Somach, Simmons and Dunn
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First Circuit Holds
That Plaintiffs Must Demonstrate
Irreparable Harm
for Injunctive
Relief in Endangered Species Act Cases
November 23, 2010
by Joseph M. Carpenter jcarpenter@somachlaw.com
FOLLOWED BY:
Proposition
26 May Imperil Implementation of
California’s
Landmark
Greenhouse Gas Reduction Law |
On October 20, 2010, the First Circuit
Court of Appeals upheld the district
court’s determination that plaintiffs
were required (and failed) to show
irreparable harm for an injunction in an
Endangered Species Act (ESA) case.
Animal Welfare Inst. v. Martin,
2010 U.S. App. LEXIS 21611 (1st Cir.
2010) (Animal
Welfare Inst.). In so holding,
the court concluded that Congress did
not eliminate the traditional test for
injunctions in ESA cases.
Endangered Species Act
An “endangered” species is “any species
which is in danger of extinction
throughout all or a significant portion
of its range.” 16 U.S.C. § 1532(6). A
“threatened” species is “any species
which is likely to become an endangered
species within the foreseeable future
throughout all or a significant portion
of its range.” 16 U.S.C. § 1532(20).
The ESA makes it unlawful to “take” a
member of an endangered or threatened
species. 16 U.S.C. § 1538(a)(1)(B); 50
C.F.R. § 17.31(a). The term “take”
means to “harass, harm, pursue, hunt,
shoot, wound, kill, trap, capture, or
collect.” 16 U.S.C. § 1532(19). The
phrase “incidental taking” means any
taking otherwise prohibited, if such
taking is incidental to, and not the
purpose of, the carrying out of an
otherwise lawful activity. 50 C.F.R. §
17.3.
Background
Two animal rights groups, Animal Welfare
Institute and Wildlife Institute of
Maine (collectively AWI), brought an ESA
citizen suit against Maine state
officials seeking to enjoin them from
allowing the use of foothold traps,
which are designed to spring shut on an
animal’s leg or foot, holding it in
place until the trapper returns. AWI
argued that this relief was necessary to
prevent an unlawful “take” of the Canada
lynx (lynx), a wild cat that is listed
as a “threatened” species throughout its
United States range, including Maine.
Maine prohibits the trapping of lynx,
but allows the regulated trapping of
other animals. Foothold traps are
typically used to trap coyote and fox.
While there are no known instances of
lynx deaths caused by foothold traps, a
small number of lynx are trapped by
foothold traps and released each year in
Maine.
As the result of prior litigation, Maine
promulgated regulations in 2007 and 2008
to protect the lynx. The regulations
limited the size of foothold traps in
lynx territory and the use of Conibear
traps, which are designed to spring shut
on an animal’s body, killing it. The
regulations also require trappers to
report any incidental lynx takings,
which allows the Maine Department of
Inland Fisheries and Wildlife (IF&W) to
examine the captured lynx and
rehabilitate any injured lynx before
releasing them.
Notwithstanding these new regulations,
AWI filed the instant action, alleging
that Maine had not done enough to
protect the lynx. AWI challenged the
use of both Conibear traps and foothold
traps. With respect to foothold traps,
AWI alleged that, by allowing trappers
to use such traps to catch other
species, Maine violated the ESA because
some lynx are incidentally caught in
these traps. AWI argued that the court
was required to issue an injunction
banning all foothold traps.
Permanent Injunction Standard
In order to obtain a permanent
injunction, plaintiffs must ordinarily
satisfy a four-factor test. “A
plaintiff must demonstrate: (1) that it
has suffered an irreparable injury; (2)
that remedies available at law, such as
monetary damages, are inadequate to
compensate for that injury; (3) that,
considering the balance of hardships
between the plaintiff and defendant, a
remedy in equity is warranted; and (4)
that the public interest would not be
disserved by a permanent injunction.”
Animal Welfare Inst., 2010 U.S.
