A preliminary injunction is denied when a plaintiff fails to demonstrate a strong or substantial likelihood of success on the merits of a NEPA challenge.
The plaintiffs, a medical association and individuals, sought a preliminary injunction to prevent federal agencies from approving a loan guarantee for a coal-fired power plant, alleging the Environmental Impact Statement (EIS) failed to adequately consider the alternative of purchasing power from other utilities. The district court denied the motion, finding the plaintiffs' likelihood of success on the merits was remote. The Sixth Circuit affirmed, applying the four-factor test for preliminary injunctive relief. The court held that the EIS adequately discussed reasonable alternatives and that the plaintiffs failed to demonstrate a strong or substantial likelihood of success on the merits. The court also noted that NEPA compliance is tempered by a practical rule of reason, and that the district court did not abuse its discretion in balancing the equities.
At page 261 Determining likelihood of success on merits for injunction178 citing cases“1) whether the plaintiffs have shown a strong or substantial likelihood or probability of success on the merits; 2) whether the plaintiffs have shown irreparable injury; 3) whether the issuance of a preliminary injunction would cause substantial harm to others; 4) whether the public interest would…”
- In re Joel Aaron Sutton & Terry Melissa Sutton, No. 2:26-bk-00774 (Bankr. M.D. Tenn. Apr. 24, 2026).(upholding the denial of a stay in part because the likelihood of success on the merits was “remote)
- Izquierdo, No. 4:25-cv-02361 (N.D. Ohio Nov. 19, 2025).Ass'n v. Knebel, 563 F.2d 256, 261 (6th Cir. 1977).
- Old Detroit Burger Bar of Clarkston, LLC v. G& J Am. Grill Inc, No. 2:20-cv-11952 (E.D. Mich. July 15, 2022).Ass'n v. Knebel, 563 F.2d 256, 261 (6th Cir. 1977).
- Johnson v. Washtenaw Cnty. Road Comm'n, No. 2:22-cv-10959 (E.D. Mich. June 15, 2022).Ass’n v. Knebel, 563 F.2d 256, 261 (6th Cir. 1977).
- Ypsilanti Twp. Citizens for Responsible Gov't v. Jarrell Roe, No. 2:22-cv-10975 (E.D. Mich. May 6, 2022).Ass’n v. Knebel, 563 F.2d 256, 261 (6th Cir. 1977).
- Lewandowski v. Southgate Cmty. Schs. Bd. of Educ., No. 2:21-cv-12317 (E.D. Mich. Jan. 12, 2022).Ass’n v. Knebel, 563 F.2d 256, 261 (6th Cir. 1977).
- Allor v. Southgate Cmty. Sch. Dist. Bd. of Educ., No. 2:21-cv-12315 (E.D. Mich. Oct. 1, 2021).Ass’n v. Knebel, 563 F.2d 256, 261 (6th Cir. 1977).
- McKeon Prod Inc v. Howard S. Leight, No. 2:95-cv-76322 (E.D. Mich. Jan. 28, 2021).Ass’n v. Knebel, 563 F.2d 256, 261 (6th Cir. 1977). 7 In deciding whether to issue a stay pursuant to Rule 62(d), the court must consider the same factors analyzed when issuing injunctive relief: “(1) the likelihood that the party seeking…
- Seaman Corp. v. Flaherty, No. 5:20-cv-00443 (N.D. Ohio Oct. 16, 2020).Ass’n v. Knebel, 563 F.2d 256, 261 (6th Cir, 1977).
- Marqus v. Adducci, No. 2:20-cv-11121 (E.D. Mich. May 18, 2020).Ass’n v. Knebel, 563 F.2d 256, 261 (6th Cir. 1977).
Show 160 more citing cases
- BORGWARNER PDS (ANDERSON), L.L.C. v. Indus. MOLDING Corp., No. 2:20-cv-10607 (E.D. Mich. Mar. 11, 2020).Ass’n v. Knebel, 563 F.2d 256, 261 (6th Cir. 1977).
- Steines ex rel. Steines v. Ohio High Sch. Athletic Ass'n, 68 F. Supp. 3d 768 (S.D. Ohio 2014).publishedAss’n v. Knebel, 563 F.2d 256, 261 (6th Cir.1977). “[T]he four considerations applicable to preliminary injunctions are factors to be balanced and not prerequisites that must be satisfied. ...
- Planet Aid v. Ypsilanti Twp., 26 F. Supp. 3d 683 (E.D. Mich. 2014).publishedAss’n v. Knebel, 563 F.2d 256, 261 (6th Cir.1977).
- Am. Civil Liberties Union Fund v. Livingston Cnty., 23 F. Supp. 3d 834 (E.D. Mich. 2014).publishedAss’n v. Knebel, 563 F.2d 256, 261 (6th Cir.1977).
- S.B. ex rel. Brown v. Ballard Cnty. Bd. of Educ., 780 F. Supp. 2d 560 (W.D. Ky. 2011).published Ass’n v. Knebel, 563 F.2d 256, 260-61 (6th Cir.1977) (citations omitted).
- SB ex rel. Brown v. Ballard Cnty. Bd. of Educ., 780 F. Supp. 2d 560 (W.D. Ky. 2011).publishedId. at 261 (citations omitted).
- RDI of Michigan, LLC v. Michigan Coin-Op Vending, Inc., 631 F. Supp. 2d 868 (E.D. Mich. 2008).publishedAss’n v. Knebel, 563 F.2d 256, 261 (6th Cir.1977).
- Radio One, Inc. v. Wooten, 452 F. Supp. 2d 754 (E.D. Mich. 2006).publishedAss’n v. Knebel, 563 F.2d 256, 261 (6th Cir.1977).
- Wright v. City of Cincinnati, 450 F. Supp. 2d 831 (S.D. Ohio 2006).publishedIn support of that proposition, the Procter & Gamble *835 court cited Mason County Medical Ass’n v. Knebel, 563 F.2d 256, 261 (6th Cir.1977), a case which addressed the propriety of the District Court’s decision to deny a request for a Pre…
- Ingram v. Toledo City Sch. Dist. Bd. of Educ., 339 F. Supp. 2d 998 (N.D. Ohio 2004).publishedAss’n v. Knebel, 563 F.2d 256, 261 (6th Cir.1977).
- Lopes v. Int'l Rubber Distributors, Inc., 309 F. Supp. 2d 972 (N.D. Ohio 2004).publishedMason County Medical Association v. Knebel, 563 F.2d 256, 261 (6th Cir.1977); Frisch’s Restaurant, Inc. v. Shoney’s Inc., 759 F.2d 1261, 1263 (6th Cir.1985). 10 These considerations are “factors to be balanced, not prerequisites that must…
- Extracorporeal All., L.L.C. v. Rosteck, 285 F. Supp. 2d 1028 (N.D. Ohio 2003).publishedMason County Medical Association v. Knebel, 563 F.2d 256, 261 (6th Cir.1977); Frisch’s Restaurant, Inc. v. Shoney’s Inc., 759 F.2d 1261, 1263 (6th Cir.1985).
- Kling v. Mentor Pub. Sch. Dist., 136 F. Supp. 2d 744 (N.D. Ohio 2001).publishedMason County Medical Assoc. v. Knebel, 563 F.2d 256, 261 (6th Cir.1977).
