Sierra Club, Inc. v. Bostick

FILED
United States Court of Appeals
Tenth Circuit

UNITED STATES COURT OF APPEALS October 9, 2013
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court

SIERRA CLUB, INC.; CLEAN
ENERGY FUTURE OKLAHOMA;
EAST TEXAS SUB REGIONAL
PLANNING COMMISSION,

Plaintiffs-Appellants,
v.

LIEUTENANT GENERAL THOMAS No. 12-6201
P. BOSTICK, in his official capacity (D.C. No. 5:12-CV-00742-R)
as Commanding General and Chief of (W.D. Okla.)
Engineers of the U.S. Army Corps of
Engineers; MAJOR GENERAL
MICHAEL J. WALSH, in his official
capacity as U.S. Army Commanding
General for Civil and Emergency
Operations; COLONEL MICHAEL
TEAGUE, in his official capacity as
Tulsa District Commander of U.S.
Army Corps of Engineers; COLONEL
CHRISTOPHER W. SALLESE, in his
official capacity as Galveston District
Engineer of the U.S. Army Corps of
Engineers; UNITED STATES ARMY
CORPS OF ENGINEERS,

Defendants-Appellees,

and

TRANSCANADA KEYSTONE
PIPELINE LP; TRANSCANADA
CORPORATION; INTERSTATE
NATURAL GAS ASSOCIATION;
AMERICAN GAS ASSOCIATION;
ASSOCIATION OF OIL PIPE LINES;
 AMERICAN PETROLEUM
INSTITUTE; UTILITY WATER ACT
GROUP,

Intervenors-Appellees.

ORDER AND JUDGMENT *

Before KELLY and HOLMES, Circuit Judges, and MARTÍNEZ, ** District
Judge.

Plaintiffs-Appellants Sierra Club, Inc., Clean Energy Future Oklahoma, and

East Texas Sub Regional Planning Commission (“Appellants”) sued Defendants-

Appellees United States Army Corps of Engineers, Thomas Bostick in his official

capacity as Commanding General and Chief of Engineers of the U.S. Army Corps

of Engineers, and three other Corps members in their official capacities—Michael

Walsh, Michael Teague, and Christopher Sallese—(collectively, “Corps”) 1 for

*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Federal Rule of Appellate Procedure
32.1 and Tenth Circuit Rule 32.1.
**
The Honorable William J. Martínez, District Judge, United States District
Court for the District of Colorado, sitting by designation.
1
TransCanada Corp., TransCanada Keystone Pipeline LP, (collectively,
“TransCanada”), Interstate Natural Gas Association, American Gas Association,
Association of Oil Pipe Lines, American Petroleum Institute, and Utility Water Act
(continued...)

2
violations of the National Environmental Policy Act (“NEPA”), the Clean Water

Act (“CWA”), and the Administrative Procedure Act (“APA”) related to the

Corps’s approval of the construction of an oil pipeline to run from Cushing,

Oklahoma to oil refineries along the Gulf Coast near Port Arthur, Texas (“Gulf

Coast Pipeline”). Appellants sought a preliminary injunction to prevent

construction of the Gulf Coast Pipeline until the resolution of their suit. The

district court denied Appellants’ request for a preliminary injunction and this

interlocutory appeal followed. Exercising jurisdiction under 28 U.S.C.

§ 1292(a)(1), we affirm the district court’s denial of the preliminary injunction.

I

The Corps has the authority to issue individual and general permits

authorizing the discharge of dredged or fill material into the waters of the United

States. See 33 U.S.C. § 1344(a), (e). The Corps’s regulations set forth the

policies and procedures required for the Corps to issue general nationwide permits

(“NWPs”). In February 2012, the Corps reissued NWP 12, an NWP that allows,

inter alia, “the construction, maintenance, or repair of utility lines.” Aplt. App.

at 264 (77 Fed. Reg. 10,271, issued Feb. 21, 2012).

Also in February 2012, TransCanada announced plans to construct the Gulf

1
(...continued)
Group are Intervenors-Appellees in this suit. Because they filed a joint brief with the
Corps, our references to “Appellees,” for purposes of this appeal, include both the Corps
and Intervenors-Appellees.

3
Coast Pipeline—a 485-mile oil pipeline that was designed to run from Cushing,

Oklahoma to oil refineries along the Gulf Coast near Port Arthur, Texas. The

Gulf Coast Pipeline was originally proposed as part of a larger oil pipeline

(“Keystone XL Pipeline”) that was designed to run from Canada to the Gulf

Coast. TransCanada submitted pre-construction notifications regarding the Gulf

Coast Pipeline to three Corps districts—Galveston, Fort Worth, and Tulsa. The

Gulf Coast Pipeline was planned to run through the territory of these three Corps

districts, and TransCanada sought verification that its pipeline could proceed

under NWP 12. During June and July 2012, each Corps office verified that the

Gulf Coast Pipeline could proceed under NWP 12.

Appellants sued the Corps in the United States District Court for the

Western District of Oklahoma, challenging the validity of the Corps’s reissuance

of NWP 12 and the Corps’s verification that the Gulf Coast Pipeline could

proceed under it. Appellants alleged that these actions violated NEPA, the CWA,

and the APA in several respects. They moved for a preliminary injunction,

seeking to enjoin the Corps’s verifications. The verifications would permit

construction of the Gulf Coast Pipeline to commence; it was expected to start in

August 2012. Following a hearing, the district court denied Appellants’ motion

for a preliminary injunction. The district court determined that Appellants did not

have a likelihood of success on the merits and that the other equitable factors did

not favor granting the injunction. This interlocutory appeal followed.

4
 II

A

We review the “grant or denial of a preliminary injunction for an abuse of

discretion.” Davis v. Mineta, 302 F.3d 1104, 1110–11 (10th Cir. 2002); accord

Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1128 (10th Cir. 2013) (en

banc), petition for cert. filed, 82 U.S.L.W. 3139 (U.S. Sept. 19, 2013) (No. 13-

354); Fundamentalist Church of Jesus Christ of Latter-Day Saints v. Horne, 698

F.3d 1295, 1301 (10th Cir. 2012). “An abuse of discretion occurs only when the

trial court bases its decision on an erroneous conclusion of law or where there is

no rational basis in the evidence for the ruling.” Awad v. Ziriax, 670 F.3d 1111,

1125 (10th Cir. 2012) (quoting Wilderness Workshop v. U.S. Bureau of Land

Mgmt., 531 F.3d 1220, 1223–24 (10th Cir. 2008)) (internal quotation marks

omitted). “Under an abuse of discretion standard, a trial court’s decision will not

be disturbed unless the appellate court has a definite and firm conviction that the

lower court made a clear error of judgment or exceeded the bounds of permissible

choice in the circumstances.” Somerlott v. Cherokee Nation Distribs., Inc., 686

F.3d 1144, 1152 (10th Cir. 2012) (quoting Wright ex rel. Trust Co. of Kan. v.

Abbott Labs., Inc., 259 F.3d 1226, 1235 (10th Cir. 2001)) (internal quotation

marks omitted). “We have previously characterized an ‘abuse of discretion’ as

‘an arbitrary, capricious, whimsical, or manifestly unreasonable judgment.’”

Wyoming v. U.S. Dep’t of Agric., 661 F.3d 1209, 1227 (10th Cir. 2011) (quoting

5
Attorney Gen. of Okla. v. Tyson Foods, Inc., 565 F.3d 769, 776 (10th Cir. 2009)),

cert. denied, --- U.S. ----, 133 S. Ct. 144 (2012).

