SCELP Reply to Federal Defendant’s and Intervenor-Defendants’ Responses to Motion for Preliminary Injunction.

SCELP Reply to Federal Defendant’s and Intervenor-Defendants’ Responses to Motion for Preliminary Injunction.

2:18-cv-03326-RMG            Date Filed 03/27/19 Entry Number 241     Page 1 of 18

 

UNITED STATES DISTRICT COURT

 

FOR THE DISTRICT OF SOUTH CAROLINA

 

CHARLESTON DIVISION

 

CITY OF BEAUFORT; et al., )
) No. 2:18-cv-03326-RMG
) (Consolidated with 2:18-cv-03327-RMG)
Plaintiffs, )
) REPLY TO FEDERAL
v. )
) DEFENDANTS’ AND
NATIONAL MARINE FISHERIES SERVICE; et ) INTERVENOR-DEFENDANTS’
al., ) RESPONSES TO MOTION FOR
) PRELIMINARY INJUNCTION
Defendants. )
)
)
SOUTH CAROLINA COASTAL )
CONSERVATION LEAGUE; et al., )
)
Plaintiffs, )
)
v. )
)
WILBER ROSS, in his official capacity as )
secretary of commerce; et al., )
)
Defendants. )
)
)

 

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TABLE OF CONTENTS

 

Table of Authorities……………………………………………………………………………………………………………………………………………. ii

 

Argument……………………………………………………………………………………………………………………………………………………………….. 1

 

  1. The Plaintiffs Have Established Irreparable Harm………………………………………………………………………. 1

 

  1. Defendants’ Own Decision Documents Evidence Harm……………………………………………… 1

 

  1. The Harms are Irreparable and No Adequate Remedy Exists…………………………………….. 4

 

  1. Harm from Munitions Disturbance Was Timely Presented to NMFS……………………… 8

 

  1. The Public Interest at Stake………………………………………………………………………………………………………………… 9

 

III.        Likelihood of Success on the Merits………………………………………………………………………………………………. 12

 

Conclusion…………………………………………………………………………………………………………………………………………………………… 14

 

i

 

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TABLE OF AUTHORITIES

 

CASES:

 

All. for the Wild Rockies v. Christensenm 663 F. App’x 515 (9th Cir. 2016)……………………………………. 9

 

All. for the Wild Rockies v. Krueger, 950 F. Supp. 2d 1196 (D. Mont. 2013)………………………………….. 9

 

Amoco Prod. Co. v. Vill. of Gambell, AK

 

480 U.S. 531, 107 S.Ct. 1396, 94 L.Ed.2d 542 (1987)………………………………………………………………. 4

 

Animal Welfare Inst. v. Martinm 588 F. Supp. 2d 70 (D. Me. 2008)…………………………………………………… 6

 

American Rivers v. U.S. Army Corps of Eng’rs, 271 F.Supp.2d 230, (D.D.C.2003)……………………….. 5

 

Big Country Foods, Inc. v. Bd. of Educ., 868 F.2d 1085, 1088 (9th Cir. 1989)………………………………… 6

 

Biodiversity Legal Found. v. Badgley, 309 F.3d 1166 (9th Cir. 2002)………………………………………………… 9

 

Cottonwood Envtl. Law Ctr. v. U.S. Forest Serv., 789 F.3d 1075 (9th Cir. 2015)…………………………… 5

 

Defenders of Wildlife v. Salazar, 812 F.Supp.2d 1205 (D. Mont. 2009)……………………………………………… 6

 

Fish v. Kobach, 840 F.3d 710, 751–52 (10th Cir. 2016)…………………………………………………………………………. 4

 

Friends of the Earth v. United States Navy, 841 F.2d 927 (9th Cir.1988)………………………………………….. 9

 

Hughes River Watershed Conservancy v. Johnson, 165 F.3d 283 (4th Cir. 1999)………………………… 13

 

Janmort Leasing, Inc. v. Econo-Car International, Inc.

