SAFETY-KLEEN, INCORPORATED (PINEWOOD) v. Bradford W. WYCHE, Chairman, South Carolina Board of Health and Environmental Control; South Carolina Board of Health and Environmental Control; Douglas E. Bryant, Commissioner, South Carolina Department of Health and Environmental Control; South Carolina Department of Health and Environmental Control; Sierra Club; Phil P. Leventis; Citizens Asking for a Safe Environment, Incorporated (CASE); South Carolina Department of Natural Resources; South Carolina Public Service Authority; State of South Carolina; United States of America
Nos. 00-2170, 00-2179 to 00-2182, 00-2213 and 00-2214
United States Court of Appeals, Fourth Circuit
Decided Dec. 19, 2001
274 F.3d 846
Before WIDENER, LUTTIG, and MICHAEL, Circuit Judges.
IV.
To summarize, we conclude that denial-of-medical-care claims asserted by involuntarily committed psychiatric patients must be measured under the “professional judgment” standard established by the Supreme Court in Youngberg v. Romeo, 457 U.S. 307, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982). But even under that standard, the Estate‘s evidence is insufficient to survive the defendants’ motion for summary judgment. We therefore affirm the district court‘s grant of summary judgment in favor of the defendants on the Estate‘s section 1983 claims.
AFFIRMED.
SAFETY-KLEEN, INCORPORATED (PINEWOOD), Plaintiff-Appellant, and Toronto Dominion (Texas), Incorporated, As agent and advisor for secured creditors; TD Securities (USA), Incorporated, As agent and advisor for secured creditors, Intervenors/Plaintiffs, and Official Cоmmittee of Unsecured Creditors of Safety Kleen Corporation, Amicus Curiae, v. Bradford W. WYCHE, Chairman, South Carolina Board of Health and Environmental Control, in his official capacity; South Carolina Board of Health and Environmental Control; Douglas E. Bryant, Commissioner, South Carolina Department of Health and Environmental Control; South Carolina Department of Health and Environmental Control, Defendants-Appellees, Sierra Club; Phil P. Leventis; Citizens Asking for a Safe Environment, Incorporated (CASE); South Carolina Department of Natural Resources; South Carolina Public Service Authority, Intervenors/Defendants-Appellees, and State of South Carolina, Defendant. United States of America, Amicus Curiae.
Safety-Kleen, Incorporated (Pinewood), Plaintiff-Appellee, Toronto Dominion (Texas), Incorporated, As agent and advisor for secured creditors; TD Securities (USA), Incorporated, As agent and advisor for secured creditors, Intervenors/Plaintiffs-Appellees, and Official Committee of Unsecured Creditors of Safety Kleen Corporation, Amicus Curiae, v. Bradford W. Wyche, Chairman, South Carolina Board of Health and Environmental Control, in his official capacity; South Carolina Board of Health and Environmental Control; Douglas E. Bryant, Commissioner,
Safety-Kleen, Incorporated (Pinewood), Plaintiff-Appellee, and Toronto Dominion (Texas), Incorporated, As agent and advisor for secured creditors; TD Securities (USA), Incorporated, As agent and advisor for secured creditors, Intervenors/Plaintiffs, and Official Committee of Unsecured Creditors of Safety Kleen Corporation, Amicus Curiae, v. State Of South Carolina; Bradford W. Wyche, Chairman, South Carolina Board of Health and Environmental Control, in his official capacity; South Carolina Board of Health and Environmental Control; Douglas E. Bryant, Commissioner, South Carolina Department of Health and Environmental Control, in his official capacity; South Carolina Department of Health and Environmental Control, Defendants, and Sierra Club; Phil P. Leventis; Citizens Asking for a Safe Environment, Incorporated (CASE); South Carolina Department of Natural Resources, Intervenors/Defendants, and South Carolina Public Service Authority, Intervenor/Defendant-Appellant, United States of America, Amicus Curiae.
Safety-Kleen, Incorporated (Pinewood), Plaintiff-Appellee, and Toronto Dominion (Texas), Incorporated, As agent and advisor for secured creditors; TD Securities (USA), Incorporated, As agent and advisor for secured creditors, Intervenors/Plaintiffs, and Official Committee of Unsecured Creditors of Safety Kleen Corporation, Amicus Curiae, v. State of South Carolina; Bradford W. Wyche, Chairman, South Carolina Board of Health and Environmental Control, in his official capacity; South Carolina Board of Health and Environmental Control; Douglas E. Bryant, Commissioner, South Carolina Department of Health and Environmental Control, in his official capacity; South Carolina Department of Health and Environmental Control, Defendants, South Carolina Department of Natural Resources; South Carolina Public Service Authority, Intervenors/Defendants,
Safety-Kleen, Incorporated (Pinewood), Plaintiff-Appellee, and Toronto Dominion (Texas), Incorporated, As agent and advisor for secured creditors; TD Securities (USA), Incorporated, As agent and advisor for secured creditors, Intervenors/Plaintiffs, and Official Committee of Unsecured Creditors of Safety Kleen Corporation, Amicus Curiae, v. State of South Carolina; Bradford W. Wyche, Chairman, South Carolina Boаrd of Health and Environmental Control, in his official capacity; South Carolina Board of Health and Environmental Control; Douglas E. Bryant, Commissioner, South Carolina Department of Health and Environmental Control, in his official capacity; South Carolina Department of Health and Environmental Control, Defendants, and Sierra Club; Phil P. Leventis; Citizens Asking for a Safe Environment, Incorporated (CASE); South Carolina Public Service Authority, Intervenors/Defendants, and South Carolina Department of Natural Resources, Intervenor/Defendant-Appellant. United States of America, Amicus Curiae.
