Reynolds followed carefully every word, every inflection of the justices’ comments. He listened particularly intently to whatever Kennedy had to say. But the much-scrutinized “swing” justice had learned to keep his cards close to his chest, though he did remark at one point that when the president and the Defense Department “jointly made the determination that this [sonar training] was necessary for the national defense . . . they certainly must be given great weight.”
Thomas, as usual, said nothing at all during the oral arguments, keeping his eyes closed most of the time. The only surprising line of questioning, to Reynolds’ ear, came from Justice Breyer, who they’ d presumed would be friendly to their arguments. At one point, Breyer made a statement that seemed to sum up the government’s national security position more succinctly than the solicitor general had managed to:
JUSTICE BREYER:
Look, I don’t know anything about this. I’m not a naval officer. But if I see an admiral come along with an affidavit that says—on its face, it’s plausible—that you’ve got to train people when there are these layers [in the water], all right, or there will be subs hiding there with all kinds of terrible weapons, and he swears that under oath. And I see on the other side a district judge who just says, “You’re wrong,” I then have to look to see what the basis is, because I know that district judge doesn’t know about it either. So, the basis so far I’m thinking on this one is zero.
MR. KENDALL:
There was also a prior exercise in Hawaii. You will recall from the brief that we had a prior litigation that resulted in the consent decree in [which] the Navy agreed to train with a surface ducting powerdown.* So, they had previously told the same judge that they were capable of training in surface ducting conditions with that powerdown, else they would not have agreed to that decree. The problem that the judge had is that the Navy cannot be judge of its own cause. Deference does have its limits . . .
JUSTICE BREYER:
Generalities. You see, of course, I agree with you as a generality. What I am missing here is the specifics, because I am nervous about it, as you can see. And what I am nervous about is that there just wasn’t enough on the other side, on your side.
Near the end of Kendall’s argument, Breyer interrupted to ask rhetorically, “How does the basic thing work? Because to a layperson, when I think of the armed forces preparing an Environmental Impact Statement, I think, the whole point of the armed forces is to hurt the environment [laughter from the gallery]. I don’t understand how it’s supposed to work. Of course they are going to do something that’s harmful.”
To which Kendall responded without missing a beat: “I think the point of the armed forces is to safeguard our freedoms while causing the least damage possible to our environment.”
And then, at 11:05, the oral arguments were over, and everyone spilled out onto the courtroom steps. Nina Totenberg commandeered a corner of the stairs for her on-camera commentary and an interview with Reynolds. NRDC’s entire team, joined by lawyers for the California Coastal Commission, posed for pictures, and then Reynolds posed with his son.
Being interviewed by Nina Totenberg on the steps of the US Supreme Court following oral arguments in the sonar case, November 8, 2008.
Afterward, the team converged once again at the Paul Hastings conference room for a debrief of the morning’s argument. As seasoned court watchers, they knew it was impossible to predict from the justices’ questions how they would line up on a vote. They’ d just have to wait and see.
* * *
* “Surface ducting” occurs when a concentration of warm water on the surface funnels and amplifies sonar sound signals, as had occurred in the Bahamas during the March 2000 mass stranding.
29
Endgame
On November 4, 2008, almost a month after the Supreme Court arguments, Barack Obama defeated John McCain to become the 44th president of the United States. Reynolds was relieved that President Bush wouldn’t be succeeded by McCain, a former Navy captain whose father and paternal grandfather had both been four-star Navy admirals. Obama would soon be appointing new leadership at all the agencies Reynolds had been warring with for the past decade. And in all likelihood, Obama would someday fill some vacancies in the Supreme Court. But for the time being, the outcome of the sonar case still rested with the current nine justices.
A week later, Reynolds was in Wellington, New Zealand, the first stop in a two-week energy and climate change fact-finding tour with utility executives and state regulators. At 5:05 in the morning, he was awakened by a phone call. His first thought, on reaching for the receiver in the pitch-dark hotel room, was: it’s never good news at five in the morning.
“We lost the sonar case,” said the voice on the other end of the line. It was Mitch Bernard, a close friend and NRDC’s litigation director, calling from the New York office. Bernard gave him a rundown of the ruling the court had just released. It voted 5–4 on one issue, and 6–3 on another. The justices had broken down along predictable lines, with Chief Justice Roberts writing the majority opinion.
Reynolds went down to the front desk to retrieve the full decision that Bernard had faxed over. He took it back upstairs and sat on the edge of his bed to read.
Roberts invoked two presidential quotations to bookend his decision.1 He opened his opinion with George Washington’s statement: “To be prepared for war is one of the most effectual means of preserving peace.” Twenty-four pages later, he closed with Theodore Roosevelt: “The only way in which a Navy can ever be made efficient is by practice at sea, under all the conditions which would have to be met if war existed.”
In between those two calls to arms, Roberts presented his rationale for overturning Judge Cooper’s and the court of appeal’s injunction. His central argument was that “the lower courts failed to properly defer to senior Navy officers’ specific, predictive judgments about how the preliminary injunction would reduce the effectiveness of the Navy’s Southern California training exercises.”
