In the Supreme Court's 2008-2009 term, which likely will conclude in late June, 2009, the Court has accepted for argument five environmental cases—an unusually large number out of the roughly 85 cases accepted for argument. The reason for this interest in environmental cases at this particular time is speculative; the Court generally does not explain why it accepts cases. This report reviews the cases, decided and undecided, and then briefly comments. At this writing, one of the five cases has been decided. F acts and litigation history : The Navy scheduled 14 training exercises through January 2009 off the coast of southern California. These exercises involve the use of "mid-frequency active sonar" to detect enemy submarines. Environmentalists claim that the high decibel levels used harms whales, causing beach strandings. In February 2007, however, the Navy issued an environmental assessment under the National Environmental Policy Act (NEPA), concluding that the use of mid-frequency active sonar during the exercises would cause minimal harm to marine mammals. Petitioners, mostly environmental groups, sought declaratory and injunctive relief against the exercises, on the ground that they violated NEPA, plus other environmental laws not material to the Supreme Court decision. The district court granted a preliminary injunction barring conduct of the exercises. On remand from the Ninth Circuit, the district court modified the preliminary injunction to allow the Navy to use the sonar if it used mitigation measures. On the Navy's second appeal, challenging two of the mitigation measures, the Ninth Circuit affirmed the modified injunction, noting that plaintiffs (petitioners in the Supreme Court) had carried their burden of showing a "possibility" of irreparable injury and that the balance of hardships weighed in favor of plaintiffs. Holding / rationale of Supreme Court : The Supreme Court ruled November 12, 2008 (by which time 13 of the 14 scheduled exercises had been conducted). The majority opinion, by the five justices generally identified as conservative, held that as an initial matter the Ninth Circuit's "possibility" test for issuance of a preliminary injunction is too lenient; plaintiffs must show that irreparable injury is "likely" in the absence of an injunction. However, the Court continued, even if plaintiffs had shown irreparable injury (and, too, likelihood of success on the merits), it is "plainly outweighed" by the Navy's interest in effective, realistic training of its sailors. That factor alone requires denial of the requested injunctive relief. For the plaintiffs, the most serious possible injury would be harm to an unknown number of marine mammals. In light of the foregoing, the Court reversed the decision below and vacated the preliminary injunction. Parenthetically, said the Court, the same balancing factor requiring vacatur of the preliminary injunction here would also bear on a challenge to any future permanent injunction. The Court did not address the merits of the lawsuit—that is, whether the Navy exercises violated NEPA or the other federal environmental laws claimed to be violated. Comments: This case was accepted by the Supreme Court in an unusual posture: as a challenge to a preliminary injunction, rather than to the merits of petitioners' statutory claims. The Court made clear, however, that its perception of an overriding national security interest in the challenged training exercises should lead the district court to reject a final injunction as well, in the event the military is found to have violated an environmental statute. Note, too, that the United States had sought the judicial rejection of the Ninth Circuit's "mere possibility" test for issuance of injunctions before, succeeding this time. The Ninth Circuit is widely regarded as an environmentally friendly circuit, and the Supreme Court, in reversing it here, was doing what it has done many times before. Three of the four undecided environmental cases this term are also from the Ninth Circuit. Facts and litigation history: On June 4, 2003, acting under the Forest Service Decision-making and Appeals Reform Act (ARA), the Forest Service promulgated regulations codified at 36 CFR §§ 215.12(f) and 215.4(a). These regulations precluded notice, opportunity for comment, and administrative appeals for projects and activities implementing forest plans where those plans and activities are covered by categorical exclusions under the National Environmental Policy Act (NEPA). The following day, the Forest Service designated salvage timber sales of 250 acres or less as categorical exclusions. Later in 2003, the Forest Service approved the timber sale of 238 acres of post-fire forest, stating that the project was not subject to appeal because of the regulations. In a challenge to the 2003 regulations as applied to this timber sale, the district court invalidated the regulations and issued a nationwide injunction against their application. On appeal, the Ninth Circuit in Earth Island Institute v. Ruthenbeck , 490 F.3d 687 (9 th Cir. 2007), held first that plaintiffs had Article III standing because there is injury in fact: