Memorandum in Support of Plaintiffs’ Motion for Preliminary Injunction

Memorandum in Support of Plaintiffs’ Motion for Preliminary Injunction

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UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF SOUTH CAROLINA

CHARLESTON DIVISION

 

CITY OF BEAUFORT; et al., No. 2:18-cv-03326-RMG
Plaintiffs, (Consolidated with 2:18-cv-03327-RMG)
 
v.  
NATIONAL MARINE FISHERIES  
SERVICE; et al., MEMORANDUM IN SUPPORT OF
 
Defendants. PLAINTIFFS’ MOTION FOR
PRELIMINARY INJUNCTION
______________________________________  
SOUTH CAROLINA COASTAL  
CONSERVATION LEAGUE; et al.,  
Plaintiffs,  
v.  
WILBER ROSS, in his official capacity as  
secretary of commerce; et al.,  
Defendants.  
_______________________________________  

 

 

 

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TABLE OF CONTENTS

 

 

TABLE OF AUTHORITIES ……………………………………………………………….…….ii

 

TABLE OF EXHIBITS …………………………………………………………………….…….iv

 

INTRODUCTION ……………………………………………………………………….……….1

 

STANDARD OF REVIEW ………………………………………………………………………2

 

ARGUMENT ……………………………………………………………………………………..3

 

  1. Plaintiffs Are Likely to Succeed on the Merits ……………………………………………3

 

  1. Without Preliminary Injunctive Relief, Plaintiffs Will Likely Suffer Irreparable Harm………………………………………………………………………………………3

 

  • An Injunction Will Protect the Public Interest…………………………………………….9

 

  1. The Balance of the Equities Tips in Favor of Plaintiffs………………………………….13

 

CONCLUSION …………………………………………………………………………………..14

 

 

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TABLE OF AUTHORITIES

CASES

 

Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127 (9th Cir. 2011)………………………11

 

Amoco Prod. Co. v. Vill. Of Gambell, AK, 480 U.S. 531 (1987)……………………………..3, 11

 

Anglers of the AU Sable v. U.S. Forest Service

402 F.Supp.2d 826 (E.D.Mich. 2005)…………………………………………………….5

 

Brady Campaign to Prevent Gun Violence v. Salazar

612 F.Supp.2d 1 (D.D.C. 2009)………………………………………………………….12

 

Barnes v. E-Systems, Inc.

501 U.S. 1301, 1304–1305, 112 S.Ct. 1 (1991)………………………………………….13

 

Citizen’s Alert Regarding Environment v. U.S. Dept. of Justice

1995 WL 748246 (D.D.C. 1995)………………………………………………………….13

 

Conservation Law Found., Inc. v. Busey

79 F.3d 1250 (1st Cir. 1996)……………………………………………………………..13

 

Di Biase v. SPX Corp., 872 F.3d 224 (4th Cir. 2017)………………………………………….…2

 

District of Columbia v. Eastern Trans-Waste of Maryland

758 A.2 1 (D.C. Ct. App. 2000)……………………………………………………………7

 

Environmental Defense Fund, Inc. v. Corps of Engineers

324 F.Supp. 878 (D.D.C. 1971)………………………………………………….………12

 

Friends of Back Bay v. U.S. Army Corps of Eng’rs

681 F.3d 581 (4th Cir. 2012)……………………………………………………….……..2

 

Fund for Animals v. Clark

27 F.Supp.2d 8 (D.D.C. 1998)……………………………………………………………12

 

Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co.

463 U.S. 29 (1983)……………………………………………………………………..…2

 

Nat’l Audobon Soc’y v. Dep’t of Navy, 422 F.3d 174 (4th Cir. 2005)……………………….……3

 

Nat’l Parks Conservation Assoc. v. Babbitt

241 F.3d 722 (9th Cir. 2001)………………………………………………………………5

 

National Wildlife Federation v. National Marine Fisheries Service

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235 F.Supp.2d 1143 (W.D. Wash. 2002)………………………………………..………13

 

Nat’l Wildlife Fed’n v. NMFS

886 F.3d 803 (9th Cir. 2018)………………………………………………………….…..3

 

Preservation Coalition v. Pierce

667 F.2d 851 (10th Cir. 1982) ……………………………………………………….……6

 

Red Wolf Coal. v. United States Fish & Wildlife Serv.