App. LEXIS 21611, at *15-16, quoting
Monsanto v. Geertson Seed Farms,
130 S. Ct. 2743, 2756 (2010).
In cases involving the ESA, Congress
removed from the courts their
traditional equitable discretion in
injunction proceedings of balancing the
parties’ competing interests. As the
Supreme Court has noted, “Congress has
spoken in the plainest of words, making
it abundantly clear that the balance has
been struck in favor of affording
endangered species the highest of
priorities.”
TVA v. Hill, 437 U.S. 153, 194
(1978) (Hill).
Accordingly, courts “may not use
equity’s scales to strike a different
balance.”
Sierra Club v. Marsh, 816 F.2d
1376, 1383 (9th Cir. 1987); see also
Marbled Murrelet v. Babbitt, 83
F.3d 1068, 1073 (9th Cir. 1996)
(“Congress has determined that under the
ESA the balance of hardships always tips
sharply in favor of endangered or
threatened species.”).
District Court Decision
The district court rejected AWI’s
argument that injunctive relief must
issue, even absent a showing of
irreparable harm, upon a showing that
incidental takings result from Maine’s
decision to allow foothold traps. The
court denied preliminary injunctive
relief as to foothold traps, but set the
matter for a hearing on evidence as to
the actual risk of incidental trapping
of lynx in foothold traps and the actual
consequences to the lynx of such
trapping.
As to Conibear traps, the district court
granted preliminary injunctive relief,
directing IF&W to immediately promulgate
regulations to prevent further takes
caused by these “killer-type” traps.
The court found irreparable harm in the
death of a single lynx that had been
killed by a Conibear trap. The court
concluded that even though AWI had not
established that the death of one lynx
threatens the species as a whole, it had
sufficiently demonstrated that the
current regulations were inadequate and
that it was predictable that other lynx
would suffer irreparable harm if the
regulations were not amended.
Following a six-day hearing on both
types of traps, the court found that AWI
had not shown it was likely that lynx
would be taken in Conibear traps under
the new regulations promulgated by Maine
as a result of the preliminary
injunction. The district court also
found that AWI did not prove lynx suffer
serious physical injury from incidental
takes in foothold traps. As a
consequence, the court concluded that
AWI had failed to demonstrate
irreparable harm was likely to occur
absent an injunction. The court noted
that, even assuming AWI had shown that
some lynx suffer “debilitating” injuries
from takes, AWI certainly had not
established that these injuries
threatened the species. The court
determined that absent a showing lynx
deaths were likely, and that these
deaths would impact the species, it was
not an abuse of discretion to refuse to
issue an injunction.
The Appellate Court Decision
On appeal, the First Circuit assumed
that the incidental taking of lynx in
foothold traps constituted a violation
of the ESA. The court then went on to
affirm the district court’s denial of
the injunction requested by AWI. In
doing so, the court endorsed the
district court’s “nuanced” approach to
determining the propriety of injunctive
relief, finding that the district court
properly rejected the two opposite per
se rules advanced by the opposing
parties; namely, that harm to a single
animal constitutes irreparable harm, or
that only a threat to the entire species
constitutes irreparable harm. The court
explained that the injunctive relief
analysis is a fact-sensitive inquiry,
noting that the death of a single animal
may call for an injunction in some
circumstances, while in others the death
of one member is an isolated event that
would not call for judicial action
because it has only a negligible impact
on the species as a whole.
In affirming the denial of injunctive
relief, the court rejected AWI’s
argument that Congress, in enacting the
ESA, has so displaced the traditional
factors used by courts in deciding on
injunctive relief that the district
court was required to issue an
injunction on finding there was a
“taking” of a single member of the
lynx. The court concluded that,
contrary to AWI’s contention, the
finding of an ongoing violation of the
ESA does not automatically obligate a
court to issue an injunction with terms
stringent enough to end the violation.
