Some Ninth Circuit Panels Adhere to Own Test for NEPA Injunctions, Despite Supreme Court Mandate

Last June, in the case of Monsanto Co. v. Geertson Seed Farms (Geertson Seed),[1] the Supreme Court held that the Ninth Circuit had misapplied the standard for issuing an injunction in a NEPA case and reiterated that federal courts must follow the four-part standard for injunctive relief the Court previously announced in Winter v. Natural Resources Defense Council.[2]The case had particular significance in the West, where, in a number of cases involving the use of public lands, Ninth Circuit panels had enjoined development based on a showing of the possibility of harm, as long as the cases raised “significant” legal issues. In Gertson Seed, the Supreme Court ordered the Ninth Circuit to apply the same standard being applied by the other circuits – requiring showings of irreparable injury, inadequacy of legal remedies, a balance of hardships tipping in favor of the party seeking the injunction and consideration of the public interest.[3]

In the six months since Geertson Seed was announced, lower courts – including those in the Ninth Circuit – have generally done so. But at least some Ninth Circuit judges appear to still be looking for a way to retain their sliding scale standard in NEPA cases.

Background and Procedural History

Geertson Seed presented the Supreme Court with the issue of whether cases arising under the National Environmental Policy Act (NEPA)[4] are subject to a standard for injunctive relief more favorable to NEPA plaintiffs, effectively affording project opponents with a presumption of irreparable harm. In the case below, the Ninth Circuit upheld a district court’s decision to permanently enjoin the planting of genetically modified “Roundup Ready” alfalfa (RRA) nationwide, pending preparation of an environmental impact statement under NEPA.[5]

In Geertson Seed, the Supreme Court relied heavily on its 2008 opinion in Winter v. Natural Resources Defense Council, another NEPA case.[6] Both the opinion in Geertson Seed and the opinion in Winter were reviewed in this newsletter at the time they were issued. See S. Jones, Supreme Court Reasserts Standard for Injunctive Relief in NEPA Cases, Marten Law Environmental News (June 28, 2010); S. Brandt-Erichsen, Supreme Court Rules on Preliminary Injunction Standard in Environmental Cases, Marten Law Environmental News (Nov. 13, 2008).

Geertson Seed initially arose out of a challenge to the Animal and Plant Health Inspection Service’s decision to grant a petition to deregulate Roundup Ready Alfalfa after preparing an environmental assessment under NEPA and issuing a Finding of No Significant Impact. A number of environmental groups challenged this action under NEPA, the Endangered Species Act, and the Plant Protection Act. In February 2007, District Judge Charles Breyer found that the petition raised “substantial questions” regarding the possibility of transmission of the engineered gene to organic and conventional alfalfa and, without holding an evidentiary hearing, Judge Breyer vacated the federal defendants’ decision deregulating RRA and entered a nationwide injunction against all future planting of RRA nationwide, pending APHIS’ completion of an EIS.[7]

The Ninth Circuit affirmed. In sustaining the district court’s decision not to hold an evidentiary hearing, the Ninth Circuit conceded that a district court must generally hold such a hearing before issuing a permanent injunction “unless the adverse party has waived its right to a hearing or the facts are undisputed.”[8] The Ninth Circuit found, however, that the injunction in the case “is not a typical permanent injunction.” Instead, because the injunction was designed to ensure compliance with NEPA, it was more limited in “purpose and duration.”

Full articles on both the district and appellate court decisions are available in earlier editions of this newsletter. See J. Ferrell, Ninth Circuit Upholds Permanent Injunction in NEPA Case Without Evidentiary Hearing, Marten Law Environmental News (Sept. 30, 2008); J. Ferrell, Faulty NEPA Analysis Results in Injunction Against Planting Genetically Modified Crops, Marten Law Environmental News (May 2, 2007).

In Geertson Seed, the Supreme Court Required a Showing of Irreparable Harm, Even Under NEPA

In reversing the Ninth Circuit, the Supreme Court made clear that its “traditional four-factor test applies when a plaintiff seeks a permanent injunction to remedy a NEPA violation.”[9]

By vacating the injunction, the Supreme Court rejected the approach taken by both the Ninth Circuit and the district court, noting that the approach taken by both courts “invert the proper mode of analysis.”[10]

[T]he statements above appear to presume that an injunction is the proper remedy for a NEPA violation except in unusual circumstances. No such thumb on the scales is warranted.… It is not enough for a court considering a request for injunctive relief to ask whether there is a good reason why an injunction should not issue; rather a court must determine that an injunction should issue under the traditional four-factor test set out above.[11]

The Ninth Circuit Attempts to Retain its Sliding Scale Test

While district court opinions and one First Circuit opinion have, without exception, adopted and applied the Winter test where injunctive relief has been sought (see below), in a decision issued after Geertson Seed, the Ninth Circuit has attempted to retain a version of a “sliding scale” test in environmental cases. The opinion was issued in the case of Alliance for the Wild Rockies v. Cottrell,[12] in which a unanimous Ninth Circuit panel concluded that the Supreme Court had not addressed the question of whether various flexible approaches to injunctive relief survived Winter.