210 F. Supp. 3d 796 (E.D.N.C. 2016)……………………………………………………14

 

San Luis Valley Ecosystem Council v. U.S. Fish and Wildlife Service

657 F.Supp.2d 1233 (D.Colo. 2009)……………………………………………………..12

 

Seattle Audubon Society v. Evans, 771 F.Supp. 1081 (W.D. Wash 1991)………………………..6

 

Shapiro v. Cadman Tower, Inc., 51 F.3d 328 (2nnd Cir. 1995)…………………………………..3

 

South Carolina Dept. of Wildlife and Marine Resources v. Marsh

866 F.2d 97 (4th Cir. 1989)………………………………………………………………..5

 

Trump v. Int’l Refugee Assistance Project

137 S. Ct. 2080, 2089, 198 L. Ed. 2d 643 (2017)………………………………………..13

 

United States v. South Carolina

720 F.3d 518 (4th Cir. 2013)………………………………………………………………2

 

Univ. of Tex. v. Camenisch

451 U.S. 390 (1981)………………………………………………………………….……2

 

West Alabama Quality of Life Coalition v. U.S. Federal Highway Admin.

302 F. Supp.2d 672 (S.D.Tex. 2004)…………………………………………………….12

 

Wisconsin Gas Co. v. FERC

244 U.S. App. D.C. 349, 758 F.2d 669 (1985)……………………………………………7

 

Winter v. NRDC

555 U.S. 7 (2008)……………………………………………………………………2, 10

 

STATUTES

 

5 U.S.C. § 705…………………………………………………………………………………….2

 

5 U.S.C. §§ 701-06…………………………………………………………………………..……2

 

42 U.S.C §4321…………………………………………………………………………..………..3

 

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42 U.S.C. §4331……………………………………………………………………………..…….4

 

S.C. Code Ann. §5-7-30 (1962)…………………………………………………………..……….8

 

TABLE OF EXHIBITS

 

 

Ex. 1             Darby Declaration

 

Ex. 2            Keyserling Declaration

 

Ex. 3            Carroll Declaration

 

Ex. 4           Wright Declaration

 

Ex. 5           Collins Declaration

 

Ex. 6           Brendell Declaration

 

Ex. 7            Baumann Declaration

 

Ex. 8            Tecklenberg Declaration

 

Ex. 9            Goodwin Declaration

 

Ex. 10           Ciancio Declaration

 

Ex. 11           McCann Declaration

 

Ex. 12          Quet Declaration

 

Ex. 13           Local Government Resolutions

 

Ex. 14          Biological Opinion Sections 5.1 -5.3, NMFS

 

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INTRODUCTION

 

On December 11, 2018, the Cities of Beaufort, Charleston, Isle of Palms, Folly Beach, and North Myrtle Beach; the Towns of Bluffton, Edisto Beach, Kiawah Island, Pawleys Island, Briarcliffe Acres, Hilton Head, James Island, Mount Pleasant, Port Royal, Seabrook Island and Awendaw; and the South Carolina Small Business Chamber of Commerce (“Municipal and Small Business Plaintiffs”) filed this action pursuant to the Marine Mammal Protection Act (“MMPA”), the Endangered Species Act (“ESA”), the National Environmental Policy Act (“NEPA”) and the Administrative Procedures Act (“APA”), challenging Defendants’ issuance of Incidental Harassment Authorizations (“IHAs”) which authorize harm and harassment to marine species incidental to seismic airgun surveying along the Atlantic Outer Continental Shelf. This case was consolidated with another companion case filed by the following environmental organizations: South Carolina Coastal Conservation League, Center for Biological Diversity, Defenders of Wildlife, Natural Resources Defense Council, Inc., North Carolina Coastal Federation, Oceana, One Hundred Miles, Sierra Club, and Surfrider Foundation (hereinafter referred to as “Environmental Plaintiffs”).