In reaching this conclusion, the court
stated that AWI’s arguments were based
on a mistaken reading of cases beginning
with
Hill, 437 U.S. 153, in which the
Supreme Court found that only a
permanent injunction against bringing a
dam online would suffice to remedy the
Tennessee Valley Authority’s violation
of the ESA. The court explained that
the drastic result in
Hill was based on the strong and
undisputed showing of irreparable harm
that would occur absent an injunction;
namely, that an entire species would
become extinct. The court stated that
because irreparable harm was essentially
conceded, the injunctive relief inquiry
focused on the remaining elements,
including the balancing of the equities
and hardships of the case. In
Hill, the Supreme Court
ultimately concluded that, under the
circumstances, congressional intent in
the ESA foreclosed it from striking a
balance of equities in favor of the dam
because equity clearly favored the
endangered species.
The court found the present
circumstances to be distinguishable from
Hill. AWI, for instance, did not
prove that any single lynx has suffered
serious physical injury or death from a
foothold trap. In fact, the record
indicated that the ESA violation had not
caused the death of any lynx, let alone
did it pose the ultimate danger of
extinction to which the Supreme Court in
Hill responded. As such,
injunctive relief banning all foothold
traps was not warranted.
In contrast, the court concluded that
the district court’s injunction
requiring Maine to amend its Conibear
trap regulations was proper, because
these traps posed a mortal risk to at
least some lynx. The court determined
that the district court engaged in the
fact-sensitive analysis required by law,
and properly applied the principle that
the death of a single animal may call
for an injunction in some cases, while
in others the death of one animal is an
isolated event that would not call for
judicial action because it only has a
negligible impact on the species as a
whole.
In concluding that the district court
properly required AWI to show
irreparable harm for injunctive relief,
the court stated that the First Circuit
has consistently applied the traditional
test for preliminary injunctions in ESA
cases, without modifying the irreparable
harm requirement. The court explained
that rather than supplant the need for
proof on the irreparable harm
requirement as AWI seeks, the First
Circuit has incorporated Congress’s
prioritization of listed species’
interests into the third and fourth
prongs of the injunctive relief
analysis, modifying those factors where
appropriate to “tip[] heavily in favor
of protected species.”
The court also rejected several other
arguments made by AWI, including AWI’s
contention that an unlawful “take” of a
threatened species results in per se
irreparable harm. The court concluded
that this argument fails because it
mistakes the question of what violates
the statute with the question of the
appropriate remedy for a violation of
the statute. In other words, contrary
to AWI’s contention, a violation of the
ESA does not automatically constitute
irreparable harm. In addition, the
court rejected AWI’s argument that it
was improper for the district court to
inquire into species-level harm during
the irreparable harm inquiry. The court
found that nothing in the statute
precludes a district court from
considering facts regarding
species-level harm.
Conclusion and Implications
This decision clarifies that a violation
of the ESA does not automatically amount
to irreparable harm justifying
injunctive relief. That is, courts are
not mechanically obligated to grant an
injunction for every violation of the
ESA. Rather, courts must evaluate the
traditional four-factor test for
injunctive relief to determine whether
an injunction is an appropriate remedy
under the circumstances of the case.
This means that an injunction will not
issue, even if there is an ESA
violation, unless plaintiff demonstrates
irreparable harm. In order for
plaintiffs to obtain an injunction, it
is incumbent upon them to not only show
a violation of the ESA but to also show
irreparable harm. For a permanent
injunction, this showing requires
evidence of actual irreparable harm,
while a preliminary injunction requires
a showing that irreparable injury is
likely in the absence of an injunction.
Although the jurisprudence on the issue
of irreparable harm in the context of
ESA cases lacks clarity, irreparable
harm is generally characterized as
significant harm to the overall
population of the species.
