A National Injunction Setback for the Biden Administration

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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:

  1. It's another reminder that national injunctions stop the agenda of the president, whoever that president is—Obama, Trump, Biden.
  2. 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.
  3. 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.)
  4. 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.
  5. 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.
  6. 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.
  7. 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.

NEXT: Lakefront—Comparing Public Trust and Public Dedication

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  1. Arguably, and to a small extent, the “national injunction” operates against the interests of the plaintiff States in this case.

    Had the injunction been limited to the Agency’s activities (or lack of activities) in the plaintiff States, the Agency would still have been free to avoid granting leases elsewhere. Therefore their whole attention would – if they were to follow the ruling – have been directed to granting leases in the plaintiff States.

    Applying the injunction to the nation as a whole means that the Agency has better cover for saying “sorry guys, we will get round to you in time, but we’re up to our eyeballs thinking about leases in Hawaii and DC. Then it’s going to be Maryland and Rhode Island. We’ll get to you eventually Texas and Louisiana, but just wait your turn”

  2. Reading through rules proposed by US DOT I see “flexibility” cited when the agency wants to relax rules and “uniformity” cited as the reason for expanding rules at the expense of state rules, with no meaningful standard applied to choosing one or the other. In fact the choice is based simply on which direction the political winds are blowing.

  3. What the District Court did saying is like that preliminary injunctions generally are disfavored and will only be issued when necessary.

    Who would issue an unnecessary injuction? The “disfavored” bit is just rhetoric.

    Bottom line, the criteria for nationwide injunctions are ecactly the same as for any injunction at all. No different.

    It’s like piously reciting that Congress’ commerce power extends only to things that affect interstate commerce, and then saying everything affects interstate commerce.

  4. When we get teh next Republican President, we’ll worry about nationwide injunctions

    The Democrats used them copiously against the last Republican President. So, until we get another Republican President, they are and shoudl be the order of the day.

    If the Democrats want to give them up then, we’ll talk.

    What you do to us, we will do to you, at least 10x. if you don’t want that to happen, don’t start doing new things to us

    1. Tit for tat is unprincipled nonsense. This isn’t the schoolyard. This isn’t even a partisan issue, unless you want to force it.

      This is a structural question about the separation of powers. Something the courts need to figure out about the extent of their authority.

      I don’t know much about the precedents for remedies, so I don’t know what side the Court should come down, but I do think it’d be good to get some harmonization/clarity.

      1. We have pretty good harmonization now: all district courts in all circuits, to my knowledge, feel free to issue national injunctions, although some do it with meaningless expressions of regret.

        1. Unless I’ve missed something big, there is no standard about when they are appropriate.

          As noted above, the standard probably isn’t ‘basically always.’

      2. It’s become time for conservatives to fight back.

      3. Shoe is on the other foot now, Sarcastr0. Wear it for a while.

        1. Not how judicial decisions work, not how the Constitution works.

          Funny, I only see this tit for tat nonsense from the right, to justify their own lack of principles.

          I know you are better than that. If you think national injunctions are good, argue the policy. If you don’t, say that.
          Don’t support something just to own the libs.

          1. Thinking further, I am pretty sure I see an APA case on the horizon wrt this abrupt policy change. The last three administrations have had to deal with nationwide injunctions. This administration is no different.

            I do not generally support nationwide injunctions.

    2. This sums up modern “conservative” policy in a nutshell: we have no actual principles, we only care about winning.

    3. ” What you do to us, we will do to you, at least 10x. ”

      Big talk from the side that has been losing for 50, 60, 70 years, with continued conservative failure in the culture war looming for so far as any eye can currently see.

      Unless you figure our electorate is going to switch directions suddenly and begin to get more racist, more rural, more homophobic, more religious, more misogynistic, more backward, more xenophobic, and more White, conservatives will be in scant position to do anything to anyone.

      Blustering, obsolete, all-talk clingers are among my favorite culture war casualties.

