Temporary Restraining Orders in Environmental Litigation

Temporary restraining orders, known in the legal world as “TROs”, are a powerful tool in environmental litigation.  For a party that is considering a TRO, it has the power to immediately halt excavation, stop construction, or prevent the imposition of a new regulation.  For a party facing a TRO, violation of such an order can lead to steep fines, being held in contempt of court, and a multitude of other punishments.

TROs are often litigated in the environmental arena.  Recently, the Indiana Supreme Court considered a TRO in the context of an underground storage tank (“UST”) site.  In Witt v. Jay Petroleum, Inc., Cause No. 38S02-1110-CV-608 (Ind. March 21, 2012), the Supreme Court decided that the property owner, his attorney, and his environmental consultant were properly held in contempt of court for violating a TRO.  In that case, the property owner sued a prior owner, claiming the petroleum contamination he was cleaning up was from the prior owner’s use of the USTs.  The parties could not agree on a method for removing the USTs and testing the surrounding soil.  The trial court issued a TRO prohibiting any UST removal, soil excavation, or other environmental investigation and remediation activities until the court could conduct a preliminary injunction hearing.  Id., slip op. at 3.  The environmental consultant and other parties to the litigation continued excavating the UST area, and the trial court found them in contempt.  Id. at 3–4.  The Indiana Supreme Court eventually affirmed the trial court’s order.  See also Commissioner  v. RLG, Inc., 755 N.E.2d 556, 558 (Ind. 2001).  In RLG, the Indiana Department of Environmental Management (“IDEM”) sought preliminary injunctive relief against a landfill.  The defendant landfill agreed to remedy its environmental violations and to close the landfill, and IDEM agreed to drop its action for other civil penalties.  When defendant failed to comply, default judgment was entered for $3.1 million against landfill for violating the temporary restraining order.  The Indiana Supreme Court affirmed the judgment.          

This short recap of the Witt and RLG cases illustrates the applicability of the TRO in environmental litigation, and the extreme importance in abiding by a TRO.  A TRO expires within ten days after it was issued (unless the court extends it for good reason).  Ind. R. Trial P. 65(B). As soon as possible after the entry of a TRO, the trial court will conduct a preliminary injunction hearing where all parties can present their arguments regarding whether the activity that is the subject of the TRO should be enjoined pursuant to a more permanent preliminary injunction.  This powerful tool should not be overlooked—by the party filing it, or the party opposing it.

Indiana Rule of Trial Procedure 65 controls injunctions and temporary restraining orders (“TROs”).

To obtain a preliminary injunction, [the movant has] the burden of showing by a preponderance of the evidence that: (1) their remedies at law were inadequate, thus causing irreparable harm pending resolution of the substantive action; (2) they had at least a reasonable likelihood of success at trial by establishing a prima facie case; (3) the threatened injury to them outweighed the potential harm to the Appellees resulting from the granting of an injunction; and (4) the public interest would not be disserved by the granting of a preliminary injunction. If the party moving for an injunction fails to prove any of those four requirements, a. grant of an injunction to that party is an abuse of discretion. Stated another way, if, on appeal, the moving party cannot demonstrate that it proved each of those four requirements then the trial court’s denial of the movant's request for an injunction must be affirmed.

Curley v. Lake County Bd. of Elections & Registration, 896 N.E.2d 24, 32–33 (Ind. Ct. App. 2008).  While Curley was a case about elections, not the environment, the same TRO rules apply in the environmental context.

The lesson?  TROs are a powerful tool for any party—the government, property owners, defendants, plaintiffs, and anyone in between.  Parties should be aware of the usefulness of such a weapon, and if a TRO is entered against you, beware the consequences of violating that court order.