Pioneering Environmental Law: Remembering David Sive (1922-2014)

Posted on May 2, 2014 by Nicholas Robinson

Before environmental law existed, David Sive knew that the law could protect forests and fields, abate pollution of air and water, and restore the quality that humans expected from their ambient environments.  He fashioned legal arguments and remedies where others saw none.  His commitment to building a field of environmental law is exemplary, not just historically, but because we shall all need to emulate his approach as we cope with the legal challenges accompanying the disruptions accompanying climate change.

David Sive learned to love nature by hiking and rambling from parks in New York City to the wilderness of the Catskill and Adirondack Mountains.  He carried Thoreau’s Walden into battle in World War II in Europe, and read William Wordsworth and the Lake poets while recuperating from wounds in hospitals in England.  He had a mature concept of the ethics of nature long before he began to practice environmental law.

His early cases were defensive.  He defended Central Park in Manhattan from the incursion of a restaurant. He rallied the Sierra Club to support a motley citizens’ movement that sought to protect Storm King Mountain from becoming a massive site for generating hydro-electricity on the Hudson River.  Scenic Hudson Preservation Conference v. Federal Power Commission [FPC] (2d Cir. 1965), would become the bell-weather decision that inaugurated contemporary environmental law.  The case was based on the multiple use concepts of the Progressive Era’s Federal Power Act.  The FPC (now FERC), had ignored all multiple uses but the one Con Edison advanced.  When the Court of Appeals for the Second Circuit held that citizens had the right to judicial review to require the FPC to study alternative ways to obtain electricity, as well as competing uses for the site, the court laid the basis for what would become Section 102(2)(c) of the National Environmental Policy Act (NEPA).

When Consolidated Edison Company decided to build a huge hydroelectric power plant on Storm King, the northern portal to the great fiord of the Hudson River Highlands, citizens and local governments were appalled.  This was no “NIMBY” response.  Con Ed had forgotten that these fabled Highlands inspired the Hudson River School of landscape painting.  This artistic rendering of nature in turn inspired the birth of America’s conservation movement of the late 19th century.  The Hudson also instrumental to the historic birth of this nation; here the patriots’ control of the Highlands had kept the British from uniting their forces, and here soldiers from across the colonies assembled above Storm King for their final encampment as George Washington demobilized his victorious Army.  The Army’s West Point Military Academy overlooks the River and Storm King.  

David Sive and Alfred Forsythe formed the Atlantic Chapter in the early 1960s, despite heated opposition from Californians who worried the Club would be stretched too thin by allowing a chapter on the eastern seaboard.  David Sive chaired the Chapter, whose Conservation Committee debated issues from Maine to Florida.  He represented the Sierra Club, pro bono, in its intervention in the Storm King case, and other citizens brought their worries about misguided government projects or decisions to him. 

David Sive represented similar grassroots community interests in Citizens Committee for the Hudson Valley v. Volpe (SDNY 1969), affirmed (2d Cir. 1970).  Transportation Secretary Volpe had approved siting a super-highway in the Hudson River adjacent to the shore in Tarrytown and Sleepy Hollow, to accommodate Governor Nelson Rockefeller’s proposal to connect his Hudson estate to the nearby Tappan Zee Bridge.  Without the benefit of NEPA or any other environmental statutes, which would be enacted beginning in the 1970s, and relying upon a slender but critical provision of a late 19th century navigation law, after a full trial in the US District Court for the Southern District of New York, David Sive prevailed against the State and federal defendants.  He won major victories on procedure, granting standing to sue, and on substance, a ruling that the government acted ultra vires.  David Sive saved the beaches, parks and marinas of the Hudson shore.

Public interest litigation to safeguard the environment was born in these cases.  Public outrage about pollution and degradation of nature was widespread.  In September 1969, the Conservation Foundation convened a conference on “Law and the Environment,” at Airlie House near Warrenton, Virginia.  David Sive was prominent among participants.  His essential argument was that “environmental law” needed to exist. 