  5. On national injunctions:

    I personally think it’s entirely wrong to think about injunctions issued against the federal government or agencies there of in terms of geographic scope.

    An injunction issued against a federal agency should be binding against that agency where ever it acts.

    1. The problem isn’t the national injunction, it’s the single judge.

      Here’s one modest proposal to reform:

      When a national injunction is prayed for, a single judge can issue a TRO, but only for 7 days or some similarly short time limit. Then, whether the TRO is granted or denied, some odd number of judges are picked (let’s say 5) randomly from among active judges, from DIFFERENT CIRCUITS. In other words, a panel of 5 active judges, 1 judge from each of 5 different circuits.

      That 5 judge panel then has the power to (1) immediately review and reverse the TRO ruling; (2) hold a telephonic hearing on a preliminary injunction and issue a nationwide preliminary injunction if the plaintiffs meet the four part test; and (3) set for trial any nationwide permanent injunction claim.

      Appeals will be to the Court of Appeals for the Court where the action was originally filed, but any ruling by a 5 judge panel is reviewed under a highly deferential standard.

      The result is that no single district court judge from one district can issue a nationwide injunction, and a single court of appeals panel has limited power to issue one.

      1. No, the problem isn’t a single judge either.

        Your TRO is a solution to the wrong problem.

        The problem is that the injunction is not confined to the parties to the case.

        If the injunction is properly confined to the parties to the case, agency X is prohibited from doing Y to citizen Z. There is no need to make it temporary, and confining it geographically is unjust.

        If citizen Z lived and sued in New York, but then moves to California, that shouldn’t create a situation where citizen z is forced to re-litigate the same issue against the same agency.

        1. If the injunctive power were truly restricted to the parties of the case in the way you want it to be, it would mean that when the government enacts an unconstitutional policy it could keep it up, FOREVER, unless each and every affected party sued individually. That can’t be the law.

          You have to approach this from the other side. Once a court has jurisdiction over a party, it has broad power to prohibit it from doing things. The question is whether there is some prudential limit to be imposed because of the national injunction problem. I think my proposal is an attempt to deal with the prudential problem.

  6. Progressives continue to be able to understand that “whatever goes around comes around.”
    Norms matter and when you shatter them, then they are shattered for everyone.
    Trump may have ended the ratchet theory of leftists. May be his finest achievement.

    1. What was the norm that you declare shattered?

  7. I can make some arguments for a national injunction in this case, as opposed to a decision granting relief only to the plaintiffs.

    1. It is in the government’s interest for a lease to be open to all bidders, not only the plaintiffs.
    2. The plaintiffs might want to lease land outside the territorial jurisdiction of the district court.

  8. Was there an argument that in this case the need for a national injunction was less than it might be? In that oil and gas leases are already quite local in some sense, there being different geological and economic considerations in the different areas?

    It’s also not a situation where anyone is likely to be caught off guard by the different rules as they travel from one place to another…

    Might the government have made such an argument, to preserve their flexibility in other geographies? The plaintiffs of course would want at least their states included.

    It would have led to anger in parts of my home state of New Mexico, which seems not to have been a plaintiff (you can guess why not) but will benefit from the nationwide injunction.

    PS: it is good to know that “President Biden, [] is not an “agency” under the Administrative Procedures Act”, but I do wonder under which Act he might indeed be an “agency”.

  9. 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.

    Can you explain what you mean by a “bond” and why it would affect what the plaintiffs ask for?

  10. When opponents of the sale of the Indiana Toll Road sued they were ordered to post a $1.9 billion bond. Which of course they couldn’t do. Anything but immediate dismissal with prejudice was considered to result in the same harm as a permanent injunction against ever selling the Toll Road. (Legally the sale was described as a 75 year lease; I don’t think that is meaningfully distinct from a sale as far as the accounting is concerned.)

    But this lawsuit is the opposite. It seeks to order the government to sell something, not to prevent the government from selling something.

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