Sierra Club, Inc. v. Bostick

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS October 9, 2013
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
SIERRA CLUB, INC.; CLEAN
ENERGY FUTURE OKLAHOMA;
EAST TEXAS SUB REGIONAL
PLANNING COMMISSION,
Plaintiffs-Appellants,
v.
LIEUTENANT GENERAL THOMAS No. 12-6201
P. BOSTICK, in his official capacity (D.C. No. 5:12-CV-00742-R)
as Commanding General and Chief of (W.D. Okla.)
Engineers of the U.S. Army Corps of
Engineers; MAJOR GENERAL
MICHAEL J. WALSH, in his official
capacity as U.S. Army Commanding
General for Civil and Emergency
Operations; COLONEL MICHAEL
TEAGUE, in his official capacity as
Tulsa District Commander of U.S.
Army Corps of Engineers; COLONEL
CHRISTOPHER W. SALLESE, in his
official capacity as Galveston District
Engineer of the U.S. Army Corps of
Engineers; UNITED STATES ARMY
CORPS OF ENGINEERS,
Defendants-Appellees,
and
TRANSCANADA KEYSTONE
PIPELINE LP; TRANSCANADA
CORPORATION; INTERSTATE
NATURAL GAS ASSOCIATION;
AMERICAN GAS ASSOCIATION;
ASSOCIATION OF OIL PIPE LINES;
AMERICAN PETROLEUM
INSTITUTE; UTILITY WATER ACT
GROUP,
Intervenors-Appellees.
ORDER AND JUDGMENT *
Before KELLY and HOLMES, Circuit Judges, and MARTÍNEZ, ** District
Judge.
Plaintiffs-Appellants Sierra Club, Inc., Clean Energy Future Oklahoma, and
East Texas Sub Regional Planning Commission (“Appellants”) sued Defendants-
Appellees United States Army Corps of Engineers, Thomas Bostick in his official
capacity as Commanding General and Chief of Engineers of the U.S. Army Corps
of Engineers, and three other Corps members in their official capacities—Michael
Walsh, Michael Teague, and Christopher Sallese—(collectively, “Corps”) 1 for
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Federal Rule of Appellate Procedure
32.1 and Tenth Circuit Rule 32.1.
**
The Honorable William J. Martínez, District Judge, United States District
Court for the District of Colorado, sitting by designation.
1
TransCanada Corp., TransCanada Keystone Pipeline LP, (collectively,
“TransCanada”), Interstate Natural Gas Association, American Gas Association,
Association of Oil Pipe Lines, American Petroleum Institute, and Utility Water Act
(continued...)
2
violations of the National Environmental Policy Act (“NEPA”), the Clean Water
Act (“CWA”), and the Administrative Procedure Act (“APA”) related to the
Corps’s approval of the construction of an oil pipeline to run from Cushing,
Oklahoma to oil refineries along the Gulf Coast near Port Arthur, Texas (“Gulf
Coast Pipeline”). Appellants sought a preliminary injunction to prevent
construction of the Gulf Coast Pipeline until the resolution of their suit. The
district court denied Appellants’ request for a preliminary injunction and this
interlocutory appeal followed. Exercising jurisdiction under 28 U.S.C.
§ 1292(a)(1), we affirm the district court’s denial of the preliminary injunction.
I
The Corps has the authority to issue individual and general permits
authorizing the discharge of dredged or fill material into the waters of the United
States. See 33 U.S.C. § 1344(a), (e). The Corps’s regulations set forth the
policies and procedures required for the Corps to issue general nationwide permits
(“NWPs”). In February 2012, the Corps reissued NWP 12, an NWP that allows,
inter alia, “the construction, maintenance, or repair of utility lines.” Aplt. App.
at 264 (77 Fed. Reg. 10,271, issued Feb. 21, 2012).
Also in February 2012, TransCanada announced plans to construct the Gulf
1
(...continued)
Group are Intervenors-Appellees in this suit. Because they filed a joint brief with the
Corps, our references to “Appellees,” for purposes of this appeal, include both the Corps
and Intervenors-Appellees.
3
Coast Pipeline—a 485-mile oil pipeline that was designed to run from Cushing,
Oklahoma to oil refineries along the Gulf Coast near Port Arthur, Texas. The
Gulf Coast Pipeline was originally proposed as part of a larger oil pipeline
(“Keystone XL Pipeline”) that was designed to run from Canada to the Gulf
Coast. TransCanada submitted pre-construction notifications regarding the Gulf
Coast Pipeline to three Corps districts—Galveston, Fort Worth, and Tulsa. The
Gulf Coast Pipeline was planned to run through the territory of these three Corps
districts, and TransCanada sought verification that its pipeline could proceed
under NWP 12. During June and July 2012, each Corps office verified that the
Gulf Coast Pipeline could proceed under NWP 12.
Appellants sued the Corps in the United States District Court for the
Western District of Oklahoma, challenging the validity of the Corps’s reissuance
of NWP 12 and the Corps’s verification that the Gulf Coast Pipeline could
proceed under it. Appellants alleged that these actions violated NEPA, the CWA,
and the APA in several respects. They moved for a preliminary injunction,
seeking to enjoin the Corps’s verifications. The verifications would permit
construction of the Gulf Coast Pipeline to commence; it was expected to start in
August 2012. Following a hearing, the district court denied Appellants’ motion
for a preliminary injunction. The district court determined that Appellants did not
have a likelihood of success on the merits and that the other equitable factors did
not favor granting the injunction. This interlocutory appeal followed.
4
II
A
We review the “grant or denial of a preliminary injunction for an abuse of
discretion.” Davis v. Mineta, 302 F.3d 1104, 1110–11 (10th Cir. 2002); accord
Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1128 (10th Cir. 2013) (en
banc), petition for cert. filed, 82 U.S.L.W. 3139 (U.S. Sept. 19, 2013) (No. 13-
354); Fundamentalist Church of Jesus Christ of Latter-Day Saints v. Horne, 698
F.3d 1295, 1301 (10th Cir. 2012). “An abuse of discretion occurs only when the
trial court bases its decision on an erroneous conclusion of law or where there is
no rational basis in the evidence for the ruling.” Awad v. Ziriax, 670 F.3d 1111,
1125 (10th Cir. 2012) (quoting Wilderness Workshop v. U.S. Bureau of Land
Mgmt., 531 F.3d 1220, 1223–24 (10th Cir. 2008)) (internal quotation marks
omitted). “Under an abuse of discretion standard, a trial court’s decision will not
be disturbed unless the appellate court has a definite and firm conviction that the
lower court made a clear error of judgment or exceeded the bounds of permissible
choice in the circumstances.” Somerlott v. Cherokee Nation Distribs., Inc., 686
F.3d 1144, 1152 (10th Cir. 2012) (quoting Wright ex rel. Trust Co. of Kan. v.
Abbott Labs., Inc., 259 F.3d 1226, 1235 (10th Cir. 2001)) (internal quotation
marks omitted). “We have previously characterized an ‘abuse of discretion’ as
‘an arbitrary, capricious, whimsical, or manifestly unreasonable judgment.’”
Wyoming v. U.S. Dep’t of Agric., 661 F.3d 1209, 1227 (10th Cir. 2011) (quoting
5
Attorney Gen. of Okla. v. Tyson Foods, Inc., 565 F.3d 769, 776 (10th Cir. 2009)),
cert. denied, --- U.S. ----, 133 S. Ct. 144 (2012).
