Amici Curiae Brief of Conservation Groups in Winter v. Natural Res. Def. Council

46 Pages Posted: 10 Nov 2008 Last revised: 20 Feb 2010

See all articles by Eric R. Glitzenstein

Eric R. Glitzenstein

Meyer Glitzenstein & Crystal

William S. Eubanks

Eubanks & Associates, PLLC; Vermont Law School

Date Written: October 1, 2008


Filed on behalf of numerous conservation groups in Winter v. Natural Resources Defense Council, this amicus brief seeks to inform the United State Supreme Court of the unique purpose of the National Environmental Policy Act (NEPA) as a purely procedural statute and thus the different preliminary injunction analysis under NEPA as compared to other statutes. Additionally, the case raises the question of what level of environmental injury is required to constitute "irreparable injury" for purposes of obtaining a preliminary injunction under NEPA. The brief explains that both the unique congressional mandate of NEPA and the relevant cases on this subject compel the conclusion that irreparable injury exists where a conservation organization's members can establish that an agency's failure to prepare an environmental impact statement (EIS) significantly threatens their concrete interests in the local environment -- such as has been established here in relation to marine mammal species off the coast of southern California. Lastly, the brief cites strong authority to counter the Navy's argument that a lengthy and complex environmental assessment (EA), such as the Navy's 293-page EA here, precludes the need for an EIS. Clearly, common sense and prior court decisions dictate that length and complexity of this sort necessitate completion of an EIS to address the technical issues at hand. Therefore, this brief contributes to the scholarly debate about the unique role of NEPA in the environmental law arena and the ability of conservation groups to effectively utilize NEPA consistent with Congress' purpose to require agencies to fully consider the environmental impacts of governmental actions.

Keywords: National Environmental Policy Act, NEPA, Preliminary Injunction, Irreparable Injury, Wildlife Impacts, Environmental Impact Statement, Environmental Assessment, Sonar, Marine Mammals, United States Supreme Court, Winter v. Natural Resources Defense Council

Suggested Citation

Glitzenstein, Eric R. and Eubanks, William S., Amici Curiae Brief of Conservation Groups in Winter v. Natural Res. Def. Council (October 1, 2008). Available at SSRN: or

Eric R. Glitzenstein

Meyer Glitzenstein & Crystal ( email )

1601 Connecticut Ave., N.W.
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(202) 588-5206 (Phone)

William S. Eubanks (Contact Author)

Eubanks & Associates, PLLC ( email )

1629 K Street NW
Suite 300
Washington, DC 20006
United States

Vermont Law School

South Royalton, VT 05068
United States

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