February 9, 2021 – Today, the Clinic filed an amicus brief on behalf of eleven clinical law professors, listed below, in support of the appellants in Sierra Club v. U.S. Army Corps of Engineers, No. 20-02195, in the United States Court of Appeals for the First Circuit.
The appellants challenge the denial of a preliminary injunction by the U.S. District Court for the District of Maine. They had brought suit claiming the Corps failed to conduct a proper National Environmental Policy Act analysis of environmental harms caused by a proposed transmission line bringing power from Canada to New England. The plaintiffs sought a preliminary injunction pausing part of the project, arguing it would cause irreparable harm to ecological and wildlife resources within the Western Maine Mountains.
When federal courts decide whether to grant a preliminary injunction, they take into account four considerations: (1) how likely the plaintiff is to prevail on the merits of its claims once the court has had time to decide them based on a full development of the facts and legal arguments; (2) how likely it is that the plaintiff will suffer irreparable harm if the court does not grant interim relief; (3) the balance of the harms the plaintiff will suffer if the court does not grant an injunction versus the harm the defendant will suffer if the court does grant it; and (4) the public interest.
The district court in this case denied the injunction motion largely based on its assessment of the first factor—plaintiffs’ likelihood of success on the merits. On appeal, the plaintiffs argue the court erred by placing too much weight on the merits prong of the analysis, and too little on the plaintiffs’ showing of irreparable harm. They argue the court should instead have used the “serious questions” test, which directs district courts to grant preliminary injunctions when the movant has raised “serious questions” on the merits and has shown that the balance of harms is decidedly in its favor.
The Clinic’s brief argues that the First Circuit should endorse the serious questions test. The brief highlights that the test has been the most prevalent of various “sliding scale” approaches, which are firmly grounded in the core equitable principles of flexibility, weighing multiple factors against each other, and shaping interim relief to the unique circumstances of each case. As a result, for decades, nearly all federal circuit courts used sliding scale approaches, and most of those used the serious questions test.
That balance changed only slightly after the U.S. Supreme Court’s 2008 decision in Winter v. NRDC, which led two circuits to reject their sliding scale tests. Most of the sliding-scale circuits, however, have maintained their approaches, and nearly all of those have explicitly held that their tests survive Winter.
The brief then turns to the First Circuit. In surveying the court’s various analytical frameworks for injunctions over the past century, the brief argues the court has never rejected the serious questions test and has applied it in some cases. The brief then argues that the court’s various formulations are consistent with the serious questions test, which the First Circuit should now adopt.
The following clinical students worked on the brief under the supervision of Acting Director Shaun Goho and Clinical Fellow Tommy Landers: Anna Hevia, JD ’21; Tori Molyneaux, JD ’22; Jack Schlossberg, JD ’20; and Eric Wriston, JD ’22.
The brief is available here: Sierra Club, et. al v. U.S. Department of the Army Corps of Engineers, et. al (1st Cir. Case No. 20-02195)
The amici curiae, eleven clinical professors, are:
Hope Babcock, Professor of Law; Director, Environmental Law and Justice Clinic, Institute for Public Representation, Georgetown University Law Center
Rachel E. Deming, Tenured Associate Professor of Law; Director, Environmental and Earth Law Clinic, Barry University Dwayne O. Andreas School of Law
Christian Freitag, Clinical Associate Professor, Indiana University Maurer School of Law; President and Executive Director, Conservation Law Center
Mindy Goldstein, Clinical Professor of Law; Director, Turner Environmental Law Clinic; Director, Environmental and Natural Resources Law Program, Emory University School of Law
Helen H. Kang, Professor of Law; Director, Environmental Law and Justice Clinic, Golden Gate University School of Law
Edward Lloyd, Evan M. Frankel Clinical Professor of Environmental Law, Environmental Law Clinic, Columbia University School of Law
Nancy C. Loeb, Clinical Professor of Law; Director, Environmental Advocacy Clinic, Bluhm Legal Clinic, Northwestern Pritzker School of Law
Michelle B. Nowlin, Clinical Professor of Law; Co-Director, Duke Environmental Law and Policy Clinic
Todd Ommen, Managing Attorney and Professor of Law, Pace Environmental Litigation Clinic, Pace University Elisabeth Haub School of Law
Oday Salim, Director, Environmental Law & Sustainability Clinic, University of Michigan Law School
Nicholas J. Schroeck, Associate Dean of Experiential Education; Associate Professor of Law; Director, Environmental Law Clinic, University of Detroit Mercy School of Law