On December 1, 1970, Congress enacted the NEPA, creating the world’s first Environmental Impact Assessment procedures and establishing the President’s Council on Environmental Quality (CEQ).  The CEQ named a Legal Advisory Committee to recommend how agencies should implement NEPA chaired by US Attorney Whitney North Seymour, Jr. (SDNY).  This Committee persuaded CEQ to issue its NEPA “guidelines” on the recommendation of this Committee.  That year launched the “golden age” of NEPA litigation.  Courts everywhere began to hear citizen suits to protect the environment.

David Sive went on to represent citizens in several NEPA cases, winning rulings of first impression.  In 1984, he reorganized his law firm, Sive Paget & Riesel, to specialize in the practice of environmental law.  From the 1970s forward, NEPA allowed proactive suits, no longer the primarily defensive ones of the 1960s. “Citizen suits” were authorized in the Clean Air Act, Clean Water Act and other statutes. 

David Sive knew that without widespread support among the bar and public, these pioneering legal measures might not suffice.  He became a founder of the Natural Resources Defense Council (NRDC), which became one of the nation’s pre-eminent champions of public environmental rights before the courts.  To continue the Airlie House conference precedent, he institutionalized the established professional study of environmental law, as a discipline, through creation of the Environmental Law Institute (ELI).  With ALI-ABA (now ALI-CLE) he launched nationwide continuing legal education courses to education thousands of lawyers in environmental law, a field that did not exist when they attended law school.  He devoted an active decade to teaching law students in environmental law, as a professor at Pace Law School in New York.

This month, the Intergovernmental Panel on Climate Change (IPCC) released the second part of its Fifth Assessment Report.  The IPCC summaries of peer-reviewed scientific investigation suggest that law will confront problems even more challenging than those that David Sive addressed.  New legal theories and remedial initiatives will be needed that do not exist today.  The wisdom of ecologist Aldo Leopold can inform the next generation.  Globally, others carry on David Sive’s role, such Attorney Tony Oposa in the Philippines or M. C. Mehta in India.  The law can cope with rising sea levels, adaptation to new rainfall patterns, and other indices of climate change, but it will take individual commitment to think deeply about environmental justice in order to muster the courage to think and act tomorrow as David Sive did yesterday.

The National Environmental Policy Act: What Constitutes Segmentation and a “Direct” Environmental Impact?

Posted on February 14, 2014 by Thomas Hnasko

On February 11, 2013, the United States District Court for the District of New Mexico denied a Motion for Preliminary Injunction filed by the Village of Logan, seeking to compel the Bureau of Reclamation (“BOR”) to perform an environmental impact statement (“EIS”) for the Ute Lake Diversion Project in eastern New Mexico. The BOR issued an environmental assessment (“EA”), which failed to analyze the foreseeable impacts to Ute Lake based on the design capacity of the intake structure to withdraw 24,000 acre-feet per year (“af/yr”). The BOR contended that, while contracts had been issued to deliver the full 24,000 af/yr of water, the project which it funded was limited to withdrawals from the lake of only 16,450 af/yr. Significantly, the environmental and socioeconomic impacts of 16,450 af/yr paled in comparison to the projected impacts resulting from withdrawals of 24,000 af/yr.

The briefs in the Tenth Circuit present an issue of first impression under NEPA. That is, can the BOR defer an analysis of certain impacts it knows will occur in the future, and summarily discuss those deleterious impacts under the rubric of “cumulative” rather than “direct” effects? According to the Department of Justice, Logan’s complaint about the matter is only one of “nomenclature,” and it should not matter whether the effects are deemed “direct” or “cumulative.” In response, Logan argues that the difference is one of substance, as an analysis of “cumulative” effects of a project does not require a comparison of the project to reasonably available alternatives, whereas an analysis of foreseeable “direct” effects, i.e., withdrawals up to the capacity of the intake structure, would require a vigorous comparison to available alternatives. These alternatives, which received only a one-half page discussion in the EA’s section on cumulative effects, include retirement of wasteful irrigation groundwater rights to augment municipal water supplies in eastern New Mexico. According to Logan, allowing the BOR to analyze a plainly foreseeable “direct” effect as merely “cumulative” would result in the illegal segmentation of the project. If such a result were sanctioned, there would be no NEPA analysis ever undertaken of the effects between 16,450 af/yr and 24,000 af/yr.

