NRDC v. Winter -- Green Trumps the Blue and Gold -- National Security Takes a Back Seat to Natural Resources

Posted on January 22, 2008 by ACOEL Admin
 
I. INTRO
On January 3, 2008, a federal judge for the U.S. District Court for the Central District of California imposed substantial restrictions on the U.S. Navy’s use of mid-frequency active (MFA) sonar in waters off the California coastline.  Although details of the restrictions and their immediate impact on the Navy can readily be discerned by reviewing the judge's order, the reverberations of this order may have a much broader impact that could further enhance the role of environmental lawyers.
Until recently, few might have predicted the success of an environmental challenge to military operations -- especially given our country's current military operations abroad.  The California court's much-anticipated order is the latest word in an ongoing debate over MFA sonar operations in potentially close proximity to marine mammals, an activity decried by environmental groups and vigorously defended by the Navy.  The U.S. military has generally been able to defend questionable practices by emphasizing the overall importance of those practices to national security.  As the Supreme Court noted twenty years ago, "unless Congress specifically has provided otherwise, courts traditionally have been reluctant to intrude upon the authority of the Executive in military and national security affairs."[1]


[1] Dep’t of Navy v. Egan, 484 U.S. 518, 529 (1988).
II. PROCEDURAL HISTORY
A. THE DISTRICT COURT'S FINDINGS
In March 2007, the National Resources Defense Council (NRDC) and several other environmental groups filed suit in the U.S. District Court for the Central District of California against both the U.S. Navy and the National Marine Fisheries Service (NMFS), seeking to enjoin sonar operations scheduled between February 2007 and January 2009 as part of fourteen training exercises in the Southern California Operating Area (SOCAL).  The Navy defended its operations by emphasizing their importance to national security, an argument it has made with considerable success in the past, but this time the court found the national security argument less compelling than the competing concern about MFA sonar's impact on the marine environment. The court based its decision on the following findings.
1. PLAINTIFFS' PROBABILITY OF SUCCESS ON THEIR CLAIMS
   
a. NEPA
Because the Plaintiffs presented evidence sufficient to raise substantial questions about whether the proposed activities would have a significant impact, they demonstrated a probability of success on their claims that the Navy had committed several NEPA violations.  First, although the Navy prepared an Environmental Assessment (EA) prior to commencing its naval exercises in the SOCAL, the court disagreed with the Navy's subsequent decision to issue a Finding of No Significant Impact (FONSI).  Based on the court's review of facts available to the Navy, the court agreed with Plaintiffs that the proposed sonar operations would likely have a significant impact, triggering NEPA's requirement that an Environmental Impact Statement (EIS) be prepared.  Alternatively, because the court considered the Navy's self-imposed mitigation measures to be inadequate and incapable of preventing the significant impact anticipated, the Navy had no basis for issuing the FONSI. Second, the court found that "[the Navy's] EA failed to consider reasonable alternatives or cumulative impacts."[1]  The court noted that the Navy disregarded mitigation measures recommended by the California Coastal Commission (CCC), the state agency that administers California's Coastal Management Plan (CCMP), and it also elected not to implement more restrictive mitigation measures previously used by the Navy and its allies in similar training exercises that employed MFA sonar.  Although the Navy's EA did conclude that the proposed activities "would not have any significant contribution to the cumulative effects on marine mammals,"[2] the court held that, absent detailed and quantifiable information supporting that conclusion, the statement was merely aspirational and lacked the substantive analysis traditionally required by the Ninth Circuit. 
b. CZMA
When a federal agency's proposed activity will "affect[] any coastal use or resource,"[3] the CZMA requires the federal agency to submit a Consistency Determination (CD) to the applicable state agency.  In its analysis of the Navy's alleged violations of the CZMA, the court identified two deficiencies in the CD that the Navy submitted to the CCC.  First, the Navy neglected to mention that it intended to conduct sonar operations.  The Navy defended the omission by arguing that the sonar operations would not have an effect on the coastal zone.  Just as the court disagreed with the Navy's determination that its sonar operations would not have a significant impact on the marine environment, so too did the court disagree with the Navy's similar conclusion that MFA sonar would not affect the coastal zone.  Second, the CD did not incorporate mitigation measures that the CCC required pursuant to the CCMP.  The CZMA required the Navy to ensure that its sonar operations were "consistent to the maximum extent practicable with the enforceable policies of [the CCMP],"[4] and the Navy failed to satisfy its burden of proving the inapplicability of the mitigation measures required by the CCC.
2. POSSIBILITY OF IRREPARABLE HARM TO THE ENVIRONMENT
In support of its finding that the proposed MFA sonar operations would create a possibility of irreparable harm to the environment, the court relied not only on evidence provided by Plaintiffs but also cited a Navy study that "conclude[d] that the SOCAL exercises . . . [would] cause widespread harm to nearly thirty species of marine mammals, including five species of endangered whales, and [might] cause permanent injury and death."[5]
Having identified the possibility of irreparable harm, the court then considered the appropriateness of an injunction to prevent that harm.  After weighing the competing concerns of national security and environmental protection, the court concluded 
that the balance of hardships tip[ped] in favor of granting an injunction, as the harm to the environment, Plaintiffs, and public interest outweigh[ed] 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.[6]
  
