Home » Articles » Injunctions for Violations of Environmental Laws: Will the Courts "Balance the Equities"?

            When a governmental entity brings a lawsuit based on non-compliance with environmental laws, the government often seeks an injunction against ongoing violations. Some courts will apply the traditional notion of “balancing the equities” in determining whether, and to what extent, to issue an injunction against ongoing noncompliance of environmental laws. Companies often want to employ equitable arguments, stating that job losses, or even the destruction of an otherwise lawful business, will result from an order requiring immediate cessation of non-compliance. In such cases, companies often try to convince the court to allow some period of time to achieve compliance. However, the law in some jurisdictions prohibits courts from considering any equities, no matter how compelling. In these jurisdictions, a court may not permit ongoing non-compliance; the courts must order that non-compliance cease immediately, regardless of the consequences. Companies, in determining defense strategy when faced with a potential enforcement action due to ongoing environmental noncompliance, need to know if a court in the relevant jurisdiction will even consider any arguments of “equity.”

 

Injunctive relief has been a common part of environmental enforcement, even predating most of the well known environmental statutes. Not too long ago, virtually all environmental enforcement was done under the common law doctrines of nuisance and/or trespass. These common law doctrines allowed for the courts, in appropriate circumstances, to issue injunctions, or orders, that required cessation of the nuisance or trespass, under penalty of contempt of court, to the company and its management. Generally, courts determined whether, and to what extent, to issue an injunction based on the following points:

            For most lawsuits, courts prefer the solutions to be the payment of money, rather than a court issuing an injunction that requires or forbids some specific action. However, when necessary to protect parties from ongoing nuisances or trespasses, courts have issued injunctions requiring the defendant to cease the activity, or face contempt of court.

            Virtually all state and federal environmental statutes include injunctive relief as part of the mix of tools that a governmental entity has when bringing an enforcement action. While some of these statutes give some guidance to the manner in which courts are to consider injunctions, many environmental statutes simply mention injunctive relief without giving any particular guidance. Governmental entities, in bringing enforcement actions, routinely plead that the circumstances are appropriate for injunctive relief.

 

            It is not surprising that governmental entities often plead for injunctive relief in environmental enforcement cases, given the consequences that can come from violating an injunction. Most notably, because an injunction is an order of a court, persons who violate it, or who facilitate violation of it, can be subject to sanctions from the court, including fines and even incarceration. Moreover, enforcing an alleged violation of an injunction is often much easier than enforcing the underlying environmental violation. The governmental entity generally does not need to file a new lawsuit, and the notice and other procedural requirements are much less. In most situations, the person accused of violating an injunction has no right to trial by jury, and is generally subject to the discretion of the judge who entered the injunction in the first place. At times, it is easier for governmental entities to threaten or obtain incarceration via injunctive relief than through formal criminal charges.

 

            Federal courts, in general, have discretion regarding whether, and to what extent, to issue injunctions for ongoing environmental noncompliance. Federal courts should balance the equities, and pay regard to public consequences when considering injunctive relief, even in the face of ongoing environmental noncompliance. Weinberger v. Romero-Barcelo, 456 U.S. 305 (1982). This case involved clear ongoing violations of the Federal Clean Water Act by the United States Navy. The United States Supreme Court stated that the district court had the power to undertake a traditional balancing of the equities approach when considering whether or not to issue an injunction.

            The United States Court of Appeals for the Fifth Circuit explained that a federal court, in an egregious case, may find the environmental violation so serious as to preclude any balancing of the equities, but doing so is within the court’s discretion. U.S. v. Marine Sale Processors, 81 F.3d 1329 (5^th Cir. 1996). However, the court in Marine Sale Processors also indicated that the trial court should make clear if it undertook the balancing of the equities and determined that an injunction was necessary, or if the violations were so egregious that the court did not undertake the balancing assessment.

