On January 31, 2013, the Federal Register published a proposed rule that would allow the Navy to harm marine mammals on more than 31 million separate instances from 2014 to 2019. The National Marine Fisheries Service (NMFS) authored the draft rule authorizing the Navy to “take” whales and dolphins during the course of its testing and training exercises along the Atlantic coast, in the Gulf of Mexico, and in waters off of Southern California and Hawaii.
This proposed rule must be understood in the context of the Marine Mammal Protection Act (MMPA), which regulates the “take” of marine mammals in US waters, or by US citizens on the high seas. A take refers to any instance of harassing, injuring, or killing any marine mammal. Under MMPA, NMFS can authorize a limited scope of “incidental takings,” which are takings that occur unintentionally, but not unexpectedly. Most of the takings here would occur as a result of naval sonar exercises, which can cause hearing damage that, if serious enough, would lead to death.
The rule faces strong opposition from private individuals and environmental interest groups. Individuals can submit comments on the proposed rule through the Federal Register website until March 11. The Administrative Procedure Act requires federal agencies to consult the public in rulemaking. In addition to preserving the democratic process, this requirement helps agencies identify potential areas of litigation before they pass the rule. As of February 23, all 54 comments on the rule indicated strong disapproval of the takings authorization.  Moreover, the rule has generated backlash from prominent environmental groups who have successfully brought suits over similar issues in the past.
In particular, the National Resources Defense Council (NRDC) has been actively involved in litigation in this area. They have previously sued the Navy and the Secretary of the Interior on three separate occasions to prevent takings. Their two most recent cases were both decided in 2008, with mixed results.
In Natural Resources Defense Council v. Gutierrez, NRDC sought a preliminary injunction to limit the Navy’s peacetime use of sonar during training after NMFS published a rule authorizing Navy takings in oceans around the world for five years. NRDC argued that NMFS violated the MMPA by authorizing excessive takings and failing to submit information for public comment. The district court in Northern California applied a harms analysis. Under that test, plaintiffs had to show the possibility of irreparable harm without an injunction, and that environmental interests would suffer greater hardship without the injunction than national security interests would suffer with the injunction. The court granted the preliminary injunction, stating that “Environmental injury by its nature can rarely be remedied by money and is likely to be long lasting.”
In Winter v. Natural Resources Defense Council, the Navy appealed the lower courts’ grant of a preliminary injunction. NRDC had sued to enjoin the use of sonar exercises in southern California waters. The Supreme Court reversed and vacated the injunction. Chief Justice Roberts held in his opinion that the alleged injury to marine mammals was outweighed by the public interest and the Navy’s interest in “effective, realistic training of its sailors.”
Despite the precedent set by Winter, the case does not mean that further suits by NRDC over this issue are doomed to failure. The majority opinion and Justice Ginsburg’s dissent suggested that a preliminary injunction would be more likely to be upheld if it were sufficiently narrowly tailored. In stating that an injunction must be crafted to “provide mitigation conditions under which the Navy may conduct its training exercises,” the justices provided a valuable insight to parties wishing to initiate MMPA suits in the future.  An example of such an injunction would be one that allows the Navy the minimum possible distance from a marine mammal before a ship is required to shut down its sonar. Taking a lesson from Winter, NRDC or any parties wishing to bring suit should seek similar injunctions that will allow the Navy to continue with its exercises, while protecting marine mammals as much as possible.
—Angela Xu is a General Member of MJEAL. She can be reached at firstname.lastname@example.org.
The views and opinions expressed in this blog are those of the authors only and do not reflect the official policy or position of the Michigan Journal of Environmental and Administrative Law or the University of Michigan.
 Takes of Marine Mammals Incidental to Specified Activities, Federal Register, https://www.federalregister.gov/ articles/2013/01/31/2013-01808/takes-of-marine-mammals-incidental-to-specified-activities-us-navy-training-and-testing-activities (last visited Feb. 24, 2013).
 16 U.S.C.A. § 1371
 U.S. Navy Training and Testing Activities in the Hawaii-Southern California Training and Testing Study Area, Regulations.gov, http://www.regulations.gov/#!docketBrowser;rpp=100;so=DESC;sb=docId;po=0;dct=PS;D= NOAA-NMFS-2013-0025 (last visited Feb. 24, 2013).
 Natural Resources Defense Council v. Gutierrez. No. C-07-04771 EDL, 2008 U.S. Dist. LEXIS 8744, at *2 (N.D. Cal. Feb. 6, 2008).
 Id. at *8.
 Winter v. Natural Resources Defense Council, 129 S.Ct. 365, 366 (2008).
 Id. at 386.