We are considering plaintiff, Pennsy Supply, Inc.'s, motion for a preliminary injunction against defendant, Susquehanna River Basin Commission. The Commission is the creation of an interstate compact between the United States, Maryland, New York and Pennsylvania, and coordinates the water-resource efforts of the federal government and the three states in the Susquehanna River Basin. Pennsy operates quarries in the Basin and uses Basin water for its operations.
In December 2006, the Commission adopted new regulations to manage the Basin's water resources, 71 Fed. Reg. 78570-01 (Dec. 29, 2006)(to be codified at 18 C.F.R. Parts 806, 807, and 808). In response, Pennsy filed this lawsuit, alleging, among other things, that the Commission violated its own rules and the Due Process Clause in the way it adopted the new regulations. It seeks declaratory and injunctive relief against their enforcement. Pennsy also wants to make this a class action to represent all users of Basin water.
On January 17, 2007, a hearing was held on the motion for preliminary injunctive relief. The parties presented no testimony but did submit a stipulation of facts and exhibits. We will deny the motion on the ground that Plaintiff has failed to show irreparable injury, an essential showing for obtaining a preliminary injunction.
Preliminary injunctive relief is an "'extraordinary remedy . . . which should be granted only in limited circumstances."" South Camden Citizens in Action v. New Jersey Dep't of Envtl. Prot., 274 F.3d 771, 777 (3d Cir. 2001) (quoted case omitted).
To obtain a preliminary injunction, the moving party must demonstrate: (1) the reasonable probability of eventual success in the litigation, and (2) that it will be irreparably injured if relief is not granted. Moreover, the district court also should take into account, when relevant, (3) the possibility of harm to other interested persons from the grant or denial of the See In re Arthur Treacher's Franchisee Litig. injunction, and (4) the public interest. , 689 F.2d 1137, 1143 (3d Cir. 1982). Thus, "a failure to show a likelihood of success or a failure to demonstrate irreparable injury must necessarily result in the denial of a preliminary injunction." Id. at 1143.
Id. "Moreover, establishing a risk of irreparable harm is not enough. A plaintiff has the burden of proving a clear showing of immediate irreparable injury." Hohe v. Casey, 868 F.2d 69, 72 (3d Cir. 1989) (internal quotation marks and brackets omitted)(quoted case omitted).
Plaintiff argues the following constitutes irreparable injury: (1) the impact on Plaintiff's day-to-day business operations from the improper withholding of water withdrawal permits (doc. 3, Pl.'s Br. in Supp. at p. 26); (2) the impairment of Plaintiff's "business relations with customers" from the refusal to grant water withdrawal permits, "thus jeopardizing Plaintiff's future presence in the Basin" and "[c]onceivably . . . grind[ing] to a halt most business operations that rely on water to continue" (id. at p. 27); (3) "exposure to daily, accumulating costs for access to resources that it owns and that are not within the authority of the Commission to regulate" (id.); (4) injury from the constitutional claims here, the alleged due-process, commerce-clause and takings claims, that presumptively establish irreparable harm (doc. 20, Pl.'s Reply Br. at p. 3); and (5) the inability to recover the interim costs of compliance with the new regulations if the regulations are found invalid since under the compact the Commission is not an agency that can be sued for the purposes of the Federal Tort Claims Act, see 28 U.S.C. § 1346(b)(1), or the Tucker Act. Id., § 1346(a)(2).
We deal first with the argument that claims of constitutional violations are presumptively considered irreparable injury. In Hohe, supra, the Third Circuit rejected that idea. Hohe dealt with the First Amendment and the plaintiffs there, state employees, requested a preliminary injunction prohibiting the collection of fair-share union dues so that they would not be forced to subsidize the union's ideological activities. All of the fees were being escrowed. In rejecting the request, the Third Circuit noted that:
It is well-established that "[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury." Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 2690, 49 L.Ed.2d 547 (1976). But the assertion of First Amendment rights does not automatically require a finding of irreparable injury, thus entitling a plaintiff to a preliminary injunction if he shows a likelihood of success on the merits. See Rushia v. Town of Ashburnham, 701 F.2d 7, 10 (1st Cir. 1983). Rather the plaintiffs must show "a chilling effect on free expression." Dombrowski v. Pfister, 380 U.S. 479, 487, 85 S.Ct. 1116, 1121, 14 L.Ed.2d 22 (1965). It is "purposeful unconstitutional [government] suppression of speech [which] constitutes irreparable harm for preliminary injunction purposes." Goldie's Bookstore v. Superior Ct., 739 F.2d 466, 472 (9th Cir. 1984) . . . Constitutional harm is not necessarily synonymous with the irreparable harm necessary for issuance of a preliminary injunction. See City of Los Angeles v. Lyons, 461 U.S. 95, 112-13, 103 S.Ct. 1660, 1671, 75 L.Ed.2d 675 (1983).
Accordingly, the court refused the injunctive relief sought because the workers' interest in not contributing to the ideological causes of the union was adequately protected by an escrow of all the fair-share fees deducted. Based on Hohe, we likewise reject Plaintiff's claim here that ...