A big thank you to Rich J. for giving us not only an explanation of the factors involved in preliminary injunctions, but also some legal history on the concept of “the balance of equities.”
The background of this discussion was the litigation reform currently in the Fix our Forests Act. Rich J wrote:
With respect to section 121(a),
To obtain a preliminary injunction, a plaintiff must establish “[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. Nat. Res. Def. Council, 555 U.S. 7, 20 (2008).
The 9th Circuit at one time (and perhaps it still does this) would weigh all four factors, and if factors 2-4 strongly favored an injunction, a district court might issue one even if the likelihood of success on the merits was a close question. Section 121(a) would prevent courts from using that sort of overall balancing test in cases involving covered agency actions.
In theory this would save judicial time since the judge would only need to look at one factor. But if the merits question is a difficult one, this language would force a judge to spend more time analyzing it. I would guess, from a judicial resources standpoint, this language would be a wash. Indeed, in circuits outside the 9th, it might have little effect since I believe the other circuits used the overall balancing approach less (if at all).
With respect to section 121(b), language like this has appeared in various bills since (I think) the 1990s. I think it stems from proposed logging projects that would have adversely affected spotted owl habitat (in the short term) but (the agency argued) protect owl habitat from future fires (in the long term). Courts were not generally sympathetic to this argument, considering the long-term argument to be too speculative. Section 121(b) would force judges to take the long-term argument more seriously, although I agree that the new language would not itself dictate a particular outcome.
(I’m being deliberately vague using the the term “the agency” – I don’t remember if this issue first arose with FS, BLM, or both. It’s also possible that the owl originally at issue was the CASPO – so take all of this with salt!)
My additional question was “what does it mean to “balance equities”?
“Balance of equities” can indeed mean a variety of things!
So there is no fixed definition. The term “equity” is a vestige of English common law. Back in the medieval day most suits between private parties (think feuding nobles or merchants) were for money damages – these suits were termed to be suits “in law.” But not every private dispute can be solved with money damages.
For example, if Duke of Blowhard has occupied Earl of Windbag’s pasture, money damages don’t remedy the Earl’s harm – he doesn’t need the money, he needs that valley to graze his sheep. So the Earl would bring a suit “in equity” – a suit that seeks an injunction to force the Duke off the land claimed by the Earl. The court would then evaluate the facts and circumstances in a fairly free-form way and craft an order that could be a complete wiin for either party or something in between.
Judges evolved this “equity” idea slowly – in the middle ages documents (like land titles) were notoriously forgeable and violence was always near the surface. Balancing the interests of the Duke and the Earl was the best way for the judge to ensure that he would live to hear the next case (and not issue a ruling that would inadvertently disturb the King’s peace).
This idea – that two opposing litigants often both have a point – has survived to the present day as the “balance of equities” test. It is perhaps better characterized (and often is) as “balance of harms.” Given that, in order to obtain an injunction a plaintiff must already establish that it will suffer “irreperable harm,” the “balance of harms” test then requires the court to look at the injury to the government if the injunction is issued. But, as you suggest, this evaluation of harms is often at least somewhat subjective.
Here are a couple of cases illustrating the balance of equities.
https://casetext.com/case/earth-island-inst-v-muldoon-5
https://casetext.com/case/envtl-prot-info-ctr-v-carlson-1
In both cases, environmental plaintiffs establish that failure to issue an injunction against a veg management project will result in irreperable harm. (In logging cases, this isn’t hard to achieve – a tree, once made horizontal, cannot be made vertical again). But in the first case, the court holds that the harm of issuing an injunction (delaying a Park Service project that would make future firefighters in the area safer) clearly outweighed the recrational harm suffered by the plaintiffs.
In the second case, the court strikes the opposite balance. This is probably because the court also held that the Forest Service had attempted to use an inapplicable CE for the project at issue. The court seemed to believe that the Forest Service could well have achieved its stated safety aims with a smaller project that would have fit within the CE.
And re: the long-term issue, it’s not that courts don’t believe that fire will happen, but they (or at least those that are skeptical) do not think the relevant administrative record establishes the likelihood that an owl-habitat-destroying fire will occur in the project area. This is a special case of the more general difficulty the agencies have had in establishing that fuel treatment projects are cost-beneficial. I suspect (though cannot document) that courts will gradually move at least somewhat away from this position as large and costly fires continue to become more prominent in general public discourse.