A party seeking a preliminary injunction must prove that all four of the
equitable factors weigh in its favor: specifically, prove that “(1) it is substantially
likely to succeed on the merits; (2) it will suffer irreparable injury if the
injunction is denied; (3) its threatened injury outweighs the injury the opposing
party will suffer under the injunction; and (4) the injunction would not be adverse
to the public interest.” Beltronics USA, Inc. v. Midwest Inventory Distrib., LLC,
562 F.3d 1067, 1070 (10th Cir. 2009); see Winter v. Natural Res. Def. Council,
Inc., 555 U.S. 7, 20 (2008) (“A plaintiff seeking a preliminary injunction must
establish that he is likely to succeed on the merits, that he is likely to suffer
irreparable harm in the absence of preliminary relief, that the balance of equities
tips in his favor, and that an injunction is in the public interest.”); Conestoga
Wood Specialties Corp. v. Sec’y of U.S. Dep’t Health and Human Servs., 724 F.3d
377, 382 (3d Cir. 2013) (“A plaintiff seeking an injunction must meet all four
criteria, as ‘[a] plaintiff’s failure to establish any element in its favor renders a
preliminary injunction inappropriate.’” (alteration in original) (emphasis added)
(quoting NutraSweet Co. v. Vit-Mar Enters., Inc., 176 F.3d 151, 153 (3d Cir.
1999))), petition for cert. filed, 82 U.S.L.W. 3139 (U.S. Sept. 19, 2013) (No. 13-
356); Black Fire Fighters Ass’n v. City of Dall., 905 F.2d 63, 65 (5th Cir. 1990)
(“The denial of a preliminary injunction will be upheld where the movant has
6
failed sufficiently to establish any one of the four criteria.” (emphasis added)).
“[B]ecause a preliminary injunction is an extraordinary remedy, the right to relief
must be clear and unequivocal.” Beltronics, 562 F.3d at 1070 (quoting Greater
Yellowstone Coal. v. Flowers, 321 F.3d 1250, 1256 (10th Cir. 2003)) (internal
quotation marks omitted); see Winter, 555 U.S. at 22 (“[I]njunctive relief [is] an
extraordinary remedy that may only be awarded upon a clear showing that the
plaintiff is entitled to such relief.”); Munaf v. Geren, 553 U.S. 674, 689 (2008)
(“A preliminary injunction is an ‘extraordinary and drastic remedy[;]’ it is never
awarded as of right.” (citations omitted) (quoting 11A Charles Alan Wright et al.,
Federal Practice & Procedure § 2948, at 129 (2d ed. 1995))).
B
Our analysis begins and ends with the third preliminary injunction
factor—that is, whether Appellants’ “threatened injury outweighs the injury the
opposing party will suffer under the injunction,” Awad, 670 F.3d at 1125, or, as
characterized by the Supreme Court, whether “the balance of equities tips in
[Appellants’] favor,” Winter, 555 U.S. at 20. The district court concluded that the
threatened environmental injuries were outweighed by the financial harm that the
injunction would cause TransCanada. 2 Because we conclude that Appellants have
2
The parties do not dispute that the harm to TransCanada—which was
permitted to intervene as of right and without conditions, pursuant to Federal Rule of
Civil Procedure 24(a)(2)—is properly taken into account when considering the balance of
harms. Accordingly, we need not definitively opine here on whether such consideration
(continued...)
7
not carried their burden of demonstrating that the district court’s determination
regarding the balance of harms factor was an abuse of discretion, we affirm the
district court’s denial of the preliminary injunction. See Chem. Weapons Working
Grp., Inc. v. U.S. Dep’t of the Army, 111 F.3d 1485, 1489 (10th Cir. 1997) (“We
. . . affirm the district court’s denial of Plaintiffs’ request for a preliminary
injunction on the basis of its balance of harms finding, obviating the need to
address Plaintiffs’ other arguments justifying a preliminary injunction in this
instance.”); see also Herff Jones, Inc. v. Okla. Graduate Servs., Inc., 237
F. App’x 384, 388 (10th Cir. 2007) (affirming the denial of a preliminary
injunction solely on the ground that the district court did not abuse its discretion
in determining that the balance of harms weighed against the party pursuing a
preliminary injunction); cf. Winter, 555 U.S. at 23–24 (noting that plaintiffs’
2
(...continued)
is proper. Arguably, we have previously intimated as much. See Wilderness Workshop,
531 F.3d at 1231 (concluding that the district court’s balancing of harms that included
consideration of the harm to an intervenor was not an abuse of discretion); Nat’l Indian
Youth Council v. Andrus, 623 F.2d 694, 696 (10th Cir. 1980) (considering the “harm to
the defendants and intervenors,” and concluding that the “harm to the intervenors [was]
impressive”). And, consistent with that view, we have explicitly held that, when a party
intervenes as of right pursuant to Rule 24(a), “it becomes a full participant in the lawsuit
and is treated just as if it were an original party.” Alvarado v. J.C. Penny Co., 997 F.2d
803, 805 (10th Cir. 1993) (quoting Schneider v. Dumbarton Developers, Inc., 767 F.2d
1007, 1017 (D.C. Cir. 1985)) (internal quotation marks omitted); see 7C Charles Alan
Wright et al., Federal Practice & Procedure § 1920, at 609 (3d ed. 2007) (“Unless
conditions have been imposed, the intervenor is treated as if the intervenor were an
original party and has equal standing with the original parties.”); cf. Comanche Indian
Tribe of Okla. v. Hovis, 53 F.3d 298, 303 (10th Cir. 1995) (holding, for the purposes of
collateral estoppel, that an individual “became a party in the federal district court once
she intervened in the juvenile proceeding,” and citing Alvarado for this proposition).
8
failure on the balance of harms factor “alone require[d] denial of the requested
injunctive relief” (emphasis added)).
The district court determined that the balance of harms favors Appellees.
Specifically, it found that the harm an injunction would cause TransCanada was
significant—by the time of the August 2012 hearing, TransCanada had spent in
excess of $500 million on the pipeline and it was “undisputed that further delay
w[ould] cost hundreds of thousands of dollars each day.” Aplt. App. at 2001
(Dist. Ct. Order, dated Aug. 5, 2012). Moreover, the district court noted that
Appellants did not suggest that “they ha[d] the ability to post a bond to cover any
of the irretrievable loss should they ultimately lose.” Id. Weighing on the other
side of the scale were the environmental harms of concern to Appellants. The
district court was not impressed by the magnitude of these harms. Specifically, it
stated, “In essence, this is all over a loss of waters of the United States of less
than one acre . . . over the entire distance of the pipeline,” and that Appellants
“have failed to show that this project will have more than a minimal impact on the
environment.” Id. at 2002–03. In sum, the court ruled that Appellants had failed
to carry their burden of showing that the balance of harms factor tipped in their
favor. 3
3
We note that, although succinct, the district court’s findings were sufficient
to allow for meaningful appellate review. Federal Rule of Civil Procedure 52(a) requires
a district court, when granting or denying an interlocutory injunction, to make findings of
fact and conclusions of law “sufficient to make possible meaningful appellate review.”
(continued...)
9
3
(...continued)
FTC v. Kuykendall, 371 F.3d 745, 756 (10th Cir. 2004) (en banc). To comply with Rule
52(a), a district court’s findings of fact must be “‘sufficient to indicate the factual basis
for the court’s general conclusion as to ultimate facts’ so as to facilitate a ‘meaningful
review’ of the issues presented.” Wolfe v. N.M. Dep’t of Human Servs., 69 F.3d 1081,
1087 (10th Cir. 1995) (quoting Otero v. Mesa Cnty. Valley Sch. Dist., 568 F.2d 1312,
1316 (10th Cir. 1977)); see OCI Wyo., L.P. v. PacifiCorp, 479 F.3d 1199, 1204 (10th Cir.