- Stile v. Copley Tp., 115 F. Supp. 2d 854 (N.D. Ohio 2000).publishedMason County Medical Ass’n v. Knebel, 563 F.2d 256, 261 (6th Cir.1977).
- Telxon Corp. v. Symbol Tech., Inc., 961 F. Supp. 1113 (N.D. Ohio 1996).publishedMason County Medical Ass’n v. Knebel, 563 F.2d 256, 261 (6th Cir.1977).
- Suster v. Marshall, 951 F. Supp. 693 (N.D. Ohio 1996).publishedAss’n v. Knebel, 563 F.2d 256, 261 (6th Cir.1977).
- Schenck v. City of Hudson Vill., 937 F. Supp. 679 (N.D. Ohio 1996).publishedMason County Medical Ass’n v. Knebel, 563 F.2d 256, 261 (6th Cir.1977).
- Procter & Gamble Co. v. Bankers Trust Co., 78 F.3d 219 (6th Cir. 1996).published Mason County Medical Ass’n v. Knebel, 563 F.2d 256, 261 (6th Cir.1977).
- Estep v. Dent, 914 F. Supp. 1462 (W.D. Ky. 1996).publishedMason County Medical Association v. Knebel, 563 F.2d 256, 261 (6th Cir.1977).
- Performance Unlimited, Inc. v. Questar Publishers, Inc., 52 F.3d 1373 (6th Cir. 1995).published“[W]e do not consider the merits of [a] case further than to determine whether the District Judge abused his discretion in denying the preliminary injunction”
- Della Brown Alice G. Harris v. Chester D. Harris Rosemary Hunt Denise Deberry Wayne Cook Dennis Bradley Lexington Fayette Urban Cnty. Gov't, 53 F.3d 331 (6th Cir. 1995).publishedLast, the magistrate judge recommended denying the motion for a temporary restraining order and preliminary injunction, pursuant to Mason County Medical Ass'n v. Knebel, 563 F.2d 256, 261 (6th Cir. 1977). 4 The district court adopted this…
- United States v. Certain Land Situated in the City of Detroit, 873 F. Supp. 1050 (E.D. Mich. 1994).publishedMason County Medical Ass’n v. Knebel, 563 F.2d 256, 261 (6th Cir.1977).
- Integrity Int'l Sec. Servs., Inc. v. United States Dep't of the Army, 870 F. Supp. 787 (M.D. Tenn. 1994).publishedMason County Medical Assn. v. Knebel, 563 F.2d 256, 261 (6th Cir.1977).
- Friends of Fiery Gizzard v. Farmers Home Admin., 864 F. Supp. 717 (M.D. Tenn. 1994).publishedTyson Foods, Inc. v. McReynolds, 865 F.2d 99, 101 (6th Cir.1989); Mason County Medical Association v. Knebel, 563 F.2d 256, 261 (6th Cir.1977).
- United States v. Detroit Int'l Bridge Co., 7 F.3d 497 (6th Cir. 1993).published Co., 950 F.2d 294, 302 (6th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 2941 , 119 L.Ed.2d 565 (1992). 50 In determining whether the district court abused its discretion in denying Commodities and Lubienski's motion for preliminary i…
- United States v. Clyde D. Brown Sharon Brown, 988 F.2d 658 (6th Cir. 1993).publishedThe court indicated that it was inclined to grant the injunction, but noted that it would apply the four-part test enunciated in Mason County Medical Ass’n v. Knebel, 563 F.2d 256, 261 (6th Cir.1977), before granting the motion.
- Cabot Corp. v. King, 790 F. Supp. 153 (N.D. Ohio 1992).publishedMason County Medical Association v. Knebel, 563 F.2d 256, 261 (6th Cir.1977).
- Newman v. Voinovich, 789 F. Supp. 1410 (S.D. Ohio 1992).published“whether the public interest would be served by issuing a preliminary injunction”
- United of Omaha Life Ins. v. Solomon, 960 F.2d 31 (6th Cir. 1992).publishedMason County Medical Ass’n. v. Knebel, 563 F.2d 256, 261 (6th Cir.1977).
- Cobb v. Green, 574 F. Supp. 256 (W.D. Mich. 1983).published
- Angus Brown v. Carl Neeb, 644 F.2d 551 (6th Cir. 1981).published
- Shawnee Coal Co. v. Cecil D. Andrus, 661 F.2d 1083 (6th Cir. 1981).published
- Equal Emp. Opportunity Comm'n v. Anchor Hocking Corp., 666 F.2d 1037 (6th Cir. 1981).published
- Mobil Corp. v. Marathon Oil Co., 669 F.2d 366 (6th Cir. 1981).published
- Sec. & Exch. Comm'n v. G. Weeks Sec., Inc., 678 F.2d 649 (6th Cir. 1982).published
- Friendship Materials, Inc. v. Michigan Brick, Inc., 679 F.2d 100 (6th Cir. 1982).published
- 28 Fair empl.prac.cas. 1491, 28 Empl. Prac. Dec. P 32,679, 679 F.2d 541 (6th Cir. 1982).published
- Usaco Coal Co. v. Carbomin Energy, Inc., 689 F.2d 94 (6th Cir. 1982).published
- Dennis Turner v. W. Grady Stumbo, 701 F.2d 567 (6th Cir. 1983).published
- Am. Motors Sales Corp. v. Runke, 708 F.2d 202 (6th Cir. 1983).published
- Warner v. Cent. Trust Co., 715 F.2d 1121 (6th Cir. 1983).published
- Don Tate v. Richard Frey, 735 F.2d 986 (3d Cir. 1984).published
- Biechele v. Cedar Point, Inc., 747 F.2d 209 (6th Cir. 1984).published
- Christian Schmidt Brewing Co. v. G. Heileman Brewing Co., 753 F.2d 1354 (6th Cir. 1985).published
- S & H Comput. Sys., Inc. v. Sas Inst., Inc., 755 F.2d 933 (6th Cir. 1985).unpublished
- Lakeshore Terminal & Pipeline Co. v. Def. Fuel Supply Ctr., 777 F.2d 1171 (6th Cir. 1985).published
- White Consol. Indus., Inc. v. Whirlpool Corp., 781 F.2d 1224 (6th Cir. 1986).published
- Everett Akers v. Charlotte Baldwin, 785 F.2d 307 (6th Cir. 1986).unpublished
- Commc'ns Sys., Inc. v. City of Danville, 787 F.2d 589 (6th Cir. 1986).unpublished
- Wrenn v. Dep't of Mental Health, 798 F.2d 1417 (6th Cir. 1986).unpublished
- Larry R. Smith v. Arnold R. Jago Major Robertson J. P. Swyers W. Jones Redman, 829 F.2d 1126 (6th Cir. 1987).unpublished
