BETTY B. FLETCHER, Circuit Judge:
Defendants Secretary of the Navy, Department of the Navy, Secretary of the Department of Commerce, National Marine Fisheries Service (NMFS),
In granting NRDC's motion for a preliminary injunction, the district court found that NRDC had demonstrated probable success on the merits of its claim that the Navy violated the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 et seq., by failing to prepare an Environmental Impact Statement ("EIS"). The district court also found that NRDC had demonstrated probable success on the merits of its claim that the Navy violated the Coastal Zone Management Act ("CZMA"), 16 U.S.C. § 1451 et seq., by submitting a consistency determination to the California Coastal Commission ("CCC") that did not take into account the planned use of MFA sonar and by failing to adopt the mitigation measures the CCC determined were necessary for the SOCAL exercises to be consistent with the California Coastal Management Program ("CCMP").
On January 15, 2008, the Council on Environmental Quality ("CEQ") purported to approve "alternative arrangements," pursuant to 40 C.F.R. § 1506.11, that would permit the Navy to continue its exercise without first completing an EIS. On the same day, President George W. Bush, pursuant to 16 U.S.C. § 1456(c)(1)(B), exempted from the requirements of the CZMA the Navy's use of MFA sonar in the SOCAL exercises.
On February 4, 2008, the district court upheld its injunction on the basis of plaintiffs' NEPA claim, concluding CEQ's action was invalid and therefore not entitled to deference. The district court also expressed concerns about the constitutionality of the President's CZMA exemption on the ground that it appeared to amount to an executive revision of a judicial decision and thus violated the principle, recognized in Hayburn's Case, 2 U.S. (2 Dall.) 408, 1 L.Ed. 436 (1792), that Congress cannot vest review of the decisions of Article III courts in officials of the Executive Branch. However, the court declined to decide the constitutionality of the CZMA exemption because it concluded the preliminary injunction was firmly supported on NEPA grounds.
For the reasons stated below, we uphold the district court's preliminary injunction.
I. Procedural History
Plaintiffs commenced this action on March 22, 2007. On August 7, 2007, the district court granted in part NRDC's motion for a preliminary injunction and enjoined the Navy from conducting the then remaining eleven SOCAL exercises.
On November 13, 2007, after hearing oral argument, we filed an order concluding that NRDC had met the necessary burden of proof to demonstrate that some form of preliminary injunctive relief was appropriate. Accordingly, we vacated the stay of the preliminary injunction order effective upon the Navy's completion of its fifth SOCAL exercise, which was in progress at the time of oral argument. However, we also concluded that an injunction conditioning continuation of the exercises on the Navy's adoption of narrowly tailored mitigation measures would be more appropriate than a total injunction. Accordingly, we remanded the case for the district court to enter a modified preliminary injunction containing appropriate mitigating measures. NRDC v. Winter, 508 F.3d 885 (9th Cir.2007).
On January 3, 2008, the district court, after having received briefing from the parties and having toured the destroyer USS Milius at the naval base in San Diego, California, to improve its understanding of the Navy's sonar training procedures and the feasibility of the parties' proposed mitigation measures, issued a new preliminary injunction that allowed the Navy to conduct the remaining SOCAL exercises provided that it employ certain measures intended to mitigate the impact of the Navy's use of MFA sonar on the environment. On January 9, 2008, the Navy applied for a stay pending appeal and requested relief from the district court by January 14, 2008.
On January 10, 2008, in response to arguments raised in the Navy's stay application, the district court modified the preliminary injunction by narrowing the mitigation measures contained in the January 3, 2008 order. The Navy filed a notice of appeal the following day. The district court denied the Navy's stay application on January 14, 2008.
On the evening of January 15, 2008, the Navy filed an emergency motion with this court requesting vacatur of the preliminary injunction or, alternatively, a partial stay of the preliminary injunction pending a decision on its appeal by our court. The Navy's motion was based in part on two developments that occurred on the same day that the motion was filed. First, the President of the United States, pursuant to 16 U.S.C. § 1456(c)(1)(B), exempted from the provisions of the CZMA the Navy's use of MFA sonar during the SOCAL exercises, finding that such use of MFA sonar is "essential to national security" and in the "paramount interest of the United States." Second, the CEQ, finding "emergency circumstances," purported to approve "alternative arrangements" to accommodate those emergency circumstances, pursuant to 40 C.F.R. § 1506.11. It permitted the Navy to follow the prescribed arrangements to continue its exercises pending completion of the Navy's
On January 16, 2008, we remanded the matter to the district court to consider in the first instance the effect, if any, of these developments on its preliminary injunction order. On January 17, 2008, the district court issued a temporary partial stay of its preliminary injunction order pending the court's consideration of the Navy's ex parte application to vacate the preliminary injunction. The Navy subsequently conducted its sixth SOCAL exercise.
On February 4, 2008, following briefing by the parties and oral argument, the district court denied the Navy's application to vacate the preliminary injunction and lifted the temporary partial stay. In its published order, the district court held in relevant part that CEQ's approval of "alternative arrangements" was invalid because there are no "emergency circumstances" within the meaning of 40 C.F.R. § 1506.11. Feb. 4, 2008 Dist. Ct. Order at 1226-1233. Thus, the district court left in place the original preliminary injunction. The Navy filed a notice of appeal two days later.
On February 8, 2008, we issued a sua sponte order expediting the appeal of the district court's order imposing the preliminary injunction. On February 15, 2008, the Navy filed an emergency motion for a partial stay of the preliminary injunction pending our consideration of the appeal on the ground that the injunction would interfere with the Navy's conduct of two exercises in March, 2008. On February 19, 2008, we denied the Navy's motion for a partial stay in light of our order expediting the appeal, which set oral argument for Wednesday, February 27, 2008. We now affirm the district court's order imposing the preliminary injunction.
II. Factual Background
A. The SOCAL Exercises and the Effect of MFA Sonar on Marine Mammals
The scheduled SOCAL exercises consist of seven Composite Training Unit Exercises ("COMPTUEX"), which last three to four weeks each, and seven Joint Tactical Force Exercises ("JTFEX"), which last approximately ten days each. The exercises, which involve the use of multiple surface ships, aircraft and submarines, are part of the "integrated" training phase of the Navy's Fleet Response Training Plan, in which individual naval units — ships, submarines and aviation squadrons — learn and demonstrate skills as members of a strike group.
According to the Navy, the ability to execute anti-submarine warfare ("ASW") is critical to a Commander's certification of a strike group. Id. Improving ASW is the Pacific Fleet's top "war-fighting" priority because of the proliferation of extremely quiet diesel electric submarines throughout the world.
Active sonar involves a vessel or other sonar source emitting a loud noise underwater and then listening for whether the noise comes back to the source, indicating that the noise may have bounced off the hull of a previously undetected submarine. According to the Navy, active sonar has two important advantages over passive sonar, which merely involves listening for noise made by submarines themselves: active sonar gives both the bearing and the distance of the target submarine, while passive sonar gives only the bearing;
According to the Navy, personnel using MFA sonar must train with it regularly, under realistic conditions, and in a variety of situations. May decl. ¶ 10. The Navy therefore trains with MFA sonar in the ASW exercises that constitute an important component of the SOCAL exercises.
The Navy acknowledges in its EA that MFA sonar may affect both the physiology and behavior of marine mammals. Exposure to "very high" acoustic energy levels may impair the functioning of marine mammals' visual system, vestibular system and internal organs, and may cause injury to their lungs and intestines. However, the primary physiological effects of MFA sonar are on marine mammals' auditory system: very high sound levels may rupture the eardrum or damage small bones in the middle ear, but even exposure to lower levels of sound may cause permanent or temporary hearing loss.
Several studies suggest that active sonar may also cause a form of decompression sickness (or the "bends") in marine mammals by inducing growth of gas bubbles in their blood stream or tissues, potentially leading to fatal hemorrhaging, lesions and emboli in the organs. However, the Navy disputes the conclusions of these studies and it has submitted a declaration by an expert on marine mammal auditory systems stating that decompression sickness requires super-saturation of tissue with gas and that such super-saturation has not been shown to occur in marine mammals. See Declaration of Dr. Darlene R. Ketten ("Ketten decl.") ¶¶ 12-16.
The Navy also acknowledges that the use of MFA sonar may overtly disrupt the normal behavior of marine mammals even if it does not affect their physiology. While the Navy acknowledges that active sonar may cause behavioral responses such as attempting to avoid the site of sound exposure, swimming erratically, sluggish behavior, tail slapping, "jaw popping," and aggressive behavior, those responses were observed in studies using trained animals held in captivity.
As the record demonstrates, substantial evidence suggests that beaked whales are particularly vulnerable to MFA sonar. While it is not settled what causes this vulnerability,
A 2006 study cited as possible explanations for the association between MFA sonar and strandings of beaked whales that (1) beaked whales may swim into shallow waters to avoid the sonar sound and strand if they are unable to navigate back to deeper waters, and (2) that behavioral responses to sonar may lead to tissue damage that in turn leads to stranding. The study explains that while a stranding need not be fatal, stranded marine mammals have died from cardiovascular collapse due to hyperthermia or from the stress associated with the stranding. Several mass strandings of marine mammals — mostly, though not exclusively, beaked whales — have been associated with the use of active sonar. Another 2006 study describes a stranding of twelve beaked whales in Greece in 1996, a stranding of seventeen marine mammals (including fourteen beaked whales) in the Bahamas in 2000, and a stranding of fourteen beaked whales in the Canary Islands in 2002,
Necropsies of the dead whales involved in the Bahamas, Canary Islands and Madeira Islands strandings revealed hemorrhages in and around the ears, in the cranial spaces, and in other parts of the body such as the jaw fat, lungs and kidneys. In a joint report, the Navy and NOAA concluded that the injuries to the whales that stranded in the Bahamas constituted "some sort of acoustic or impulse trauma," and that the Navy's use of MFA sonar was the "most plausible" source of that trauma. The International Whaling Commission agreed that the hemorrhages in the inner ears and cranial spaces were consistent with "direct acoustic effects."