A party seeking a preliminary injunction must prove that all four of the

equitable factors weigh in its favor: specifically, prove that “(1) it is substantially

likely to succeed on the merits; (2) it will suffer irreparable injury if the

injunction is denied; (3) its threatened injury outweighs the injury the opposing

party will suffer under the injunction; and (4) the injunction would not be adverse

to the public interest.” Beltronics USA, Inc. v. Midwest Inventory Distrib., LLC,

562 F.3d 1067, 1070 (10th Cir. 2009); see Winter v. Natural Res. Def. Council,

Inc., 555 U.S. 7, 20 (2008) (“A plaintiff seeking a preliminary injunction must

establish that he is likely to succeed on the merits, that he is likely to suffer

irreparable harm in the absence of preliminary relief, that the balance of equities

tips in his favor, and that an injunction is in the public interest.”); Conestoga

Wood Specialties Corp. v. Sec’y of U.S. Dep’t Health and Human Servs., 724 F.3d

377, 382 (3d Cir. 2013) (“A plaintiff seeking an injunction must meet all four

criteria, as ‘[a] plaintiff’s failure to establish any element in its favor renders a

preliminary injunction inappropriate.’” (alteration in original) (emphasis added)

(quoting NutraSweet Co. v. Vit-Mar Enters., Inc., 176 F.3d 151, 153 (3d Cir.

1999))), petition for cert. filed, 82 U.S.L.W. 3139 (U.S. Sept. 19, 2013) (No. 13-

356); Black Fire Fighters Ass’n v. City of Dall., 905 F.2d 63, 65 (5th Cir. 1990)

(“The denial of a preliminary injunction will be upheld where the movant has

6
failed sufficiently to establish any one of the four criteria.” (emphasis added)).

“[B]ecause a preliminary injunction is an extraordinary remedy, the right to relief

must be clear and unequivocal.” Beltronics, 562 F.3d at 1070 (quoting Greater

Yellowstone Coal. v. Flowers, 321 F.3d 1250, 1256 (10th Cir. 2003)) (internal

quotation marks omitted); see Winter, 555 U.S. at 22 (“[I]njunctive relief [is] an

extraordinary remedy that may only be awarded upon a clear showing that the

plaintiff is entitled to such relief.”); Munaf v. Geren, 553 U.S. 674, 689 (2008)

(“A preliminary injunction is an ‘extraordinary and drastic remedy[;]’ it is never

awarded as of right.” (citations omitted) (quoting 11A Charles Alan Wright et al.,

Federal Practice & Procedure § 2948, at 129 (2d ed. 1995))).

B

Our analysis begins and ends with the third preliminary injunction

factor—that is, whether Appellants’ “threatened injury outweighs the injury the

opposing party will suffer under the injunction,” Awad, 670 F.3d at 1125, or, as

characterized by the Supreme Court, whether “the balance of equities tips in

[Appellants’] favor,” Winter, 555 U.S. at 20. The district court concluded that the

threatened environmental injuries were outweighed by the financial harm that the

injunction would cause TransCanada. 2 Because we conclude that Appellants have

2
The parties do not dispute that the harm to TransCanada—which was
permitted to intervene as of right and without conditions, pursuant to Federal Rule of
Civil Procedure 24(a)(2)—is properly taken into account when considering the balance of
harms. Accordingly, we need not definitively opine here on whether such consideration
(continued...)

7
not carried their burden of demonstrating that the district court’s determination

regarding the balance of harms factor was an abuse of discretion, we affirm the

district court’s denial of the preliminary injunction. See Chem. Weapons Working

Grp., Inc. v. U.S. Dep’t of the Army, 111 F.3d 1485, 1489 (10th Cir. 1997) (“We

. . . affirm the district court’s denial of Plaintiffs’ request for a preliminary

injunction on the basis of its balance of harms finding, obviating the need to

address Plaintiffs’ other arguments justifying a preliminary injunction in this

instance.”); see also Herff Jones, Inc. v. Okla. Graduate Servs., Inc., 237

F. App’x 384, 388 (10th Cir. 2007) (affirming the denial of a preliminary

injunction solely on the ground that the district court did not abuse its discretion

in determining that the balance of harms weighed against the party pursuing a

preliminary injunction); cf. Winter, 555 U.S. at 23–24 (noting that plaintiffs’

2
(...continued)
is proper. Arguably, we have previously intimated as much. See Wilderness Workshop,
531 F.3d at 1231 (concluding that the district court’s balancing of harms that included
consideration of the harm to an intervenor was not an abuse of discretion); Nat’l Indian
Youth Council v. Andrus, 623 F.2d 694, 696 (10th Cir. 1980) (considering the “harm to
the defendants and intervenors,” and concluding that the “harm to the intervenors [was]
impressive”). And, consistent with that view, we have explicitly held that, when a party
intervenes as of right pursuant to Rule 24(a), “it becomes a full participant in the lawsuit
and is treated just as if it were an original party.” Alvarado v. J.C. Penny Co., 997 F.2d
803, 805 (10th Cir. 1993) (quoting Schneider v. Dumbarton Developers, Inc., 767 F.2d
1007, 1017 (D.C. Cir. 1985)) (internal quotation marks omitted); see 7C Charles Alan
Wright et al., Federal Practice & Procedure § 1920, at 609 (3d ed. 2007) (“Unless
conditions have been imposed, the intervenor is treated as if the intervenor were an
original party and has equal standing with the original parties.”); cf. Comanche Indian
Tribe of Okla. v. Hovis, 53 F.3d 298, 303 (10th Cir. 1995) (holding, for the purposes of
collateral estoppel, that an individual “became a party in the federal district court once
she intervened in the juvenile proceeding,” and citing Alvarado for this proposition).

8
failure on the balance of harms factor “alone require[d] denial of the requested

injunctive relief” (emphasis added)).

The district court determined that the balance of harms favors Appellees.

Specifically, it found that the harm an injunction would cause TransCanada was

significant—by the time of the August 2012 hearing, TransCanada had spent in

excess of $500 million on the pipeline and it was “undisputed that further delay

w[ould] cost hundreds of thousands of dollars each day.” Aplt. App. at 2001

(Dist. Ct. Order, dated Aug. 5, 2012). Moreover, the district court noted that

Appellants did not suggest that “they ha[d] the ability to post a bond to cover any

of the irretrievable loss should they ultimately lose.” Id. Weighing on the other

side of the scale were the environmental harms of concern to Appellants. The

district court was not impressed by the magnitude of these harms. Specifically, it

stated, “In essence, this is all over a loss of waters of the United States of less

than one acre . . . over the entire distance of the pipeline,” and that Appellants

“have failed to show that this project will have more than a minimal impact on the

environment.” Id. at 2002–03. In sum, the court ruled that Appellants had failed

to carry their burden of showing that the balance of harms factor tipped in their

favor. 3

3
We note that, although succinct, the district court’s findings were sufficient
to allow for meaningful appellate review. Federal Rule of Civil Procedure 52(a) requires
a district court, when granting or denying an interlocutory injunction, to make findings of
fact and conclusions of law “sufficient to make possible meaningful appellate review.”
(continued...)

