UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

APPALACHIAN VOICES, et al., : : Plaintiffs, : Civil Action No.: 08-0380 (RMU) : v. : Re Document No.: 48 : STEVEN CHU, : in his official capacity as Secretary of the : Department of Energy, et al., : : Defendants. :

MEMORANDUM OPINION

DENYING THE PLAINTIFFS’ RENEWED MOTION FOR A PRELIMINARY INJUNCTION

I. INTRODUCTION

This matter comes before the court on the plaintiffs’ renewed motion for a preliminary

injunction. In early 2008, the plaintiffs, nonprofit organizations devoted to the environmental

preservation of the Appalachian Mountains region, brought suit against the defendants, the

Department of Treasury and the Department of Energy, alleging that the defendants erroneously

failed to consider the environmental consequences of a program that provides tax credits to

companies that use “clean coal” technology. The plaintiffs have now moved for a preliminary

injunction to “immediately suspend allocation of the . . . tax credit” at issue in this case. Because

the plaintiffs have failed to meet the threshold for preliminary injunctive relief, however, the

court denies the plaintiffs’ motion. II. FACTUAL & PROCEDURAL BACKGROUND1

Through the Energy Policy Act of 2005 (“the EPAct”), Congress provided for the

allocation of up to $1.65 billion in tax credits for investment in “clean coal” facilities.

at § 1307,

at 999-1006 (2005); see also 26 U.S.C. §§ 48A(d)(1),

48B(d)(1). Each recipient of a tax credit under the EPAct is required to satisfy certain

prerequisites before placing its project into service; for example, the recipient must “receive[] all

Federal and State environmental authorizations or reviews necessary to commence construction

of the project.” 26 U.S.C. § 48A(e)(2)(A). In 2006, the Internal Revenue Service allocated $1

billion in tax credits to the Duke Energy Cliffside Modernization Project (“the Cliffside

project”), located in North Carolina, and eight other projects. 2d Am. Compl. ¶¶ 42-46.

Construction on the Cliffside project began in January 2008, see Pls.’ Mot. at 1, and the

modernized Cliffside plant is scheduled to become operational in the summer of 2012, see Defs.’

Opp’n at 1.

The plaintiffs claim that the defendants violated the National Environmental Policy Act

(“NEPA”),

et seq., the Administrative Procedure Act (“APA”),

et seq., and the Endangered Species Act (“ESA”),

et seq., by failing to

evaluate the environmental impacts of the tax credit program and by failing to consult with the

U.S. Fish and Wildlife Service and the U.S. National Marine Fisheries Service before allocating

the tax credits. See generally 2d Am. Compl. The plaintiffs commenced this action and moved

1 A detailed recitation of the factual and procedural history of this case, which has been summarized in the court’s two prior memorandum opinions, is not necessary to resolve the instant motion. See Mem. Op. (Sept. 23, 2009) at 2-4; Mem. Op. (Nov. 10, 2008) at 2-4. Accordingly, the court will provide only a brief overview here.

2 for a preliminary injunction in March 2008, see generally Compl.; Pls.’ 1st Mot. for Preliminary

Inj., and filed a first amended complaint in August 2008, see generally 1st Am. Compl. The

court dismissed the first amended complaint in November 2008, holding that the plaintiffs had

failed to adequately allege injury in fact with respect to the eight projects other than Cliffside

because they had asserted no particularized connection to or interest in those sites, see Mem. Op.

(Nov. 10, 2008) at 6-9, and that the plaintiffs had failed to assert a fairly traceable causal

connection between the allocation of the tax credits and the decision to proceed with the

Cliffside project, see

. As a consequence, the court denied as moot the plaintiffs’

motion for a preliminary injunction. See

.

In January 2009, the plaintiffs moved for leave to file a second amended complaint to

remedy the deficiencies that had prompted the dismissal of the first amended complaint. See

generally Pls.’ Mot. to Amend Compl. The court granted that motion in September 2009, see

generally Mem. Op. (Sept. 23, 2009), and the plaintiffs filed a second amended complaint the

same day, see generally 2d Am. Compl. The following month, the plaintiffs filed a renewed

motion for a preliminary injunction. See generally Pls.’ Renewed Mot. for Preliminary Inj.

(“Pls.’ Mot.”). As the plaintiffs’ renewed motion for a preliminary injunction is now ripe for

adjudication, the court turns to the applicable legal standard and the parties’ arguments.