According to a biologist on whose declaration NRDC relies, the use of MFA sonar in the Bahamas may also have had a serious effect on the local population of beaked whales. See Declaration of Dr. Hal Whitehead. The biologist cites a study showing that no Cuvier's beaked whales were sighted for twenty months following the stranding in the Bahamas, despite an increased survey effort. Id. ¶ 8. He also cited studies showing that of the Cuvier's beaked whales that had been photo-identified over a nine-year period, only a few have been sighted since the stranding in 2000. Id.
With respect to the stranding of the melon-head whales in Hawaii, the NMFS issued a report concluding that "[w]hile causation of this stranding event may never be unequivocally determined, we consider the active sonar transmissions . . . a plausible, if not likely, contributing factor in what may have been a confluence of events."
Undoubtedly, many training exercises involving the use of active sonar occur around the world without marine mammal strandings being observed or reported. However, a declaration by a NOAA scientist submitted by the Navy acknowledges that it is generally poorly understood in which combinations of physical and biological circumstances such strandings are likely to occur. Declaration of Brandon L. Southall ¶ 19. The declaration also acknowledges that whether marine mammal strandings are observed depends on the extent to which people are looking for them. Id.
B. The Navy's EA and the Predicted Harm to Marine Mammals in the Southern California Waters
In February 2007, the Navy issued an Environmental Assessment ("EA") for the SOCAL exercises pursuant to NEPA. See 40 C.F.R. § 1501.3. The EA set forth the Navy's estimate of how much harm the use of MFA sonar would inflict on marine mammals, classifying the harm as either "Level A harassment" or "Level B harassment."
Level B harassment is an act that disrupts the behavior of a marine mammal. Level B harassment refers to an exposure to MFA sonar that "disturbs or is likely to disturb a marine mammal or marine mammal stock by causing disruption of natural behavioral patterns including, but not limited to, migration, surfacing, nursing, feeding, or sheltering to a point where such behaviors are abandoned or significantly altered." Notably, Level B harassment may also, though it need not, include temporary hearing loss.
The behavioral effects that result from Level B harassment may have severe consequences. According to the Biological Opinion of the NMFS, acoustic exposures can result in the death of a marine mammal by impairing its foraging or its ability to detect predators or communicate by increasing stress or by disrupting important physiological events.
In its EA, the Navy classified predicted sonar exposures as either Level A harassments or Level B harassments based on the sound intensity to which a marine mammal would be exposed. For cetaceans—which include whales and dolphins and which are the focus of NRDC's challenge to the SOCAL exercises—the Navy applied the following "impact thresholds": it classified as Level A harassments exposures to sonar levels of 215 decibels (dB) or greater, as Level B harassments including temporary hearing loss exposures to sonar levels between 195 dB and 215 dB, and as Level B harassments not including temporary hearing loss exposures to sonar levels between 173 dB and 195 dB.
Significantly, the Navy acknowledged in the EA that it does not know whether the above impact thresholds apply to beaked whales. Recognizing the recent beaked whale strandings and the fact that the exact causes of those strandings are unknown, the Navy concluded that "separate, meaningful impact thresholds cannot be derived specifically for beaked whales." Put simply, the Navy did not know whether exposure of a beaked whale to an acoustic energy of less than 215 dB might nevertheless cause permanent injury to the whale. Accordingly, the Navy took a "conservative approach" and counted all predicted Level B exposures of beaked whales as non-lethal Level A exposures. Thus, the Navy treated every predicted exposure of a beaked whale to a sonar level of 173 dB or greater as causing physical injury including permanent hearing loss.
In its EA, the Navy estimated that over the course of the SOCAL exercises, the use of MFA sonar would result in 564 instances of Level A harassment to marine mammals, 548 of which would be to beaked whales.
The Navy also estimated that the use of MFA sonar would result in 8,160 exposures to Level B harassment with temporary hearing loss and 161,368 exposures to Level B harassment without hearing loss. Eight marine mammal species, including one endangered species, would be exposed to over 1,000 incidents of Level B harassment: 145,444 exposures to common dolphins; 6,460 exposures to Northern Pacific right whale dolphins; 4,292 exposures to Risso's dolphins; 4,100 exposures to Pacific white-sided dolphins, 3,252 exposures to striped dolphins; 1,830 exposures to pygmy sperm whales (endangered); 1,094 exposures to Pantropical spotted dolphins; and 1,092 exposures to bottlenose dolphins.
In light of the harm that marine mammals are expected to suffer as a result of the SOCAL exercises, plaintiffs contend that they and their members living in southern California will be harmed. For example, plaintiff Jean-Michel Cousteau alleges that as an environmental enthusiast and film-maker his ability to enjoy and educate others about the marine environment in southern California will be impaired if the harmful effects of MFA sonar on marine mammals are not sufficiently mitigated. Other plaintiffs make similar allegations.
The Navy stated in the EA that it "assumed" that its methodology for estimating harm overestimated the effects of MFA sonar on marine mammals, citing the lack of observed effects during several past major exercises. However, the EA also maintained that the methodology used was based on the "best available science," and it provided no indication of the extent to which its methodology overestimated the effects of MFA sonar. In fact, there is at least some evidence that the Navy's methodology may have underestimated the effects of MFA sonar on marine mammals. NRDC has submitted declarations of several scientists who cite evidence that extraordinary behavior in marine mammals, including stranding by beaked whales, may be caused by acoustic energy levels below the Navy's bottom impact threshold of 173 dB. See Declaration of Dr. David E. Bain ¶¶ 6-11; Declaration of Dr. Edward C.M. Parsons ¶ 4; Declaration of Dr. Linda Weilgart ("Weilgart decl.") ¶ 9.
While NRDC has presented no evidence that marine mammals have actually been harmed by the Navy's use of MFA sonar in the Southern California Operating Area over the past forty years,
In the Navy's January 2007 "after action report" following the completion of the first three SOCAL exercises, the Navy acknowledged that "it is difficult to assess the potential exposure to sonar for species not observed." Indeed, the "after action reports" for the last eight COMPTUEX and JTFEX exercises in the Southern California Operating Area reveal that in less than 15% of the instances in which marine mammals were observed, MFA sonar was in fact being used.
Beaked whales are particularly difficult to observe. According to a 2004 Navy-sponsored report, "[t]heir very low broaching profile and the limited time they spend at the surface have conspired to make them resistant to easy surveying." The report notes that beaked whales are "very deep divers" and spend an estimated 80% of their time at considerable depths. According to the EA, Cuvier's and Mesoplodont beaked whales make dives of up to 87 minutes.
Correspondingly, injuries to beaked whales are also difficult to observe. In a January 2007 memorandum, the NMFS concluded that "injuries or mortalities . . . would rarely be documented, due to the remote nature of many [naval activities] and the low probability that an injured or dead beaked whale would strand." While the parties have presented conflicting declarations on the issue whether whale carcasses resurface for some time after they initially sink, compare Weilgart decl. ¶ 7 with Ketten decl. ¶ 17, the likelihood that a whale carcass would be detected if it does not strand logically depends on how well the waters are searched for such carcasses. A 2007 study by NMFS researchers suggests that the likelihood of detecting dead beaked whales is low, as it concluded that, given current biological survey efforts, in 90% of beaked whale stocks a decline in population of 50% over a 15-year period would go undetected as a decline at all. Non-fatal injuries not leading to stranding would be even more difficult to detect because no beaked whale carcass would surface.
Moreover, it is not clear from the record whether in the past forty years the waters of southern California have been exposed to MFA sonar at the same power level and frequency and for the same duration as they are now. First, the Navy has provided no information about the frequency
Second, while the Navy states that "Navy data going back to 1992 shows that the number of yearly exercises in the last 15 years and amount of [MFA sonar] use in SOCAL waters was greater in the past than it is now, showing a slight reduction trend," Bird decl. ¶ 18, that statement is too vague to allow conclusions to be drawn from it. The statement says nothing about the type of exercises or their duration over the years, and it does not make clear whether "in SOCAL waters" refers only to sonar use or also to the number of yearly exercises. Further, the statement does not specify whether "amount of [MFA sonar] use" refers to sonar use in each exercise or to total sonar use in a year, nor does it make clear whether that phrase refers to the number of times sonar was employed or to the aggregate duration of sonar transmission. The Navy produces no data in the record to clarify its statement.
Third, while the EA states that an average of seven JTFEX or COMPTUEX exercises are conducted each year, which is consistent with fourteen SOCAL exercises to be conducted over two years, the EA does not state the starting date after which that average has been maintained.
Fourth, while the Navy points out that its currently-used SQS-53 sonar system transmits sonar at the same power levels and frequencies as the SQS-26 system that the Navy used in earlier years, it acknowledges that in a new class of destroyers the SQS-53 system has replaced the SQS-56 system. Bird. decl. ¶ 18. As the Biological Opinion of the NMFS makes clear, the SQS-56 system transmits MFA sonar at a lower power level and at different frequencies than the SQS-53 system.
Finally, we can draw no conclusion from the statement in the EA that "output from active sonar systems used in [the Southern California Operating Area] and throughout the Navy has remained largely the same for the past 30 years." The EA does not explain whether "output" refers to frequency, sound intensity level, amount of time used during an exercise, or amount of time used per year.