Oral argument is scheduled for March 17, 2014.

Transmission Line Developers Post a Win

Posted on September 11, 2013 by Rick Glick

A federal court in Washington, D.C. gave some encouragement to transmission line developers—not to mention sponsors of other linear projects, like gas or water pipelines.  In National Parks Conservation Assn. (NPCA) v. Jewell, the court rejected a challenge to the National Parks Service’s grant of special use permits and extended rights-of-way for the Susquehanna to Roseland Transmission Line (S-R Line), a replacement and upgrade project.

The focus of Appellant NPCA’s attack was the National Environmental Policy Act (NEPA), a potent weapon in years past.  Under NEPA, a federal agency considering a “major” action must evaluate the environmental effects of the project.  After an initial Environmental Assessment, the agency either conducts a full blown Environmental Impact Statement (EIS) or issues a Finding of No Significant Impact.  NEPA’s purpose is to ensure that the agency takes a “hard look” at the environmental tradeoffs of its intended action, but once having done that, it can decide to move forward regardless.  In other words, NEPA is a procedural statute, but lacks teeth to prevent the agency from acting.

Still, NEPA has proved effective in stopping projects in their tracks.  The usual avenues of attack have been whether the agency should have written an EIS, whether it considered all reasonable alternatives, whether the EIS needs updating, and whether the project should be seen in a larger context of other similar developments or as part of a broad program.  In recent years, however, the agencies have learned how to beat back such challenges.

The NPCA made allegations on similar bases here, but this time to no avail.  The Parks Service’s EIS took an adaptive management approach to mitigation, anticipating that the mitigation plan would evolve.  The NPCA argued that the EIS must analyze the mitigation ultimately decided on, but the court was satisfied the agency had taken the requisite “hard look.”  Nor did the court find a supplemental EIS necessary because the “new information” adduced by the NPCA concerned environmental effects that were already within the scope of the EIS.

The NPCA also argued that the alternatives analysis in the EIS was lacking because it didn’t adequately consider the no-action alternative.  In this case, the no-action alternative would be to pursue a non-transmission approach, such as distributed energy.  The court deferred to the Parks Service’s analysis that this alternative would not meet the objective of improving the reliability of the applicants’ existing line.  The court found that the Parks Service rationally considered and rejected the no-action alternative.

The court also rejected the argument that the Parks Service should have analyzed the environmental effects of the entire S-R Line, and agreed the agency could look just at the consequences of extending the right-of-way.  The judge took note of the fact that the project sponsors could have reconstructed the line on their existing right-of-way, and therefore there was no functional difference between the reconstructed line on the proposed right-of-way and the existing one.

The court’s approach in this case is consistent with NEPA case law in recent years.  Agencies will be given some deference in their decision making, so long as their NEPA documents indicate a good faith effort to look at environmental impacts.  Project opponents can no longer rely on NEPA as a reliable weapon to block development. 

DOE Conditionally Approves Second Natural Gas Export License

Posted on May 30, 2013 by Deborah Jennings

On Friday, May 17, the Department of Energy (DOE) announced it had conditionally authorized Freeport LNG Expansion, L.P. and FLNG Liquefaction, LLC (collectively Freeport) to export domestically produced liquefied natural gas (LNG) to countries that do not have a Free Trade Agreement (FTA) with the United States from the Freeport LNG Terminal on Quintana Island, Texas.  This marks only the second time that the DOE has granted a natural gas export license to non-FTA countries, and only the first after DOE ceased action on all applications pending a study of the economic impacts of LNG exports.  The Freeport approval marks a noticeable, but likely incremental shift in US policy towards increased export of natural gas to non-FTA nations, opening up new markets for the boom in domestic natural gas production.

