Preliminary injunctive relief in the Ninth Circuit after Winter v. Natural Resources Defense Council

Abstract

"On November 12, 2008, the U.S. Supreme Court issued a ruling on Winter v. Natural Resources Defense Council (Winter). The Winter case originated in March of 2007 in the Central District of California when multiple environmental groups challenged the Navy’s issuance of anenvironmental assessment approving the use of mid-frequency active (MFA) sonar in exercises used to train strike teams (groups of surface ships, submarines, and aircraft) in antisubmarine warfare. Environmental groups sued pursuant to the National Environmental Policy Act (NEPA), Endangered Species Act, and Coastal Zone Management Act of 1972, asserting that the use of MFA sonar could have a potentially significant effect on the environment and that the Navy should have prepared an environmental impact statement. After several proceedings at both the district court and Ninth Circuit, the district court issued a narrowly tailored preliminary injunction, imposing six mitigation measures that the Navy was required to implement pending completion of an environmental impact statement. The Ninth Circuit upheld the injunction. The Navy, having agreed to implement four of the six mitigation measures, appealed the imposition of the two remaining mitigation measures to the U.S. Supreme Court. The only legal claims remaining when the Navy petitioned for a writ of certiorari were plaintiffs’ NEPA claims. The Supreme Court accepted certiorari and found that due to the balancing of harms and the public interest, issuance of an injunction against the Navy’s use of MFA sonar in their Southern California training exercises was improper. It has now been twenty months since this important decision. This Article examines the current status of the test for obtaining a preliminary injunction in the Ninth Circuit and offers practitioner points on how to approach a request for preliminary injunction post-Winter." (p. 1)