Winter v. Natural Resources Defense Council

Last updated
Winter v. Natural Resources Defense Council
Seal of the United States Supreme Court.svg
Argued October 8, 2008
Decided November 12, 2008
Full case nameDonald C. Winter, Secretary of the Navy, et al., Petitioners v. Natural Resources Defense Council, Inc., et al.
Docket no. 07-1239
Citations555 U.S. 7 ( more )
129 S. Ct. 365; 172 L. Ed. 2d 249; 2008 U.S. LEXIS 8343
Case history
PriorNat. Res. Def. Council, Inc. v. Winter, 530 F. Supp. 2d 1110 (C.D. Cal. 2008); affirmed, 518 F.3d 658 (9th Cir. 2008); cert. granted, 554 U.S. 916(2008).
Military preparedness outweighs environmental concerns, as Navy needs to train its crews to detect modern, silent submarines, and it cannot be forced to turn off its sonar when whales are spotted nearby.
Court membership
Chief Justice
John Roberts
Associate Justices
John P. Stevens  · Antonin Scalia
Anthony Kennedy  · David Souter
Clarence Thomas  · Ruth Bader Ginsburg
Stephen Breyer  · Samuel Alito
Case opinions
MajorityRoberts, joined by Scalia, Kennedy, Thomas, Alito
Concur/dissentBreyer, joined by Stevens
DissentGinsburg, joined by Souter

Winter v. Natural Resources Defense Council, 555 U.S. 7 (2008), was a decision by the United States Supreme Court concerning whether federal law restricted the United States Navy's ability to use sonar during drills given the possibility of a harmful effect on marine mammals such as whales. [1] [2]

United States Navy Naval warfare branch of US Armed Forces

The United States Navy (USN) is the naval warfare service branch of the United States Armed Forces and one of the seven uniformed services of the United States. It is the largest and most capable navy in the world and it has been estimated that in terms of tonnage of its active battle fleet alone, it is larger than the next 13 navies combined, which includes 11 U.S. allies or partner nations. It has the highest combined battle fleet tonnage and the world's largest aircraft carrier fleet, with eleven in service, and two new carriers under construction. With 336,978 personnel on active duty and 101,583 in the Ready Reserve, the U.S. Navy is the third largest of the U.S. military service branches in terms of personnel. It has 290 deployable combat vessels and more than 3,700 operational aircraft as of June 2019, making it the third-largest air force in the world, after the United States Air Force and the United States Army.

Sonar technique that uses sound propagation

Sonar is a technique that uses sound propagation to navigate, communicate with or detect objects on or under the surface of the water, such as other vessels. Two types of technology share the name "sonar": passive sonar is essentially listening for the sound made by vessels; active sonar is emitting pulses of sounds and listening for echoes. Sonar may be used as a means of acoustic location and of measurement of the echo characteristics of "targets" in the water. Acoustic location in air was used before the introduction of radar. Sonar may also be used for robot navigation, and SODAR is used for atmospheric investigations. The term sonar is also used for the equipment used to generate and receive the sound. The acoustic frequencies used in sonar systems vary from very low (infrasonic) to extremely high (ultrasonic). The study of underwater sound is known as underwater acoustics or hydroacoustics.


In balancing military preparedness against environmental concerns, the majority came down solidly on the side of national security. Chief Justice Roberts wrote in his opinion, “the most serious possible injury would be harm to an unknown number of marine mammals that they study and observe”. By contrast, he continued, “forcing the Navy to deploy an inadequately trained antisubmarine force jeopardizes the safety of the fleet”. [3]

Military science is the study of military processes, institutions, and behavior, along with the study of warfare, and the theory and application of organized coercive force. It is mainly focused on theory, method, and practice of producing military capability in a manner consistent with national defense policy. Military science serves to identify the strategic, political, economic, psychological, social, operational, technological, and tactical elements necessary to sustain relative advantage of military force; and to increase the likelihood and favorable outcomes of victory in peace or during a war. Military scientists include theorists, researchers, experimental scientists, applied scientists, designers, engineers, test technicians, and other military personnel.

National security defense and maintenance of a state through use of all powers at the states disposal

National security or national defense is the security and defense of a nation state, including its citizens, economy, and institutions, which is regarded as a duty of government.

