Lower courts make rare remedies run-of-the-mill in environmental litigation

March 15, 2017 | By JOHANNA TALCOTT

Artistic rendering of the district court’s analysis

It’s not easy to write a punchy opening sentence for a blog post about preliminary injunctions. They aren’t the most thrilling of legal issues. But in the world of environmental litigation, preliminary injunctions—orders from the court for a defendant to stop the activities at issue 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.

But that’s not really how things are supposed to go. The Supreme Court routinely describes the preliminary injunction as a “drastic and extraordinary” remedy that should be the exception rather than the rule. 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 (3) that the public interest favors the injunction.

So if preliminary injunctions should be rare, why do environmental plaintiffs have such an easy time getting them? Part of the reason is that the lower courts have developed their own formulations of the test, typically permitting a weaker showing on one of the elements to be offset by a stronger showing on another. Another reason is that some courts actually give the plaintiffs a boost—in Endangered Species Act cases, the Ninth Circuit always presumes the last two elements (balance of hardships and public interest) in favor of the plaintiffs.

Cascadia Wildlands v. Scott Timber Company­­–now on appeal before the Ninth Circuit–is a prime example of how combining the sliding scale with the ESA presumptions can play out.

Defendants 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. Both parties presented expert evidence that reached opposite conclusions about whether the murrelets actually occupied the land.

In analyzing the plaintiffs’ request for preliminary injunction, the court permitted a lesser showing on one end of the sliding scale: rather than demonstrating a likelihood of success on the merits, the plaintiffs were only required to show that “serious questions” exist as to the merits. Under Ninth Circuit precedent, that means the plaintiffs had a higher burden on the other side of the scale—they had to show 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. It was a sliding scale that didn’t slide!

And that wasn’t all the district court got wrong. On the irreparable harm element, it effectively permitted the plaintiffs to show merely a possibility of irreparable harm rather than the requisite likelihood. The Supreme Court says this is a no-go.

By combining the sliding scale test with the ESA presumptions, the court issued a preliminary injunction on a weak showing on just one of the elements. That hardly squares with the Supreme Court’s description of injunctive relief as “an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.”

We explain everything in much greater detail in our friend of the court brief filed yesterday in Cascadia Wildlands v. Scott Timber Company. Pacific Legal Foundation represented Oregonians in Action Legal Center, Oregon Home Builders Association, and Oregon Cattlemen’s Association. Read it here!