9
 3
(...continued)
FTC v. Kuykendall, 371 F.3d 745, 756 (10th Cir. 2004) (en banc). To comply with Rule
52(a), a district court’s findings of fact must be “‘sufficient to indicate the factual basis
for the court’s general conclusion as to ultimate facts’ so as to facilitate a ‘meaningful
review’ of the issues presented.” Wolfe v. N.M. Dep’t of Human Servs., 69 F.3d 1081,
1087 (10th Cir. 1995) (quoting Otero v. Mesa Cnty. Valley Sch. Dist., 568 F.2d 1312,
1316 (10th Cir. 1977)); see OCI Wyo., L.P. v. PacifiCorp, 479 F.3d 1199, 1204 (10th Cir.
2007) (“Rule 52(a) does not require the district court to set out its findings and
conclusions in excruciating detail. . . . ‘[T]he judge need only make brief, definite,
pertinent findings and conclusions upon the contested matters; there is no necessity for
overelaboration of detail or particularization of facts.’” (quoting Fed. R. Civ. P. 52
advisory committee’s note on 1946 Amendments)).

Although the sufficiency of the district court’s findings was not raised by either
party, we were constrained to inquire regarding the matter, to satisfy ourselves that there
is an adequate basis for our review. See Prairie Band of Potawatomi Indians v. Pierce,
253 F.3d 1234, 1245 (10th Cir. 2001) (noting that we “are compelled to address the issue
because, without adequate findings of fact and conclusions of law, appellate review is in
general not possible”). And we are satisfied on this score. Although the district court’s
findings with respect to the balance of harms were not expansive, they were sufficient to
comply with its obligations under Rule 52(a). See id. at 1246 (“Rule 52(a) does not
require ‘over-elaboration of detail or particularization of facts’ . . . .” (quoting Knapp
Shoes, Inc. v. Sylvania Shoe Mfg. Corp., 15 F.3d 1222, 1228 (1st Cir. 1994)). The district
court identified the harms it thought salient, attributed weight to them, and concluded that
the balance did not favor granting an injunction. This is sufficient and consonant with the
well-settled principle that the district court “need only make brief, definite, pertinent
findings and conclusions upon the contested matters.” OCI Wyo., 479 F.3d at 1204
(citation omitted) (internal quotation marks omitted). In contrast, instances where we
have concluded that a district court’s findings were insufficient for meaningful appellate
review frequently have involved a court’s mere statement of its ultimate conclusion
without an accompanying articulation of the factual basis supporting its conclusion, or a
court’s complete failure to specifically address a relevant issue. See, e.g., id. at 1204–05
(holding that the district court’s findings were insufficient because it only stated “what
[it] found,” but not “why [it] ruled as it did”); Pierce, 253 F.3d at 1245–46 (finding that
the district court failed to comply with its Rule 52(a) obligations when it merely stated its
conclusion with respect to each of the four preliminary injunction factors); cf. Aid for
Women v. Foulston, 441 F.3d 1101, 1120–21 (10th Cir. 2006) (finding that the district
court abused its discretion because it “did not even evaluate whether there would be
irreparable injury,” and with respect to the balance of harms, it “did not even identify any
(continued...)

10
 Before us, the Appellants’ failure to demonstrate that the district court

abused its discretion in balancing the harms, standing alone, is fatal to their

cause. In other words, to show that the district court committed reversible error,

Appellants had to demonstrate that the court’s ruling against them on the balance

of harms factor—an essential criterion for obtaining a preliminary

injunction—was an abuse of discretion. And Appellants’ showing in this regard

is woefully deficient. More specifically, Appellants do not expressly maintain

that any of the district court’s factual findings made in support of its balancing

were without support in the record. See Awad, 670 F.3d at 1125. Nor do

Appellants contend that the district court’s balancing of the harms “exceeded the

bounds of permissible choice in the circumstances,” Somerlott, 686 F.3d at 1152

(quoting Abbott Labs., 259 F.3d at 1235) (internal quotation marks omitted), or

that it was “arbitrary, capricious, whimsical, or [evinced a] manifestly

unreasonable judgment,” Wyoming, 661 F.3d at 1227 (quoting Tyson Foods, 565

F.3d at 776) (internal quotation marks omitted).

Instead, Appellants focus principally on their view of the environmental

harms that would flow from construction of the Gulf Coast Pipeline, and they

attempt to minimize the harms an injunction would impose on Appellees. For

3
(...continued)
possible harm to the Defendants” and only made a “vague” statement regarding the harm
to plaintiff).

11
example, relying on the Environmental Impact Statement prepared for the

Keystone XL Pipeline, Appellants argue that environmental harms from the Gulf

Coast Pipeline include “harm to soils, surface water and groundwater, wetlands,

vegetation, wildlife, fisheries, land use, recreation and special interest areas,

visual areas, air quality and noise and the significant rise of pipeline spills.”

Aplt. Opening Br. at 53. On the other hand, with respect to the harm an

injunction would inflict on Appellees, Appellants maintain that financial harm, as

a general matter, cannot weigh at all, see id. at 53 (“Economic harm is not

irreparable and does not provide an adequate basis for denying injunctive

relief.”), and that the specific financial harm of TransCanada should not be

accorded appreciable weight because it was “self-inflicted,” see id. at 54

(“TransCanada’s injuries are ‘self-inflicted’ and it assumed the risk that it would

not receive its permits as soon as expected.”).

However, as an initial matter, Appellants’ assertion that injunctive relief

cannot be denied based on a weighing of economic harm is mistaken. The

Supreme Court has recognized that financial harm can be weighed against

environmental harm—and in certain instances outweigh it. See Amoco Prod. Co.

v. Vill. of Gambell, 480 U.S. 531, 545 (1987) (“And on the other side of the

balance of harms was the fact that the oil company petitioners had committed

approximately $70 million to exploration . . . which they would have lost without

chance of recovery had exploration been enjoined.”). Indeed, we too have

12
recognized the appropriateness of weighing financial harm against environmental

harm. See Wilderness Workshop, 531 F.3d at 1231 (concluding that the district

court did not abuse its discretion in according greater weight in the balancing of

harms to the public’s interest in gas production and also certain financial

interests, over the threatened environmental injuries); see also Davis, 302 F.3d at

1116 (concluding that “the environmental harms . . . outweigh[ed] the

legitimately incurred [financial] costs . . . resulting from an injunction”).

In their attempt to minimize the harms a preliminary injunction would

inflict on Appellees, Appellants endeavor to challenge the district court’s

reasoning. After acknowledging that the district court found that TransCanada

had already spent over $500 million on the Gulf Coast Pipeline and that the

injunction (if implemented) would cost TransCanada significant sums, Appellants

have suggested that the district court erred because it “failed to note that

TransCanada spent these funds and entered into contracts [to build the Gulf Coast

Pipeline] before receiving Corps approval.” 4 Aplt. Opening Br. at 54. This, say

4
Appellants also state that the district court erred because it “failed to
recognize that TransCanada could mitigate its harm by working on other portions of the
project while an injunction prohibited construction in aquatic areas.” Aplt. Opening Br.
at 12. However, Appellants make no effort to develop this contention of error; they do
not mention it again in their briefing. Accordingly, we decline to consider it. See, e.g.,
Bronson v. Swensen, 500 F.3d 1099, 1104 (10th Cir. 2007) (“[W]e routinely have
declined to consider arguments that are not raised, or are inadequately presented, in an
appellant’s opening brief.”). Furthermore, in any event, Appellants’ observation about
mitigation does nothing to directly call into question the district court’s undisputed
finding that TransCanada already had expended more that $500 million on the pipeline
(continued...)

13
Appellants, makes Appellees’ financial harm “self-inflicted” and thus it should

not be accorded weight in the balance of harms. Assuming arguendo that

Appellants’ argument amounts to an assertion of legal error, see Aplt. Br. at 11

(“The district court committed legal error and abused its discretion in weighing

the equities[.]” (initial capitals and underlining omitted)), we find that no such

error occurred.