Background and procedural history

The U.S. Navy had scheduled 14 training exercises through January 2009 off the coast of Southern California involving the use of “mid-frequency active sonar” to detect enemy submarines. Environmentalists argued that the sonar's high decibel levels may have a deafening effect on whales. They said studies conducted around the world have shown the piercing underwater sounds cause whales to flee in panic or to dive too deeply. Whales have been found beached in Greece, the Canary Islands, and in the Bahamas after sonar was used in the area, and necropsies showed signs of internal bleeding near the ears. [4]

Southern California Place in California, United States

Southern California is a geographic and cultural region that generally comprises the southernmost counties of California, and is the second most populous urban agglomeration in the United States. The region contains ten counties: Imperial, Kern, Los Angeles, Orange, Riverside, San Bernardino, San Diego, Santa Barbara, San Luis Obispo and Ventura counties.

The decibel is a unit of measurement used to express the ratio of one value of a power or field quantity to another, on a logarithmic scale, the logarithmic quantity being called the power level or field level, respectively. It can be used to express a change in value or an absolute value. In the latter case, it expresses the ratio of a value to a fixed reference value; when used in this way, a suffix that indicates the reference value is often appended to the decibel symbol. For example, if the reference value is 1 volt, then the suffix is "V", and if the reference value is one milliwatt, then the suffix is "m".

Cetacean stranding phenomenon in which a whale becomes stuck on a beach, often causing the whales death

Cetacean stranding, commonly known as beaching, is a phenomenon in which whales and dolphins strand themselves on land, usually on a beach. Beached whales often die due to dehydration, collapsing under their own weight, or drowning when high tide covers the blowhole. Several explanations for why cetaceans strand themselves have been proposed, but none have so far been universally accepted as a definitive reason for the behavior. A link between the mass beaching of beaked whales and use of mid-frequency active sonar however has been found.

In February 2007, however, the U.S. Navy published an environmental impact assessment under the National Environmental Policy Act (NEPA) that found that the use of mid-frequency active sonar would cause minimal harm to marine mammals. [5] The Navy, represented by Solicitor General Gregory G. Garre, "highlight[ed] that there was an 'absence' of injury to marine mammals in Southern California despite forty years of Navy training in the area". [6]

Environmental impact assessment assessment of the environmental consequences of a decision before action

Environmental assessment (EA) is the assessment of the environmental consequences of a plan, policy, program, or actual projects prior to the decision to move forward with the proposed action. In this context, the term "environmental impact assessment" (EIA) is usually used when applied to actual projects by individuals or companies and the term "strategic environmental assessment" (SEA) applies to policies, plans and programmes most often proposed by organs of state. It is a tool of environmental management forming a part of project approval and decision-making. Environmental assessments may be governed by rules of administrative procedure regarding public participation and documentation of decision making, and may be subject to judicial review.

National Environmental Policy Act

The National Environmental Policy Act (NEPA) is a United States environmental law that promotes the enhancement of the environment and established the President's Council on Environmental Quality (CEQ). The law was enacted on January 1, 1970. To date, more than 100 nations around the world have enacted national environmental policies modeled after NEPA.

Gregory G. Garre United States Solicitors General

Gregory G. Garre is an American lawyer who served as the 44th United States Solicitor General from June 19, 2008, to January 16, 2009. He is currently a partner at Latham & Watkins, a private law firm.

The petitioners were mostly environmental groups, including Natural Resources Defense Council and Jean-Michel Cousteau's Ocean Futures Society, among others. They sought declaratory and injunctive relief against the exercises on the ground that they violated NEPA and other environmental laws.

Natural Resources Defense Council environmental legal protection group

The Natural Resources Defense Council (NRDC) is a United States-based 501(c)(3) non-profit international environmental advocacy group, with its headquarters in New York City and offices in Washington, D.C., San Francisco, Los Angeles, New Delhi, Chicago, Bozeman, and Beijing. Founded in 1970, the NRDC has over 3 million members, with online activities nationwide, and a staff of about 600 lawyers, scientists and other policy experts.

Jean-Michel Cousteau French oceanographic explorer, environmentalist, educator, and film producer

Jean-Michel Cousteau is a French oceanographic explorer, environmentalist, educator, and film producer. The first son of ocean explorer Jacques Cousteau, he is the father of Fabien Cousteau and Céline Cousteau.