B. THE DISTRICT COURT'S INITIAL ORDER
Based on the findings above, the court issued a preliminary injunction of potentially indefinite duration on August 7, 2007, because it would have prohibited all MFA sonar use "until the Navy adopt[ed] mitigation measures that would substantially lessen the likelihood of serious injury and death to marine life."[7]  
C. APPEAL TO THE NINTH CIRCUIT
On August 31, 2007, the Ninth Circuit stayed the district court's sweeping injunction, pending an appeal by the Navy.[8] On November 13th, the Ninth Circuit adopted the district court’s findings and vacated the stay, but it remanded the matter, chastising the district court for having imposed such an overly broad preliminary injunction. The Ninth Circuit instructed the district court to narrow the scope of the injunction by using its findings to craft mitigation measures uniquely tailored to fit the Navy’s MFA sonar operations in the SOCAL.[9] 
III. MITIGATION MEASURES IMPOSED BY THE DISTRICT COURT
On January 3, 2008, the district court finally issued its much-anticipated order in which it laid out the following mitigation measures applicable to future MFA sonar operations in the SOCAL:
1. 12 Nautical Mile Coastal Exclusion Zone.  "The Navy shall maintain a 12 nautical mile exclusion zone from the California coastline at all times."[10]  Although Plaintiffs sought to enjoin MFA sonar operation within twenty-five miles of the California coastline, the court, though agreeing with Plaintiffs that a twenty-five mile exclusion zone would ensure maximum protection of marine habitat, deemed the zone unduly burdensome to the Navy.  The court noted that the Navy had previously operated under a twelve mile exclusion zone and that such a zone struck the best balance between protection of marine habitat and the Navy's need to train "to detect submarines in the very bathymetry in which submarines are likely to hide."
2. 2200 Yard MFA Sonar Shutdown.  "The Navy shall cease use of MFA sonar . . . when marine mammals are spotted within 2200 yards . . . ."[11]  Designed only to prevent the most damaging consequences of exposure to MFA sonar, the court concluded that a 2200 yard zone of protection for marine mammals imposed a minimal burden on the Navy.
3. Monitoring.  For sixty minutes prior to conducting MFA sonar operations, the Navy "shall monitor for the presence of marine mammals,"[12] using lookouts on vessels and one dedicated aircraft to monitor the entire operating area.  If a marine mammal is spotted, the Navy must suspend sonar operations until it establishes the requisite 2200 yard buffer.  Once sonar operations have begun, the Navy must continue visual monitoring efforts by posting two National Oceanic and Atmospheric Administration (NOAA)- and NMFS-trained lookouts in addition to using one dedicated aircraft, and Navy vessels must also listen for the presence of marine mammals using passive acoustic monitoring.
4. Helicopter Dipping Sonar.  Helicopters must monitor the area for ten minutes prior to employing active dipping sonar and, after spotting a marine mammal within 2200 yards of the helicopter, must cease active dipping sonar operations until reestablishing the 2200 yard safety zone.
5. Surface Ducting Conditions.  "[W]hen surface ducting conditions are detected . . . in which sound travels further than it otherwise would due to temperature differences in adjacent layers of water . . . the Navy shall power down sonar by 6dB"[13] to minimize the sonar's greater intensity and range.
6. Choke Points and the Catalina Basin.  "[T]he Navy [shall] refrain from employing MFA sonar in the Catalina Basin,"[14] an area located between the Santa Catalina and San Clemente islands that provides habitat to a large population of marine mammals.
7. Continue National Defense Exemption (NDE) II Mitigation Measures.  Since 2002, the Navy has worked with NOAA and NMFS to ensure the compliance of its operations with all federal laws, and it has adopted various mitigation measures to achieve that goal of compliance.   The district court explained that its mitigation measures were to be implemented in addition to those measures either already adopted or currently under review by the Navy pursuant to its ongoing collaboration with NOAA and NMFS.
IV. RECENT DEVELOPMENTS
On Tuesday, January 15, 2008, President Bush signed an exemption authorizing the Navy's continued use of MFA sonar in its SOCAL exercises.  In the exemption, the President stated that the sonar exercises "[we]re in the paramount interest of the United States" and that compliance with the mitigation measures would "undermine the Navy's ability to conduct realistic training exercises that [we]re necessary to ensure the combat effectiveness of carrier and expeditionary strike groups."[15] The exemption "claim[s] that the Navy [is] exempt from the [CZMA] and . . . [NEPA],"[16] and it formed the basis of the Navy’s appeal to the Ninth Circuit late on Tuesday night. The Ninth Circuit remanded the case to the district court on Wednesday, and on Thursday, January 17th, the district court responded by temporarily lifting the requirements that the Navy maintain a 2200 yard zone of protection for marine mammals and that it power down its sonar during surface ducting conditions.[17] More developments are expected within the next several days.  
V. THE SIGNIFICANCE OF NRDC V. WINTER  TO ENVIRONMENTAL LAWYERS
NRDC v. Winter is not likely to be an isolated event in the history of environmental law.  At a minimum, the California court's January 3rd order represents an historic victory for environmental groups and a staggering blow to the U.S. military; however, the broader implications of this order will be the ones worth watching. The White House’s recent involvement in the case has ignited the controversy and captured the media’s attention, setting the stage for a dramatic showdown between proponents of national security and advocates of environmental protection. 
Though merely conjectural at this point, it seems plausible that NRDC v. Winter might spawn an explosion of environmental litigation, giving rise to an even greater abundance of work for environmental lawyers.  The case may give environmentalists renewed confidence to challenge the environmental records of their most formidable adversaries.  At the same time, it may also make many regulated entities more conscious of their own environmental vulnerability and prompt them to begin seeking the best legal representation available.  By prevailing against the U.S. Navy, the NRDC and its fellow plaintiffs have not only inspired other environmental groups around the country, but they have also issued a stern warning to the entire regulated community that no organization is immune from liability in this new era of heightened environmental awareness. 
Contact information: jim.farrell@butlersnow.com or (228) 575-3048
Jim Farrell is an associate in the law firm of Butler, Snow, O’Mara, Stevens & Cannada, PLLC, and a member of the firm’s environmental law practice group. Mr. Farrell graduated from the U.S. Naval Academy in 1999 and served for five years as a naval officer prior to attending law school. He received his JD from the University of Mississippi School of Law in 2007. In the summer of 2006, Mr. Farrell served as a law clerk in the U.S. EPA’s Office of Enforcement and Compliance Assurance.
Butler, Snow, O'Mara, Stevens & Cannada, PLLC, is a full-service law firm with more than 150 attorneys representing regional and national clients from offices in Jackson, Miss., on the Mississippi Gulf Coast, Memphis, Tenn. and Bethlehem, Penn.  For more information, visit www.butlersnow.com.


