ELR Citation: ELR 20931
No(s). 88-2049 (1st Cir. Mar 31, 1989)

The court holds that an agency decision in violation of the National Environmental Policy Act (NEPA) causes potentially irreparable environmental injury for purposes of a preliminary injunction by making completion of the project more likely. The court first holds that noncompliance with NEPA is an environmental, not a procedural, harm. A decision that authorizes a project without properly considering its likely environmental effects puts the environment at risk by making the project more difficult to stop later. The court holds that NEPA's purpose is to minimize that risk of uninformed choice. A district court deciding on a preliminary injunction should take this potentially irreparable risk into account.

The court holds that this analysis is consistent with the Supreme Court's decision in Amoco Production Co. v. Village of Gambell, 17 ELR 20574. Gambell involved the Alaska National Interest Lands Conservation Act (ANILCA), which, unlike NEPA, mandates not only a decisionmaking procedure, but a decision meeting particular substantive standards. Therefore, harm caused by a procedural failure resulting in an improper decision under ANILCA may be reparable because a court may order the agency to make a different decision. The same harm under NEPA may be irreparable because all the court can do is order the agency to reconsider its decision in conformance with NEPA procedures, and the more the agency and community have invested in the project, the less likely it is that reconsideration will change the decision. Therefore, the injury caused by growing bureaucratic commitment to a project may be reparable in an ANILCA case but irreparable in a NEPA case. The court also holds that its analysis creates no special presumption in favor of injunctions, but merely requires that in considering whether there is irreparable harm, the court must take bureaucratic momentum into account.

[The lower court opinions appear at 19 ELR 20692, 20699. Related opinions are published at 15 ELR 20911 and 16 ELR 20487.]

Counsel for Appellants
Edward F. Lawson
Weston, Patrick, Willard & Redding
84 State St., 11th Fl., Boston MA 02109
(617) 742-9310

Counsel for Appellees
Anthony C. Roth
Morgan, Lewis & Bockius
2000 One Logan Sq., Philadelphia PA 19103
(215) 963-5000

David C. Shilton
Land and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 633-5580

Before BOWNES, BREYER, and SELYA, Circuit Judges.