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Whales and dolphins suffer a bitter defeat in the Supreme Court

Chief Justice Roberts writes for the majority in Winter v. Natural Resources Defense Council. He begins with a quote from George Washington: "To be prepared for war is one of the most effectual means of preserving peace." And the Navy wins.

The plaintiffs are the Natural Resources Defense Council, Jean-Michael Cousteau (an environmental enthusiast and filmmaker), and several other groups devoted to the protection of marine mammals and ocean habitats. They contend that MFA sonar can cause much more serious injuries to marine mammals than the Navy acknowledges, including permanent hearing loss, decompression sickness, and major behavioral disruptions. According to the plaintiffs, several mass strandings of marine mammals (outside of SOCAL) have been ?associated? with the use of active sonar. They argue that certain species of marine mammals?such as beaked whales?are uniquely susceptible to injury from active sonar; these injuries would not necessarily be detected by the Navy, given that beaked whales are ?very deep divers? that spend little time at the surface.

An enthusiast, eh?

[E]ven if plaintiffs have shown irreparable injury from the Navy?s training exercises, any such injury is outweighed by the public interest and the Navy?s interest in effective, realistic training of its sailors. A proper consideration of these factors alone requires denial of the requested injunctive relief....

For the plaintiffs, the most serious possible injury would be harm to an unknown number of the marine mammals that they study and observe. In contrast, forcing the Navy to deploy an inadequately trained antisubmarine force jeopardizes the safety of the fleet. Active sonar is the only reliable technology for detecting and tracking enemy diesel-electric submarines, and the President?the Commander in Chief?has determined that training with active sonar is ?essential to national security.?

Justice Ginsburg dissents, joined by Justice Souter:

Flexibility is a hallmark of equity jurisdiction.... [C]ourts do not insist that litigants uniformly show a particular, predetermined quantum of probable success or injury before awarding equitable relief....

The Navy?s own EA predicted substantial and irreparable harm to marine mammals. Sonar is linked to mass strandings of marine mammals, hemorrhaging around the brain and ears, acute spongiotic changes in the central nervous system, and lesions in vital organs....

In my view, this likely harm?170,000 behavioral disturbances, including 8,000 instances of temporary hearing loss; and 564 Level A harms, including 436 injuries to a beaked whale population numbering only 1,121?cannot be lightly dismissed, even in the face of an alleged risk to the effectiveness of the Navy?s 14 training exercises.

(There's also an opinion by Justice Breyer, joined by Justice Stevens, taking a middle position.)

Full post as published by Althouse on November 12, 2008 (boomark / email).