Preliminary injunctions in environmental lawsuits: the Ninth Circuit's discretionary approach in League of Wilderness Defenders v. Connaughton.

• Author: Myers, Lindsay Bregante

1. INTRODUCTION II. THE DOCTRINE OF PRELIMINARY INJUNCTIVE RELIEF III. THE FLEXIBLE STANDARD FOR PRELIMINARY INJUNCTIVE RELIEF IN WILDERNESS DEFENDERS A. LIKELIHOOD OF SUCCESS ON THE MERITS 1. Successful Supplemental Environmental Impact Statement Claim 2. Remaining Unsuccessful Claims B. Irreparable Harm C. The Balance of Hardships D. Public Interest IV. CONCLUSION I. INTRODUCTION

   At the turn of the twentieth century, the Pacific Northwest was the last unexploited frontier for the American timber industry. (1) A logging industry developed quickly and the national forests of the Pacific Northwest accounted for approximately half of all harvests from the national forest system as recently as 1982. (2) As a result of declining forest inventory, passionate debate frequently occurs between logging communities and environmental groups over national forest management. (3) In addition to timber, forests provide important ecosystem services, including purifying water, sequestering carbon, and providing shelter and habitat for plant and animal species. Among the "Key Findings" in a 2010 Resources Planning Act Assessment, the United States Department of Agriculture predicted that forest inventory and carbon stored in forests will peak between 2020 and 2040, and then decline through 2060. Concerns over the right to extract resources versus environmental conservation lie at the heart of League of Wilderness Defenders v. Connaughton (Wilderness Defenders), (6) a lawsuit that turned on important legal procedural issues. (7)

   In Wilderness Defenders, plaintiff-environmental groups League of Wilderness Defenders and Hells Canyon Preservation Council (LOWD) (8) sought to enjoin the Snow Basin Project, a forest management project in northeastern Oregon's Wallowa-Whitman National Forest. (9) LOWD filed suit on the grounds that the United States Forest Service (USFS) and the United States Fish and Wildlife Service (USFWS) violated the National Environmental Policy Act (NEPA) (10) and the Endangered Species Act (ESA)." In particular, LOWD sued to protect old growth forests from timber sales for private commercial logging. (12) The Snow Basin Project would disturb an area encompassing 29,000 acres of forest that provides habitat for elk and contains streams allegedly home to threatened bull trout. (13) On the other hand, the planned timber harvest would support a "vital part of the regional economy and help small communities" by providing about 300 jobs and approximately $275,000 in revenue. According to USFS, the project would provide timber, pulpwood, and firewood. (15) In addition, USFS would manage selective forest harvesting and controlled burning to "promote the development of more characteristic pine forests." (16)

   The critical legal issue in Wilderness Defenders involved the use of preliminary injunctive relief. (17) LOWD appealed from the denial of its motion for a preliminary injunction by the U.S. District Court for the District of Oregon. (18) On appeal to the Ninth Circuit, LOWD succeeded on just one of its five claims for a preliminary injunction, halting a portion of the largest timber sale in Wallowa-Whitman's recent history. (19) However, the Ninth Circuit arguably departed from Supreme Court precedent on the availability of a preliminary injunction as applied to these circumstances.

   Plaintiffs in an environmental lawsuit typically file for a preliminary injunction as one of their first steps, especially when challenging a permit or approval for a specific project. (20) A motion for preliminary injunction occurs after the plaintiff gets a foot in the door by establishing standing and the court requires the plaintiff to show more than the standing criteria. (21) The court must use the limited evidence available at an early stage in the litigation to weigh the danger of incorrectly awarding preliminary relief. (22) The court investigates the harm an erroneous interim decision may cause and tries to minimize that harm. (23) Once awarded, a preliminary injunction provides a plaintiff relief from further harm pending final adjudication of the dispute. (24) Preliminary injunctions are particularly important forms of relief in environmental cases, where harms are often inadequately redressed by money damages and are permanent or irreparable within the plaintiffs lifetime. (25)

   This Chapter analyzes the Ninth Circuit's discretionary approach to preliminary injunctive relief, despite Supreme Court precedent in Winter v Natural Resources Defense Council (Winter) (26) requiring courts to apply an inflexible, four-factor test. (27) Section II provides background on the preliminary injunctive relief doctrine and development of the modern standard through case law. Section III argues that the Ninth Circuit in Wilderness Defenders did not faithfully apply the Supreme Court's preliminary injunction standard from Winter and that certain factors in the Court's standard remain unclear. Finally, this Chapter concludes that environmental plaintiffs in the Ninth Circuit have benefited from the lack of clarity in Winter,; but should be wary of unsettled legal standards when seeking preliminary injunctive relief.