2007) (“Rule 52(a) does not require the district court to set out its findings and
conclusions in excruciating detail. . . . ‘[T]he judge need only make brief, definite,
pertinent findings and conclusions upon the contested matters; there is no necessity for
overelaboration of detail or particularization of facts.’” (quoting Fed. R. Civ. P. 52
advisory committee’s note on 1946 Amendments)).
Although the sufficiency of the district court’s findings was not raised by either
party, we were constrained to inquire regarding the matter, to satisfy ourselves that there
is an adequate basis for our review. See Prairie Band of Potawatomi Indians v. Pierce,
253 F.3d 1234, 1245 (10th Cir. 2001) (noting that we “are compelled to address the issue
because, without adequate findings of fact and conclusions of law, appellate review is in
general not possible”). And we are satisfied on this score. Although the district court’s
findings with respect to the balance of harms were not expansive, they were sufficient to
comply with its obligations under Rule 52(a). See id. at 1246 (“Rule 52(a) does not
require ‘over-elaboration of detail or particularization of facts’ . . . .” (quoting Knapp
Shoes, Inc. v. Sylvania Shoe Mfg. Corp., 15 F.3d 1222, 1228 (1st Cir. 1994)). The district
court identified the harms it thought salient, attributed weight to them, and concluded that
the balance did not favor granting an injunction. This is sufficient and consonant with the
well-settled principle that the district court “need only make brief, definite, pertinent
findings and conclusions upon the contested matters.” OCI Wyo., 479 F.3d at 1204(citation omitted) (internal quotation marks omitted). In contrast, instances where we
have concluded that a district court’s findings were insufficient for meaningful appellate
review frequently have involved a court’s mere statement of its ultimate conclusion
without an accompanying articulation of the factual basis supporting its conclusion, or a
court’s complete failure to specifically address a relevant issue. See, e.g., id. at 1204–05
(holding that the district court’s findings were insufficient because it only stated “what
[it] found,” but not “why [it] ruled as it did”); Pierce, 253 F.3d at 1245–46 (finding that
the district court failed to comply with its Rule 52(a) obligations when it merely stated its
conclusion with respect to each of the four preliminary injunction factors); cf. Aid for
Women v. Foulston, 441 F.3d 1101, 1120–21 (10th Cir. 2006) (finding that the district
court abused its discretion because it “did not even evaluate whether there would be
irreparable injury,” and with respect to the balance of harms, it “did not even identify any
(continued...)
10
Before us, the Appellants’ failure to demonstrate that the district court
abused its discretion in balancing the harms, standing alone, is fatal to their
cause. In other words, to show that the district court committed reversible error,
Appellants had to demonstrate that the court’s ruling against them on the balance
of harms factor—an essential criterion for obtaining a preliminary
injunction—was an abuse of discretion. And Appellants’ showing in this regard
is woefully deficient. More specifically, Appellants do not expressly maintain
that any of the district court’s factual findings made in support of its balancing
were without support in the record. See Awad, 670 F.3d at 1125. Nor do
Appellants contend that the district court’s balancing of the harms “exceeded the
bounds of permissible choice in the circumstances,” Somerlott, 686 F.3d at 1152
(quoting Abbott Labs., 259 F.3d at 1235) (internal quotation marks omitted), or
that it was “arbitrary, capricious, whimsical, or [evinced a] manifestly
unreasonable judgment,” Wyoming, 661 F.3d at 1227 (quoting Tyson Foods, 565
F.3d at 776) (internal quotation marks omitted).
Instead, Appellants focus principally on their view of the environmental
harms that would flow from construction of the Gulf Coast Pipeline, and they
attempt to minimize the harms an injunction would impose on Appellees. For
3
(...continued)
possible harm to the Defendants” and only made a “vague” statement regarding the harm
to plaintiff).
11
example, relying on the Environmental Impact Statement prepared for the
Keystone XL Pipeline, Appellants argue that environmental harms from the Gulf
Coast Pipeline include “harm to soils, surface water and groundwater, wetlands,
vegetation, wildlife, fisheries, land use, recreation and special interest areas,
visual areas, air quality and noise and the significant rise of pipeline spills.”
Aplt. Opening Br. at 53. On the other hand, with respect to the harm an
injunction would inflict on Appellees, Appellants maintain that financial harm, as
a general matter, cannot weigh at all, see id. at 53 (“Economic harm is not
irreparable and does not provide an adequate basis for denying injunctive
relief.”), and that the specific financial harm of TransCanada should not be
accorded appreciable weight because it was “self-inflicted,” see id. at 54
(“TransCanada’s injuries are ‘self-inflicted’ and it assumed the risk that it would
not receive its permits as soon as expected.”).
However, as an initial matter, Appellants’ assertion that injunctive relief
cannot be denied based on a weighing of economic harm is mistaken. The
Supreme Court has recognized that financial harm can be weighed against
environmental harm—and in certain instances outweigh it. See Amoco Prod. Co.
v. Vill. of Gambell, 480 U.S. 531, 545 (1987) (“And on the other side of the
balance of harms was the fact that the oil company petitioners had committed
approximately $70 million to exploration . . . which they would have lost without
chance of recovery had exploration been enjoined.”). Indeed, we too have
12
recognized the appropriateness of weighing financial harm against environmental
harm. See Wilderness Workshop, 531 F.3d at 1231 (concluding that the district
court did not abuse its discretion in according greater weight in the balancing of
harms to the public’s interest in gas production and also certain financial
interests, over the threatened environmental injuries); see also Davis, 302 F.3d at
1116 (concluding that “the environmental harms . . . outweigh[ed] the
legitimately incurred [financial] costs . . . resulting from an injunction”).
In their attempt to minimize the harms a preliminary injunction would
inflict on Appellees, Appellants endeavor to challenge the district court’s
reasoning. After acknowledging that the district court found that TransCanada
had already spent over $500 million on the Gulf Coast Pipeline and that the
injunction (if implemented) would cost TransCanada significant sums, Appellants
have suggested that the district court erred because it “failed to note that
TransCanada spent these funds and entered into contracts [to build the Gulf Coast
Pipeline] before receiving Corps approval.” 4 Aplt. Opening Br. at 54. This, say
4
Appellants also state that the district court erred because it “failed to
recognize that TransCanada could mitigate its harm by working on other portions of the
project while an injunction prohibited construction in aquatic areas.” Aplt. Opening Br.
at 12. However, Appellants make no effort to develop this contention of error; they do
not mention it again in their briefing. Accordingly, we decline to consider it. See, e.g.,
Bronson v. Swensen, 500 F.3d 1099, 1104 (10th Cir. 2007) (“[W]e routinely have
declined to consider arguments that are not raised, or are inadequately presented, in an
appellant’s opening brief.”). Furthermore, in any event, Appellants’ observation about
mitigation does nothing to directly call into question the district court’s undisputed
finding that TransCanada already had expended more that $500 million on the pipeline
(continued...)
13
Appellants, makes Appellees’ financial harm “self-inflicted” and thus it should
not be accorded weight in the balance of harms. Assuming arguendo that
Appellants’ argument amounts to an assertion of legal error, see Aplt. Br. at 11
(“The district court committed legal error and abused its discretion in weighing
the equities[.]” (initial capitals and underlining omitted)), we find that no such
error occurred.
