Despite recent efforts by the U.S. Supreme Court to emphasize the “drastic and extraordinary” nature of injunctive relief, many lower federal courts continue to issue injunctions in cases alleging harm to the environment as if injunctive relief were the norm rather than the exception. Apparently reluctant to accept constraints on the exercise of equitable powers, a number of federal courts have interpreted and applied the governing legal standard as set out in the Supreme Court’s 2008 Winter
decision with more latitude than that decision would seem to permit. This circumstance may well lead in time to additional clarification by the Supreme Court. In the meantime, defense practitioners should be prepared to advocate for a strict application of the Winter standard, while recognizing that the standard as actually applied by
some courts may be somewhat less demanding in practice.