In any event, the Navy's estimate that its use of MFA sonar in the SOCAL exercises
C. The Mitigation Measures Employed by the Navy and Those Imposed by the District Court
While the Navy adopted a number of mitigation measures intended to reduce the harm caused by the use of MFA sonar in the SOCAL exercises, the district court concluded that those measures were inadequate both to cure the Navy's likely NEPA violation and to avoid the possibility of irreparable harm to NRDC. Accordingly, following our November 13, 2007 remand order, the district court established additional, narrowly-tailored mitigation measures which the Navy would have to employ during the remaining SOCAL exercises. To place these mitigation measures in context, we explain what mitigation measures the Navy has previously employed and is currently employing in the SOCAL exercises.
In June 2006, shortly before the Navy was to conduct that year's "Rim of the Pacific" exercise off the coast of Hawaii (the "2006 RIMPAC exercise"), plaintiffs sued the Navy and the same co-defendants here,
The mitigation measures the Navy adopted for the 2006 RIMPAC exercise include operating MFA sonar at the lowest practicable level not to exceed 235 dB except for short periods to meet tactical training objectives, and using at least one lookout dedicated to the detection of marine mammals, as well as three non-dedicated lookouts, on each ship operating MFA sonar and requiring them to report sightings of marine mammals.
The following mitigation measures employed during the 2006 RIMPAC exercise are of particular importance here:
Following the 2006 RIMPAC exercise, the Navy issued an "after action report" in which it reported that it had used MFA sonar for a total of 472 hours during the 2006 RIMPAC exercise and that the mitigation measures resulted in a loss of 8 hours of MFA sonar use.
In October 2006, in anticipation of the SOCAL exercises, the Navy submitted a consistency determination to the CCC, seeking the CCC's concurrence in the Navy's determination that the SOCAL exercises were consistent to the maximum extent possible with the enforceable policies of the CCMP, which, for purposes of the CZMA, are contained in the California Coastal Act. See Cal. Pub. Res.Code § 30008.
In January 2007, the Deputy Secretary of Defense issued, pursuant to 17 U.S.C. § 1371(f), a second National Defense Exemption ("NDE II"), which exempted from the requirements of the MMPA all the Navy's military readiness activities employing MFA sonar for the duration of the SOCAL exercises. The Deputy Secretary of Defense conditioned the exemption on the Navy adopting a number of mitigation measures, which already had been standard operating procedure in the Navy's ASW exercises since 2004. As the EA makes clear, it is those mitigation measures, and only those measures, which the Navy adopted for the SOCAL exercises.
After reviewing the parties' briefs and taking a Navy-guided tour of the USS Milius, the district court imposed six mitigation measures in addition to those already required by NDE II: (1) the Navy shall suspend use of MFA sonar when a marine mammal is detected within 2,200 yards from the sonar source, except where the marine mammal is a dolphin or a porpoise and it appears that the mammal is intentionally following the sonar-emitting naval vessel in order to play in or ride the vessel's bow wave; (2) the Navy shall reduce the MFA sonar level by 6 dB when significant surface ducting conditions are detected;
The district court rejected many of the geographic exclusions proposed by NRDC in favor of a 2,200-yard safety zone, accepted the Navy's representations that the bathymetry off the shores of southern California presents unique training opportunities, see Feb. 4, 2008 Dist. Ct. Order at 7, and declined to limit the use of sonar at night or in conditions of low visibility despite the Navy's voluntarily adoption of such limitations for the 2006 RIMPAC exercise, see Jan. 3, 2008 Dist. Ct. Order at 7-8.
The Navy takes issue only with the first two of the mitigation measures imposed by the district court, namely the 2,200 yard "shutdown zone" and the "power-down" requirement during significant surface ducting conditions. Specifically, the Navy argues that those two mitigation measures tip the balance of hardships in its favor and are contrary to the public interest.
In support of its argument the Navy has submitted declarations by high-ranking officers attesting to the adverse consequences that those measures will have on the Navy's military readiness. For example, Vice Admiral Locklear, Commander of the U.S. Third Fleet, opines that "imposing
III. Standards of Review
Our review of a district court's grant of a preliminary injunction is "very deferential." Nat'l Wildlife Fed'n v. Nat'I Marine Fisheries Serv., 422 F.3d 782, 794 (9th Cir.2005). We do not reverse the district court unless it "relie[s] on an erroneous legal premise or abuse[s] its discretion." Sports Form, Inc. v. United Press Int'l, Inc., 686 F.2d 750, 752 (9th Cir.1982) (internal citations omitted). A court abuses its discretion if it bases its decision on an erroneous legal standard or clearly erroneous findings of fact. Earth Island Inst. v. U.S. Forest Serv., 442 F.3d 1147, 1156 (9th Cir.2006) ("Earth Island II").
A district court may grant a preliminary injunction if one of two sets of criteria are met. "Under the `traditional' criteria, a plaintiff must show (1) a strong likelihood of success on the merits, (2) the possibility of irreparable injury to plaintiff if preliminary relief is not granted, (3) a balance of hardships favoring the plaintiff, and (4) advancement of the public interest (in certain cases). Alternatively, a court may grant the injunction if the plaintiff demonstrates either a combination of probable success on the merits and the possibility of irreparable injury or that serious questions are raised and the balance of hardships tips sharply in his favor." Freecycle Network, Inc. v. Oey, 505 F.3d 898, 902 (9th Cir.2007); see also Earth Island II, 442 F.3d at 1158.
A. Likelihood of Success on the Merits
1. Effect of CEQ's Alternative Arrangements for NEPA Compliance
On January 15, 2008 CEQ purported to approve "alternative arrangements" for the Navy to continue its use of MFA sonar while complying with NEPA, reasoning that "emergency circumstances" prevented normal compliance. CEQ's authority to grant such relief derives from 40 C.F.R. § 1506.11, which provides in full:
40 C.F.R. § 1506.11. CEQ's letter of explanation to the Navy stated that the district court's modified injunction "imposes training restrictions . . . that continue to create a significant and unreasonable risk that Strike Groups will not be able to train and be certified as fully mission capable." CEQ Letter to Donald C. Winter at 3.
The Navy then petitioned this court to vacate the district court's preliminary injunction, arguing that CEQ's approval of "alternative arrangements" deprived NRDC of the "likelihood of success on the merits" of its NEPA claims, thus eliminating the legal basis for the injunction. We remanded to the district court to allow it to consider in the first instance whether this legal development merited vacatur or a partial stay of the injunction.
On remand, the Navy maintained that the CEQ's "emergency circumstances" determination relieved it of the requirement to prepare an EIS prior to commencing the remaining SOCAL exercises. NRDC argued that CEQ's action was beyond the scope of the regulation and otherwise invalid, and that the preliminary injunction should remain in place. The district court considered these arguments and concluded that its preliminary injunction was "not affected by [CEQ's] approval of emergency alternative arrangements because there is no emergency." Feb. 4, 2008 Dist. Ct. Order at 1219-1220. Accordingly, it held that "CEQ's action is beyond the scope of the regulation and is invalid[ ]" and that "[t]he Navy is not, therefore exempted from compliance" with NEPA and the preliminary injunction. Id. The district court found that CEQ's interpretation of "emergency circumstances" to include a court order entered in the course of pending litigation was not authorized by 40 C.F.R. § 1506.11, because it was contrary to both the plain meaning of "emergency circumstances" and the drafters' original intent. It also found that CEQ's action was contrary to the governing statute, NEPA.
The Navy makes two basic arguments as to why the district court erred by failing to vacate the preliminary injunction in light of CEQ's approval of "alternative arrangements." First, the Navy argues that the district court lacked subject matter jurisdiction to review CEQ's approval of alternative arrangements because such approval constitutes a superseding agency action that removes as moot any basis for an injunction predicated on plaintiffs' original claims concerning the Navy's EA. Second, the Navy argues that, even if the district court could review CEQ's action, the court erred by not deferring to CEQ's and the Navy's assessment that "emergency circumstances" exist within the meaning of 40 C.F.R. § 1506.11. We address the Navy's arguments in turn.
a. Subject Matter Jurisdiction over NRDC's Challenge to CEQ's Action
The Navy argues that the district court lacked subject matter jurisdiction to consider the validity of CEQ's action because that action allegedly moots the plaintiffs' original claims. Specifically, the Navy contends that the adoption of CEQ's "alternative arrangements" in a superseding Decision Memorandum constitutes a new administrative action, which can only be challenged by a new claim on the merits. See Rattlesnake Coalition v.
Nor did the district court abuse its discretion by leaving in place the preliminary injunction after determining that CEQ's action did not require its vacatur. The Navy's contention that the district court issued "an entirely new injunction . . . based on new, ancillary claims" mischaracterizes the posture of this case. The Navy challenged the injunction based on CEQ's action; NRDC argued only that CEQ's action did not change the merits of its NEPA claims. Thus, the district court here did not "[g]rant[ ] a preliminary injunction based on a showing that the plaintiffs were likely to succeed in establishing a violation of an ancillary court order, rather than a showing that they were likely to succeed on the merits of any of their claims." Alabama v. U.S. Army Corps of Engineers, 424 F.3d 1117, 1135 (11th Cir. 2005).
b. The District Court's Assessment of Whether "Emergency Circumstances" Existed
The district court concluded that CEQ's interpretation of 40 C.F.R. § 1506.11 is not entitled to deference. It reasoned that under the Administrative Procedure Act ("APA"), 5 U.S.C. § 551 et seq., the courts traditionally afford deference to (1) an agency's reasonable interpretation of a statute it administers "if the statute is silent or ambiguous with respect to the specific issue . . .," citing Chevron, U.S.A., Inc. v. NRDC, 467 U.S. 837, 843, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), and (2) an agency's interpretation of its own regulations unless "an alternative reading is compelled by the regulation's plain language or by other indications of the [agency's] intent at the time of the regulation's promulgation," citing Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512, 114 S.Ct. 2381,
NRDC challenged neither the propriety of CEQ's original promulgation of 40 C.F.R. § 1506.11 nor the fact that § 1506.11 allows alternative arrangements for compliance with NEPA under genuine emergency circumstances. Instead, NRDC limited its challenge to CEQ's application of the regulation to the facts of this case. Accordingly, the district court considered whether the term "emergency circumstances" could be afforded so broad an interpretation as to encompass the Navy's need to continue its long-planned, routine sonar training exercises without the mitigation measures imposed by the district court. The district court concluded that the plain language of the regulation and the limited indicia of the agency's original intent compelled a narrower interpretation of "emergency circumstances" than the one afforded it by CEQ. Accordingly, the district court concluded that it did not owe deference to CEQ's interpretation of § 1506.11 under Thomas Jefferson and Seminole Rock. We review that conclusion to determine whether in so doing it relied on an erroneous legal premise or abused its discretion; we conclude that it did neither.