As we discuss below, there is some support in judicial decisions in our
circuit and elsewhere for the notion that “self-inflicted” harm should not be
accorded weight in the balance of harms. However, Appellants do not direct us to
any cases that would cause us on these facts to disregard TransCanada’s financial
harms as “self-inflicted.” Appellants principally rely on Davis, where, in
assessing the balance of harms, we concluded that much of the financial harm to
the state defendants—who opposed the injunction—which was caused by their
entry into certain contracts, should not be accorded appreciable weight because it
was “self-inflicted.” See 302 F.3d at 1112–13, 1116. Appellants’ reliance on
Davis, however, is misguided.
A close reading of Davis reveals that what led us to brand the state
defendants’ harm with the “self-inflicted” label, and decline to weigh it, was the
4
(...continued)
project by the time of the hearing, and that the injunction, if implemented, would cost
TransCanda a great deal of money, running into the hundreds of thousands of dollars per
day.
14
fact that the harm-inducing contractual conduct of those defendants, which
preceded the decisions of the federal agency defendant sought to be enjoined, was
predicated on the federal agency’s improper actions, and the impropriety of those
actions was attributable to the state defendants. As we characterized the situation
in Davis, “the state [defendants] involved in this case ha[d] ‘jumped the gun’ on
the environmental issues [to be decided by the federal agency defendant] by
entering into contractual obligations that anticipated a pro forma [federal agency]
result. In this sense, the state defendants are largely responsible for their own
harm.” Id. at 1116 (emphasis added). The state defendants expected a “pro forma
result” because they had been knowingly collaborating with the federal agency
defendant while it improperly “prejudged the NEPA issues.” Id. at 1112; see
Forest Guardians v. U.S. Fish & Wildlife Serv., 611 F.3d 692, 713 (10th Cir.
2010) (detailing the facts and holding of Davis, and noting that “Davis indicates
that if an agency predetermines the NEPA analysis by committing itself to an
outcome, the agency likely has failed to take a hard look at the environmental
consequences of its actions due to its bias in favor of that outcome and, therefore,
has acted arbitrarily and capriciously”).
In other words, defendants’ harm-inducing contractual conduct was
disregarded as “self-inflicted” in Davis (at least primarily) because it was
knowingly predicated upon the federal agency defendant’s improper or wrongful
conduct in predetermining its environmental decisions, and not simply because
15
the conduct occurred prior to the federal agency’s environmental decisions. In
support of this reading of Davis, it is noteworthy that the only case that Davis
cites in support of its “self-inflicted” holding is a decision (in an unrelated
commercial context) by the Third Circuit that focused on the wrongfulness vel
non of the conduct claimed to have produced the financial harm at issue in
deciding whether to disregard that harm as “self-serving.” See Pappan Enters.,
Inc. v. Hardee’s Food Sys., Inc., 143 F.3d 800, 806 (3d Cir. 1998); see also
Davis, 302 F.3d at 1116 (relying on Pappan Enters.). In Pappan Enterprises, the
Third Circuit ultimately declined to disregard the financial harm of the defendants
seeking the preliminary injunction as “self-inflicted,” because the court could not
directly tie the asserted financial harm to any legally cognizable misconduct by
defendants. See Pappan Enters., 143 F.3d at 806–07 (“We believe that
[defendants’] irreparable injury is not self-inflicted.”). In sum, it should not be
surprising that, in engaging in the quintessentially equitable task of balancing the
harms, we took into account in Davis whether the financial harms at issue
stemmed from wrongful conduct, in deciding whether they could be properly
disregarded as “self-inflicted.” Cf. Inst. of Cetacean Research v. Sea Shepherd
Conservation Soc’y, 725 F.3d 940, 947 (9th Cir. 2013) (“An injunction is an
equitable remedy. While the Winter factors ‘are pertinent in assessing the
propriety of any injunctive relief,’ traditional equitable considerations such as
laches, duress and unclean hands may militate against issuing an injunction that
16
otherwise meets Winter’s requirements.” (emphasis added) (citations omitted)
(quoting Winter, 555 U.S. at 32)); Shondel v. McDermott, 775 F.2d 859, 868 (7th
Cir. 1985) (“Today, ‘unclean hands’ really just means that in equity as in law the
plaintiff’s fault, like the defendant’s, may be relevant to the question of what if
any remedy the plaintiff is entitled to.”); Vaqueria v. Tres Monjitas, Inc., 587
F.3d 464, 480 (1st Cir. 2009) (“[W]e are skeptical of those who seek equitable
relief when they themselves have engaged in misconduct.”).
Viewed in this light, Davis is inapposite; there is no suggestion of similar
misconduct by TransCanada and the Corps here. In particular, Appellants do not
argue that TransCanada entered into contractual arrangements prior to the Corps’s
approval of the Gulf Coast Pipeline with the expectation that the approval would
be “a pro forma result”—that is, the product of the Corps’s improper
predetermination or prejudgment of the relevant issues. Cf. Silverton Snowmobile
Club v. U.S. Forest Serv., 433 F.3d 772, 781 n.2 (10th Cir. 2006) (discerning no
predetermination because “the agencies had no preexisting agreement with any
user group”); see also Wyoming, 661 F.3d at 1264 (“Th[e] high standard
articulated in Forest Guardians makes clear that predetermination is different in
kind from mere subjective impartiality.” (quoting Forest Guardians, 611 F.3d at
714) (internal quotation marks omitted)). Therefore, Appellants’ reliance on
Davis is misguided.
Appellants also support their “self-inflicted” argument with the Eighth
17
Circuit’s decision in Sierra Club v. U.S. Army Corps of Eng’rs, 645 F.3d 978 (8th
Cir. 2011). There, the Eight Circuit held that the district court did not abuse its
discretion in balancing the harms in favor of an injunction, at least in part,
because the financial harm to the party opposing the injunction was “largely self
inflicted.” See id. at 996–97. That decision, however, is legally and factually
distinguishable; accordingly, Appellants’ reliance on Sierra Club is also
misplaced. On the legal front, Sierra Club relied exclusively upon Davis for its
“self-inflicted” harm conclusion. Id. at 997. And, as we have discussed, Davis’s
“self-inflicted” harm holding was principally animated by misconduct concerns
that are not present here. Therefore, insofar as Sierra Club based its holding on
Davis, it is legally distinguishable. Sierra Club also involved factual
circumstances that are markedly different than those found in this case. There,
the party opposing the injunction began actual construction of a power plant over
one year before a CWA permit was issued and was warned by the Corps that this
construction would be done “at [their] own risk.” See id. at 996–97. In contrast,
here, while TransCanada’s mobilization for construction of the Gulf Coast
Pipeline began prior to the Corps’s authorization, the undisputed evidence
demonstrates that TransCanada did not begin actual construction of the pipeline
until after all three Corps offices had approved construction. Accordingly, Sierra
Club is also factually distinguishable. In sum, although we acknowledge that
there is some support in judicial decisions in our circuit and elsewhere for the
18
idea that “self-inflicted” harm should not be accorded weight in the balance of
harms, Appellants do not point us to any cases that would lead us to disregard
TransCanada’s financial harms as “self-inflicted” here.
