications to reduce environmental risks). The dissenters seem to question (as a number of commentators have) that the balance between environmental and defense priorities should be struck by officials answering to the president, as if the president’s responsibilities as commander-in-chief somehow disqualify him from balancing security with other concerns.
Justices Breyer and Stevens explained, in their concurring opinion, that they would normally have asked lower courts to consider fashioning a more accommodating injunction, except that the navy’s plans for December training exercises did not leave time for that. The conservative justices could only get five votes by affirming their willingness to consider an environmental injunction against the military in some future case.
But here’s the thing. When we go to war, we knowingly undertake actions in which human beings will die, as tens of thousands of human beings have already been killed in Iraq since our invasion in 2003. Courts aren’t yet willing to second-guess combat decisions, despite the human stakes. But the Supreme Court has now indicated that it may be ready to second-guess essential preparation for combat, if military policy risks harm (as environmental advocates claimed here) to hundreds of marine mammals.
As the judges see it, national defense is not the precondition of every legal safeguard, but just one consideration to balance among many others. And the judges trust themselves to strike the final balance.