 

475 F.Supp. 1282 (E.D.N.Y.1979)………………………………………………………………………………………………….. 7

 

Kwo Lee, Inc. v. U.S.,24 F. Supp. 3d 1322 (Ct. Int’l Trade 2014)……………………………………………………….. 4

 

Loggerhead Turtle v. Cnty. Council of Volusia Cnty. Fla.

 

896 F.Supp. 1170 (M.D. Fla. 1995)…………………………………………………………………………………………………. 4

 

Marbled Murrelet v. Babbitt, 83 F.3d 1068 (9th Cir. 1996)…………………………………………………………………… 8

 

Nat’l Wildlife Fed’n v. Burlington N. R.R., Inc., 23 F.3d 1508 (9th Cir.1994)………………………………….. 9

 

Nat’l Wildlife Fed’n v. Nat’l Marine Fisheries Serv.

 

422 F.3d 782 (9th Cir. 2005)…………………………………………………………………………………………………………….. 5

 

 

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Northwest Evntl. Def. Ctr. v. U.S. Army Corps of Engineers

 

817 F.Supp.2d 1290 (D. Or. 2011)………………………………………………………………………………………………….. 6

 

Penn v. San Juan Hospital, Inc., 528 F.2d 1181 (10th Cir.1975)………………………………………………………….. 4

 

Red Wolf Coal. v. United States Fish & Wildlife Serv.

 

210 F. Supp. 3d 796 (E.D.N.C. 2016)……………………………………………………………………………………………… 5

 

Roso-Lino Beverage Distributors, Inc. v. Coca-Cola Bottling Co.

 

749 F.2d 124 (2d Cir.1984)……………………………………………………………………………………………………………….. 6

 

Sampson v. Murray, 415 U.S. 61, 94 S.Ct. 937, 39 L.Ed.2d 166 (1974)…………………………………………. 10

 

Sierra Club v. Marsh, 816 F.2d 1376 (9th Cir.1987)……………………………………………………………………………….. 8

 

Swan View Coal., Inc. v. Turnerm 824 F.Supp. 923 (D.Mont.1992)…………………………………………………… 5

 

Tennessee Valley Authority v. Hillm 437 U.S. 153, 98 S.Ct. 2279,

 

57 L.Ed.2d 117 (1978)……………………………………………………………………………………………………………………… 8, 10

 

Virginia Petroleum Jobbers Ass’n v. FPC, 259 F.2d 921 (D.C. Cir. 1958)……………………………… 10, 13

 

Western Watersheds Project v. Salazar, 692 F.3d 921 (9th Cir. 2012)…………………………………………….. 11

 

Yurok Tribe v. United States Bureau of Reclamation,

 

231 F. Supp. 3d 450 (N.D. Cal. 2017)………………………………………………………………………………………………. 6

 

STATUTES:

 

16 U.S.C. § 1532(19)…………………………………………………………………………………………………………………………………………. 5

 

16 U.S.C. § 1361(2)……………………………………………………………………………………………………………………………………………. 5

 

OTHER AUTHORITIES:

 

11A Fed. Prac. & Proc. Civ. § 2948.1 (3d ed.)…………………………………………………………………………………………… 1

 

Inkelas, Daniel, “Security, Sound, and Cetaceans: Legal Challenges to Low Frequency

 

Active Sonar Under U.S. and International Environmental Law,”

 

37 Geo. Wash. Int’l L. Rev. 207 (2005)………………………………………………………………………………………….. 2

 

Taylor, Avalyn, “Rethinking the Irreparable Harm Factor in Wildlife Mortality Cases,”

 

2 Stan. J. Animal L. & Pol’y 113 (2009)…………………………………………………………………………………… 5, 10

 

 

iii

 

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ARGUMENT

 

Plaintiffs City of Beaufort, City of Charleston, City of Folly Beach, City of Isle of Palms,

City of North Myrtle Beach, Town of Bluffton, Town of Briarcliffe Acres, Town of Edisto Beach,

Town of Hilton Head Island, Town of James Island, Town of Kiawah Island, Town of Mount

Pleasant, Town of Pawleys Island, Town of Port Royal, Town of Seabrook Island, and Town of

Awendaw (collectively “Municipalities”), and South Carolina Small Business Chamber of

Commerce (“Chamber”) hereby reply to the Federal Defendants’ and Intervenor-Defendants’

Opposition to Plaintiffs’ Motion for Preliminary Injunction, ECF No. 124.