On February 20, 2019, the Environmental Plaintiffs filed a Motion for Preliminary Injunction and Memorandum in Support. Municipal and Small Business Plaintiffs submit this Memorandum in Support of their Motion for Preliminary Injunction and hereby incorporate the background and arguments set forth by the Environmental Plaintiffs as if fully set forth herein.

The Plaintiffs represented by the undersigned counsel include 16 municipalities, each of which is charged with protecting the public interest within their respective jurisdictions, as well as the Small Business Chamber of Commerce. Seismic airgun surveying would not only violate

 

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the above-referenced statutes, but would also cause irreparable harm contrary to the public interest which these statutes seek to prevent. The Municipal and Small Business Plaintiffs seek to prevent damaging and illegal seismic airgun surveying, which will impact the residents, tourists and businesses within their respective jurisdictions and, indeed, beyond. The Bureau of Ocean Energy Management (“BOEM”) could issue permits for this seismic blasting as early as March 1, 2019. ECF No. 124-32, Bernard Decl. ¶8. Thus, a preliminary injunction preventing seismic airgun surveying during the pendency of this action is necessary and appropriate.

 

STANDARD OF REVIEW

 

A preliminary injunction “preserve[s] the relative positions of the parties until a trial on

the merits can be held.” United States v. South Carolina, 720 F.3d 518, 524 (4th Cir. 2013)

(quoting Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981)); see 5 U.S.C. § 705. A plaintiff

is entitled to that remedy upon showing “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.” Di Biase v. SPX Corp., 872 F.3d

224, 230 (4th Cir. 2017) (quoting Winter v. NRDC, 555 U.S. 7, 20 (2008)).

 

Plaintiffs’ claims are reviewable under the APA, which empowers courts to set aside agency actions that are “arbitrary and capricious” or “not in accordance with law.” 5 U.S.C.  701-06. The APA requires an agency to “articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made.” Motor Vehicle Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (internal quotation marks omitted). An agency may not “entirely fail[] to consider an important aspect of the problem,” or “offer[] an explanation for its decision that runs counter to the evidence before the agency, or is . . . implausible.” Id. If an agency’s decision is “unreasonable as a matter of law,

 

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it is likely to have been arbitrary and capricious.” Friends of Back Bay v. U.S. Army Corps of Eng’rs, 681 F.3d 581, 587 (4th Cir. 2012).

 

ARGUMENT

 

I. The Plaintiffs Are Likely to Succeed on the Merits.

 The Environmental Plaintiffs have submitted cogent arguments to this Court which, in detail, demonstrate the high probability of success on the merits of their claims. See ECF No. 124-1, pp. 21-40. Plaintiffs represented by undersigned counsel incorporate the arguments of the Environmental Plaintiffs as set forth in their Motion for Preliminary Injunction and Memorandum in Support of Motion for Preliminary Injunction as if fully stated herein. Id.

II. Without Preliminary Injunctive Relief, Plaintiffs Will Likely Suffer Irreparable Harm.

Harm is irreparable if it “is neither remote nor speculative, but actual and imminent” and it “cannot be remedied by an award of monetary damages.” Shapiro v. Cadman Tower, Inc., 51 F.3d 328, 332 (2d Cir. 1995). “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. If such injury is sufficiently likely, therefore, the balance of harms will usually favor the issuance of an injunction to protect the environment.” See Amoco Prod. Co. v. Vill. Of Gambell, AK, 480 U.S. 531, 545 (1987), see also Nat’l Audubon Soc’y v. Dep’t of Navy, 422 F.3d 174, 201 (4th Cir. 2005).

The likelihood of irreparable harm must be considered in light of the purposes of the laws being applied and implemented. Nat’l Wildlife Fed’n v. NMFS, 886 F.3d 803 (9th Cir. 2018); see also Amoco, 480 U.S. at 544 (a court must consider the “purpose” and “underlying substantive policy” of the applicable statute). For the municipal and small business Plaintiffs, NEPA’s

 

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purpose rings true: “to declare a national policy which will encourage productive and enjoyable

harmony between man and his environment;” and “to promote efforts which will prevent or

eliminate damage to the environment and biosphere and stimulate the health and welfare of

man.” 42 U.S.C §4321. The policy mandated by Congress is “to use all practicable means and

measures, including financial and technical assistance, in a manner calculated to foster and

promote the general welfare, to create and maintain conditions under which man and nature can

exist in productive harmony, and fulfill the social, economic, and other requirements of present

and future generations of Americans.” 42 U.S.C. §4331. Moreover, the very nature of the

agency decisions at issue – Incidental Harassment Authorizations – presume harm to marine

mammals and endangered species. If the activity would not result in any environmental harm,

then such authorizations would be unnecessary.

