Susan Jane Brown* & Rachel Fazio**
[ Click Here to Comment ]
[ download PDF ]
<<< See Update, January 25, 2011, Below >>>
Introduction
On November 12, 2008, the U.S. Supreme Court issued a ruling on Winter v. Natural Resources Defense Council (Winter).[1] The Winter case originated in March of 2007[2] in the Central District of California when multiple environmental groups challenged the Navy’s issuance of an environmental 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),[3] Endangered Species Act,[4] and Coastal Zone Management Act of 1972,[5] 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.[6] After several proceedings at both the district court and Ninth Circuit,[7] 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.[8] The Ninth Circuit upheld the injunction.[9] 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.[10] The only legal claims remaining when the Navy petitioned for a writ of certiorari were plaintiffs’ NEPA claims.[11] 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.[12]
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.
Continue reading "Preliminary Injunctive Relief in the Ninth Circuit after Winter v. Natural Resources Defense Council" »
Bruce Wagman & Lisa McCurdy*
[ Click Here to Comment! ]
[ download PDF ]
Sometimes procedural rulings allow courts to avoid important
decisions that would otherwise make social and ethical declarations about the
duality of American values with respect to animals. Stark evidence of that
comes with the recent Ninth Circuit opinion in Levine v. Vilsack.[1]
The Ninth Circuit ruled only that plaintiffs had no standing to sue because
they did not meet the “redressability” requirement of standing under Article
III, Section 2 of the U.S. Constitution.[2] With
this holding, the opinion may signal a new hurdle for plaintiffs to clear. The
opinion also leaves in place a federal policy that has mandated the humane
treatment of animals before they are slaughtered for food for over fifty years,
but applies it to only one out of every ten animals who reach the
slaughterhouse. The opinion thus delivers two unfortunate messages. As a
nation, we care about animals—but not 90 percent of them. And if you are
working to protect animals in the courts, that work could become more
difficult.
Continue reading "Levine v. Vilsack: When “Likely” Actually Means “Definitely”" »
Recent Comments