The DOE rejected opponents’ arguments that the project would be inconsistent with the public interest.  Among other reasons, the DOE found that the proposed exports are likely to yield net economic benefits to the US, would enhance energy security for the US and its allies, and were unlikely to affect adversely domestic gas availability, prices or volatility. Accordingly, DOE conditionally granted Freeport’s Application, subject to satisfactory completion of an environmental review pursuant to the National Environmental Policy Act (NEPA) by the Federal Energy Regulatory Commission (FERC) and DOE.  FERC will serve as the lead NEPA review agency. DOE will subsequently reconsider the conditional order in light of the NEPA analysis led by FERC and include the results in any final opinion and order.

Environmental issues will now take center stage as interested stakeholders seek to influence the government’s conclusions in the NEPA review.  In support of its application, Freeport extolled the following environmental benefits of the project:

•    Natural gas, the cleanest burning fossil fuel, would replace coal-fired power resulting in substantial reductions in greenhouse gas and traditional air pollutants. 
•    Compared to the average coal-fired plant, natural gas fired plants emit half as much carbon dioxide (CO2), less than a third of the nitrogen oxides, and one percent of the sulfur oxides. 
•    Natural gas, if used as a transportation fuel, also produces approximately 25 to 30 percent less CO2 than gasoline or diesel when used in vehicles, and is not a significant contributor to acid rain or smog formation.

Opponents of the project, however, are less convinced of its environmental benefits.  These include the Sierra Club, the Delaware Riverkeeper Network (consisting of 80 organizations), NRDC, among others.  Specifically, they assert that LNG exports will increase demand for natural gas, thereby increasing negative environmental and economic consequences associated with fracking, the process used for shale gas production.  They argue that the DOE’s two-part study of the economic impacts of LNG exports, upon which DOE relied in conditionally granting Freeport’s application, failed to consider the cost of the environmental externalities that would follow such exports, which include:

•    Environmental costs associated with producing more shale gas to support LNG exports;
•    Opportunity costs associated with the construction of natural gas production, transport, and export facilities, as opposed to investing in renewable or sustainable energy infrastructure;
•    Costs and implications associated with eminent domain necessary to build new pipelines to transport natural gas; and
•    Potential for switching from natural gas-fired electric generation to coal-fired generation, if higher domestic prices cause domestic electric generation to favor coal-fired generation at the margins.

Sierra Club and other organizations have previously challenged the adequacy of FERC’s and DOE’s NEPA determinations in other LNG export applications.  In the first LNG export license approval for Sabine Pass Liquefaction, LLC (DOE Docket. No. 10-111-LNG), Sierra Club, as an intervener in the FERC proceeding, challenged the adequacy of FERC’s NEPA compliance, and the lawfulness of the FERC’s determination to authorize the Project facilities. The FERC addressed these concerns and found that if a series of 55 enumerated conditions were met, the Project would not constitute a major Federal action significantly affecting the quality of the human environment. 

After FERC authorized the Liquefaction project, Sierra Club filed a motion to intervene out of time before DOE , again challenging FERC’s NEPA determinations.  DOE rejected Sierra Club’s motion, and granted the final order approving the LNG export on August 7, 2012.  Sierra Club subsequently sought a rehearing on the final order which was also rejected by the DOE in a January 25, 2013 order

Similarly, earlier this month, Sierra Club and other environmental organizations objected to the proposed Dominion Cove Point LNG export terminal in Maryland, arguing the project would harm the Chesapeake Bay’s economy and ecology, increase air pollution, and hasten fracking and drilling in neighboring states.  On May 3, 2013, the coalition filed public comments and a timely motion to intervene in the proceedings calling on FERC to conduct a thorough environmental review, or prepare an EIS, of the project.  The proposed terminal will be the only LNG export facility in the east coast, providing foreign markets with access to natural gas from the Marcellus Shale.

