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An Empirical Look at Preliminary Injunctions in Challenges Under Environmental Protection Laws

May 2017

Citation: 47 ELR 10397

Issue: 5

Author: George P. Sibley III and Jonathan L. Caulder

A preliminary injunction is an “extraordinary” and “drastic” equitable remedy. It should be granted only where the movant carries a heavy burden of persuasion that the requested relief is necessary. Environmental cases tend to involve large projects, such as interstate pipelines, mines, and highways, that have long-term impacts. Halting those impacts for a few months to allow for meaningful judicial review—even if it is not entirely clear that the plaintiff will succeed on the merits, and even if it may cost the company receiving the authorization substantial monies and reduce employment and economic benefits—can be alluring. This type of thinking had become increasingly prevalent in the federal courts before 2008, much to the consternation of regulatory agencies, regulated industries, and some legal scholars. The U.S. Supreme Court’s seminal decision in Winter v. Natural Resources Defense Council, Inc. offered hope for greater certainty and a higher bar for preliminary injunctive relief, especially in environmental litigation. This Comment discusses how the circuits' interpretation of Winter has led to further disagreement and examines the reasons for it.

George P. Sibley III is a Partner and Jonathan L. Caulder is an Associate in the Energy and Environmental Litigation Group at Hunton & Williams LLP.

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