 

1. The Plaintiffs Have Established Irreparable Harm

 

“Perhaps the single most important prerequisite for the issuance of a preliminary injunction

is a demonstration that if it is not granted the applicant is likely to suffer irreparable harm before a

decision on the merits can be rendered.” 11A Fed. Prac. & Proc. Civ. § 2948.1 (3d ed.).

 

                 A. Defendants’ Own Decision Documents Evidence Harm

 

At base, NMFS’ conclusion that seismic testing activities are likely to adversely affect ESA-

listed cetaceans and sea turtles is sufficient to establish that harm will occur. BiOp 148-171; AR

  1. If the seismic testing would cause no harm, then Incidental Harassment Authorizations would

be unnecessary. That seismic testing causes harm is readily acknowledged and documented:

A wide range of human- made noises significantly affects marine mammals, including: transportation (aircraft as well as ocean-going vessels); marine dredging and construction; oil and gas drilling and production; geophysical and other scientific surveys; and commercial and military explosives. Of these noises, the loudest–and therefore most worthy of concern–are explosions, powerful sonars, and airguns or other devices used in seismic surveys.

 

1

 

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Daniel Inkelas, “Security, Sound, and Cetaceans: Legal Challenges to Low Frequency Active Sonar Under U.S. and International Environmental Law,” 37 Geo. Wash. Int’l L. Rev. 207, 210 (2005). In this case, the harms are well-founded and stem from numerous undisputed facts.1

No dispute exists that North Atlantic right whales are on the brink of extinction. NMFS recognizes as much in its decision document, stating that right whales “continue to face very high risks of extinction because of their small population sizes and low population growth rates,” noting that many of these whales are already in “poor health.” BiOp at 126 & 190, ECF 124-34. No dispute exists that seismic testing results in changes in vocalizations, auditory injuries, movements away from sound sources, and disruption of important behaviors like feeding and mating. ECF No. 221, p. 22. Indeed, NMFS draws the conclusion that 23 right whales, 10 sei whales, 2,058 fin whales, 5 blue whales, and 7,917 sperm whales will experience “Level B” exposure, i.e., “disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering.” BiOp pp. 159 & 148, ECF 124-34. No dispute exists that such harm is, in the Federal Defendants’ words, “likely to result in serious impacts to individual animals.” ECF No. 221, pp. 22-23.

__________

1The Intervenor-Defendants largely fail to address the harms identified throughout the BiOp, from behavioral responses to sound-induced hearing loss. Instead, they assert that “Since 2014, at least five seismic surveys have been authorized in the Atlantic OCS, again with no demonstration of any impact;” however, the two references cited provide no support for such this claim. ECF No. 223, p. 9. Presumably, Intervenor-Defendants’ claim is limited to economic impacts, as impacts to marine species is well-documented.

 

2

 

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No dispute exists that the seismic surveys will result in reductions in prey availability. ECF No. 221, p. 27. And the Federal Defendants recognize that the “most likely effects to fisheries would be temporary behavioral responses to acoustic sound sources.” ECF No. 221, p. 33.

