Opinion
00 CIV. 1947 (DLC).
December 26, 2000. December 28, 2000.
MEMORANDUM OPINION ORDER
This case relates to the Midland Avenue Combined Sewer Overflow Abatement Project (the "Project"), one of a series of projects that Onondaga County (the "County") is required to undertake to reduce pollution in Onondaga Lake, pursuant to an Amended Consent Judgment in a suit brought against the County by plaintiff Atlantic States Legal Foundation ("ASLF"). Plaintiffs filed this action on March 10, 2000, and moved to enjoin the release of federal funds for the Project before the commencement of construction on May 1, 2000.
At an initial pretrial conference held at on March 31, 2000, the parties agreed to amend their motion to include a motion for summary judgment. By Order dated April 27, 2000, the Court denied plaintiffs' application for a preliminary injunction on the grounds that they had failed to establish irreparable harm, because there was no evidence that barring the release of federal funds would prevent the commencement of construction on the date required by the ACJ. By Opinion and Order dated August 30, 2000, the Court denied plaintiffs' motion for summary judgment and granted defendants' cross-motion, holding that the Environmental Protection Agency (the "EPA") was not required to complete an environmental impact statement ("EIS") before funding the Project.
Plaintiffs appealed that judgment on October 30, 2000, and moved this Court for an injunction pending appeal. At a telephone conference held on November 14, 2000, the parties agreed to submit that application on the existing papers filed in this case, without further briefing.
DISCUSSION
Although the filing of an appeal usually deprives a district court of jurisdiction over those aspects of the case that are involved in the appeal, Rule 62(c), Fed.R.Civ.P., permits a district court to issue an injunction preserving the status quo while the appeal is pending. See Int'l Ass'n of Machinists and Aerospace Workers v. Eastern Air Lines, Inc., 847 F.2d 1014, 1018 (2d Cir. 1988). In deciding whether to issue an injunction or stay pending appeal, the Court must consider (1) whether plaintiffs have made a strong showing of likelihood of success on appeal; (2) whether plaintiffs will be irreparably injured absent the relief sought; (3) whether that relief will substantially injure other interested parties; and (4) where the public interest lies. See Rodriguez v. DeBuono, 175 F.3d 227, 234 (2d Cir. 1999) (stay pending appeal); see also LaRouche v. Kezer, 20 F.3d 68, 72 (2d Cir. 1994) (same standard for injunction)
Considering these factors, no injunction is warranted here. Most significantly, plaintiffs have failed to show that they will be irreparably harmed absent injunctive relief. By stating in their memorandum of law that they brought this action seeking to enjoin construction of the Project, plaintiffs mischaracterized the relief they sought. This action, in which the County is not a defendant, seeks only to enjoin federal funding of the Project pending completion of an EIS. Although plaintiffs do not specify the injunctive relief they seek on their present application, they can only be understood to seek a restraint on federal funding.
Given that fact, plaintiffs have failed to show irreparable harm because they again have failed to show that a restraint on federal funding will have any impact on the progress of the Project. Plaintiffs do not address this issue in their present application. In their memorandum of law in support of their motion for summary judgment, they asked the Court to infer that the project would not commence without federal funding from a report to the County discussing the necessity of outside funding and the difficulty of arranging other sources of funding. The County, however, submitted a brief as amicus curiae in connection with the original application for preliminary injunctive relief, stating that the County would commence construction on time even if an injunction were to issue.
Plaintiffs also have not made a sufficient showing on the merits of their appeal. Plaintiffs argue that they are likely to succeed on two issues: their argument that the EPA's consideration of the Midland Avenue Project separate from the other projects required by the ACJ constituted unlawful "segmentation"; and their argument that the EPA improperly determined not to complete an EIS before the completion of review of the Project pursuant to the National Historic Preservation Act ("NHPA"). Those issues were discussed at length in the Court's August 30 Opinion. For the reasons set forth therein, and particularly in light of the deferential "arbitrary and capricious" standard of review given the EPA's findings, plaintiffs have not made a strong showing of likelihood of success on appeal.
Finally, neither of the remaining factors weighs sufficiently in the plaintiffs' favor to merit injunctive relief. Accordingly, plaintiffs' motion for an injunction pending appeal is denied.