Scott Street prepared the following in advance of yesterday’s argument in Winter v. NRDC (No. 07-1239). Scott is an associate in Akin Gump’s LA office. 

Attorneys for the Natural Resources Defense Council must have felt like they had a constitutional ace in their pockets when they went to the Supreme Court this week to argue the case of Winter v. Natural Resources Defense Council.

Since it is always easier to describe Supreme Court cases in shorthand"”the "guns case" (District of Columbia v. Heller) being a recent example"”let's call Winter the "whale case."  Whenever a federal agency does something that will "significantly affect[] the environment," the National Environmental Policy Act requires the agency to issue an Environmental Impact Statement.  In 2007, the Navy scheduled a series of sonar training exercises off the coast of California.  The Navy considered the specific frequency used to be the best available for detecting modern, diesel-fueled submarines, which can move stealthily through open water.  The Navy chose not to go through the EIS process, however, even though it recognized that the frequency used could have a devastating effect on marine life, especially the endangered beak whale.

The NRDC and others sued the Navy, arguing primarily that the Navy's failure to provide an EIS violated NEPA, and they sought to enjoin the Navy's planned training exercises.  A federal district court in Los Angeles agreed, and in January it issued a preliminary injunction, although it allowed some of the Navy's training exercises to proceed so long as the Navy followed certain mitigation measures to protect the marine environment.  Then things got interesting.  The Navy appealed the district court's decision to the U.S. Court of Appeals for the Ninth Circuit.  But it also sought the support of the Council on Environmental Quality, an executive agency that helps administer NEPA.  Based on its conclusion that there were "urgent national security reasons" to exempt the Navy from NEPA's typical procedural requirements, the CEQ approved "alternative arrangements" for the Navy to proceed with the exercises in compliance with the statute.

The NRDC is challenging the CEQ's action on a number of grounds: (1) it was not authorized by the CEQ's own regulations because CEQ has no adjudicative authority; (2) it violated Congress's intent in enacting NEPA; and (3) it violated the Administrative Procedure Act because the CEQ made the decision without so much as notifying the NRDC.

But even if the CEQ's action was valid, it must have violated the separation of powers doctrine, right?  After all, federal courts cannot issue advisory opinions or decisions that are subject to executive revision.  Here, the district court determined that the Navy violated NEPA when it proceeded with its sonar exercises without preparing an EIS.  The CEQ disagreed, finding that emergency circumstances justified the Navy's failure to prepare an EIS.  There was one key difference in the factual arguments that the Navy presented to the district court and to the CEQ: Before the CEQ, the Navy argued that the district court's injunction added to the emergency circumstances.  Otherwise, its factual arguments were the same.

The problem for the NRDC is that, if the Court upholds the CEQ's action, it could find that the act did not violate the separation of powers.  The reason stems from a little-noticed portion of the Court's 1995 decision in Plaut v. Spendthrift Farm.  In Plaut, the Court held that Congress violated the "finality" prong of the separation of powers doctrine when it not only modified the statute of limitations for investors to bring securities fraud claims under section 10(b) of the Securities Exchange Act of 1934, but also directed the courts to re-open cases that had previously been dismissed. 

Writing for a seven-justice majority, Justice Antonin Scalia distinguished the situation in Plaut from situations in which Congress prospectively changes the substantive law that underlies a court's judgment.  He also distinguished it from "a statute passed today which says that all default judgments rendered in the future may be reopened" in the future.  Justice Scalia explained that, in such a scenario, "[t]he finality that a court can pronounce is no more than what the law in existence at the time of judgment will permit it to pronounce.  If the law then applicable says that the judgment may be reopened for certain reasons, that limitation is built into the judgment itself, and its finality is so conditioned."

The same reasoning could apply in Winter if the Court finds that the CEQ had the authority to decide that emergency circumstances were present here.  The CEQ regulations were obviously in existence when the district court entered its judgment.  So, according to Plaut, the fact that another branch of the federal government stepped in afterward to revise that judgment would not offend the constitutional principle of finality. 

Then, the case would turn on whether "“ as the Navy argued in its January letter to the CEQ, and as the CEQ agreed "“ the district court's injunction could constitute an emergency circumstance and whether that constituted impermissible executive revision of a court order.  But letting Congress override Article III protections simply by writing laws that permit executive branch review of court judgments might be too much for even Justice Scalia to stomach,.  In any event, it would force the Court to take a hard look at what it said in Plaut and explain just how separate the separation of powers doctrine is.

Posted in Winter v. Natural Resources Defense Council, Uncategorized