CHAPTER 13 THE UNCERTAIN QUESTION OF REMEDIES SHOULD A CHALLENGE PREVAIL
| Jurisdiction | United States |
(Sep 2016)
THE UNCERTAIN QUESTION OF REMEDIES SHOULD A CHALLENGE PREVAIL
Partner
Hogan Lovells US LLP
Denver, CO
Ana Maria Gutierrez 1
Senior Associate
Hogan Lovells US LLP
Denver, CO
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JENNIFER L. BIEVER is a Partner with Hogan Lovells US LLP, in Denver, Colorado. Jennifer assists energy and natural resource companies in evaluating, commenting on, complying with, and contesting state and federal regulatory regimes affecting environmental requirements and compliance. Jennifer also assists companies in the implementation of compliance evaluation programs, in the handling of environmental enforcement matters, with due diligence in transactions involving such environmental requirements, with permitting or significant and comprehensive natural resource projects, and with litigation related to such permitting actions.
ANA MARIA GUTIERREZ is a Senior Associate with Hogan Lovells US LLP, in Denver, Colorado. Ana analyzes, comments on, and contests state and federal regulatory issues affecting project development and operational compliance. She also provides counsel to companies in the implementation of compliance programs, environmental enforcement matters, and due diligence in transactional matters. As part of these efforts, she evaluates potential environmental liabilities and risk in complex and comprehensive project permitting, particularly for natural resource projects. Ana also litigates development and natural resource projects, including matters related to the National Environmental Policy Act, the Endangered Species Act, the Clean Air Act, the Clean Water Act, as well as various other federal environmental statutes.
This paper examines those remedies available to successful litigants of natural resource decisions by federal agencies. Whether a decision to list an endangered species, promulgate a new rule related to use of public lands, adopt a land use management plan, or issue a special use permit to a user of public lands (to name a few), challengers of such decisions have both interim and final relief available to them should they prevail in their claims. This paper examines both the interim injunctive relief and the remedies often granted to successful litigants. Specifically, this paper evaluates substantive and procedural factors that influence the type, scope, and appropriateness of remedies - namely, injunction, vacatur, or remand, and examines patterns and precedents associated with the implementation of these remedies in different federal jurisdictions. This paper further examines various consequences of such remedies, namely final remedies, for litigants and other interested or impacted parties.
I. Interim Relief in Challenges to Federal Agency Natural Resource Decisions
Because a typical federal court case lasts over a year and often longer, plaintiffs challenging an agency action frequently request that courts order preliminary injunctions or temporary restraining orders (TRO) to prohibit the implementation of or activities pursuant to the contested action during the pendency of the litigation.
Generally, courts impose preliminary injunctions and TROs to maintain the status quo and prevent irreparable injury during the course of the litigation. In the context of natural resource and environmental litigation, a preliminary injunction or TRO can limit or eliminate any environmental impacts prior to the court's analysis of and decision on the merits of the case. Thus, these provisional remedies are considered "preliminary" and distinguishable from permanent injunctions.2 Courts more frequently impose preliminary injunctions than TROs. Though TROs are the functional equivalent of a preliminary injunction, a TRO requires plaintiffs to demonstrate the need for immediate relief and a TRO lasts only for a limited period of time.3 As demonstrated below, plaintiffs face a high burden to establish the need for either form of preliminary relief.
II. Preliminary Injunction
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Federal Rule of Civil Procedure 65 authorizes a federal district court, in its sound discretion, to grant preliminary injunctions and TROs.4 Rule 65(a) provides the court some guidance on the process associated with a motion for preliminary injunctions; however, traditional principles of equity at common law and the statutes upon which plaintiffs base their claims frame the court's analysis of whether to grant a preliminary injunction.
Federal courts consider four factors in determining whether to grant a preliminary injunction.
(1) The probability the plaintiff will succeed on the merits of its substantive claims;
(2) The likelihood of irreparable injury or harm to the plaintiffs;
(3) The balance of hardships between the parties; and
(4) The public interest. 5
This paper first describes how the federal courts generally apply the four-factor test and then explains what each of the four factors mean and how courts implement the standard.
