Wednesday, October 8, 2008

Separation of Powers in Winter v. NRDC

Can an executive agency nullify a federal court preliminary injunction designed to protect marine life? 

This question--along with the issue of whether the plaintiffs satisfied the standard for a preliminary injunction--was on display yesterday at the Court in oral arguments in Winter v. NRDC.  The case started with a federal district court preliminary injunction limiting the Navy's use of sonar in its exercises off southern California in order to protect marine life.  The Council on Environmental Quality (CEQ)--"more or less an office in the White House," according to Chief Justice Roberts--ruled the injunction an "emergency" pursuant to its regulatory authority and waived it.  The Ninth Circuit remanded in light of this development; the district court stood its ground; and the Ninth Circuit ultimately affirmed the preliminary injunction.  Thus the separation-of-powers question: Can the CEQ nullify a preliminary injunction issued by a federal court?

(In addition to the separation-of-powers issue, counsel for the NRDC may have opened up a standing question in arguing irreparable harm (on the preliminary injunction).  Justice Scalia noted that harm for the preliminary injunction is the same as harm for standing, and the NRDC might not have it.  That's because the NRDC sued in part on the ground that the Navy failed to comply with the National Environmental Policy Act (NEPA) by not issuing an Environmental Impact Statement (EIS)--a procedural harm, which, as Justice Scalia noted, "is not the kind of harm that gives rise to Article III standing.")

Professors Small, Varat, and Winkler of UCLA Law School filed an outstanding amicus brief on the separation-of-powers question; it's well worth a read.  The oral argument transcript is here; check out pages 12 to 24 and 44 to 46 on separation-of-powers; and check out pages 50 to 55 on standing.


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