Friday, July 15, 2011

Sierra Club v. Southwestern Electric Power Co

Jul 14: In the U.S. Court of Appeals, Eighth Circuit, Case Nos: 10-3452 & 10-3456. Appealed from the U.S. District Court for the Western District of Arkansas - Texarkana. The Sierra Club and several related parties brought the suit against the U.S. Army Corps of Engineers (the Corps) in February 2010, seeking to set aside a Clean Water Act permit (the § 404 permit) the Corps had issued to the Southwestern Electric Power Company (SWEPCO) which planned to construct a new power plant.
    After SWEPCO intervened as a defendant, the Sierra Club moved to enjoin construction of the plant. The Hempstead County Hunting Club (Hunting Club) filed a similar action against SWEPCO, the Corps, and the U.S. Fish and Wildlife Service (FWS) in July 2010. The plaintiffs alleged that SWEPCO, the Corps, and the FWS failed to comply with the National Environmental Policy Act (NEPA), the Clean Water Act (CWA), the Endangered Species Act (ESA), and Arkansas state law.
    The district court granted only part of the injunctive relief requested in the plaintiffs' motions for a preliminary injunction. It first held that the Sierra Club and the Hunting Club had standing to challenge the activities authorized under the § 404 permit and then that they had satisfied the criteria for a preliminary injunction, including showing a likely threat of irreparable harm and a likelihood of success on the merits. It ordered all "work authorized by the § 404 permit" to "halt immediately."
    SWEPCO's appealed the preliminary injunctions ordered in each case. SWEPCO argued that the district court lacked subject matter jurisdiction because the plaintiffs had failed to show an injury in fact on their NEPA, CWA, and ESA claims. It also contends that the district court abused its discretion in granting the preliminary injunction. The Appeals Court affirmed the district court's limited injunction citing Heartland Acad. Cmty. Church v. Waddle, 335 F.3d 684, 689–90 (8th Cir. 2003).
    Further explaining the decision, the Appeals Court said, "The district court found that an injunction was in the public interest because it would convey to the public the importance of having its government agencies fulfill 'their obligations and comply[] with the laws that bind them.' The district court rejected SWEPCO's arguments that an injunction would put at risk hundreds of jobs and threaten the electric generating capacity of a region in need. '[O]utside of SWEPCO's bare assertions,' it noted, there was 'no other evidence of need . . . anywhere in the record.'
    "The district court's analysis on this element is sound. We agree that, just as important as the public interest in potential economic gains is 'the public's confidence that its government agencies act independently, thoroughly, and transparently when
reviewing permit applications.' The 'environmental dangers at stake in this case are serious,' see Davis, 302 F.3d at 1116, and the public interests that might be injured by a preliminary injunction, such as temporary loss of jobs or delays in increasing energy output in the region, 'do not outweigh the public interests that will be served.' Alliance for the Wild Rockies, 632 F.3d at 1138.

    Access the complete opinion (click here). [#Water, #Energy, #CA8]