STIRLING and GIESELER: Environmentalists' hysteria loses

By David Stirling and Steven Gieseler

Originally published 11:16 p.m., November 16, 2008, updated 11:16 p.m., November 16, 2008

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Last Wednesday, the United States Supreme Court overturned a 9th U.S. Circuit injunction prohibiting certain Navy training exercises in the Pacific Ocean. The decision was a big win for the Navy and for America´s national security interests.

The court's ruling was an ever bigger victory for the role of common sense in the realm of environmental regulation. After 30 years of the federal courts acting as a rubber stamp for the fear mongering of environmentalist groups, the high court has finally restore a modicum of balance to the law.

As Chief Justice John Roberts explained in the court's opinion, enemies of the United States possess hundreds of nearly silent diesel-electric submarines. These subs are capable - it is their reason for being - of getting deadly weapons within striking distance of their targets without those targets seeing or hearing them.

Cognizant of this threat, the president ordered the military to train to detect these stealth submarines using high-tech sonar. These exercises were going according to plan until a lawsuit filed by several environmentalist groups sought to stop them, alleging that the sonar might harm whales and dolphins in the Pacific. These groups showed no evidence of such harm, but only that it might occur if the sonar training continued.

Amazingly, a federal judge agreed and issued an injunction prohibiting the Navy from continuing to train as it had for some 40 years. The exercises were constrained in scope and duration. In the face of a known and dire threat, a crucial part of national security policy was, for practical purposes until last week, being written by radical environmental interest groups.

This travesty had its roots at the intersection of environmental law and the legal rules governing injunctions. Those rules are old and generally uniform; a party seeking to enjoin some activity must show that the harm from not stopping the activity would be greater than the harm of stopping it. Those asking for injunctions also must show a court that the injunction is in the public's interest.

But in 1978, the Supreme Court tilted the playing field in environmental cases. Where certain threatened species were potentially at risk, the court said in the infamous TVA vs. Hill, protection of these species must take precedence "above all else." Thus, federal courts were given license to issue injunctions regardless of the social or economic value of the activity being prohibited.

For the next three decades, the Endangered Species Act was a virtual super-statute, lording over all other federal and state laws. Using the language of the TVA case, the federal courts would forgo the traditional balancing and public interest tests in injunction cases, signing off on injunctions at the mere invocation of the words "endangered species."

This policy has resulted in several situations rightly called disasters. When the federal government, fearing the catastrophic effects of storm surge from a major hurricane, sought to fortify Louisiana's coastline in the 1970s, environmentalists quickly shut down the project. Claiming the coastal barriers would alter the habitat of local marine life, a group called Save Our Wetlands got a federal court to stop the project. In 2005, Hurricane Katrina exposed the folly of this decision.

Similarly, firefighters in the Pacific Northwest for years have been prohibited from using effective flame retardants to combat deadly forest fires. Environmentalists asked for, and a federal court granted, an injunction against the use of these chemicals, using the "species above all else" ethos to deny the firefighters tools that could save not just property threatened by wildfires, but also the firefighters' very lives.

These cases are vivid examples of an environmental law system entirely out of whack. Tens of thousands of property owners unable to build a home on their own land due to trumped-up environmental concerns, for example, have suffered from this bias toward extreme environmentalism.

With the Supreme Court's sonar decision, a long overdue balance has been restored. The justices signaled an end to the automatic-environmental-injunction mindset that has prevailed for 30 years.

The court treated the case like it would any other involving an injunction, carefully weighing the competing interests without placing a heavy thumb on the scale on the side of the environmentalists.

And with the playing field finally leveled, the Navy won. So, too, did common sense.

M. David Stirling is vice president and Steven Geoffrey Gieseler is a lawyer at the Pacific Legal Foundation, the nation's oldest public interest law group focused on fighting overzealous environmental regulation The foundation filed a brief in the sonar case in support of the Navy. Mr. Stirling is also the author of the new book, "Green Gone Wild: Elevating Nature Above Human Rights" (Merrill Press).

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