Earlier this Month, Judge James Boasberg, who had previously ruled that the easement allowing construction of the Dakota Access Pipeline must be vacated due to a failure to comply with NEPA, nonetheless declined to issue an injunction requiring that the pipeline cease operations. The Court’s rationale was clear and straightforward. The Court of Appeals ruled that Judge Boasberg could not enjoin use of the pipeline without finding that all elements of the four-factor test for an injunction had been met. Since the first element is a demonstration that, absent an injunction, the plaintiffs are at least “likely” to suffer irreparable harm, and since the record demonstrated that an oil spill would be far from “likely”, the Court concluded that the irreparable harm factor had not been satisfied.
Sorry, but the law is an ass.
Anyone with any experience in risk assessment knows that risk is the product of the likelihood of an event times the consequences if that event happens. There might be events that would be far from likely, but whose consequences are sufficiently severe that, should a project proponent violate a law intended to mitigate such risks, we would want to enjoin that project until the risks have been addressed.
This is not rocket science. An injunction should be based on an assessment of the expected costs and benefits associated with a decision to enjoin or not enjoin the behavior or action at issue in the case. And that assessment should reflect the entire probability distribution, not just the part where the adverse outcome is likely to occur. Can our injunction jurisprudence be updated to reflect basic arithmetic, which is pretty much what this is about?
There must be scholarly commentary on this issue. And plaintiffs in this case made the argument. However, Judge Boasberg reasonably felt that the applicable precedent tied his hands. (It’s also worth noting that plaintiffs would probably have failed to obtain an injunction even under the test I advocate, because the record also indicates that, even if there were a leak from the pipeline, the likelihood of significant harm would be remote.)
On the merits, this leaves the pipeline in operation, while the Army Corps figures out how to respond to the vacatur – and the opinion is worth reading for Judge Boasberg’s trenchant remarks about the Corps’ failure to act. But that’s a blog for another day.