The Nickel Report

The federal authorizations required to construct major infrastructure and mineral-extraction projects are the product of years of administrative review and collaboration between agencies and the project proponents. Unfortunately, the issuance of those authorizations is followed quickly by legal challenges from environmental NGOs, which almost always include a demand for preliminary injunctive relief during the pendency of the challenge. If granted, these injunctions can delay the effectiveness of the authorization by years.

In 2008, the US Supreme Court decided Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7 (2008), and articulated a four-pronged legal standard for determining when preliminary injunctive relief is appropriate that emphasized that a plaintiff seeking such a relief must satisfy each prong. Many predicted that this would result in a reduction in the number of preliminary injunctions granted in challenges to authorizations issued under federal environmental laws.

We surveyed the lower courts to evaluate how Winter has been applied and whether, in fact, it has led to a reduction in the number of preliminary injunctions. The circuit courts have split three ways with regard to how they apply Winter. The first cluster follows the letter and spirit of Winter, citing the four prongs in the conjunctive and then evaluating the movant’s showing for each. The second cluster reads Winter narrowly to reconcile it with pre-Winter standards that weigh the prongs on a sliding scale test, rather than applying them as elements. The third cluster has left Winter’s effect open or unaddressed.

Given this landscape, we sought to evaluate empirically Winter’s impact on the frequency with which preliminary injunctions are granted in challenges under environmental protection laws. We reviewed 131 federal district court cases and 33 federal circuit court cases to identify trends. While the data are too limited to offer sweeping conclusions, we did observe the following:

• Nationwide, plaintiffs seeking preliminary injunctive relief in environmental challenges in federal district courts have a success rate of 29 percent.
• Federal district courts grant fewer preliminary injunctions now as compared to immediately after Winter.
• Federal district courts in circuits that fall into the first cluster (follow the letter and spirit of Winter) have granted preliminary injunctions at the lowest rate among the three clusters and below the nationwide average.
• Federal district courts in circuits that fall into the second cluster (read Winter narrowly and use the four prongs on a sliding scale) have considered the most preliminary injunction cases and match the nationwide average of 29 percent.
• Federal district courts in circuits that fall into the third cluster (have left Winter’s effect open or unaddressed) have granted preliminary injunctions at the highest rate among the three clusters and above the nationwide average.
• The DC Circuit is the most difficult circuit from which to obtain a preliminary injunction under environmental protection laws.

To learn more about the results of this analysis, read “An Empirical Look at Preliminary Injunctions in Challenges Under Environmental Protection Laws,” The Environmental Law Reporter®, 47 ELR 10397 (May 2017).