The district court followed established Supreme Court precedent in finding that an agency's interpretation of its own regulation is not entitled to deference when it is inconsistent with the regulation itself, conflicts with agency intent at the time of promulgation, and reaches beyond "the limits imposed by the statute," NEPA. See Auer v. Robbins, 519 U.S. 452, 461-63, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997). Next, the district court, after concluding that the meaning of "emergency circumstances" was clear, applied the appropriate legal principles that an agency's interpretation of its own regulation is entitled to deference "only when the language of the regulation is ambiguous." See Christensen v. Harris County, 529 U.S. 576, 588, 120 S.Ct. 1655, 146 L.Ed.2d 621 (2000). Accordingly, the district court did not abuse its discretion when it determined not to give deference to CEQ's overly broad interpretation of "emergency circumstances."
(2) Plain Meaning and Intent of CEQ Regulation
In finding that no emergency circumstances existed, the district court reasoned that the "Navy's current `emergency' is simply a creature of its own making, i.e., its failure to prepare adequate environmental documentation in a timely fashion, via the traditional EIS process or otherwise." Feb. 4, 2008 Dist. Ct. Order at 1228. In short, it was not a sudden unanticipated event. The district court supported its conclusion by noting that the CEQ letter does not specify an "emergency" other than the district court's mitigation order itself, which, in CEQ's view, creates a "significant and unreasonable
On appeal, the Navy argues that "no matter its genesis[,] . . . the inability to certify its west coast-based strike groups for deployment to hostile areas overseas during a time of war" is a pressing national emergency. The Navy cites to declarations, including one of the Chief of Naval Operations, that attests to the national security impacts of such a failure at a time when the United States is currently engaged in war in two countries. The Navy contends that the district court's view that the term "emergency circumstances" as used in the regulation per se excludes the circumstances presented here is an impermissible substitution of its judgment for that of multiple federal agencies (citing Ass'n of Pac. Fisheries v. EPA, 615 F.2d 794, 810-11 (9th Cir.1980)). We reject this argument and hold, for the reasons explained above, that the district court did not abuse its discretion in determining that the plain meaning of "emergency circumstances" precludes an interpretation so broad as to encompass the Navy's need to continue long-planned, routine training exercises without mitigation measures ordered by the court.
There is ample support for the manner in which the district court exercised its discretion. The district court properly relied on dictionary definitions of "emergency" and "emergency circumstances" to support its conclusion that CEQ's interpretation is not entitled to deference. See Watson v. United States, ___ U.S. ___, 128 S.Ct. 579, 583, 169 L.Ed.2d 472 (2007) (noting that terms are construed consistently with their everyday meaning, including by reference to the dictionary absent statutory definition or definitive clue). As the district court observed, the Oxford English Online Dictionary defines "emergency" as "[t]he arising, sudden or unexpected occurrence (of a state of things, an event, etc.)." Oxford English Online Dictionary, available at http://dictionary.oed.com. Black's Law Dictionary defines the term "emergency circumstances," through a cross-reference to "exigent circumstances," as "[a] situation that demands unusual or immediate action and that may allow people to circumvent usual procedures, as when a neighbor breaks through a window of a burning house to save someone inside." Blacks Law Dictionary 260, 562 (8th ed.2004) (emphasis added). The district court did not abuse its discretion in concluding that the circumstances in the present case fall outside the scope of these definitions because its preliminary injunction was entirely predictable given the parties' litigation history. Feb. 4, 2008 Dist. Ct. Order at 1227.
The Navy urges that the risk to national security created by the preliminary injunction falls squarely within the legal definition of "emergency circumstances." However, the Navy has been on notice of its possible legal obligations to prepare an EIS for the SOCAL exercises from the moment it first planned those exercises. In addition, NRDC filed its complaint almost
Moreover, the district court's conclusion finds support in CEQ's recent response to Hurricane Katrina. In March 2006, CEQ approved alternative arrangements to allow the Federal Emergency Management Agency to respond on an emergency basis to "[d]amages to the critical physical infrastructure in the New Orleans Metropolitan Area from the impact of Hurricanes Katrina and Rita [that] rendered parts of the city inoperable and uninhabitable." NEPA Alternative Arrangements for Critical Physical Infrastructure in New Orleans, 71 Fed.Reg. 14712, 14713 (March 23, 2006). The alternative arrangements explain that generally, such arrangements are made when "emergency circumstances require taking actions with significant environmental impacts and there is not sufficient time to follow the regular [EIS] process." Id. (emphasis added). This language supports the district court's view that the words "emergency circumstances" in 40 C.F.R. § 1506.11 refer to unexpected, suddenly arising situations that require agency action in a shorter time frame than would be required to prepare an EIS. By contrast, the Navy's routine SOCAL exercises were planned well in advance and with "sufficient time to follow the regular [EIS] process."
In concluding that the Navy's failure to comply timely with NEPA does not constitute an "emergency circumstance" within the meaning of 40 C.F.R. § 1506.11, the district court also relied on the limited drafting history of the regulation. As the district court pointed out, the initial proposed version of the regulation required an agency "proposing to take" an emergency action to consult with CEQ regarding alternative arrangements.
Accordingly, we conclude that the district court did not rely on an erroneous legal premise or abuse its discretion in finding that the Navy's attempt to characterize a federal court injunction as an "emergency circumstance" is contrary to the plain meaning of the language and to the intended purpose of CEQ's emergency circumstances regulation.
(3) Prior Decisions
Prior judicial decisions also support our conclusion that the district court did not rely on erroneous legal premises or abuse its discretion in concluding that CEQ's action is invalid. In each of the cases sustaining an application of 40 C.F.R. § 1506.11, CEQ allowed "alternative arrangements" in response to unanticipated emergencies that required federal agencies to respond quickly to new and changing events.
For example, in Valley Citizens for a Safe Environment v. Vest, the court upheld "alternative arrangements" which permitted the Air Force to fly C-5A transport planes into and out of Westover Air Force Base on a twenty-four hour schedule, despite a previously prepared EIS's prohibition of such flights. 1991 WL 330963 (D.Mass. May 6, 1991). The court in Valley Citizens denied the plaintiffs' request for an injunction until a supplemental EIS was completed because it concluded that the modified flight schedule was essential to supply military equipment and personnel for Operation Desert Storm, an emergency response to Iraq's sudden invasion of Kuwait that same month. Id. at *5-6. The court agreed with the determination of CEQ and the Air Force that Iraq's invasion of Kuwait reasonably constituted an emergency "given the military's operational and scheduling difficulties and the hostile and unpredictable nature of the Persian Gulf region." Id. at *5.
Other cases sustaining CEQ's application of 40 C.F.R. § 1506.11 also support the district court's narrow interpretation of the phrase "emergency circumstances." Courts have routinely given deference to CEQ's finding of "emergency circumstances" in situations where that finding has been used to "avert imminent crises outside the agency's control." Id. at 1228; see, e.g., Nat'l Audubon Society v. Hester, 801 F.2d 405, 405-7 (D.C.Cir.1986) (giving deference where immediate action was necessary to prevent the extinction of the California condor); Miccosukee Tribe of Indians of Fla. v. United States, 509 F.Supp.2d 1288, 1290-91 (S.D.Fla.2007) (giving deference where immediate deviation from a water delivery method was necessary to avoid pending extinction of the Cape Sable seaside sparrow in the Everglades); NRDC v. Pena, 20 F.Supp.2d 45, 50 (D.D.C.1998) (giving deference where immediate action was necessary to secure storage of nuclear materials); Crosby v. Young, 512 F.Supp. 1363, 1380, 1386 (E.D.Mich.1981) (where an immediate response was required for a city to meet a federal funding deadline for a
(4) CEQ's Broad Reading of "Emergency Circumstances" and NEPA
The district court also held that CEQ's broad reading of "emergency circumstances" here is ultra vires because it subverts NEPA's directive that agencies perform their NEPA duties "to the fullest extent possible."
NEPA, the statute authorizing 40 C.F.R. § 1506.11, requires federal agencies to prepare an EIS for a major federal action "significantly affecting the quality of the human environment," 42 U.S.C. § 4332(2)(C), or, in the alternative, to implement mitigation measures to minimize impacts to the point where an EIS in not required. See, e.g., Nat'l Parks & Conservation Ass'n v. Babbitt, 241 F.3d 722, 734 (9th Cir.2001). Although CEQ justified its approval of "alternative arrangements" to satisfy NEPA as grounded in "urgent national security" concerns, see Jan. 15, 2008 CEQ Letter at 4, the district court noted that, in the absence of a bona fide emergency, the "alternative arrangements" "operate[ ] to exempt [the Navy] from the usual rigors involved in the preparation of an EIS, which forms the `heart' of NEPA." Feb. 4, 2008 Dist. Ct. Order at 1230 n. 14 (quoting Envtl. Def. Fund, Inc. v. Andrus, 619 F.2d 1368, 1374-5 (10th Cir.1980)).
Reviewing CEQ's justification in this light, the district court concluded that CEQ's broad reading of "emergency circumstances" has the effect of reading a "national security" or "defense" exemption into NEPA, where none exists.