Pac. Coast Fed’n of Fishermen’s Ass’ns
v. Gutierrez, 606 F.Supp.2d 1195,
1210 (E.D. Cal. 2008) (citing
Nat’l Wildlife Fed’n v. Nat’l Marine
Fisheries Serv., 422 F.3d 782
(9th Cir. 2005)). In other words, to
obtain an injunction plaintiffs must
show that the ESA violation has a
considerable or substantial impact on
the species as a whole. Absent such a
showing, an injunction is not the proper
remedy for an ESA violation.
For further information on
Animal Welfare Inst. v. Martin,
2010 U.S. App. LEXIS 21611 (1st Cir.
2010), please contact Joseph M.
Carpenter at
jcarpenter@somachlaw.com.
Somach Simmons & Dunn provides the
information in its Environmental Law &
Policy Alerts and on its website for
informational purposes only. This
general information is not a substitute
for legal advice, and users should
consult with legal counsel for specific
advice. In addition, using this
information or sending electronic mail
to Somach Simmons & Dunn or its
attorneys does not create an
attorney-client relationship with Somach
Simmons & Dunn.
[
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Proposition 26 May
Imperil Implementation
of California’s
Landmark Greenhouse Gas
Reduction Law
November 23, 2010
by Michael E. Vergara
and Adam D. Link
mvergara@somachlaw.com
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When Californians voted
to approve
Proposition 26 this
November, the result may
effectively gut the
implementation scheme
for AB 32, California’s
landmark greenhouse gas
reduction law for which
implementing regulations
are now being
considered. Somewhat
ironically, AB 32 may be
affected despite the
fact that voters
defeated Proposition 23,
a more direct challenge
to the implementation of
the AB 32. Though
voters defeated
Proposition 23, the
passage of
Proposition 26 could be
equally detrimental to
implementation of AB 32
because the cap and
trade program proposed
by the California Air
Resources Control Board
(CARB), the implementing
agency for AB 32, is
predicated on the
collection of fees from
industries that produce
and emit greenhouse
gases. Proposition 26
restricts the ability of
agencies to assess a
number of fees after
January 1, 2010,
including regulatory
fees that benefit the
public broadly. While
the assessments
contemplated by CARB may
or may not fall into
that category because
the authorizing
legislation for AB 32
was passed in 2006,
before the effective
date of Proposition 26,
it is unclear what
affect, if any, the new
restrictions will have
on assessment of fees in
support of AB 32.
Background
Proposition 26, the
Supermajority Vote to
Pass New Taxes and Fees
Act, was approved by the
voters on November 2,
2010. It expands the
definition of taxes and
tax increases so that a
number of proposals that
formerly would have
required only a majority
vote will now require
approval by two-thirds
of the Legislature or
the local electorate.
It is an initiative
specifically designed to
address the government’s
increasing use of fees,
particularly regulatory
fees, which have been
popular in recent years
and have been used to
raise revenue with a
mere majority vote. In
fact, in the analysis of
Proposition 26 prepared
by the Secretary of
State’s office, the
following statement
appears:
Generally, the types
of fees and charges
that would become
taxes under the
measure are ones
that government
imposes to address
health,
environmental, or
other societal or
economic concerns.
Figure 3 provides
examples of some
regulatory fees that
could be considered
taxes, in part or in
whole, under the
measure. This is
because these fees
pay for many
services that
benefit the public
broadly, rather than
providing services
directly to the fee
payer. The state
currently uses these
types of regulatory
fees to pay for most
of its environmental
programs. (http://www.voterguide.sos.ca.gov/propositions/26/analysis.htm.)
Proposition 26 is the
outgrowth of a whole
line of anti-tax
initiatives dating back
to Proposition 13 passed
in 1978. These
initiatives, including
Proposition 26,
constitute repeated
attempts to constrain
the state’s ability to
impose new and increased
taxes in light of
judicially and
legislatively created
loopholes created to
accomplish just the
opposite.