- N.A.A.C.P. (Nat'l Ass'n for the Advancement of Colored People) Walter Harris v. City of Mansfield, 866 F.2d 162 (6th Cir. 1989).published
- Hypoint Tech., Inc. v. Hewlett-Packard Co., 869 F.2d 1491 (6th Cir. 1989).unpublished
- Garrett Williams v. City of Columbus, 872 F.2d 1030 (6th Cir. 1989).unpublished
- William G. Parker v. United States Dep't of Agric., 879 F.2d 1362 (6th Cir. 1989).published
- Health Care Ass'n of Michigan v. Dep't of Soc. Servs., 899 F.2d 14 (6th Cir. 1990).unpublished
- MLZ, INC. v. Fourco Glass Co., 470 F. Supp. 273 (E.D. Tenn. 1978).published
- Bleicker v. Bd. of Trs. of the Ohio State Univ., 485 F. Supp. 1381 (S.D. Ohio 1980).published
- Bolthouse v. Cont'l Wingate Co., 656 F. Supp. 620 (W.D. Mich. 1987).published
- Buckhorn, Inc. v. Ropak Corp., 656 F. Supp. 209 (S.D. Ohio 1987).published
- Davy v. Murphy Oil Corp., 488 F. Supp. 1013 (W.D. Mich. 1980).published
- City of Loveland v. Pierce, 564 F. Supp. 76 (S.D. Ohio 1983).published
- Morscott, Inc. v. City of Cleveland, 781 F. Supp. 500 (N.D. Ohio 1990).published
- Wayside Farms, Inc. v. United States Dep't of Health & Human Servs., 663 F. Supp. 945 (N.D. Ohio 1987).published
- Planned Parenthood Affiliates of Ohio v. Rhodes, 477 F. Supp. 529 (S.D. Ohio 1979).published
- Rose v. Giamatti, 721 F. Supp. 924 (S.D. Ohio 1989).published
- Compuserve, Inc. v. Vigny Int'l Fin. Ltd., 760 F. Supp. 1273 (S.D. Ohio 1990).published
- Werner Lehara Int'l, Inc. v. Harris Trust & Sav. Bank, 484 F. Supp. 65 (W.D. Mich. 1980).published
- Doerr v. B. F. Goodrich Co., 484 F. Supp. 320 (N.D. Ohio 1979).published
- Chem-Trend Inc. v. McCarthy, 780 F. Supp. 458 (E.D. Mich. 1991).published
- 8600 Assocs. v. Wearguard Corp., 737 F. Supp. 44 (E.D. Mich. 1990).published
- Lacy v. Dayton Bd. of Educ., 550 F. Supp. 835 (S.D. Ohio 1982).published
- Stein v. Plainwell Cmty. Schs., 610 F. Supp. 43 (W.D. Mich. 1985).published
- Plane v. United States, 750 F. Supp. 1358 (W.D. Mich. 1990).published
- Chapp v. Bowman, 750 F. Supp. 274 (W.D. Mich. 1990).published
- Berger v. Supreme Court of Ohio, 598 F. Supp. 69 (S.D. Ohio 1984).published
- United States v. State of Mich., 508 F. Supp. 480 (W.D. Mich. 1980).published
- Spencer v. Herdesty, 571 F. Supp. 444 (S.D. Ohio 1983).published
- Southerland v. Fritz, 955 F. Supp. 760 (E.D. Mich. 1996).published
- Gray Drug Stores, Inc. v. Simmons, 522 F. Supp. 961 (N.D. Ohio 1981).published
- S. Ohio Coal Co. v. Marshall, 464 F. Supp. 450 (S.D. Ohio 1978).published
- Lehnert v. Ferris Fac. Ass'n-MEA-NEA, 707 F. Supp. 1490 (W.D. Mich. 1989).published
- Cripps v. Seneca Cnty. Bd. of Elections, 629 F. Supp. 1335 (N.D. Ohio 1985).published
- Cleveland-Cliffs Iron Co. v. Chicago & North W. Transp. Co., 516 F. Supp. 399 (W.D. Mich. 1981).published
- Nw. Fin. Agency, Inc. v. Transamerica Occidental Life Ins., 773 F. Supp. 75 (S.D. Ohio 1991).published
- Fed. Sav. & Loan Ins. Corp. v. Quinn, 711 F. Supp. 366 (N.D. Ohio 1989).published
- Gonzales v. Franklin Cnty. Mun. Court, 595 F. Supp. 382 (S.D. Ohio 1984).published
- Schalk v. Teledyne, Inc., 751 F. Supp. 1261 (W.D. Mich. 1990).published
- Brown v. City of Detroit, 715 F. Supp. 832 (E.D. Mich. 1989).published
- Someday Baby, Inc. v. JTG of Nashville, Inc., 744 F. Supp. 811 (M.D. Tenn. 1990).published
- Carborundum Co. v. Williams, 468 F. Supp. 38 (E.D. Tenn. 1978).published
- Higgs v. Wilson, 616 F. Supp. 226 (W.D. Ky. 1985).published
- Accident Fund v. Baerwaldt, 579 F. Supp. 724 (W.D. Mich. 1984).published
- Bossert v. Springfield Grp., Inc., 579 F. Supp. 56 (S.D. Ohio 1984).published
- Hanna Mining Co. v. Norcen Energy Resources Ltd., 574 F. Supp. 1172 (N.D. Ohio 1982).published
- Equal Emp. Opportunity Comm'n v. Chrysler Corp., 546 F. Supp. 54 (E.D. Mich. 1982).published
- Warner Amex Cable Commc'ns, Inc. v. Am. Broad. Companies, Inc., 499 F. Supp. 537 (S.D. Ohio 1980).published
- Phillips v. Michigan Dep't of Corr., 731 F. Supp. 792 (W.D. Mich. 1990).published
- Anheuser-Busch, Inc. v. Florists Ass'n of Greater Cleveland, 603 F. Supp. 35 (N.D. Ohio 1984).published
- Marion Steel Co. v. Ohio Edison Co. (In re Marion Steel Co.), 35 B.R. 188 (Bankr. N.D. Ohio 1983).published
- Solid Rock Found. v. Ohio State Univ., 478 F. Supp. 96 (S.D. Ohio 1979).published
- Americans United for Separation of Church & State v. City of Grand Rapids, 784 F. Supp. 403 (W.D. Mich. 1990).published
- Plaza Sec. Co. v. Fruehauf Corp., 643 F. Supp. 1535 (E.D. Mich. 1986).published
- Cent. States Se. & Sw. Areas Health & Welfare & Pension Funds v. Columbia Motor Express, Inc. (In re Columbia Motor Express, Inc.), 33 B.R. 389 (M.D. Tenn. 1983).published
- United States v. O'Brien, 836 F. Supp. 438 (S.D. Ohio 1993).published
- Unicorp Fin. Corp. v. First Union Real Est. Equity & Mortg. Investments, 515 F. Supp. 249 (S.D. Ohio 1981).published
- Excello Wine Co. v. Monsieur Henri Wines, Ltd., 474 F. Supp. 203 (S.D. Ohio 1979).published
- Ardister v. Mansour, 627 F. Supp. 641 (W.D. Mich. 1986).published
- Kirsch Co. v. Bliss & Laughlin Indus., Inc., 495 F. Supp. 488 (W.D. Mich. 1980).published
