My individual practice has caused me to focus on mandatory injunctions under the environmental laws for a while now, as in United States v. NCR, No. 1:10-cv-910-WCG (E.D. Wis. May 1, 2013). That case, tried last December, resulted in a mandatory permanent injunction under Section 106(b) of the Comprehensive Environmental Response, Compensation and Liability Act,

42 U.S.C. §9606(b), which requires multiple responsible parties to comply with a unilateral administrative order for remedial action issued by the Environmental Protection Agency (EPA), jointly and severally.

Superfund practitioners may want to focus on that recent decision. Others may wonder whether a Superfund case, or any other federal case, is a useful model for environmental enforcement in the Pennsylvania courts.

In Pennsylvania, a mandatory injunction does not require a showing by the plaintiff of "irreparable harm." Instead, the plaintiff need only show a "clear right to relief" and that an injunction "'is necessary to prevent a legal wrong for which there is no adequate redress at law,'" as in Buffalo Township v. Jones, 813 A.2d 659, 663 (Pa. 2002); see also Board of Revision of Taxes v. City of Philadelphia, 4 A.3d 610, 627 (Pa. 2010). Perhaps that distinction makes a difference. The Pennsylvania standard may also affect the ability to obtain an injunction to enforce an underlying administrative action by the Department of Environmental Protection (DEP).

Under most environmental statutes, a claim for injunctive relief to require a regulated entity to comply can arise in one of two ways. In the more conventional situation, the regulator — the EPA, DEP or some other agency — can seek it. But a private plaintiff, dissatisfied with the pace or vigor of enforcement, may seek an injunction through a citizen suit provision.

Regulators under most programs can issue permits with conditions, administrative orders or other actions to demand compliance without going to court. Thus, the DEP or EPA would typically have already taken an action at the administrative level before filing a complaint. Citizen suit plaintiffs would only follow on after an administrative order if the regulator had issued an order but then abandoned enforcement. Otherwise, the governmental enforcement would typically bar the citizen suit.

Just showing a violation of environmental law does not entitle the plaintiff to an injunction in federal court. The U.S. Supreme Court has quite clearly stated that a mandatory injunction does not follow automatically from a statutory violation. A plaintiff — private or governmental — seeking a mandatory injunction must satisfy the traditional "four-factor test."

The plaintiff must prove: "(1) that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction," as in Monsanto v. Geertson Seed Farms, 130 S. Ct. 2743, 2756 (2010); see also Winter v. Natural Resources Defense Council, 555 U.S. 7, 20, 32 (2008). Monsanto and Winter are environmental cases; Monsanto concerns regulation of genetically modified alfalfa, and Winter addresses compliance with the National Environmental Policy Act prior to naval sonar exercises that allegedly harmed marine mammals.

All of these cases build upon the court's 30-year-old decision in Weinberger v. Romero-Barcelo, 456 U.S. 305 (1982), holding that proof that naval target practice off Puerto Rico violated the Clean Water Act did not necessarily require an injunction prohibiting the exercises.

The federal cases make no distinction between preliminary and permanent injunctions. A plaintiff seeking a preliminary injunction must show a likelihood of success on the merits and a plaintiff seeking permanent relief must actually succeed on the merits. The four factors remain the same.

Pennsylvania courts distinguish between a preliminary injunction and a permanent injunction. A plaintiff must show "irreparable harm" to obtain preliminary relief but not to obtain permanent relief. For a permanent order, the plaintiff need only show clear entitlement to relief and the inadequacy of alternative legal remedies.

A person ordered to comply by the DEP nevertheless has some ability to defend against an injunction. First, a plaintiff's entitlement to relief is unclear if the defendant has appealed the underlying compliance order, permit or other administrative directive to the Environmental Hearing Board. Second, conventional enforcement tools such as the threat of civil penalties might be said to count as an adequate alternative remedy.

When the DEP issues a compliance order or takes any other action, the respondent has a right of appeal to the Environmental Hearing Board. That appeal does not stay enforcement of the underlying action of the DEP unless the EHB issues a supersedeas. The burden of proof in a supersedeas proceeding lies with the appellant — the respondent on the DEP's enforcement order and the likely future defendant in the enforcement case.

If the recipient of the order has not appealed, then the order becomes final. Proof of noncompliance with that order might be said to count as proof of entitlement to relief in an injunction proceeding. Thus, in Commonwealth v. Cromwell Township, 32 A.3d 639 (Pa. 2011), the Commonwealth court sentenced individual township supervisors to incarceration when the township failed to implement an adopted, approved Sewage Facilities Act (Act 537) plan. The Supreme Court observed that the failure of the township to appeal to the EHB made the DEP's order enforceable as to the township.

If a recipient has appealed and the EHB has granted a supersedeas, then the underlying order may not be enforced.

If a recipient has appealed but has not sought a supersedeas, then in principle the recipient of the DEP order is required to comply. However, one might argue that the DEP would not have a clear entitlement to relief during the pendency of the EHB appeal. If the EHB were to hold a hearing and to sustain the appeal, then the judicial petition to enforce would be undermined. Because the EHB arguably has primary jurisdiction, one might say that the mere possibility of success in the EHB renders an injunction unavailable to the DEP or any other plaintiff.

On the assumption that an appeal to the EHB makes the DEP's right to relief less than clear, any appeal should do so. If any ordered party appeals to the EHB on grounds that would apply to others, then arguably none can be enjoined. To be sure, each party to which the DEP directs an order has an independent right of appeal and presumably an underlying administrative order can become final as to one party but not another.

On the other hand, if the EHB were to sustain one ordered party's appeal on grounds equally applicable to all ordered parties, one might argue that the DEP had no clear right to relief, even as to the party against whom the underlying order had become final.

Even in a case where the DEP is entitled to relief, it is only entitled to relief tailored to achieve compliance. Cromwell Township was a contempt proceeding. The Supreme Court vacated the order to incarcerate township supervisors because narrower relief might have achieved implementation of the Act 537 plan at issue. If relief must be narrowly drawn and if even the sanction must be tailored, then one might argue that the DEP or a citizen suit plaintiff would have to show that conventional enforcement would be ineffective in order to obtain an injunction.

Pennsylvania courts profess to apply a more lenient standard for permanent injunctions than do federal courts. That difference merits some attention in prosecuting or defending environmental enforcement claims.

The built-in parallel jurisdiction between the courts and the EHB, however, adds complication. That is true even if the EHB has not issued a supersedeas.

Civil penalties and other forms of relief are equitable. Nevertheless, a court might treat that alternative relief as sufficient in some cases and deny an injunction.

There are relatively few cases in this area. They are not very clear. A careful environmental practitioner should not assume that federal environmental precedents will adequately guide his or her litigation approach. •