The only marine mammal harm argument challenged by the Intervenor-Defendants relates to dolphins. Intervenor-Defendants dispute negative impacts to the dolphin population and consequently any impact on the ecotourism industry; however, NMFS acknowledges negative impacts to dolphin species. “Loud sounds generally increase stress indicators in mammals (Kight and Swaddle 2011). Romano et al. (2004) found that beluga whales and bottlenose dolphins exposed to a seismic watergun (up to 228 dB re: 1 µPa m peak-to-peak and single pure tones up to 201 dB re: 1 µPa) had increases in stress chemicals, including catecholamines, which could affect an individual’s ability to fight off disease.” ECF No. 124-34 at p. 182. Further, though the bottlenose dolphin resides in relatively close proximity to the coast and the IHAs have a closure zone of 30km, the applicants submitted documentation to NMFS recognizing many other species of dolphins that reside much farther offshore and within the survey area. See Request for Ion Geoventures for an Incidental Harassment Authorization, AR at 2376. Many of those species periodically move closer to the coast during certain times of the year. Id. This challenged seismic testing activity will most certainly negatively affect these dolphin species, driving them away from the area and consequently harming the ecotourism businesses that have submitted declarations in this case. Further, the documented behavioral responses of driving fish away would harm fishermen’s ability to catch them. See Baumann Decl. at p. 2, ECF 143-8; Tecklenberg Decl. at p. 2, ECF 143-9; Keyserling Decl. At p. 6, ECF 143-3; Wright Decl. at p. 3, ECF 143-5; BiOp, ECF 124-34. It is exactly these harms that Plaintiffs are concerned with.

3

 

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                          B. The Harms are Irreparable and No Adequate Remedy Exists

The question then becomes whether these harms are irreparable. Harm is “irreparable,” as required to support a motion for a preliminary injunction, when no damages award, however great, can address the harm. 42 Am. Jur. 2d Injunctions § 35 (citing Kwo Lee, Inc. v. U.S., 24 F. Supp. 3d 1322 (Ct. Int’l Trade 2014)). Although irreparable harm does not readily lend itself to definition, “a plaintiff must demonstrate a significant risk that he or she will experience harm that cannot be compensated after the fact by money damages.” Fish v. Kobach, 840 F.3d 710, 751–52 (10th Cir. 2016); see also 11A Fed. Prac. & Proc. Civ. § 2948.1 (3d ed.) (when the threatened harm would impair the court’s ability to grant an effective remedy, preliminary relief is warranted). “[I]n addressing what constitutes irreparable harm, the purpose of a preliminary injunction should be taken into account. The preliminary injunction is designed to preserve the Court’s power to render a meaningful decision. Penn v. San Juan Hospital, Inc., 528 F.2d 1181, 1185 (10th Cir. 1975). In cases alleging substantive or procedural violations of the ESA, a court does not have traditional equitable discretion and instead “any threatened harm is per se irreparable harm and … public interest always favors the imposition of an injunction.”Loggerhead Turtle v. Cnty. Council of Volusia Cnty. Fla., 896 F.Supp. 1170, 1178 (M.D. Fla. 1995).

The harms described by the Municipal Plaintiffs, the Environmental Plaintiffs and the Intervenor State of South Carolina are precisely the type that necessitate injunctive relief. Amoco Prod. Co. v. Vill. of Gambell, AK, 480 U.S. 531, 545, 107 S.Ct. 1396, 94 L.Ed.2d 542 (1987) (“[e]nvironmental and aesthetic injuries by their nature are not adequately remedied by money damages, have permanent or long-lasting effects, and are thus properly the subject of injunctive

 

4

 

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relief”). The Defendants fail to explain how the Court could possibly fashion a remedy for the authorized harm, from behavioral changes, to hearing loss, to a possible increase in marine mammal mortality. Sakashita Decl. at ¶8, ECF 124-26; Tyack Decl. at ¶9 124-6; Kraus Decl. at ¶23, ECG 124-2. Indeed, there is no adequate remedy at law for the loss of or harm to endangered species. Cottonwood Envtl. Law Ctr. v. U.S. Forest Serv., 789 F.3d 1075, 1090 (9th Cir. 2015); see also Red Wolf Coal. v. United States Fish & Wildlife Serv., 210 F. Supp. 3d 796 (E.D.N.C. 2016).