Consequently, we are essentially left with an argument by Appellants that
involves a recitation of the various harms falling on each side of the scale. In our
view, such an argument amounts to a tacit request for us to balance the harms
anew. This, we will not do. Our focus is properly on whether the district court’s
balancing of harms manifested an abuse of discretion; simply pointing to evidence
in the record that would support a different balancing of the harms is not good
enough. See Winnebago Tribe of Neb. v. Stovall, 341 F.3d 1202, 1206 (10th Cir.
2003) (stating that a party’s “argument concerning the balance of harms . . . lacks
merit, [because it] effectively rais[es] only a difference of opinion as to
outcome”).
In other words, when reviewing a district court’s balancing of the harms for
an abuse of discretion, our charge is only to determine whether the balancing that
the district court performed was within the range of permissible choices, not
whether our own balancing would lead to a different result. See Re/Max N. Cent.,
Inc. v. Cook, 272 F.3d 424, 429 (7th Cir. 2001) (“The question for us is whether
the judge exceeded the bounds of permissible choice [in granting or denying a
preliminary injunction], not what we would have done if we had been in his
shoes.” (quoting Wis. Music Network, Inc. v. Muzak Ltd. P’ship, 5 F.3d 218, 221
19
(7th Cir. 1993)) (internal quotation marks omitted)); Oil, Chem. & Atomic
Workers Int’l Union, AFL-CIO, Local 2-286 v. Amoco Oil Co., 885 F.2d 697, 703
(10th Cir. 1989) (“[Abuse of discretion] review requires that we carefully
examine the district court’s exercise of its discretion, but ‘we may not . . .
substitute our own judgment for that of the trial court.’” (omission in original)
(quoting Tri-State Generation v. Shoshone River Power, Inc., 805 F.2d 351,
354–55 (10th Cir. 1986)); see also Rufo v. Inmates of Suffolk Cnty. Jail, 502 U.S.
367, 393–94 (1992) (O’Connor, J., concurring) (describing appellate review of
equitable decrees as “necessarily a task that entails substantial discretion,
particularly in a case like this one, where the District Court must make complex
decisions requiring the sensitive balancing of a host of factors. As a result, an
appellate court should examine primarily the method in which the District Court
exercises its discretion, not the substantive outcome the District Court reaches. If
the District Court takes into account the relevant considerations . . . and
accommodates them in a reasonable way, then the District Court’s judgment will
not be an abuse of its discretion, regardless of whether an appellate court would
have reached the same outcome in the first instance”); Zervos v. Verizon N.Y.,
Inc., 252 F.3d 163, 168–69 (2d Cir. 2001) (“When a district court is vested with
discretion as to a certain matter, it is not required by law to make a particular
decision. Rather, the district court is empowered to make a decision—of its
choosing—that falls within a range of permissible decisions.”); cf. United States
20
v. Lambert, 695 F.2d 536, 540 (11th Cir. 1983) (“A review of the record reveals
that although the district court might have issued an injunction, a denial was
clearly within its discretion.”).
Thus, Appellants have woefully failed to carry their burden of
demonstrating how the district court’s balancing of harms amounted to an abuse
of its discretion. That said, in any event, our review of the record suggests that
the district court’s balancing was well within the bounds of its discretion. The
district court concluded that the environmental harm was “minimal” 5 and that the
financial harm to TransCanada was significant. Furthermore, the court made
specific factual findings to support these conclusions that have clear support in
the record, and Appellants do not argue to the contrary. In this regard, we
highlight two of the key factual findings. First, we focus on the district court’s
finding that TransCanada has spent in excess of $500 million on the pipeline and
“that further delay will cost hundreds of thousands of dollar each day.” Aplt.
App. at 2001. Appellees put into the record undisputed evidence that they had
already spent $800 million on the Gulf Coast Pipeline and that an injunction
would cost them at least hundreds of thousands of dollars per day. See id. at 87
5
As Appellants note, the Supreme Court has stated that if environmental
harm is “sufficiently likely, . . . the balance of harms will usually favor the issuance of an
injunction to protect the environment.” Vill. of Gambell, 480 U.S. at 545. But this is
merely an observation, not an inexorable mandate. Indeed, in Winter, the Supreme Court
held that even assuming there were irreparable environmental harms, the district court
abused its discretion in finding that they outweighed the Navy’s interests in realistic
training. See 555 U.S. at 23–31.
21
(Decl. of Robert E. Jones, filed July 9, 2012); see also id. at 995 (Decl. of David
L. Penning, filed July 31, 2012); id. at 1005 (Decl. of Paul E. Fuhrer, filed July
31, 2012).
Second, as for the district court’s finding that “this is all over a loss of
waters of the United States of less than one acre . . . over the entire distance of
the pipeline,” id. at 2002, we reference the Corps’s analysis of the Gulf Coast
Pipeline that demonstrated the total permanent loss of waters over the entire
length of the pipeline would be 0.68 acres and any other water losses would be
temporary. See id. at 1728 (noting that 0.63 acres of water will be permanently
lost in the Galveston district); id. at 1783 (correcting an error in the Tulsa
district’s original approval letter and noting that 0.05 acres of permanent water
loss will occur in the Tulsa district); id. at 1821 (noting that there will be no
permanent water loss in the Fort Worth district). Thus, there was clear support in
the record for these two key district court findings. In sum, because “the district
court made specific [factual] findings to support its conclusion [regarding the
balance of harms], none of which rises to the level of clear error[,] [t]he court was
. . . well within the bounds of its discretion.” Stovall, 341 F.3d at 1206.
In conclusion, we reiterate that injunctive relief is an extraordinary remedy;
a district court should only provide such relief when a party’s right to it is clear.
See Winter, 555 U.S. at 22. When a district court denies this extraordinary
remedy, we will overturn its decision only if we have a definite and firm
22
conviction that the decision was outside the zone of permissible choice. See
Somerlott, 686 F.3d at 1152. Appellants have failed to carry their burden of
demonstrating that the district court’s determination of the balance of harms
factor departed from this zone. This failure ineluctably leads to our affirmance of
the district court’s decision.
III
For the foregoing reasons, we AFFIRM the district court’s denial of
Appellants’ request for a preliminary injunction.
Entered for the Court
JEROME A. HOLMES
Circuit Judge
23
12-6201, Sierra Club et al. v. Lieutenant General Thomas P. Bostick, et al.
MARTÍNEZ, District Judge, dissenting.
In my view, the only prong of the test for injunctive relief that the district
court analyzed in sufficient detail to permit meaningful appellate review was the
Appellants’ likelihood of success on the merits. Because I believe that the district
court’s analysis of Appellant’s likelihood of success on the merits was flawed,
and that the record is insufficient to allow the court to affirm on any other basis, I
would remand this case to the district court. Therefore, I respectfully dissent.
I
Appellants contend that the district court erred by concluding that they
were not likely to succeed on the merits of their claim. Because it affirms on
alternate grounds, the majority does not discuss these arguments, which form the
bulk of the issues argued on appeal. As set forth below, I believe that Appellants
have shown a likelihood of success on their claims that the failure to conduct an
Environmental Assessment or an Environmental Impact Statement for the Gulf
Coast Pipeline violated NEPA, and that the Corps’ failure to consider the
cumulative impact of granting 2,223 approvals of TransCanada’s NWP 12
applications violated the CWA and the APA.