Surprise, Surprise, Surprise: An Agency Cannot Revise Regulations In a Consent Decree

Posted on May 22, 2013 by Seth Jaffe

In a decision that should not have come as a surprise to anyone, the 9th Circuit Court of Appeals ruled late last month, in Conservation Northwest v. Sherman, that the Bureau of Land Management and other agencies implementing the Northwest Forest Plan could not amend the NFP without complying with the procedural requirements of the Federal Land Policy Management Act.  The rationale of the decision should apply far more broadly than just the FLPMA, however.  It should apply to any action by any agency purporting to amend agency regulations that would otherwise be subject to procedural requirements, such as notice-and-comment rulemaking, without complying with those procedural protections.

The history of the case itself it tortuous and not really relevant here.  The short version is that the agency defendants sought to resolve citizen litigation regarding the “Survey and Manage” provisions of the NFP by entering into a consent decree that would amend certain elements of Survey and Manage.  It was uncontested that, if the agencies had sought to do so outside the context of litigation, they would have had to follow FLPMA requirements.  The agencies – and the District Court which upheld entry of the consent decree – argued that, because approval of a consent decree is a “judicial act”, it is not subject to the FLPMA procedures.

I’ve got to say, that argument just seems like a non sequitur to me.  In any case, the 9th Circuit rejected it, concluding that:

"a district court abuses its discretion when it enters a consent decree that permanently and substantially amends an agency rule that would have otherwise been subject to statutory rulemaking procedures."

Well, yeah.

.

Tenth Circuit to Decide Whether NEPA Requires Impacts from Water Diversion Project to Be Analyzed Based On Maximum Achievable Diversions

Posted on May 13, 2013 by Thomas Hnasko

On February 11, 2013, the United States District Court for the District of New Mexico denied a Motion for Preliminary Injunction filed by the Village of Logan, seeking to compel the Bureau of Reclamation (“BOR”) to perform an environmental impact statement (“EIS”) for the Ute Lake Diversion Project in eastern New Mexico.  The BOR issued an environmental assessment (“EA”), which analyzed the impacts from the diversion project based on the withdrawal of only 16,450 acre-feet per year (“af/yr”), despite the fact that the intake structure capacity is 24,000 af/yr.  The BOR contended that the intake structure did not have sufficient pumping capacity and other infrastructure to achieve 24,000 af/yr.

At the preliminary injunction hearing, Logan presented evidence that the Interstate Stream Commission of New Mexico (“ISC”), as the putative owner of the water rights within Ute Lake, had contracted to sell 24,000 af/yr and that the engineering analysis demonstrated sufficient existing capacity within the intake structure to accommodate withdrawals of 24,000 af/yr.  Consequently, similar to analyses required under other environmental laws, including the Clean Air Act, Logan argued that the impacts from the proposed project must be analyzed based on the maximum achievable withdrawal capacity of the intake structure.

The difference in the severity of impacts, based on 24,000 acre-feet withdrawals and 16,450 acre-feet withdrawals, was significant.  The EA conceded that, at 24,000 acre-feet per year, the minimum fisheries pool in Ute Lake – established to provide a minimum necessary habitat for recreational fishing – would be breached at least 20% of the time over a 30-year period.  Allowing the fisheries pool to be breached for at least 6 years over the life of the project created inter-related economic impacts, including significantly decreased property values on the shoreline, decreased tax receipts for the community, lost jobs, and significantly declining revenue for the New Mexico Department of Game and Fish.

The district court ruled that the EA, together with its finding of no significant impact (“FONSI”), was not arbitrary and capricious based on the assumption that the withdrawals would only reach 16,450 af/yr.  The Court stated that, “If in the future, more infrastructure is added to facilitate further withdrawals, primary analysis of the environmental impact may be undertaken then.”  The Court did not state whether such a “primary analysis” would occur within or outside of NEPA, and who would be responsible for initiating such an analysis.  Moreover, assuming that the Court meant an analysis of “direct impacts” by the phrase “primary analysis,” it is unclear how such an analysis would not suffer from predetermination under NEPA.  After all, the intake structure would already be built and there could not be any serious consideration of viable alternatives to the project.

The central issue on appeal is whether a federal agency may postpone part of its NEPA analysis to some unspecified time in the future, despite the fact that the capacity of the project, and the ability to withdraw 24,000 af/yr, is likely a “foreseeable” impact as defined in the Council on Environmental Quality regulations.

