Summary and review of the articles. 1) Winter vs. Natural Resources Defense Council.
The crux of the case between Winter, the Secretary of the Navy of the United States, and the NRDC consists in the fact that the United States Navy badly needed to use mid-frequency active sonars in order to properly conduct marine trainings off the Californian coast. Plaintiffs, activists for the defense of nature, opposed this claiming that using the indicated devices harms marine mammals of which there are 37 unique species in that part of the ocean. The case was taken to the District Court who entered the preliminary injunction that completely prohibited the Navy to use MFA sonars during trainings. This made these trainings quite senseless so the case was taken to the Court of Appeals. The latter revoked the general prohibition of the use of sonars replacing it with six specific restrictions on the use of MFA sonars. The Navy then turned to the Council on Environmental Quality that allowed it to vacate the restrictions of the Court of Appeals and to be constrained only by voluntary restrictions. The Court of Appeal expressed its opinion consisting in the doubt that restrictions imposed by itself and then vacated by the CEQ would be of any constraint for conducting trainings. IN any case the decision of the judiciary was as follows – all restrictions imposed by the District Court and Court of Appeals were revoked (Winter v. Natural Resources Defense Council, 2008,1-6).
The main ideas of this article are several. First of all, this is the collision between different group of interests of man – the need to be protected (for which military trainings are being conducted) and the need to live in a good environment (since the Natural Resources Defense Council insists that usage of MFA sonars harm the nature significantly). Secondly, this is the ambivalent nature of justice (as a generic term): both parties to the case have enough reasoning for their arguments but it does not deem possible to reach a good legal consensus for the two of them.
In my opinion, several specific weaknesses in environmental law management were displayed in this case.
First of all, there is a collision between branches of power. How can an executive organ revoke the decision about the restrictions imposed by organs representing another branch of state power, the judiciary? According to the principle of the division of power into the three branches the very barebones of the system consists in the fact that the branches have no influence on one another. This means that the right way – and the only way - to solve the issue and terminate restrictions would be through court again.
Another weakness, I think is the fact that the case does not stay completely in the legal field. It is rather a case of the law versus politics, and it is even reflected in the name of the case: Winter, Secretary of the Navy (i.e. a significant political figure) versus the National Resources Defense Council that was defending the purely legal considerations. However, the fact that there was a collision between political (most precisely security) considerations and legal ones justice could not stay unprejudiced towards one of the parties to the case.
Questions:
In your opinion, what is more important for the state – increasing its strength at the expense of environment but ensuring the better safety or preserving natural environment? What about for the citizens? Why? Consider short-term and long-term perspectives, reasonability for each choice and other factors.
In your opinion, taking the given case as an example of a type of legal collisions, how is it possible to settle such legal disputes leaving the both parties to the case better off?
2) Kleppe versus Sierra Club
The Kleppe versus Sierra Club case consists in the divergence between the federal government and the environmental organizations. The case is pretty straightforward and consists in the following. IN 1973 the federal government prepared a report on the possibilities of development of natural resources of the Northern Great Plains region that encompasses parts of Wyoming, Michigan, North and South Dakota. No specific action in the wake of the plan has been planned or taken. However, environmental organization blames the federal government for disregarding NEPA regulations in part that obliges it to prepare and publish the environmental impact statement when initiating a project that potentially could result in damage for environment. However, the court explicitly concluded that NEPA regulations prescribe the federal government to do so only in case if it is planning some development action on the federal level. Also, this is true only about taking actual action, and not just preparing a report about the potential of the region, like it was the case with the mentioned report (Kleppe v. Sierre Club, 1976, 469-473).
I think that the main thing to point out here is that the case is pretty straightforward and the decision, as for me, is evident whereas the accusations of the environmental agencies are taken from thin air. Therefore, the explicitness of the case is its major strength – there is a document explicitly outlining what the government should do and in which circumstances. The situation in question definitely is not subject to the mentioned NEPA regulation.
Questions
NEPA requires federal government to elaborate an environmental impact statement in case of planned actions on the federal level. How do you think, why are such measures not provided for in NEPA regulations for states’ projects? Should they be provided for in these regulations?
Environmental agencies had no really strong arguments against the word of the explicit NEPA regulation. In your opinion, was there any other leverage and any other good arguments these organizations could use to win the proceedings. If yes, which ones?
Second paper
My personal opinion about the Winter – Natural Resources Defense Council case is this. Of course, both things – safety and environmental issues – are vital for the state. They come from different spheres – political and social – but they both influence the quality of life significantly. However, there are specific reasons why I think environmentalists should have gained more than they did in the court proceedings. Here is why.
Let us consider risks we face in each given of the two scenarios – either the case is solved in favor of the Navy or it is solved in favor of environmentalist. Environmental issues are those that are usually piled up in a long perspective. And it takes an even longer perspective to solve the issues. For instance, let us take the example of global warming. Two facts here. First, February 2016 has been recognized as the hottest month in the history of meteorological record. This proves that the problem of global warming accentuates. Second, scientists claim that if we stop doing everything that adds up to the depletion of the ozone layer and enhancement of global warming, the process of global warming would still be irreversible for another fifty years. Or, another example: suffice it to compare how little time it takes to bring a species to the brink of extinction and how much time it takes to restore the prior quantity, if it has even been managed for once ever. At the same time, let us consider, how much do we need the Navy training? Of course, military justification is reasonable per se, however let us ask some questions. First: What is the potential threat in the field of submarine war for the United States? It is the United States fleet that is omnipresent in the world, not of any other country near the shores of the United States which would then be a fair justification of the training. No other country has such deployment of submarines in the world. Second: when was it last that the United States were threatened by or bore damage in a submarine war, loosing at least one submarine? I bet this was back at the times of Pearl Harbor. Together with the fact that according to the reading, the Court of Appeals concluded that the six restrictions imposed on the Navy could not harm the efficacy of trainings as well as together with the environmental reasons I highlighted above I think the case should have been solved in favor of environmentalist or, at least, with a compromise that would be better for them than the current one.