- First Nat'l Bank & Trust Co. v. Fed. Reserve Bank of Chicago Detroit Branch, 495 F. Supp. 154 (W.D. Mich. 1980).published
- Toledo Trust Co. v. Poole (In re Poole), 15 B.R. 422 (Bankr. N.D. Ohio 1981).published
- Smith v. City of Manchester, 460 F. Supp. 30 (E.D. Tenn. 1978).published
- Clifford v. Moritz, 472 F. Supp. 1094 (S.D. Ohio 1979).published
- Brunton v. United States, 518 F. Supp. 223 (S.D. Ohio 1981).published
- Columbia Gas Transmission Corp. v. Exclusive Nat. Gas Storage Easement, 688 F. Supp. 1245 (N.D. Ohio 1988).published
- Jackson v. Michigan State Democratic Party, 593 F. Supp. 1033 (E.D. Mich. 1984).published
- Tree Publ'g Co. v. Warner Bros. Records, 785 F. Supp. 1272 (M.D. Tenn. 1991).published
- Stewart v. Rhodes, 473 F. Supp. 1185 (S.D. Ohio 1979).published
- LAMONT X v. Quisenberry, 606 F. Supp. 809 (S.D. Ohio 1984).published
- Hart v. Ferris State Coll., 557 F. Supp. 1379 (W.D. Mich. 1983).published
- Holden v. Heckler, 584 F. Supp. 463 (N.D. Ohio 1984).published
- Kelley v. Carr, 442 F. Supp. 346 (W.D. Mich. 1977).published
- Gruter Found., Inc. v. Bowen, 652 F. Supp. 245 (N.D. Ohio 1986).published
- Miller v. Blackwell, 348 F. Supp. 2d 916 (S.D. Ohio 2004).published
- Highland Coop. v. City of Lansing, 492 F. Supp. 1372 (W.D. Mich. 1980).published
- Flowers v. Comm'r, 573 F. Supp. 21 (W.D. Mich. 1983).published
- Turner v. Heckler, 573 F. Supp. 867 (S.D. Ohio 1983).published
- Fleet Aerospace Corp. v. Holderman, 637 F. Supp. 742 (S.D. Ohio 1986).published
- Coalition of Michigan Nursing Homes, Inc. v. Dempsey, 537 F. Supp. 451 (E.D. Mich. 1982).published
- Mamula v. Satralloy, Inc., 578 F. Supp. 563 (S.D. Ohio 1984).published
- Van Drivers Union Local No. 392 v. Neal Moving & Storage, 551 F. Supp. 429 (N.D. Ohio 1982).published
- Hughes-Bechtol, Inc. v. West Virginia Bd. of Regents, 527 F. Supp. 1366 (S.D. Ohio 1981).published
- Equal Emp. Opportunity Comm'n v. City of Bowling Green, 607 F. Supp. 524 (W.D. Ky. 1985).published
- Homac, Inc. v. DSA Fin. Corp., 661 F. Supp. 776 (E.D. Mich. 1987).published
- Christian Schmidt Brewing Co. v. G. Heileman Brewing Co., 600 F. Supp. 1326 (E.D. Mich. 1985).published
- Holland v. Dole, 591 F. Supp. 983 (M.D. Tenn. 1984).published
- Union Com. Corp. v. Huntington Bancshares, Inc., 556 F. Supp. 374 (N.D. Ohio 1982).published
- Equal Emp. Opportunity Comm'n v. Bronson Methodist Hosp., 489 F. Supp. 1066 (W.D. Mich. 1979).published
- Resource Expl. v. Yankee Oil & Gas, Inc., 566 F. Supp. 54 (N.D. Ohio 1983).published
- Taylor v. City of Knoxville, 566 F. Supp. 925 (E.D. Tenn. 1983).published
- Pizzazz Pizza & Restaurant v. Taco Bell Corp., 642 F. Supp. 88 (N.D. Ohio 1986).published
- Claridge House, Inc. v. United States Dep't of Health & Human Servs., 795 F. Supp. 1393 (S.D. Ohio 1991).published
- Fed. Deposit Ins. v. Bell Forge Assocs., Ltd., 750 F. Supp. 296 (M.D. Tenn. 1990).published
- Oleson's Food Stores v. Local 876 United Food & Com. Workers, 797 F. Supp. 591 (W.D. Mich. 1991).published
- Consolidation Coal Co. v. Costle, 483 F. Supp. 1003 (S.D. Ohio 1979).published
- Mobil Oil Corp. v. Henriksen Enter.., Inc., 490 F. Supp. 74 (W.D. Mich. 1980).published
- Greene v. Sinclair, 491 F. Supp. 19 (W.D. Mich. 1980).published
- United States v. Michigan, 508 F. Supp. 480 (W.D. Mich. 1980).published
- United States v. Michigan, 534 F. Supp. 668 (W.D. Mich. 1982).published
- Putrus v. Montgomery, 555 F. Supp. 452 (E.D. Mich. 1982).published
- Bd. of Trs. v. U.S. Dep't of Educ., 681 F. Supp. 460 (S.D. Ohio 1988).published
- Gumpl v. Seiter, 687 F. Supp. 1212 (S.D. Ohio 1988).published
- Wayside Farm, Inc. v. Bowen, 698 F. Supp. 1356 (N.D. Ohio 1988).published
- Brown v. Neeb, 644 F.2d 551 (6th Cir. 1981).published
- Equal Emp. Opportunity Comm'n v. Anchor Hocking Corp., 666 F.2d 1037 (6th Cir. 1981).published
- Stotts v. Memphis Fire Dep't, 679 F.2d 541 (6th Cir. 1982).published
- N.A.A.C.P. v. City of Mansfield, 866 F.2d 162 (6th Cir. 1989).published
- Swope v. Lubbers, 560 F. Supp. 1328 (W.D. Mich. 1983).published
- In re Thomas, 565 B.R. 856 (Bankr. W.D. Tenn. 2017).published
- William H. Thomas, Jr., No. 16-27850 (Bankr. W.D. Tenn. Mar. 11, 2019).
At page 264 Tempering the nepa hard look requirement with rule of reason15 citing casesNEPA hard look requirement is tempered by a practical rule of reason; impact statement need not document every particle of knowledge an agency might compile in assessing a project.
- City of Crossgate v. United States Dep't of Vets. Affairs, No. 3:18-cv-00167 (W.D. Ky. Mar. 18, 2021).Ass’n v. Knebel, 563 F.2d 256, 264 (6th Cir. 1977); Kentuckians for the Commonwealth v. U.S. Army Corps of Engineers, 746 F.3d 698, 710 (6th Cir. 2014).
- Latin Americans for Soc. & Econ. Dev. v. Adm'r of the Fed. High. Admin., 858 F. Supp. 2d 839 (E.D. Mich. 2012).published Ass’n v. Knebel, 563 F.2d 256, 264-65 (6th Cir.1977).
- Kentucky Riverkeeper, Inc. v. Midkiff, 800 F. Supp. 2d 846 (E.D. Ky. 2011).published(NEPA hard look requirement is tempered by a practical rule of reason; impact statement need not document every particle of knowledge an agency might compile in assessing a project.)