In weighing the “balance of hardships” between the Navy and the plaintiffs, he ruled: “We do not discount the importance of the plaintiffs’ ecological, scientific, and recreational interests in marine mammals. Those interests, however, are plainly outweighed by the Navy’s need to conduct realistic training exercises to ensure that it is able to neutralize the threat posed by enemy submarines.”
The good news, for Reynolds and NRDC, was that in order to convince Justices Kennedy and Stevens to sign on to his majority opinion, Roberts had framed the decision in the narrowest possible terms. The court overturned only two of the six mitigation measures imposed by Judge Cooper’s injunction: the extended safety zone around the sonar ship when marine mammals were sighted, and the “powering down” during surface ducting conditions. The court’s ruling left the other four provisions of the injunction in place.
Justice Ruth Bader Ginsburg wrote an impassioned dissent, which Justice Souter joined.2 “There is no doubt that the training exercises serve critical interests,” she wrote. “But those interests do not authorize the Navy to violate statutory command.” Ginsburg’s dissent was faint consolation to Reynolds, since dissents have no force of law. But they can be cited in subsequent legal arguments, and they can hold sway with judges in later rulings. It didn’t escape Reynolds’ notice that it was four female judges—Laporte on LFA, and Cooper, Fletcher (of the Ninth Circuit Court of Appeals), and Ginsburg on midfrequency—who had shown the grit to stand up to the US Navy in the course of the sonar cases rather than defer to the “predictive powers” of the Navy’s fleet commanders.
Bernard called back to tell Reynolds that NRDC was holding a telephone press conference in an hour. Bernard wanted him on the call to frame the Supreme Court decision in the most positive light and then respond to questions. There was no way to spin the decision as anything other than a setback. But on the soft-landing side, Reynolds could emphasize that the court had chosen not to rule on the broad, more damaging issues the Nav
y had asked it to resolve, including whether preliminary injunctions were allowable in environmental actions to protect individual animals from harm.
The court had narrowly ruled that the public interest lay in securing the strongest military defense rather than in enforcing marine mammal protections. Roberts affirmed the military’s accountability to the law, while granting it an exemption in this instance: “Of course, military interests do not always trump other considerations, and we have not held that they do,” he wrote. “In this case, however, the proper determination of where the public interest lies does not strike us as a close question.”
All in all, Reynolds and Bernard agreed, the court’s opinion was a soft landing that would do little to limit NRDC’s and other groups’ power to litigate against federal agencies in the future.
After the telephone press conference, Reynolds barely had time to shower and dress before boarding a bus for a day of meetings and a tour of a geothermal plant 50 miles out of town. All day long, he conducted interviews via cell phone about the Supreme Court decision with reporters in the United States, Europe, Australia, and New Zealand.3
At 11 o’clock that night, after he’ d finished a final newspaper interview, Reynolds needed to clear his head. He set out for a walk through the hilly streets of Wellington. The colorful Victorian houses were cloaked in a soft, misting rain that reminded Reynolds of San Francisco. Or perhaps he was just homesick. He wished he could be with his kids now, doing something other than thinking about the case he’ d just lost.
As he walked downhill toward the harbor, he emptied his mind of all the rationales and reassurances he’ d been feeding himself, and the media, since dawn. How the odds had been stacked against them once the Supreme Court accepted the case. How he was relieved that they’ d eked out a soft landing. How he was fully satisfied with the case they’ d argued and wouldn’t have done anything differently. How he’ d always reminded his young associates that if you can’t stand to lose big cases, you don’t belong in advocacy law—that if you don’t lose the big ones from time to time, you’re not taking on tough-enough cases, not fighting the most important, most difficult battles. They were all true, in the hollow way that platitudes can describe but not inhabit the truth.
Reynolds had reached the harbor now, and he looked out across Cook Strait to the coastline of South New Zealand. For millennia, herds of humpback, right, minke, and sperm whales had passed through the strait each year on their way from their feeding grounds in Antarctica to their breeding grounds in the South Pacific. During his maiden voyage in 1770, Captain James Cook described the whales off New Zealand as too numerous to count. A hundred years later, dozens of whaling stations lined the shores on either side of the strait, until the right whales were hunted to extinction. In the twentieth century, floating factory ships extended commercial whaling to the extreme southern latitudes, and by the early 1960s, the Japanese, Russian, and New Zealand fleets finally exhausted the stocks of humpbacks and sperm whales.
Each June and July, the Cook Strait was now the site of an annual whale survey to count what was left of the migration. The numbers had been creeping upward since the end of commercial whaling in 1964. In 2007 the survey counted just 25 humpbacks and one southern right whale passing through the strait.
Reynolds wondered if saving the whales was simply a grandiose fantasy. Having barely escaped commercial whaling, were the survivors doomed to be overrun by the ceaseless naval arms race after more and more powerful acoustic weapons? Would judges and politicians continue to defer to admirals in their “balance of hardships” calculations, until there were no more whales left to save?
Reynolds could feel the anger he’ d been staving off all day finally flooding in. The phrases from Roberts’ ruling hammered in his head. They seemed to him less about the law than bare-knuckled politics—like Gore v. Bush eight years earlier, when the court had turned a blind eye to long-established precedent in order to reach a political result. The chief justice of the Supreme Court had the unassailable power to make new law, so long as he could muster a majority. But this was the battleground where he’ d had to stand and fight. So be it.