My opinion about Klepper versus Sierra Club case is this. There is an explicit wording provided for in the NEPA regulations that state that the federal government should only elaborate on an environmental impact statement only in case any action for development of a piece of territory is planned or being taken on the federal level. NEPA says virtually nothing about preparing reports of federal level or about taking action concerning several states but not on the federal level. Therefore, personally for me the way the matter was to be solved form the very beginning is obvious.
However, there are also some things this reading made me think about. First of all, okay, the federal government was right in virtue of wording contained in NEPA. But is not it high time the NEPA standards were revised? I would suggest that, and the reason for that is the fact that one does not have to act on the federal level for his actions to be of such a scale that could impact negatively the nature and environment. The Klepper versus Sierre Club case touched upon four states: Wyoming, Montana, North Dakota and South Dakota. Though there was just report being made it covered potential possibilities for development of that region. And it is not obligatorily that these possibilities would be decided to be realized on the federal level, it might just as well be decided to launch regional or local projects. But do the last ones not imply a serious environmental threat for the entire region? We have an entire four separate states here, which covers a serious share of the North Great Plains region. And I think that a potential impact would have a chance to be so great that NEPA reconsideration is badly needed.
Outlines.
Winter versus Natural Resource Defense Council
Antisubmarine warfare is one of the highest priorities of the Navy of the United States (Winter v. Natural Resources Defense Council, 2008, 1).
The biggest threat for the US Navy is the diesel-electric submarines.
The tool for the early detection of the threat is mid-frequency active sonar.
The sonar has been engaged in trainings or 40 years and is planned to be engaged this year as well, in the training in Californian off coast.
Environmentalists say this threatens the 37 rare species inhabiting the off coast waters (Winter v. Natural Resources Defense Council, 2008, 1).
The case has been officially filed to the court.
The District Court entered a preliminary injunction prohibiting the Navy from using the MFA sonar during its training exercises (Winter v. Natural Resources Defense Council, 2008, 2).
At the recommendation of the Court of Appeal the District Court later entered another preliminary injunction, imposing six restrictions on the Navy’s use of sonar during its SOCAL training exercises (Winter v. Natural Resources Defense Council, 2008, 2).
The Navy addressed to the Council on Environmental Quality to have the six restrictions lifted. The CEQ allowed the Navy be constrained by voluntary restrictions only, lifting therefore the six restrictions imposed by the Court (Winter v. Natural Resources Defense Council, 2008, 2).
Reasons of the given proceedings outcome.
Environmentalists should have shown the likelihood, not the possibility of negative impact of sonars.
The immediate public interest which is safety is in favor of the Navy and not in favor of environmentalists (Winter v. Natural Resources Defense Council, 2008, 3).
Kleppe versus Sierra Club
The officials of the federal authorities were engaged in court proceedings with several organizations dealing with environmental issues in 1973. Respondents who were the mentioned organizations dealing with environmental issues accused federal agencies in ignoring the rules established by NEPA. The thing is federal agencies were currently conducting research about the existing potential of Northern Great Plains region, but his was still just research and not any action. NEPA demands that the federal government in case it is planning to get engaged in activities on the federal level that would potentially be of any harm to the environment prepare the environment impact statement (Kleppe v. Sierre Club, 1976, 469).
The position of federal authorities consists in the argument that NEPA demands to prepare the environment impact statement only in case if there are specific actions planned as per the development of resources and if these actions are going to be taken on the federal level. Therefore, federal authorities argue that they have no legal obligation to prepare and publish the statement in question.
The position of environmental agencies is vice versa. Since the research conduct by the federal government encompasses Wyoming, Montana, North Dakota and South Dakota it and touches upon, therefore, the interests of several subjects of the federation, the level concerned is federal.
Currently the issue brought before the court is this: whether Northern Great Plains region projects are subject to the prior creation of an environment impact statement.
Since there is no action initiated on the part of the federal government, nothing in NEPA obliges federal authorities to create the document.
The District Court did not find any evidence pointing out to the fact there are any projects being developed or initiated that would oblige the government to create the relevant document.
The case has been taken to the Court of Appeals but the latter confirmed the decision of the lower organ, along with that noting, however, that the government was contemplating the regional plan or some program to be developed.
Environmental agencies argue that an environmental impact statement is needed because of the “programmatically,” “geographically” and “environmentally” connected activities planned in the region. However, the NEPA is explicit about that: only federal level requires the document preparation (Kleppe v. Sierre Club, 1976, 473).
Works Cited
Kleppe v. Sierra Club, 427 U.S. 390 (1976)
Winter v. Natural Resources Defense Council, 555 U.S. 7 (2008)