 

The Plaintiffs, including their members, residents and visitors, rely significantly on a

healthy and viable marine ecosystem for the sustainability of multiple industries, including

fishing and tourism. Mayor Darby of Edisto Beach explains that “Our economy is entirely based

in tourism. Our businesses are auxiliary businesses necessary to support the tourism industry.

Our beach and surrounding waters are our industrial park.” Ex. 1, Darby Decl. ¶3.

Mayor Keyserling of Beaufort characterized the symbiotic relationship between the

environment and a healthy economy:

Our economy is built on the value of our natural assets, specifically the abundant opportunities for recreation and observation of marine life, along with recreational, commercial and sustenance fisheries. Tourists come here specifically to look at marine mammals and reptiles and our businesses depend on a healthy and vibrant population of marine life, including dolphins and sea turtles, for viewing and observing. Our fishermen depend on the ability to catch fish in waters off our shores, as commercial fishing still supports the livelihood for many people. In addition, we have businesses that lead fishing excursions, providing commercial charters to take people from one of our three marinas in the City into waters off our shores. We have a major seafood operation that distributes nearly all locally-caught seafood throughout the State. And we have boat

 

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dealers who are supported by these businesses, in addition to three marinas within the City.

 

Ex. 2, Keyserling Decl. ¶5.

Mayor Carroll of Isle of Palms explains, “tourism is a $22.6 billion industry in South Carolina with two-thirds of that revenue generated from the coast.” Ex. 3, Carroll Decl. ¶3. “[D]riving away and/or harming marine mammals and fish species will cause immediate and irreparable harm to our businesses which rely on abundance of these species for their ecotourism, charter, and fishing businesses. Without marine mammals to watch, ecotours business will suffer. Without fish, fishing charters will suffer.” Ex. 3 ¶6.

NEPA’s policy and purpose is to protect and preserve these harmonious relationships. Yet the seismic blasting would irreparably damage “the harmony between man and environment” by harming and harassing, and in some case leading to the death of, marine species from zooplankton at the base of the food chain, all the way to large marine mammals like the right whale, as discussed by expert opinions supporting the Environmental Plaintiffs’ Motion. See Rice Decl., ECF No. 124-5; Read Decl., ECF No. 124-4; Waples Decl., ECF No. 124-31; Nowacek Decl., ECF No. 124-3; Tyack Decl., ECF No. 124-6; Kraus Decl., ECF No. 124-2.

A court must balance the potential harms resulting from the granting of an injunction, but an environmental harm carries significant weight. In South Carolina Dept. of Wildlife and Marine Resources v. Marsh, 866 F.2d 97 (4th Cir. 1989), the Fourth Circuit upheld a South Carolina district court’s granting of a preliminary injunction pending completion of an Environmental Impact Statement (“EIS”) by the U.S. Army Corps of Engineers. The Corps proposed to operate pump generators at the Lake Russell dam. NEPA was implicated based on the risk that fish and other aquatic wildlife would be sucked into the pumps and killed. An EIS had been prepared on the pump generators but nine years had passed and additional information

 

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was available. The Fourth Circuit confirmed the district court’s balancing of the hardships in

which it determined “that the potential harm to the Corps from an injunction, which would be

substantially higher costs, ‘by no means equates to the loss the environment and general public

will suffer if the fisheries at the [Dam] are lost.’” Id. at 100.

Other courts considering this balance test have reached the same conclusion as the Fourth

Circuit in Marsh: financial loss from delay is inherently present in the NEPA process and should

be given little weight compared to permanent environmental harm.