AB 32, the Global
Warming Solutions Act of
2006, is the landmark
greenhouse gas law
designed to reduce
greenhouse gas emissions
in California by the
year 2020. The
Legislature passed AB 32
in 2006, and the bill
was signed by Governor
Schwarzenegger later
that year. Among other
things, AB 32 requires
the identification and
development of
mechanisms to reach
specified greenhouse gas
reduction limits by the
year 2020. The agency
responsible for the
tasks outline in AB 32
is CARB, part of the
California Environmental
Protection Agency (CalEPA).
CARB’s stated mission is
to promote and protect
public health, welfare
and ecological resources
through the effective
and efficient reduction
of air pollutants while
recognizing and
considering the effects
on the economy of the
state. (http://www.arb.ca.gov/html/mission.htm.)
Under AB 32, CARB is
responsible for
undertaking and
implementing the
regulations and
mechanisms that will
achieve the mandated
greenhouse gas
reductions.
Analysis
As part of the AB 32
effort to reduce
greenhouse gases, the
legislation directed
CARB to adopt a scoping
plan indicating how
emission reductions will
be achieved from
significant sources of
greenhouse gases using
various regulations,
market mechanisms and
other actions. This
plan was approved by
CARB in 2008, and
provides an outline for
actions to reduce
greenhouse gases in the
coming years.
As noted by CARB itself,
some form of regulatory
or administrative fee is
necessary to carry out
the goals of AB 32
because no dedicated
funding source exists
for implementation of
the law. Instead, AB 32
authorizes CARB to adopt
regulations setting a
schedule of fees to be
paid by the sources of
greenhouse gas
emissions, the
collection of which will
support the
administration costs of
implementing the
program. Adopted
regulations already
require mandatory
reporting of greenhouse
gas emissions from the
largest industrial
sources (17 Cal. Code
Regs., § 95100 et seq.),
but CARB added to them
by adopting the Cost of
Implementation Fee
Regulation in September
of 2009, which became
effective in July of
2010 (17 Cal. Code Regs.,
§ 95200 et seq.).
In addition to the fees
adopted earlier this
year, the most recent
regulatory effort has
been the rulemaking
process for the cap and
trade program. On
October 29, 2010, CARB
issued draft rules that
describe the
implementation mechanism
for the AB 32 cap and
trade program. The
draft regulations
contain preliminary
regulatory language on
the cap and trade
system, including the
process for compliance
and overall structure of
the program. It also
contains more narrative
text describing key
concepts and issues that
should be addressed when
CARB issues proposed
regulatory language in
Spring 2011.
In an attempt to close
the regulatory fee
loophole created by the
Legislature and
sanctioned by the
courts, Proposition 26
gives a broad definition
to taxes, and subjects
most of what would have
previously been
considered “fees” to the
two-thirds voting
requirements contained
in Proposition 13.
Under Proposition 26,
tax means any levy,
charge, or exaction of
any kind imposed by the
State with certain
specified exceptions.
Unless a new revenue
generation proposal
falls under one of these
specified exceptions, it
will be subject to the
requirements of
Proposition 26. Because
of this change, many
charges that are now
considered “fees” will
require a two-thirds
vote to impose or
increase, including
charges that provide a
broad public benefit.
In addition, the
Legislative Analyst’s
Office states that under
Proposition 26 some
business assessments
could be considered
taxes because they do
not provide a direct and
distinct service to the
business owner, but
rather a benefit to the
public broadly. (http://www.voterguide.sas.ca.gov/proposition/26/analysis.htm.)
The logical connection
to AB 32 is that a cap
and trade system by its
very nature requires the
government to extract
revenue from polluters
emitting greenhouse
gases into the
atmosphere. These
regulatory fees,
administrative fees, or
business assessments,
however they are
ultimately
characterized, are
designed to provide a
broad public benefit
associated with
reduction in greenhouse
gases in the state. As
such, it appears that
the very fees
contemplated by AB 32
and the CARB
implementation program
are those that are now
covered by
Proposition 26.
