UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

SAVE LONG BEACH ISLAND, INC., et al.,

Plaintiffs,

v. Civil Action No. 1:25-cv-02214 (CJN)

UNITED STATES DEPARTMENT OF COMMERCE, et al.,

Defendants,

&

EMPIRE OFFSHORE WIND LLC, et al.,

Defendant-Intervenors.

MEMORANDUM OPINION

Opponents of an offshore wind farm already under construction off the coast of New York

and New Jersey move to enjoin further work on the ground that governmental authorizations for

the project violate the Marine Mammal Protection Act. See ECF 17;

(a)(5)(A).

For the reasons that follow, the Court denies their motion.

I. BACKGROUND

A. Factual Background

In early 2017, the Bureau of Ocean Energy Management (BOEM) issued a lease permitting

the construction of an offshore wind farm near Brooklyn, New York. ECF 19-1 at 3. Equinor

Wind US LLC initially won the rights to the lease and then later assigned those rights to its

subsidiaries Empire Offshore Wind LLC and Empire Leaseholder LLC (collectively, Empire

Wind).

The project covers nearly 80,000 acres and is projected to generate 2,076 megawatts

1 of electricity. ECF 21 at 5. Construction is proceeding in two phases: Empire Wind 1 and Empire

Wind 2. ECF 19-1 at 3.

Leading up to the start of construction, Empire Wind applied for and received several

permits at the federal and state level. In January 2020, Empire Wind submitted a Construction and

Operations Plan to BOEM.

. Its proposal included hundreds of mitigation and monitoring

measures intended to minimize disruptions to the environment and animals caused by the project.

. In February 2024, BOEM approved the Plan after several rounds of modifications and an

environmental review.

at 5–6. In December 2024, BOEM reissued its approval of the Plan as

two separate approvals: one for Empire Wind 1 and one for Empire Wind 2.

.

In December 2021, Empire Wind requested a five-year Letter of Authorization from the

National Marine Fisheries Service (NMFS) to “take” various marine mammals incidental to

construction of the project in compliance with the Marine Mammal Protection Act.

. That

Act permits NMFS to authorize the taking of “small numbers of marine mammals of a species or

population stock if the Secretary, after notice . . . and opportunity for public comment . . . finds

that the total of such taking during each five-year (or less) period concerned will have a negligible

impact on such species or stock and will not have an unmitigable adverse impact on the availability

of such species or stock for taking for subsistence uses.”

(a)(5)(A)(i). “The term

‘take’ means to harass, hunt, capture, or kill, or attempt to harass, hunt, capture, or kill any marine

mammal,”

at § 1362(13), and the Marine Mammal Protection Act distinguishes between two

levels of harassment takings. Level A harassment encompasses “any act of pursuit, torment, or

annoyance which . . . has the potential to injure a marine mammal or marine mammal stock in the

wild.” Id. § 1362(18)(A)(i), (C). Level B harassment covers “any act of pursuit, torment, or

2 annoyance which . . . has the potential to disturb a marine mammal or marine mammal stock in

the wild by causing disruption of behavioral patterns.” Id. § 1362(18)(A)(ii), (D).

Following a round of notice and comment and an environmental review, in February 2024,

NMFS issued a Letter of Authorization for the project that permits the incidental taking of marine

mammals from February 2024 through February 2029. ECF 19-1 at 5. Of particular relevance

here, the Letter authorizes annual Level B harassment of up to 31.9 percent of Northern Migratory

Coastal Bottlenose Dolphins. See Taking Marine Mammals Incidental to the Empire Wind Project,

Offshore New York,

, 11416 (Feb. 14, 2024). Among other mitigation

measures, the Letter of Authorization imposes a seasonal moratorium on impact pile driving,

requires the use of species observers and sound attenuation devices during pile driving, and calls

for shutdowns of pile driving if marine mammals were observed nearby. ECF 19-1 at 4–5. In

January 2025, NMFS reissued the Letter with minor changes, including updating the relevant

subsidiary that had permission to build the project.

.

Active construction of Empire Wind 1 has been underway for more than a year. ECF 19-

2 at 3. Construction of the onshore portion began in April 2024.

In-water installation of export

cables to transfer electricity commenced in July 2024.

. Building of monopile foundations

for the wind turbines started in June 2025 and is scheduled to finish by the end of October 2025.