[1] Natural Res. Def. Council v. Winter, No. 8:07-cv-00335-FMC-FMOx, slip op. at 8 (C.D. Cal. Jan. 3, 2008) (order issuing preliminary injunction).
[2] Id.at 10.
[3] Id.at 11 (quoting 15 C.F.R. § 930.32(a)(1)).
[4] Id.at 10-11 (quoting 16 U.S.C. § 1456(c)(1)).
[5] Id.at 12.
[6] Id.at 12-13.
[7] Id.at 3. 
[8] See Natural Res. Def. Council v. Winter, 502 F.3d 859 (9th Cir. 2008).
[9] See Natural Res. Def. Council v. Winter, 508 F.3d 885 (9th Cir. 2008).
[10] Natural Res. Def. Council v. Winter, No. 8:07-cv-00335-FMC-FMOx, slip op. at 14 (C.D. Cal. Jan. 3, 2008) (order issuing preliminary injunction).
[11] Id.at 15.
[12] Id.
[13] Id.at 17.
[14] Id.at 17-18.
[15] Activists Vow to Push Fight Against Navy Sonar, http://www.msnbc.com/id/22683062 (last visited Jan. 21, 2008). 
[16] Daniel Hinerfield & Hamlet Paoletti, Sonar Case Remanded to District Court, http://www.nrdc.org/media/2008/080116c.asp (last visited Jan. 21, 2008).
[17] See Natural Res. Def. Council v. Winter, No. 8:07-cv-00335-FMC-FMOx, slip op. at 2 (C.D. Cal. Jan. 17, 2008) (order for temporary partial stay and setting briefing schedule).

NRDC v. Winter -- Green Trumps the Blue and Gold -- National Security Takes a Back Seat to Natural Resources

Posted on January 22, 2008 by ACOEL Admin

 

I. INTRO

On January 3, 2008, a federal judge for the U.S. District Court for the Central District of California imposed substantial restrictions on the U.S. Navy’s use of mid-frequency active (MFA) sonar in waters off the California coastline.  Although details of the restrictions and their immediate impact on the Navy can readily be discerned by reviewing the judge's order, the reverberations of this order may have a much broader impact that could further enhance the role of environmental lawyers.

Until recently, few might have predicted the success of an environmental challenge to military operations -- especially given our country's current military operations abroad.  The California court's much-anticipated order is the latest word in an ongoing debate over MFA sonar operations in potentially close proximity to marine mammals, an activity decried by environmental groups and vigorously defended by the Navy.  The U.S. military has generally been able to defend questionable practices by emphasizing the overall importance of those practices to national security.  As the Supreme Court noted twenty years ago, "unless Congress specifically has provided otherwise, courts traditionally have been reluctant to intrude upon the authority of the Executive in military and national security affairs."[1]



[1] Dep’t of Navy v. Egan, 484 U.S. 518, 529 (1988).

II. PROCEDURAL HISTORY

A. THE DISTRICT COURT'S FINDINGS

In March 2007, the National Resources Defense Council (NRDC) and several other environmental groups filed suit in the U.S. District Court for the Central District of California against both the U.S. Navy and the National Marine Fisheries Service (NMFS), seeking to enjoin sonar operations scheduled between February 2007 and January 2009 as part of fourteen training exercises in the Southern California Operating Area (SOCAL).  The Navy defended its operations by emphasizing their importance to national security, an argument it has made with considerable success in the past, but this time the court found the national security argument less compelling than the competing concern about MFA sonar's impact on the marine environment. The court based its decision on the following findings.