As we discuss below, there is some support in judicial decisions in our

circuit and elsewhere for the notion that “self-inflicted” harm should not be

accorded weight in the balance of harms. However, Appellants do not direct us to

any cases that would cause us on these facts to disregard TransCanada’s financial

harms as “self-inflicted.” Appellants principally rely on Davis, where, in

assessing the balance of harms, we concluded that much of the financial harm to

the state defendants—who opposed the injunction—which was caused by their

entry into certain contracts, should not be accorded appreciable weight because it

was “self-inflicted.” See 302 F.3d at 1112–13, 1116. Appellants’ reliance on

Davis, however, is misguided.

A close reading of Davis reveals that what led us to brand the state

defendants’ harm with the “self-inflicted” label, and decline to weigh it, was the

4
(...continued)
project by the time of the hearing, and that the injunction, if implemented, would cost
TransCanda a great deal of money, running into the hundreds of thousands of dollars per
day.

14
fact that the harm-inducing contractual conduct of those defendants, which

preceded the decisions of the federal agency defendant sought to be enjoined, was

predicated on the federal agency’s improper actions, and the impropriety of those

actions was attributable to the state defendants. As we characterized the situation

in Davis, “the state [defendants] involved in this case ha[d] ‘jumped the gun’ on

the environmental issues [to be decided by the federal agency defendant] by

entering into contractual obligations that anticipated a pro forma [federal agency]

result. In this sense, the state defendants are largely responsible for their own

harm.” Id. at 1116 (emphasis added). The state defendants expected a “pro forma

result” because they had been knowingly collaborating with the federal agency

defendant while it improperly “prejudged the NEPA issues.” Id. at 1112; see

Forest Guardians v. U.S. Fish & Wildlife Serv., 611 F.3d 692, 713 (10th Cir.

2010) (detailing the facts and holding of Davis, and noting that “Davis indicates

that if an agency predetermines the NEPA analysis by committing itself to an

outcome, the agency likely has failed to take a hard look at the environmental

consequences of its actions due to its bias in favor of that outcome and, therefore,

has acted arbitrarily and capriciously”).

In other words, defendants’ harm-inducing contractual conduct was

disregarded as “self-inflicted” in Davis (at least primarily) because it was

knowingly predicated upon the federal agency defendant’s improper or wrongful

conduct in predetermining its environmental decisions, and not simply because

15
the conduct occurred prior to the federal agency’s environmental decisions. In

support of this reading of Davis, it is noteworthy that the only case that Davis

cites in support of its “self-inflicted” holding is a decision (in an unrelated

commercial context) by the Third Circuit that focused on the wrongfulness vel

non of the conduct claimed to have produced the financial harm at issue in

deciding whether to disregard that harm as “self-serving.” See Pappan Enters.,

Inc. v. Hardee’s Food Sys., Inc., 143 F.3d 800, 806 (3d Cir. 1998); see also

Davis, 302 F.3d at 1116 (relying on Pappan Enters.). In Pappan Enterprises, the

Third Circuit ultimately declined to disregard the financial harm of the defendants

seeking the preliminary injunction as “self-inflicted,” because the court could not

directly tie the asserted financial harm to any legally cognizable misconduct by

defendants. See Pappan Enters., 143 F.3d at 806–07 (“We believe that

[defendants’] irreparable injury is not self-inflicted.”). In sum, it should not be

surprising that, in engaging in the quintessentially equitable task of balancing the

harms, we took into account in Davis whether the financial harms at issue

stemmed from wrongful conduct, in deciding whether they could be properly

disregarded as “self-inflicted.” Cf. Inst. of Cetacean Research v. Sea Shepherd

Conservation Soc’y, 725 F.3d 940, 947 (9th Cir. 2013) (“An injunction is an

equitable remedy. While the Winter factors ‘are pertinent in assessing the

propriety of any injunctive relief,’ traditional equitable considerations such as

laches, duress and unclean hands may militate against issuing an injunction that

16
otherwise meets Winter’s requirements.” (emphasis added) (citations omitted)

(quoting Winter, 555 U.S. at 32)); Shondel v. McDermott, 775 F.2d 859, 868 (7th

Cir. 1985) (“Today, ‘unclean hands’ really just means that in equity as in law the

plaintiff’s fault, like the defendant’s, may be relevant to the question of what if

any remedy the plaintiff is entitled to.”); Vaqueria v. Tres Monjitas, Inc., 587

F.3d 464, 480 (1st Cir. 2009) (“[W]e are skeptical of those who seek equitable

relief when they themselves have engaged in misconduct.”).

Viewed in this light, Davis is inapposite; there is no suggestion of similar

misconduct by TransCanada and the Corps here. In particular, Appellants do not

argue that TransCanada entered into contractual arrangements prior to the Corps’s

approval of the Gulf Coast Pipeline with the expectation that the approval would

be “a pro forma result”—that is, the product of the Corps’s improper

predetermination or prejudgment of the relevant issues. Cf. Silverton Snowmobile

Club v. U.S. Forest Serv., 433 F.3d 772, 781 n.2 (10th Cir. 2006) (discerning no

predetermination because “the agencies had no preexisting agreement with any

user group”); see also Wyoming, 661 F.3d at 1264 (“Th[e] high standard

articulated in Forest Guardians makes clear that predetermination is different in

kind from mere subjective impartiality.” (quoting Forest Guardians, 611 F.3d at

714) (internal quotation marks omitted)). Therefore, Appellants’ reliance on

Davis is misguided.

Appellants also support their “self-inflicted” argument with the Eighth

17
Circuit’s decision in Sierra Club v. U.S. Army Corps of Eng’rs, 645 F.3d 978 (8th

Cir. 2011). There, the Eight Circuit held that the district court did not abuse its

discretion in balancing the harms in favor of an injunction, at least in part,

because the financial harm to the party opposing the injunction was “largely self

inflicted.” See id. at 996–97. That decision, however, is legally and factually

distinguishable; accordingly, Appellants’ reliance on Sierra Club is also

misplaced. On the legal front, Sierra Club relied exclusively upon Davis for its

“self-inflicted” harm conclusion. Id. at 997. And, as we have discussed, Davis’s

“self-inflicted” harm holding was principally animated by misconduct concerns

that are not present here. Therefore, insofar as Sierra Club based its holding on

Davis, it is legally distinguishable. Sierra Club also involved factual

circumstances that are markedly different than those found in this case. There,

the party opposing the injunction began actual construction of a power plant over

one year before a CWA permit was issued and was warned by the Corps that this

construction would be done “at [their] own risk.” See id. at 996–97. In contrast,

here, while TransCanada’s mobilization for construction of the Gulf Coast

Pipeline began prior to the Corps’s authorization, the undisputed evidence

demonstrates that TransCanada did not begin actual construction of the pipeline

until after all three Corps offices had approved construction. Accordingly, Sierra

Club is also factually distinguishable. In sum, although we acknowledge that

there is some support in judicial decisions in our circuit and elsewhere for the

18
idea that “self-inflicted” harm should not be accorded weight in the balance of

harms, Appellants do not point us to any cases that would lead us to disregard

TransCanada’s financial harms as “self-inflicted” here.