- Cripps v. Seneca Cnty. Bd. of Elections, 629 F. Supp. 1335 (N.D. Ohio 1985).published
- Frisch's Restaurant, Inc. v. Shoney's Inc., 759 F.2d 1261 (6th Cir. 1985).published
- Roosevelt C. Bentley v. Norman A. Carlson & T. R. Young, 786 F.2d 1163 (6th Cir. 1986).unpublished
- Communities, Inc. Dulworth & Rives, Inc. Prestonia Area Neighborhood Ass'n Highland Park Neighborhood Ass'n Standiford Neighborhood Ass'n v. James B. Busey, Adm'r, Fed. Aviation Admin. Fed. Aviation Admin., Reg'l Airport Auth. of Louisville & Jefferson Cnty., Kentucky, Intervening Communities, Inc. v. Samuel K. Skinner, Sec'y of the United States Dep't of Transp. United States Dep't of Transp., Reg'l Airport Auth. of Louisville & Jefferson Cnty., Kentucky, Intervening, 956 F.2d 619 (6th Cir. 1992).published
- Jeffreys v. My Friend's Place, Inc., 719 F. Supp. 639 (M.D. Tenn. 1989).published
- Planned Parenthood Ass'n of Cincinnati v. City of Cincinnati, 635 F. Supp. 469 (S.D. Ohio 1986).published
- Contemporary Arts Ctr. v. Ney, 735 F. Supp. 743 (S.D. Ohio 1990).published
Show 5 more citing cases
- Day v. Video Connection of Solon, 602 F. Supp. 100 (N.D. Ohio 1982).published
- Homeowners Ass'n v. Costle, 468 F. Supp. 405 (W.D. Ky. 1979).published
- Frisch's Restaurant, Inc. v. Shoney's Inc., 759 F.2d 1253 (6th Cir. 1985).published
- Communities, Inc. v. Busey, 956 F.2d 619 (6th Cir. 1992).published
- Twp. of Delhi v. McArtor, 696 F. Supp. 1157 (S.D. Ohio 1988).published
At page 260 Scope of appellate review of preliminary injunctions9 citing cases“It is well settled that the scope of review on appeal from the denial or granting of a preliminary injunction is limited to a determination of whether the District Court abused its discretion”
- Johnson v. Aramark Corp., No. 3:21-cv-00725 (W.D. Ky. Sept. 7, 2022).Ass’n v. Knebel, 563 F.2d 256, 260-61 (6th Cir. 1977).
- Liberty Coins v. David Goodman, 748 F.3d 682 (6th Cir. 2014).published“It is well settled that the scope of review on appeal from the denial or granting of a preliminary injunction is limited to a determination of whether the District Court abused its discretion”
- S.B. ex rel. Brown v. Ballard Cnty. Bd. of Educ., 780 F. Supp. 2d 560 (W.D. Ky. 2011).published Ass’n v. Knebel, 563 F.2d 256, 260-61 (6th Cir.1977) (citations omitted).
- Pheasant v. Zaremba, 398 B.R. 583 (N.D. Ohio 2008).publishedIn re Eagle-Picher Indus., Inc., 963 F.2d 855 , 858 (6th Cir.1992); Mason Coun *589 ty Medical Ass’n v. Knebel, 563 F.2d 256, 260-61 (6th Cir.1977).
- Martin-Marietta Corp. v. Bendix Corp., United Tech. v. Bendix Corp., 690 F.2d 558 (6th Cir. 1982).published
- Tyson Foods, Inc. v. Elaine A. McReynolds, 865 F.2d 99 (6th Cir. 1989).published
- Advisory Info. & Mgmt. Sys., Inc. v. Prime Comput., Inc., 598 F. Supp. 76 (M.D. Tenn. 1984).published
- Cobb v. Green, 574 F. Supp. 256 (W.D. Mich. 1983).published
- Shelly's, Inc. v. Food Concepts of Wisconsin, Inc. (In re Shelly's, Inc.), 87 B.R. 931 (Bankr. S.D. Ohio 1988).published
At page 265 Challenging the sufficiency of environmental impact statements4 citing casesstating that “no matter how well the EIS has been written, someone later can always find fault with it
- Welch v. United States Air Force, 249 F. Supp. 2d 797 (N.D. Tex. 2003).publishedAss’n v. Knebel, 563 F.2d 256, 265 (6th Cir.1977).
- Davis Mountains Trans-Pecos Heritage Ass'n v. United States Air Force, 249 F. Supp. 2d 763 (N.D. Tex. 2003).publishedAss’n v. Knebel, 563 F.2d 256, 265 (6th Cir.1977).
- Stop the Pipeline v. White, 233 F. Supp. 2d 957 (S.D. Ohio 2002).published“no matter how well the EIS [or other agency document] has been written, someone later can always find fault with it”
- Texas Comm. on Nat. Resources v. Van Winkle, 197 F. Supp. 2d 586 (N.D. Tex. 2002).published(stating that “no matter how well the EIS has been written, someone later can always find fault with it)
At page 262 Assessing power supply availability for electric system3 citing casestion should be granted which constitutes the gist of this appeal. Therefore, although the immediate issue before this Court is whether or not the District…
- Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190 (D.C. Cir. 1991).published
- Friends of the River v. Fed. Energy Regulatory Comm'n, 720 F.2d 93 (D.C. Cir. 1983).published
Other citing cases
- Procraft Cabinetry, Inc. v. Sweet Home Kitchen & Bath, Inc., 343 F. Supp. 3d 734 (M.D. Tenn. 2018).published
v.
John A. KNEBEL, Acting Secretary of Agriculture, United States Department of Agriculture
The Mason County Medical Association and three named individuals (hereinafter collectively referred to as plaintiffs) have appealed from an interlocutory order of the District Court denying plaintiffs’ motion for a preliminary injunction seeking to restrain “the Defendant federal agencies, their employees and agents, from granting any permits or approving any federally-guaranteed loans or from taking any other action in regard to” the proposed construction and operation of a 500-megawatt (MW)[1] (nominal rating) coal-fired steam electric generating unit,[2] known as Spur-lock Station Unit No. 2 (Spurlock No. 2). Spurlock No. 2 is to be located in Mason County, Kentucky, on the Ohio River approximately five miles northwest of Mays-ville, Kentucky, and the generating unit is to be constructed, owned, and operated by the state defendant, East Kentucky Power Cooperative, Inc. (EKP). No injunctive relief against EKP was sought in the District Court to restrain EKP from going forward with the construction of Spurlock No. 2. We affirm.
The pertinent facts in this case were accurately summarized by the District Court in its Findings of Fact Nos. 1-12 as follows:
FINDINGS OF FACT
1) The plaintiffs are citizens and a public interest group having an interest in their environment in Mason County, Kentucky.
2) The defendant East Kentucky Power Cooperative, Inc. (hereinafter “EKP”) is a generating and transmission cooperative supplying electric power and energy to 18 member distribution cooperatives serving approximately 214,000 customers. EKP is a member of the Kentucky-Indiana Pool (hereinafter “KIP”) which was formed to jointly solve power supply problems in the service areas. Other participants in the pool are Indianapolis Power and Light Co., Kentucky Utilities Co., and the Public Service Commission of Indiana, Inc. KIP is responsible for coordination and planning of generation and transmission facilities for delivering of bulk power to load centers.
3) EKP proposes to construct 500 MW (nominal rating) coal-fired steam electric generating unit (Spurlock Unit No. 2) at its existing Spurlock station in Mason County, Kentucky, a related substation, and related transmission lines from the station to the[*259] new Avon substation and to the Stuart generating station. The proposed Spurlock Unit No. 2 will form an integral part of the KIP system.
4) In 1974 EKP applied to the defendant Rural Electrification Administration (REA) for a loan guarantee in the amount of $380,000,000 to finance the construction of Spurlock Unit No. 2 and associated 345 KV transmission lines. At preliminary meetings between REA and EKP in 1974 and 1975, it was determined that an Environmental Impact Statement (EIS) would be required. The requirement for project justification and for the Environmental Analysis to be submitted by EKP to REA were discussed.