1. PLAINTIFFS' PROBABILITY OF SUCCESS ON THEIR CLAIMS

   

a. NEPA

Because the Plaintiffs presented evidence sufficient to raise substantial questions about whether the proposed activities would have a significant impact, they demonstrated a probability of success on their claims that the Navy had committed several NEPA violations.  First, although the Navy prepared an Environmental Assessment (EA) prior to commencing its naval exercises in the SOCAL, the court disagreed with the Navy's subsequent decision to issue a Finding of No Significant Impact (FONSI).  Based on the court's review of facts available to the Navy, the court agreed with Plaintiffs that the proposed sonar operations would likely have a significant impact, triggering NEPA's requirement that an Environmental Impact Statement (EIS) be prepared.  Alternatively, because the court considered the Navy's self-imposed mitigation measures to be inadequate and incapable of preventing the significant impact anticipated, the Navy had no basis for issuing the FONSI. Second, the court found that "[the Navy's] EA failed to consider reasonable alternatives or cumulative impacts."[1]  The court noted that the Navy disregarded mitigation measures recommended by the California Coastal Commission (CCC), the state agency that administers California's Coastal Management Plan (CCMP), and it also elected not to implement more restrictive mitigation measures previously used by the Navy and its allies in similar training exercises that employed MFA sonar.  Although the Navy's EA did conclude that the proposed activities "would not have any significant contribution to the cumulative effects on marine mammals,"[2] the court held that, absent detailed and quantifiable information supporting that conclusion, the statement was merely aspirational and lacked the substantive analysis traditionally required by the Ninth Circuit. 

b. CZMA

When a federal agency's proposed activity will "affect[] any coastal use or resource,"[3] the CZMA requires the federal agency to submit a Consistency Determination (CD) to the applicable state agency.  In its analysis of the Navy's alleged violations of the CZMA, the court identified two deficiencies in the CD that the Navy submitted to the CCC.  First, the Navy neglected to mention that it intended to conduct sonar operations.  The Navy defended the omission by arguing that the sonar operations would not have an effect on the coastal zone.  Just as the court disagreed with the Navy's determination that its sonar operations would not have a significant impact on the marine environment, so too did the court disagree with the Navy's similar conclusion that MFA sonar would not affect the coastal zone.  Second, the CD did not incorporate mitigation measures that the CCC required pursuant to the CCMP.  The CZMA required the Navy to ensure that its sonar operations were "consistent to the maximum extent practicable with the enforceable policies of [the CCMP],"[4] and the Navy failed to satisfy its burden of proving the inapplicability of the mitigation measures required by the CCC.

2. POSSIBILITY OF IRREPARABLE HARM TO THE ENVIRONMENT

In support of its finding that the proposed MFA sonar operations would create a possibility of irreparable harm to the environment, the court relied not only on evidence provided by Plaintiffs but also cited a Navy study that "conclude[d] that the SOCAL exercises . . . [would] cause widespread harm to nearly thirty species of marine mammals, including five species of endangered whales, and [might] cause permanent injury and death."[5]

Having identified the possibility of irreparable harm, the court then considered the appropriateness of an injunction to prevent that harm.  After weighing the competing concerns of national security and environmental protection, the court concluded 

that the balance of hardships tip[ped] in favor of granting an injunction, as the harm to the environment, Plaintiffs, and public interest outweigh[ed] 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.[6]

  

B. THE DISTRICT COURT'S INITIAL ORDER

Based on the findings above, the court issued a preliminary injunction of potentially indefinite duration on August 7, 2007, because it would have prohibited all MFA sonar use "until the Navy adopt[ed] mitigation measures that would substantially lessen the likelihood of serious injury and death to marine life."[7]  

C. APPEAL TO THE NINTH CIRCUIT

On August 31, 2007, the Ninth Circuit stayed the district court's sweeping injunction, pending an appeal by the Navy.[8] On November 13th, the Ninth Circuit adopted the district court’s findings and vacated the stay, but it remanded the matter, chastising the district court for having imposed such an overly broad preliminary injunction. The Ninth Circuit instructed the district court to narrow the scope of the injunction by using its findings to craft mitigation measures uniquely tailored to fit the Navy’s MFA sonar operations in the SOCAL.[9] 

III. MITIGATION MEASURES IMPOSED BY THE DISTRICT COURT

On January 3, 2008, the district court finally issued its much-anticipated order in which it laid out the following mitigation measures applicable to future MFA sonar operations in the SOCAL:

1. 12 Nautical Mile Coastal Exclusion Zone.  "The Navy shall maintain a 12 nautical mile exclusion zone from the California coastline at all times."[10]  Although Plaintiffs sought to enjoin MFA sonar operation within twenty-five miles of the California coastline, the court, though agreeing with Plaintiffs that a twenty-five mile exclusion zone would ensure maximum protection of marine habitat, deemed the zone unduly burdensome to the Navy.  The court noted that the Navy had previously operated under a twelve mile exclusion zone and that such a zone struck the best balance between protection of marine habitat and the Navy's need to train "to detect submarines in the very bathymetry in which submarines are likely to hide."

2. 2200 Yard MFA Sonar Shutdown.  "The Navy shall cease use of MFA sonar . . . when marine mammals are spotted within 2200 yards . . . ."[11]  Designed only to prevent the most damaging consequences of exposure to MFA sonar, the court concluded that a 2200 yard zone of protection for marine mammals imposed a minimal burden on the Navy.

