An Empirical Look at Preliminary Injunctions in Challenges Under Environmental Protection Laws

• Date: 01 May 2017

5-2017 NEWS & ANALYSIS 47 ELR 10397

C O M M E N T S

An Empirical Look at Preliminary

Injunctions in Challenges Under

Environmental Protection Laws

by George P. Sibley III and Jonathan L. Caulder

George P. Sibley III is a Partner and Jonathan L. Caulder is an Associate in the

Energy and Environmental Litigation Group at Hunton & Williams LLP.

A

preliminary injunction is an “extraordinary” and

“drastic” equitable remedy.1 It should be granted

only where the movant carries a heavy burden of

persuasion t hat the requested relief is necessary.2 Indeed,

this “strong arm” of equity “should be used spa ringly and

only in a clear case.”3 ese sentences, or those like them,

appear in almost every recitation of the standard governing

preliminary injunctive relief. But experience teaches that

courts do not always treat preliminary injunctions as so

extraordinary, especially in environmental cases.

Environmental cases tend to involve large projects,

such as interstate pipelines, mines, and highways, that

have long-term impacts. Halting those impacts for a few

months to allow for mea ningful judicia l review— even if

it is not entirely clear that the plainti will succeed on the

merits, and even if it may cost the company receiving the

authorization substantia l monies and reduce employment

and economic benets —can be alluring. From this point

of view, the possibility of irreparable harm dominates in

the analysis, with the other three prongs (likelihood of suc-

cess on the merits, the overall balance of equities, and the

broader public interest) diminishing in importance.

is t ype of thin king had become i ncreasingly preva-

lent in the federa l courts b efore 2008, much to the con-

sternation of regu latory agencies, regul ated industries,

and some leg al scholars. e permits and certications

challen ged in these cases are the product of years of costly

admini strative review. And t hey are frequently the la st

piece of a complex puzzle of contracts, investments, and

commitments. So the cost of an injunction, if monetary,

is substa ntial. Absent a clear, rigorously applied stand ard

for decidi ng whether to grant that relief, the uncerta inty

over whether a court m ight decide to issue an injunction

can be paralyzing.

1. 11A C A W  A R. M, F P

 P §2948 (3d ed. 2004).

2. Id.

3. 42 A. J. 2 Injunctions §1 (2010).

e U.S. Supreme Court’s seminal decision in Winter

v. Natural Resources Defense Council, Inc.4 in 20 08 oered

hope for greater certainty and a higher bar for preliminar y

injunctive relief, especially in environmental litigation. At a

minimum, the majority’s decision (rendered in an environ-

mental case) promised to put all four of the prongs of the

traditional test for preliminary injunctive relief on more

equal footing. e more optimistic predicted that injunc-

tions would once again become “drastic” and “rare,” as the

Court described.

We attempted to evaluate empirica lly Winter’s impact

on the frequency with which these types of “environmental

preliminary injunctions” are granted.5 Did Winter, in fact,

achieve the anticipated eect? Are courts now applying a

uniform standard for deciding whether to grant injunctive

relief in environmental cases? A nd if not, what jurisdic-

tions are more likely to apply the majority’s holding in

Winter most vigorously?

I. The “Extraordinary” Preliminary

Injunction

Rule 65 of the Federal Rules of Civil Procedure allows

federal courts to issue preliminary injunctions, and, gener-

ally, federal courts have considered four familiar prongs in

deciding whether to grant them.

e rst is likelihood of success on the merits.6 Because

the decision on preliminar y injunctive relief occurs before

a full trial of the claims, courts require the movant to show

4. 555 U.S. 7, 39 ELR 20279 (2008).

5. See Sarah J. Morath, A Mild Winter: e Status of Environmental Preliminary

Injunctions, 37 S U. L. R. 155 (2013) (rst empirical study of Win-

ter’s impact).

6. Courts have phrased this prong dierently. See, e.g., Tuxworth v. Froehlke,

449 F.2d 763, 764 (1st Cir. 1971) (using “reasonable possibility of success”);

Minnesota Bearing Co. v. White Motor Corp., 470 F.2d 1323, 1326 (8th

Cir. 1973) (using “substantial probability of success”); Automated Mktg.

Sys., Inc. v. Martin, 467 F.2d 1181, 1183 (10th Cir. 1972) (using “reasonable

probability” of success). Yet, these “verbal dierences do not seem to reect

substantive disagreement.” 11A W  M, supra note 1, §2948.3.

Copyright © 2017 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.