A declaratory judgment, also called a declaration, is the legal determination of a court that resolves legal uncertainty for the litigants. It is a form of legally binding preventive adjudication by which a party involved in an actual or possible legal matter can ask a court to conclusively rule on and affirm the rights, duties, or obligations of one or more parties in a civil dispute. The declaratory judgment is generally considered a statutory remedy and not an equitable remedy in the United States, and is thus not subject to equitable requirements, though there are analogies that can be found in the remedies granted by courts of equity. A declaratory judgment does not by itself order any action by a party, or imply damages or an injunction, although it may be accompanied by one or more other remedies.

The U.S. District Court for the Central District of California granted a preliminary injunction barring conduct of the exercises. On remand from the Court of Appeals for the Ninth Circuit, the district court modified the preliminary injunction to allow the Navy to use sonar if it used mitigation measures. [7] On the Navy’s second appeal, challenging two of the mitigation measures, the Ninth Circuit—"widely regarded as an environmentally friendly" [8] —affirmed the modified injunction, [9] noting that the plaintiffs (petitioners in the Supreme Court) had carried their burden of showing a “possibility” of irreparable injury and that the balance of hardships weighed in favor of plaintiffs.

The remand court procedure is used by higher courts to send cases back to lower courts for further action.

United States Court of Appeals for the Ninth Circuit Federal court with appellate jurisdiction over the districts of Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington

The United States Court of Appeals for the Ninth Circuit is a court of appeal that has appellate jurisdiction over the district courts in the following districts:

Preliminary injunction injunction entered by a court prior to a final determination of the merits of a legal case,in order to restrain a party from going ahead with a course of conduct/compelling a party to continue with a course of conduct until the case has been decided

A preliminary injunction, in equity, is an injunction entered by a court prior to a final determination of the merits of a legal case, in order to restrain a party from going ahead with a course of conduct or compelling a party to continue with a course of conduct until the case has been decided. If the case is decided against the party that has been enjoined, then the injunction will usually be made permanent. If the case is decided in favor of the party that has been enjoined, the injunction will usually be dissolved or dismissed.

Opinion of the court

The majority opinion held that as an initial matter the Ninth Circuit’s “possibility” test for issuance of a preliminary injunction is too lenient; plaintiffs must show that irreparable injury is “likely” in the absence of an injunction. However, the Court continued, even if plaintiffs had shown irreparable injury (and, too, likelihood of success on the merits), it is “plainly outweighed” by the Navy’s interest in effective, realistic training of its sailors. That factor alone requires denial of the requested injunctive relief. For the plaintiffs, the most serious possible injury would be the loss of ability to observe an unknown number of marine mammals. In light of the foregoing, the Court reversed the decision below and vacated the preliminary injunction. The Court technically did not address the merits of the lawsuit—that is, whether the training exercises had violated NEPA or the other federal environmental laws.

Justice Ruth Bader Ginsburg wrote a dissent, joined by Justice David Souter, that sided with the Ninth Circuit. She found that despite the importance of the U.S. Navy’s training exercises, they did not trump the considerations of environmental harm mandated by NEPA.


A report published in 2009 by the Congressional Research Service noted that the Supreme Court accepted the case "as a challenge to a preliminary injunction, rather than to the merits of petitioners’ statutory claims". However, the report observed that "the Court made clear, however, that its perception of an overriding national security interest in the challenged training exercises should lead the district court to reject a final injunction as well, in the event the military is found to have violated an environmental statute". [8]

This was the first time the United States successfully got the judiciary to reject the Ninth Circuit’s “mere possibility” test for issuing injunctions.

Other commentators called it "a dangerous precedent" and "a troubling example of unquestioned deference to an invocation of military necessity at the expense of the environment" and said that it "signal[ed] a marked shift from lower courts’ treatment of NEPA injunctions, raising questions about the availability of restraining orders for NEPA violations in the future". [10]

See also

Related Research Articles

Earthjustice is a non-profit public interest organization based in the United States dedicated to litigating environmental issues. It is headquartered in San Francisco and has 14 regional offices across the United States, an International Program, a communications team, and a Policy & Legislation team in Washington, DC.