The court in Anglers of the AU Sable v. U.S. Forest Service reached this very conclusion,

citing:

Nat’l Parks Conservation Assoc. v. Babbitt, 241 F.3d 722, 738 (9th Cir.2001) (reasoning that “loss of anticipated revenues does not outweigh potential irreparable injury to the environment”); Greenpeace Action, 14 F.3d at 1332 (stating that although an injunction “could present a financial hardship to the Forest Service … this possible financial hardship is outweighed by the fact that the old growth forests plaintiffs seek to protect would, if cut, take hundreds of years to reproduce”); Seattle Audubon Society v. Evans, 771 F.Supp. 1081, 1096 (W.D.Wash.1991) (reasoning that “[t]he mightiest economy on earth” can afford a temporary stay to ensure the Forest Service properly analyzes and discloses environmental impacts). Similarly, the Tenth Circuit has concluded that “[a]ny increased cost from delay … is not sufficient to establish prejudice because NEPA contemplates just such a delay.” Preservation Coalition v. Pierce, 667 F.2d 851, 855 (10th Cir.1982).

402 F.Supp.2d 826, 839 (E.D. Mich. 2005).

The damage to the marine species has been outlined by numerous experts. See Rice

Decl., ECF No. 124-5; Read Decl., ECF No. 124-4; Waples Decl., ECF No. 124-31; Nowacek

Decl., ECF No. 124-3; Tyack Decl., ECF No. 124-6; Kraus Decl., ECF No. 124-2.

Not only will environmental harm occur if injunctive relief is denied, but also devastating

economic harm will occur to the businesses who rely on tourism and the oceanic environment.

The Small Business Chamber of Commerce has members that include ecotourism companies,

 

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offshore fishing expedition companies, commercial fishing operations, and hotels, restaurants

and other businesses entirely dependent upon healthy and abundant marine life. The viability and

continued existence of many of these businesses will be in jeopardy as a result of the impacts of

this seismic activity resulting in irreparable economic harm. Ex. 4, Wright Decl. ¶4. For

example, if dolphins are driven away from their habitats, as discussed in the Coastal

Conservation League Declarations, Blue Wave Adventure’s dolphin tour business would

collapse: “If there are no animals there can be no business.” Ex. 5, Collins Decl. ¶5. See also Ex.

6, Brendell Decl.

Small businesses such as Murrells Inlet Seafood will be at risk if this testing goes

forward. This business is completely reliant on the local fishing and shellfish industries and a

reduction of up to 70% in catch would be devastating to their business. Ex. 7, Baumann Decl. ¶2.

While it is fairly well settled that merely alleging economic loss will not alone constitute

irreparable harm sufficient to warrant an injunction, an economic impact will rise to that level

where the “loss threatens the very existence of the movant’s business.” Wisconsin Gas Co. v.

FERC, 244 U.S. App. D.C. 349, 354, 758 F.2d 669, 674 (1985). See also District of Columbia v.

Eastern Trans-Waste of Maryland, 758 A.2 1 (D.C. Ct. App. 2000). In this case, the existence of

multiple businesses, like Murrells Inlet Seafood, Flipper Finders and Blue Wave Adventures are

threatened.

Indeed, the Mayor John J. Tecklenburg of Charleston states that:

. . . the City’s economy and vast numbers of businesses depend on a healthy and safe ocean. The fishing industry in Charleston is enormous, with many local fishermen and local business groups and companies whose entire livelihood is based on fisheries, which would be adversely impacted by seismic testing. The fishing industry serves many local restaurants and businesses which are similarly all reliant on a steady supply of fish and shellfish. There are over 44 local restaurants within Charleston County alone that are committed to serving Certified South Carolina grown fish and shellfish that have been identified by the SCDA.

 

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Ex. 8, Tecklenburg Decl. ¶4.

 

Jane Darby, Mayor of Edisto Beach, highlights the reliance on a tourism economy:

Our economy is entirely based in tourism. Our businesses are auxiliary businesses necessary to support the tourism industry. Our beach and surrounding waters are our industrial park. Some of these are realty companies, rental agencies, gift shops, seafood markets, restaurants, and marina facilities for kayaking, boating, fishing and excursions. One grocery store, one liquor shop and one convenience station are located in the town. These businesses serve our permanent residents and the approximately 10,000-15,000 weekly visitors that are present in the high season. We are also seeing a steady growth in the winter from people seeking to escape colder climates.