Claims of Predetermination Under the National Environmental Policy Act

Posted on January 6, 2012 by Andrew Brown

In recent years, several courts have addressed the issue of what standard a plaintiff must meet to successfully challenge agency action on the ground that it was improperly predetermined in violation of the National Environmental Policy Act (NEPA). Because federal agencies conducting major federal action subject to the requirements of NEPA frequently have a preferred alternative in mind when conducting environmental review, legal challenges based on claims that the agency improperly predetermined the outcome of its NEPA analysis are common.  When an agency action is successfully challenged for improper failure to prepare an Environmental Impact Statement (EIS) and the agency reaches the same result upon completion of an EIS, plaintiffs may raise a claim of improper predetermination, contending that the result is essentially a foregone conclusion.

Circuit courts have generally imposed a stringent burden on plaintiffs seeking to prove predetermination in violation of NEPA. Most recently, the Tenth Circuit addressed the appropriate standard for predetermination in Wyoming v. United States Department of Agriculture.  In Wyoming, the State of Wyoming challenged a final rule promulgated by the United States Forest Service that prohibited road construction and commercial timber harvesting in inventoried roadless areas of the National Forest System.  The State alleged, among other claims, that the Forest Service impermissibly predetermined the outcome of the Roadless Rule proceeding.  The Tenth Circuit Court of Appeals reversed the district court, relying on the stringent standard it had set forth in Forest Guardians v. United States Fish & Wildlife.  The court noted that “predetermination occurs only when an agency irreversibly and irretrievably commits itself to a plan of action that is dependent upon the NEPA environmental analysis producing a certain outcome, before the agency has completed the environmental analysis….”

The Ninth Circuit adopted a similarly stringent standard.  Metcalf v. Daley.  In Metcalf, the court found improper predetermination where the agency signed two written agreements binding them to support the proposal under consideration before preparing an Environmental Assessment and Finding of No Significant Impact.  The Ninth Circuit held that the agencies had violated NEPA by making an “irreversible and irretrievable commitment of resources” prior to completing the environmental review.

In Forest Guardians, the Tenth Circuit also addressed the question of what evidence should be considered by a court in evaluating whether an agency has improperly predetermined its outcome in violation of NEPA.  The court concluded that review of evidence outside the environmental review itself is proper where there is a claim of predetermination. In reaching this conclusion, the Court expressly rejected the dicta of the Fourth Circuit in National Audubon Society v. Department of the Navy, stating that a reviewing court “should generally restrict its inquiry to the objective adequacy of the EIS . . . [and] should not conduct far flung investigations into the subjective intent of the agency.”  The Fourth Circuit reasoned that “[w]here an agency has merely engaged in post hoc rationalizations, there will be evidence of this in its failure to comprehensively investigate the environmental impact of its actions and acknowledge their consequences.”  Because such evidence was absent, the Fourth Circuit affirmed the district court’s conclusion that the Navy had failed to undertake the hard look at environmental consequences that NEPA requires.  

In light of these decisions, plaintiffs alleging that an agency has improperly predetermined the outcome of its environmental review in violation of NEPA face an uphill battle in establishing liability.  The imposition of such a stringent burden is well supported by the language of the Council for Environmental Quality regulations implementing NEPA, see 40 C.F.R. § 1502.14(e), as well as by Supreme Court precedent holding that there must be a strong showing of bad faith or improper behavior before inquiry into the mental processes of administrative decision makers may be made.  Citizens to Preserve Overton Park, Inc. v. Volpe

BLM Suspends Sixty-One Oil and Gas Leases to Perform Climate Change and Greenhouse Gas Analyses in Montana

Posted on April 2, 2010 by James Spaanstra

Authored by:

Robert D. Comer
James R. Spaanstra

Recently, the Bureau of Land Management ("BLM") and several Montana environmental groups agreed to suspend 61 Montana oil and gas leases as settlement of a case challenging lease issuance for failure to consider climate change effects. The leases, which had been issued, were suspended while BLM conducts additional analysis of greenhouse gas fugitive emissions and climate change impacts under the National Environmental Policy Act. As part of the settlement, BLM also asserts "authority to void or terminate any lease, if it determines upon review that such an action is appropriate.

