Save Our Summers v. Wash. State Dept. of Ecol.

• Decision Date: 08 October 1999
• Docket Number: No. CS-99-269-RHW.,CS-99-269-RHW.
• Citation: 132 F.Supp.2d 896
• Parties: SAVE OUR SUMMERS, and Tim K, by and through his parents and guardians, Patti G. and Jeffery K., and Alex H., by and through her parents and guardians, Trina H. and James H., Plaintiffs, v. WASHINGTON STATE DEPARTMENT OF ECOLOGY, and Tom Fitzsimmons, Director, Defendants.
• Court: U.S. District Court — District of Washington

132 F.Supp.2d 896

SAVE OUR SUMMERS, and Tim K, by and through his parents and guardians, Patti G. and Jeffery K., and Alex H., by and through her parents and guardians, Trina H. and James H., Plaintiffs, v. WASHINGTON STATE DEPARTMENT OF ECOLOGY, and Tom Fitzsimmons, Director, Defendants.

No. CS-99-269-RHW.

United States District Court, E.D. Washington.

October 8, 1999.

Order Denying Reconsideration, September 14, 2000.

COPYRIGHT MATERIAL OMITTED

Karen S Lindholdt, James L Sheehan, Spokane, WA, for Save Our Summers, Tim K, Patti G, Jeffery K, Alex H, Trina H, James H, Adrienne B, Melanie B, David B, Tyler H, Vicki H, Craig H, Kaley F, Laura F, David F, Vivian Evans, Charles "Ray" Ashley, Eina Fishman, plaintiffs.

Thomas C Morrill, Leslie R Seffern, Attorney General of Washington, Department of Ecology, Olympia, WA, for Washington State Department of Ecology, Tom Fitzsimmons, Director Department of Ecology, defendants.

United States Department of Justice, U.S. Department of Justice, Environment & Natural Resources Division, General Litigation Section, Washington, DC, amicus pro se.

Lee Russell McGuire, Jr, Brock Carpenter & McGuire PS, Davenport, WA, Gary H Baise, Stewart D Fried, Baise Miller & Freer PC, Washington, DC, for Washington Association of Wheat Growers, intervenor.

ORDER DENYING PLAINTIFFS' MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION, INTER ALIA

WHALEY, District Judge.

Two motions are before the Court: Plaintiffs' Motion for Temporary Restraining Order and Preliminary Injunction (Ct. Rec.2), and Plaintiffs' Motion for an Overlength Memo in Support of Motion for Temporary Restraining Order and Preliminary Injunction (Ct.Rec.4). Oral argument was heard on the motion for a temporary restraining order on October 8, 1999, in Spokane, Washington. Plaintiffs were represented by Karen Lindholdt and Rachel Paschal. Defendants were represented by Tom Morrill. For the reasons discussed below, the Plaintiffs' Motion for a Temporary Restraining Order and Preliminary Injunction is denied.

INTRODUCTION

If the Court believed it had jurisdiction to hear this claim, it would find that all elements necessary for temporary relief were satisfied, and a temporary restraining order would issue pending a hearing to determine whether preliminary injunction relief was appropriate. However, the Court believes that it has no jurisdiction to entertain the claims, and consequently no authority to restrain the challenged conduct.

First, significant legal questions exist as to whether the Plaintiffs' ADA and Rehabilitation Act claims are foreclosed by the comprehensive congressional scheme to regulate air pollution through the Clean Air Act. The Clean Air Act established a comprehensive mechanism to enforce and amend air pollution regulations; it provides limitations on the type and amount of allowable air pollution, and provides a specific mechanism by which citizens can bring suits to compel agency action to stop pollution. More importantly, the Act strikes two vital balances: first, between the federal government and the states; second, between the recognition that a certain amount of pollution is a necessary by-product of our industrialized society and the need to preserve public health and welfare. If this Court were to enjoin farmers from burning wheat-stubble based on factors outside that Act, factors beyond those considered necessary and important in the comprehensive scheme Congress has adopted, then that scheme and the delicate balances it strikes would be severely undermined.

Second, the Court does not believe that the type of conduct challenged by Plaintiffs (a state agency's failure to enact or enforce restrictions on agricultural burning) is the type of conduct that Congress intended to address in the ADA or the Rehabilitation Act.