Consequently, we are essentially left with an argument by Appellants that

involves a recitation of the various harms falling on each side of the scale. In our

view, such an argument amounts to a tacit request for us to balance the harms

anew. This, we will not do. Our focus is properly on whether the district court’s

balancing of harms manifested an abuse of discretion; simply pointing to evidence

in the record that would support a different balancing of the harms is not good

enough. See Winnebago Tribe of Neb. v. Stovall, 341 F.3d 1202, 1206 (10th Cir.

2003) (stating that a party’s “argument concerning the balance of harms . . . lacks

merit, [because it] effectively rais[es] only a difference of opinion as to

outcome”).

In other words, when reviewing a district court’s balancing of the harms for

an abuse of discretion, our charge is only to determine whether the balancing that

the district court performed was within the range of permissible choices, not

whether our own balancing would lead to a different result. See Re/Max N. Cent.,

Inc. v. Cook, 272 F.3d 424, 429 (7th Cir. 2001) (“The question for us is whether

the judge exceeded the bounds of permissible choice [in granting or denying a

preliminary injunction], not what we would have done if we had been in his

shoes.” (quoting Wis. Music Network, Inc. v. Muzak Ltd. P’ship, 5 F.3d 218, 221

19
(7th Cir. 1993)) (internal quotation marks omitted)); Oil, Chem. & Atomic

Workers Int’l Union, AFL-CIO, Local 2-286 v. Amoco Oil Co., 885 F.2d 697, 703

(10th Cir. 1989) (“[Abuse of discretion] review requires that we carefully

examine the district court’s exercise of its discretion, but ‘we may not . . .

substitute our own judgment for that of the trial court.’” (omission in original)

(quoting Tri-State Generation v. Shoshone River Power, Inc., 805 F.2d 351,

354–55 (10th Cir. 1986)); see also Rufo v. Inmates of Suffolk Cnty. Jail, 502 U.S.

367, 393–94 (1992) (O’Connor, J., concurring) (describing appellate review of

equitable decrees as “necessarily a task that entails substantial discretion,

particularly in a case like this one, where the District Court must make complex

decisions requiring the sensitive balancing of a host of factors. As a result, an

appellate court should examine primarily the method in which the District Court

exercises its discretion, not the substantive outcome the District Court reaches. If

the District Court takes into account the relevant considerations . . . and

accommodates them in a reasonable way, then the District Court’s judgment will

not be an abuse of its discretion, regardless of whether an appellate court would

have reached the same outcome in the first instance”); Zervos v. Verizon N.Y.,

Inc., 252 F.3d 163, 168–69 (2d Cir. 2001) (“When a district court is vested with

discretion as to a certain matter, it is not required by law to make a particular

decision. Rather, the district court is empowered to make a decision—of its

choosing—that falls within a range of permissible decisions.”); cf. United States

20
v. Lambert, 695 F.2d 536, 540 (11th Cir. 1983) (“A review of the record reveals

that although the district court might have issued an injunction, a denial was

clearly within its discretion.”).

Thus, Appellants have woefully failed to carry their burden of

demonstrating how the district court’s balancing of harms amounted to an abuse

of its discretion. That said, in any event, our review of the record suggests that

the district court’s balancing was well within the bounds of its discretion. The

district court concluded that the environmental harm was “minimal” 5 and that the

financial harm to TransCanada was significant. Furthermore, the court made

specific factual findings to support these conclusions that have clear support in

the record, and Appellants do not argue to the contrary. In this regard, we

highlight two of the key factual findings. First, we focus on the district court’s

finding that TransCanada has spent in excess of $500 million on the pipeline and

“that further delay will cost hundreds of thousands of dollar each day.” Aplt.

App. at 2001. Appellees put into the record undisputed evidence that they had

already spent $800 million on the Gulf Coast Pipeline and that an injunction

would cost them at least hundreds of thousands of dollars per day. See id. at 87

5
As Appellants note, the Supreme Court has stated that if environmental
harm is “sufficiently likely, . . . the balance of harms will usually favor the issuance of an
injunction to protect the environment.” Vill. of Gambell, 480 U.S. at 545. But this is
merely an observation, not an inexorable mandate. Indeed, in Winter, the Supreme Court
held that even assuming there were irreparable environmental harms, the district court
abused its discretion in finding that they outweighed the Navy’s interests in realistic
training. See 555 U.S. at 23–31.

21
(Decl. of Robert E. Jones, filed July 9, 2012); see also id. at 995 (Decl. of David

L. Penning, filed July 31, 2012); id. at 1005 (Decl. of Paul E. Fuhrer, filed July

31, 2012).

Second, as for the district court’s finding that “this is all over a loss of

waters of the United States of less than one acre . . . over the entire distance of

the pipeline,” id. at 2002, we reference the Corps’s analysis of the Gulf Coast

Pipeline that demonstrated the total permanent loss of waters over the entire

length of the pipeline would be 0.68 acres and any other water losses would be

temporary. See id. at 1728 (noting that 0.63 acres of water will be permanently

lost in the Galveston district); id. at 1783 (correcting an error in the Tulsa

district’s original approval letter and noting that 0.05 acres of permanent water

loss will occur in the Tulsa district); id. at 1821 (noting that there will be no

permanent water loss in the Fort Worth district). Thus, there was clear support in

the record for these two key district court findings. In sum, because “the district

court made specific [factual] findings to support its conclusion [regarding the

balance of harms], none of which rises to the level of clear error[,] [t]he court was

. . . well within the bounds of its discretion.” Stovall, 341 F.3d at 1206.

In conclusion, we reiterate that injunctive relief is an extraordinary remedy;

a district court should only provide such relief when a party’s right to it is clear.

See Winter, 555 U.S. at 22. When a district court denies this extraordinary

remedy, we will overturn its decision only if we have a definite and firm

22
conviction that the decision was outside the zone of permissible choice. See

Somerlott, 686 F.3d at 1152. Appellants have failed to carry their burden of

demonstrating that the district court’s determination of the balance of harms

factor departed from this zone. This failure ineluctably leads to our affirmance of

the district court’s decision.

III

For the foregoing reasons, we AFFIRM the district court’s denial of

Appellants’ request for a preliminary injunction.

Entered for the Court

JEROME A. HOLMES
Circuit Judge

23
12-6201, Sierra Club et al. v. Lieutenant General Thomas P. Bostick, et al.

MARTÍNEZ, District Judge, dissenting.

In my view, the only prong of the test for injunctive relief that the district

court analyzed in sufficient detail to permit meaningful appellate review was the

Appellants’ likelihood of success on the merits. Because I believe that the district

court’s analysis of Appellant’s likelihood of success on the merits was flawed,

and that the record is insufficient to allow the court to affirm on any other basis, I

would remand this case to the district court. Therefore, I respectfully dissent.

I

Appellants contend that the district court erred by concluding that they

were not likely to succeed on the merits of their claim. Because it affirms on

alternate grounds, the majority does not discuss these arguments, which form the

bulk of the issues argued on appeal. As set forth below, I believe that Appellants

have shown a likelihood of success on their claims that the failure to conduct an

Environmental Assessment or an Environmental Impact Statement for the Gulf

Coast Pipeline violated NEPA, and that the Corps’ failure to consider the

cumulative impact of granting 2,223 approvals of TransCanada’s NWP 12

applications violated the CWA and the APA.

A

NEPA requires federal agencies to consider the environmental

consequences of their actions and to allow public participation in the

decision-making process. Utahns for Better Transp. v. U.S. Dep’t of Transp., 305
F.3d 1152, 1162 (10th Cir. 2002) (stating that NEPA “require[s] agencies to

consider environmentally significant aspects of a proposed action.”). NEPA does

not mandate particular substantive results, but rather requires federal agencies to

take a “hard look” at the environmental consequences of an action and to

disseminate relevant environmental information for public comment so that the

general public may be an active participant in the decision-making process.

