SEATTLE UNIVERSITY LAW REVIEWVolume 37, No. 1, Fall 2013
A Mild Winter: The Status of Environmental Preliminary Injunctions
Sarah J. Morath(fn*)
Since the enactment of environmental legislation in the 1970s, the preliminary injunction standard articulated by the Supreme Court for environmental claims has evolved from general principles to enumerated factors. In Winter v. Natural Resource Defense Council, Inc., the Court's most recent refinement, the Court endorsed but failed to explain the application of a common four-factor test when it held that the alleged injury to marine mammals was outweighed by the public interest of a well-trained and prepared Navy.(fn1) While a number of commentators have speculated about Winter's impact on future environmental preliminary injunctions, this article seeks to more precisely determine Winter's effect. It does so by providing a quantitative and qualitative analysis of data collected from federal district and circuit courts three years before and three years after Winter.
This data demonstrates that not only has the number of injunctions granted and denied stayed relatively consistent but most trial courts have not altered their approach to environmental preliminary injunction requests. Instead, they continue to look to their circuit court rather than the U.S. Supreme Court for guidance when reviewing these requests. Several circuit courts have addressed Winter, and apart from the Fourth Circuit, these circuits reconciled Winter with their earlier preliminary injunction standard. Thus, while Winter's effect is significant in form, it is mild in substance.
INTRODUCTION
The motion for preliminary injunction is a popular tool used by environmental plaintiffs.(fn2) While the factors used to evaluate preliminary injunctions have been established for some time, the application of these factors has varied.(fn3) The "dizzying diversity of [preliminary injunction] formulations"(fn4) resulted in "confusion"(fn5) among courts.(fn6) In the environmental context,(fn7) one scholar recently remarked that "the supply of [preliminary injunctions] is notoriously uneven, subject to misappropriation, and of a perennially-questioned legal pedigree."(fn8) Judges have called for a "uniform federal standard,"(fn9) and scholars have requested "order of a doctrine applied in so many disparate settings."(fn10) Winter is one of several recent Supreme Court decisions that attempt to clarify this doctrine.(fn11)
Before Winter, the Court had three opportunities to articulate a clear preliminary injunction standard and a clear application of this standard for alleged violations of environmental statutes.(fn12) In each decision, the Court relied on general principles instead of a precise formula when reviewing the injunction request.(fn13) In Winter, the Court refined these earlier decisions and, for the first time, endorsed a four-factor test for preliminary injunctions: "A plaintiff seeking a preliminary injunction 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 equities tips in his favor, and that an injunction is in the public interest."(fn14) Thus, the Court clarified the relevant preliminary injunction factors in environmental cases.(fn15) In particular, the Court reinvigorated the public interest factor, a factor that had effectively fallen by the way side, and cast doubt on but did not eliminate a flexible application of all four factors.(fn16)
Even before Winter most lower courts agreed that four factors should be evaluated as part of an injunction request.(fn17) What courts struggled with and what the Court in Winter failed to fully explain was the application of these factors.(fn18) For example, should all factors have the same weight? Should certain factors be considered threshold factors? Do all factors need to be evaluated? Because the Court failed to describe how the four factors relate to each other or to the greater purposes of a preliminary injunction,(fn19) Winter failed to answer the more pressing question: how should a trial court apply these factors?
Consequently, Winter's significance has been debated. Some commentators predicted that because of its unique facts and narrow holding, Winter's applicability would be limited to only those injunction requests involving homeland security or military preparedness.(fn20) Others criticized Winter for creating a higher preliminary injunction standard by raising the bar for a requisite showing of irreparable harm,(fn21) most likely making it more difficult for environmental plaintiffs to succeed in their future requests for preliminary injunctions.(fn22) Courts too have characterized the Winter standard as being "more rigorous."(fn23)
Assessing these concerns requires an understanding of earlier Court precedent addressing environmental preliminary injunctions. Many scholars believe that these earlier decisions created a more lenient standard unique to environmental plaintiffs.(fn24) They argue that Winter has somehow disrupted the existing standard for environmental plaintiffs.(fn25) Environmental practitioners have a similar perspective: Winter has "had a stifling effect" on environmental plaintiffs.(fn26) Many environmental organizations have abandoned the preliminary injunction route because "Winter has implicitly raised the bar."(fn27)
Absent from this discussion, however, is any study evaluating whether, post-Winter, the preliminary injunction standard is more stringent and whether courts are more reluctant to issue injunctions. A more fundamental question is whether post-Winter trial courts approach environmental preliminary injunctions differently.
This Article explores these questions through an analysis of quantitative and qualitative data collected from federal district and circuit courts three years before and three years after Winter. The quantitative analysis counts the number of environmental injunctions granted, denied, or granted in part and denied in part during this time, while the qualitative analysis evaluates the content of the judicial decisions focusing on the preliminary injunction standard cited and the manner in which the preliminary injunction factors are evaluated.
In Part I, the Article begins by tracing the evolution of the environmental preliminary injunction standard from general principles to the precise four-factor preliminary injunction standard articulated in Winter. Part II describes the Winter decision and highlights concerns from academics about the Winter decision and its application by trial courts. Part III explains the study designed to evaluate changes in the environmental preliminary injunction standard in light of Winter's pronouncement of a four-factor standard and presents the qualitative and quantitative results of this study. Part IV then provides an assessment of these results. Part V concludes.
Briefly, the quantitative data suggests little change. Injunctions overall were denied 51.5% of the time pre-Winter, compared to 53.6% of the time post-Winter. Injunction requests under the National Environmental Policy Act (NEPA), the most commonly used environmental statute, were denied 53.6% of the time pre-Winter compared to 55.1% of the time post-Winter. Similarly, the qualitative data shows little change in the injunction standard used by trial courts post-Winter. Trial courts continue to look to their circuit court for guidance on what standard to apply. Seven circuit courts (the Second, Third, Fourth, Seventh, Eighth, Ninth, and Tenth) have addressed their standard, either implicitly or explicitly, in light of Winter, and of these circuits, only the Fourth Circuit has expressly held that Winter invalidates its earlier standard.(fn28)
Given the disconnect between what scholars argue, what environmental practitioners perceive, and what the quantitative and qualitative data demonstrate, perhaps the full effects of Winter have not yet emerged. Scholars and practitioners agree that the preliminary injunction standard is at a crossroads,(fn29) and Winter is unlikely to be the final word on preliminary injunctions.(fn30) In the absence of further clarification from the Court, this article offers a starting point for discussing the appropriate preliminary injunction standard for environmental cases. The time is ripe for discussing the appropriate standard for preliminary injunctions gener-ally,(fn31) environmental injunctions more specifically, the role of statutes in evaluating the injunction request,(fn32) and the interrelationship between the four preliminary injunction factors. (fn33)
I. THE EVOLUTION OF THE ENVIRONMENTAL PRELIMINARY INJUNCTION
The Winter appeal was not the first time the Court evaluated a preliminary injunction arising from a violation of an environmental statute. With the enactment of environmental statutes in the early 1970s, an era of citizen enforcement of environmental statutes followed.(fn34) Injunctive relief quickly became the most common form of remedy sought by citizens suing federal agencies in an environmental case.(fn35) In such cases, a court would balance the potential harms to each party before deciding whether to enjoin the challenged conduct.(fn36) Through citizen enforcement actions, the Court issued a series of decisions addressing environmental preliminary injunctions: Tennessee Valley...