Safety-Kleen, Incorporated (Pinewood), Plaintiff, and Toronto Dominion (Texas), Incorporated, As agent and advisor for secured creditors; TD Securities (USA), Incorporated, As agent and advisor for secured creditors, Intervenors/Plaintiffs-Appellants, Official Committee of Unsecured Creditors of Safety Kleen Corporation, Amicus Curiae, v. Bradford W. Wyche, Chairman, South Carolina Board of Health and Environmental Control, in his official capacity; South Carolina Board of Health and Environmental Control; Douglas E. Bryant, Commissioner, South Carolina Department of Health and Environmental Control, in his official capacity; South Carolina Department of Health and Environmental Control, Defendants-Appellees,
Safety-Kleen, Incorporated (Pinewood), Plaintiff, Toronto Dominion (Texas), Incorporated, As agent and advisor for secured creditors; TD Securities (USA), Incorporated, As agent and advisor for secured creditors, Intervenors/Plaintiffs, and Official Committee of Unsecured Creditors of Safety Kleen Corporation, Amicus Curiae-Appellant, v. Bradford W. Wyche, Chairman, South Carolina Board of Health and Environmental Control, in his official capacity; South Carolina Board of Health and Environmental Control; Douglas E. Bryant, Commissioner, South Carolina Department of Health and Environmental Control, in his official capacity; South Carolina Department of Health and Environmental Control, Defendants-Appellees, Sierra Club; Phil P. Leventis; Citizens Asking for a Safe Environment, Incorporated (CASE); South Carolina Department of Natural Resources; South Carolina Public Service Authority, Intervenors/Defendants-Appellees, and State of South Carolina, Defendant. United States of America, Amicus Curiae.
Before WIDENER, LUTTIG, and MICHAEL, Circuit Judges.
Affirmed in part, reversed in part, and dismissed in part by published opinion. Judge MICHAEL wrote the opinion, in which Judge WIDENER joined and in which Judge LUTTIG joined except for part III.A. Judge WIDENER wrote a concurring opinion, and Judge LUTTIG wrote a concurring opinion.
MICHAEL, Circuit Judge.
Safety-Kleen, Inc., a Chapter 11 debtor, filed this adversary proceeding against the South Carolina Department of Health and Environmental Control (DHEC) in an effort to prevent the agency from closing Safety-Kleen‘s Pinewood facility, a commercial hazardous waste landfill. Safety-Kleen appeals the district court‘s order denying the company a preliminary injunction to enjoin DHEC from closing the Pinewood facility. DHEC, in turn, cross-appeals the district court‘s determinations (1) that the Rooker-Feldman doctrine does not bar Safety-Kleen‘s action and (2) that the automatic stay blocks DHEC‘s attempt to require Safety-Kleen to comply with state financial assurance regulations. DHEC also attempts to take an interlocutory appeal from the district court‘s order denying its motion to dismiss Safety-Kleen‘s complaint. Finally, the Official Committee of Unsecured Creditors of Safety-Kleen (“Official Committee“) appeals the denial of its motion to intervene. We hold that (1) Rooker-Feldman does not bar Safety-Kleen‘s action; (2) the district court did not err in denying Safety-Kleen‘s motion for a preliminary injunction; (3) the automatic stay does not apply to DHEC‘s efforts to enforce the financial assurance requirements; (4) DHEC may not appeal the denial of its motion to dismiss; and (5) the Official Committee‘s motion to intervene should have been allowed. As a result, we affirm in part, reverse in part, and dismiss in part.
I.
Safety-Kleen operates the Pinewood facility, one of only twenty commercial hazardous waste landfills in the country. Pinewood is located in Sumter County, South Carolina, and is within 1200 feet of Lake Marion, a popular recreation spot and a sourcе of drinking water for several thousand people. Pinewood began accepting hazardous waste in 1978 and operated under a permit issued by DHEC. DHEC issued the original permit without providing public notice or a hearing. After Congress passed the Resource Conservation and Recovery Act (RCRA),
DHEC scheduled a public hearing and solicited comments on whether and under what conditions Safety-Kleen was entitled to a final permit to operate Pinewood. In July 1989 DHEC staff, in consultation with the EPA, issued a final permit to Safety-Kleen to operate Pinewood. The permit provided that Pinewood had a capacity limit of 2250 acre-feet1 of waste, but it did not specify whether nonhazardous waste counted toward the capacity limit. Safety-Kleen objected to some of the permit‘s conditions and requested a hearing with a DHEC hearing officer.2 Several environmental groups also requested a hearing to
The DHEC hearing officer recommended approval of the agency‘s decision to issue the final permit as modified by the stipulated agreement. The environmental groups asked the DHEC Board to review the hearing officer‘s recommendation. The Board upheld the issuance of the final permit but rejected the stipulated agreement‘s separate allowance for nonhazardous waste. In other words, the Board concluded that Pinewood‘s capacity should be limited to a total of 2250 acre-feet of total waste, whether hazardous or nonhazardous. The Board‘s decision, however, was prospective only. Therefore, any nonhazardous waste stored in Pinewood prior to the Board‘s decision would not be counted against the cap. While Safety-Kleen was not pleased with the Board‘s decision to reject the separate cap for nonhazardous waste, Safety-Kleen estimated that Pinewood would have between four and оne-half to six years of unused space left under the permit.