On March 18, 2010, Judge Molloy of the United States District Court for the District of Montana entered an order dismissing the case based on the settlement agreement, despite the absence of the oil and gas industry from the settlement discussions. BLM and the environmentalist parties are seeking to keep confidential the deliberations that led to the settlement. This stands in contrast to prior positions taken by the United States regarding the release of settlement discussion documents under the Freedom of Information Act (FOIA) pursuant to the U.S. Supreme Court Klamath decision in 2000.

Unlike the 77 Utah leases that were voided by BLM in 2009, the agency did not admit to error in the NEPA process leading to issuance of the leases. The takeaway from these BLM actions is to make sure that your company has solid NEPA analysis that fully considers climate change and greenhouse gas issues, including those resulting from production and gathering operation fugitive emissions, when applying for leases and APDs. The willingness to suspend or void leases represents a new chapter in available remedies BLM is willing to use, whereby even already issued leases may now be at risk. Click here to review the settlement and click here to review the order.

BLM Suspends Sixty-One Oil and Gas Leases to Perform Climate Change and Greenhouse Gas Analyses in Montana

Posted on April 2, 2010 by James Spaanstra

Authored by:

Robert D. Comer
James R. Spaanstra

Recently, the Bureau of Land Management ("BLM") and several Montana environmental groups agreed to suspend 61 Montana oil and gas leases as settlement of a case challenging lease issuance for failure to consider climate change effects. The leases, which had been issued, were suspended while BLM conducts additional analysis of greenhouse gas fugitive emissions and climate change impacts under the National Environmental Policy Act. As part of the settlement, BLM also asserts "authority to void or terminate any lease, if it determines upon review that such an action is appropriate.

On March 18, 2010, Judge Molloy of the United States District Court for the District of Montana entered an order dismissing the case based on the settlement agreement, despite the absence of the oil and gas industry from the settlement discussions. BLM and the environmentalist parties are seeking to keep confidential the deliberations that led to the settlement. This stands in contrast to prior positions taken by the United States regarding the release of settlement discussion documents under the Freedom of Information Act (FOIA) pursuant to the U.S. Supreme Court Klamath decision in 2000.

Unlike the 77 Utah leases that were voided by BLM in 2009, the agency did not admit to error in the NEPA process leading to issuance of the leases. The takeaway from these BLM actions is to make sure that your company has solid NEPA analysis that fully considers climate change and greenhouse gas issues, including those resulting from production and gathering operation fugitive emissions, when applying for leases and APDs. The willingness to suspend or void leases represents a new chapter in available remedies BLM is willing to use, whereby even already issued leases may now be at risk. Click here to review the settlement and click here to review the order.

Environmental Review for Genetically Engineered Crops

Posted on November 11, 2009 by Andrew Brown

For some genetically engineered (GE) crops, the fields may be quiet, but the courtrooms have been busy. On October 22, Monsanto, Forage Genetics International, and two alfalfa farmers filed a U.S. Supreme Court cert petition to reverse a permanent nationwide injunction that prevents GE alfalfa from being sold or planted. On September 21, a federal court in California held an Environmental Impact Statement (EIS) is required for the deregulation of GE sugar beets. The permanent injunction on alfalfa and the recent decision for sugar beets could result in many lost years where farmers are unable to grow these weed-resistant crops. (For disclosure: my firm, Dorsey & Whitney LLP represented Forage Genetics in this case, and I was lead counsel.)