III. ANALYSIS

A. Legal Standard for Injunctive Relief

This court may issue interim injunctive relief only when the movant demonstrates “[1]

that he is likely to succeed on the merits, [2] that he is likely to suffer irreparable harm in the

3 absence of preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an

injunction is in the public interest.” Winter v. Natural Res. Def. Council, Inc.,

(2008) (citing Munaf v. Geren,

(2008)). It is particularly important

for the movant to demonstrate a likelihood of success on the merits. Cf. Benten v. Kessler,

(1992) (per curiam). Indeed, absent a “substantial indication” of likely success

on the merits, “there would be no justification for the court’s intrusion into the ordinary

processes of administration and judicial review.” Am. Bankers Ass’n v. Nat’l Credit Union

Admin.,

(D.D.C. 1999) (internal quotation omitted).

The other critical factor in the injunctive relief analysis is irreparable injury. A movant

must “demonstrate that irreparable injury is likely in the absence of an injunction.” Winter,

(citing Los Angeles v. Lyons,

(1983)). Indeed, if a party fails to

make a sufficient showing of irreparable injury, the court may deny the motion for injunctive

relief without considering the other factors. CityFed Fin. Corp. v. Office of Thrift Supervision,

, 747 (D.C. Cir. 1995). Provided the plaintiff demonstrates a likelihood of success

on the merits and of irreparable injury, the court “must balance the competing claims of injury

and must consider the effect on each party of the granting or withholding of the requested relief.”

Amoco Prod. Co. v. Gambell,

(1987). Finally, “courts of equity should pay

particular regard for the public consequences in employing the extraordinary remedy of

injunction.” Weinberger v. Romero-Barcelo,

(1982).

As an extraordinary remedy, courts should grant such relief sparingly. Mazurek v.

Armstrong,

(1997). The Supreme Court has observed “that a preliminary

injunction is an extraordinary and drastic remedy, one that should not be granted unless the

4 movant, by a clear showing, carries the burden of persuasion.”

Therefore, although the trial

court has the discretion to issue or deny a preliminary injunction, it is not a form of relief granted

lightly. In addition, any injunction that the court issues must be carefully circumscribed and

“tailored to remedy the harm shown.” Nat’l Treasury Employees Union v. Yeutter,

(D.C. Cir. 1990).

B. The Court Denies the Plaintiffs’ Renewed Motion for a Preliminary Injunction

The plaintiffs ask the court to “immediately suspend allocation of the . . . tax credit” to

Duke Energy, contending that the four relevant factors weigh in favor of granting them interim

injunctive relief. See generally Pls.’ Mot. The defendants argue that the plaintiffs have failed to

show irreparable harm, see Defs.’ Opp’n at 16-20, that the plaintiffs are not likely to succeed on

the merits of their claims because they lack standing and because their NEPA and ESA claims

will fail on the merits, see id. at 20-42, and that the balance of the hardships and the public

interest weigh against granting a preliminary injunction, see id. at 42-43. The plaintiffs devote

the majority of their reply to reiterating their assertion that they are likely to succeed on the

merits of their claims. See Pls.’ Reply at 2-25. In addition, the plaintiffs repeat their claim that

the balance of equities tips in their favor. See id. at 25. The plaintiffs fail to address the public

interest prong in their reply. See generally id. Puzzlingly, the plaintiffs also fail in their reply to

explicitly address irreparable injury as a separate prong of the injunctive relief analysis, see

generally id., addressing their claim of injury only to elaborate on their contention that they “are

likely to succeed on the merits because [their] members possess Article III standing,”2 id. at 2;

2 The plaintiffs’ assertion that they “are likely to succeed on the merits because [their] members possess Article III standing” is itself problematic, of course, given that standing is a necessary but not sufficient condition of success on the merits.

5 see also id. at 2-9 (discussing the injury-in-fact prong of the Article III standing analysis).

For the reasons discussed below, the court need only address the irreparable injury prong

of the injunctive relief standard to rule on the plaintiffs’ motion. As the plaintiffs themselves

point out, an injunction suspending the allocation of the tax credit “will not prevent Duke

[E]nergy from moving forward with [the Cliffside] project.” Pls.’ Mot. at 25. Indeed, the

plaintiffs do not assert that the allocation of the tax credit will directly cause them irreparable

harm, see generally Pls.’ Mot.; rather, they predict that they will be harmed when the Cliffside

plant becomes operational, which they concede is not expected to occur until the summer of

2012, see Pls.’ Reply at 3. Because the plaintiffs’ asserted injury is not imminent, and because

the court will be able to render a decision on the merits of the plaintiffs’ claims before the

anticipated injury becomes imminent, the plaintiffs are not entitled to injunctive relief. Wis. Gas

