In environmental litigation, preliminary injunctions—orders from the court for a defendant to stop challenged activities while a case proceeds—are a way of life. Environmental plaintiffs routinely seek and obtain preliminary injunctions that can grind expensive, multi-year projects to a standstill. They do so because courts “presume” that they meet some of the requirements for an injunction and then require only a minimal showing on the others. As amicus, PLF argues that the combination of presumptions and minimal showings means that the supposedly “rare” act of enjoining a defendant happens with regularity, to the detriment of fair and balanced administration of justice.
Scott Timber and Roseburg Forest Products purchased two tracts of land in Oregon’s Elliott State Forest with plans to harvest timber from 49 acres. Environmentalists sued to halt the proposed harvest, alleging that it would cause harm to the marbled murrelet, a seabird listed as threatened under the Endangered Species Act. The sides dispute whether the murrelets actually occupy the land but the court enjoined the harvest anyway. A preliminary injunction is supposed to be a “drastic and extraordinary” remedy and there are four elements a plaintiff must prove in order to be granted a preliminary injunction: (1) a likelihood of success on the merits, (2) a likelihood of irreparable harm, (3) that the balance of hardships tips in favor of the plaintiff, and (4) that the public interest favors the injunction. These factors are considered on a “sliding scale” whereby a weaker showing on one of the elements may be offset by a stronger showing on another.
When the court considered the environmentalists’ request for a preliminary injunction in this case, it did not require them to demonstrate a likelihood of success on the merits. Instead, they could show simply that “serious questions” exist as to the merits. This easily met factor should have meant that the environmentalists had a higher burden on the other side of the scale—that the balance of hardships strongly favors them (rather than just tips in their favor). Instead, the district court simply applied the ESA presumption and decided that was enough. Moreover, the court permitted the environmentalists to show merely a possibility of irreparable harm rather than the requisite likelihood. PLF’s amicus brief argues that by combining the sliding scale test with the ESA presumptions, the court improperly issued a preliminary injunction on a weak showing on just one of the four elements.