The Volokh Conspiracy
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One of the Biden administration's early environmental efforts was a "pause" of new oil and gas leases by the federal government. According to the New York Times, "The suspension of the leases has been one of the most high-profile and controversial policy moves by a president who has made climate action central to his agenda."
But yesterday a federal judge in the Western District of Louisiana issued a preliminary injunction against the enforcement of that "pause," and, yes, it's another national injunction. The opinion is here; the order is here. The merits of the decision are discussed here by Jonathan Adler.
The court's justification of the scope of the injunction is one paragraph in the conclusion. That paragraph reads as follows:
The Court will now address the geographic scope. This Court does not favor nationwide injunctions unless absolutely necessary. However, it is necessary here because of the need for uniformity. Texas, 809 F.3d at 187–88. The Agency Defendants' lease sales are located on public lands and in offshore waters across the nation. Uniformity is needed despite this Court's reluctance to issue a nationwide injunction. Therefore, the scope of this injunction shall be nationwide.
A few observations:
- It's another reminder that national injunctions stop the agenda of the president, whoever that president is—Obama, Trump, Biden.
- The court expressed some chagrin about issuing a national injunction. That's good. It's certainly better than saying that making an argument against the national injunction "reeks of bad faith [and] demonstrates contempt for the authority that the Constitution's Framers have vested in the judicial branch." But this case also illustrates how empty all this rhetoric of regret is. Courts can say national injunctions are disfavored and then go right on issuing them.
- The logic of the national injunction—the need for uniformity in the application of federal law—leads inexorably to making national injunctions the norm. It's not a kind of special exception. (I talked more about this argument from uniformity in Multiple Chancellors, especially on pages 421 and 473-476.)
- This case illustrates again how intertwined the national injunction is with an excessively broad view of state standing. (In other words, there's a reason Massachusetts v. Mellon and Frothingham v. Mellon go together.) Here the court relied heavily on "special solicitude," and the alleged injuries to the states are about jobs and tax revenues. A proper injunction in this case would have been limited to protecting the proprietary interests of the plaintiff states, and it is not even clear there were any such interests. The word "proprietary" appears once in the opinion: in a boilerplate phrase at the bottom of page 9. And if there were no proprietary interests to support state standing, in my view no injunction should have issued. Let the parties who have direct interests in the leases sue, not states that have political interests and less direct economic interests.
- You might be struck by the oddness of the court having "ENJOINED and RESTRAINED [defendants] from implementing the Pause." In substance, the court was issuing a mandatory injunction (in effect, "Feds, you must consider oil and gas leases") but it was phrased as a prohibitory injunction (in effect, "Feds, you are prohibited from not considering oil and gas leases"). The paradigm case of this kind of mandatory-phrased-as-prohibitory decree is from Lord Eldon in 1804 (Lane v. Newdigate), so it's not new. But what's striking is how courts giving national injunctions continue to run roughshod over the principle that mandatory preliminary injunctions are highly disfavored (for good reason, given the difficulty in ensuring obedience). Putting the mandatory injunction in prohibitory terms doesn't change this principle.
- The court chose not to require a bond of the plaintiffs. That practice, though now widespread in challenges to agency rules, also contributes to the breadth of the injunctions. If courts became serious about requiring a bond for preliminary injunctions, it would encourage some plaintiffs to ask for plaintiff-protective injunctions rather than national injunctions.
- Again we see district courts giving national injunctions that rely on circuit precedent. It's a reminder that in some circuits the national injunction is now well-entrenched. To uproot this weed from the garden of the law, the justices are going to have to get out their trowels.