NEPA, Preliminary Injunctions, and Animals

David Cassuto

A few days ago, I and a few colleagues from Pace and several other American law schools met at Shanghai Jiao Tong  University School of Law with a number of Chinese academics and members of the Chinese Ministry of Environment.  We were there because the Chinese government wanted our input as it attempts to reshape the country’s environmental law regime to make it more effective and enforceable.  Towards that end, the members of the Ministry were particularly interested in the United States’ National Environmental Policy Act (NEPA).

NEPA requires that federal agencies contemplating an action that could significantly impact the environment do an assessment to determine the scope and nature of those potential impacts.  This involves a preliminary Environmental Assessment (EA) and then, unless the EA makes clear that no significant environmental impact is possible, a full review in the form of an Environmental Impact Statement (EIS).

NEPA is purely procedural in scope; once an agency carries out a proper review, it can go forward with the proposed action regardless of the potential impact.  However, the assessment process often reveals potential mitigation measures and/or legal hurdles that can change or even halt a given project.

My presentation to the Chinese dealt with the 2008 Supreme Court case, Winters v. NRDC (129 S.Ct 365 (2008)).  In Winters, the NRDC filed suit to stop the Navy from using Mid-Frequency Active Sonar (MFA) during exercises off the California coast until it completed an EIS that adequately documented potential harms to marine mammals.  The Navy lost in the lower courts, where the district court issued (and the circuit court upheld) a preliminary injunction staying the exercise pending resolution of the lawsuit.  The Navy asked for and received an emergency exemption from the President’s Council on Environmental Quality (CEQ) relieving it from compliance with NEPA.  The Navy then went back to the lower courts asking that the injunction be lifted.  The lower courts refused – holding that the CEQ’s action violated the separation of powers.  The Navy appealed to the Supreme Court, which reversed on a number of grounds.

Principally, the Court held that national security interests trumped the environmental interests at stake and that the lower courts had applied the wrong standard when granting the preliminary injunction.  There is much one could say about this case, none of it good.  But I want to focus on the issue of preliminary injunctions because, in my opinion, it was here in this relatively arcane area of law that the most damage to environmental/animal law was done.

Preliminary injunctions (“PIs”) are an “extraordinary” remedy.  They halt the challenged activity while a court determines whether the activity may legally go forward.  This can mean costly delays and, if issued indiscriminately, could bring agency actions to a grinding halt.  Consequently, courts only issue PIs if plaintiffs can show a likelihood that they will prevail on the merits as well as the likelihood of irreparable harm if the action goes forward during the pendency of the lawsuit (as well as that the balance of equities weigh in favor of the injunction and that it is in the public interest).

The thing about applying this standard in NEPA cases is that NEPA is designed to determine whether the possibility of significant environmental impact exists.  If an agency does not do an EIS prior to initiating the action, the opportunity to do so is irretrievably lost.  Thus, requiring a plaintiff to demonstrate the likelihood of irreparable injury in order to halt an action while the agency conducts a study to determine if environmental harm is possible seems counter-intuitive and against the intent of the statute.  Practically speaking, this requirement forces plaintiffs to do the environmental impact review that the responsible agency should have done.

Courts of appeal had previously recognized that the typical PI standard did not work for NEPA.  For example, in Sierra Club v. Marsh (872 F.2d 497, 500-01 (1^st Cir. 1989), then Judge Breyer opined:

[T]he harm consists of the added risk to the environment that takes place when governmental decisionmakers make up their minds without having before them an analysis . . . of the likely effects of that decision upon the environment.  NEPA’s object is to minimize that risk, the risk of uninformed choice, a risk that arises in part from the practical fact that bureaucratic decisionmakers . . . are less likely to tear down a nearly completed project than a barely started project. . . .  [T]he district court should take account of the potentially irreparable nature of this decisonmaking risk when considering a request for preliminary injunction.

Unfortunately, the Winters Court did away with all this.  It ruled that the PI standard applied by the lower court – which had required a showing of the possibility of irreparable harm –was wrong.  It stated unequivocally that the “likelihood” standard would and should govern going forward.  As a result, environmental plaintiffs now face a significantly increased burden.

What does all this have to do with animals?  A lot.  First of all, NEPA actions often involve potential impacts to animals.  The Winters case itself dealt with the impact of sonar on marine mammals.

Under Winters the Court ruled that the Navy could continue its exercises without doing an EIS regardless of whether one would have been necessary.   And the sonar impacts on whales were, in fact, considerable. One can easily see how similar results could arise from other challenges to agency actions that pose a threat to animals.

In addition, the implications of Winters are not confined to NEPA.  Its ripples extend throughout environmental law and beyond.  For example, the Idaho district court’s recent ruling on whether wolf hunts should be permitted in Idaho and Montana demonstrates that the PI standard is already having a significant impact on other realms of environmental litigation.  Despite holding that the plaintiffs will likely prevail on the merits of their Endangered Species Act challenge to the hunt, the court cited Winters to support its finding that the plaintiffs had not demonstrated the likelihood of the hunt’s causing irreparable harm to the grey wolf.

I will not elongate an already inordinately long post with a discussion of the district court’s ruling (you can read a few thoughts here).  I will just note that in National Wildlife Federation v. Burlington N.R.R., Inc., (23 F.3d 1508,1512 n.8 (9^th Cir. 1994), the court noted that “a threat of extinction to the species is [not] required before an injunction may issue under the ESA” because “[t]his would be contrary to the spirit of the statute . . .”   Nevertheless, the court, claiming to be bound by Winters, denied the injunction request and allowed the hunt to proceed.

So here we have it.  Environmental plaintiffs face serious hurdles going forward.  Those hurdles have potentially serious implications for animals.  While the Chinese version of NEPA will necessarily be very different, here’s hoping that it does not similarly handcuff environmental plaintiffs.  This is already a tough enough country for animals.