Following a long history of environmental contamination and remediation efforts, the New Hampshire Department of Environmental Services (DES) brought an action against a landowner seeking an order that he apply for certain state permits and take additional action to monitor and improve the quality of groundwater at his site. This type of relief is “equitable” in nature, and asks the court to issue a preliminary and permanent “injunction.” That is, the plaintiff is seeking an order that would control the defendant’s behavior, as opposed to imposing a monetary fine or paying money as damages. A “preliminary injunction” is a temporary order that preserves the status quo until there can be a full hearing on the merits. A “permanent injunction” is a final remedy that may remain in place for years into the future, or until the underlying facts change. The defendant objected to the request, saying that he had been discharged from these obligations in a bankruptcy proceeding.
At an initial hearing, the trial court heard from the parties, and ordered the legal issues to be briefed, and certain information to be provided as discovery. The state filed a detailed legal brief, but the defendant provided only a short legal argument. Without further hearing, the court accepted the state’s arguments and entered both a preliminary and a permanent injunction ordering the defendant to take the steps requested by the state. The defendant appealed saying that the permanent injunction had been improperly issued prior to a full hearing on the merits, and further that the state had not provided sufficient evidence to justify a preliminary injunction.
The Supreme Court reversed the award of the permanent injunction, finding that the defendant was entitled, as a matter of due process, to have an opportunity to fully develop his evidence and argument. Since the court had not provided an opportunity for a full hearing, the permanent injunction could not be sustained. The court sustained the award of the preliminary injunction, and provided a helpful discussion of the information that must be provided to support this type of temporary relief. This discussion is useful to municipalities considering whether or not to seek injunctive relief in land use cases, or any other case where the remedy sought is to change a person’s behavior as opposed to imposing a monetary fine or damages.Justice Galway noted that a preliminary injunction should not be issued unless the plaintiff could show the following things:
An immediate danger of irreparable harm to the party seeking relief;
That there is no adequate remedy at law; and
The party seeking relief will likely succeed on the merits at a full hearing.
The first element may be shown by any condition that violates a statute designed to protect the public health or safety. That is, when the language of a statute authorizes injunctive relief, it is presumed that the legislature has found that there is a danger of irreparable harm to the public. The municipality does not need to show an actual injury to a person, the fact that irreparable injury will result in the absence of an injunction may be presumed. The holding in this case should make it easier for municipalities to satisfy this element in future cases.
The second element may be shown by efforts to obtain voluntary compliance, past imposition of fines, or administrative penalties, or the possibility that violations will continue or recur. Thus, except in cases where there is a real and immediate danger to public health or safety that can be demonstrated by injury to a person or property, attempts to obtain correction through discussion and imposition of legal penalties should be tried prior to seeking the extraordinary relief of an injunction.
The third element is left to the discretion of the court, but in this case the state presented a complete and well reasoned legal argument, while the defendant provided only a minimal written discussion of its defense. The lesson is that even requests for temporary relief require substantial preparation and a full consideration of the legal reasoning that underlies the request for relief.
An injunction is a powerful legal remedy, and should be sought only after a full discussion of the legal issues with municipal counsel.