balancing of harms, preliminary injunctive relief, and the Endangered Species Act
Yesterday PLF on ESA offered analysis on the Ninth Circuit's decision in The Lands Council v. McNair. On the same day, Keith W. Rizzardi also mentioned this case in discussing a lower decision out of the U.S. District Court for the District of Montana, Alliance for the Wild Rockies v. United States Forest Service, available here. The issue in the latter case was whether a federal logging project should be preliminarily enjoined under the Endangered Species Act due to the project's effects on the grizzly bear.
Rizzardi wonders if the analysis undertaken by the district court in Alliance for the Wild Rockies was "outdated" given The Lands Council. Whereas Alliance for the Wild Rockies made it clear that courts considering injunctive relief under the ESA may not balance the hardships of environmental concerns on the one hand versus economic and other concerns on the other, the Ninth Circuit in The Lands Council declared that "Our law does not . . . allow us to abandon a balance of harms analysis just because a potential environmental injury is at issue."
Setting aside the fact that Alliance for the Wild Rockies was issued before The Lands Council, Rizzardi raises an interesting question: Under The Lands Council, must courts in the Ninth Circuit engage in a traditional balancing of hardships when it comes to preliminary injunctive relief under the ESA?
At first glance, the answer appears to be no. While The Lands Council did indeed emphasize the importance of not abandoning traditional equitable analysis in environmental cases, it did so in considering claims under the National Forest Management Act and the National Environmental Policy Act, not the Endangered Species Act. Moreover, the authorities cited for the Ninth Circuit's declaration that "the Supreme Court has instructed us not to 'exercise our equitable powers loosely or casually whenever a claim of 'environmental damage' is asserted'" were Aberdeen & Rockfish R. Co. v. Students Challenging Regulatory Agency Procedures (SCRAP), 409 U.S. 1207, 1217-18 (1972), and Weinberger v. Romero-Barcelo, 456 U.S. 305, 313 (1982), neither of which involved the Endangered Species Act (although Romero-Barcelo did briefly discuss the ESA for a comparison to the Clean Water Act, the law that was at issue in the case).
While The Lands Council clarifies the Ninth Circuit rule for preliminary injunctions in most environmental cases, preliminary injunctions under the ESA fall under a different precedent, one that was not mentioned, let alone frowned upon, in The Lands Council. As the district court in Alliance for the Wild Rockies noted, the test for preliminary injunctive relief under the ESA — that is, "a plaintiff must demonstrate a combination of probable success on the merits and a reasonable likelihood of future harm . . . [and] [o]nce the plaintiff makes this showing, the court may not fine-tune its analysis by weighing the hardships of the parties" — is governed by two Ninth Circuit decisions: National Wildlife Federation v. Burlington Northern Railroad, Inc., 23 F.3d 1508, 1510-11 (9th Cir. 1994), and National Wildlife Federation v. National Marine Fisheries Service, 422 F.3d 782, 793-94 (9th Cir. 2005).
The main impetus behind the lack of balancing in the NWF decisions was not the mere existence of an environmental injury (a central concern of The Lands Council), but instead was the Supreme Court's ruling in TVA v. Hill, 437 U.S. 153 (1978). For instance, in Burlington Northern Railroad, the Ninth Circuit quoted TVA for the proposition that "[t]he 'language, history, and structure' of the ESA demonstrates Congress' determination that the balance of hardships and the public interest tips heavily in favor of protected species."
To relate this back to Rizzardi's question on whether the district court in Alliance for the Rockies engaged in a proper preliminary injunction analysis given the holding of The Lands Council, the fact that, as Rizzardi points out, The Lands Council is not an ESA case is an important one. Perhaps The Lands Council signals a greater likelihood, as Rizzardi implies, that the Ninth Circuit will "revisit its abandonment of the traditional analysis of equities in Endangered Species Act cases." But The Lands Council will do little to resolve the underlying issue: whether courts are precluded from engaging in a traditional equitable analysis for preliminary injunctions under the ESA. To answer this question, the Ninth Circuit will have to look not at The Lands Council, but instead should commit to a cautious re-examination of TVA, especially given the faults on this landmark U.S. Supreme Court decision.
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