Brief for Natural Resources Defense Council as amici curiae supporting respondent, Monsanto Co. v. Geertson Seed Farms, no. 09-475 (U.S. Apr. 5, 2010).

Author:Johnston, Craig
Position:AMICUS BRIEF
 
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TABLE OF CONTENTS INTEREST OF THE AMICI CURIAE SUMMARY OF THE ARGUMENT ARGUMENT I. THE COURTS OF EQUITY LONG HAVE HAD THE AUTHORITY TO ISSUE INJUNCTIONS IN THE FACE OF SIGNIFICANT THREATS a. The history of the common law fully supports the idea that courts may address situations that pose unreasonable harm of injury, and that they may issue injunctions in response to those threats b. The Restatement (Second) of Torts is fully in accord with these cases c. The tendency of courts to issue injunctions in the face of significant threats comports with sound risk analysis and the approaches that this Court and others have taken in analogous contexts d. Congress has recognized the importance of risk analysis in injunctive settings when it codified public nuisance principles in various environmental laws. Courts have done the same in applying those provisions II. WINTER DID NOT ALTER THE TRADITIONAL EQUITABLE REQUIREMENTS FOR AN INJUNCTION III. THAT NEPA IMPOSES ONLY PROCEDURAL MANDATES SHOULD NOT UNDERMINE THE ABILITY OF THE COURTS TO ENJOIN ACTIONS THAT WILL LIKELY LEAD TO IRREPARABLE INJURY APPENDIX Description of Amici Curiae TABLE OF AUTHORITIES CASES AlliedSignal, Inc. v. B.F. Goodrich Co., 183 F.3d 568 (7th Cir. 1999) American Hospital Supply Corp. v. Hospital Products Ltd., 780 F.2d 589 (7th Cir. 1986) Amoco Production Co. v. Village of Gambell, 480 U.S. 531 (1987) Ariz. Copper Co. v. Gillespie, 230 U.S. 46 (1913) Bragdon v. Abbott, 524 U.S. 624 (1998) Branch v. Smith, 538 U.S. 254 (2003) Christian Knights of the Ku Klux Klan Invisible Empire, Inc. v. Dist. of Columbia, 972 F.2d 365 (D.C. Cir. 1992) City of Los Angeles v. Lyons, 461 U.S. 95 (1983) Clark v. Roemer, 500 U.S. 646 (1991) County of San Diego v. C. W. Carlstrom, 196 Cal. App. 2d 485, 16 Cal. Rptr. 667 (1961) Faith Center Church Evangelistic Ministries v. Glover, 480 F.3d 891 (9th Cir. 2007) Ferry v. City of Seattle, 116 Wash. 648, 303 P. 40 (1922) FoodCom Int'l v. Barry, 328 F.3d 300 (7th Cir. 2003) Found on Econ. Trends v. Weinberger, 610 F. Supp. 829 (D.D.C. 1985) Georgia v. Tenn. Copper Co., 206 U.S. 230 (1907) Harris Stanley Coal & Land Co. v. Chesapeake & Ohio Railway Co., 154 F.2d 450 (6th Cir. 1946), cert. denied, 329 U.S. 761 (1946) Helling v. McKinney, 509 U.S. 25 (1993) Hirsh v. City of Atlanta, 261 Ga. 22, 401 S.E.2d 530 (1991) Interfaith Comb Org. v. Honeywell Int'l., Inc., 399 F.3d 248 (3d Cir. 2005) Jackson Dairy, Inc. v. H.P Hood & Sons, Inc., 596 F.2d 70 (2d Cir. 1979) London v. Bolt, 5 Ves. Jun. 129, 31 Eng. Rep. 507 (Ch. 1799) Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992) Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) Mugler v. State of Kansas, 123 U.S. 623 (1887) N. Y. State Nat'l Org. for Women v. Terry, 886 F.2d 1339 (2d Cir.), cert. denied, 495 U.S. 1339 (1989) New Jersey v. City of New York, 283 U.S. 473 (1931) People ex rel. Gallo v. Acuna, 14 Cal.4th 1090, 929 P.2d 596, 60 Cal. Rptr. 2d 277 (1997) R. v. Vantandillo, 4 M. & S. 73, 105 Eng. Rep. 762 (K.B. 1815) Reserve Mining Co. v. Environmental Protection Agency, 514 F.2d 492 (8th Cir. 1975), Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (1989) School Bd of Nassau County, Fla. y. Arline, 480 U.S. 273 (1987) Sierra Club v. Coleman, 405 F. Supp. 53 (D.D.C. 1975) Sierra Club v. US. Army Corps of Eng'rs, 701 F.2d 1011 (2d Cir. 1983) Strycker's Bay Neighborhood Council, Inc. v. Karlen, 444 U.S. 223 (1980) Tenn. Valley Auth. v. Hill, 437 U.S. 153 (1978) Tyner v. People's Gas Co., 132 Ind. 408, 31 N.E. 61 (1892) United States v. Carroll Towing Co., 159 F.2d 169 (2d Cir. 1947) United States v. Conservation Chem. Co., 619 F. Supp. 162 (W.D. Mo. 1985) United States v. Mass. Water Res. Auth., 256 F.3d 36, (1st Cir. 2001) United States v. Oakland Cannabis Buyers' Cooperative, 532 U.S. 483 (2001) United States v. Waste Indus., Inc., 734 F.2d 159 (4th Cir. 1984) United Steelworkers of Am. v. United States, 361 U.S. 39 (1959) Village of Wilsonville v. SCA Servs., Inc., 77 Ill. App. 3d 618, 396 N.E.2d 552 (4th Dist. 1979), affd, 86 Ill. 2d 1, 426 N.E.2d 824 (1981) Weinberger v. Romero-Barcelo, 456 U.S. 305 (1982) Wilkinson v. Forst, 832 F.2d 1330 (2d Cir. 1987), cert. denied sub nom Kelly v. Wilkinson, 485 U.S. 1034 (1988) Winter v. Natural Res. Def. Council, 129 S. Ct. 365 (2008) Wood v. Picillo, 443 A.2d 1244 (1982) Young v. Fordice, 520 U.S. 273 (1993) STATUTES 16 U.S.C. [section] 1536(a)) 33 U.S.C. [section] 1311(b) 33 U.S.C. [section] 1319(b) 42 U.S.C. [section] 1973c 42 U.S.C. [section] 4321 42 U.S.C. [section] 4331(a) 42 u.s.a. [section] 4331(b)(2) 42 U.S.C. [section] 4332 42 U.S.C. [section] 4332(2)(C) 42 U.S.C. [section] 6972(a)(1)(B) 42 U.S.C. [section] 6973 42 U.S.C. [section] 9601 42 U.S.C. [section] 9606 42 U.S.C. [section] 9621(b)(1) REGULATIONS 10 C.F.R. [section][section] 52.17, 52.79, 100.10, 100.20, 100.21 10 C.F.R. Part 100 40 C.F.R. [section] 1501.4 40 C.F.R. [section] 300.430(e)(2)(i)(A)(2) OTHER AUTHORITIES Black's Law Dictionary 947 (8th ed. 2004) Nat'l Research Council, Science and Judgment in Risk Assessment 4 (1994) NUREG-0800, Standard Review Plan for the Review of Safety Analysis Reports for Nuclear Power Plants (SRP), Section 3.5.1.6, "Aircraft Hazards" (Rev. 4, Mar. 2010) (ML070510639) Pomeroy, A Treatise on Equity Jurisprudence and Equitable Remedies, Vol. 5 [section] 523, p. 4398 (1919) Prosser and Keaton on Torts, 5th Ed., p. 629 (1984) Restatement (Second) of Torts [section] 7 (1965) Restatement (Second) of Torts [section] 821B (1977) Restatement (Second) of Torts [section] 821D (1977) Restatement (Second) of Torts [section] 821F (1977) Restatement (Second) of Torts [section] 822 (1977) Restatement (Second) of Torts [section] 832 (1977) Restatement (Second) of Torts [section] 933 (1977) Restatement (Second) of Torts [section] 933(1) (1977) Restatement (Second) of Torts [section] 936 (1977) Restatement (Second) of Torts [section] 936(1) (1977) S. Rep. No. 96-172., 1st Sess., at 5, as reprinted in (1980) U.S.C.C.A.N. 5019, 5023 INTEREST OF THE AMICI CURIAE (1)