Both Safety-Kleen and the environmental groups petitioned the Sumter County Court of Common Pleas for judicial review of the Board‘s decision. Safety-Kleen sought reversal of the Board‘s decision to reject the separate cap for nonhazardous waste, and the environmental groups challenged the issuance of the permit for Pinewood. The Court of Common Pleas denied each of the petitions for review, and both sides then appealed to the South Carolina Court of Appeals. The Court of Appeals upheld the Board‘s decision, but with one significant change. See Leventis v. S.C. DHEC, 340 S.C. 118, 530 S.E.2d 643 (App.2000). The court concluded that the rejection of the separate cap for nonhazardous waste would operate retrospectively as well as prospectively. See id. at 660. In other words, any nonhazardous waste stored in Pinewood before the Board‘s decision would count against the total cap. See id. As a result of this decision, Pinewood became immediately full under the permit. Specifically, the combination of the existing nonhazardous and hazardous waste stored at Pinewood exceeded the 2250 acre-feet cap. The Court of Appeals’ decision had dramatic consequences for Safety-Kleen. The instant before the dеcision, Pinewood had a substantial amount of unfilled space, and Safety-Kleen was barred by the stipulated agreement from seeking additional space. The instant after the decision, Pinewood suddenly had no more permitted space. Safety-Kleen promptly petitioned for a writ of certiorari to the South Carolina Supreme Court.
While the petition for certiorari was pending, Safety-Kleen encountered another serious problem, this one relating to the bonds posted by the company to secure certain facility-related obligations. On June 1, 2000, the U.S. Treasury removed Frontier Insurance Company from its list of approved sureties. Frontier was the issuer of the bonds posted by Safety-Kleen to secure the costs associated with Pinewood‘s closure and post-closure maintenance. Safety-Kleen‘s permit and state law require that the surety company issuing the required bonds be among those listed as acceptable by the Treasury. On June 9 DHEC ordered Safety-Kleen to acquire substitute bonds within 18 days or
Four days later, on June 13, the South Carolina Supreme Court denied Safety-Kleen‘s petition for a writ of cеrtiorari to review the Court of Appeals’ decision. The next day DHEC ordered Pinewood to cease accepting waste within 30 days because Pinewood had exhausted all of its permitted space under its existing permit (the “closure order“). Safety-Kleen responded by seeking additional capacity on both a temporary and a permanent basis. DHEC denied the request for temporary authorization to store additional waste. Safety-Kleen‘s request for permanent authorization is currently pending with DHEC.
On July 7, 2000, Safety-Kleen filed this adversary proceeding in bankruptcy court in the District of Delaware, challenging DHEC‘s actions and seeking injunctive relief. The district court granted Safety-Kleen‘s motion for withdrawal of reference and transferred the case to the District of South Carolina, where the Official Committee moved to intervene. The district court in South Carolina denied the Committee‘s motion, but permitted it to participate as amicus curiae.
In its complaint Safety-Kleen asserts that it has a due process right to additional capacity. It also asserts that DHEC‘s attempt to close Pinewood violates the Equal Protection Clause, the First Amendment, the dormant Commerce Clause, and RCRA. As soon as the case was transferred to South Carolina, Safety-Kleen pressed its motion for a preliminary injunction. DHEC, on the other hand, mоved to dismiss Safety-Kleen‘s complaint on the merits and on the ground that the Rooker-Feldman doctrine bars the action. DHEC also sought a determination that the automatic stay did not bar enforcement of the bond order. The district court ruled as follows: it held that Rooker-Feldman did not bar the suit; it denied Safety-Kleen‘s motion for a preliminary injunction; it concluded that the bond order was subject to the automatic stay; it denied DHEC‘s motion to dismiss the suit on the merits, but certified the dismissal question for interlocutory review under
The parties and the Official Committee filed notices of appeal. DHEC, however, failed to file with this court a timely application for permission to appeal the denial of the motion to dismiss. The district court recertified the question for review, and DHEC then filed an application for permission to appeal, which is still pending. After the expiration of the thirty-day injunction, we denied Safety-Kleen an injunction pending appeal.
II.
DHEC argues that the Rooker-Feldman doctrine bars Safety-Kleen‘s suit because the suit would require federal court review of the South Carolina Court of Appeals’ decision. The Rooker-Feldman doctrine holds that “lower federal courts generally do not have [subject-matter] jurisdiction to review state-court decisions.” Plyler v. Moore, 129 F.3d 728, 731 (4th Cir.1997). See also D.C. Ct. of App. v. Feldman, 460 U.S. 462, 482-86, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413, 415-16, 44 S.Ct. 149, 68 L.Ed. 362 (1923). The Rooker-Feldman doctrine precludes “review of adjudications of the state‘s highest court [and] also the deсisions of its lower courts.” Jordahl v. Democratic Party, 122 F.3d 192, 199 (4th Cir.1997). The Rooker-Feldman bar extends not only to issues
Again, DHEC argues that Safety-Kleen cannot succeed on its federal claims unless we reexamine issues decided by the South Carolina Court of Appeals. We disagree. The issue before the South Carolina Court of Appeals was whether and under what conditions Safety-Kleen was entitled to a final permit to operate Pinewood. Specifically, the state court held that Safety Kleen was entitled to a permit allowing for the storage of up to 2250 acre-feet of total waste. Safety-Kleen‘s federal suit assumes that the Court of Appeals correctly decided that its permit is limited to 2250 acre-feet of space for hazardous and nonhazardous waste.3 Safety-Kleen concedes that it has exhausted all of its permitted space. It claims, however, that with all of its permitted space now exhausted, the Constitution and RCRA require DHEC to allow it to store additional waste.
