As we noted here, law suits by environmental groups, often asserting claims based on the National Env
ironmental Policy Act (NEPA), are a major barrier to clean energy generation and transmission. Thus, the U.S. Supreme Court's grant of certiori in the case of Monsanto v. Geertson, notwithstanding the Obama Administration's objection, may prove to be good news for utilities and for clean energy generation and transmission companies. In Geertson, the Court is considering whether NEPA claims are exempt from the general rule that a likelihood of irreparable harm must be shown to obtain an injunction, whether a district court may enjoin a NEPA violation without conducting an evidentiary hearing, and whether the lower court erred by affirming an injunction based on an arguably remote possibility of harm.
Historically, the rule has been a NEPA violation, even without evidence of substantive environmental harm, generally triggers an injunction blocking project development. In Winter v. Natural Resources Defense Council, 129 S. Ct. 365 (2008), the Court began to limit this rule, holding plaintiffs seeking injunctive relief under NEPA must in fact demonstrate that they are likely to suffer irreparable harm in the absence of the requested injunction, just as they would be required to do in any other case in which an injunctive remedy is requested. Should the Court extend Winter and rule for Monsanto on any of the three issues presented, then special treatment for NEPA cases will cease and environmentalists' and others' ability to employ NEPA for blocking projects may be functionally terminated. Clean energy companies and consumers stand to benefit a great deal from such a ruling.