ANALYSIS

1. Legal standards.

The grant or denial of a motion for a temporary restraining order lies within the equitable discretion of the district court. Chalk v. United States Dist. Ct., 840 F.2d 701, 704 (9th Cir.1988). A temporary restraining order is appropriate if the moving party meets one of two alternative standards. International Jensen, Inc. v. Metrosound U.S.A., Inc. 4 F.3d 819, 822 (9th Cir.1993) (citing Cassim v. Bowen, 824 F.2d 791, 795 (9th Cir.1987)). An order properly issues under the traditional standard if the court determines that (1) the moving party will suffer irreparable injury if the relief is denied; (2) there is a strong likelihood that the moving party will prevail on the merits at trial; (3) the balance of potential harm favors the moving party; and (4) the public interest favors granting relief. Id. at 822; Byron M. v. City of Whittier, 46 F.Supp.2d 1032, 1034 (C.D.Cal.1998). Under the "alternative standard," a temporary restraining order properly issues when a party demonstrates either: (1) a combination of probable success on the merits and the possibility of irreparable injury if relief is not granted; or (2) the existence of serious questions going to the merits and that the balance of hardships tips sharply in its favor. Id. In either case, movants must show the existence of some cognizable danger, more than a mere possibility, of a recurrent violation. Metzler v. IBP, Inc., 127 F.3d 959, 963 (10th Cir.1997), quoting, United States v. W.T. Grant Co., 345 U.S. 629, 633, 73 S.Ct. 894, 97 L.Ed. 1303 (1953).

In deciding whether to grant temporary relief, the court must balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief. Byron M., 46 F.Supp.2d at 1034. The requirement that a party show a likelihood of irreparable harm prior to trial increases or decreases in inverse correlation to the probability of success on the merits at trial. Diamontiney v. Borg, 918 F.2d 793, 795 (9th Cir.1990); Benda v. Grand Lodge of Int'l Assoc. of Machinists & Aerospace Workers, 584 F.2d 308 (9th Cir.1978), cert. dismissed, 441 U.S. 937, 99 S.Ct. 2065, 60 L.Ed.2d 667 (1979). See also, 11A Charles A. Wright and Arthur R. Miller, Federal Practice and Procedure § 2951 at 267 (1995) ("[W]hen the injury that allegedly will result if the restraining order is denied is very grave, less of a showing by the applicant is required than if the injury would be slight.") The essence of the court's inquiry is whether the balance of equities favors granting preliminary relief. International Jensen, 4 F.3d at 822.

2. Failure to state a claim.

This is a case in which the facts are compelling, and strongly favor the grant of a temporary restraining order. However, the law limits this Court's authority to do so. Even though this Court concludes that Plaintiffs have satisfied all other elements necessary for a temporary restraining order to issue, the Court believes it lacks jurisdiction, and consequently lacks the legal authority to issue the order.

The Court finds that the Plaintiffs have not sufficiently established that they are likely to ultimately prevail on their claim because there may well be no legal basis to bring a claim under the ADA and the Rehabilitation Act when that claim seeks to enforce or change air pollution regulations. Acceptance of such a claim carries with it the implicit finding that Congress amended the Clean Air Act in adopting the ADA and the Rehabilitation Act; such a finding is inappropriate. Furthermore, the type of conduct Plaintiffs seek to have this Court regulate is not the type of conduct Congress intended to cover under the ADA or the Rehabilitation Act.

A suit seeking modification of air pollution control regulations is not properly brought under the ADA or the Rehabilitation Act when a separate, comprehensive statutory scheme exists regarding pollution regulation. Congress has struck a delicate balance between states and the federal government by allocating power and responsibilities among the numerous government bodies involved in regulation of air pollution. A key component of this balance is the ability of private citizens to seek change in or enforcement of pollution regulations through the specific mechanisms set forth in the Clean Air Act. It is not appropriate for this Court to upset the balance that Congress has struck by allowing persons to influence pollution regulation by means outside the relevant statutory framework.

In the Clean Air Act, Congress established a comprehensive federal program to address the problem of air pollution creation and enforcement. See, e.g., Chevron U.S.A. v. Natural Resources Defense Council, 467 U.S. 837, 848, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984) ("The Clean Air Act Amendments of 1977 are a lengthy, detailed, technical, complex, and comprehensive response to a major social issue."); National Audubon Soc. v. Department of Water, 869 F.2d 1196, 1201 (9th Cir.1988) (same). This scheme rests on cooperation between the federal government and states, and recognizes that although "Federal financial assistance and leadership is essential" to successful control of pollution, "air pollution prevention ... and air pollution control at its source is the primary responsibility of State and local governments." 42 U.S.C. §§ 7401(a)(3), (a)(4) (1999). The Act called for the creation of national air quality standards regulating air pollution. See generally 42 U.S.C. § 7409 (1998). These national standards are required to be set in a manner sufficient to "protect the public health." 42 U.S.C. §§ 7409(b)(1), (b)(2) (1998). State governments are required to create an "implementation plan" specifying the manner in which these national air quality standards will be achieved and maintained within their relevant geographical regions. 42 U.S.C. § 7407(a) (1998).

Under the Act, violation of the relevant standards may be addressed in a number of ways. Where there is noncompliance with pollution requirements, the Act provides that the Administrator shall notify both the violator and the state where the violation...