Safety-Kleen‘s claims do not require us to review any issues “actually decided” by the South Carolina Court of Appeals. The Court of Appeals never considered the consequence of Safety-Kleen‘s exhaustion of all of its permitted space. Safety-Kleen‘s claims also do not require us to review any issues “inextricably intertwined” with any matters decided by the Court of Appeals. It is consistent to say that under state law Safety-Kleen has exhausted all of its permitted space and that it still has a federal entitlement to additional capacity. In sum, Safety-Kleen‘s claims do not require us to review the South Carolina Court of Appeals decision, and Rooker-Feldman therefore does not bar this action.
III.
Safety-Kleen argues that the district court erred in denying it a preliminary injunction to enjoin DHEC from enforcing the closure order. First, Safety-Kleen claims that the district court applied the wrong legal standard in evaluating whether it was entitled to a preliminary injunction. Second, it claims that even if the court applied the correct standard, the court nonetheless erred in denying an injunction. We hold that even if the district court applied the wrong legal standard, Safety-Kleen is still not entitled to a preliminary injunction.
A.
Safety-Kleen claims that the district court used the wrong standard in evaluating its likelihood of success on its claims. In evaluating whether to grant a preliminary injunction, a court should consider (1) the likelihood of irreparable harm to the plaintiff if the preliminary injunction
In its order denying a preliminary injunction, the district court outlined the standards applicable in evaluating preliminary injunction motions. The court correctly discussed the interplay between the balance of harm to the parties and the plaintiff‘s likelihood of success. The court concluded that Safety-Kleen would suffer irreparable harm if injunctive relief was denied. The court then said that it was “not convinced that [Safety-Kleen] will likely prevail on the merits of this contrоversy.” Safety-Kleen claims that because the district court concluded that it would suffer irreparable harm, it was not required to make such a strong showing of likelihood of success. Rather, Safety-Kleen argues that it only had to raise a substantial question. We need not reach the question of whether the district court erred in requiring too much of Safety-Kleen on the “likelihood of success” scale. As we will discuss, Safety-Kleen‘s case does not in any event present a substantial question. Therefore, Safety-Kleen cannot meet the standard that it relies upon. Accordingly, even if the district court erred, the likelihood of success factor (considered at the “substantial question” level) would still weigh against the grant of a preliminary injunction.
B.
We turn now to a fuller discussion of whether the district court erred in denying a preliminary injunction. We review the decision to grant or deny a preliminary injunction for an abuse of discretion. See Rum Creek Coal Sales, 926 F.2d at 358. We review factual determinations under a clearly erroneous standard and legal conclusions de novo. See Direx Israel, 952 F.2d at 815. The parties do not dispute the district court‘s finding that Safety-Kleen will suffer decidedly more harm than DHEC if a preliminary injunction is denied. Therefore, we will only discuss whether Safety-Kleen has presented a substantial question and the public‘s interest in the grant or denial of an injunction.
1.
Safety-Kleen asserts that DHEC is prohibited from denying Pinewood additional capacity for several reasons. Safety-Kleen claims that the closure order violates procedural due process, substantive due process, the Equal Protection Clause, the First Amendment, and the dormant Commerce Clause. Safety-Kleen also argues that RCRA pre-empts the order. We discuss Safety Kleen‘s claims in turn.
a.
Safety-Kleen‘s first claim is that its procedural due process rights were violated by the closure order. In order to
Safety-Kleen‘s procedural due process claim hinges on whether it can show that it has an entitlement to additional capacity. Safety-Kleen concedes that it has filled all of its permitted space and that it would operate in violation of state law if it continued to accept waste. It argues, however, that it has a property right to additional capacity. As we will explain, the South Carolina environmental regulatory scheme does not create the entitlement that Safety-Kleen seeks. Safety-Kleen has made requests for additional space under three separate provisions of the South Carolina Hazardous Waste Management Regulations. First, Safety-Kleen requested that DHEC modify its permit to allow for more space. See
Safety-Kleen also requested that DHEC grant a temporary authorization to allow for additional capacity while the permit modification request is pending. See
Finally, Safety-Kleen requested additional space by filing an amendment to a pending permit renewal application. See
The South Carolina environmental regulatory scheme does not create an entitlement to receive immediate additional space. Safety-Kleen nonetheless argues that either its dependence on the permit for its viability as a business or the stipulated agreement is sufficient to give the company a property interest. Safety-Kleen first argues that its dependence on the permit for its viability gives rise to a property interest. To have a property interest in a benefit, a person must have an entitlement to it. See Roth, 408 U.S. at 577. In this case South Carolina has an explicit procedure for acquiring additional space. There is nothing in the South Carolina scheme that allows us to presume that because Safety-Kleen‘s business viability depends upon receiving additional space, the state has implicitly created an entitlement to immediate additional space.