Co. v. Fed. Energy Regulatory Comm’n,

, 674 (D.C. Cir. 1985) (holding that “the

party seeking injunctive relief must show that the injury complained of is of such imminence that

there is a clear and present need for equitable relief to prevent irreparable harm”) (internal

quotation marks and alterations omitted); see also 11A FED. PRAC. & PROC. § 2948.1 (stating

that “[p]erhaps the single most important prerequisite for the issuance of a preliminary injunction

is a demonstration that if it is not granted the applicant is likely to suffer irreparable harm before

a decision on the merits can be rendered[,] . . . . [for] if a trial on the merits can be conducted

before the injury would occur there is no need for interlocutory relief”); cf. Greater Yellowstone

Coal. v. Flowers,

(10th Cir. 2003) (observing, in reference to the plaintiffs’

claim that the construction of a golf course would harm a bald eagle habitat in the area, that “[i]f

the plaintiffs [had] alleged that the eagles would be harmed only by the use of the completed

6 project, and not by its construction, this would be insufficient to justify a preliminary injunction

in advance of the trial court’s decision on the merits”).

The plaintiffs rely heavily on Fund for Animals v. Clark,

(D.D.C. 1998),

Fund for Animals v. Norton,

(D.D.C. 2003) and Brady Campaign to End

Gun Violence v. Salazar,

(D.D.C. 2009) to support their proposition that

“[w]orrying about the fate of a single member of any species – endangered or not – is a sufficient

basis for granting a preliminary injunction where there is a likely violation of NEPA.” Pls.’

Reply at 8 (internal quotation marks omitted). But in these cases and others in which the court

granted injunctive relief, the plaintiffs demonstrated not only that they had been injured by the

defendants’ procedural violations of NEPA, but also that they faced imminent or ongoing

irreparable injury stemming from the defendants’ hampering of their aesthetic and environmental

interests. In Brady Campaign to End Gun Violence, for example, the plaintiffs challenged a final

rule that had gone into effect approximately two months before the court’s order.

. Because the rule authorized the possession of firearms in national parks and

wildlife refuges in accordance with state law, the plaintiffs successfully argued that the rule

caused them ongoing, irreparable environmental and aesthetic injuries in addition to their

procedural injuries.

Similarly, in Clark, the court held that the plaintiffs, challenging an

organized bison hunt planned by the Park Service, the Fish and Wildlife Service and the National

Forest Service, had demonstrated that they would incur both procedural injuries and “other,

concrete injuries” to their aesthetic interests if the defendants proceeded with the hunt.

(D.D.C. 1998). And in Norton, the court addressed the plaintiffs’ challenge to a

permit authorizing the killing of mute swans that the Fish and Wildlife Service had issued

7 approximately one month before the court’s order.

. The court

concluded that the plaintiffs had demonstrated irreparable injury by asserting both procedural

harm and harm to their environmental and aesthetic interests, namely, “their ability to view,

interact with, study, and appreciate mute swans.”

In this case, in contrast, the plaintiffs predict that the operation of the Cliffside plant will

cause them environmental and aesthetic injury by harming the ecosystem in the vicinity of the

plant. See, e.g., Pls.’ Mot. at 23 (stating that “[a]dverse health effects caused by air pollution

belched from the proposed Cliffside facility will impair the [plaintiffs’] use and enjoyment of

their home, property, German Shepard kennel and their very bodies”);

(stating that the

plaintiffs “worr[y] about the harm added pollution from the Cliffside power plant will cause to

the flora and fauna” in the area). But because the operation of the new Cliffside plant is not

scheduled to begin for at least two years, see Defs.’ Opp’n at 10, the plaintiffs have failed to

demonstrate ongoing or imminent irreparable injury to their aesthetic interests, see Wis. Gas Co.,

758 F.2d at 674. And the plaintiffs’ allegations of harm based on the defendants’ alleged

procedural violations alone are insufficient to demonstrate irreparable injury. See Brady

Campaign v. Prevent Gun Violence,

(noting that “a procedural violation of

NEPA is not itself sufficient to establish irreparable injury”).

In sum, the plaintiffs have failed to establish that the defendants’ actions threaten to

cause them imminent, irreparable injury. As a result, the court concludes that the plaintiffs are

not entitled to preliminary injunctive relief. Consequently, the court need not address the three

remaining factors of the injunctive relief analysis; for even if the plaintiffs were to make a strong

showing on those factors, they still would not be entitled to interim injunctive relief. See Winter,

8

(holding that to be granted injunctive relief, a movant must “demonstrate that

irreparable injury is likely in the absence of an injunction”); CityFed Fin. Corp., 58 F.3d at 747

(authorizing the court to deny a motion for a preliminary injunction based solely on the moving

party’s failure to make a sufficient showing as to the likelihood of irreparable injury).

IV. CONCLUSION

For the foregoing reasons, the court denies the plaintiffs’ renewed motion for a

preliminary injunction. An Order consistent with this Memorandum Opinion is separately and

contemporaneously issued this 26th day of July, 2010.

RICARDO M. URBINA United States District Judge

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