<i>A&M Records, Inc. v. Napster, Inc.</i> US legal case

A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004 (2001) was a landmark intellectual property case in which the United States Court of Appeals for the Ninth Circuit affirmed the ruling of the United States District Court for the Northern District of California, holding that defendant, peer-to-peer (P2P) file-sharing service Napster, could be held liable for contributory infringement and vicarious infringement of the plaintiffs' copyrights. This was the first major case to address the application of copyright laws to peer-to-peer file-sharing.

<i>In re Aimster Copyright Litigation</i>

In re Aimster Copyright Litigation, 334 F.3d 643, was a case in which the United States Court of Appeals for the Seventh Circuit addressed copyright infringement claims brought against Aimster, concluding that a preliminary injunction against the file-sharing service was appropriate, because the copyright owners were likely to prevail on their claims of contributory infringement and the fact that the services was capable of having non-infringing user was not enough reason to reverse the district court's decision. The appellate court also noted that the defendant could have limited the quantity of the infringements if he had eliminated an encryption system feature and if it had monitored the use of its systems. This made it so that the defense did not fall within the safe harbor of 17 U.S.C. § 512(i). and could not be used as an excuse to not know about the infringement. In addition, the court decided that the harm done to the plaintiff was irreparable and outweighed any harm to the defendant created by the injunction.

eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388 (2006), is a case in which the Supreme Court of the United States unanimously determined that an injunction should not be automatically issued based on a finding of patent infringement, but also that an injunction should not be denied simply on the basis that the plaintiff does not practice the patented invention. Instead, a federal court must still weigh what the Court described as the four-factor test traditionally used to determine if an injunction should issue.

<i>Intellectual Reserve, Inc. v. Utah Lighthouse Ministry, Inc.</i> legal case

Intellectual Reserve, Inc. v. Utah Lighthouse Ministry, Inc., 75 F. Supp. 2d 1290, was a United States district court decision on the subject of deep linking and contributory infringement of copyright.

An irreparable injury is, in equity, "the type of harm which no monetary compensation can cure or put conditions back the way they were."

United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669 (1973), was a landmark decision of the United States Supreme Court in which the Court held that the members of SCRAP, five law students from the George Washington University Law School, had standing to sue under Article III of the Constitution to challenge a nationwide railroad freight rate increase approved by the Interstate Commerce Commission (ICC). SCRAP was the first full-court consideration of the American National Environmental Policy Act (NEPA). The Court also reversed the lower court decision that an injunction should be issued at the suspension stage of the ICC rate proceeding. The standing decision has retained its place as the high mark in the Court's standing jurisprudence.

Haywood v. National Basketball Association, 401 U.S. 1204 (1971), was a U.S. Supreme Court decision that ruled, 7–2, against the National Basketball Association’s (NBA) old requirement that a player may not be drafted by an NBA team unless he waited four years following his graduation from high school.

<i>Kivalina v. ExxonMobil Corp.</i>

Kivalina v. ExxonMobil Corp., No. 4:08-cv-01138, is a lawsuit filed on February 26, 2008, in a United States district court. The suit, based on the common law theory of nuisance, claims monetary damages from the energy industry for the destruction of Kivalina, Alaska by flooding caused by climate change. The damage estimates made by the U.S. Army Corps of Engineers and the Government Accountability Office are placed between $95 million and $400 million. This lawsuit is an example of greenhouse gas emission liability.

Marine mammals and sonar

Active sonar, the transmission equipment used on some ships to assist with navigation, is detrimental to the health and livelihood of some marine animals. Research has recently shown that beaked and blue whales are sensitive to mid-frequency active sonar and move rapidly away from the source of the sonar, a response that disrupts their feeding and can cause mass strandings. Some marine animals, such as whales and dolphins, use echolocation or "biosonar" systems to locate predators and prey. It is conjectured that active sonar transmitters could confuse these animals and interfere with basic biological functions such as feeding and mating. The study has shown whales experience decompression sickness, a disease that forces nitrogen into gas bubbles in the tissues and is caused by rapid and prolonged surfacing. Although whales were originally thought to be immune to this disease, sonar has been implicated in causing behavioral changes that can lead to decompression sickness.