The district court's interpretation also comports with well-established Supreme Court precedent that narrowly interprets NEPA's requirement that agencies comply with its provisions "to the fullest extent possible." The Supreme Court has made clear that the "to the fullest extent possible" language was intended to address only cases in which there is an "irreconcilable and fundamental conflict" between NEPA's requirements and the requirements of another statute. See Flint Ridge Dev. Co. v. Scenic Rivers Ass'n. of OK, 426 U.S. 776, 787-88, 96 S.Ct. 2430, 49 L.Ed.2d 205 (1976). Here, as the district court noted, the Navy has never contended that it could not reconcile the district court's injunction with the requirements of NEPA.
Similarly, NEPA regulations interpret the language "to the fullest extent possible" to mean that "each agency of the Federal Government shall comply with that section unless existing law . . . expressly prohibits or makes compliance impossible." 40 C.F.R. § 1500.6. The legislative history of § 1500.6 explains that this language "shall not be used by any Federal agency as a means of avoiding compliance with [NEPA's] directives. . . ." 115 Cong. Rec. (Part 29) 39702-39703 (1969); see also Calvert Cliffs' Coordinating Comm. Inc. v. U.S. Atomic Energy Comm'n, 449 F.2d 1109, 1114 (D.C.Cir. 1971) ("We must stress as forcefully as possible that this language does not provide an escape hatch for footdragging agencies; it does not make NEPA's procedural requirements somehow `discretionary.' . . . Indeed, [the language] sets a high standard for the agencies, a standard which must be rigorously enforced by the reviewing courts.").
The Navy asserts that national policy requires that it must be confident that its west coast-based strike groups are prepared and certified for deployment to hostile areas overseas during a time of war. However, as the district court noted, nothing prevented the Navy from preparing an EIS prior to commencing the SOCAL exercises; indeed, the fact that the Navy is currently developing an EIS for exercises in the Southern California Operating Area confirms that it is fully capable of meeting NEPA's requirements. See Notice of Intent To Prepare an Environmental Impact Statement/Overseas Environmental Impact Statement for the Southern California
Although the Navy argues that "NEPA must give way" so that it may proceed with its training and certification unhindered by environmental rules, quoting Flint Ridge, 426 U.S. at 788, 96 S.Ct. 2430, Flint Ridge itself holds that NEPA's procedural requirements are not discretionary and do not give way unless a "clear and unavoidable conflict in statutory authority exists," id, here, the district court carefully examined the record, with which it has longstanding familiarity, and determined that there was no such conflict in statutory authority, concluding that conditioning phrases like "consistent with other essential considerations of national policy," 42 U.S.C. § 4331(b), and "to the fullest extent possible," id. § 4332, do not indicate Congressional intent to create a statutory escape hatch. Nor does any intent appear in the implementing regulations, that would allow the Navy to conduct its exercises before completing an EIS.
In reaching these conclusions, the district court examined the various legal rules and applied those that were relevant to this proceeding. Having done so, it acted well within its discretion in determining that CEQ's broad interpretation of "emergency circumstances" is contrary to the dictates of NEPA.
(5) Additional Considerations
We also note that NRDC has raised a serious question as to whether CEQ acted arbitrarily and capriciously in the procedure it used to reach its "emergency circumstances" determination pursuant to 40 C.F.R. § 1506.11. The Navy, arguing that the district court's order created an emergency by compromising its ability to effectively train and certify its strike groups, requested alternative arrangements on January 10, 2008, and submitted evidence supporting that request the following day. Jan. 15, 2008 CEQ Letter at 1. CEQ approved the Navy's request four days later, on January 15, 2008. Id. In the intervening time, CEQ held discussions with, and received briefings from, the Navy and NMFS and reviewed the Navy's supporting documents. Id. at 4. At no point did CEQ request, nor did the Navy provide it, any of the evidence in the district court record contrary to the Navy's position that the challenged mitigation measures would compromise its ability to train and certify its strike groups. Thus, CEQ reached its "emergency circumstances" determination without considering any of the substantial evidence on which the district court relied in concluding that the mitigation measures it imposed would not render the Navy unable to train and certify its strike groups. Where, as here, the basis for an emergency is alleged to be the effect of a district court order, entered after careful review of a full record submitted by both parties, a substantial question exists as to whether CEQ acted arbitrarily and capriciously when it failed to review the full record, and instead considered only one side's views, and on that basis determined that the court's order gave rise to "emergency circumstances."
For the foregoing reasons, we hold that the district court did not abuse its discretion or rely on an erroneous legal premise in determining that CEQ's broad interpretation of "emergency circumstances" was not authorized by 40 C.F.R. § 1506.11 because it was contrary to the plain meaning of the regulation and contrary to NEPA and, accordingly, that the Navy remains subject to the traditional requirements of NEPA.
2. NRDC's NEPA Claim
We next address the district court's conclusion that NRDC has shown probable success on the merits of its claim that the Navy violated NEPA by failing to prepare an EIS for the SOCAL exercises.
In our November 13, 2007 order we concluded that "Plaintiffs have shown a strong likelihood of success on the merits of their claims under [NEPA]." NRDC, 508 F.3d at 886. While that conclusion was based on our review of the record underlying the district court's August 7, 2007 preliminary injunction order, the only subsequent developments are CEQ's approval of "alternative arrangements" pursuant to 40 C.F.R. § 1506.11 and the Navy's concession, by virtue of seeking such approval, that the SOCAL exercises will have a "significant environmental impact." See 40 C.F.R. § 1506.11 ("Where emergency circumstances make it necessary to take an action with significant environmental impact without observing the provisions of these regulations, the Federal agency taking the action should consult with the Council about alternative arrangements.") (emphasis added). Although we elaborate on our reasons, our original conclusion remains unchanged.
a. Statutory Background
As discussed earlier, NEPA requires a federal agency such as the Navy to prepare a detailed EIS for all "major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(C). However, if, as here, an agency's regulations do not categorically require the preparation of an EIS, then the agency must first prepare an EA to determine whether the action will have a significant effect on the environment. Nat'l Parks & Conservation Ass'n v. Babbitt, 241 F.3d 722, 730 (9th Cir.2001); see 40 C.F.R. § 1501.4. If the action will significantly affect the environment, an EIS must be prepared, while if the project will have only an insignificant effect, the agency
"An EIS must be prepared `if substantial questions are raised as to whether a project . . . may cause significant degradation of some human environmental factor.'" Blue Mountains Biodiversity Project v. Blackwood, 161 F.3d 1208, 1212 (9th Cir.1998) (quoting Idaho Sporting Congress v. Thomas, 137 F.3d 1146, 1149 (9th Cir.1998)). Thus, a plaintiff need not show that significant effects on the environment will in fact occur; raising "substantial questions whether a project may have a significant effect" on the environment is enough. Id.; Idaho Sporting, 137 F.3d at 1150.
NEPA's procedural requirements mandate that an agency take a "hard look" at the environmental consequences of its actions. Earth Island II, 442 F.3d at 1159. NEPA is unique in that it does not direct or require any particular substantive action on the part of an agency. Its sole purpose is to require that the agency be fully informed as to the environmental consequences of its actions, the mitigation measures available, and the alternatives to its proposed action. Once fully informed, the agency may make its own final rule or decision. However, an agency may not avoid preparing an EIS by making conclusory assertions that an activity will have only an insignificant impact on the environment. Ocean Advocates, 402 F.3d at 864. If an agency opts not to prepare an EIS, it must put forth a "convincing statement of reasons" to explain why a project's impacts are insignificant. Blue Mountains, 161 F.3d at 1212 (quoting Save the Yaak Comm. v. Block, 840 F.2d 714, 717 (9th Cir.1988)).
NEPA challenges are reviewed under the APA, which provides that an agency action may be set aside if it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law[.]" 5 U.S.C. § 706(2)(A). The agency's decisions are "entitled to a presumption of regularity. But that presumption is not to shield [the agency's] action from a thorough, probing, in-depth review." Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971) (citations omitted). Thus, in reviewing an agency's decision not to prepare an EIS, a court must "determine whether the agency has taken a `hard look' at the consequences of its actions, `based [its decision] on a consideration of the relevant factors,' and provided a `convincing statement of reasons to explain why a project's impacts are insignificant.'" Native Ecosystems Council v. U.S. Forest Serv., 428 F.3d 1233, 1239 (9th Cir.2005) (quoting Nat'l Parks & Conservation Ass'n, 241 F.3d at 730).
Agencies have wide discretion in assessing scientific evidence, but they "must `take a hard look at the issues and respond[ ] to reasonable opposing viewpoints.'" Earth Island II, 442 F.3d at 1160 (internal quotation omitted, brackets in original). "`When specialists express conflicting views, an agency must have discretion to rely on the reasonable opinions of its own experts, even if a court may find contrary views more persuasive. At the same time, courts must independently review the record in order to satisfy themselves that the agency has made a reasoned decision based on its evaluation of the evidence.'" Id. (quoting Marsh v. Or. Nat. Res. Council, 490 U.S. 360, 378, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989)). "If an agency has failed to make a reasoned decision based on an evaluation of the evidence, we may properly conclude that an
b. Substantial Questions about the Environmental Impact of the Exercises
The district court found that NRDC had raised substantial questions as to whether the SOCAL exercises would have a significant impact on the environment. Jan. 3, 2008 Dist. Ct. Order at 6-7. Accordingly, the court concluded that NRDC had demonstrated probable success on the merits of its claim that the Navy's failure to prepare an EIS was arbitrary and capricious and in violation of NEPA and the APA. Id. at 7. The district court did not rely on an erroneous legal premise or abuse its discretion in so concluding.