All construction for Empire Wind 1 is set to conclude by the end of 2026.

.

On April 16, 2025, BOEM issued a suspension order that paused construction as part of

the Department of Interior’s general review of offshore wind projects, and on May 19, 2025,

3 BOEM lifted the suspension order. ECF 17-1 at 3. Empire Wind resumed construction the next

day.

.

B. Procedural History

On April 4, 2023, Save Long Beach Island and Dr. Robert Stern filed a lawsuit in the

District of New Jersey challenging authorizations issued by NMFS that permitted the incidental

takings of marine mammals for several offshore wind projects. Complaint at 1–4, Save Long

Beach Island v. U.S. Dep’t of Com., No. 3:23-cv-01886 (D.N.J. Apr. 4, 2023). On February 29,

2024, the district court dismissed the suit without prejudice for mootness and lack of standing. See

Save Long Beach Island v. U.S. Dep’t of Com.,

, 335, 340 (D.N.J. 2024). Save

Long Beach Island and Stern then filed an amended complaint on March 29, 2024, that explicitly

challenged the Letter of Authorization for both Empire Wind 1 and 2. Amended Complaint at 15,

Save Long Beach Island v. U.S. Dep’t of Com., No. 3:23-cv-01886 (D.N.J. Mar. 29, 2024). But,

on June 11, 2025, the district court granted summary judgment to Empire Wind and the

government regarding the Letter of Authorization. See Save Long Beach Island v. U.S. Dep’t of

Com., No. 3:23-cv-01886,

, at *31 (D.N.J. July 2, 2025).

On July 11, 2025, Save Long Beach Island and Stern—along with new Plaintiffs Save the

East Coast, Inc., Protect Our Coast – LINY, Captain Alan Shinn, and Borough of Seaside Park—

filed this suit against various government defendants, alleging that both the Letter of Authorization

and the Construction and Operations Plan for Empire Wind 1 and 2 violate the Marine Mammal

Protection Act, as well as the National Environmental Policy Act and the Outer Continental Shelf

4 Lands Act. ECF 1 at 2–3. Empire Wind intervened as a defendant. See Min. Order of Aug. 8,

2025.

On August 21, 2025, Plaintiffs moved for the Court to stay the effect of the Letter of

Authorization and Construction and Operations Plan or, in the alternative, to enter a preliminary

injunction to halt all Empire Wind 1 construction. ECF 17. In their motion, they raise only their

claim under the Marine Mammal Protection Act, arguing that the government’s approval of work

on Empire Wind 1 exceeds that statute’s allowance of takings of “small numbers of marine

mammals of a species or population stock” because it permits Level B harassment of 31.9 percent

of the Northern Migratory Coastal Bottlenose Dolphin stock.

(a)(5)(A).

II. ANALYSIS

A. Legal Standard

As a threshold matter, the Parties dispute whether the same standard applies for evaluating

Plaintiffs’ request for a stay versus a preliminary injunction. Plaintiffs contend that the standard

for granting a stay under the Administrative Procedure Act,

, overlaps with—but is

distinct from—the standard for granting a preliminary injunction under Winter v. Natural

Resources Defense Council, Inc.,

(2008). ECF 17-1 at 3–5; ECF 22 at 2–4. Citing the

Court of Appeals’s decision in Cuomo v. United States Nuclear Regulatory Commission, they

argue that “[t]o justify the granting of a stay, a movant need not always establish a high probability

of success on the merits” and that “[a] stay may be granted with either a high probability of success

and some injury, or vice versa.”

, 974 (D.C. Cir. 1985). The government and Empire

Wind respond that a request for such a stay must meet the same high bar as required for a

preliminary injunction. ECF 19 at 12–13; ECF 21 at 10–11. They argue that because the same

standard applies, “the Court may deny a motion for preliminary injunction [or a stay], without

5 further inquiry, upon finding that a plaintiff is unable to show either irreparable injury or a

likelihood of success on the merits.” ECF 19 at 13 (quoting Standing Rock Sioux Tribe v. U.S.

Army Corps of Eng’rs,

, 26 (D.D.C. 2016)).