Safety-Kleen also argues that the stipulated agreement creates a property interest. Under the stipulated agreement Safety-Kleen was prohibited from applying for additional space until Pinewood was within three years of reaching its capacity. Pinewood had more than three years of space left the instant before the Court of Appeals’ decision, but was immediately full once the decision was rendered. Safety-Kleen claims that the agreement created an expectancy that it would be allowed to apply for additional space without interruption of its business. Safety-Kleen‘s argument is suspect, however, because the bind created by the South Carolina Court of Appeals decision was foreseeable and avoidable. Safety Kleen had to know that either the DHEC Board or the South Carolina courts might reject the separate cap for nonhazardous waste. Nonetheless, while the permit was being litigated, Safety-Kleen accepted nonhazardous waste in a sufficient quantity that if the separate nonhazardous waste cap was rejected outright, Pinewood would become immediately full under its permit. Safety-Kleen could have avoided this contingency by limiting the amount of nonhazardous waste it accepted. Because this contingency was foreseeable and avoidable, Safety-Kleen cannot claim that it had an expectancy of uninterrupted waste collection.
In order to succeed on its procedural due process claim, Safety-Kleen must show that it has an entitlement to immediate additional capacity. Because Safety-Kleen does not have such an entitlement, its procedural due process claim does not raise a substantial question.
b.
Safety-Kleen‘s second claim is that it has a substantive due process right
c.
Safety-Kleen‘s third claim is that the closure order violates the Equal Protection Clause. It claims that the order is irrational because there is no showing that Pinewood is unsafe. The question is whether the closure order is rationally related to a legitimate state interest. See id. As we have said, under state law DHEC can grant Safety-Kleen additional space only after public notice and comment procedures have been followed. It is rational to cap the amount of waste that an operator can collect and to allow the public an opportunity to comment before additional capacity is granted. Safety-Kleen‘s equal protection claim is therefore without merit.
d.
Safety-Kleen‘s fourth claim is that the closure order was issued in retaliation for its bankruptcy filing and was therefore in violation of the First Amendment right to “petition the Government for a redress of grievances.”
e.
Safety-Kleen‘s fifth claim is that the closure order violates the dormant Commerce Clause. Specifically, Safety Kleen argues that closing Pinewood will unduly burden the interstate market in hazardous waste disposal. Because Safety Kleen does not claim that DHEC has discriminated against interstate commerce in favor of in-state commerce, it must show that DHEC‘s actions are “clearly excessive in relation to the putative local benefits.” Pike v. Bruce Church, Inc., 397 U.S. 137, 142, 90 S.Ct. 844, 25 L.Ed.2d 174 (1970). It does not appear that Safety-Kleen will be able to meet this high standard. See Chambers Med. Techs. v. Bryant, 52 F.3d 1252, 1261-62 (4th Cir.1995) (upholding cap on amount of waste a facility could treat under this standard). The state has a legitimate interest in imposing a cap and in allowing public notice and comment before granting an operator additional space. Safety-Kleen has not shown that the burden of the cap and the opportunity for
f.
Safety-Kleen‘s sixth claim is that RCRA preempts DHEC‘s closure order. RCRA authorizes the states to develop and implement their own hazardous waste management scheme “in lieu of the Federal program.”
In this case the provisions of the South Carolina environmental scheme dealing with the grant of additional space to an operator are identical in all material respects to the EPA‘s RCRA regulations. Compare
2.
We now turn to the question of whether the district court erred in concluding that the public interest weighs against the grant of an injunction. We agree with the district court. As discussed above, South Carolina has a carefully crafted process for granting a waste disposal operator additional space. That process includes the opportunity for public notice and comment. Safety-Kleen seeks to bypass this procedure by demanding immediate additional capacity. The public has a strong interest in the opportunity for notice and comment. First, the notice and comment procedure allows individual citizens and groups that are affected by an expansion in waste operations to participate in the permitting process. If history is any guide, a number of citizens and interest groups will participate in any process for public notice and comment on whether Pinewood‘s capacity should be increased. Second, the notice and comment procedure allows for careful and deliberate consideration of whether it is environmentally safe to allow Safety-Kleen to store additional waste. The Pinewood facility is located in an environmentally sensitive area. The facility is a mere 1200 feet from Lake Marion, a popular recreational spot and a source of drinking water for several thousand people. The facility is adjacent to over 3500 acres of forest and wetlands. The public has a strong interest in ensuring that DHEC carefully considers whether additional capacity is warranted. See Coleman v. PACCAR, Inc., 424 U.S. 1301, 1307, 96 S.Ct. 845, 47 L.Ed.2d 67 (1976) (vacating stay of enforcement of federal motor vehicle safety standard in part because of public‘s strong interest in safety); see also Ark. Peace Ctr. v. Ark. Dep‘t of Pollution Control, 992 F.2d 145, 147 (8th Cir.1993) (staying preliminary injunction in part because of potential environmental harm if an injunction was in force). We agree with the district court that the public interest weighs in favor of denying an injunction against DHEC.
3.
In conclusion, we need not decide whether the district court applied an incorrect legal standard in evaluating Safety-Kleen‘s likelihood of success on its claims. Safety Kleen has not presented a substantial question on any of its claims, and the public has a strong interest in the denial of a preliminary injunction. Accordingly, the district court did not abuse its discretion in denying Safety-Kleen‘s motion for a preliminary injunction.
