Beyond Winter v. NRDC: A Decade of Litigating the Navy's Active SONAR Around the Environmental Exemptions

Abstract

To find ultra-quiet modern submarines, the Navy uses high-powered active sonar. However, active sonar is also linked to marine mammal strandings and other types of harms to whales, dolphins, fish, and sea turtles. This connection has led to over a decade of challenges against the Navy’s active sonar training exercises in the Pacific, culminating in the U.S. Supreme Court’s November 2008 decision in Winter v. Natural Resources Defense Council. This Article suggests that the Supreme Court’s failure to reach the merits of the case—the actual legality of the Navy’s training exercises off the southern California coast—is the most troubling part of the Court's somewhat cabined analysis of the lower courts' preliminary injunctions. Specifically, this Article argues that the Navy sonar litigation represents a progressive elimination both of flexibility in the applicable environmental requirements and effective oversight of military actions that could ensure that neither national security nor environmental goals are unnecessarily sacrificed.