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.

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