here, deprivation of procedural rights and the possibility of reduced recreational enjoyment of the national forests. As a further preliminary matter, the court found the claims against the appeal prohibition ripe because they had been applied to the timber sale in question to block plaintiff Earth Island Institute's administrative appeal. On the merits, the Ninth Circuit found that 36 C.F.R. §§ 215.12(f) and 215.4(a) conflict with the plain language of the ARA, affirming the district court. It also affirmed the nationwide scope of the district court's injunction against the regulations' enforcement. The Supreme Court granted certiorari on January 18, 2008. Paraphrasing the petition for certiorari, the questions presented are: (1) whether the Forest Service's promulgation of 36 C.F.R. § 215.4(a) and § 215.12(f), as distinct from the particular site-specific project to which those regulations were applied in this case, was a proper subject of judicial review; (2) whether respondent environmental groups established standing; (3) whether respondents' challenge to 36 C.F.R. § 215.4(a) and § 215.12(f) remains ripe after the timber sale to which the regulations had been applied was withdrawn, and respondents' challenges to that sale had been voluntarily dismissed with prejudice, pursuant to settlement between the parties; and (4) whether the Ninth Circuit erred in affirming the nationwide injunction issued by the district court. The case was argued before the Supreme Court on October 8, 2008, the same day as Winter , supra , but has not yet been decided. Comments: Environmental groups have long used site-specific challenges to achieve program-wide reform. Thus, the stakes in this decision are potentially large. A defeat for such groups—that is, a holding that site-specific application of a rule does not give a plaintiff the right to a nationwide remedy—could greatly increase the burden on public interest groups seeking to invalidate a government program as contrary to statute by requiring multiple lawsuits where one currently might suffice. That the Court, or at least its conservative justices, might so rule is suggested by the generally restrictive view of the role of the courts held by such justices. Facts and litigation history: "Power plants and other industrial operations withdraw billions of gallons of water from the nation's waterways each day to cool their facilities. The flow of water into these plants traps ... large aquatic organisms against grills or screens, which cover the intake structures, and draws ... small aquatic organisms into the cooling mechanism ... [resulting in] the kill[ing] or injur[ing] of billions of aquatic organisms every year." Addressing this problem, Clean Water Act (CWA) section 316(b) demands that rules under the act require that "the location, design, construction, and capacity of cooling water intake structures reflect the best technology available [BTA] for minimizing adverse environmental impact." In 2004, EPA issued the rule at issue here, governing cooling water intake structures at large, existing power plants. The rule permitted EPA to conduct cost-benefit analysis in determining BTA. In Riverkeeper Inc. v. United States , 475 F.3d 83 (2d Cir. 2007), the Second Circuit invalidated the use of cost-benefit analysis under section 316(b). The language of that provision, it noted, "plainly indicates that facilities must adopt the best technology available and that cost-benefit analysis cannot be justified ..." When Congress has intended that an agency do cost-benefit analysis, said the court, it has said so on the face of the statute, which it did not do in section 316(b). By contrast, EPA may consider cost in two other ways: first, to determine what technology can reasonably be borne by the industry, and second, to do cost effectiveness analysis (the court reasoning that BTA selection based in part on cost effectiveness, while taking cost into account, remains technology rather than cost driven). The Supreme Court granted certiorari on April 14, 2008. As phrased in the petition for certiorari, the question presented is whether CWA section 316(b) authorizes EPA to compare costs with benefits in determining the "best technology available for minimizing adverse environmental impact" at cooling water intake structures. The case was argued December 2, 2008. Comments: In the 1970s, when almost all the federal environmental laws were enacted, there was much resistance to cost-benefit analysis. In part, the opposition stemmed from a belief that one simply cannot put a dollar value on all the things that environmental laws protect and that when agencies do use such dollar values, they are often low. There has been a shift of late, however, to greater acceptance of cost-benefit analysis. This case will test whether the justices on the Supreme Court generally viewed as conservative, often more sympathetic to business concerns such as cost, will continue that shift. Industry presumably would welcome a decision that could be used to legitimize cost-benefit analysis elsewhere in the CWA where it is not expressly authorized, and in federal pollution control statutes generally.