Citizens’ Comm. To Save Our Canyons v. Krueger, 513 F.3d 1169, 1178 (10th

Cir. 2008); Utah Envtl. Cong. v. Russell, 518 F.3d 817, 821 (10th Cir. 2008)

(“NEPA dictates the process by which federal agencies must examine

environmental impacts, but does not impose substantive limits on agency

conduct.”). Therefore, NEPA merely guards against “uninformed—rather than

unwise—agency action.” Robertson v. Methow Valley Citizens Council, 490 U.S.

332, 351 (1989).

Towards those ends, NEPA requires federal agencies to prepare

environmental impact statements (“EIS”) for “major Federal actions significantly

affecting the quality of the human environment.” 42 U.S.C. § 4332(2)(C). To

comply with NEPA, an agency must first consider whether the proposed action is

one that normally requires an EIS, or whether it is categorically excluded. 40

C.F.R. § 1501.4(a). If the agency cannot readily determine whether an action

falls into one of these categories, then it must prepare an environmental

assessment (“EA”). Id. §§ 1501.4(b), 1508.9.

2
 An EA is a “concise public document” that “provide[s] sufficient evidence

and analysis for determining whether to prepare an [EIS] or finding of no

significant impact.” Id. § 1508.9(a). The EA must address the direct, indirect,

and cumulative impacts of the proposed action. Id. § 1508.9(b); see also id. §§

1508.7, 1508.8, 1508.9. If the EA reveals that the project will have a significant

effect on the quality of the human environment, then the Corps must prepare a

detailed, written EIS. 42 U.S.C § 4332(2)(C). If the agency determines that its

proposed action will not have a significant effect on the environment, then it need

not prepare an EIS, and may instead issue a Finding of No Significant Impact

(“FONSI”). 40 C.F.R. §§ 1508.4, 1508.13. A FONSI must be supported by a

statement of reasoning and evidence. Id. § 1508.13.

Appellants contend that the Corps violated NEPA by failing to prepare an

EA or EIS for the Gulf Coast Pipeline. The Corps first responds by arguing that

its NEPA obligations apply only to the adoption of a NWP, and not to the

verification of the applicability of a NWP to a particular project. It contends that

requiring the full NEPA process at the pre-certification stage defeats the

streamlining purpose of the NWP process.

In support of this contention, Appellees rely on Snoqualmie Valley

Preservation Alliance v. U.S. Army Corps of Engineers, 683 F.3d 1155 (9th Cir.

2012), in which the Ninth Circuit noted that each NWP must undergo a NEPA

process when it is promulgated, and that such process “ensures that any activity

3
under that nationwide permit will have ‘minimal adverse environmental effects.’”

Id. at 1160-61. However, Snoqualmie Valley involved the issuance of three

NWPs for a single location. In this case, the Corps approved the use of NWP 12

for 2,227 water crossings. In my view, this significant distinction makes

Snoqualmie Valley of little use here. Given the magnitude of this project, there is

little doubt that requiring the Corps to undertake a NEPA analysis at the

pre-authorization stage would not defeat the streamlining purpose of the NWPs in

general.

The Corps also contends that it only controls permitting of the Gulf Coast

Pipeline’s water crossings, and that issuance of a NWP at a water crossing is not

significant enough to constitute a “major Federal action” and invoke NEPA. It is

well-established that not all construction requiring federal approval becomes

“federalized” so as to invoke NEPA. See Winnebago Tribe of Neb. v. Ray, 621

F.2d 269, 270 (8th Cir. 1980). With this in mind, the Department of the Army

has adopted regulations to provide guidance as to when a project falls under

NEPA. See 33 C.F.R. Part 325, app. B.

These regulations have particular provisions that apply when the regulated

activity is a link in the overall project, such as the pipeline at issue here. Id. §

7(b). This section of the regulations provides that, in determining the scope of a

project, the Corps must consider not only the specific activity which requires a

Department of the Army permit, but also “any other portion of the project that is

4
within the control or responsibility of the Corps of Engineers (or other Federal

agencies).” Id. § 7(b)(3). The regulations provide the following examples:

For example, a 50-mile electrical transmission cable
crossing a 1 1/4 mile wide river that is a navigable water
of the United States requires a DA permit. Neither the
origin and destination of the cable nor its route to and
from the navigable water, except as the route applies to
the location and configuration of the crossing, are within
the control or responsibility of the Corps of Engineers.
Those matters would not be included in the scope of
analysis which, in this case, would address the impacts
of the specific cable crossing.

Conversely, for those activities that require a DA permit
for a major portion of a transportation or utility
transmission project, so that the Corps permit bears upon
the origin and destination as well as the route of the
project outside the Corps regulatory boundaries, the
scope of analysis should include those portions of the
project outside the boundaries of the Corps section
10/404 regulatory jurisdiction. To use the same example,
if 30 miles of the 50-mile transmission line crossed
wetlands or other “waters of the United States,” the
scope of analysis should reflect impacts of the whole
50-mile transmission line.

Id.

The Gulf Coast Pipeline is 485 miles long, and required the Corps to issue

2,227 permits for water crossings. This means that the Gulf Coast Pipeline

crosses United States waters almost five times in each mile, or about once every

1150 feet. As such, the Gulf Coast Pipeline is much more comparable to the

second example set forth in the cited regulations—which requires consideration of

the entire transmission line—than the first.

5
 Applying these regulations, a district court in Texas has held that the Corps

was required to consider the impact of the entire 900 mile pipeline, and to prepare

an EA or EIS for the project. See Spiller v. Walker, 1998 U.S. Dist. LEXIS 18341

(W.D. Tex. 1998). The court considered the cumulative impact of the

involvement of all federal agencies and noted that “the federal government

controls the entire pipeline process: construction, operation and safety inspection,

sales of the petroleum products, and accident cleanup. It is not only arbitrary and

capricious to assert this combination of actions is not major Federal action, but it

blatantly flies in the face of common sense.” Id. at *52. The Spiller court also

held that the Corps’ role in granting a number of permits for construction has

“such a crucial impact on the construction of the . . . Pipeline at so many points

along the pipeline that it can only be described as ‘major Federal action.’” Id. at

*40-41.

Considering the number of permits issued by the Corps relative to the

overall size of the Gulf Coast Pipeline, it is patently ludicrous for Appellees to

characterize the Corps’ involvement in the subject project as minimal, or to

maintain that the Corps’ permitting involves only a “link” in the Gulf Coast

Pipeline. As the Ninth Circuit has held:

Although the Corps’ permitting authority is limited to
those aspects of a development that directly affect
jurisdictional waters, it has responsibility under NEPA
to analyze all of the environmental consequences of a
project. Put another way, while it is the development’s
impact on jurisdictional waters that determines the scope

6
 of the Corps’ permitting authority, it is the impact of the
permit on the environment at large that determines the
Corps’ NEPA responsibility. The Corps’ responsibility
under NEPA to consider the environmental
consequences of a permit extends even to environmental
effects with no impact on jurisdictional waters at all.

Save Our Sonoran, Inc. v. Flowers, 408 F.3d 1113, 1122 (9th Cir. 2005).