The Federal Defendants simply brush these harms aside based on their conclusion that those harms will not result in “population-level consequences” or are otherwise insignificant. ECF No. 221, pp. 22-23, 27. The law does not require extinction-level harm advocated by the Defendants.2 Instead, courts look to the “primary goals of a given statute to define the scope and nature of the harm to be considered in the irreparable harm analysis.”3 Taylor, Avalyn, “Rethinking the Irreparable Harm Factor in Wildlife Mortality Cases,” 2 Stan. J. Animal L. & Pol’y 113, 134 (2009).

______________________

2Notwithstanding Federal Defendants’ flawed argument, Plaintiffs assert that population-level harm is likely, as discussed in both the BiOp and the Environmental Plaintiffs’ declarations in support of motion for preliminary injunction.

3In this case, the ESA’s purpose is to prohibit “take” of any endangered species, including harm, harassment or injury. 16 U.S.C. §1532(19). Under the MMPA, marine mammal “species and population stocks should not be permitted to diminish beyond the point at which they cease to be a significant functioning element in the ecosystem of which they are a part, and, consistent with this major objective, they should not be permitted to diminish below their optimum sustainable population.” 16 U.S.C. § 1361(2).

 

5

 

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“In light of the emphasis Congress placed in the ESA on preventing harm to individual animals as well as to entire species, there should be a presumption that actions that would result in the loss of any members of endangered species would cause irreparable harm.” Id. at 137. See National Wildlife Federation v. NMFS, 886 F.3d 803, 819 (9th Cir. 2018) (“threat of harm to a listed species that falls below an imminent extinction threat can justify an injunction”); American Rivers v. U.S. Army Corps of Eng’rs, 271 F.Supp.2d 230, 258–59 (D.D.C. 2003) (injunction may issue if the number of individuals likely to be taken as a result of agency action during the time it will take to conclude the litigation will cause ‘significant’ harm to the species, even if there is ‘not the remotest possibility that the planned agency activity … would eradicate the species’); Swan View Coal., Inc. v. Turner, 824 F.Supp. 923, 938 (D.Mont. 1992) (“threatened extinction not necessary for a finding of harm under the ESA”). It is not necessary to show harm to the “species as a whole” to obtain an injunction. Yurok Tribe v. United States Bureau of Reclamation, 231 F. Supp. 3d 450, 481 (N.D. Cal. 2017) (citing Big Country Foods, Inc. v. Bd. of Educ., 868 F.2d 1085, 1088 (9th Cir. 1989)).

The Federal Defendants rely on unpersuasive cases, particularly in light of the explicit recognition that threatened extinction is not required. In Defenders of Wildlife v. Salazar, 812 F.Supp.2d 1205 (D. Mont. 2009), the Plaintiffs presented no evidence of irreparable harm. That is not the case here, particularly where the very nature of the decisions at issue evidence harm, which is supported by both the BiOp and the robust and thorough declarations submitted by all Plaintiffs. In Northwest Evntl. Def. Ctr. v. U.S. Army Corps of Engineers, 817 F.Supp.2d 1290 (D. Or. 2011), the court found that harm from “undefined future plans” was “speculative” in declining to grant injunctive relief. Id. 1314. Again, that is not the case here where the seismic testing plans are definitive and the authorized harm imminent.

 

6

 

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The Intervenor-Defendants’ refutation of the harm focuses primarily on harm to Plaintiffs’ economic interests in ecotourism and fisheries, essentially amounting to disagreement with the Plaintiffs’ declarations. But the potential loss of a business satisfies the irreparable harm requirement for the issuance of an injunction, and demonstrates the inadequacy of a remedy at law. Roso-Lino Beverage Distributors, Inc. v. Coca-Cola Bottling Co., 749 F.2d 124, 125–26 (2d Cir. 1984); see also Janmort Leasing, Inc. v. Econo-Car International, Inc., 475 F.Supp. 1282, 1294 (E.D.N.Y.1979) (loss of business not compensable in monetary terms and not reducible to monetary value). The Plaintiffs presented credible evidence, based in part on NMFS’ own decision documents, that they would experience a loss of business if the seismic testing activities proceed. Wright Decl. ECF No. 143-5, Collins Decl. ECF No. 143-6; Baumann Decl. ECF No. 143-8.