            In sharp contrast to these federal authorities, the State of Texas takes a very different approach. In Texas, when the environmental statute calls for the court to issue an injunction when an environmental statute is being violated, “the doctrine of balancing the equities has no application to statutorily authorized injunctive relief.” State v. Texas Pet Foods, Inc, 591 S.W.2d 800, 805 (Tex. 1979). This decision was reaffirmed in State v. Associated Metals & Minerals Corp., 635 S.W.2d 407 (Tex. 1982), when the Texas Supreme Court ruled that a trial court did not have the authority to grant any kind of compliance schedule to permit ongoing violations of an air permit while the owner was constructing new facilities, if the environmental agency of the State of Texas did not agree to this approach. An injunction that allowed, at least in part, for ongoing violations of an environmental statute, was not within the power of a court, and only the Texas environmental agency could grant such relief (which could be in the form of an administrative order or emergency permit modification). Thus, in Texas, ongoing violations of an environmental statute must be subject to an injunction, and that injunction must order the cessation of all noncompliant acts, once the case is filed in a court. A court in the State of Texas does not have the discretion to refrain from issuing such an injunction if ongoing violations are apparent. A Texas court does not have the authority to give a compliance schedule that constitutes the allowance of technical noncompliance for some period of time.

            It is important to note that the rejection of any “balancing of equities” in this context in Texas means that arguments regarding job loss or other contributions to the community of the allegedly noncompliant facility will not be heard by a court in Texas. In contrast, these arguments can be heard in some of the other state courts, and in the federal courts. In Texas, if a company faced with an ongoing noncompliant situation wants to argue about jobs or other contributions to the community, the first, last, and only place to make these arguments is with the state agency, the Texas Commission on Environmental Quality.

 

            All 50 states have environmental statutes, and many of them have the authority to enforce federal statutes. As such, companies facing environmental enforcement need to be aware not only of the approach that federal courts may take, but also the possibility that the enforcement will be in a state court. While some states take the federal approach and generally apply the doctrine of balancing the equities, not all states have decided this issue, and Texas rejects that doctrine.

            Moreover, state and federal environmental officials often coordinate regarding enforcement matters. Thus, even if all of the negotiations prior to formal enforcement are with the EPA or other federal agency, it is still often possible for the state to file the enforcement action, especially if, as in Texas, relevant case law gives more strength to the governmental entity on a key issue. While in many states this coordination leads to federal filing, either in addition to or in lieu of state filing, if the potential for “balancing of equities” is at stake, the governmental entities may decide that the state court provides for stronger enforcement. Companies that think that they are being treated unfairly and that the governmental entity is not properly considering its contribution to the community in dealing with their environmental noncompliance situation should keep in mind the possibility that a court will simply not hear such arguments.

 

            Companies facing ongoing noncompliance with an environmental statute must know the judicial landscape in which they operate. They need excellent legal advice, particularly on whether the particular state’s law does or does not consider “balancing the equities” as part of the determination to grant an injunction for environmental noncompliance. Companies should be prepared for the possibility that their operation is in a state that has not yet decided this issue, and their state may adopt the Texas approach.

            The company needs to prepare for the worst possible scenario, if the state law is unclear regarding the possibility of balancing the equities. For these and other reasons, it is extremely important for companies to try their very best to negotiate with the agency, as the agency has significantly more power to accommodate ongoing noncompliance. An agency can generally issue an agency order that provides for a compliance program, in which some noncompliance will be allowed for a limited period of time, perhaps while a new permit is processed or a physical change is made to the facility. Agencies always have such power; courts do not necessarily.

            Finally, even in a jurisdiction where the judge can “balance the equities,” this is no guaranty of any flexibility toward a company with an ongoing environmental noncompliance. Judges have a strong preference for strict compliance with environmental statutes, and often reject arguments based on jobs or other contributions to the community, even when they undertake a balancing of the equities approach in a particular case. Moreover, appellate courts almost never change a trial court’s decision whether, and to what extent, to enjoin an environmental violation. A company should assume that it has virtually no chance to overturn on appeal the issuance of an injunction by a trial court, if the company has an ongoing environmental noncompliance. In summary, companies should try to comply. If, for some reason, environmental noncompliance cannot be avoided, the company must use its best efforts to try to resolve any enforcement issues with the agency, either state or federal, and avoid having the case go to court. At least in some courts, judges will be unable to listen to any argument regarding balancing the equities, and will be forced to enter an injunction requiring the immediate cessation of all environmental noncompliance, even if that means job losses or the destruction of an otherwise lawful business.