2. THE DOCTRINE OF PRELIMINARY INJUNCTIVE RELIEF

   The equitable remedy of injunction developed in the English Court of Chancery and the United States adopted the remedy in the Judiciary Act of 1789. (28) Traditionally, courts granted injunctive relief when a legal remedy was inadequate to satisfy the plaintiffs claim. (29) A specific standard for preliminary injunctive relief appeared at the end of the nineteenth century, requiring a plaintiff to show "a fair question to raise as to the existence of a right which he alleges and that he will suffer greater harm than the nonmovant if the injunction is not granted." (30) Today, plaintiffs rely upon Federal Rule of Civil Procedure 65 (FRCP 65) to file a motion for a preliminary injunction. (31) FRCP 65 requires notice to the adverse party when the court issues a preliminary injunction and permits the court to consolidate the hearing on a motion for a preliminary injunction with the trial on the merits. (32) However, FRCP 65 does not define the circumstances in which a court may grant a preliminary injunction, nor the standard to apply when determining whether to grant relief. (33) The lack of guidance in the federal rule allows courts to grant preliminary injunctive relief according to standards developed in case law. (34)

   The modern standard for preliminary injunctive relief requires federal courts to consider four factors: 1) the plaintiffs likelihood of success on the merits; 2) the prospect of irreparable harm; 3) the comparative hardship of the parties of granting or denying relief; and 4) the impact of relief on the public interest. (35) Prior to the Supreme Court's attempt to clarify the standard in Winter, the circuit courts applied these factors with significant variation. (36) On the first factor--the plaintiffs likelihood of success on the merits--courts applied derivations including a fair question on the merits, (37) a substantial probability of success, (38) a reasonable certainty, (39) or a clear right. (40) Certain courts used only two of the factors from the four-factor test. (41) Other courts used the factors to conduct a flexible balancing test. (42) For example, as recently as 2011 the Ninth Circuit applied a sliding scale version of a balancing test in which "a stronger showing on one element could offset a weaker showing on another." (43) The Supreme Court's approach to preliminary injunctions also lacked consistency. (44) In Winter, the Supreme Court attempted to end the lower courts' application of various deviations from the four-factor test. (45) The Court's ruling signaled that even plaintiffs in environmental lawsuits must satisfy the more onerous standard. (46)

   In Winter, the Supreme Court vacated a preliminary injunction restricting the Navy's sonar training due to alleged harm to marine mammals. (47) Chief Justice Roberts, writing for the majority, stated that "a preliminary injunction is an extraordinary remedy never awarded as of right." (48) The Court explained that the district court and Ninth Circuit had significantly understated" the burden the preliminary injunction would impose on Navy sonar trainings and ultimately the public interest in national defense. (49) The Supreme Court agreed with the Navy that the Ninth Circuit's "possibility" of irreparable injury standard was too lenient and that plaintiffs must show that irreparable injury is likely: (50) The Court announced the preliminary injunction standard as the four-factor test rather than a balancing test. (51) However, Justice Ginsburg's dissent endorsed the "sliding scale approach to equitable relief, which would allow courts to grant relief when plaintiffs show high likelihood of success, though lower likelihood of harm. (52) Justice Ginsburg noted that the Supreme Court "never rejected that formulation" in past decisions, nor had it formally done so in the Winter majority opinion. (53) Interpreted broadly, the Court restricted preliminary injunctions to extraordinary" circumstances. (54) However, construed narrowly, the Court declined to decide the likelihood of success on the merits and the irreparable harm factors, and rested its holding primarily on the public interest factor. (55) Therefore, the following careful analysis of Winter reveals continued uncertainty surrounding the Supreme Court's preliminary injunction standard.

   After the Supreme Court decided Winter, some circuits found that their flexible preliminary injunction standards could not be reconciled with the Supreme Court's decision. (56) However, the Ninth Circuit continues to exhibit a highly discretionary approach to preliminary iryunction motions. (57) The Ninth Circuit relied on Justice Ginsburg's dissent in Winter to apply a variation of the sliding scale approach in Alliance for the Wild Rockies v...