The Federal Defendants argue a lack of irreparable or imminent harm because BOEM has not yet issued its final permitting decisions. The Federal Defendants take the position that enjoining the IHAs is premature because the issuance of the IHAs does not actually trigger the activity that will cause the complained-of harm. This argument is without merit for two reasons. First, the Plaintiffs need not wait for the final nail to be driven in the coffin before seeking injunctive relief. The Court can and should enjoin the NMFS decisions, which are a necessary prerequisite to the BOEM permits. No dispute exists that Plaintiffs could allege harm subsequent to the issuance of the BOEM permits. The issuance of those permits is imminent. Bernard Decl. ECF 124-32 (“based on the representations made by acting director Walter D. Cruickshank, see ECF No. 72-1 para 8, it is my understanding that BOEM will issue permits to the five survey companies as early as March 1, 2019.”). Miller Decl, ECF No. 216 (‘it is possible, although unlikely, that the first survey could begin 30 days after BOEM issues permits”). From a practical standpoint, whether the Plaintiffs

 

7

 

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present the Court with this motion now, or 30 or 60 days from now, is of no significant import. The Plaintiffs seek injunctive relief now because the issuance of the BOEM permits is imminent, and they seek a decision before commencement of the seismic testing activity.

 

                                      C. Harm from Munitions Disturbance Was Timely Presented to NMFS

The Defendants’ falsely state that the concern regarding munitions disturbance “was not raised to NMFS during the administrative process.” ECF No. 221, p. 35. In fact, James Barton, a munitions expert and Defense Wastes Policy Advisor submitted detailed comments to NMFS through its webportal regarding the dangers of munitions disturbance resulting from seismic testing on July 18, 2017.4 Exhibits A & B. The comment period closed on July 21, 2017. 82 Fed. Reg. At 31,048; AR 648. Specifically, Barton explained that seismic airguns “have ample power to disrupt severely corroded yet otherwise stable concentrations of sea dumped munitions, thereby inviting dispersal of fragmented chemical weapon filler content” which cause chemical burns to dolphins, beachgoers and fishermen who encounter these fragmented munitions. Exhibit B.

The Federal Defendants’ failure to consider and address concerns raised by a federal defense analyst with expertise in ocean munitions is another example of its failure to comply with NEPA’s requirements, see Section III below.

_______________________

4Plaintiffs note that the Federal Defendants’ failure to include Mr. Barton’s comment letter as part of the Administrative Record, as well as numerous other submissions to the agency, represents a serious deficiency in the Administrative Record for which the Plaintiffs intend to rectify through agreement or by motion, if necessary.

 

8

 

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II. The Public Interest at Stake

Under the Endangered Species Act, the third and fourth factors always tip in favor of protecting the species. Tennessee Valley Authority v. Hill, 437 U.S. 153, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978). “Congress has spoken in the plainest of words, making it abundantly clear that the balance has been struck in favor of affording endangered species the highest of priorities.” Id. at 194.  Because “the balance of hardships and the public interest tip heavily in favor of endangered species . . . [the court] may not use equity’s scales to strike a different balance.” Sierra Club v. Marsh, 816 F.2d 1376, 1383 (9th Cir.1987); see also Marbled Murrelet v. Babbitt, 83 F.3d 1068, 1073 (9th Cir.1996) (“Congress has determined that under the ESA the balance of hardships always tips sharply in favor of endangered or threatened species.”)

“In cases involving the ESA, Congress removed from the courts their traditional equitable discretion in injunction proceedings of balancing the parties’ competing interests.” Nat’l Wildlife Fed’n v. Burlington N. R.R., Inc., 23 F.3d 1508, 1511 (9th Cir.1994) (citing Friends of the Earth v. United States Navy, 841 F.2d 927, 933 (9th Cir.1988)). ESA cases require the Court to balance the evidence of harm presented by the plaintiff and agency. If this balancing is a close question, then the Court should err on the side of protection and issue an injunction. See Natl. Wildlife Fedn., 23 F.3d at 1510–11. All. for the Wild Rockies v. Krueger, 950 F. Supp. 2d 1196, 1203 (D. Mont. 2013), aff’d sub nom. All. for the Wild Rockies v. Christensen, 663 F. App’x 515 (9th Cir. 2016).