Decisions predating and postdating Cuomo confirm that a plaintiff seeking a stay under 5

U.S.C § 705 must demonstrate that it will suffer irreparable harm absent a stay, just as a party

seeking a preliminary injunction must demonstrate that it will suffer irreparable harm absent such

relief. For example, in Wisconsin Gas Co. v. FERC—decided a few months before Cuomo—the

Court of Appeals “address[ed] only whether the petitioners have demonstrated that in the absence

of a stay, they will suffer irreparable harm” because “analysis of [that] factor dispose[d] of the[]

motions.”

, 674 (D.C. Cir. 1985). And just last year, the Court of Appeals

unequivocally held that “a showing of irreparable harm is a necessary prerequisite for a stay.” 1

KalshiEX LLC v. Commodity Futures Trading Comm’n,

, 64 (D.C. Cir. 2024). The

Court therefore evaluates Plaintiffs’ requests for a stay and a preliminary injunction under the same

post-Winter, four-factor framework.2

Under that standard, a plaintiff “must establish that he is likely to succeed on the merits,

that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of

1 Although that decision involved a request for a stay pending appeal, the Court of Appeals relied on Wisconsin Gas Co.—a case about staying agency actions—for its pronouncement about the standard for stays in general. See KalshiEX, 119 F.4th at 64. 2 This Court and several other courts within this District have routinely taken this approach when evaluating motions for a stay under the APA. See, e.g., District of Columbia v. U.S. Dep’t of Agric.,

, 15 (D.D.C. 2020) (“The factors governing issuance of a preliminary injunction also govern issuance of a § 705 stay.”); Pennsylvania v. DeVos,

, 58 (D.D.C. 2020); Nw. Immigrant Rts. Project v. U.S. Citizenship & Immigr. Servs.,

, 45 (D.D.C. 2020) Cath. Legal Immigr. Network, Inc. v. Exec. Off. for Immigr. Rev., No. 21- cv-00094,

, at *2 (D.D.C. Apr. 4, 2021); Cabrera v. U.S. Dep’t of Lab., No. 25- cv-01909,

, at *2 (D.D.C. July 25, 2025); Coal. for Humane Immigrant Rts. v. Noem, No. 25-cv-00872,

, at *12 (D.D.C. Aug. 1, 2025).

6 equities tips in his favor, and that an injunction is in the public interest.” Winter,

.

The last two factors merge where the government is a party because “the government’s interest is

the public interest.” Pursuing Am.’s Greatness v. FEC,

(D.C. Cir. 2016).

Although the Court of Appeals has explained that the Supreme Court’s decision in Winter “can be

read to require movants to establish each preliminary injunction factor independently,” the Court

of Appeals has not explicitly rejected the sliding-scale approach under which a plaintiff’s “failure

to establish one of the four factors does not always doom its motion for a preliminary injunction.”

Clevinger v. Advoc. Holdings, Inc.,

, 1235–36 (D.C. Cir. 2025). Yet under either

approach, a plaintiff’s “failure to show any irreparable harm is . . . grounds for refusing to issue a

preliminary injunction, even if the other three factors entering the calculus merit such relief.”

Chaplaincy of Full Gospel Churches v. England,

(D.C. Cir. 2006); accord

Clevinger,

. And it is clear that “[a] preliminary injunction is an extraordinary

remedy that should be granted only when the party seeking the relief, by a clear showing, carries

the burden of persuasion.” Cobell v. Norton,

(D.C. Cir. 2004).

B. Irreparable Harm

The standard for “irreparable” harm is “high.” Chaplaincy,

. A plaintiff

must establish that “[t]he injury complained of is of such imminence that there is a clear and present

need for equitable relief to prevent irreparable harm” and that the injury is “beyond remediation.”

(citation and internal quotation marks omitted). In other words, the “injury ‘must be both

certain and great.’” Clevinger,

(quoting Wis. Gas Co., 758 F.2d at 674).

Plaintiffs fail to meet that high bar. As a threshold matter, Plaintiffs appear to conflate an

injury-in-fact sufficient to establish standing under Article III of the Constitution and irreparable

harm sufficient to warrant a stay or preliminary injunction. The section of their motion dedicated

7 to this factor argues that they have standing to raise violations of the Marine Mammal Protection

Act because they are suffering cognizable injuries-in-fact due to the ongoing construction of

Empire Wind 1. ECF 17-1 at 13–18. But their motion hardly attempts to establish that “[t]he

injury complained of is of such imminence that there is a clear and present need for equitable relief

to prevent irreparable harm” and that the injury is “beyond remediation.” Chaplaincy,

(citation and internal quotation marks omitted). Plaintiffs’ focus on their standing is largely

misplaced because an “injury that is sufficient to establish standing . . . does not necessarily satisfy

the more demanding burden of demonstrating irreparable injury.” Cal. Ass’n of Priv.

