Dangerous Waters? The Future of Irreparable Harm Under NEPA After <i>Winter v. NRDC</i>
The debate between Justices Scalia and Breyer during oral argument in Winter v. NRDC examines whether an NEPA violation constitutes irreparable harm for the purposes of injunctive relief. Whereas Justice Scalia conflated the showing of harm required for standing with the irreparable harm element of injunctive relief, Justice Breyer argued persuasively, as he did in his First Circuit opinions, that the harm from a violation of NEPA is irreparable in itself. Although Justice Breyer's position is both correct and will eventually prevail, given the current makeup of the Court, it may be some time before it becomes law.