Summary of a Recent
Judicial Development in
Environmental Law

Economic Harm Can Be Irreparable Harm to Justify Injunctive Relief
in Extraordinary Circumstances

Eric H. Foy
National AgLaw Center Research Associate

Summary of Decision

In O'Brien v. Appomattox County, 213 F. Supp. 2d 627 (W.D. Va. 2002), the United States District Court for the Western District of Virginia granted in part and denied in part the motion for preliminary injunction filed by farm operators. The farm operators challenged county ordinances limiting the application of waste biosolids as commercial fertilizer.

Background

The plaintiffs, farm operators from Appomattox County, sought to spread biosolids on their haying and pasture land. Id. at 628. They challenged two county ordinances passed by the Board of Supervisors for Appomattox County that were intended "to immediately impose a ban on land application of biosolids." Id. at 630. On March 29, 2002, the Virginia Department of Health approved Biouse Operation Permits for the plaintiffs. Id. However, on June 28, 2002, the plaintiffs filed suit against the Board of Supervisors claiming that the ordinances "effectively prohibited the application of biosolids despite the existence of the permits." Id. at 630.

Arguments

In support of their prayer for injunctive relief, the plaintiffs claimed that "they [would] suffer irreparable harms if the injunction [was] not granted, because they [had] an ongoing and immediate need for the biosolids." Id. at 631. Specifically, the plaintiffs asserted that because of the ongoing drought-like conditions, biosolids were particularly necessary as a way to sustain reasonable levels of production. Id.

The Board argued that the plaintiffs' injuries were not irreparable because they were purely economic in nature; therefore, they argued that the plaintiffs' prayer for injunctive relief should be dismissed. Id.

Analysis and Holdings

When a party seeks injunctive relief, a court should consider the following four factors: "1) the likelihood of irreparable harm to plaintiffs if the request for an injunction is denied; 2) the likelihood of irreparable harm to defendants if the request is granted; 3) plaintiffs' chance of success on the merits; and 4) the public interest." Id. at 630. In the instant case, the defendants focused their defense on the irreparable harm prong.

The court held that the defendants correctly argued that "generally, a mere economic injury, standing alone, is insufficient to show an irreparable harm." Id. at 631. However, the court stated, "when extraordinary circumstances effectively eliminate the opportunity to recover money damages, 'the requisite irreparable harm may be deemed present despite the otherwise ascertainable nature of the injuries.'" Id. at 631 (quoting Synagro-WWT, Inc. v. Louisa Co., No. CIV. A. 3:01CV00060, 2001 WL 868638, at *4 (W.D. Va. July 17, 2001)). The plaintiffs asserted that their situations qualified as "extraordinary circumstances" because "they [would] be unable to recover money damages on their state-law claims due to the County's right to assert the defense of sovereign immunity." Id. at 632. This argument, along with the irreparable environmental harm caused by increased use of chemical fertilizers in lieu of biosolids, convinced the court that the plaintiffs would suffer "immediate, significant, and acute irreparable harms if their motion for an injunction [was] denied." Id.

After examining the likelihood of irreparable harm to the plaintiffs if the injunction request was denied, the court examined the defendants' claim that the injunction would cause them irreparable harm, including offensive odors and adverse health and environmental impacts. Id. at 632. Ultimately, the court held that "defendants' fears [were] not as certain, as identifiable, or as severe as the future damages claimed by plaintiffs." Id. at 632-33. Additionally, the court found that the defendants' worries about the safety of biosolids were addressed by the Virginia General Assembly and the EPA in Va. Code Ann. § 32.1-164.5 and 40 C.F.R. § 503.10, which stated that "biosolids can be safely used on farmland." Id. at 633.

Because the plaintiffs satisfied the irreparable harm prong, in addition to the public interest prong and likelihood of success on the merits prong, the court granted the plaintiffs' motion for preliminary injunction. Id. at 636.

The case was decided on August 02, 2002.