Environmental group failed to show irreparable harm from PFAS discharges

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The 4th U.S. Circuit Court of Appeals vacated a preliminary injunction that barred a chemical manufacturer from discharging a PFAS compound in excess of limits contained in its Clean Water Act permit, holding that the plaintiff failed to establish the irreparable harm necessary for injunctive relief.

The plaintiff brought a citizen suit alleging that the defendant repeatedly exceeded permit limits governing discharges of hexafluoropropylene oxide dimer acid, commonly known as HFPO-DA, from its West Virginia facility into the Ohio River. The river serves as a drinking water source for nearby communities. The U.S. District Court granted a preliminary injunction requiring the defendant to comply immediately with permit limits and take whatever operational measures were necessary to prevent future exceedances.

The 4th Circuit first concluded that the plaintiff had established Article III standing at the preliminary injunction stage. The court found that one of the plaintiff’s members testified she avoided boating on portions of the Ohio River because of concerns about PFAS contamination and permit violations. Relying on established environmental standing principles, the court held that the loss of recreational use constituted a sufficient injury traceable to the alleged violations and capable of being redressed through injunctive relief.

The court nevertheless determined that the plaintiff failed to satisfy the separate requirement of demonstrating likely irreparable harm. It rejected the district court’s conclusion that harm to the public could satisfy that requirement, explaining that a plaintiff must show that it is likely to suffer irreparable injury itself. The court also held that ongoing Clean Water Act violations do not create a presumption of irreparable harm and that traditional equitable principles continue to govern requests for injunctive relief.

Finally, the court concluded that the district court clearly erred in finding likely health-related harm. According to the panel, the expert testimony established only that exposure to HFPO-DA might increase health risks, not that injury was more likely than not. Because the record did not support a finding that irreparable harm was likely, the district court abused its discretion in issuing the injunction.

The 26 page opinion is West Virginia Rivers Coalition Inc. v. The Chemours Co. FC LLC, Lawyers Weekly No. 001-193-26.