Postsecondary Schs. v. DeVos,

(D.D.C. 2018).

Even interpreting Plaintiffs’ claimed injuries charitably, they have failed to establish

irreparable harm that is “certain and great.” Chaplaincy,

(citation and internal

quotation marks omitted). Plaintiffs argue that the ongoing disruptions to the bottlenose dolphins

will negatively impact Captain Shinn’s whale and dolphin watching business and deprive Stern of

the ability to derive aesthetic enjoyment from observing whales and dolphins. The most concrete

evidence that Plaintiffs put forth to support these allegations is a declaration from Captain Shinn

stating that “[w]e have noticed an increase in whale carcasses floating in the waters where we do

business” and that “[w]hen we encounter these dead whales on our trips, our customers become

upset, which discourages them from returning for another tour, and leads them to write negative

reviews, further discouraging prospective customers.” ECF 17-3 at 4.

This theory of irreparable harm suffers from numerous flaws. To start, Plaintiffs ignore

the distinction between Level A and Level B harassment under the Marine Mammal Protection

Act. The statute defines Level A harassment as “any act of pursuit, torment, or annoyance which

. . . has the potential to injure a marine mammal or marine mammal stock in the wild” and Level B

8 harassment as “any act of pursuit, torment, or annoyance which . . . has the potential to disturb a

marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns.”

(18). Because the Letter of Authorization permits only Level B harassment

takings of bottlenose dolphins, and does not authorize any Level A harassment whatsoever,

Plaintiffs fail entirely to demonstrate how construction of Empire Wind 1 will lead to “dead . . .

dolphins.” ECF 17-3 at 4. It is also far from clear that any potential disruption of the dolphins’

movement patterns is “great” enough to constitute irreparable harm. Wis. Gas Co., 758 F.2d at

674; cf. Friends of Animals v. U.S. Bureau of Land Mgmt.,

(D.D.C. 2017)

(distinguishing between the existence of “irreparable harm where the challenged defendant is

taking action that could kill (or seriously injure) significant numbers of animals” and the lack of

irreparable harm where the defendant “does not intend to eradicate any healthy animals” and “the

risk of serious physical harm to the [animals] is quite low”). And, of course, Plaintiffs’ only claim

here relates to the Level B harassment of bottlenose dolphins; they do not challenge the project as

to any other marine mammal (including whales).

In addition, Plaintiffs fail to establish that the construction for Empire Wind 1 is actively

harming dolphins—especially given the significant mitigation efforts in place. Although Plaintiffs

argue that construction will “disturb” the dolphins in a way that makes it more difficult to observe

them for recreational and aesthetic purposes, ECF 17-1 at 16–18, “[b]are allegations of what is

likely to occur are of no value since the court must decide whether the harm will in fact occur,”

Wis. Gas Co., 758 F.2d at 674. Plaintiffs contend that NMFS’s approval of the Letter of

Authorization “concede[s]” that Empire Wind 1 construction “will disturb dolphins and whales”

because it allows Level B harassment of 31.9 percent of one species of dolphin. ECF 17-1 at 16

& n.25. But this argument once again overlooks the statutory definition of Level B harassment,

9 which covers “any act of pursuit, torment, or annoyance which . . . has the potential to disturb a

marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns.”

(18)(A)(ii), (D) (emphasis added). That the Letter of Authorization approved

activities that “ha[ve] the potential to disturb” dolphins does not demonstrate that Empire Wind 1

is in fact actively or imminently disrupting dolphins in a way that could cause irreparable harm to

Plaintiffs.

In fact, the Letter ensures that “impacts are minimized through implementation of

mitigation measures, including soft-starts, use of a sound attenuation system, the implementation

of clearance zones that would facilitate a delay of pile driving commencement, and the

implementation of shutdown zones.” 89 Fed. Reg. at 11405. And based on these mitigation

efforts, NMFS concluded that “no serious injury or mortality is expected or authorized for any

species or stock.” Id. at 11403.