He didn’t try to soothe his anger. He welcomed it, like an old and trusted ally. He knew that he needed it as fuel and as firepower for the battles that lay ahead.
• • •
A month after the Supreme Court ruling on NRDC v. Winter, Reynolds began negotiating with the Navy’s lawyers. There was, it seemed, always another settlement to negotiate. And in Reynolds’ experience, that’s where he could make tangible progress, mark his position, and draw the future battle lines.
After a year and a half of nonstop litigation over NRDC v. Winter, the lawyers on both sides felt a bit like boxers who had gone 15 bruising rounds without landing a knockout. The Roberts decision had thrown out two of the six safety measures imposed by the lower-court judge, but little had changed in the rules of engagement, and few of the underlying legal or procedural issues had been resolved. In addition, both sides wanted to settle the pending midfrequency sonar case that NRDC had filed back in 2005, which had become mired in discovery motions. Bush was leaving office in six weeks, and no one could predict where President Obama and his new Secretary of the Navy would come down on the environment–versus-defense question.
Reynolds was willing to clear the decks of the sonar cases if he could get commitments on comprehensive Environmental Impact Statements and secure targeted funding for future research. The Navy had already codified a number of important safety measures: exclusion zones around coastlines, biologically important areas, and marine sanctuaries were now institutionalized, as was visual and audio surveillance for whales before and during trainings—although the specifics of the safeguards were still in dispute. He knew he’ d have to leave some issues on the table for future negotiation. But in a few months, he’ d be sitting across from the newly appointed NOAA and Fisheries administrators, who in all likelihood would be more receptive to his point of view.
By the end of the negotiations, the Navy agreed to a schedule for filing comprehensive Environmental Impact Statements for all its training ranges. The Office of Naval Research agreed to earmark $14.75 million over the course of the next three years for research in key beaked whale and other whale habitats in sonar training areas, on methods to improve whale detection, and on effects of sonar-induced stress on marine mammals.
What the Navy leadership and its lawyers wanted most—and what they felt entitled to after finally winning a case in court—was a respite from “death by injunction,” as they had come to refer to NRDC’s litigation tactics. They wanted NRDC to agree to talk first and sue second when disputes arose: specifically, a 120-day cooling-off period during which both sides would try to mediate disputes before going to court. Reynolds was agreeable, so long as he didn’t forfeit any right to sue if mediation failed. He always preferred negotiation over litigation, but he also knew that without the threat of a lawsuit, he had no leverage to negotiate.
When he was finally finished negotiating the settlement, Reynolds felt wrung out. But his anger had receded enough for him to acknowledge what he’ d accomplished. While they’ d suffered a setback, litigating the sonar case in front of the Supreme Court had elevated the topic to a level of national discussion that was unimaginable even a few years earlier. He felt confident they were slowly but surely reining in the Navy’s use of sonar in training exercises. They still had a ways to go to bring the Navy into full compliance with federal laws, but the issues under discussion were like night and day compared with the way the Navy operated back in the mid-1990s, under a veil of secrecy and accountable to no rules but its own. He needed to keep pushing for better safeguards, but the Navy’s obligation to comply with federal environmental laws was no longer in dispute.
Still, Reynolds knew better than to become complacent. He’ d learned that you never truly win a conservation battle—you just win the right to fight another day. Like an alcoholi
c, the environment is never saved. It always needs saving. So do the whales.
• • •
When Ken Balcomb heard about the Supreme Court decision, he was posting flyers up and down the Oregon coastline asking residents to report any killer-whale sightings to the Orca Network website. He found an internet café and logged on to the Supreme Court website to read the decision and the dissents. The last time he’ d read a Supreme Court decision was in a Philosophy of Law class he took as a prelaw undergraduate at Berkeley. Reading the Roberts decision online, he was glad he’ d decided against going to law school. He had to laugh at the idea of Roberts making his case by invoking Teddy Roosevelt—the ultimate warmonger with his “big-stick” gunboat diplomacy. The Supreme Court, in his view, was just another omnipotent gunboat redrawing the legal boundaries as it steamed ahead. Just like Teddy Roosevelt had.
Balcomb believed that the lawsuits had been the right medicine at the right time. It had taken that kind of 4x4 across the forehead to make the Navy see reason and put some limits on its sonar exercises. But he wasn’t convinced that the problem was going to get resolved in the courts. As a Navy veteran who understood military chain of command, Balcomb considered it the responsibility of the president, as commander in chief, to set things straight. The president couldn’t issue the Navy a waiver that exempted it from the law, the way Bush had tried to do. But the president sure as hell could order the fleet to obey the law. Back in the summer of 2000, immediately following the Bahamas stranding, he’ d written President Clinton and asked him to direct Navy Secretary Danzig to permanently exclude known whale habitats from sonar training exercises. He’ d written the same letter to George W. Bush in 2001. Now he would write to the new president and ask him to intervene.
War of the Whales: A True Story Page 39