3. Monitoring.  For sixty minutes prior to conducting MFA sonar operations, the Navy "shall monitor for the presence of marine mammals,"[12] using lookouts on vessels and one dedicated aircraft to monitor the entire operating area.  If a marine mammal is spotted, the Navy must suspend sonar operations until it establishes the requisite 2200 yard buffer.  Once sonar operations have begun, the Navy must continue visual monitoring efforts by posting two National Oceanic and Atmospheric Administration (NOAA)- and NMFS-trained lookouts in addition to using one dedicated aircraft, and Navy vessels must also listen for the presence of marine mammals using passive acoustic monitoring.

4. Helicopter Dipping Sonar.  Helicopters must monitor the area for ten minutes prior to employing active dipping sonar and, after spotting a marine mammal within 2200 yards of the helicopter, must cease active dipping sonar operations until reestablishing the 2200 yard safety zone.

5. Surface Ducting Conditions.  "[W]hen surface ducting conditions are detected . . . in which sound travels further than it otherwise would due to temperature differences in adjacent layers of water . . . the Navy shall power down sonar by 6dB"[13] to minimize the sonar's greater intensity and range.

6. Choke Points and the Catalina Basin.  "[T]he Navy [shall] refrain from employing MFA sonar in the Catalina Basin,"[14] an area located between the Santa Catalina and San Clemente islands that provides habitat to a large population of marine mammals.

7. Continue National Defense Exemption (NDE) II Mitigation Measures.  Since 2002, the Navy has worked with NOAA and NMFS to ensure the compliance of its operations with all federal laws, and it has adopted various mitigation measures to achieve that goal of compliance.   The district court explained that its mitigation measures were to be implemented in addition to those measures either already adopted or currently under review by the Navy pursuant to its ongoing collaboration with NOAA and NMFS.

IV. RECENT DEVELOPMENTS

On Tuesday, January 15, 2008, President Bush signed an exemption authorizing the Navy's continued use of MFA sonar in its SOCAL exercises.  In the exemption, the President stated that the sonar exercises "[we]re in the paramount interest of the United States" and that compliance with the mitigation measures would "undermine the Navy's ability to conduct realistic training exercises that [we]re necessary to ensure the combat effectiveness of carrier and expeditionary strike groups."[15] The exemption "claim[s] that the Navy [is] exempt from the [CZMA] and . . . [NEPA],"[16] and it formed the basis of the Navy’s appeal to the Ninth Circuit late on Tuesday night. The Ninth Circuit remanded the case to the district court on Wednesday, and on Thursday, January 17th, the district court responded by temporarily lifting the requirements that the Navy maintain a 2200 yard zone of protection for marine mammals and that it power down its sonar during surface ducting conditions.[17] More developments are expected within the next several days.  

V. THE SIGNIFICANCE OF NRDC V. WINTER  TO ENVIRONMENTAL LAWYERS

NRDC v. Winter is not likely to be an isolated event in the history of environmental law.  At a minimum, the California court's January 3rd order represents an historic victory for environmental groups and a staggering blow to the U.S. military; however, the broader implications of this order will be the ones worth watching. The White House’s recent involvement in the case has ignited the controversy and captured the media’s attention, setting the stage for a dramatic showdown between proponents of national security and advocates of environmental protection. 

Though merely conjectural at this point, it seems plausible that NRDC v. Winter might spawn an explosion of environmental litigation, giving rise to an even greater abundance of work for environmental lawyers.  The case may give environmentalists renewed confidence to challenge the environmental records of their most formidable adversaries.  At the same time, it may also make many regulated entities more conscious of their own environmental vulnerability and prompt them to begin seeking the best legal representation available.  By prevailing against the U.S. Navy, the NRDC and its fellow plaintiffs have not only inspired other environmental groups around the country, but they have also issued a stern warning to the entire regulated community that no organization is immune from liability in this new era of heightened environmental awareness. 

Contact information: jim.farrell@butlersnow.com or (228) 575-3048

Jim Farrell is an associate in the law firm of Butler, Snow, O’Mara, Stevens & Cannada, PLLC, and a member of the firm’s environmental law practice group. Mr. Farrell graduated from the U.S. Naval Academy in 1999 and served for five years as a naval officer prior to attending law school. He received his JD from the University of Mississippi School of Law in 2007. In the summer of 2006, Mr. Farrell served as a law clerk in the U.S. EPA’s Office of Enforcement and Compliance Assurance.

Butler, Snow, O'Mara, Stevens & Cannada, PLLC, is a full-service law firm with more than 150 attorneys representing regional and national clients from offices in Jackson, Miss., on the Mississippi Gulf Coast, Memphis, Tenn. and Bethlehem, Penn.  For more information, visit www.butlersnow.com.


[1] Natural Res. Def. Council v. Winter, No. 8:07-cv-00335-FMC-FMOx, slip op. at 8 (C.D. Cal. Jan. 3, 2008) (order issuing preliminary injunction).

[2] Id.at 10.

[3] Id.at 11 (quoting 15 C.F.R. § 930.32(a)(1)).