A
NEPA requires federal agencies to consider the environmental
consequences of their actions and to allow public participation in the
decision-making process. Utahns for Better Transp. v. U.S. Dep’t of Transp., 305
F.3d 1152, 1162 (10th Cir. 2002) (stating that NEPA “require[s] agencies to
consider environmentally significant aspects of a proposed action.”). NEPA does
not mandate particular substantive results, but rather requires federal agencies to
take a “hard look” at the environmental consequences of an action and to
disseminate relevant environmental information for public comment so that the
general public may be an active participant in the decision-making process.
Citizens’ Comm. To Save Our Canyons v. Krueger, 513 F.3d 1169, 1178 (10th
Cir. 2008); Utah Envtl. Cong. v. Russell, 518 F.3d 817, 821 (10th Cir. 2008)
(“NEPA dictates the process by which federal agencies must examine
environmental impacts, but does not impose substantive limits on agency
conduct.”). Therefore, NEPA merely guards against “uninformed—rather than
unwise—agency action.” Robertson v. Methow Valley Citizens Council, 490 U.S.
332, 351 (1989).
Towards those ends, NEPA requires federal agencies to prepare
environmental impact statements (“EIS”) for “major Federal actions significantly
affecting the quality of the human environment.” 42 U.S.C. § 4332(2)(C). To
comply with NEPA, an agency must first consider whether the proposed action is
one that normally requires an EIS, or whether it is categorically excluded. 40
C.F.R. § 1501.4(a). If the agency cannot readily determine whether an action
falls into one of these categories, then it must prepare an environmental
assessment (“EA”). Id. §§ 1501.4(b), 1508.9.
2
An EA is a “concise public document” that “provide[s] sufficient evidence
and analysis for determining whether to prepare an [EIS] or finding of no
significant impact.” Id. § 1508.9(a). The EA must address the direct, indirect,
and cumulative impacts of the proposed action. Id. § 1508.9(b); see also id. §§
1508.7, 1508.8, 1508.9. If the EA reveals that the project will have a significant
effect on the quality of the human environment, then the Corps must prepare a
detailed, written EIS. 42 U.S.C § 4332(2)(C). If the agency determines that its
proposed action will not have a significant effect on the environment, then it need
not prepare an EIS, and may instead issue a Finding of No Significant Impact
(“FONSI”). 40 C.F.R. §§ 1508.4, 1508.13. A FONSI must be supported by a
statement of reasoning and evidence. Id. § 1508.13.
Appellants contend that the Corps violated NEPA by failing to prepare an
EA or EIS for the Gulf Coast Pipeline. The Corps first responds by arguing that
its NEPA obligations apply only to the adoption of a NWP, and not to the
verification of the applicability of a NWP to a particular project. It contends that
requiring the full NEPA process at the pre-certification stage defeats the
streamlining purpose of the NWP process.
In support of this contention, Appellees rely on Snoqualmie Valley
Preservation Alliance v. U.S. Army Corps of Engineers, 683 F.3d 1155 (9th Cir.
2012), in which the Ninth Circuit noted that each NWP must undergo a NEPA
process when it is promulgated, and that such process “ensures that any activity
3
under that nationwide permit will have ‘minimal adverse environmental effects.’”
Id. at 1160-61. However, Snoqualmie Valley involved the issuance of three
NWPs for a single location. In this case, the Corps approved the use of NWP 12
for 2,227 water crossings. In my view, this significant distinction makes
Snoqualmie Valley of little use here. Given the magnitude of this project, there is
little doubt that requiring the Corps to undertake a NEPA analysis at the
pre-authorization stage would not defeat the streamlining purpose of the NWPs in
general.
The Corps also contends that it only controls permitting of the Gulf Coast
Pipeline’s water crossings, and that issuance of a NWP at a water crossing is not
significant enough to constitute a “major Federal action” and invoke NEPA. It is
well-established that not all construction requiring federal approval becomes
“federalized” so as to invoke NEPA. See Winnebago Tribe of Neb. v. Ray, 621
F.2d 269, 270 (8th Cir. 1980). With this in mind, the Department of the Army
has adopted regulations to provide guidance as to when a project falls under
NEPA. See 33 C.F.R. Part 325, app. B.
These regulations have particular provisions that apply when the regulated
activity is a link in the overall project, such as the pipeline at issue here. Id. §
7(b). This section of the regulations provides that, in determining the scope of a
project, the Corps must consider not only the specific activity which requires a
Department of the Army permit, but also “any other portion of the project that is
4
within the control or responsibility of the Corps of Engineers (or other Federal
agencies).” Id. § 7(b)(3). The regulations provide the following examples:
For example, a 50-mile electrical transmission cable
crossing a 1 1/4 mile wide river that is a navigable water
of the United States requires a DA permit. Neither the
origin and destination of the cable nor its route to and
from the navigable water, except as the route applies to
the location and configuration of the crossing, are within
the control or responsibility of the Corps of Engineers.
Those matters would not be included in the scope of
analysis which, in this case, would address the impacts
of the specific cable crossing.
Conversely, for those activities that require a DA permit
for a major portion of a transportation or utility
transmission project, so that the Corps permit bears upon
the origin and destination as well as the route of the
project outside the Corps regulatory boundaries, the
scope of analysis should include those portions of the
project outside the boundaries of the Corps section
10/404 regulatory jurisdiction. To use the same example,
if 30 miles of the 50-mile transmission line crossed
wetlands or other “waters of the United States,” the
scope of analysis should reflect impacts of the whole
50-mile transmission line.
Id.
The Gulf Coast Pipeline is 485 miles long, and required the Corps to issue
2,227 permits for water crossings. This means that the Gulf Coast Pipeline
crosses United States waters almost five times in each mile, or about once every
1150 feet. As such, the Gulf Coast Pipeline is much more comparable to the
second example set forth in the cited regulations—which requires consideration of
the entire transmission line—than the first.
5
Applying these regulations, a district court in Texas has held that the Corps
was required to consider the impact of the entire 900 mile pipeline, and to prepare
an EA or EIS for the project. See Spiller v. Walker, 1998 U.S. Dist. LEXIS 18341(W.D. Tex. 1998). The court considered the cumulative impact of the
involvement of all federal agencies and noted that “the federal government
controls the entire pipeline process: construction, operation and safety inspection,
sales of the petroleum products, and accident cleanup. It is not only arbitrary and
capricious to assert this combination of actions is not major Federal action, but it
blatantly flies in the face of common sense.” Id. at *52. The Spiller court also
held that the Corps’ role in granting a number of permits for construction has
“such a crucial impact on the construction of the . . . Pipeline at so many points
along the pipeline that it can only be described as ‘major Federal action.’” Id. at
*40-41.
Considering the number of permits issued by the Corps relative to the
overall size of the Gulf Coast Pipeline, it is patently ludicrous for Appellees to
characterize the Corps’ involvement in the subject project as minimal, or to
maintain that the Corps’ permitting involves only a “link” in the Gulf Coast
Pipeline. As the Ninth Circuit has held:
Although the Corps’ permitting authority is limited to
those aspects of a development that directly affect
jurisdictional waters, it has responsibility under NEPA
to analyze all of the environmental consequences of a
project. Put another way, while it is the development’s
impact on jurisdictional waters that determines the scope
6
of the Corps’ permitting authority, it is the impact of the
permit on the environment at large that determines the
Corps’ NEPA responsibility. The Corps’ responsibility
under NEPA to consider the environmental
consequences of a permit extends even to environmental
effects with no impact on jurisdictional waters at all.
Save Our Sonoran, Inc. v. Flowers, 408 F.3d 1113, 1122 (9th Cir. 2005).