IV.
DHEC appeals the district court‘s determination that thе bond order (that is, DHEC‘s efforts to enforce the financial assurance regulations) is subject to the automatic stay. DHEC argues that the order is exempt from the automatic stay pursuant to the regulatory exception contained in
When a debtor files for bankruptcy,
The difficulty in applying this exception comes in distinguishing between situations in which the state acts pursuant to its “police and regulatory power” and situations in which the state acts merely to protect its status as a creditor. To make this distinction, we look to the purpose of the law that the state is attempting to enforce. If the purpose of the law is to promote “public safety and welfare,” Universal Life Church, Inc. v. United States (In re Universal Life Church, Inc.), 128 F.3d 1294, 1297 (9th Cir.1997), or to “effectuate public policy,” NLRB v. Edward Cooper Painting, Inc., 804 F.2d 934, 942(6th Cir.1986) (internal quotation marks omitted), then the exception applies. On the other hand, if the purpose of the law relates “to the protection of the government‘s pecuniary interest in the debtor‘s property,” Universal Life Church, 128 F.3d at 1297, or to “adjudicate private rights,” Edward Cooper Painting, 804 F.2d at 942(internal quotation marks omitted), then the exception is inapplicable. The inquiry is objective: we examine the purpose of the law that the state seeks to enforce rather than the state‘s intent in enforcing the law in a particular case. See United States v. Commonwealth Cos. (In re Commonwealth Cos.), 913 F.2d 518, 523 n. 6 (8th Cir.1990); United States v. Grooms, No.Crim. A. 96-00071-C, 1997 WL 578752, at *3 (W.D.Va. Aug. 29, 1997). Of course, many laws have a dual purpose of promoting the public welfare as well as protecting the state‘s pecuniary interest. The fact that one purpose of the law is to protect the state‘s pecuniary interest does not necessarily mean that the exception is inapplicable. Rather, we must determine the primary purpose of the law that the state is attempting to enforce. See Yellow Cab Coop. v. Metro Taxi, Inc. (In re Yellow Cab Coop.), 132 F.3d 591, 597 (10th Cir.1997); Javens v. City of Hazel Park (In re Javens), 107 F.3d 359, 367-68 (6th Cir.1997); EEOC v. Rath Packing Co., 787 F.2d 318, 324 (8th Cir.1986). But see Universal Life Church, 128 F.3d at 1299 (“Only if the action is pursued solely to advance a pecuniary interest of the governmental unit will the automatic stay bar it.” (emphasis added) (internal quotation marks omitted)). Likewise, the fact that the state action requires the debtor to make an expenditure does not necessarily mean that the regulatory exception is inapplicable. See, e.g., Commonwealth Oil Refining Co. v. EPA (In re Commonwealth Oil Refining Co.), 805 F.2d 1175, 1186 (5th Cir.1986) (holding that the EPA could force debtor to comply with environmental regulations even though compliance would cause debtor to spend money).
In considering whether the regulatory exception applies to environmental laws, courts often focus on whether deterrence is the primary purpose of the law. For example, in United States v. Nicolet, Inc., 857 F.2d 202 (3d Cir.1988), the court considered whether the bankruptcy stay applied to the EPA‘s efforts to pursue a CERCLA suit to recover clean-up costs against the debtor. The EPA conceded that the plain language of the regulatory exception did not allow the agency to enforce a monetary judgment. See
Safety-Kleen claims that DHEC‘s attempt to enforce the financial assurance requirements (which form the basis for the bond order) amount to “grant[ing] [the state] a preference not afforded the other creditors in the bankruptcy proceeding.” Appellant‘s Answering & Reply Br. at 39. We disagree. The financial assurance regulations are within the regulatory exception because they serve the primary purpose of deterring environmental misconduct. Stated more positively, the regulations serve to promote environmental safety in the design and operation of hazardous waste facilities. The incentive for safety is obvious: the availability and cost of a bond will be tied directly to the structural integrity of a facility and the soundness of its day-to-day operations. When the EPA promulgated its financial assurance regulations (South Carolina‘s regulations are essentially parallel), it spelled out how the regulations would promote environmental protection at active hazardous waste facilities. Specifically, the EPA emphasized that the financial assurance requirements would give landfill owners and operators “an incentive to locate, design, and operate facilities to minimize closure and post-closure costs” and to “improve operating procedures and reduce the risk of accidents.” Standards Applicable to Owners and Operators of Hazardous Waste Treatment, Storage, and Disposal Facilities; Financial Requirements, 47 Fed.Reg. 15032, 15044-45 (Apr. 7, 1982) (explaining benefits of financial assurance requirements). To put it more bluntly, sloppy “design and operating procedures ... are more likely to be avoided” with the financial assurance requirements and the resulting incentive to reduce bond costs. Id.
As we see it, the primary purpose of South Carolina‘s financial assurance regulations is to deter environmental misconduct аnd to encourage the safe design and operation of hazardous waste facilities. This is a clear exercise of the state‘s regulatory power. Accordingly, we hold that the regulatory exception applies to DHEC‘s issuance and enforcement of the bond order. The bankruptcy stay does not apply to these efforts.
V.