Given the totality of the circumstances in this case, I believe the Corps’

involvement in the Gulf Coast Pipeline was a “major Federal action” that required

a comprehensive NEPA analysis for the project. Therefore, in my judgment the

Appellants have shown a likelihood of success on the merits with respect to their

claim that the failure to prepare an EA or EIS for the Gulf Coast Pipeline was a

violation of NEPA.

B

In their as-applied challenge to the approval of the Gulf Coast Pipeline,

Appellants argue that the Corps violated the conditions of NWP 12 by failing to

adequately consider the cumulative impact of approving the use of the NWP 12

2,227 times for the project.

NWP 12 requires that the Corps’ verification of a project for which a

pre-construction notice is filed (as there was in this case) must “include an

evaluation of the individual crossings to determine whether they individually

satisfy the terms and conditions of the NWP(s), as well as cumulative effects

caused by all of the crossings authorized by NWP.” The Gulf Coast Pipeline

passes through three Corps’ districts—Galveston, Fort Worth, and Tulsa—and

7
pre-construction notifications were filed in each. Each of these districts issued a

brief letter authorizing the proposed action. Appellants contend that none of

these three verifications takes into consideration (or, indeed, do any of them even

reference) the sections of the pipeline in the other two Corps districts. Of even

greater import, Appellants argue, is the fact that none of these administrative

letters consider the cumulative impacts of the entire project as a whole. As a

result, Appellants contend, the Corps violated NWP 12 in this case.

In response, the Corps contends that its verification letters were sufficient

because they set forth the applicable legal standard, which includes a cumulative

impacts assessment, and states that the Corps made a “determination” that all

conditions were satisfied. Aple. Response Br. at 42. The Corps acknowledges

that the verification letters are terse, but contends that an agency is not required

to recite its findings in any particular form. The Corps also contends that, even if

the explanation in the letters is insufficient, any such error is immaterial because

the record shows that the cumulative impact of the Gulf Coast Pipeline would be

minimal.

“Because the arbitrary and capricious standard focuses on the rationality of

an agency’s decision-making process rather than on the rationality of the actual

decision, ‘[i]t is well-established that an agency’s action must be upheld, if at all,

on the basis articulated by the agency itself.’” Olenhouse v. Commodity Credit

Corp., 42 F.3d 1560, 1575 (10th Cir. 1994) (quoting Motor Vehicle Mfrs. v. State

8
Farm Mut. Auto. Ins., 463 U.S. 29, 50 (1983)). “Thus, the grounds upon which

the agency acted must be clearly disclosed in, and sustained by, the record.”

Colorado Wild v. U.S. Forest Serv., 435 F.3d 1204, 1213 (10th Cir. 2006). The

record of decision created by the agency must make plain its course of inquiry, its

analysis, and its reasoning. Id. “After-the-fact rationalization by counsel in

briefs or argument will not cure noncompliance by the agency with these

principles.” Id. If the agency has failed to provide a reasoned explanation for its

action, or if limitations in the administrative record make it impossible to

conclude the action was the product of reasoned decision-making, the reviewing

court cannot simply affirm. Olenhouse, 42 F.3d at 1575.

The letters of approval prepared by each district do not provide a reasoned

basis for any cumulative impacts analysis. Despite the Corps’ contention to the

contrary, the law is clear that the agency cannot simply state the legal standard

and then recite that it made a “determination” that such criteria were satisfied.

See Hull v. I.R.S., 656 F.3d 1174, 1177-78 (10th Cir. 2011) (agency’s explanation

“will not suffice if the agency’s claims are conclusory, merely reciting statutory

standards, or if they are too vague or sweeping.”); see also Siddiqui v. Holder,

670 F.3d 736, 745 (7th Cir. 2012) (“the recitation of governing law does not

excuse the AAO from its obligation to apply the law to the facts of each case.”);

U.S. Lines Inc. v. Fed. Maritime Comm’n, 584 F.2d 519, 535 (D.C. Cir. 1978)

(deference to the agency is inappropriate under the arbitrary and capricious

9
standard when the agency “does not set forth convincing reasons for its

determination in sufficient detail to allow the validity [of its decision] to be

determined.”).

Recognizing the deficiency in the administrative record with regard to the

cumulative impacts analysis, the Corps attempts to rely on affidavits presented to

the district court stating that the Districts conferred with each other regarding the

cumulative impacts. But this manner of tactical litigation maneuvering—of

creating a post hoc evidentiary record before the trial court that was clearly

missing in the record before the administrative agency—has been soundly rejected

by both this court and the Supreme Court. See Citizens to Pres. Overton Park v.

Volpe, 401 U.S. 402, 419 (1971) (barring agency from relying on affidavits

containing “post hoc rationalizations” for its actions that were created during the

litigation process); Lewis v. Babbitt, 998 F.2d 880, 882 (10th Cir. 1993) (district

court reviewing an agency action “may not rely on litigation affidavits that

provide post hoc rationalizations for the agency’s action”).

Rather, “the agency’s action must be reviewed on the basis articulated by

the agency and on the evidence and proceedings before the agency at the time it

acted.” Am. Min. Congress v. Thomas, 772 F.2d 617, 626 (10th Cir. 1985); see

also Inova Alexandria Hosp. v. Shalala, 244 F.3d 342, 350 (4th Cir. 2001)

(“[T]he required explanation must be articulated by the agency at the time of its

action.”). “The integrity of the administrative process must be judged by what

10
took place in the administrative proceedings as reflected on the administrative

record unaided by affidavit proof in the reviewing court.” Garvey v. Freeman,

397 F.2d 600, 610-11 (10th Cir. 1968) (citations omitted); see also Olenhouse v.

Commodity Credit Corp., 42 F.3d 1560, 1575 (10th Cir. 1994) (“[T]he grounds

upon which the agency acted must be clearly disclosed in, and sustained by, the

record.”).

In this case, the Corps failed to sufficiently articulate its reasoning for

concluding that the authorization of 2,227 uses of NWP 12 to construct the Gulf

Coast Pipeline would cause only minimal cumulative impact. There is no

mention in the administrative record of any collaboration between the Districts

with regard to the cumulative impact of the entire length of the Gulf Coast

Pipeline. There are also no specific findings in support of the Corps’ conclusion

that the Gulf Coast Pipeline, as a whole, would have minimal cumulative impact.

The failure to consider the cumulative effects of all of the water crossings

involved in the Gulf Coast Pipeline violates the terms of NWP 12, and, therefore,

the approval of the use of NWP 12 for construction of the Gulf Coast Pipeline

violated the law. See 33 C.F.R. § 330.1(c) (“An activity is authorized under an

NWP only if that activity and the permittee satisfy all of the NWP’s terms and

conditions.”).

Therefore, in my view, the Appellants have shown a likelihood of success

11
on the merits with respect to their contention that the Corps violated the APA and

the CWA when it authorized construction of the Gulf Coast Pipeline through

approval of the 2,227 issuances of NWP 12.

II

As set forth above, I find that Appellants have shown a likelihood of

success on the merits and, therefore, have satisfied their burden with respect to

the first prong of the standard for injunctive relief. However, to prevail on their

motion for preliminary injunctive relief, Appellants are required to show, not only

that they were likely to succeed, but also that they would suffer irreparable injury,

that the balance of the harms tipped in their favor, and that an injunction would

not be adverse to public interest. Beltronics USA, Inc. v. Midwest Inventory

Distrib., LLC, 562 F.3d 1067, 1070 (10th Cir. 2009). Because I find that the

district court did not adequately address any factor other than likelihood of

success on the merits, I would remand to the district court for further proceedings.