5) A Notice was published on July 7, 1974, in the Federal Register stating REA’s intent to prepare an EIS on the proposed project and requesting information from interested parties to aid in preparation of the EIS. Notices to that effect were also published in newspapers circulated in the project areas. No comments were received.
6) In May 1975 a preliminary Environmental Analysis was submitted to REA for review. After review and discussion, additional material was added to the Environmental Analysis. The Environmental Analysis included a description of the proposed project, the impact of the proposed project on the environment, favorable environmental effect of the proposed action, adverse environmental effects which cannot be avoided if the proposed facilities are constructed, alternatives to the proposed action, the relationship between short-term uses of man’s environment and enhancement of long-term productivity, any irreversible or irretrievable commitments of natural, cultural and other resources which would be involved in implementation of the proposed project.
7) REA independently examined the proposed site early in 1976 to obtain firsthand information regarding environmental aspects of the area involved. The defendant Environmental Protection Agency (EPA) Region IV agreed with REA to issue a joint EIS to serve both parties in order to avoid duplication of effort and it was agreed between them that REA would be the lead agency for the project.
8) After receipt of an acceptable Environmental Analysis, REA prepared a draft EIS which incorporated EKP’s Environmental Analysis in preparing the draft EIS. REA evaluated material submitted by EKP and EKP’s consulting engineer and examined the anticipated environmental effect of the project in light of the need for power and anticipated beneficial effects. Alternatives such as no additional power, purchased power, alternate sites, alternate generation and fuels, alternate ash and sludge disposal, alternative transmission line construction and voltage, and alternative transmission line tower construction were considered.
9) EPA independently reviewed the Environmental Analysis submitted by EKP and had significant input into REA’s draft EIS. EPA independently performed an air quality modeling analysis and independently investigated compliance with EPA regulations for Prevention of Significant Deterioration of Air Quality. The air quality modeling analysis together with the draft National Pollution Discharge Elimination (NPDES) Permit were made a part of the draft EIS. The draft EIS was issued in April 1976 and the public was requested to comment. Written comments were received on the EIS. The Federal Power Commission (FPC) was also requested to comment on the draft EIS and the need for power stated therein. On June 10, 1976, the Bureau of Power of the FPC by letter stated that the additional capacity represented by Spurlock Unit No. 2 was needed to maintain the adequacy and reliability of KIP’s bulk power system. It also concluded that the proposed electric power transmission facilities were necessary to transmit electric energy from the Spurlock station to the load center. A public hearing on the project was held in August of 1976 that was chaired jointly by REA, EPA and the State of Kentucky.
10) The Public Service Commission of Kentucky issued a “Certificate of Public Convenience and Necessity” to EKP for[*260] construction of the project. Prior to issuance of that certificate the Public Service Commission granted to EKP a “Certificate of Environmental Compatibility.” The latter certificate was issued only after EKP submitted to the Kentucky Department for Natural Resources and Environmental Protection a “Statement of Environmental Compatibility of the Proposed Site” and the Department for Natural Resources and Environmental Protection after review and the public hearing found that the proposed addition could be built and operated in compliance with all Kentucky statutes and regulations relating to the authority of that department. In addition, the PSC issued to EKP a certificate of right to borrow funds from the Federal Finance Bank, the loan to be guaranteed by the REA.
11) Agency and public comments received on the draft EIS were answered and included in the final EIS.
12) The final EIS was submitted to the Council on Environmental Quality on December 3, 1976. In the final EIS there is stated over the signature of the Administrator of the REA the following:
“. . . It is my judgment that the proposed action by the Rural Electrification Administration in providing financing for the proposed construction will be consistent with the policy set forth in the National Environmental Policy Act.”
On December 20, 1976, the plaintiffs filed a 31-page complaint in the District Court against the United States Department of Agriculture, the REA (a department of the U.S. Department of Agriculture), the EPA, certain federal administrators, and the state defendant, EKP. The complaint primarily[3] alleged that the final EIS, which was prepared and issued jointly by REA and EPA, was insufficient as a matter of law in that it did not comply with the requirements of the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321 et seq., and certain guidelines promulgated by the Council on Environmental Quality (CEQ), 40 C.F.R. §§ 1500 et seq. Plaintiffs prayed that the District Court, inter alia, issue a permanent injunction enjoining the federal defendants from “issuing any permits or from approving any federally guaranteed loans incident to the construction or operation” of Spurlock No. 2 until the defendants’ EIS complied with the requirements of NEPA and with the CEQ guidelines. Shortly after the filing of the complaint, plaintiffs filed a motion for a preliminary injunction seeking to enjoin the federal defendants from taking any action with respect to Spurlock No. 2 “which would alter the status quo” pending a final determination of the underlying cause of action.
Upon consideration of the parties’ memo-randa and supporting affidavits and the oral arguments of counsel, the District Court, on February 24, 1977, denied the plaintiffs’ motion for a preliminary injunction, adopting findings of fact and conclusions of law.
Plaintiffs filed a notice of appeal and also moved this Court for a preliminary injunction pending appeal, which motion was denied by order of this Court on March 17, 1977.
Following the entry of the District Court’s order, EKP proceeded with construction of Spurlock No. 2 and EKP received a loan guarantee certificate from REA in early March, 1977. As of May 20, 1977, EKP had received loan monies from the Federal Finance Bank totalling $29,-005,000, and EKP had awarded construction and engineering contracts totalling $150,-000,000. EKP also received its NPDES Permit for Spurlock No. 2 from the EPA on March 4, 1977.
I.
It is well settled that the scope of review on appeal from the denial or grant[*261]ing of a preliminary injunction is limited to a determination of whether the District Court abused its discretion. As this Court stated in Adams v. Federal Express Corp., 547 F.2d 319, 322 (6th Cir. 1976):
The granting or denial of a preliminary injunction is within the sound judicial discretion of the trial court. Virginia Railway Co. v. System Federation, R.E.D., 300 U.S. 515, 551, 57 S.Ct. 592, 81 L.Ed. 789 (1937); Brandeis Machinery & Supply Corp. v. Barber-Greene Co., 503 F.2d 503 (6th Cir. 1974); North Avondale Neighborhood Ass’n v. Cincinnati Metropolitan Housing Authority, 464 F.2d 486 (6th Cir. 1972); Hornback v. Brotherhood of Railroad Signalmen, 346 F.2d 161 (6th Cir. 1965). On appeal the denial of such an injunction will not be disturbed unless contrary to some rule of equity or an abuse of discretion. United States v. Corrick, 298 U.S. 435, 56 S.Ct. 829, 80 L.Ed. 1263 (1936); Nashville 1-40 Steering Committee v. Ellington, 387 F.2d 179 (6th Cir. 1967).
See also Corn-Share, Inc. v. Computer Complex, Inc., 458 F.2d 1341, 1342 (6th Cir. 1972); Oliver v. School Dist. of City of Kalamazoo, 448 F.2d 685, 636 (6th Cir. 1971); American Fed’n of Musicians v. Stein, 213 F.2d 679, 688 (6th Cir.), cert. denied, 348 U.S. 878, 75 S.Ct. 108, 99 L.Ed. 687 (1954).
In determining on appeal whether the District Court abused its discretion in granting or withholding preliminary injunctive relief, this Court has set forth four standards which must be considered:
1) Whether the plaintiffs have shown a strong or substantial likelihood or probability of success on the merits;
2) Whether the plaintiffs have shown irreparable injury;
3) Whether the issuance of a preliminary injunction would cause substantial harm to others;
4) Whether the public interest would be served by issuing a preliminary injunction.
