Andrew Schwartz

November 20, 2008

In post 9-11 American jurisprudence, national security is the fifth ace. Just last week in a six-three opinion, Chief Justice John G. Roberts Jr., writing for the majority in Winter v. Natural Resources Defense Council, stated that the public and the "Navy's interest in effective, realistic training of its sailors" for military preparedness outweighed any potential resultant harm to marine mammals from the military training exercises.

In an opinion joined by Justices Scalia, Kennedy, Thomas and Alito, and in part by Stevens, the Chief Justice seemingly ended the "series of skirmishes between the Navy and environmental groups," which has continued over the last decade. The battle over the Navy's use of sonar, which environmental groups contend causes serious "changes in breeding and migration patterns" of marine mammals, ended Wednesday. Because the extent of harm to marine life was uncertain, Chief Justice Roberts ruled that the interests of the Navy had to prevail because the Navy's safety interests would be jeopardized absent their ability to utilize sonar.

The decision came as a result of the "great deference [courts give] to the professional judgment of military authorities" in their ability determine their priorities. Nevertheless, the Chief Justice wrote that "military interests do not always trump other considerations . . . . [T]his case, however, . . . does not strike us as close question."

Navy Secretary Donald C. Winter praised the decision as striking the appropriate compromise. He asserted that the decision was "vital to our Navy and nation's security," because it allowed effective training under simulated conditions, "while [still] continuing to be good stewards of the marine environment."

Finally, while the Natural Resources Defense Council was unhappy with the ultimate result, they "took comfort in the decision's narrow" holding. Indeed, Eric Glitzenstein, a lawyer who filed an amicus brief on behalf of NRDC stated that he does not "see this as having dire effects on environmental litigation, particularly as it pertains to wildlife."

Sources:

Winter v. Natural Resources Defense Council, Inc., No. 07--1239, slip op. (U.S. Nov. 12, 2008)

Adam Liptak, Supreme Court Rules for Navy in Sonar Case, N.Y. Times, Nov. 12, 2008, at A24, available at, http://www.nytimes.com/2008/11/13/washington/13scotus.html?hp=&pagewanted=all

Jerry Markon & Juliet Eilperin, Justices Revoke Limits on Navy Use of Sonar, Washington Post, Nov. 13, 2008, at A04, available at, http://www.washingtonpost.com/wp-dyn/content/article/2008/11/12/AR2008111201058.html