Judge William Fletcher’s opinion stated that, notwithstanding the opinion in Geertson Seed, preliminary injunctive relief is still allowed on a weaker showing on the merits, so long as the balance of hardships imposed by an injunction “tips sharply” toward the plaintiffs, holding that the sliding-scale “serious questions” test still applies. Judge Fletcher wrote that the majority in Winter did not “explicitly discuss the continuing validity of the ‘sliding scale’ approach to preliminary injunctions employed by th[e Ninth Circuit] and others.” He pointed to Justice Ginsberg’s dissent in Winter, in which Justice Ginsberg stated that the “Court has never rejected [the sliding scale] formulation and I do not believe it does so today.”[13]

Applying the Winters factors in combination with the sliding scale approach, the Ninth Circuit found that injunctive relief was appropriate. It held that the petitioners, who were challenging salvage logging of burned trees without being subject to the Forest Service’s administrative appeals process, would suffer irreparable harm if prevented from using and enjoying 1,652 acres of forest. The Ninth Circuit found this interest was sufficient to establish likely irreparable harm, emphasizing that “environmental injury, by its nature, can seldom be adequately remedied by money damages and is often permanent or at least of long duration, i.e., irreparable.”[14]

With respect to likelihood of success on the merits, the Ninth Circuit determined that the plaintiffs raised “serious questions on the merits of its claim” regarding the validity of the emergency determination which negated the possibility of an administrative appeal.[15] Balancing the hardships, the Ninth Circuit found that the plaintiffs would suffer more harm than the Forest Service, as logging will result in “work and recreational opportunities [being] … irreparably lost,” while the Forest Service’s potential loss of between $16,000 and $70,000 in revenue, as well as its potential inability to mitigate the mistletoe infestation, did not weigh as heavily.[16] The Ninth Circuit weighed the public interest in (a) between 18 and 26 temporary jobs for one year and associated benefits to the local economy against (b) “preserving nature and avoiding irreparable environmental injury.”[17] The court determined that the scales tipped sharply toward the latter interest.

Other Courts Have Followed Geertson Seed, both Issuing and Denying Injunctive Relief, Based on Record Evidence

In addition to the Ninth Circuit’s opinion in Alliance for the Wild Rockies, there are a number of district courts and one opinion from the First Circuit in which the injunctive standard in Geertson Seed has been applied in environmental cases. In some instances, application of the standard has resulted in a denial of injunctive relief; in others, the courts have held that the standard has been satisfied and have entered injunctions.

The first opinion came in the case of Lands Council v. Cottrell.[18] There, an environmental group sued the Forest Service under NEPA and the National Forest Management Act (NFMA), claiming that the statutes were violated by authorization of commercial logging. Applying the standard in Geertson Seed and after already finding that the Forest Service had acted arbitrarily and capriciously, the court issued an injunction prohibiting all future sales and logging authorized until the Forest Service complied with both NEPA and NFMA. The court granted the injunction despite the Service’s contentions that the project, in the long term, would reduce potential for high severity or intensity fires, insect infestation, drought, and disease, and that the project would manage access to provide for multiple uses and provide economic benefits to local economy, where the Service had no confirmation that any old growth management indicator species actually existed in project area, and that money damages could not compensate for alleged threat to species viability.[19]

In Center for Food Safety v. Vilsack,[20] the district court refused to grant injunctive relief, finding that the Geertson Seed standard had not been met. This case arose from a challenge to a decision by the Animal and Plant Health Inspection Service to deregulate a variety of genetically engineered sugar beets without an EIS having been prepared. Pointing to the Supreme Court’s statement in Geertson Seed that “additional and extraordinary relief of an injunction” was not warranted if a less drastic remedy was available, the court held that vacatur of APHIS’ deregulation decision was sufficient to redress the plaintiff’s injury, since the genetically engineered beets would once again be subject to regulation.[21]

In Sierra Club v. Van Antwerp,[22] a district court took the same approach, refusing an injunction, but vacating the decision of the U.S. Army Corps of Engineers allowing discharge of fill into wetlands in order to allow for development of a shopping mall. Relying on Geertson Seed, the court found that the plaintiffs had failed to satisfy any of the four requirements for injunctive relief and, where it was possible that the agency could correct the challenged defects on remand and that no significant harm would result from keeping the agency’s decision in place, a remand with vacatur was the appropriate remedy, particularly where the permit applicant had stated it intended to continue to seek the fill permit.[23]

The First Circuit issued its opinion in Animal Welfare Institute v. Martin,[24] last October. The case was brought by animal protection groups to prevent the State of Maine from authorizing trapping of the Canada lynx, which is listed as a threatened species under the Endangered Species Act. The court sustained a district court’s denial of a permanent injunction, holding that, even if it assumed that an incidental take of the Canada lynx would violate the ESA, “[t]he questions before us have to do with the appropriate remedies for such a violation.”[25] Here, the district court “accept[ed] the principle that the death of a single animal” may call for an injunction in some circumstances, while in others “the death of one member is an isolated event that would not call for judicial action.” Based on this more nuanced approach, the district court rejected the request for a blanket injunction, though it did enjoin the use of a particular type of trap, an approach sanctioned by the First Circuit.[26]

Finally, Oregon Natural Desert Ass’n v. Tidwell,[27] was a challenge brought under the ESA and NFMA to the Forest Service’s and National Marine Fisheries Service’s decisions to allow a group of ranchers to graze cattle on allotments contained within the Malheur National Forest. The court had previously found that a “take” had occurred under § 9 of the ESA. Against that backdrop, the court found that the possibility of irreparable harm, the inadequacy of other remedies and the public interest all supported the plaintiffs’ request for a permanent injunction barring the grazing. Relying extensively on Geertson Seed, the court found that a potential injury to threatened steelhead and steelhead critical habitat, the fact that monetary damages would not serve as effective compensation and the lack of any significant harm to the federal defendants all justified an injunction, which it issued.[28]

Conclusion

While the Ninth Circuit purported to follow Winter in Alliance for the Wild Rockies, it actually did not. It is clear that at least some judges in the Ninth Circuit still believe they may employ a lower bar to order injunctive relief. That may preserve prospects for plaintiffs seeking injunctive relief within the Ninth Circuit – if they draw the right panel.

For more information, contact Steve Jones or any member of our Environmental Litigation or Permitting and Environmental Review practice groups.