Ex. 1, Darby Decl. ¶3.

 

Mayor Tim Goodwin, Mayor of Folly Beach, states:

Folly Beach is home to Folly Beach Pier, one of the longest piers on the east coast, stretching out more than 1,045 feet into the ocean. This allows a spectacular view from the outside looking in, and offers some of the best saltwater fishing in the area. In fact, Folly Beach is home to a productive year-round fishery, and we have several local businesses that are dependent on this fishery. Sea Breeze Charters, Atlantic Breeze Charters, and Charleston Charter Fishing offer in-shore, near-shore and off-shore fishing charters off the Folly’s shores. Patrons of these businesses support our local economy.

 

Ex. 9, Goodwin Decl. ¶2.

 

The Mayor of the Town of Seabrook Island echoes the concerns about impacts to South

Carolina’s tourism-based economy: “[t]he Seabrook Island Marina is accessible from both the

Atlantic Ocean and the Intracoastal Waterway. The many charter fishing companies that call the

marina home are dependent on a vibrant and healthy ocean, allowing for opportunities to both

observe marine mammals and catch fish recreationally.” Ex. 10, Ciancio Decl. ¶6. The Town of

Hilton Head Island has invested 402 million dollars into infrastructure to support their robust

tourism industry and has an ongoing financial commitment to conduct beach renourishment to

preserve the beaches so that citizens can enjoy benefits the ocean offers. Ex. 11, McCann Decl.

¶2, 3.

 

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One community in particular that will suffer numerous injuries because of their economic and cultural reliance on the sea are the Gullah/Geechee people. These people live on the coast’s sea islands and inland from North Carolina to Florida. The Gullah Geechee Sea Island Coalition consists of members of the Gullah Geechee community and their headquarters are located on St. Helena Island, Beaufort County, South Carolina. Approximately 70% of the members’ income is reliant on tourism. The depletion of the marine mammal and fish populations will negatively affect the members’ ability to derive necessary income from tourism. Ex. 12, Quet Decl.

 

III. An Injunction Will Protect the Public Interest.

The public interest in maintaining the status quo of the quality and resources of the Atlantic Ocean near the coast of South Carolina and its neighboring coastal states cannot be over stated. Nearly every state that will have seismic airgun surveying off of its shores has moved to intervene in these consolidated cases. More than 240 east coast municipalities have taken action against seismic airgun surveying and offshore drilling. In South Carolina, the following counties and municipalities have passed resolutions objecting to seismic testing: Atlantic Beach, Beaufort, Briarcliffe Acres, Charleston, Columbia, Edisto Beach, Folly Beach, Georgetown, Georgetown County, Hilton Head, Horry County, Isle of Palms, James Island, Kiawah Island, Seabrook Island, McClellanville, Mount Pleasant, Myrtle Beach, North Myrtle Beach, Pawleys Island, Port Royal, Rockville, Sullivans Island and Surfside Beach. Ex. 13, Local Government Resolutions. Sixteen South Carolina cities and towns are plaintiffs, who are charged specifically with protecting the interests of members of the public who live, work and visit within their corporate limits. These governments represent the public interest, and have spoken strongly and adamantly against seismic airgun surveying because it would not be in the public interest.

 

 

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Indeed, Plaintiffs represented by the undersigned counsel have a particularly vested interest in protecting the interests of their public. The South Carolina Legislature has granted all municipal corporations of the State broad powers to take action to protect the public interest:

Each municipality of the State, in addition to the powers conferred to its specific form of government, may enact regulations, resolutions, and ordinances, not inconsistent with the Constitution and general law of this State, including the exercise of powers in relation to roads, streets, markets, law enforcement, health, and order in the municipality or respecting any subject which appears to it necessary and proper for the security, general welfare, and convenience of the municipality or for preserving health, peace, order, and good government in it… S.C. Code Ann. §5-7-30 (1962).