[4] Id.at 10-11 (quoting 16 U.S.C. § 1456(c)(1)).

[5] Id.at 12.

[6] Id.at 12-13.

[7] Id.at 3. 

[8] See Natural Res. Def. Council v. Winter, 502 F.3d 859 (9th Cir. 2008).

[9] See Natural Res. Def. Council v. Winter, 508 F.3d 885 (9th Cir. 2008).

[10] Natural Res. Def. Council v. Winter, No. 8:07-cv-00335-FMC-FMOx, slip op. at 14 (C.D. Cal. Jan. 3, 2008) (order issuing preliminary injunction).

[11] Id.at 15.

[12] Id.

[13] Id.at 17.

[14] Id.at 17-18.

[15] Activists Vow to Push Fight Against Navy Sonar, http://www.msnbc.com/id/22683062 (last visited Jan. 21, 2008). 

[16] Daniel Hinerfield & Hamlet Paoletti, Sonar Case Remanded to District Court, http://www.nrdc.org/media/2008/080116c.asp (last visited Jan. 21, 2008).

[17] See Natural Res. Def. Council v. Winter, No. 8:07-cv-00335-FMC-FMOx, slip op. at 2 (C.D. Cal. Jan. 17, 2008) (order for temporary partial stay and setting briefing schedule).

California v. U.S. EPA--Fighting for the Last Word on Mobile Source Greenhouse Gas Emissions

Posted on January 8, 2008 by Michèle Corash

Following the United States Supreme Court’s landmark decision in Massachusetts v. EPA, deciding that greenhouse gases are a pollutant under the Clean Air Act, a federal-state skirmish has emerged in the climate change arena over mobile source emissions. The United States Government estimates that the transportation sector accounts for approximately one-third of all greenhouse gas emissions in the U.S. Over the past months, the question of how to reduce those emissions has evolved into a dramatic political and legal battle, pitting California’s Governor Arnold Schwarzenegger against U.S. President George Bush. 

The stage for this tussle was set long ago when Congress adopted the federal Clean Air Act and included in the law a special provision for California. Specifically, Section 209(a) of the Clean Air Act prohibits individual states from adopting emission standards for new motor vehicles. However, in recognition of California’s unique smog problems, a subsection (b) was added to enable California to adopt standards more stringent than federal standards so long as it applies for and obtains a waiver from the U.S. EPA. As one court recently explained, under Section 209(b), “Congress has essentially designated California as a proving ground for innovation in emission control regulations.” Other states are then free to adopt California’s standards pursuant to Section 177 of the Clean Air Act, so long as the standards are adopted at least two years before the model year that they regulate. 

In 2002, California invoked its unique Clean Air Act authority to address greenhouse gas emissions from mobile sources. In particular, the State passed AB 1493 requiring the California Air Resources Board to develop and adopt regulations for the greenhouse gas emissions of passenger automobiles and light duty trucks. In September of 2004, the Air Resources Board adopted standards that apply to such vehicles beginning with model year 2009. As required by the Clean Air Act, California then requested a waiver from the U.S. EPA so that the standards could enter into force. While the waiver request was pending, no less than sixteen other states lined up to adopt California’s standards—for all practical purposes, the California standards were poised to become the de facto national standard.  

Automobile manufacturers challenged those regulations in federal courts in both Vermont and California, arguing that the state automobile emission standards for greenhouse gases constituted fuel efficiency standards, and that fuel efficiency standards are exclusively regulated by the federal government under the Environmental Policy and Conservation Act (“EPCA”).[1] Both courts rejected the manufacturers’ challenges, deciding that federal law did not preempt California’s ability to affect fuel economy through the regulation of greenhouse gas emissions from automobiles, so long as the U.S. EPA granted a waiver under the Clean Air Act—the stage was set for a showdown between California and the U.S. EPA.

The U.S. EPA played its hand slowly. During the summer of 2007, the U.S. EPA held hearings on California’s waiver request. Perhaps foreshadowing its upcoming decision on the request, the U.S. EPA then announced in the fall that it would begin its own “Rulemaking To Address Greenhouse Gas Emissions From Motor Vehicles,” planning for the adoption of federal regulations by October 2008. Finally, the shot was fired on December 19, 2007, when Stephen Johnson, the U.S. EPA Administrator, held a press conference announcing his agency would not grant a waiver to California’s regulation. At the same time, President Bush signed a new energy bill, the Energy Independence and Security Act of 2007, requiring a fleet average of thirty-five miles per gallon by 2020 and an annual production of thirty-six billion gallons of renewable fuels by 2022.[2] In making the announcement, Johnson specifically cited Bush’s recent signing of the bill and said, “The Bush administration is moving forward with a clear national solution, not a confusing patchwork of state rules. I believe this is a better approach than if individual states were to act alone.”

