Damage Done? The Status of NEPA after Winter v. NRDC and Answers to Lingering Questions Left Open by the Court

Abstract

In November 2008, the United States Supreme Court decided Winter v. Natural Resources Defense Council, 555 U.S. (2008). At issue in the case were many questions regarding the use of naval sonar and the impacts of that use on marine mammals such as whales and dolphins. The environmental plaintiffs alleged that the Navy violated the National Environmental Policy Act (NEPA) by conducting training exercises without first fully considering the environmental impact of the exercises as required by NEPA. The Court issued an expedited opinion, deciding the case very narrowly on equitable balancing grounds under the unique facts of the case. This narrow decision by the Court left many important legal questions unanswered. This article provides post-Winter guidance to federal courts addressing issues under NEPA where the Supreme Court has not definitively spoken. Specifically, the first portion of this article dissects the Court's irreparable harm analysis in Winter and predicts the effect this standard will have in future NEPA cases. The second portion of this article answers three critical NEPA questions left open by the Winter Court's narrow decision. This section thoroughly analyzes court decisions and other relevant information to provide rational and detailed resolution to these questions in an effort to assist courts confronted with these issues in the future.

Keywords: National Environmental Policy Act, NEPA, Navy, naval sonar, environmental impact statement, EIS, EA, wildlife impacts, emergency circumstances