That Plaintiffs waited so long to request a stay or preliminary injunction also suggests that

their injuries are not certain and great. “An unexcused delay in seeking extraordinary injunctive

relief may be grounds for denial because such delay implies a lack of urgency and irreparable

harm.” Newdow v. Bush,

(D.D.C. 2005). The Court of Appeals has

explained that waiting 44 days before seeking an injunction is “inexcusable,” Fund for Animals v.

Frizzell,

(D.C. Cir. 1975), and other courts within this District have held that a

two-month delay “militates against a finding of irreparable harm,” e.g., Mylan Pharms., Inc. v.

Shalala,

(D.D.C. 2000). Plaintiffs waited significantly longer before moving

for a stay or preliminary injunction here. By the time that they filed their motion on August 21,

2025, it had been 18 months since the Letter of Authorization was approved and took effect, 17

months since Save Long Beach Island and Stern amended their complaint to challenge that Letter

in the District of New Jersey, and 16 months since construction for Empire Wind 1 began. ECF

10 19-1 at 3, 5. Plaintiffs’ rebuttal that offshore pile driving—the leading source of harassment—did

not commence until June 2025 is unpersuasive.3 ECF 22 at 15–17. When evaluating whether a

delay implies a lack of irreparable harm, courts consider the date an action was authorized—not

just when it takes effect. In AARP v. EEOC, for example, a court in this District concluded that

the plaintiff’s “unexplained delay in bringing this suit weigh[ed] against a finding of irreparable

harm” where a final rule was promulgated in May 2016 and set to apply in January 2017 but not

challenged in court until October 2016.

(D.D.C. 2016). By extension, that

a particular stage of construction did not begin until later does not excuse Plaintiffs’ failure to

timely seek injunctive relief. Given these considerations, Plaintiffs have not met their burden to

establish irreparable harm.4 See Chaplaincy,

.

3 Plaintiffs also argue that they could not move for a stay or preliminary injunction immediately after filing suit because they had to wait to complete service of process. ECF 22 at 17. This contention is unconvincing for multiple reasons. First, Plaintiffs could have moved for emergency relief concurrently with filing the action. Second, even if the Court did not consider this gap, the nearly year-and-a-half delay between when NMFS approved the Letter of Authorization and when Plaintiffs filed this suit is more than enough to “impl[y] a lack of urgency and irreparable harm.” Newdow,

. 4 The Supreme Court’s observation in Amoco Production Co. v. Village of Gambell that “[e]nvironmental injury, by its nature, can seldom be adequately remedied by money damages and is often permanent or at least of long duration, i.e., irreparable” does not change the Court’s conclusion.

(1987). The discussion of whether environmental injuries can be “adequately remedied,”

suggests that this statement is relevant to whether a harm is “beyond remediation”—not necessarily whether it is “certain and great,” Chaplaincy,

(citation and internal quotation marks omitted). Indeed, the Supreme Court expressly cautioned that a preliminary injunction would be appropriate only “[i]f such injury is sufficiently likely.” Amoco Prod.,

. Accordingly, even if the Court assumes that the alleged ongoing violation of the Marine Mammal Protection Act cannot be fully remedied later, Plaintiffs have still not met the high bar for irreparable harm because they fail to establish that any harm related to the dolphins is “both certain and great.” Wis. Gas Co., 758 F.2d at 674.

11 C. Balance of Equities/Public Interest

Although the lack of irreparable harm is enough on its own to reject Plaintiffs’ request for

a stay or preliminary injunction, see KalshiEX, 119 F.4th at 64; Clevinger,

, the

Court briefly addresses the balance of equities because that factor further supports the conclusion

that Plaintiffs are not entitled to relief at this stage.5 “The balance of the equities weighs the harm

to [Plaintiffs] if there is no injunction against the harm to the [government and Empire Wind] if

there is.” Pursuing Am.’s Greatness,

. Because halting construction would impose

substantial costs and likely upend Empire Wind’s ability to finish the project, the equities do not

favor Plaintiffs.

In particular, construction of Empire Wind 1 is proceeding on a sequential schedule such

that a delay in one phase “will cause a ripple effect across the overall schedule that will likely lead

to Project cancellation.” ECF 19-2 at 8. Illustrative of this strict schedule, if the Court granted

emergency relief to Plaintiffs that prevented Empire Wind from finishing installation of the

monopile foundations for the wind turbines by the end of October 2025, the entire project would

be put in jeopardy because the specialized ship for this kind of installation is not available during

the entirety of 2026.