Amici curiae are a national environmental organization and ten law professors. The Natural Resources Defense Council, which has 1.2 million members and supporters, uses law and science to secure a safe and healthy environment for all living things. The amici law professors are teachers and students of environmental law, and have a longstanding interest in how the principles of equitable relief are applied in environmental cases.

The amici believe this is a case where respondents have readily met the traditional "likelihood of irreparable injury" requirement. The district court and court of appeals both expressly applied that test and found that irreparable injury was likely to occur. No good cause exists for this Court to revisit that factbound ruling. Petitioners, however, seek in their brief to inject a new legal issue, not raised below, by suggesting that the "likelihood" standard requires a rigid application of a "more likely than not" test for the probability of harm, irrespective of its potential magnitude. This case does not provide the appropriate vehicle to consider the validity of this newly-proffered test, not passed on by the courts below. In any event, the proposed standard is without merit. Should the Court decide to address the issue, it should therefore squarely reject the proffered standard. The sole purpose of this amicus submission is to address this issue in case the Court decides to consider it.

A further description of the amid is set forth in an Appendix to this brief.

SUMMARY OF THE ARGUMENT

It is hornbook law that courts may issue injunctions only where there is a likelihood of irreparable injury. See, e.g., Winter v. Natural Res. Def. Council, 129 S. Ct. 365, 375 (2008) (dicta), and City of Los Angeles v. Lyons, 461 U.S. 95, 111 (1983) (requiring a "sufficient likelihood" of such injury). Monsanto Co. ("Monsanto") argues that this formulation denies courts the power to issue injunctions in response to threatened harms, no matter how serious their potential consequences, unless those harms are more than 50% likely to materialize. Brief for Monsanto ("Petr.'s Br.") 33, 41-47. This argument wrongly assumes that the term "likelihood" connotes "more likely than not" in this context. It also ignores the basic principle that whether a threatened harm is "sufficiently likely" turns on both the probability of its occurrence and the severity of its consequences should it occur.

Monsanto's reading of the traditional equitable test is both illogical and ahistorical. Under its approach, for example, courts would be unable to enjoin the maintenance of severe fire hazards in residential areas if the risks of conflagration were "only" 40%. Similarly, a court would be powerless even where a simple injunctive order might be all that is required to preclude a 50% chance that a lethal virus would be introduced to New York City's water supply.

As will be shown below, the courts of equity long have used both public and private nuisance principles to halt conduct and address conditions posing serious threats to the public weal, regardless of whether the feared harm was more likely than not to come to fruition. While at first there were not many cases, their numbers have increased over the years. Where the threats have been sufficiently serious, the courts have simply deemed the circumstances giving rise to them to be nuisances, which in turn has enabled them to issue injunctive relief where necessary to achieve equity. In case after case, the courts have applied these dynamics without requiring that the harm be preponderantly likely to occur. In effect, where faced with sufficiently serious threats of irreparable harm, courts have recognized that the threats themselves constitute a likely and enjoinable injury, under bedrock principles of equity jurisdiction.

That courts show an increasing tendency to focus on the overall significance of the relevant...

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