Retaliation came swiftly. Little more than two weeks after Johnson’s announcement, California, along with 15 other states and five environmental groups, petitioned the Ninth Circuit on January 2, 2008, for review of the waiver denial.  In the lawsuit, California will need to make the case that its regulation under Section 209 was necessary to “meet compelling and extraordinary conditions.”  As a coastal state with limited fresh water resources, the effect of climate change on California may indeed be severe, involving rising sea levels, a reduction in the Sierra snow pack, and higher temperatures that would exacerbate the state’s ozone nonattainment problem, which is already the worst in the nation. A recent Stanford University study added fodder to this argument when it found Californians’ health will be disproportionately affected by greenhouse gas emissions, because the state is home to six of the most polluted cities in the United States. California will also need to make the case under section 209, that its standards “will be, in the aggregate, at least as protective of public health and welfare as applicable Federal standards.” To that end, the California Air Resources Board released a January 2, 2008, assessment that concludes the federal law, even when fully implemented, will not be as effective as California’s standards at reducing greenhouse gas emissions from new vehicles. Even if California is successful, California’s regulation will have to be modified as it was to apply to 2009 model cars—models that will shortly be coming to market. 

The EPA’s first legal maneuver in response to California’s petition may be to request a transfer from the Ninth Circuit to the more agency-friendly D.C. Circuit. Most challenges of EPA regulations must be filed in the D.C. Circuit—the relevant jurisdictional trigger being whether the action has “nationwide scope or effect.”  While the issue of the waiver makes its way through the courts, the U.S. EPA’s rulemaking will also go forward. To meet its goal of final action by October 2008, the U.S. EPA will have to move quickly, with the public comment period coming by summer 2008 at the latest. 

As these battles are fought, looming on the horizon is a general election in November, and a new federal administration beginning in January of 2009. If the U.S. EPA adopts regulations in October 2008 that do not go as far as the California standards, yet another legal challenge seems almost inevitable, if for no other reason than to stall any final rule until the administration changeover. When the dust does settle, presumably in 2009, the road to mobile source emission reductions will finally be paved.

Michèle Corash is a partner in the international law firm of Morrison & Foerster LLP and a member of the firm’s environmental law practice group. She served as General Counsel of the United States Environmental Protection Agency (EPA) from 1979 to 1982 and previously as Deputy General Counsel for the U.S. Department of Energy and Special Assistant to the Chairman of the Federal Trade Commission. Ms. Corash has consistently been listed in American Lawyer’s Corporate Counsel among the “Best Lawyers in America for Environmental Law” and in numerous other publications as being at the top of her field. She represents companies on a broad range of state, national and international environmental issues and claims regarding exposure to toxic substances. With the experience of being a former General Counsel of the EPA, Ms. Corash is well versed, and has been for many years, in the evolving area of clean technology, renewable resources and climate change. She advises clients on the many issues now facing corporations as they face the challenges of new technologies, infrastructures, markets and regulatory regimes.

Contact information: mcorash@mofo.com or (415) 268-7124



[1] Adopted in 1975, EPCA provides for the establishment of national corporate average fuel economy (“CAFÉ”) standards that apply to all passenger automobiles and light duty trucks.

[2] Coincidentally, at the same time, the European Commission adopted a proposal for legislation to dramatically reduce the average carbon dioxide (“CO2”) emissions of new passenger cars by 2012. If adopted by the European Parliament, the proposal requires, by 2012, a fleet average of 130 grams of CO2 emissions per kilometer, with another 10 grams per kilometer reduction from alternative sources such as biofuels and more efficient air-conditioning. Considering Europe’s cars currently emit on average 160 grams of CO2 per kilometer, this represents an almost twenty percent reduction of CO2 emissions in four years. 

California v. U.S. EPA--Fighting for the Last Word on Mobile Source Greenhouse Gas Emissions

Posted on January 8, 2008 by Michèle Corash

Following the United States Supreme Court’s landmark decision in Massachusetts v. EPA, deciding that greenhouse gases are a pollutant under the Clean Air Act, a federal-state skirmish has emerged in the climate change arena over mobile source emissions. The United States Government estimates that the transportation sector accounts for approximately one-third of all greenhouse gas emissions in the U.S. Over the past months, the question of how to reduce those emissions has evolved into a dramatic political and legal battle, pitting California’s Governor Arnold Schwarzenegger against U.S. President George Bush. 

The stage for this tussle was set long ago when Congress adopted the federal Clean Air Act and included in the law a special provision for California. Specifically, Section 209(a) of the Clean Air Act prohibits individual states from adopting emission standards for new motor vehicles. However, in recognition of California’s unique smog problems, a subsection (b) was added to enable California to adopt standards more stringent than federal standards so long as it applies for and obtains a waiver from the U.S. EPA. As one court recently explained, under Section 209(b), “Congress has essentially designated California as a proving ground for innovation in emission control regulations.” Other states are then free to adopt California’s standards pursuant to Section 177 of the Clean Air Act, so long as the standards are adopted at least two years before the model year that they regulate. 

In 2002, California invoked its unique Clean Air Act authority to address greenhouse gas emissions from mobile sources. In particular, the State passed AB 1493 requiring the California Air Resources Board to develop and adopt regulations for the greenhouse gas emissions of passenger automobiles and light duty trucks. In September of 2004, the Air Resources Board adopted standards that apply to such vehicles beginning with model year 2009. As required by the Clean Air Act, California then requested a waiver from the U.S. EPA so that the standards could enter into force. While the waiver request was pending, no less than sixteen other states lined up to adopt California’s standards—for all practical purposes, the California standards were poised to become the de facto national standard.  