Courts must evaluate and assess the impact of a proposed activity on the public interest

and determine whether the benefits of the activity outweigh the negative impacts on the interests

of the public. The Supreme Court in Winter v. National Research Defense Council, 129 S.Ct.

365, 67 ERC 1225, 172 L.Ed.2d 249 (U.S. 2008) conducted such an analysis relating to the

United States Navy’s intent to conduct seismic sonar activity. The Plaintiffs in that case argued

the sonar activity would have a significant detrimental effect on the marine life that would be

exposed to it. In determining that the elements of a preliminary injunction were not satisfied, the

Court reasoned that the Navy’s public interest component in opposition to a motion for

injunction was for the proper training of its sailors, who in turn must protect the citizens of the

United States against threats from enemy submarines. “We accept these officers’ assertions that

the use of MFA sonar under realistic conditions during training exercises is of the utmost

importance to the Navy and the Nation.” Id. at 25, 377. The Court concluded that the Navy’s

mandate to protect the citizens of the United States in matters of national security was a

compelling interest that should be protected.

Here, the Defendants have authorized and Intervenors plan to execute this disruptive and

damaging activity not in furtherance of matters of national security, but for the purpose of merely

 

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investigating the existence of oil and gas resources for private economic gain, the presence of which is certainly speculative. This purpose must be balanced against the Plaintiffs’ own economic interests of their business owners and residents who will suffer the consequences of this activity and the reduction in tourists who would be willing to tolerate its impacts, and specifically decreased ability to fish, view marine mammals, and dine at locally-sourced restaurants to name a few.

Not only does the public interest include protecting economic viability and preventing negative economic impacts, but it also includes protecting the environment for the benefit of the public, who relies on it for those economic, aesthetic and recreations interests and who utilizes and enjoys it. An environmental harm can be unacceptably contrary to the public interest. In Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127 (9th Cir. 2011), the Ninth Circuit Court of Appeals agreed that a substantial public interest exited in preserving nature and enjoining the logging activity proposed by the U.S. Forest Service, which would have prevented members of the public from recreating, including hunting, fishing, hiking and cross-country skiing within the logging area. The Court could not find any contravening public interest that would be more significantly impacted if a preliminary injunction was issued.

In Amoco v. Village of Gambell, 480 U.S. 531 (1987), the Court overturned an injunction on the basis that the enabling statute did not indicate that the “preservation of subsistence resources” was an overriding public interest. However, it held that the purpose of the enabling statute, as evidenced through statutory language and legislative history, established the “preservation of subsistence resources” as being in the public interest. If the internal logic of Amoco is applied to the Marine Mammal Protection Act, the statutory language and legislative history provide strong evidence that conservation of marine species is a public interest under

 

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MMPA. As such, injunctive relief is warranted in situations where potential impacts on marine mammals is set to occur.

National Marine Fisheries Service (“NMFS”) issued their Biological Opinion on November 28, 2018 and acknowledged that the airgun blasting will have impacts such as pollution, an increase in greenhouse gases, exhaust, fuel, oil and trash. Ex. 14, Biological Opinion, Sec. 5.1. There will also be acoustic and visual disturbances. Ex. 14, Biological Opinion Sec. 5.3. The Environmental Plaintiffs have submitted to the Court numerous expert opinions detailing the major environmental impacts that will result from this activity. These will clearly be impacts to the public interest.

The Court must give “particular regard” to the public consequences of granting a preliminary injunction. Winter at 24, 129 S.Ct. 365. “The public interest in avoiding, if possible, any irreversible damage to [an] already endangered environment is paramount.” Environmental Defense Fund, Inc. v. Corps of Engineers, 324 F.Supp. 878, 880 (D.C.D.C., 1971).