Arizona Free Enterprise Club's Freedom Club PAC v. Bennett, 564 U.S. 721 (2011), is a decision by the Supreme Court of the United States.

<i>Diaz v. Brewer</i>

Diaz v. Brewer, originally Collins v. Brewer No. 2:09-cv-02402-JWS (Az.Dist.Ct.), is a lawsuit heard on appeal by the United States Court of Appeals for the Ninth Circuit, which affirmed a lower court's issuance of a preliminary injunction that prevented Arizona from implementing its 2009 statute that would have terminated the eligibility for healthcare benefits of any state employee's same-sex domestic partner.

Summers v. Earth Island Institute, 555 U.S. 488 (2009), was a United States Supreme Court case decided 5–4 in which several environmental organizations brought suit against the United States Forest Service (USFS) to enjoin that federal agency from implementing rules that would allow the salvage sale of timber from 238 acres of fire-damaged federally owned land without conducting the notice, comment, and appeal process of the Forest Service Decision-making and Appeals Reform Act.

Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139 (2010), is a United States Supreme Court case decided 7-1 in favor of Monsanto. The decision allowed Monsanto to sell genetically modified alfalfa seeds to farmers, and allowed farmers to plant them, grow crops, harvest them, and sell the crop into the food supply. The case came about because the use of the seeds was approved by regulatory authorities; the approval was challenged in district court by Geertson Seed Farms and other groups who were concerned that the genetically modified alfalfa would spread too easily, and the challengers won. Monsanto appealed the district court decision and lost, and appealed again to the Supreme Court, where Monsanto won, thus upholding the original approval and allowing the seeds to be sold.

Pickup v. Brown (12-17681) and Welch v. Brown (13-15023) are 2012 lawsuits in the United States challenging the constitutionality of California Senate bill SB 1172, which banned conversion therapy on children under the age of 18, effective January 2013.

<i>Washington v. Trump</i> Lawsuit challenging Executive Order 13769

State of Washington and State of Minnesota v. Trump, 847 F.3d 1151, was a lawsuit that challenged the lawfulness and constitutionality of Executive Order 13769, an executive order signed by U.S. President Donald Trump.

Juliana, et al. v. United States of America, et al. is a lawsuit filed in 2015 that is being brought by 21 youth plaintiffs against the United States and several of its executive branch positions and officers, also formerly including former President Barack Obama and President Donald Trump. The plaintiffs, represented by the non-profit organization Our Children's Trust, include Xiuhtezcatl Martinez, the members of Martinez's organization Earth Guardians, and on behalf of future generations represented by climatologist James Hansen. Some fossil fuel and industry groups intervened as defendants but were later dropped at their request after Trump's election.


  1. Winter v. Natural Resources Defense Council, 555 U.S. 7 (2008). PD-icon.svg This article incorporates public domain material from this U.S government document.
  2. Markon, Jerry; Eilperin, Juliet (October 8, 2008). "NOAA, Court Focus On Marine Mammals: Ship Speed Limited; Sonar Use Debated". Washington Post .
  3. Liptak, Adam (2008-11-12). "Supreme Court Rules for Navy in Sonar Case". New York Times .
  4. Savage, David G.; Weiss, Kenneth R. (November 12, 2008). "Ruling unlikely to quell sonar storm". Los Angeles Times .
  5. Alexander, Kristina (February 18, 2009). Whales and Sonar: Environmental Exemptions for the Navy's Mid-Frequency Active Sonar Training (PDF). Washington, D.C.: Congressional Research Service.
  6. Menaka Kalaskar (October 13, 2008). "Argument Recap: Winter v. NRDC". SCOTUSblog.
  7. Nat. Res. Def. Council, Inc. v. Winter, 530F. Supp. 2d1110 ( C.D. Cal. 2008).
  8. 1 2 Meltz, Robert (February 27, 2009). The Supreme Court Accepts Five Environmental Cases During Its 2008–2009 Term (PDF). Washington, D.C.: Congressional Research Service.
  9. Nat. Res. Def. Council, Inc. v. Winter, 518F.3d658 ( 9th Cir. 2008).
  10. Lightbody, Lisa (2009). "Winter v. Natural Resources Defense Council, Inc." (PDF). Harvard Environmental Law Review. 33: 593–607.