Given the totality of the circumstances in this case, I believe the Corps’
involvement in the Gulf Coast Pipeline was a “major Federal action” that required
a comprehensive NEPA analysis for the project. Therefore, in my judgment the
Appellants have shown a likelihood of success on the merits with respect to their
claim that the failure to prepare an EA or EIS for the Gulf Coast Pipeline was a
violation of NEPA.
B
In their as-applied challenge to the approval of the Gulf Coast Pipeline,
Appellants argue that the Corps violated the conditions of NWP 12 by failing to
adequately consider the cumulative impact of approving the use of the NWP 12
2,227 times for the project.
NWP 12 requires that the Corps’ verification of a project for which a
pre-construction notice is filed (as there was in this case) must “include an
evaluation of the individual crossings to determine whether they individually
satisfy the terms and conditions of the NWP(s), as well as cumulative effects
caused by all of the crossings authorized by NWP.” The Gulf Coast Pipeline
passes through three Corps’ districts—Galveston, Fort Worth, and Tulsa—and
7
pre-construction notifications were filed in each. Each of these districts issued a
brief letter authorizing the proposed action. Appellants contend that none of
these three verifications takes into consideration (or, indeed, do any of them even
reference) the sections of the pipeline in the other two Corps districts. Of even
greater import, Appellants argue, is the fact that none of these administrative
letters consider the cumulative impacts of the entire project as a whole. As a
result, Appellants contend, the Corps violated NWP 12 in this case.
In response, the Corps contends that its verification letters were sufficient
because they set forth the applicable legal standard, which includes a cumulative
impacts assessment, and states that the Corps made a “determination” that all
conditions were satisfied. Aple. Response Br. at 42. The Corps acknowledges
that the verification letters are terse, but contends that an agency is not required
to recite its findings in any particular form. The Corps also contends that, even if
the explanation in the letters is insufficient, any such error is immaterial because
the record shows that the cumulative impact of the Gulf Coast Pipeline would be
minimal.
“Because the arbitrary and capricious standard focuses on the rationality of
an agency’s decision-making process rather than on the rationality of the actual
decision, ‘[i]t is well-established that an agency’s action must be upheld, if at all,
on the basis articulated by the agency itself.’” Olenhouse v. Commodity Credit
Corp., 42 F.3d 1560, 1575 (10th Cir. 1994) (quoting Motor Vehicle Mfrs. v. State
8
Farm Mut. Auto. Ins., 463 U.S. 29, 50 (1983)). “Thus, the grounds upon which
the agency acted must be clearly disclosed in, and sustained by, the record.”
Colorado Wild v. U.S. Forest Serv., 435 F.3d 1204, 1213 (10th Cir. 2006). The
record of decision created by the agency must make plain its course of inquiry, its
analysis, and its reasoning. Id. “After-the-fact rationalization by counsel in
briefs or argument will not cure noncompliance by the agency with these
principles.” Id. If the agency has failed to provide a reasoned explanation for its
action, or if limitations in the administrative record make it impossible to
conclude the action was the product of reasoned decision-making, the reviewing
court cannot simply affirm. Olenhouse, 42 F.3d at 1575.
The letters of approval prepared by each district do not provide a reasoned
basis for any cumulative impacts analysis. Despite the Corps’ contention to the
contrary, the law is clear that the agency cannot simply state the legal standard
and then recite that it made a “determination” that such criteria were satisfied.
See Hull v. I.R.S., 656 F.3d 1174, 1177-78 (10th Cir. 2011) (agency’s explanation
“will not suffice if the agency’s claims are conclusory, merely reciting statutory
standards, or if they are too vague or sweeping.”); see also Siddiqui v. Holder,
670 F.3d 736, 745 (7th Cir. 2012) (“the recitation of governing law does not
excuse the AAO from its obligation to apply the law to the facts of each case.”);
U.S. Lines Inc. v. Fed. Maritime Comm’n, 584 F.2d 519, 535 (D.C. Cir. 1978)
(deference to the agency is inappropriate under the arbitrary and capricious
9
standard when the agency “does not set forth convincing reasons for its
determination in sufficient detail to allow the validity [of its decision] to be
determined.”).
Recognizing the deficiency in the administrative record with regard to the
cumulative impacts analysis, the Corps attempts to rely on affidavits presented to
the district court stating that the Districts conferred with each other regarding the
cumulative impacts. But this manner of tactical litigation maneuvering—of
creating a post hoc evidentiary record before the trial court that was clearly
missing in the record before the administrative agency—has been soundly rejected
by both this court and the Supreme Court. See Citizens to Pres. Overton Park v.
Volpe, 401 U.S. 402, 419 (1971) (barring agency from relying on affidavits
containing “post hoc rationalizations” for its actions that were created during the
litigation process); Lewis v. Babbitt, 998 F.2d 880, 882 (10th Cir. 1993) (district
court reviewing an agency action “may not rely on litigation affidavits that
provide post hoc rationalizations for the agency’s action”).
Rather, “the agency’s action must be reviewed on the basis articulated by
the agency and on the evidence and proceedings before the agency at the time it
acted.” Am. Min. Congress v. Thomas, 772 F.2d 617, 626 (10th Cir. 1985); see
also Inova Alexandria Hosp. v. Shalala, 244 F.3d 342, 350 (4th Cir. 2001)
(“[T]he required explanation must be articulated by the agency at the time of its
action.”). “The integrity of the administrative process must be judged by what
10
took place in the administrative proceedings as reflected on the administrative
record unaided by affidavit proof in the reviewing court.” Garvey v. Freeman,
397 F.2d 600, 610-11 (10th Cir. 1968) (citations omitted); see also Olenhouse v.
Commodity Credit Corp., 42 F.3d 1560, 1575 (10th Cir. 1994) (“[T]he grounds
upon which the agency acted must be clearly disclosed in, and sustained by, the
record.”).
In this case, the Corps failed to sufficiently articulate its reasoning for
concluding that the authorization of 2,227 uses of NWP 12 to construct the Gulf
Coast Pipeline would cause only minimal cumulative impact. There is no
mention in the administrative record of any collaboration between the Districts
with regard to the cumulative impact of the entire length of the Gulf Coast
Pipeline. There are also no specific findings in support of the Corps’ conclusion
that the Gulf Coast Pipeline, as a whole, would have minimal cumulative impact.
The failure to consider the cumulative effects of all of the water crossings
involved in the Gulf Coast Pipeline violates the terms of NWP 12, and, therefore,
the approval of the use of NWP 12 for construction of the Gulf Coast Pipeline
violated the law. See 33 C.F.R. § 330.1(c) (“An activity is authorized under an
NWP only if that activity and the permittee satisfy all of the NWP’s terms and
conditions.”).
Therefore, in my view, the Appellants have shown a likelihood of success
11
on the merits with respect to their contention that the Corps violated the APA and
the CWA when it authorized construction of the Gulf Coast Pipeline through
approval of the 2,227 issuances of NWP 12.
II
As set forth above, I find that Appellants have shown a likelihood of
success on the merits and, therefore, have satisfied their burden with respect to
the first prong of the standard for injunctive relief. However, to prevail on their
motion for preliminary injunctive relief, Appellants are required to show, not only
that they were likely to succeed, but also that they would suffer irreparable injury,
that the balance of the harms tipped in their favor, and that an injunction would
not be adverse to public interest. Beltronics USA, Inc. v. Midwest Inventory
Distrib., LLC, 562 F.3d 1067, 1070 (10th Cir. 2009). Because I find that the
district court did not adequately address any factor other than likelihood of
success on the merits, I would remand to the district court for further proceedings.
