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

Date01 May 2017
5-2017 NEWS & ANALYSIS 47 ELR 10397
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.
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
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®,, 1-800-433-5120.

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