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Voices v. Chu

July 26, 2010


The opinion of the court was delivered by: Ricardo M. Urbina United States District Judge

Re Document No. 48



This matter comes before the court on the plaintiffs' renewed motion for a preliminary injunction. In early 2008, the plaintiffs, nonprofit organizations devoted to the environmental preservation of the Appalachian Mountains region, brought suit against the defendants, the Department of Treasury and the Department of Energy, alleging that the defendants erroneously failed to consider the environmental consequences of a program that provides tax credits to companies that use "clean coal" technology. The plaintiffs have now moved for a preliminary injunction to "immediately suspend allocation of the . . . tax credit" at issue in this case. Because the plaintiffs have failed to meet the threshold for preliminary injunctive relief, however, the court denies the plaintiffs' motion.


Through the Energy Policy Act of 2005 ("the EPAct"), Congress provided for the allocation of up to $1.65 billion in tax credits for investment in "clean coal" facilities. Pub. L. No. 109-58 at § 1307, 119 Stat. 594 at 999-1006 (2005); see also 26 U.S.C. §§ 48A(d)(1), 48B(d)(1). Each recipient of a tax credit under the EPAct is required to satisfy certain prerequisites before placing its project into service; for example, the recipient must "receive[] all Federal and State environmental authorizations or reviews necessary to commence construction of the project." 26 U.S.C. § 48A(e)(2)(A). In 2006, the Internal Revenue Service allocated $1 billion in tax credits to the Duke Energy Cliffside Modernization Project ("the Cliffside project"), located in North Carolina, and eight other projects. 2d Am. Compl. ¶¶ 42-46. Construction on the Cliffside project began in January 2008, see Pls.' Mot. at 1, and the modernized Cliffside plant is scheduled to become operational in the summer of 2012, see Defs.' Opp'n at 1.

The plaintiffs claim that the defendants violated the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321 et seq., the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 551 et seq., and the Endangered Species Act ("ESA"), 16 U.S.C. §§ 1531 et seq., by failing to evaluate the environmental impacts of the tax credit program and by failing to consult with the U.S. Fish and Wildlife Service and the U.S. National Marine Fisheries Service before allocating the tax credits. See generally 2d Am. Compl. The plaintiffs commenced this action and moved for a preliminary injunction in March 2008, see generally Compl.; Pls.' 1st Mot. for Preliminary Inj., and filed a first amended complaint in August 2008, see generally 1st Am. Compl. The court dismissed the first amended complaint in November 2008, holding that the plaintiffs had failed to adequately allege injury in fact with respect to the eight projects other than Cliffside because they had asserted no particularized connection to or interest in those sites, see Mem. Op. (Nov. 10, 2008) at 6-9, and that the plaintiffs had failed to assert a fairly traceable causal connection between the allocation of the tax credits and the decision to proceed with the Cliffside project, see id. at 9-14. As a consequence, the court denied as moot the plaintiffs' motion for a preliminary injunction. See id. at 14.

In January 2009, the plaintiffs moved for leave to file a second amended complaint to remedy the deficiencies that had prompted the dismissal of the first amended complaint. See generally Pls.' Mot. to Amend Compl. The court granted that motion in September 2009, see generally Mem. Op. (Sept. 23, 2009), and the plaintiffs filed a second amended complaint the same day, see generally 2d Am. Compl. The following month, the plaintiffs filed a renewed motion for a preliminary injunction. See generally Pls.' Renewed Mot. for Preliminary Inj. ("Pls.' Mot."). As the plaintiffs' renewed motion for a preliminary injunction is now ripe for adjudication, the court turns to the applicable legal standard and the parties' arguments.


A. Legal Standard for Injunctive Relief

This court may issue interim injunctive relief only when the movant demonstrates "[1] that he is likely to succeed on the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an injunction is in the public interest." Winter v. Natural Res. Def. Council, Inc., 129 S.Ct. 365, 374 (2008) (citing Munaf v. Geren, 128 S.Ct. 2207, 2218-19 (2008)). It is particularly important for the movant to demonstrate a likelihood of success on the merits. Cf. Benten v. Kessler, 505 U.S. 1084, 1085 (1992) (per curiam). Indeed, absent a "substantial indication" of likely success on the merits, "there would be no justification for the court's intrusion into the ordinary processes of administration and judicial review." Am. Bankers Ass'n v. Nat'l Credit Union Admin., 38 F. Supp. 2d 114, 140 (D.D.C. 1999) (internal quotation omitted).

The other critical factor in the injunctive relief analysis is irreparable injury. A movant must "demonstrate that irreparable injury is likely in the absence of an injunction." Winter, 129 S.Ct. at 375 (citing Los Angeles v. Lyons, 461 U.S. 95, 103 (1983)). Indeed, if a party fails to make a sufficient showing of irreparable injury, the court may deny the motion for injunctive relief without considering the other factors. CityFed Fin. Corp. v. Office of Thrift Supervision, 58 F.3d 738, 747 (D.C. Cir. 1995).Provided the plaintiff demonstrates a likelihood of success on the merits and of irreparable injury, the court "must balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief." Amoco Prod. Co. v. Gambell, 480 U.S. 531, 542 (1987). Finally, "courts of equity should pay particular regard for the public consequences in employing the extraordinary remedy of injunction." Weinberger v. Romero-Barcelo, 456 U.S. 305, 312 (1982).

As an extraordinary remedy, courts should grant such relief sparingly. Mazurek v. Armstrong, 520 U.S. 968, 972 (1997). The Supreme Court has observed "that a preliminary injunction is an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion." Id. Therefore, although the trial court has the discretion to issue or deny a preliminary injunction, it is not a form of relief granted lightly.In addition, any injunction that the court issues must be ...

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