See Downie v. Indep. Drivers Ass’n Pension Plan, 934 F.2d 1168, 1171 (10th Cir.
1991) (remanding where “the absence of findings leaves us with no means by
which to judge the exercise of the court’s discretion.”).
The district court’s order denying Appellant’s motion for temporary
restraining order is sixteen pages long. Of this, more than twelve pages are
devoted to whether Appellants were likely to succeed on the merits. After
12
concluding that Appellants had not shown a likelihood of success on the merits,
the district court stated: “As a result of the above, the Court finds that Plaintiffs
have failed to establish they are entitled to injunctive relief under Rule 65(a).
The Court would be remiss, however, if it did not address the equities in this
case.” Aplt. App. at 2001 (Dist. Ct. Order, dated Aug. 5, 2012). The district
court’s discussion of the remaining three equitable factors is a mere three
paragraphs in length, it is bereft of any meaningful legal analysis of the issues
presented, and does not contain any factual or legal citations. I believe this
remarkably cursory discussion is insufficient to permit meaningful appellate
review, particularly under the relevant abuse of discretion standard.
As the majority points out in a lengthy footnote, Rule 52(a) does not
require the district court to set out its findings and conclusions in excruciating
detail. See Fed. R. Civ. P. 52, Notes of Advisory Committee on 1946
Amendments (“the judge need only make brief, definite, pertinent findings and
conclusions upon the contested matters; there is no necessity for overelaboration
of detail or particularization of facts.”). On the other hand, this Court has
“cautioned that too little detail frustrates meaningful appellate review by
requiring the parties and this court to guess at why the district court reached its
conclusion.” OCI Wyo., L.P. v. Pacificorp, 479 F.3d 1199, 1204 (10th Cir. 2007).
A district court is required to recite “as many of the subsidiary facts as necessary
13
to permit us to determine the steps by which it reached its ultimate conclusion.”
Roberts v. Metro. Life Ins. Co., 808 F.2d 1387, 1390 (10th Cir. 1987) (citing
Snyder v. United States, 674 F.2d 1359, 1363 (10th Cir. 1982) (internal quotations
omitted).
The majority holds that the district court’s analysis of the balance of the
equities satisfies Rule 52(a) because it “identified the harms it thought salient,
attributed weight to them, and concluded that the balance did not favor granting
an injunction.” Maj. Op. at 10, n.3 (quoting OCI Wyo., 479 F.3d at 1204). I
believe the majority has overstated the district court’s findings. The district court
simply noted the substantial cost to TransCanada if construction of the Gulf Coast
Pipeline is delayed, compared to its finding that allowing the Pipeline to proceed
would have “minimal impact on the environment.” Aplt. App. at 2002 (Dist. Ct.
Order, dated Aug. 5, 2012).
In its brief discussion of the equities, the district court included no
discussion of the irreparable nature of environmental injury in general or the fact
that, where such injury has been alleged, “the balance of harms will usually favor
the issuance of an injunction to protect the environment.” See Amoco Prod. Co.
v. Vill. of Gambell, 480 U.S. 531, 545 (1987) (“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.”); Catron Cnty. Bd. of
14
Comm’rs v. U.S. Fish & Wildlife Serv., 75 F.3d 1429, 1440 (10th Cir. 1996) (“An
environmental injury usually is of an enduring or permanent nature, seldom
remedied by money damages and generally considered irreparable.”).
Moreover, the district court focused on only the permanent loss of waters
that would result after construction of the Gulf Coast Pipeline was complete, and
failed to address the real and significant harm caused by the actual construction of
the pipeline, including the clearing of trees and vegetation, removing topsoil,
filling wetlands, building access roads, and clearing an eighty-five foot
construction right-of-way for the length of the pipeline.
The district court’s balancing of the harms also completely ignores the fact
that TransCanada chose to incur its economic harm by entering into contracts for
services before the Gulf Coast Pipeline was approved, even in light of the
controversial nature of the Pipeline. See Davis v. Mineta, 302 F.3d 1104, 1116
(10th Cir. 2002) (finding that balance of the harms weighed against the state
defendants who “‘jumped the gun’ on the environmental issues by entering into
contractual obligations that anticipated a pro forma result.”); Utahns for Better
Transp. v. U.S. Dep’t of Transp., 2001 WL 1739458 (10th Cir. Nov. 16, 2001)
(holding that state was at fault for its harm when it was aware of controversial
nature of the project and chose to enter into contractual obligations nonetheless).
For these reasons, I believe the district court’s analysis with respect to the
15
equitable factors other than likelihood of success on the merits is insufficient for
us to determine whether the district court properly exercised its discretion in this
regard. Notably, the district court was operating under incredibly difficult
circumstances in that Appellants’ Motion for Temporary Restraining Order and
Preliminary Injunction was filed only weeks before construction on the Gulf
Coast Pipeline was set to commence. As a fellow district court judge, I
appreciate the attention that the district court gave this case under nearly
impossible time constraints. In light of its finding that Appellants had not met
their burden with respect to likelihood of success on the merits, there was no need
for the district court to analyze the remaining three equitable factors. However,
because I would find that Appellants have shown that they are likely to succeed
on the merits, it would become necessary on remand for the district court to
consider the remaining equitable factors. Moreover, in my view the district court
should have the opportunity to undertake this assessment and analysis in the first
instance. See Kikumua v. Hurley, 242 F.3d 950, 963 (10th Cir. 2001) (remanding
for consideration of the public interest and balancing of interests because the
district court had not discussed them); see also Flexible Lifeline Sys., Inc. V.
Precision Lift, Inc., 654 F.3d 989, 1000 (9th Cir. 2011) (“We believe the better
course is to remand to allow the district court to make the requisite factual
determinations regarding irreparable harm and apply those factual findings to the
16
four-factor framework to determine whether injunctive relief is warranted.”);
Lankford v. Sherman, 451 F.3d 496, 513 (8th Cir. 2006) (remanding where district
court only considered likelihood of success on the merits because “[t]he district
court is in the best position to evaluate all of the evidence and weigh the factors
to determine whether the injunction should issue.”).
The majority’s discussion on the balancing of harms usurps the district
court’s role not only as the fact-finder, but also as the court which should initially
be exercising its discretion to determine whether injunctive relief is appropriate.
See eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 394 (2006) (vacating the
decision of the court of appeals and ordering a remand so that the district court
could address the equitable elements of a preliminary injunction); Acumed LLC v.
Stryker Corp., 483 F.3d 800, 811 (Fed. Cir. 2007) (“If we were to weigh the
evidence ourselves to reach a conclusion on injunctive relief, we would
effectively be exercising our own discretion as if we were the first-line court of
equity. That role belongs exclusively to the district court. Our task is solely to
review the district court’s decisions for an abuse of discretion. ”); Lawson Prods.,
Inc. v. Avnet, Inc., 782 F.2d 1429, 1437-38 (7th Cir. 1986) (remanding to the
district court for consideration of the equitable elements of a preliminary
injunction because “the appellate process is not well suited to an appreciation of
the subtle shadings of a case” involved in the balancing of equities).
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III
Given my conclusion that the district court abused its discretion in finding
that Appellants did not meet their burden of showing a likelihood of success on
the merits, I would reverse the district court’s denial of the Motion for Temporary
Restraining Order and Preliminary Inunction, and remand with instructions that
the district court determine in the first instance whether Appellants have met their
burden with respect to the remaining three equitable factors.
18