 

Alfalfa

            The U.S. Supreme Court petitioners are challenging a nationwide injunction against Roundup Ready alfalfa that prevents its use and sale until the government performs an EIS.   On February 13, 2007, the District Court held that the Animal and Plant Health Inspection Service’s (APHIS) environmental assessment was inadequate because it failed to explain why the possibility of cross-pollination of conventional and organic alfalfa with Roundup Ready alfalfa was not itself a “significant harmful impact” on the environment. On this basis, the court ordered APHIS to prepare a full EIS. The decision to require an EIS was not challenged on appeal, but APHIS, Monsanto (who owns the intellectual property rights to Roundup Ready alfalfa), Forage Genetics (the exclusive developer of Roundup Ready alfalfa) and three alfalfa growers appealed the court’s order which stopped the commercial use of Roundup Ready alfalfa until the EIS was prepared. The appellants argued the injunction was too broad, the district had effectively exempted the NEPA plaintiffs from showing irreparable harm to obtain the injunctive relief (only requiring the “possibility” of harm), and that the injunctive relief had been granted without an evidentiary hearing although there were genuinely disputed issues of fact and an evidentiary hearing had been requested.    

            The petitioners argue the Ninth Circuit misapplied the recent Supreme Court decision in Winter v. NRDC, 129 S.Ct. 365 (2008),which held a district court may not enter an injunction for a National Environmental Policy Act (NEPA) violation broader than necessary to prevent a likelihood of “irreparable harm” pending the government’s preparation of an EIS. Following this reasoning, petitioners argue the Ninth Circuit’s concern over the mere possibility of cross-pollination cannot be reconciled with Winter’s holding that irreparable harm must be likely. Petitioners also argue the Ninth Circuit erred in upholding an injunction sought to remedy a NEPA violation without first conducting an evidentiary hearing on genuinely disputed facts.

            The issue of cross-pollination has become an increasingly important topic for the world of GE crops. According to the cert petition, cross-pollination can occur only if two fields produce flowers simultaneously and pollen is transferred between them. However, debates regarding isolation zones and whether farmers should fence-in or fence-out have not been resolved and are intensifying. The Roundup Ready alfalfa has been genetically engineered to be resistant to Roundup, a broad-spectrum agricultural herbicide that controls nearly every weed species in alfalfa crops.  

Sugar Beets

            The Northern District of California, the same district court that decided the alfalfa case, ruled on September 21 that the government failed to require an EIS on GE Roundup Ready sugar beets. Center for Food Safety v. Vilsack, No. C 08-00484 (N.D. Cal. 2009). The plaintiffs sued after APHIS decided to unconditionally deregulate the sugar beets and allow them into U.S. agriculture. Over 95% of the U.S. sugar beet crop is now engineered to resist herbicide, so the effect of the District Court’s ruling could be extensive.

            Once again, the District Court expressed its concern about the possibility of cross-pollination. Although APHIS, after conducting an environmental assessment, determined the likelihood of cross-pollination to organic fields is “unlikely,” the District Court found the “potential elimination of farmer’s choice to grow non-genetically engineered crops, or a consumer’s choice to eat non-genetically engineered food” does have a “significant effect” on the environment because of the long distances pollen can travel by wind. The Court held APHIS did not demonstrate a “hard look” at this issue as required by NEPA.

            The District Court planned a case management conference on October 30 to determine the remedies phase of the case. In addition to the original parties, other growers, sugar processors and seed companies like Monsanto were expected to be allowed to take part in the remedy phase. The results of the case management conference have not yet been published.

The Future of GE Crops

            According to an October NY Times article, Agriculture Secretary Tom Vilsack is preparing for a drastic rethinking of the country’s polices for GE crops. The Department of Agriculture is planning to update its regulations this spring to create a better way for GE and conventional crops to coexist. Vilsack stated “[y]ou know, I think [regulations for GE are] an evolving process, which is why we’re doing this and probably should have done it more than 20 years ago.”

            The Department of Agriculture will have a lot to tackle in the upcoming months when creating new policies for GE crops, which are widely used throughout the country. The NY Times reported 95% of sugar beets, 90% of soy and cotton crops, and 85% of the corn crop utilize GE seeds. Whether the agency creates rules that compliment or correct the recent court rulings will be an important question, especially for farmers with sugar beets or alfalfa in their fields.

The October 8, 2009, New York Times article is available here.

(I would like to express my appreciation to Valerie Paula, an associate at Dorsey & Whitney LLP, for her assistance in preparing this note.)

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).