See Downie v. Indep. Drivers Ass’n Pension Plan, 934 F.2d 1168, 1171 (10th Cir.

1991) (remanding where “the absence of findings leaves us with no means by

which to judge the exercise of the court’s discretion.”).

The district court’s order denying Appellant’s motion for temporary

restraining order is sixteen pages long. Of this, more than twelve pages are

devoted to whether Appellants were likely to succeed on the merits. After

12
concluding that Appellants had not shown a likelihood of success on the merits,

the district court stated: “As a result of the above, the Court finds that Plaintiffs

have failed to establish they are entitled to injunctive relief under Rule 65(a).

The Court would be remiss, however, if it did not address the equities in this

case.” Aplt. App. at 2001 (Dist. Ct. Order, dated Aug. 5, 2012). The district

court’s discussion of the remaining three equitable factors is a mere three

paragraphs in length, it is bereft of any meaningful legal analysis of the issues

presented, and does not contain any factual or legal citations. I believe this

remarkably cursory discussion is insufficient to permit meaningful appellate

review, particularly under the relevant abuse of discretion standard.

As the majority points out in a lengthy footnote, Rule 52(a) does not

require the district court to set out its findings and conclusions in excruciating

detail. See Fed. R. Civ. P. 52, Notes of Advisory Committee on 1946

Amendments (“the judge need only make brief, definite, pertinent findings and

conclusions upon the contested matters; there is no necessity for overelaboration

of detail or particularization of facts.”). On the other hand, this Court has

“cautioned that too little detail frustrates meaningful appellate review by

requiring the parties and this court to guess at why the district court reached its

conclusion.” OCI Wyo., L.P. v. Pacificorp, 479 F.3d 1199, 1204 (10th Cir. 2007).

A district court is required to recite “as many of the subsidiary facts as necessary

13
to permit us to determine the steps by which it reached its ultimate conclusion.”

Roberts v. Metro. Life Ins. Co., 808 F.2d 1387, 1390 (10th Cir. 1987) (citing

Snyder v. United States, 674 F.2d 1359, 1363 (10th Cir. 1982) (internal quotations

omitted).

The majority holds that the district court’s analysis of the balance of the

equities satisfies Rule 52(a) because it “identified the harms it thought salient,

attributed weight to them, and concluded that the balance did not favor granting

an injunction.” Maj. Op. at 10, n.3 (quoting OCI Wyo., 479 F.3d at 1204). I

believe the majority has overstated the district court’s findings. The district court

simply noted the substantial cost to TransCanada if construction of the Gulf Coast

Pipeline is delayed, compared to its finding that allowing the Pipeline to proceed

would have “minimal impact on the environment.” Aplt. App. at 2002 (Dist. Ct.

Order, dated Aug. 5, 2012).

In its brief discussion of the equities, the district court included no

discussion of the irreparable nature of environmental injury in general or the fact

that, where such injury has been alleged, “the balance of harms will usually favor

the issuance of an injunction to protect the environment.” See Amoco Prod. Co.

v. Vill. of Gambell, 480 U.S. 531, 545 (1987) (“Environmental injury, by its

nature, can seldom be adequately remedied by money damages and is often

permanent or at least of long duration, i.e., irreparable.”); Catron Cnty. Bd. of

14
Comm’rs v. U.S. Fish & Wildlife Serv., 75 F.3d 1429, 1440 (10th Cir. 1996) (“An

environmental injury usually is of an enduring or permanent nature, seldom

remedied by money damages and generally considered irreparable.”).

Moreover, the district court focused on only the permanent loss of waters

that would result after construction of the Gulf Coast Pipeline was complete, and

failed to address the real and significant harm caused by the actual construction of

the pipeline, including the clearing of trees and vegetation, removing topsoil,

filling wetlands, building access roads, and clearing an eighty-five foot

construction right-of-way for the length of the pipeline.

The district court’s balancing of the harms also completely ignores the fact

that TransCanada chose to incur its economic harm by entering into contracts for

services before the Gulf Coast Pipeline was approved, even in light of the

controversial nature of the Pipeline. See Davis v. Mineta, 302 F.3d 1104, 1116

(10th Cir. 2002) (finding that balance of the harms weighed against the state

defendants who “‘jumped the gun’ on the environmental issues by entering into

contractual obligations that anticipated a pro forma result.”); Utahns for Better

Transp. v. U.S. Dep’t of Transp., 2001 WL 1739458 (10th Cir. Nov. 16, 2001)

(holding that state was at fault for its harm when it was aware of controversial

nature of the project and chose to enter into contractual obligations nonetheless).

For these reasons, I believe the district court’s analysis with respect to the

15
equitable factors other than likelihood of success on the merits is insufficient for

us to determine whether the district court properly exercised its discretion in this

regard. Notably, the district court was operating under incredibly difficult

circumstances in that Appellants’ Motion for Temporary Restraining Order and

Preliminary Injunction was filed only weeks before construction on the Gulf

Coast Pipeline was set to commence. As a fellow district court judge, I

appreciate the attention that the district court gave this case under nearly

impossible time constraints. In light of its finding that Appellants had not met

their burden with respect to likelihood of success on the merits, there was no need

for the district court to analyze the remaining three equitable factors. However,

because I would find that Appellants have shown that they are likely to succeed

on the merits, it would become necessary on remand for the district court to

consider the remaining equitable factors. Moreover, in my view the district court

should have the opportunity to undertake this assessment and analysis in the first

instance. See Kikumua v. Hurley, 242 F.3d 950, 963 (10th Cir. 2001) (remanding

for consideration of the public interest and balancing of interests because the

district court had not discussed them); see also Flexible Lifeline Sys., Inc. V.

Precision Lift, Inc., 654 F.3d 989, 1000 (9th Cir. 2011) (“We believe the better

course is to remand to allow the district court to make the requisite factual

determinations regarding irreparable harm and apply those factual findings to the

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four-factor framework to determine whether injunctive relief is warranted.”);

Lankford v. Sherman, 451 F.3d 496, 513 (8th Cir. 2006) (remanding where district

court only considered likelihood of success on the merits because “[t]he district

court is in the best position to evaluate all of the evidence and weigh the factors

to determine whether the injunction should issue.”).

The majority’s discussion on the balancing of harms usurps the district

court’s role not only as the fact-finder, but also as the court which should initially

be exercising its discretion to determine whether injunctive relief is appropriate.

See eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 394 (2006) (vacating the

decision of the court of appeals and ordering a remand so that the district court

could address the equitable elements of a preliminary injunction); Acumed LLC v.

Stryker Corp., 483 F.3d 800, 811 (Fed. Cir. 2007) (“If we were to weigh the

evidence ourselves to reach a conclusion on injunctive relief, we would

effectively be exercising our own discretion as if we were the first-line court of

equity. That role belongs exclusively to the district court. Our task is solely to

review the district court’s decisions for an abuse of discretion. ”); Lawson Prods.,

Inc. v. Avnet, Inc., 782 F.2d 1429, 1437-38 (7th Cir. 1986) (remanding to the

district court for consideration of the equitable elements of a preliminary

injunction because “the appellate process is not well suited to an appreciation of

the subtle shadings of a case” involved in the balancing of equities).

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 III

Given my conclusion that the district court abused its discretion in finding

that Appellants did not meet their burden of showing a likelihood of success on

the merits, I would reverse the district court’s denial of the Motion for Temporary

Restraining Order and Preliminary Inunction, and remand with instructions that

the district court determine in the first instance whether Appellants have met their

burden with respect to the remaining three equitable factors.

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