Initially, we repeat our observation that the Navy, by seeking approval by CEQ of "alternative arrangements" pursuant to 40 C.F.R. § 1506.11, has effectively conceded that the SOCAL exercises will have a significant impact on the environment. See 40 C.F.R. § 1506.11. As the text of § 1506.11 indicates, the very purpose of the regulation is to provide for the possibility of alternative arrangements where emergency circumstances require the taking of an action "with significant environmental impact" without observing the requirements of NEPA. See id. The fact that the Navy sought relief under § 1506.11 is evidence that the Navy recognizes that the SOCAL exercises have a "significant environmental impact."
Moreover, the fact that "[t]he Navy is currently evaluating the environmental impact of MFA sonar training exercises through its development of the SOCAL Range Complex Environmental Impact Statement," Jan. 15, 2008 CEQ Letter at 2, confirms that, at the very least, the Navy acknowledges that substantial questions have been raised as to whether the SOCAL exercises will have a significant impact on the environment. Accordingly, were we not to review the Navy's EA, we would have little difficulty concluding that the district court did not rely on an erroneous legal premise or abuse its discretion in determining that NRDC has demonstrated probable success on the merits of its NEPA claim. Our own review of the EA leads us to the same conclusion.
The Navy argues that the district court made a clearly erroneous assessment of the evidence of the effect of MFA sonar on marine mammals in the waters of southern California. Specifically, the Navy asserts that the court misunderstood the significance of the EA's reference to the 548 predicted instances of Level A harassments of beaked whales. The Navy explains that it categorized predicted sonar exposures to beaked whales as Level A harassments not because beaked whales were expected to suffer such harassments but rather because such categorization would allow the Navy to analyze the potential impacts of MFA sonar on each beaked whale species in greater detail than it would otherwise.
We find no abuse of discretion in the district court's rejection of the Navy's argument. The Navy's explanation for its categorization of predicted sonar exposures to beaked whales as Level A harassments finds no support in the EA, and counsel for the Navy was unable to explain at oral argument on November 8, 2007, how classifying exposures as Level A harassments would allow the Navy to better analyze the impacts of MFA sonar on
The Navy's decision to do so is supported by ample evidence indicating that beaked whales are particularly vulnerable to MFA sonar. The documented strandings of marine mammals that have been linked to the use of MFA sonar overwhelmingly involve beaked whales.
Moreover, to the extent that a paucity of scientific data prevents the Navy from establishing meaningful impact thresholds for beaked whales, that is a reason to conduct further research and prepare an EIS—not a reason to ignore the data that does exist and proceed with the SOCAL exercises without adequate mitigation measures. As we explained in National Parks:
Nat'l Parks & Conservation Ass'n, 241 F.3d at 732 (internal citations and quotations omitted).
The Navy also contends that the district court misunderstood the significance of the nearly 170,000 predicted Level B harassments. First, the Navy argues that this number is an overestimate resulting from conservative assumptions in its model and from the fact that it does not take into account the mitigation measures the Navy would employ. However, the Navy stated in the EA that its prediction of the harm to marine mammals was "consistent with the best available science." And while the Navy "assumed" that its prediction was an overestimate, it acknowledged that the science was "incomplete," which apparently
Second, the Navy argues that most of the predicted Level B harassments are below the threshold for causing temporary hearing loss and will induce only temporary behavioral responses which can be as minor as causing an animal to avoid the noise source. But according to the Navy's own definition of Level B harassment, those temporary behavioral responses are nevertheless profound, as they cause "disruption of natural behavioral patterns . . . to a point where such behaviors are abandoned or significantly altered."
While the EA also states that it is "highly unlikely" that Level B harassments would cause disturbance to a point where behavioral patterns are abandoned or significantly altered, the EA provides no support for that statement and fails to explain why those harassments are nevertheless classified as Level B under the EA's own definition. The district court did not abuse its discretion in determining that such a conclusory statement does not dispense with the requirement of preparing an EIS. See Ocean Advocates, 402 F.3d at 864 ("[An agency] cannot avoid preparing an EIS by making conclusory assertions that an activity will have only an insignificant impact on the environment.").
Next, the Navy argues that it was "entitled to rely" on the conclusion of the NMFS in its Biological Opinion, which the district court held satisfied the NMFS' statutory obligation, see 16 U.S.C. § 1536(a)(2), that the SOCAL exercises were not likely to jeopardize the continued existence of threatened or endangered marine mammal species. But the NMFS opined only on the effects of MFA sonar on six species of marine mammal,
The Navy suggests that the test is whether the continued existence of marine mammal species is jeopardized. This is wrong. An agency action can have "significant effects" on the environment short of threatened extinction. NEPA regulations promulgated by CEQ provide that "significantly" has two components: context and intensity. 40 C.F.R. § 1508.27. Context refers to the setting in which the proposed action takes place, in this case the Southern California Operating Area. See id. § 1508.27(a). Intensity means "the severity of impact." Id. § 1508.27(b). In considering the severity of the potential environmental impact, a reviewing agency may consider up to ten factors to help inform the "significance" of a project, including the degree to which the effects on the quality of the human environment are likely to be "highly controversial" and the degree to which the possible effects on the human environment are "highly uncertain or involve unique or unknown risks." Id. §§ 1508.27(b)(4), (b)(5). We have held that "one of these factors may be sufficient to require preparation of an EIS in appropriate circumstances." Ocean Advocates, 402 F.3d at 865; see Ctr. for Biological Diversity v. Nat'l Highway Traffic Safety Admin., 508 F.3d 508, 553 (9th Cir.2007); Nat'l Parks & Conservation Ass'n, 241 F.3d at 731.
Notably, whether an agency action will jeopardize the continued existence of an endangered or threatened species is not among these factors. See 40 C.F.R. § 1508.27(b). However, the degree to which the action may "adversely effect" an endangered or threatened species is. See id. § 1508.27(b)(9). While the NMFS' Biological Opinion concluded that the SOCAL exercises were not likely to jeopardize the continued existence of the six endangered species it studied, it nevertheless acknowledged that the exercises "may adversely affect" those species. Thus, while the Navy was not required to disregard the NMFS' "no jeopardy" opinion, see Envtl Prot. Info. Ctr. v. U.S. Forest Serv., 451 F.3d 1005, 1012 (9th Cir.2006), the Biological Opinion by its own terms makes clear that the SOCAL exercises may "significantly" affect the environment, see Greater Yellowstone Coalition v. Flowers, 359 F.3d 1257, 1275-76 (10th Cir.2004) (regarding as not determinative for NEPA purposes the Fish and Wildlife Service's "no jeopardy" opinion as to bald eagles).
The Navy further argues that its finding of no significant impact was not arbitrary and capricious because no sonar-inflicted injuries have been observed in the Southern California Operating Area in almost forty years of MFA sonar use by the Navy. But as explained above, that fact has limited probative value in establishing whether marine mammals will in fact be harmed by the Navy's use of MFA sonar. Exposure to MFA sonar may physically and behaviorally harm marine mammals even if it does not cause them to strand. And absent stranding, such harm is difficult to observe. That is particularly true for the beaked whale—the marine mammal most vulnerable to MFA sonar—in
Finally, the Navy claims that the correlation between the past marine mammal strandings and MFA sonar is irrelevant because the combination of environmental conditions "found at the locations of documented marine mammal stranding incidents" is not present in the Southern California Operating Area. But contrary to this claim, the EA indicates that the Navy has studied only the stranding in the Bahamas in 2000 and not any of the other stranding events.
Moreover, while the Navy's study of the Bahamas stranding identified a combination of factors that contributed to the whales' injury—the presence of a strong surface duct, unusual water bathymetry, intensive use of multiple sonar units over an extended period of time, a constricted channel with limited egress, and the presence of beaked whales that appear to be sensitive to the frequencies produced by these sonars—the EA provided no supporting data or analysis for its conclusion that this combination of factors does not exist in the Southern California Operating Area. Thus, we find no abuse of discretion in the district court's conclusion that the Navy has failed to provide the support for its conclusion that NEPA requires. See 40 C.F.R. § 1502.24.
In addition, the Navy's Bahamas study acknowledged that combinations of factors different from the one present in the Bahamas "may be more or less likely to cause strandings" (emphasis added). Thus, even if the combination of factors present in the Bahamas in fact does not exist in the Southern California Operating Area, the combination of factors that does exist may be even more likely to cause injury to marine mammals. The EA does not explore that possibility.
In sum, the district court did not abuse its discretion in concluding that NRDC raised substantial questions as to whether the SOCAL exercises would have a significant impact on the environment. All of the reasons stated in the EA for why the Navy believed the SOCAL exercises would not have the deleterious effect that the Navy's own model predicted were cursory, unsupported by cited evidence, or unconvincing. Thus, we find ample support for the district court's conclusion that the Navy has not "articulate[d] a rational connection between the facts found and the conclusion[ ] reached." Earth Island II, 442 F.3d at 1156-57 (quoting Midwater Trawlers Co-op. v. Dept. of Commerce, 282 F.3d 710, 716 (9th Cir.2002)).
c. The Navy's Mitigation Measures
The district court also concluded that NRDC had demonstrated probable success on the merits of its claim that the Navy's mitigation measures were inadequate to obviate the need for preparing an EIS. Again, we find no reliance on an erroneous legal premise and no abuse of discretion in the district court's conclusion.
The Navy correctly points out that "[a]n agency's decision to forego issuing an EIS may be justified in some circumstances by the adoption of [mitigation] measures" and that those measures, if significant, "need not completely compensate for adverse environmental impacts." Nat'l Parks & Conservation Ass'n, 241 F.3d at 733-34 (citations and internal quotation marks omitted). However, we have also held that a "perfunctory description" or "mere listing of mitigation measures, without supporting analytical data," is insufficient to support a finding of no significant impact. Okanogan Highlands Alliance v. Williams, 236 F.3d 468, 473 (9th Cir.2000) (citations and internal quotation marks omitted). We find no reversible error in
The explanation contained in the EA as to why the mitigation measures are effective is contained in four short bullet points, stating that whales and dolphins spend extended periods of time on the surface, have relatively short dive periods, tend to move in large groups (pods), and frequently come to the surface and have a high level of activity there. Three of those bullet points in effect state the same thing, namely that whales and dolphins spend little time under water. This explanation is inadequate for several reasons.
