Restoring Tradition: The Inapplicability of TVA v. Hill’s Endangered Species Act Injunctive Relief Standard to Preliminary Injunctive Relief of Non-Federal Actors

Abstract

While traditional equitable analysis requires the balancing of harms to affected parties and the assessment of the public interest when considering preliminary injunctive relief, courts have largely declined to do so in Endangered Species Act litigation. This unique approach stems from the Supreme Court’s landmark 1978 Endangered Species Act decision, TVA v. Hill. More recent Supreme Court decisions, however, suggest that TVA should not be read so broadly, and that the traditional approach to preliminary injunctions offers no exception. This article examines the development of the TVA preliminary injunctive relief approach in the lower courts. It then discusses why this approach is inapplicable when plaintiffs in Endangered Species Act cases seek to enjoin non-federal actors. The inapplicability of TVA’s injunctive relief standard to non-federal actors is based on TVA itself as well as recent Supreme Court decisions that have emphasized the importance of traditional equitable principles. As a matter of policy, this article also discusses why the balancing of harms and consideration of public interest for non-federal actors offers a more sensible approach for property owners as well as for endangered species.

Keywords: Endangered Species Act, injunctive relief, preliminary injunctive relief, balance of hardships, public interest, TVA v. Hill, Winter v. NRDC