Adams v. Federal Express Corp., supra at 323; Cincinnati Electronics Corp. v. Kleppe, 509 F.2d 1080, 1087 (6th Cir. 1975); North Avondale Neighborhood Ass’n v. Cincinnati Metropolitan Housing Authority, supra at 488; Garlock, Inc., v. United Seal, Inc.,. 404 F.2d 256, 257 (6th Cir. 1968); American Fed’n of Musicians v. Stein, supra. See also Blaylock v. Cheker Oil Co., 547 F.2d 962, 965 (6th Cir. 1976); Public Interest Research Group of Mich. v. Brinegar, 517 F.2d 917, 918 (6th Cir. 1975). Cf. Ohio v. Callaway, 497 F.2d 1235, 1241 (6th Cir. 1975), SEC v. Senex Corp., 534 F.2d 1240, 1241 (6th Cir. 1976).[4]
We recognize, of course, as stated in Adams v. Federal Express Corp., supra, that—
[I]n view of our limited scope of review, we do not consider the merits of the case further than to determine whether the District Judge abused his discretion in denying the preliminary injunction.
See also Blaylock v. Cheker Oil Co., supra at 964; SEC v. Senex Corp., supra; Brandeis Mach, and Supply Corp. v. Barber-Greene Co., supra at 505; Garlock, Inc. v. United Seal, Inc., supra; Hornback v. Brotherhood of R.R. Signalmen, supra at 164; American Fed’n of Musicians v. Stein, supra. The District Court appropriately did not adjudicate the merits of the plaintiffs’ underlying cause of action which alleged various deficiencies in the final EIS, but the District Court did specifically hold, inter alia, that “the likelihood of success by the plaintiffs on the merits of the case is remote,” and accordingly denied the plaintiffs’ motion for a preliminary injunction. It is the propriety of this finding by the District Court relative to this first crucial element for determining whether a preliminary injunc[*262]tion should be granted which constitutes the gist of this appeal. Therefore, although the immediate issue before this Court is whether or not the District Court abused its discretion in denying the preliminary injunction, it must be recognized that the underlying issue concerns the sufficiency of the final EIS which, in the words of the Administrator of the REA, described “the expected environmental effects of the construction and operation” of Spurlock No. 2.
II.
Section 102(2XC) of NEPA, 42 U.S.C. § 4332(2)(C) provides in pertinent part that “all agencies of the Federal Government shall”:
(C) include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on—
(i) the environmental impact of the proposed action,
(ii) any adverse environmental effects which cannot be avoided should the proposal be implemented,
(iii) alternatives to the proposed action,
(iv) the relationship between local short-term uses of man’s environment and the maintenance and enhancement of long-term productivity, and
(v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.
Section 102(2)(E) further requires all federal agencies to:
study, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources.
The plaintiffs’ main contention in District Court and on appeal is that the EIS is insufficient under §§ 102(2)(C)(iii) and 102(2)(E) of NEPA and under various guidelines promulgated by the CEQ because it “fails to adequately discuss or seriously consider the alternative of purchasing winter peak power” from nearby “summer-peaking” utilities[5] such as Cincinnati Gas & Electric Co., Dayton Power & Light Co., Columbus & Southern Ohio Electric Co., and Ohio Power Co.
The District Court determined in its Finding of Fact No. 15 as follows:
15) Purchase of power from other sources including investor-owned utilities was considered in the final EIS. The determination made by the REA Administrator that the various studies made available to him demonstrated the need for immediate construction of Spurlock Unit No. 2 and related transmission facilities in order to meet EKP’s projected power requirements and its commitments as a member of KIP is supported by substantial evidence.
We agree.
An examination of the EIS, which consists of over one-thousand (1,000) pages including the appendices, two Environmental Analyses prepared by EKP and incorporated into the final EIS, and the public hearing transcript, reveals that the alternative of purchased power was discussed in Section 5.2 (p. 75) of the EIS; in Appendix C-l entitled “Power Supply Alternatives” (pp. C-l-1 through C-l-6); and in Section V of the Environmental Analysis of the proposed Spurlock No. 2 Generating Unit (pp. V-l through V-10 and V-17). The EIS at Appendix C-l-1 states that EKP “must provide additional generation and/or purchase power in the amount of 300 MW by 1980 and 2,700 MW by 1989, to cover its projected capacity requirements under the terms of the KIP Agreement.” Furthermore, the EIS states that it is estimated that EKP will be deficient in generating capacity by 287 MW in 1980, by 1049 MW in 1984, and by 2681 MW in 1989. With these energy needs of EKP and KIP in mind, the above[*263] discussions in the EIS essentially state that purchasing power from other utilities is not a feasible alternative to construction of Spurlock No. 2 for the following reasons:
(1) “[Ljarge scale power purchasing” within KIP is not possible because each pool member is required to maintain sufficient generating capacity to meet individual and pool needs, and no member should be “dependent on the others for a disproportionate amount of its capacity requirements.” This position was fortified by the June, 1976, letter from the Federal Power Commission to the REA which stated:
The Bureau of Power concludes that the additional capacity represented by Spur-lock Unit No. 2 is needed to maintain the adequacy and reliability of KIP’s bulk power system . . .. (EIS, p. 222)
(2) The Southeastern Power Administration (SEPA) is unable to supply large amounts of firm purchased power to EKP. Rather, the only capacity available to EKP from SEPA is the 100 MW of peaking capacity which EKP is already purchasing from SEPA and perhaps another 35 MW which may be available from SEPA’s Laurel hydroelectric project; (3) The Tennessee Valley Authority (TVA), which operates in areas adjacent to the EKP service area, has “a policy of not selling long-term, base load, firm power to electric systems outside its service area.” “The only power which TVA might have available would be short-term power available on a year-to-year basis” and this would not meet EKP’s needs; (4) Nearby utilities (excluding other KIP members) which were contacted, i. e., Louisville Gas & Electric, Cincinnati Gas & Electric, and Kentucky Power Co., have not “shown an interest in selling power to EKP on a long-term basis,” primarily because of their own financial problems and the uncertainty of their load forecasts; in fact, the affidavit of Richard H. Breckenkamp, Manager of Engineering for EKP, stated that several Southern Ohio utilities had real difficulty in supplying their own customers during the Winter of 1977. (5) “[Pjurchasing power would require another utility to install and maintain the ■ necessary generating facilities” and “the environmental effects of construction and operation would be similar [to the effects of construction of Spurlock No. 2] although a different locale would be affected”; (6) “[Pjurchase of capacity from the investor-owned utilities would be based on their fixed charge rates [which] are much greater than East Kentucky’s [EKP’s] fixed charge rates, primarily because of financing, rate of return, and income tax requirements”; (7) “[N]one of the existing [three] municipal generating facilities [only one of which is located in the EKP service area] could now supply East Kentucky with the amount of power it must produce if generating capacity is not installed.”
Furthermore, the EIS contains a discussion of various other alternatives to the proposed construction and operation of Spurlock No. 2 at pp. 74-87 of the EIS; in Appendix C — 1; and in Section V of the Environmental Analysis of Spurlock No. 2. The following alternatives were considered: (1) No additional power; (2) Alternate sites; (3) Alternate generation and fuels, i. e., nuclear-steam electric; fossil-steam electric (coal oil, natural gas) including a consideration of the use of various grades of coal and the use of coal gasification; hydroelectric; geothermal; combustion turbine; solar; and wind; (4) Energy conservation measures; and (5) Shared units with other utilities.