First, the Navy's explanation overlooks the fact that beaked whales spend much of their time under water, surface infrequently, and are generally difficult to detect. A study by NMFS scientists observed that "beaked whales are always difficult to see when they are on the surface, spend most of their time below the surface, and are found at low densities over large areas." Likewise, NRDC submitted a declaration by a biologist who opines that visual monitoring by ship-based lookouts would result in the detection of only 2% of beaked whales in the Southern California Operating Area, in part because of the speed at which Navy vessels travel. Declaration of Dr. Robin William Baird ¶ 6.
Second, the Navy's explanation fails to address the effectiveness of the Navy's safety zones—the only measure that directly reduces exposure of marine mammals to MFA sonar. Specifically, the EA fails to explain why a safety zone of only 1,000 yards is adequate, why reducing the sonar level by 6dB and 10dB at the 1,000-yard and 500-yard marks, respectively, is adequate, and why it is effective to halt MFA sonar transmission altogether only at the 200-yard mark.
While the Navy claims in the EA that it is "very likely" that lookouts would detect a group of common dolphins because of "frequent surfacing" and group sizes of "over a thousand animals," it notably makes no such claims about Cuvier's beaked whales, Mesoplodont beaked whales or Ziphiid beaked whales. Indeed, the EA acknowledged that Cuvier's beaked whales and Mesoplodont beaked whales exhibit a range of dives lasting up to 87 minutes.
Moreover, while the EA claims that it is "very likely" that Baird's beaked whales will be detected by lookouts, it states nothing about the frequency with which those whales surface. While it may be that, as the EA states, beaked whales are large in size and travel in groups of between nine and thirteen animals, those facts hardly prove the effectiveness of visual surveillance measures considering that beaked whales generally come to the surface infrequently.
We find further support for the district court's conclusion that the Navy's mitigation measures did not obviate the need to
Notably, as to most of these measures the Navy does not contest that they would be effective. While the Navy claims that some of the measures would adversely affect its ability to achieve the objectives of the exercises, that does not render the measures the Navy has adopted adequate to avoid the need for preparing an EIS. Indeed, the Navy states in its "after action report" following the first three SOCAL exercises that in future exercises it intends to incorporate data collection necessary to address the question of how many marine mammals not observed by lookouts may have been exposed to dangerous sonar levels, and will integrate additional monitoring tools and techniques. While the Navy's intent is commendable, it implicitly acknowledges that its current mitigation and data collection efforts are less than adequate.
We conclude that the district court did not abuse its discretion in determining that the Navy's cursory explanation in the EA for why its mitigation measures are effective does not demonstrate that those measures "constitute an adequate buffer against the negative impacts" that may result from the SOCAL exercises. See Nat'l Parks & Conservation Ass'n, 241 F.3d at 734. Accordingly, we uphold the district court's conclusion that the Navy's reliance on its incomplete mitigation plan in deciding not to prepare an EIS was likely arbitrary and capricious and affirm its determination that NRDC has demonstrated probable
B. Possibility of Irreparable Injury
In our November 13, 2007 order we affirmed the district court's conclusion that NRDC had met its burden of demonstrating the possibility of irreparable injury. NRDC, 508 F.3d at 886. We now explain that decision.
As the district court noted, "[w]here, as here, plaintiffs demonstrate a likelihood of prevailing on the merits of their claims, injunctive relief is appropriate where there is a `possibility of irreparable harm.'" Jan. 3, 2008 Dist. Ct. Order at 12 (quoting Faith Ctr. Church Evangelistic Ministries v. Glover, 480 F.3d 891, 906 (9th Cir.2007)). NRDC must show the possibility of irreparable harm to its membership. See Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 180-81, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000). After analyzing the "numerous scientific studies, declarations, reports, and other evidence submitted," the district court concluded that NRDC had established "to a near certainty" that use of MFA sonar in the SOCAL exercises will cause irreparable harm to the environment and to NRDC's membership. Jan. 3, 2008 Dist. Ct. Order at 12.
The Navy argues that the harm resulting to the environment from the use of MFA sonar in the SOCAL exercises is merely "speculative." But the Navy's own EA proves otherwise. The EA estimates that the use of MFA sonar in the SOCAL exercises will result in 564 instances of physical injury including permanent hearing loss (Level A harassment) and nearly 170,000 behavioral disturbances (Level B harassment), more than 8,000 of which would also involve temporary hearing loss. As explained above, while the Navy protests that these figures are overestimates resulting from its conservative approach, the EA makes clear that the figures are "consistent with the best available science." Indeed, the Navy's failure to suggest by how much its figures overestimate the actual harm to marine mammals confirms that the EA's figures are the best available estimates. Those estimates, in turn, contradict the Navy's suggestion that the harm caused by MFA sonar in the SOCAL exercises is merely speculative.
Moreover, while the record contains no evidence that marine mammals have been harmed by the use of MFA sonar in the Southern California Operating Area, the scientific consensus that MFA sonar may cause injury and death to marine mammals combined with the evidence that such injury, absent a stranding, is difficult to detect—especially in the case of the vulnerable beaked whale—further disproves the suggestion that the harm caused by MFA
The Navy also argues that its use of MFA sonar will cause only temporary harm to marine mammals and therefore will not result in irreparable injury. But the EA again undermines the Navy's argument. The EA's estimate that 564 instances of Level A harassment will occur demonstrates that the use of MFA sonar will also cause permanent harm to marine mammals. Likewise, the EA's own definition of Level B harassment indicates that the nearly 170,000 estimated instances of such harassment may result in the outright abandonment of important behaviors by marine mammals.
Finally, the Navy argues that NRDC failed to meet its burden of demonstrating that marine mammals "will suffer irreparable injury at the species or stock-level." For two reasons, the Navy has not shown that the district court relied on an erroneous legal premise or abused its discretion in rejecting this argument.
First, NRDC had only the burden of demonstrating the "possibility of irreparable injury," Freecycle Network, 505 F.3d at 902, not that irreparable injury "will" necessarily occur. See Earth Island II, 442 F.3d at 1159 (holding that the district court erred in requiring that the plaintiff show a "significant threat of irreparable injury" because that standard imposes a higher burden of proof than the "mere possibility of irreparable harm" standard).
Second, the Navy has cited no support for the proposition that NRDC was required to demonstrate the possibility of irreparable injury at the species or stock-level. While the Navy relies on Water Keeper Alliance v. Dep't of Defense, 271 F.3d 21 (1st Cir.2001), the court in that case only concluded that the district court did not abuse its discretion in concluding that the "death of even a single member of an endangered species" would be an insufficient basis for the plaintiffs to demonstrate the possibility of irreparable injury. See id. at 34. Here, the district court found that, according to the Navy's EA, the SOCAL exercises "will cause widespread harm to nearly thirty species of marine mammals, including five species of endangered species, and may cause permanent injury and death." January 3, 2008 Dist. Ct. Order at 12.
In any event, even if NRDC were required to demonstrate the possibility of irreparable injury at the species or stock-level, it would have satisfied that requirement here. As discussed earlier, the EA predicts 436 Level A harassments of Cuvier's beaked whales, of which, according to NOAA, as few as 1,121 may exist in California, Oregon and Washington combined. Similarly, the EA predicts 1,092 Level B harassments of bottlenose dolphins
Accordingly, we hold that the district court did not rely on an erroneous legal premise or abuse its discretion in concluding that NRDC has demonstrated the possibility of irreparable injury.
C. Balance of Hardships
Having determined that the district court neither relied on erroneous legal premises nor abused its discretion in determining that NRDC has demonstrated a strong likelihood of success on the merits of its NEPA claim and the possibility of irreparable injury, we turn to the "balance of hardships." See Freecycle Network, 505 F.3d at 902. The Supreme Court has held that environmental injury, in addition to often being permanent or of long duration, can seldom, by its nature, "be adequately remedied by money damages"; therefore,
The Navy maintains, and the district court did not contest, that its ability to train and certify its west-coast strike groups for combat deployment is critical.
The district court rejected the Navy's argument that the balance of hardships tipped in its favor. It concluded that although "the imposition of these mitigation measures will require the Navy to alter and adapt the way it conducts anti-submarine warfare training—a substantial challenge," the measures would not preclude the Navy from effectively training and certifying forces for deployment to combat zones in the western Pacific and the Middle East.
The gravity of the Navy's asserted hardship requires that we review the district court's determination, as well as the affidavits submitted by the Navy, with the utmost care. We have done so here and, for the reasons set forth below, we conclude that the district court did not abuse its discretion in reaching its determination.
We note that any negative impact on the Navy's ability to successfully conduct its exercises under the challenged mitigation measures is necessarily speculative because the Navy has never before employed
In support of its assessment that the challenged measures will significantly impair its training exercises, the Navy offers the declarations of various high-ranking officers. For example, Admiral John Locklear explains that the 2,200 yard safety zone will in "[his] opinion . . . have crippling implications on Navy's ability to conduct realistic pre-deployment [ASW] training employing MFA sonar" and "will significantly impact ASW training." Locklear decl. ¶¶ 9, 13. The Chief of Naval Operations refers to an unacceptable risk to strike group certification posed by both the safety zone and surface ducting measures. The judgment of these naval officers and, in particular, that of the Chief of Naval Operations, who is charged with the statutory responsibility under 10 U.S.C. § 5062 for organizing, training, and equipping the Navy, is entitled to substantial deference. See Khalsa v. Weinberger, 779 F.2d 1393, 1400 n. 4 (9th Cir.1985) ("The degree of deference due to factual assertions by the military is proportionate to the need for the application of military experience, judgment, and expertise in evaluating the assertion.").
