IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

PLAINTIFFS' REPLY TO DEFENDANTS' OPPOSITION TO
MOTION FOR PRELIMINARY INJUNCTION

   Plaintiffs hereby reply to Defendants' June 25, 2001 Opposition to Plaintiffs' Motion for Preliminary Injunction, which was filed June 15, 2001. A hearing on this motion has been set for 2:30 p.m. on Friday, June 29, 2001. For the reasons set forth herein and in Plaintiffs' motion for injunction, the EPA Defendants should be preliminarily enjoined from requiring the submission of Form R data under the Final Rule (64 Fed. Reg. 58667 (Oct. 29, 1999)) and from publicly disclosing any such data already submitted to EPA.

ARGUMENT

I. Injunction Standard

     Although the parties basically agree that the four factors supporting injunction "interrelate on a sliding scale", it is noteworthy that Defendants reach back to 1969 in search of a less flexible rule. The case of District 50 United Mine Workers of Am. v. International Union, United Mine Workers of Am., 412 F.2d 165, 167 (D.C. Cir. 1969), is unremarkable, however, except perhaps as a step in the development of the familiar four-prong test enunciated in Washington Metropolitan Area Transit Comm'n v. Holiday Tours, Inc., 559 F.2d 841, 483 (D.C. Cir. 1977).

     Significantly, Defendants do not challenge Plaintiffs' key point with respect to the modern standard -- that a party seeking a preliminary injunction is no longer required to make a clear showing of irreparable harm. See Mylan Pharms., Inc. v. Thompson, 139 F. Supp. 2d 1, 2001 WL 273073 (D.D.C. 2001) (Urbina, J.).¹ 

II. Likelihood of Success on the Merits

     Defendants again fail to raise any question of fact regarding their Paperwork Reduction Act violation, and their discussion of Plaintiffs' PRA claim adds nothing to previous briefing.²  Defendants do correctly observe, however, that "the Court's decision of the pending Motion to Dismiss the First Claim of the Amended Complaint would also determine the outcome of plaintiffs' Motion for a Preliminary Injunction." Def. Opp. at 3 n. 4. In that a ruling for Plaintiffs on Defendants' motion to dismiss is appropriate, so too is a ruling on Plaintiffs' motion for preliminary injunction.

III. Irreparable Harm

    In their recitation of injunction cases holding that various percentages of business losses do not constitute irreparable harm, Defendants entirely ignore Plaintiffs' argument that whatever business losses Plaintiffs will suffer as a result of Defendants' actions here will be irreparable. Unless -- perhaps through their argument -- Defendants are impliedly waiving sovereign immunity, any subsequent suit for monetary relief against the federal government will be impossible. Plaintiffs therefore have no vehicle for the recovery any of economic injury they suffer, regardless of quantum, and such injury is by definition irreparable. Ironically, Defendants' quotation to Supreme Court precedent makes this point by sharp contrast. See Sampson v. Murray, 415 U.S. 61, 90 (1974) ("the temporary loss of income, ultimately to be recovered, does not usually constitute irreparable injury.") (emphasis added).

    Defendants' attempt to use past customer behavior as evidence that the new TRI reporting would have no additional adverse effect on Plaintiffs completely misses the point. Plaintiffs did supply the Court with evidence that purchasers of Plaintiffs' products had switched to other products in the past based on their perception of a linkage between Plaintiffs' products and alleged dioxin hazards. In Wisconsin Gas Co. v. FERC, 758 F.2d 669 (D.C. Cir. 1985), however, the D.C. Circuit acknowledged that an injunction is appropriate, inter alia, where "[t]he movant provide[s] proof that the harm has occurred in the past and is likely to occur again". 758 F.2d at 674. Here, previous customer actions demonstrate that the prospect harm to Plaintiffs from unfair stigmatization in the minds of new or additional customers is far from remote.³ 

    Defendants also disregard completely the point that Defendants' deprivation of Plaintiffs' procedural rights has effected a separate irreparable harm. See Community Nutrition Inst. v. Butz, 420 F. Supp. 751, 757 (D.D.C. 1976) ("the harm suffered by those who would otherwise participate in an agency rulemaking . . . is irreparable when the agency fails to afford them their rights to such participation").⁴ 

    Defendants' contention that the public will not be confused by the reporting of non-TEQ data, and that Plaintiffs thus will not be harmed, is both far-fetched and disingenuous. It is far-fetched to rely upon the public to engage in the elaborate calculations Defendants describe -- i.e., determining the volumes of each separate compound released by reference to the separately reported "distribution" of releases; looking up the TEF for each compound on various websites; and multiplying the releases by the TEF for each compound. It is disingenuous on EPA's part (i) not to accept responsibility for the public's having to undertake the above laborious task in order even arguably to make sense of the new TRI data, and (ii) to assert that Plaintiffs are capable of correcting any confusion where there would have been no confusion in the first instance but for the agency's own substantively suspect, and procedurally invalid, reporting rule.

    Even more disingenuous, however, is Defendants' feigned exasperation at Plaintiffs' so-called "delay" in seeking injunctive relief here. As Defendants are well aware, the parties agreed to an effective stay of the case until the Court had ruled on Defendants' motion to dismiss the first cause of action. See Order entered June 20, 2000. In keeping with that agreement, Plaintiffs have simply deferred what might well have been unnecessary briefing until the point where such briefing became absolutely necessary. Had Plaintiffs filed their motion for injunction substantially earlier, Defendants surely would have argued that the motion was premature, and perhaps unnecessary, in light of the Court's Order and the parties' agreement. Moreover, Defendants have had the full time provided under LCvR 65.1(c) to file their opposition, and indeed even a three-day extension of time.⁵  Plaintiffs should not be penalized for any allegedly "inexcusable" delay.⁶ 

IV. Public Interest

      Plaintiffs do not challenge EPA's good faith in attempting to adopt a final rule that would fill in what the agency perceives as "significant gaps in the picture the TRI data provides". However, Plaintiffs do question the benefit to the public of rushing into effect a rule that requires the public, in order to make sense of the new data, to undertake the complex calculations Defendants themselves have described (Def. Opp. at 9).

      As importantly, Plaintiffs question seriously the impact that EPA's actions here may have on future rulemaking in which agencies are "inconvenienced" by the requirements of the Paperwork Reduction Act. If an agency may sidestep this important part of the rulemaking process by submitting an empty shell of an information collection request to OMB, as was done in this case, then what is the purpose of the PRA?

CONCLUSION

For the foregoing reasons, Plaintiffs' motion for preliminary injunction should be granted.

Dated: June 26, 2001

OF COUNSEL:
W. Caffey Norman
DC Bar No. 269639
Patton Boggs, LLP
2550 M Street, N.W., 5^th Fl.
Washington, D.C. 20037
h: (202) 457-5270
fax: (202) 457-6315

ENDNOTES:

¹ Defendants’ citation to other dated authority throughout their brief is hardly more enlightening. In Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 506-507 (1959), for example, the Supreme Court held that only under the most imperative circumstances can a right to jury trial of legal issues be lost through prior determination of equitable claims.