Automobile manufacturers challenged those regulations in federal courts in both Vermont and California, arguing that the state automobile emission standards for greenhouse gases constituted fuel efficiency standards, and that fuel efficiency standards are exclusively regulated by the federal government under the Environmental Policy and Conservation Act (“EPCA”).[1] Both courts rejected the manufacturers’ challenges, deciding that federal law did not preempt California’s ability to affect fuel economy through the regulation of greenhouse gas emissions from automobiles, so long as the U.S. EPA granted a waiver under the Clean Air Act—the stage was set for a showdown between California and the U.S. EPA.

The U.S. EPA played its hand slowly. During the summer of 2007, the U.S. EPA held hearings on California’s waiver request. Perhaps foreshadowing its upcoming decision on the request, the U.S. EPA then announced in the fall that it would begin its own “Rulemaking To Address Greenhouse Gas Emissions From Motor Vehicles,” planning for the adoption of federal regulations by October 2008. Finally, the shot was fired on December 19, 2007, when Stephen Johnson, the U.S. EPA Administrator, held a press conference announcing his agency would not grant a waiver to California’s regulation. At the same time, President Bush signed a new energy bill, the Energy Independence and Security Act of 2007, requiring a fleet average of thirty-five miles per gallon by 2020 and an annual production of thirty-six billion gallons of renewable fuels by 2022.[2] In making the announcement, Johnson specifically cited Bush’s recent signing of the bill and said, “The Bush administration is moving forward with a clear national solution, not a confusing patchwork of state rules. I believe this is a better approach than if individual states were to act alone.”

Retaliation came swiftly. Little more than two weeks after Johnson’s announcement, California, along with 15 other states and five environmental groups, petitioned the Ninth Circuit on January 2, 2008, for review of the waiver denial.  In the lawsuit, California will need to make the case that its regulation under Section 209 was necessary to “meet compelling and extraordinary conditions.”  As a coastal state with limited fresh water resources, the effect of climate change on California may indeed be severe, involving rising sea levels, a reduction in the Sierra snow pack, and higher temperatures that would exacerbate the state’s ozone nonattainment problem, which is already the worst in the nation. A recent Stanford University study added fodder to this argument when it found Californians’ health will be disproportionately affected by greenhouse gas emissions, because the state is home to six of the most polluted cities in the United States. California will also need to make the case under section 209, that its standards “will be, in the aggregate, at least as protective of public health and welfare as applicable Federal standards.” To that end, the California Air Resources Board released a January 2, 2008, assessment that concludes the federal law, even when fully implemented, will not be as effective as California’s standards at reducing greenhouse gas emissions from new vehicles. Even if California is successful, California’s regulation will have to be modified as it was to apply to 2009 model cars—models that will shortly be coming to market. 

The EPA’s first legal maneuver in response to California’s petition may be to request a transfer from the Ninth Circuit to the more agency-friendly D.C. Circuit. Most challenges of EPA regulations must be filed in the D.C. Circuit—the relevant jurisdictional trigger being whether the action has “nationwide scope or effect.”  While the issue of the waiver makes its way through the courts, the U.S. EPA’s rulemaking will also go forward. To meet its goal of final action by October 2008, the U.S. EPA will have to move quickly, with the public comment period coming by summer 2008 at the latest. 

As these battles are fought, looming on the horizon is a general election in November, and a new federal administration beginning in January of 2009. If the U.S. EPA adopts regulations in October 2008 that do not go as far as the California standards, yet another legal challenge seems almost inevitable, if for no other reason than to stall any final rule until the administration changeover. When the dust does settle, presumably in 2009, the road to mobile source emission reductions will finally be paved.

Michèle Corash is a partner in the international law firm of Morrison & Foerster LLP and a member of the firm’s environmental law practice group. She served as General Counsel of the United States Environmental Protection Agency (EPA) from 1979 to 1982 and previously as Deputy General Counsel for the U.S. Department of Energy and Special Assistant to the Chairman of the Federal Trade Commission. Ms. Corash has consistently been listed in American Lawyer’s Corporate Counsel among the “Best Lawyers in America for Environmental Law” and in numerous other publications as being at the top of her field. She represents companies on a broad range of state, national and international environmental issues and claims regarding exposure to toxic substances. With the experience of being a former General Counsel of the EPA, Ms. Corash is well versed, and has been for many years, in the evolving area of clean technology, renewable resources and climate change. She advises clients on the many issues now facing corporations as they face the challenges of new technologies, infrastructures, markets and regulatory regimes.

Contact information: mcorash@mofo.com or (415) 268-7124



[1] Adopted in 1975, EPCA provides for the establishment of national corporate average fuel economy (“CAFÉ”) standards that apply to all passenger automobiles and light duty trucks.

[2] Coincidentally, at the same time, the European Commission adopted a proposal for legislation to dramatically reduce the average carbon dioxide (“CO2”) emissions of new passenger cars by 2012. If adopted by the European Parliament, the proposal requires, by 2012, a fleet average of 130 grams of CO2 emissions per kilometer, with another 10 grams per kilometer reduction from alternative sources such as biofuels and more efficient air-conditioning. Considering Europe’s cars currently emit on average 160 grams of CO2 per kilometer, this represents an almost twenty percent reduction of CO2 emissions in four years.