DHEC attempts to appeal the district court‘s order denying its motion to dismiss Safety-Kleen‘s complaint for failure to state a claim. We decline to permit an appeal from this interlocutory order. The district court certified the dismissal question for review under
A district court has the power to recertify a quеstion for review when the
In this case DHEC has not shown excusable neglect. DHEC‘s counsel was simply unaware of the requirement of filing a timely application to the court of appeals. The district court thus abused its discretion in recertifying the question of the denial of DHEC‘s mоtion to dismiss the complaint. As a result, we deny DHEC‘s application for permission to appeal the dismissal question.
VI.
The Official Committee of Unsecured Creditors of Safety-Kleen appeals the district court‘s denial of its motion to intervene. The Official Committee sought to intervene as a matter of right under
VII.
In conclusion, we (1) affirm the determination that Rooker-Feldman does not bar Safety-Kleen‘s action; (2) affirm the denial of Safety-Kleen‘s motion for a preliminary injunction; (3) reverse the determination that the automatic stay bars DHEC‘s efforts to enforce the financial assurance requirements in South Carolina‘s environmental regulations; (4) dismiss DHEC‘s interlocutory appeal from the order denying its motion to dismiss the complaint; and (5) reverse the order denying the Official Committee‘s motion to intervene.
AFFIRMED IN PART, REVERSED IN PART, AND DISMISSED IN PART.
WIDENER, Circuit Judge, Concurring:
While I share the extent of Judge Luttig‘s dissatisfaction with our circuit‘s Blackwelder decision and cases following, even if my reasoning may not be exactly the same as Judge Luttig‘s, I believe that Judge Michael‘s majority opinion correctly relates circuit precedent and affirm my concurrence in that opinion. I am confident that our court en banc will consider the matter as circumstances require.
LUTTIG, Circuit Judge, concurring:
I concur in all but Part III.A of the majority‘s opinion. I do not concur in that part of the court‘s opinion because I have long believed that our decisions in both Blackwelder Furniture Co. v. Seilig Mfg. Co., 550 F.2d 189 (4th Cir.1977), and Rum Creek Coal Sales, Inc. v. Caperton, 926 F.2d 353 (4th Cir.1991), contravene Supreme Court precedents by overvaluing the inquiry into the relative equities of granting and denying a requested injunction to an extent that essentially denies any value whatsoever to the inquiry into the likelihood of success on the merits. Indeed, I believe that these opinions virtually eliminate altogether the inquiry into the likelihood of success on the merits—in doctrine, though, as I explain below, no longer in practice—through their holdings that the balance of equities is largely determinative of the appropriateness of an injunction and that if there is a decided tip of the balance of equities in favor of the plaintiff, then the injunction should be granted upon a showing merely that the issues presented are “fair ground for litigation.”
The Supreme Court has consistently applied the four-part test governing the decision on an injunction (the plaintiff‘s likelihood of success on the merits, the harm to the plaintiff in the absence of the injunction, the harm to the defendant upon grant of thе injunction, and public interest) without ever distinguishing among the four parts as to analytical order, priority, or weight. And it has collectively referred to these undifferentiated parts as “the traditional standard” for injunctions. See Doran v. Salem Inn, Inc., 422 U.S. 922, 931, 95 S.Ct. 2561, 45 L.Ed.2d 648 (1975).
The Supreme Court has never held that the hardships of the plaintiff and the defendant should be weighed first, before any inquiry into the likelihood of success on the merits is undertaken. But see Blackwelder, 550 F.2d at 195 (“[T]he first step in a Rule 65(a) situation is for the court to balance the ‘likelihood’ of harm to the plaintiff against the ‘likelihood’ of harm to the defendant.“).
The Court has never held that the relative hardships are, together, the two principal inquiries of the four. But see Blackwelder, 550 F.2d at 196(“The two more important factors are those of probable irreparable injury to the plaintiff without a decree and of likely harm to the defendant with a decree.“).
It has never held that the importance of the likelihood of success factor varies depending upon the magnitude of the difference between the harm that will be suffered by the plaintiff in the absence of the injunction and the harm that the defendant will suffer if the injunction is granted. But see Blackwelder, 550 F.2d at 195(“[t]he importance of probability of success increases as the probability of irreparable harm diminishes“); id. (explaining that it is only when the relative harms are in “equipoise” that “the probability of success begins to assume real significance“) (quoting with approval West Virginia Conservancy v. Island Creek Coal Co., 441 F.2d 232, 235 (4th Cir.1971)).
The Supreme Court has never held, under any circumstance, that it is sufficient for issuance of an injunction that the plaintiff not have engaged in frivolous litigation. But see Blackwelder, 550 F.2d at 195-96 (explaining that if the plaintiff‘s need for protection outweighs that of the defendant, it “is enough” for issuance of the injunction that the plaintiff “has not embarked on frivolous litigation“) (quoting West Virginia Conservancy, 441 F.2d at 235).