The public interest is also strongly in favor of the enforcement of the provisions of NEPA. See West Alabama Quality of Life Coalition v. U.S. Federal Highway Admin., 302 F. Supp.2d 672, 685 (S.D.Tex. 2004) (“courts have generally found that the public interest in requiring agencies to comply with NEPA prior to a project proceeding is sufficient to warrant an injunction”); Brady Campaign to Prevent Gun Violence v. Salazar, 612 F.Supp.2d 1, 26 (D.D.C. 2009) (“There is no question that the public has an interest in having Congress’ mandates in NEPA carried out accurately and completely.”); San Luis Valley Ecosystem Council v. U.S. Fish and Wildlife Service, 657 F.Supp.2d 1233, 1242 (D.Colo. 2009) (“[t]he public has an undeniable interest in the [government’s] compliance with NEPA’s environmental review requirements”); Fund For Animals v. Clark, 27 F.Supp.2d 8, 15 (D.D.C. 1998) (“the public interest expressed by

 

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Congress was frustrated by the federal defendants not complying with NEPA”); Citizen’s Alert Regarding Environment v. U.S. Dept. of Justice, 1995 WL 748246, 12 (D.D.C. 1995) (where a plaintiff has demonstrated likelihood of success on the merits, “the courts have found injunctive relief fully warranted to serve the strong public interest NEPA expresses”); National Wildlife Federation v. National Marine Fisheries Service, 235 F.Supp.2d 1143, 1162 (W.D. Wash. 2002) (“ensuring that government agencies comply with the law is a public interest of the “highest order.”). Plaintiffs respectfully submit that there are serious questions as to whether the Defendants have satisfied their duties under NEPA.

Mayor Tecklenburg of Charleston explains that “[b]ecause of the extensive and significant reliance on a healthy ocean to support human life and health of the City of Charleston’s residents and visitors, the City is committed to ensuring responsible management of the ocean and the marine life which it supports.” Ex. 8, Tecklenburg Decl. ¶3.

 

IV. The Balance of the Equities Tips in Favor of Plaintiffs.

The satisfaction of irreparable harm and success on the merits does not end the inquiry. See Conservation Law Found., Inc. v. Busey, 79 F.3d 1250, 1272 (1st Cir. 1996). Instead, the balance of harms must still occur and could likely point to success for either party. Id. Courts balance the equities by “explor[ing] the relative harms to applicant and respondent, as well as the interests of the public at large.” Trump v. Int’l Refugee Assistance Project, 137 S. Ct. 2080, 2089, 198 L. Ed. 2d 643 (2017) (citing Barnes v. E-Systems, Inc., 501 U.S. 1301, 1304–1305, 112 S.Ct. 1 (1991). In the instant case, the federal Defendants are charged with implementing the statutory requirements giving rise to this Complaint, and in that regard their interest is constrained to ensuring that those statutes are properly implemented. The federal Defendants would not suffer

 

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any harm by postponement of the authorized activities until this Court has determined whether it properly implemented the governing statutes.

The Applicant-Intervenors’ interests are purely for private profit, and in that regard the scales similarly tip in favor of the Plaintiffs’ interests in seeking to protect endangered or threatened species during the pendency of this case. Red Wolf Coal. v. United States Fish & Wildlife Serv., 210 F. Supp. 3d 796 (E.D.N.C. 2016) (in determining whether to grant injunctive relief in action alleging violations of Endangered Species Act (ESA), equitable scales are always tipped in favor of endangered or threatened species, and balance of hardships and public interest tips heavily in favor of protected species).

In weighing the impact to the public interest, which includes the economic impact to businesses that create tourism and rely on the oceanic environment, against the economic impact of the Intervenors, which is delay of profits, the scales tip in favor of granting relief to the Plaintiffs.

 

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CONCLUSION

 

Plaintiffs submit that a preliminary injunction is supported by the facts and the law and

respectfully request this Court issue an order staying the implementation of Defendant National

Marine Fisheries’ IHAs.

 

Dated: February 28, 2019

 

Respectfully submitted,

 

s/ Amy E. Armstrong____________________

 

Amy E. Armstrong

Fed. Id. No. 9625

South Carolina Environmental Law Project

P.O. Box 1380

Pawleys Island, SC 29585

Telephone: (843) 527-0078

Facsimile (843) 527-0540

Email: amy@scelp.org

 

Leslie S. Lenhardt

Fed. Id. No. 7795

South Carolina Environmental Law Project

P.O. Box 1380

Pawleys Island, SC 29585

Telephone: (843) 527-0078

Facsimile (843) 527-0540

Email: leslie@scelp.org

 

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