However, supporters of
the cap and trade
system, including CARB,
have noted that the
authorizing legislation
was passed in 2006. As
noted above, Proposition
26 applies both
prospectively and
retroactively to any
state charges created or
increased between
January 1 and
November 2, 2010.
Statutes enacted prior
to that date remain, in
theory, unaffected by
the new restrictions.
According to CARB, even
though implementation of
the cap and trade
program and other
elements of AB 32 are
ongoing, none of their
actions will require
changes in the
underlying statute
adopted in 2006. Thus,
according to CARB,
Proposition 26 should
have no impact on fees
assessed pursuant to
that legislation,
including implementation
of administrative fees
that are subsequently
adopted.
While there is some
merit to the argument
that fees adopted under
the existing regulations
may remain unaffected by
Proposition 26, it is
likely that CARB will
encounter several
difficulties relating to
assessing additional
fees in the future.
First, because of the
broad definition given
to the term “tax” within
Proposition 26, elements
of the cap and trade
permitting regime under
the proposed regulations
may be construed as a
tax, and therefore
subject to the
requirements of
Proposition 26. Much of
the merit of this
contention depends on
the precise language and
content of the final
regulations promulgated
by CARB.
Second, there will
inevitably be supporting
legislation for AB 32
that seeks to provide
needed revenue. Any
such legislation passed
after January 1, 2010,
however, will need to be
approved by a
super-majority in
compliance with
Proposition 26. This
will be a difficult
hurdle.
Conclusions and
Implications
As the CARB cap and
trade scheme and related
actions transition from
the planning stage to
actual implementation,
the funding requirements
for the program will
grow substantially. As
a result of increased
funding needs resulting
from the shift to
implementation and
enforcement activities,
the issues related to
assessments under the
program will become more
prominent, and likely
more contentious.
Although CARB has taken
the position that
Proposition 26 will not
have an impact on its
ability to assess fees
as part of the cap and
trade program, it is
inevitable that this and
various other fees
assessed under the new
program will be
challenged in court.
The result of this
future litigation will
have a significant
impact not just on the
emission reduction goals
of AB 32, but the
efforts of agencies
throughout the state to
continue to assess fees
in a post-Proposition 26
era.
For additional
information on this or
any related topic,
contact Adam Link at
alink@somachlaw.com
or Michael Vergara at
mvergara@somachlaw.com.
Somach Simmons & Dunn
provides the information
in its Environmental Law
& Policy Alerts and on
its website for
informational purposes
only. This general
information is not a
substitute for legal
advice, and users should
consult with legal
counsel for specific
advice. In addition,
using this information
or sending electronic
mail to Somach Simmons &
Dunn or its attorneys
does not create an
attorney-client
relationship with Somach
Simmons & Dunn. |
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Proposition 26 May Imperil
Implementation of California’s Landmark Greenhouse Gas
Reduction Law
By Michael E. Vergara and Adam D. Link
When Californians voted to approve Proposition 26
this November, the result may effectively gut the
implementation scheme for AB 32, California’s landmark
greenhouse gas reduction law for which implementing
regulations are now being considered. Somewhat
ironically, AB 32 may be affected despite the fact that
voters defeated Proposition 23, a more direct challenge
to the implementation of the AB 32. Though voters
defeated Proposition 23, the passage of Proposition 26
could be equally detrimental to implementation of AB 32
because the cap and trade program proposed by the
California Air Resources Control Board (CARB), the
implementing agency for AB 32, is predicated on the
collection of fees from industries that produce and emit
greenhouse gases. Proposition 26 restricts the ability
of agencies to assess a number of fees after January 1,
2010, including regulatory fees that benefit the public
broadly. While the assessments contemplated by CARB may
or may not fall into that category because the
authorizing legislation for AB 32 was passed in 2006,
before the effective date of Proposition 26, it is
unclear what affect, if any, the new restrictions will
have on assessment of fees in support of AB 32.
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