Nevertheless, a court's deference is not absolute, even when a government agency claims a national security interest. See, e.g., Campbell v. U.S. Dep't of Justice, 164 F.3d 20, 30 (D.C.Cir.1998) ("[D]eference is not equivalent to acquiescence. . . ."). The district court therefore did not abuse its discretion when it considered the Navy's declarations along with the evidence contained in the record as a whole. This evidence, much of it submitted by the Navy itself, supports the district court's conclusion that the challenged mitigation measures will not likely compromise the Navy's ability to effectively train and certify its west-coast strike groups. We address the evidence with respect to each of the challenged mitigation measures in turn.
1. The 2,200 Yard Shutdown Zone
We first consider the requirement that the Navy shut down its use of MFA sonar when a marine mammal is detected within 2,200 yards of a sonar-emitting source.
The "after action reports" compiled by the Navy following eight prior COMPTUEX and JTFEX exercises in the Southern California Operating Area undermine the Navy's assessment of the significance of the hardship that this mitigation measure would impose.
In addition to data drawn from "after action reports," the record contains other evidence of the feasibility of mandatory shutdown zones of this size, and even greater, during naval training exercises. Indeed, the size of the district court's imposed shutdown zone was based on the CCC's proposed mitigation measure, which in turn was drawn from the Navy's own imposition of a 2,000 meter shutdown requirement when it uses low-frequency active sonar.
2. The Requirement to Power-Down in Significant Surface Ducting Conditions
We next consider the requirement that the Navy power-down its sonar use by 6 dB when significant surface ducting conditions are detected. Although the Navy stresses the importance of training in surface ducting conditions, it admits—and the record confirms—that such conditions occur relatively rarely in the southern California
Thus, although the actual effect of the challenged mitigation measures on the exercises at issue is necessarily speculative, data from past Navy exercises and practices supports the district court's conclusion that the imposition of these measures is not likely to prevent effective training and certification of strike groups. After a thorough review of this record, we are not "left with the definite and firm conviction that a mistake has been committed." Sports Form, Inc., 686 F.2d at 752. To the contrary, there is significant evidence of the Navy's ability to successfully train and certify its strike groups under the conditions imposed by the district court. We therefore conclude that the district court did not abuse its discretion in ordering the Navy to comply with the challenged mitigation measures.
As explained earlier, the scientific studies, declarations and reports in the record confirm the district court's determination that irreparable harm to marine mammals will almost certainly result should the Navy be permitted to conduct its remaining exercises without appropriate mitigation measures. See, e.g., Bain decl. ¶ 14 (explaining that "the monitoring and mitigation adopted by the Navy is insufficient to detect, much less prevent, marine mammal injury and mortality"); Declaration of Dr. Thomas A. Jefferson decl. ¶ 4 (describing the link between military sonar and the stranding and deaths of beaked whales and other cetaceans). As the district court observed, the 2,200 yard shutdown zone might protect marine mammals from only "the harshest of sonar-related consequences." Jan. 3, 2008 Dist. Ct. Order at 15.
Further, as the district court noted, the exercises in southern California are only a subset of the Navy's training activities involving active sonar.
While we are mindful of the importance of protecting national security, courts have often held, in the face of assertions of potential harm to military readiness, that the armed forces must take precautionary measures to comply with the law during its training. See, e.g., NRDC v. Evans, 279 F.Supp.2d 1129, 1190 (N.D.Cal.2003) ("A tailored injunction reconciles the very compelling
We recognize that although the record indicates that the Navy will be able to continue to train and certify strike groups effectively despite the two challenged mitigation measures, there remains the possibility that, when they are actually implemented, it will be unable to do so. In light of the hardship that the Navy and the public would suffer should the imposed measures actually result in an inability to train and certify sufficient naval forces to provide for the national defense, we conclude that, in the unlikely event that such a situation arises, the Navy may return to the district court to request relief on an emergency basis.
D. Advancement of the Public Interest
There are two dimensions to the public interest in this case. The public has an interest both in national security and in protection of the marine environment. The public interest with respect to national security is the same as that discussed in our consideration of the hardship the Navy would suffer if it were unable to effectively train and certify its strike groups. The public interest with respect to protection of the marine environment is the same as that discussed in our consideration of the irreparable injury NRDC would suffer if the SOCAL exercises were carried out in the absence of appropriate mitigation measures. As our discussion makes clear, we conclude that the district court did not rely on an erroneous legal premise or abuse its discretion in analyzing either of these interests. Accordingly, there is no need for any additional discussion of the public interest.
The district court concluded that plaintiffs have met the necessary burden of proof to demonstrate that preliminary injunctive relief is appropriate. It held that plaintiffs have shown a strong likelihood of success on the merits, as well as the possibility of irreparable injury if relief is not granted. It also held that plaintiffs have shown that the balance of hardships tips in their favor in light of the preliminary injunction's narrowly-tailored mitigation measures which provide that the Navy's SOCAL exercises may proceed as planned if conducted under circumstances that provide satisfactory safeguards for the protection of the environment. Finally, it held that the public interest is advanced by a preliminary injunction that imposes adequate mitigation measures. In reaching these conclusions, the district court neither relied on erroneous legal premises nor abused its discretion. We therefore affirm the district court's preliminary injunction.
A strike group starts developing skill sets at the individual ship, submarine, or aviation squadron level by conducting unit-level training. Id. ¶ 6. As skill levels increase, units coordinate training with other units. Id. Prior to commencing the "integrated" phase of the Navy's training plan, the individual units comprising a strike group must be trained and attain proficiency in the "basic" phase of the training plan. Id. ¶ 25. During the "integrated" training phase, an individual unit learns and demonstrates skills as a team member of the strike group. Following completion of the "integrated" phase, strike groups enter the "sustainment" phase of the training plan. Id. This phase continues through the strike group's scheduled deployment and post-deployment periods and ends with the commencement of the "maintenance" phase, during which the ships comprising the strike group undergo maintenance and modernization. Id. ¶¶ 24, 25.
Similarly, the Navy adopted as a mitigation measure the requirement that MFA sonar be operated "at the lowest practical level, not to exceed 235 dB, except as required to meet tactical training objectives." However, that requirement, also adopted for the 2006 RIMPAC exercise, has no apparent mitigating effect because (1) it is not clear whether the Navy ever assumed higher sonar levels when using its harassment model to predict harm to marine mammals, (2) the Navy's interim report on the Bahamas stranding indicates that sonar levels during the Bahamas exercise did not exceed 235 dB even without the mitigation measure, and (3) the exception that the Navy may exceed the 235 dB limit "as required to meet tactical training objectives" swallows the rule, as tactical training objectives are the only reason for using MFA sonar to begin with, thus allowing the Navy to exceed the 235 dB limit whenever it in fact uses MFA sonar.
Indeed, Congress has included exemptions for "paramount" national security concerns in many environmental statutes, but not in NEPA. See, e.g., Toxic Substances Control Act, 15 U.S.C. § 2621 (compliance waived if the President determines a requested waiver to be necessary "in the interest of national defense"); Coastal Zone Management Act, 16 U.S.C. § 1456(c)(1)(b) (under certain circumstances the President may exempt an activity that is in the "paramount interest of the United States"); Endangered Species Act, 16 U.S.C. § 1536(j) (exemption granted if the Secretary of Defense finds such exemption necessary "for reasons of national security"); Clean Water Act, 33 U.S.C. § 1323(a) (the President may exempt federal effluent source for up to one year if in the "paramount interest of the United States"); Safe Drinking Water Act, 42 U.S.C. § 300j-6(a) (the President may exempt federal facility for up to one year if in the "paramount interest of the United States"); Resource Conservation and Recovery Act, 42 U.S.C. § 6961(a) (the President may exempt federal solid waste management facility for up to one year if in the "paramount interest of the United States"); Clean Air Act, 42 U.S.C. § 7417(b) (the President may exempt federal emission source for up to one year if in the "paramount interest of the United States"); Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. § 9620(j) (the President may issue orders to exempt facilities of the Department of Energy and the Department of Defense "as may be necessary to protect the national security interests of the United States . . ."). See Oct. 1, 2007 Brief of Amicus Curiae Law Professors Hope Babcock, et al. at 16 & n. 4.
Notably, NRDC has submitted declarations by scientists who state that sonar levels even below the Navy's lowest impact threshold of 173 dB may be fatal and that sonar sound can travel up to hundreds of miles under water, which suggests that the Navy's significantly smaller safety zones are inadequate. See Parsons decl. ¶ 13, Weilgart decl. ¶ 10.
Captain May also contends that "[t]he ranges that comprise the Southern California Operating Area make up a unique area in which strike groups can meet all required training objectives at the same time. Id. at ¶ 25. Another significant factor is that many of the operating areas have been surveyed and closely mirror the prospective operating environments in many of the world's `hot' spots where U.S. Naval forces may be required to fight." Id. Training "in our own littorals . . . also build[s] proficiency and experience in our own waters should the enemy attempt to interdict U.S. forces deploying to the area of conflict." Id.
We note that the first four of the eight exercises for which the record contains "after action reports" were not part of the current SOCAL exercises.
There is no dispute that the Navy continued to certify its strike groups throughout these exercises. The Navy defends its exclusion of any non-mandatory shutdowns in its count by claiming that any shutdowns that occurred beyond the 200 yard range "likely occurred during tactically insignificant times." Locklear decl. ¶ 11. The record fails to support this claim. The "after action reports" do not distinguish between shutdown events in evaluating training impacts. Indeed, the very same language is used to describe the loss of detection opportunities during all of the exercises, without regard to whether the shutdowns occurred within or beyond 200 yards.