The U.S. Supreme Court requires evaluation and some demonstration under all four factors, yet it has not articulated the precise relationship between the factors and the relative weight that a court should give each factor during a preliminary injunction analysis. As a result, some federal circuits apply the four factors rather flexibly while others invoke a sequential and much stricter approach. Specifically, courts in several circuits and in district courts have imposed a sliding-scale test under which a strong demonstration of one or more of the four factors can compensate for any weakness in the other factors.6 The failure of the Court to articulate the relationship between each of the four factors has resulted in a wide range of decisions in the circuits and at the district court level.
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In 2008, the Court decided Winter v. Natural Resources Defense Council, Inc.,7 now considered the preeminent preliminary injunction decision in the environmental and natural resources context. In Winter, the Court confirmed that courts must find irreparable injury to be likely, not just a possibility, in order to issue a preliminary injunction.8 The Court did not address the remaining factors in the preliminary injunction analysis and conspicuously did not mention the sliding-scale test or similar models. Thus, despite this definitive articulation regarding the likelihood of irreparable injury, uncertainty remains regarding the application of the sliding-scale test (or any similar alternative test) to the success on the merits prong, particularly when courts find irreparable injury to be likely.
Even after the Court's decision in Winter, courts in both the D.C. and Tenth circuits continue to apply a modified sliding-scale test whereby "[i]f the showing in one area is particularly strong, an injunction may issue even if the showings in other areas are rather weak."9 In fact, district courts in the Tenth Circuit have evaluated and upheld the Tenth Circuit's sliding-scale test in light of Winter's silence regarding the sliding-scale test, citing Tenth Circuit precedent as guidance.10 Specifically, in Hillsdale Environmental Loss Prevention, Inc. v, U.S. Army Corps of Engineers,11 the U.S. District Court for the District of Kansas confidently reasoned that because the Supreme Court in Winter neither specifically addressed its modified test nor endorsed it, the court must continue to follow Tenth Circuit precedent, "which appears to recognize the continuing validity of the modified test post- Winter".12
In the D.C. Circuit, courts have continued to apply the sliding-scale test on its face, but in virtually all instances since Winter have determined that a preliminary injunction was not warranted even under the less demanding sliding-scale analysis.13 As a result, the D.C. Circuit
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has not had an opportunity to decide whether the sliding-scale test survives Winter. However, at least one D.C. Circuit decision indicates that it would conclude that the sliding-scale test did not survive Winter.14 In Sherley v. Sebelius, the D.C. Circuit read Winter at least to suggest, if not to hold, "that a likelihood of success is an independent, free-standing requirement for a preliminary injunction."15
The Ninth Circuit has struggled in determining whether to uphold the sliding-scale test after Winter.16 Prior to Winter, the Ninth Circuit, without hesitation, applied a sliding-scale test much like those in the D.C. and Tenth circuits where a "serious [question] going to the merits and a hardship balance that tips sharply toward the plaintiff can support issuance of an injunction, assuming the other two elements of the Winter test are also met."17 The Ninth Circuit refers to this test as the "serious questions" test. In 2009 (post-Winter), the Ninth Circuit affirmed a district court's use of the serious questions test in granting a preliminary injunction but acknowledged that "the validity of the district court's approach is questionable post-[Winter]."18 Despite that opinion questioning the validity of the serious questions test post-Winter, in other instances, and as recently as 2014, invoked the "serious questions" approach when applied as part of the four-element Winter test."19
These different articulations by the different circuits could result in another Supreme Court decision on the scope of the preliminary injunction standard and the use of a sliding-scale test with respect to the likelihood of success on the merits. At least one Supreme Court justice, Justice Ginsburg, believes that Winter does not foreclose the use of sliding-scale tests such as the serious questions tests. In her dissent in Winter, Justice Ginsburg stated:
Flexibility is a hallmark of equity jurisdiction . . . . Consistent with equity's character, courts do not insist that litigants uniformly show a particular, predetermined quantum of
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probable success or...
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