You may have been wondering why we’ve been closely following the U.S. Supreme Court arguments in Winter v. Natural Resources Defense Council, Inc.,No. 07-1239, the case about the Navy’s use of mid-frequency active sonar in training exercises off the California coast. Well, besides the fact that we filed an amicus brief in the case on behalf of nine retired Admirals and several service support groups (posted here), the case has the potential for affecting more than marine mammals and the Navy’s use ofsonar, because the Court has been asked by the government and amici toexamine the standards applicable to injunctions in NEPA cases.
Professor Gideon Kanner has posted two items about the case recently, reminding us why the larger issue — when the courts should defer to the judgment of the other two branches — is important.
The first is “Did Environmental Quibbling Facilitate the Attack on Pearl Harbor. You Tell Us,” in which he shares the interesting history of the possibility that “environmental” concerns prevented the placement of a radar station in Haleakala National Park months before Pearl Harbor that might have changed the history of December 7, 1941. Food for thought.
His second post, “No Hobgoblinry at the New York Times” compares the New York Times’ recent editorial on the Winter case, “The Navy, Whales and the Court” in which the Times states the Court should not defer to the Navy’s judgment on how to train sonar operators, with the Times’ position on Kelo v. City of New London, 545 U.S. 469 (2005). The Times’ editorial asserts:
Few justices are truly expert in most of the issues they confront. Yetthey have no qualms about ruling on cases that involve complexpolitical, social, economic, scientific or medical issues. The courtshave rightly stepped in to second-guess the government’s handling ofterrorism cases in the midst of the so-called war on terror. Surely theSupreme Court has the ability to judge whether the military should beallowed to flout environmental laws with a dubious claim of nationalsecurity.
Yet, the Times lauded Kelo‘s deference to the city of New London’s judgment that Mrs. Kelo was not making good enough use of her property enough to warrant keeping it. Professor Kanner writes:
So the bottom line appears to be that by the Times’ lights,judges must defer to any one-horse village’s self-serving determinationthat taking the land of others and giving it to a favored redeveloperwho thinks he can build a private business on it and make oodles ofmoney, some of which may (or may not) trickle down to the community,meets the constitutional “public use” standard. But the same judges arefree, indeed obliged, to overrule the considered judgment of militaryexperts on highly technical matters of undersea warfare and the needsof national defense, and must not defer to them.
MyDamon Key colleague Mark Murakami has posted a resource page about the Winter case, with links to all of the briefs and selected media coverage here.