The balance of harms and the public interest are intertwined in this case where the Federal Defendants have authorized harassment to marine species. The Federal Defendants’ citation to case law that the balancing of the equities requires injury to the parties and not the environment (ECF No.

 

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221, p. 68) is misplaced in the context of a Endangered Species Act and Marine Mammals Protection Act where the statutes’ purpose is to protect certain listed species. In the context of the ESA, “the test for determining if equitable relief is appropriate is whether an injunction is necessary to effectuate the congressional purpose behind the statute.” Biodiversity Legal Found. v. Badgley, 309 F.3d 1166, 1177 (9th Cir.2002) (citing TVA, 437 U.S. at 194, 98 S.Ct. 2279); see also Taylor, “Rethinking the Irreparable Harm Factor in Wildlife Mortality Cases,” 2 Stan. J. Animal L. & Pol’y 113 (2009). Courts have held that injunctive relief was necessary to effectuate Congress’s clear intent by requiring compliance with the substantive and procedural provisions of the ESA. Biodiversity Legal Found. at 1177 (holding that the district court was “compelled” to grant injunctive relief to remedy a violation of the ESA); Sierra Club, 816 F.2d at 1384 (holding that the Sierra Club was entitled to injunctive relief if the agency violated substantive or procedural provisions of the ESA).

NMFS takes the unfounded position that time spent on doing its job amounts to harm that should weigh in its favor as the Court balances the equities. ECF No. 221, p. 69. Plaintiffs have not uncovered any case where a court found that an agency’s “time and effort” to execute its statutory duties should be given weight in balancing the equities. And Federal Defendants cite none. Just the opposite: “Mere injuries, however substantial, in terms of money, time and energy necessarily expended in the absence of a stay are not enough.” Sampson v. Murray, 415 U.S. 61, 90, 94 S.Ct. 937, 952–53, 39 L.Ed.2d 166 (1974) (footnotes omitted) (quoting Virginia Petroleum Jobbers Ass’n v. FPC, 259 F.2d 921, 925 (D.C.Cir. 1958)).

 

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Federal Defendants misunderstand Plaintiffs’ arguments with respect to public opposition. Plaintiffs assert that the public interest is best expressed through the actions and decisions of local government, who are most directly accountable to their constituents. When every single one of these local governing bodies in coastal South Carolina has passed a resolution opposing seismic testing, and sixteen of those governing bodies became Plaintiffs in this lawsuit, the “public” has spoken loudly and clearly through their elected officials. See ECF No. 143-14. Such overwhelming evidence of public interest outweighs the agency’s “time and effort” in simply doing its job.

Federal Defendants cite to Western Watersheds Project v. Salazar, 692 F.3d 921 (9th Cir. 2012), arguing that the public interest supports exploration of oil and gas resources off the OCS. ECF No. 221, p. 70. Without discussion of the environmental harm at stake, the Ninth Circuit found that the “district court properly weighed the environmental harm posed by the [solar generating] project against the possible damage to project funding, jobs, and the state and national renewable energy goals that would result from an injunction halting project construction, and concluded that the balance favored Appellees.” Id. at 923. Indeed the court in Western focused on the fact that the project would meet the goals of “increasing the supply of renewable energy . . . [and] reducing fossil fuel use.” Id. (emphasis added). Plaintiffs assert that the seismic testing authorizations at issue will do the opposite of increasing renewable energy and reducing fossil fuel use.

Moreover, the Federal Defendants’ assertions that seismic data is needed to help BOEM balance the nation’s energy portfolio (ECF No. 221, p. 70) should be given little weight considering that the nation is presently a net exporter of oil. Exhibit C, Rueters article.

