September 24, 2020

Law Student Corner: Cottonwood’s Elimination of the Presumption of Irreparable Harm: Implications for Public Interest Litigation

Daniel Bornstein

The Ninth Circuit’s 2015 decision in Cottonwood Environmental Law Center v. U.S. Forest Service has reshaped environmental groups’ prospects for securing injunctive relief when it comes to claims brought pursuant to the Endangered Species Act (ESA). 789 F.3d 1075 (9th Cir. 2015), cert denied, 137 S.Ct. 293 (2016). The case concerned a challenge to the Forest Service’s failure to reinitiate consultation after the Fish and Wildlife Service (FWS) revised its critical habitat designation for the Canada lynx. The Ninth Circuit ruled that, under the ESA, the U.S. Forest Service (USFS) was indeed required to reinitiate consultation. Despite ruling for the environmental group on the merits, however, the court imposed a new burden on future plaintiffs seeking injunctive relief.

In Cottonwood, the Ninth Circuit eliminated the “presumption of irreparable harm.” Up to that point, when a plaintiff had requested injunctive relief, the court presumed that the government’s unlawful action had produced irreparable harm and in turn granted the injunction. In Cottonwood, however, the court ruled (2-1) that the burden was on the plaintiff seeking the injunction to demonstrate that irreparable environmental harm was likely in the absence of an injunction.

Five years later, the implications of Cottonwood appear significant. Cottonwood has made it more difficult for environmental organizations to secure injunctions. Absent the irreparable harm presumption, environmental groups now must assemble and present to the court their own scientific data—an expensive and time-consuming endeavor.

To understand how Cottonwood has made environmental plaintiffs' task more onerous, consider two recent district court cases litigated in the wake of Cottonwood.

The first, Swan View Coalition v. Weber, illustrates how the burden on plaintiffs to present scientific evidence stifles some environmental groups’ attempts to win injunctions. No. CV 13-129-M-DWM, 2019 WL 952329 (D. Mont. Feb. 27, 2019). The case involved a challenge under the ESA to a logging project administered by the USFS. The court determined that the plaintiffs failed to meet their burden of demonstrating likely irreparable harm because they could not point to the project’s “specific harms.” Id. at 2. Their “general allegations” about its impacts were not enough to fulfill their burden. Id. Plaintiffs’ insufficiently precise assertions were that the project would interfere with “the naturally functioning ecosystems of the Forest and Project analysis areas, in particular their interests in looking for, viewing, studying, and enjoying elk, grizzly bears, wolverine, and lynx undisturbed in their natural surroundings” and that “[l]ogging, burning, road-building, road use, and road reconstruction” amounted to “ecological and esthetic degradations” that “will render the area unsuitable for [their members’] . . . esthetic, recreational, scientific, spiritual, vocational, and educational activities.” Id. These rather broad illustrations did not pass muster with the court. In addition, the court noted that the USFS project would in fact benefit protected species, and that any delays could undermine habitat improvement. Id.

The second case, Yurok Tribe v. U.S. Bureau of Reclamation, reflects the sophisticated advocacy work that environmental groups must undertake to meet the irreparable harm standard. 231 F. Supp. 3d 450 (N.D. Cal. 2017). The case concerned the claim by tribes and fishing associations that a Bureau of Reclamation irrigation project jeopardized the survival of salmon in the Klamath River, a violation of the ESA. Plaintiffs painstakingly analyzed the National Marine Fisheries Service (NMFS) biological opinion and effectively exposed its inaccuracy. Plaintiffs detailed for the court the shortcomings of the opinion and successfully argued that salmon remained vulnerable to harm from the irrigation project. Citing “record high levels” of a disease affecting salmon, plaintiffs showed that “NMFS's assumptions about the Klamath Project's impact on Coho salmon were fundamentally flawed.” Id. at 482. Plaintiffs demonstrated that salmon were “still at significant risk” despite improvements in environmental conditions. Id.

Read side by side, Swan View Coalition and Yurok Tribe reveal how the task of gaining injunctive relief can be more challenging as a result of Cottonwood. Demonstrating the agency’s violation of the ESA is not enough to warrant an injunction; environmental groups must proffer sufficiently compelling evidence that the harm caused by the statutory violation will be irreparable. In the days before Cottonwood, the Swan View Coalition plaintiffs would have obtained an injunction simply by showing that the USFS ran afoul of the ESA. But their failure to show irreparable harm led them to be denied the injunction. The Yurok Tribe plaintiffs, to succeed in the post-Cottonwood era, had to engage in a remarkably meticulous effort to debunk NMFS’ scientific findings. That is the sort of time- and resource-intensive work required to win injunctions in the wake of Cottonwood.

As a consequence, the more stringent standard for injunctive relief may discourage some environmental organizations from taking on ESA cases. This is problematic for several reasons. First, federal agencies may be less accountable for ESA violations, which in turn could allow agency action detrimental to endangered species to go unchecked. Second, ESA enforcement may become more uneven, with larger, better funded organizations succeeding in their ESA battles but smaller, resource-constrained organizations foregoing ESA challenges altogether. This divergence threatens to dampen the decades of progress that environmental advocates have made in using the courts to fight for environmental protection. 

Daniel Bornstein


Daniel Bornstein is a 3L at St. John’s University School of Law. He has interned with two public interest environmental law organizations, the Center for Food Safety and Crag Law Center.