Natural Resources Defense Council, Inc. v. Grant

Misc. No. 979 (4th Cir. September 5, 1972)

There is little or no reason to require more than a nominal bond from plaintiffs who are seeking to enjoin a stream channelization project on the grounds that no adequate impact statement had been filed. The plaintiffs, who have no financial stake in the controversy, are acting as private attorneys general. Although the preliminary injunction (which was conditioned upon posting of a $75,000 bond) has been dissolved and an environmental impact statement has been filed, the plaintiffs have indicated their intention to attack the statement as inadequate; they should not again be met with the requirement of such a bond.

Counsel for Plaintiffs
J. G. Speth
Natural Resources Defense Council
1710 N Street, N.W.
Washington, D.C. 20036

Richard J. Wertheimer
Norton F. Tennille
Arnold & Porter
1600 20th Street, N.W.
Washington, D.C. 20036

Counsel for Defendants
John R. Hughes Assistant U.S. Attorney
P.O. Box 26707
Raleigh, North Carolina 27611

Stewart Schoenberg Land & Natural Resources Division
U.S. Department of Justice
Washington, D.C. 20530

[2 ELR 20556]

Haynesworth, C.J.

In this ecology case, the District Judge issued a preliminary injunction because no environmental impact statement had been filed. It was conditioned, however, upon the filing by the plaintiffs of a bond in the amount of $75,000. The bond was not filed, and the District Judge withdrew the preliminary injunction on that account. Meanwhile, however, an environmental impact statement had been filed, substantially changing the posture of the case.

The controversy is far from ended. The plaintiffs intend to attack the adequacy of the environmental impact statement and they seek a continuing injunction against commencement of the project until that question is determined. That is a question initially for the District Court, not for us, but the plaintiffs, organizations interested in conservation and having no financial interest in this controversy, are fearful that any further injunctive order will again be conditioned upon their posting a large bond.

Thus, they seek to prosecute an appeal and have requested a stay of the order dissolving the injunction. The defendants have countered with a suggestion of mootness.

Under all of the circumstances, we think an immediate remand of this case to the District Court appropriate.

Any further preliminary injunctive order should not be issued unless the District Judge, after examination of the environmental impact statement, is of the opinion that it is probably deficient, and that the plaintiffs more likely than not will prevail. If he satisfies himself on that score, there seems little or no reason for requiring more than a nominal bond of these plaintiffs, who are acting much as private attorneys general. If he finds no apparent deficiencies in the statement and little probability that the plaintiffs will ultimately prevail, he should deny all interim relief and await the conclusion of the hearing on the merits.

Since the defendants propose to proceed as rapidly as they can to advertise for bids and with the commencement of the project, we think a preliminary hearing on the approximateness of interim injunctive relief should be held promptly. If, for any reason, the District Court should find that it is unable to dispose of that preliminary matter prior to the time for letting contracts, then we would suggest the appropriateness of a temporary restraining order to preserve the status quo until the District Court can determine the appropriateness of interim injunctive relief.

Now, therefore, with the concurrence of Judge Craven and Judge Russell, it is ordered that the case be and it hereby is remanded to the District Court for the Eastern District of North Carolina.