Suggestion for a uniform, federal standard in issuing preliminary injunctions in environmental cases

1. EVOLVING STANDARDS FOR
ENVIRONMENTAL INJUNCTIONS
Kalpana S Murari
Independent Researcher
India

2. Environmental Injunctions - Critical to Environmental Justice?
1. Decide the fate of an established business activity
2. Timely intervention to prevent future environmental damage
3. Protects the interests of stakeholders not present before the
court
4. Wield indirect influence on the economic activities of a nation
5. Uphold citizens’ rights over nation’s natural resources
6. Preserve, protect and conserve natural resources for
intergenerational equity

3. Environmental Injunctions - Impact on Climate Change litigation
1. Prevent rippling effect of statutory violations
2. Maintain ecological integrity
3. Protect habitats, ecosystem services against irreparable harm
4. Penalize polluting industries that increase global temperatures
5. Promote resource efficiency

4. Concept of Economic Efficiency in Environmental Injunctions
1. Injunction orders prevent delay in the assignment of legal
entitlements
2. Preliminary injunctions ensure efficient allocation of resources
3. Transfer of resources for optimal use which yields maximum net
benefit
4. Determines who loses more while making an assessment on the
costs
5. Form of corrective justice where plaintiff’s interests are protected

5. Reasons for ambiguity in application of standards
1. Interpreting statutory violations and legal wrongs for remedy
2. Decision to maintain status quo is crucial to litigation
3. Determining existence of legal rights of both parties
4. Primarily relying on judicial discretion
5. Assess probable success of the plaintiff on merits at a preliminary hearing
6. Judicial deference to decisions made by federal agencies
7. Presently, courts are merely adjudicating legal rights of parties
8. Courts more on ‘due process’ than assessing imminent ‘environmental harms’
9. No incentives for efficient behavior in situations of legal uncertainty

6. Efficacy of ‘Natural Capital Standard’ at Preliminary Hearings
1. Invokes equity jurisdiction ensuring application of precautionary principle
2. Requires accounting of natural resources to assess environmental harms
3. Calls for input and output flow chart of business processes for sustainable yields
4. Public interest factor brought to the fore in determining plaintiff’s injury
5. Ensures cost-benefit analysis
6. Burden of proof on defendants to prove absence of ‘irreparable harm’
7. EIA report made relevant for circular economy
8. Courts can move away from mere adjudication of parties’ legal rights
9. Shift in focus on impact of businesses on natural resources
10. Emphasis on remediation rather than award of monetary compensation