We have considered the lengthy record of the case no further “than to determine whether the District Judge abused his discretion in denying the preliminary injunction,” Adams v. Federal Express Corp., supra. Our careful review of the record, including the briefs, appendices, and oral arguments of the parties, reveals that the EIS contains adequate discussion of all of the reasonable alternatives to the proposed construction and operation of Spurlock No. 2. Indeed, it is well settled that only those alternatives that are reasonable need be examined, and as stated by the Eighth Circuit in Robinson v. Knebel, 550 F.2d 422, 425 (8th Cir. 1977):
[*264] The discussion of alternatives need not be exhaustive if the impact statement presents sufficient information for a reasoned choice of alternatives.
See also Concerned About Trident v. Rumsfeld, 555 F.2d 817, 825, 829 (D.C. Cir. 1977); Minnesota Pub. Interest Research Group v. Butz, 541 F.2d 1292, 1300 (8th Cir. 1976); Cady v. Morton, 527 F.2d 786, 797 (9th Cir. 1975); Natural Resources Defense Council v. Callaway, 524 F.2d 79, 93 (2d Cir. 1975); Cummington Preservation Comm. v. FAA, 524 F.2d 241, 244 (1st Cir. 1975); Carolina Environmental Study Group v. United States, 166 U.S.App.D.C. 416, 510 F.2d 796, 801 (1975); Natural Resources Defense Council, Inc. v. Morton, 148 U.S.App.D.C. 5, 458 F.2d 827, 836-37 (1972).
There has been no trial of the merits of the case in the District Court, and the issues remain yet to be determined. We are of the opinion that the plaintiffs have not demonstrated to us that there is a strong or substantial likelihood or probability of success on the merits with regard to the alleged deficiencies in the treatment in the EIS of the alternatives to the proposed action. Nor have plaintiffs demonstrated a probability of success on the merits with regard to the other alleged deficiencies in the EIS such as the alleged failure to address the “cumulative and synergistic impact” which Spurlock No. 2 will have in combination with other existing and proposed power plants in the Ohio River Valley on the air quality of that region.
Furthermore, although we are not unmindful of the claims of potential harm to plaintiffs by the apparent continuation of the construction of Spurlock No. 2, we have also considered the injury that would result to the defendants, in particular EKP, from the issuance of a preliminary injunction because of EKP’s large financial commitments to the project. After carefully balancing the four factors involved in a determination as to whether a preliminary injunction should issue, including the public interest in maintaining adequate energy resources in the EKP service area, we are of the opinion that the District Court did not abuse its discretion in denying the preliminary injunction.
Finally, we note that the District Court in its Conclusion of Law No. 4(a) stated as follows:
(a) the final Environmental Impact Statement issued by the REA relative to Spurlock Unit No. 2, substantially conforms to the requirements of the National Environmental Policy Act and the regulations promulgated by the Council on Environmental Quality 40 C.F.R. 1500.1 et seq.
Plaintiffs contend that the District Court’s use of the term “substantially” applies the wrong standard as it is well established that “strict” compliance with NEPA is required. Environmental Defense Fund v. TV A, 468 F.2d 1164, 1174 (6th Cir. 1972), quoting Calvert Cliffs’ Coordinating Comm. v. AEC, 146 U.S.App.D.C. 33, 449 F.2d 1109, 1112 (1971); Daly v. Volpe, 350 F.Supp. 252, 257-58 (W.D.Wash.1972).
We regard this contention as a play on words. The District Court was not ruling on the merits of the case but only on a motion for preliminary injunction. When the District Court tries the case on its merits and hears the evidence it is probable that the EIS will turn out to be sufficient even under a standard of “strict” compliance. Moreover, it is equally well established that although an agency must have taken “a ‘hard look’ at environmental consequences” this requirement is “tempered by a practical ‘rule of reason.’ ” New York v. Kleppe, 429 U.S. 1307, 1311 & n. 1, 97 S.Ct. 4, 50 L.Ed.2d 38 (1976) (Marshall, J., in chambers) (citing cases). See also Kleppe v. Sierra Club, 427 U.S. 390, 410 n. 21, 96 S.Ct. 2718, 49 L.Ed.2d 576 (1976). As this Court stated in Natural Resources Defense Council, Inc. v. TVA, 502 F.2d 852, 853-54 (6th Cir. 1974):
Although the NEPA is an environmental full disclosure law, its interpretation is, nevertheless, tempered by a rule of reason. See, e. g., Environmental Defense Fund, Inc. v. Corps. of Engineers of the United States Army, 492 F.2d 1123, 1131 (5th Cir. 1974); Environmental De[*265] fense Fund v. Tennessee Valley Authority, 492 F.2d 466, 468, n. 1 (6th Cir. 1974); Natural Resources Defense Council, Inc. v. Morton, supra, 458 F.2d at 834. “[I]t is entirely unreasonable to think that Congress intended for an impact statement to document every particle of knowledge that an agency might compile in considering the proposed action.” Environmental Defense Fund, Inc., supra, 492 F.2d at 1136.
We find no evidence that either REA or EPA acted unreasonably or arbitrarily in connection with the preparation and issuance of the EIS which was completed only after careful and extensive investigation. In this technical field REA and EPA surely had expertise. But no matter how well the EIS has been written, someone later can always find fault with it. We would question whether a perfect EIS has ever been prepared. See Natural Resources Defense Council, Inc. v. TVA, supra at 854; Environmental Defense Fund v. TVA, supra at 468 & n. 1.
We are of the opinion that the findings of fact adopted by the District Judge are supported by substantial evidence and are not clearly erroneous. His conclusions of law were also correct.
We also note the previous ruling of this Court denying appellant’s motion for a preliminary injunction pending appeal.
Accordingly, the judgment of the District Court denying the plaintiffs’ motion for a preliminary injunction is affirmed.
A megawatt is 1,000 kilowatts.
A coal-fired steam electric generation system utilizes the heat formed by the combustion of coal to produce steam. The steam drives a steam turbine which, in turn, drives an electrical generator producing electricity. Other fossil fuels commonly used in such systems are oil and natural gas.
Plaintiffs also alleged noncompliance with the Clean Air Act, 42 U.S.C. §§ 1857 et seq., and the Federal Water Pollution Control Act, as amended, 33 U.S.C. §§ 1251 et seq. On appeal, however, the parties’ arguments have been limited to the alleged noncompliance with the requirements of NEPA and, accordingly, in our decision we deal solely with these alleged violations of NEPA.
In these two decisions, Ohio v. Callaway, supra, and SEC v. Senex Corp., supra, this Court used unfortunate terminology when it stated that one of the four standards or prerequisites for the equitable relief of a preliminary injunction is that there must be a “possibility” of success on the merits. A showing of a mere “possibility” of success would render the test for a preliminary injunction virtually meaningless. Therefore, we reiterate that the plaintiffs must demonstrate a strong or substantial likelihood or probability of success on the merits.
Summer-peaking utilities experience a maximum load or demand on their systems during the summer months. EKP, in contrast, experiences its peak loads in the winter, and thus is a winter-peaking utility.