Empire Wind has entered numerous time-sensitive contracts for future

stages of construction, so there is a substantial risk that a stay or injunction would cause it to both

lose any benefit from the $3 billion it has already invested in the project and face $850 million in

termination fees for violating deadlines in the contracts.

at 9–10. Furthermore, Empire Wind

would likely have to forfeit an $87 million security it paid to the New York State Energy Research

5 The lack of irreparable harm also makes it unnecessary to assess the likelihood of success on the merits. See Wis. Gas Co., 758 F.2d at 674. The Court notes, however, that the government and Empire Wind have made some showing at this stage to suggest that Plaintiffs may not ultimately prevail on the merits.

12 and Development Authority, and it would likely have to spend up to $250 million to dismantle and

safely dispose of components that were custom-made for the project. Id. at 10. The

government’s—and thereby the public’s—interest would also be negatively affected by the loss of

thousands of jobs and a new source of clean energy that would result from the derailment of

construction. Id. at 10–11. It is therefore evident that “substantial harm will result to defendants

and to the public interest if this integrated and ongoing public project is halted by a preliminary

injunction.”6 Randolph Civic Ass’n v. WMATA,

(D.D.C. 1979).

Plaintiffs’ arguments for why the balance of equities nonetheless tips in their favor are

unpersuasive. First, Plaintiffs contend that “Empire Wind’s potential sunk costs are at least

partially self-imposed” because it proceeded with the project despite knowing that the Letter of

Authorization permitted a very large take of dolphins and that there was active litigation

challenging the project. ECF 17-1 at 18–19. But this argument improperly mixes the likelihood

of success on the merits factor into the balance of equities inquiry and, if taken to its logical

conclusion, would allow the mere filing of a lawsuit to trump even the most serious of harms that

could result from a stay or injunction. Second, Plaintiffs argue that the harm from the denial of

emergency relief outweighs the harm from the granting of emergency relief because excessive

takings of the dolphins constitute a serious environmental injury.

at 19–20. This contention

fails, however, because, as discussed above, NMFS determined that “no serious injury or mortality

is expected or authorized for any species or stock” given the mitigation measures and Plaintiffs

6 Plaintiffs’ aforementioned delay in seeking to stay or enjoin the effect of the Letter of Authorization has compounded these harms. See Nat’l Parks Conservation Ass’n v. U.S. Forest Serv., No. 15-cv-01582,

, at *12 (D.D.C. Jan. 22, 2016) (“Had Plaintiff filed this lawsuit in, for example, February 2015, the court likely would have resolved the dispute before the commencement of road work or mining activities, thereby obviating the need for the extraordinary relief requested.”).

13 have failed to establish that the dolphins are actively being harmed by the construction.7 89 Fed.

Reg. at 11403–05. Third, Plaintiffs contend that the potential harm of pausing construction is

overstated because “the putative climate benefits of the project are highly uncertain.” ECF 17-1

at 21–22. Yet this argument ignores that the relevant government actors have already determined

that the benefits of the project outweigh the downsides and is unresponsive to Empire Wind’s

concerns about the significant costs it would likely incur if construction were delayed.

III. CONCLUSION

For the foregoing reasons, the Court denies Plaintiffs’ Motion for a Stay or Preliminary

Injunction, ECF 17. The Court will issue an order contemporaneously with this decision.

DATE: October 24, 2025 CARL J. NICHOLS United States District Judge

7 The out-of-circuit case that Plaintiffs rely on regarding environmental injuries has minimal relevance here because it concerned “[t]he public interest in the survival and flourishing of marine mammals and endangered species” that was threatened by conduct that involved both Level A and Level B harassment. Nat. Res. Def. Council, Inc. v. Evans,

(N.D. Cal. 2002) (emphasis added). Moreover, there was substantial evidence that marine mammals were being harmed by the activities being challenged. See

(“It is undisputed that marine mammals, many of whom depend on sensitive hearing for essential activities like finding food and mates and avoiding predators, and some of whom are endangered species, will at a minimum be harassed by the extremely loud and far traveling LFA sonar.”). Neither is present here.

14