 

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III.  Likelihood of Success on the Merits

 

The Plaintiffs incorporate the arguments contained in the Environmental Plaintiffs’ reply to the Federal Defendants’ response on the issue of likelihood of success on the merits contained in ECF No. 233.

In addition, the Plaintiffs point to serious flaws in the agency’s decision-making. The Federal Defendants acknowledge that NMFS may not have used the best methodologies for assessing behavioral responses. ECF No. 221, p. 48. The Federal Defendants also acknowledge temporal and spatial uncertainty of the seismic vessels and marine mammals. ECF No. 221, p. 52. Yet the Federal Defendants resolve that uncertainty against the marine mammals the agency is charged with protecting in concluding that threshold exposure would occur only “once across all IHAs/permits.” ECF No. 221, p. 51, citing AR 2171 & 2137. The agency’s conclusion begs the question: What is the threshold for the number of individual IHAs/permits where the agency would expect to see threshold exposure to a marine mammal occur more than once? Under NMFS’s analysis, an unlimited number of IHAs/permits could be authorized yet the 160 decibel threshold exposure would only affect any individual marine mammal one single time, and only for a day, despite five separate and distinct authorizations

The Intervenor-Defendants submitted the Declaration of Robert Gisiner, ECF No. 214, who unsurprisingly is employed by the International Association of Geophysical Contractors (“IAGC”). IAGC is association of geophysical contractor companies who conduct seismic testing, and whose members include all of the companies seeking to implement their IHAs in this case. One of Dr. Gisiner’s main duties as an employee of IAGC is to develop and produce scientific documentation

 

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specifically for the purpose of obtaining IHAs and other approvals for seismic testing companies. ECF No. 214 at para. 3. The self-serving opinions of an expert whose livelihood depends on being successful in efforts to obtain permits for geophysical testing companies deserves little weight, particularly when the Environmental Plaintiffs provided opinions of 5 experts, each with particularized expertise in their respective fields.

With respect to the concerns raised by James Barton regarding disruption and dispersal of munitions resulting from seismic testing, NMFS failed to comply with NEPA. The very purpose of the environmental due process protection afforded by NEPA is eradicated if a federal agency makes a decision without proper consideration of the environmental impacts of the proposed project, and then that project is irreparably completed prior to judicial review. See Sierra Club, et al. v. Marsh, 872 F.2d 497 (1st Cir.1989). When concerns are brought before the agency, NEPA requires it to “examine[] the relevant data and provide[] an explanation of its decision that includes a rational connection between the facts found and the choice made.” Ohio Valley Envtl. Coal. v. Aracoma Coal, 556 F.3d 177, 192 (4th Cir. 2009). The agency, and the court, cannot selectively brush aside those serious concerns. Instead, the agency must (1) take a “hard look” at the environmental impacts and (2) provide a rational explanation for the choices it made. Id. The “hard look” requires the agency to “give careful scientific scrutiny to all legitimate concerns that are raised.” Hughes River Watershed Conservancy v. Johnson, 165 F.3d 283, 288 (4th Cir. 1999). Where, as here, the agency failed to consider these legitimate concerns, much less given them any scientific scrutiny, its decision is arbitrary and capricious. Id.

 

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2:18-cv-03326-RMG            Date Filed 03/27/19 Entry Number 241    Page 18 of 18

 

CONCLUSION

Municipal Plaintiffs along with Plaintiff Small Business Chamber of Commerce respectfully requests this Court grant their motion for a preliminary injunction.

 

s/Amy E. Armstrong

Amy E. Armstrong (ID # 9625)

Leslie S. Lenhardt (ID #

SOUTH CAROLINA ENVIRONMENTAL LAW

PROJECT

 

Mailing address:            Post Office Box 1380

Pawleys Island, SC 29585

Office address:               430 Highmarket Street

Georgetown, SC 29440

Telephone          (843) 527-0078

FAX                     (843) 527-0540

 

Attorneys for the Plaintiffs

Georgetown, South Carolina

March 27, 2019