The Court has never even held that, if the balance of hardships strongly favors the plaintiff, then the injunction should ordinarily be granted, provided the questions presented are fair ones for litigation. But see Blackwelder, 550 F.2d at 195(holding that “if a decided imbalance of hardship should appear in plaintiff‘s favor,” it will ordinarily be enough that the plaintiff has raised questions going to the merit of the dispute that are so “serious, substantial, difficult and doubtful as to make them fair ground for litigation“) (quoting Hamilton Watch Co. v. Benrus Watch Co., 206 F.2d 738, 740 (2d Cir.1953)); but compare Blackwelder, 550 F.2d at 195, with Ohio Oil Co. v. Conway, 279 U.S. 813, 49 S.Ct. 256, 73 L.Ed. 972 (1929) (noting only that “[w]here the questions presented by an application for an interlocutory injunction are grave, and the injury to the moving party will be certain and irreparable, if the application be denied ... while if the injunction be granted the injury to the opposing party ... will be inconsiderable, ... the injunction usually will be granted“) (emphasis added).
Much less has the Supreme Court еver held that if the balance of hardships tips in favor of the plaintiff—even decidedly—that the likelihood of success test is entirely displaced by some other formulation. But see Blackwelder, 550 F.2d at 195(holding that “if a decided imbalance of hardship should appear in plaintiff‘s favor, then the likelihood-of-success test is displaced by Judge Jerome Frank‘s famous formulation....“).
And the Court most certainly has never held that if the hardship balance tips in favor of the plaintiff, then no showing whatsoever of the likelihood of success is required. But see Blackwelder, 550 F.2d at 196(holding that if the balance of hardships “is struck in favor of plaintiff,” then the plaintiff “need not show a likelihood of success” on the merits, provided that a “serious” question is presented).
To the contrary of all of the above, barely a year and a half before this court decided Blackwelder, the Supreme Court—in an opinion nowhere even cited or referenced in our Blackwelder decision—discussed and applied the applicable four-factor test, precisely as had the district court whose opinion we criticized and whose judgment we reversed in Blackwelder; did not distinguish among any of the four factors as to their order of
The traditional standard for granting a preliminary injunction requires the plaintiff to show that in the absence of its issuance he will suffer irreparable injury and also that he is likely to prevail on the merits.
Doran v. Salem Inn, Inc., 422 U.S. at 931, 95 S.Ct. 2561; id. at 932, 95 S.Ct. 2561 (“The other inquiry relevant to preliminary relief is whether respondents made a sufficient showing of the likelihood of ultimate success on the merits.“).
And Doran was a full, authored opinion for the entire Supreme Court, written by no less a figure than the present Chief Justice of the United States. This, in stark contrast to the opinion that was little more than the presumptive authority for the standard we adopted in Blackwelder.* That authority, Ohio Oil Co. v. Conway, 279 U.S. 813, 49 S.Ct. 256, 73 L.Ed. 972, was a single-page, per curiam opinion, in a case in which the Court acknowledged that a determination of the likelihood of success on the merits was impossible because the motion for injunction was submitted on the basis of ex parte affidavits which were in conflict as to the material facts. Tellingly, the Supreme Court itself has cited Ohio Oil Co. only a handful of times in the three-quarters of a century since its decision, and it has not done so at all since 1945, over half a century ago.
I believe that we are complacent about, if we did not also adopt, our Circuit‘s total inversion of the correct injunction standard, because of its comparative ease of applicаtion (ease, that is, as compared to the more intellectually rigorous and demanding inquiry into the legal merits of the claims) and the refuge from accountability that it provides us as judges, as a consequence of the fact that we can never be proven wrong in our “balancing” of prospective harms.
Who doubts, for instance, the ease with which we can lean back in our high-back chairs and speculate as to the “harms” that might befall one or the other of the parties, or the public generally, depending upon whether we award or withhold the requested injunction; or the contrast of that ease with the genuine effort required to research and actually read the governing law under the constraints of time, and then methodically apply that law to the often-complicated facts that are presented by injunction requests? By the same token, who would seriously dispute that, whereas the likelihood that a party will succeed on the merits of its claim is objectively ascertainable, and therefore meaningfully reviewable, through the application of neutral principles of reported law to the particular facts of the case, one‘s subjective evaluation of the relative harms that might be suffered, and the policies that will be advanced and impeded, as a result of granting or denying an injunction, can scarcely be subjected to any such scrutiny? How can it be proved that another‘s view of the equities, or of the policy implications, is more correct than mine? It cannot be.
Even if reasons were relevant to such a departure from clear Supreme Court precedent (which, of course, they are not),
The saving grace that I find for our bald departure from the standard repeatedly articulated by the Supreme Court is that our fealty to Blackwelder and Rum Creek Coal has been, at least in recent years, more rhetorical than real, as we have hewed closer and closer to the Supreme Court standard. And even that rhetorical allegiance has noticeably been on the wane. In actual practice, even though not in formal doctrine, we have virtually without exception insisted upon a showing by the plaintiff of the likelihood of success on the merits of his claim before we have either entered an injunction in the trial court or affirmed the trial court‘s entry of an injunction on appeal--and we have required this showing not merely at the threshold but also regardless of whether the balance of harms decidedly favored the plaintiff. Relatedly, we have all but abandoned the instruction that the balancing of harms is the preeminent of the injunction inquiries. And for their part, and to their credit, litigants have not dared to argue their causes even principally, much less alone, on the strength of the equities at stake, whatever they were.
We have returned to the proper standard out of wise recognition that we departed from that standard in Blackwelder and Rum Creek Coal at our peril, and that the Supreme Court was not likely to long tolerate our defiance. That we have done so is good. However, for the integrity of the law and for the public respect that follows only integrity, I believe that we should also reestablish the doctrinal symmetry between our caselaw, on the one hand, and our practice and Supreme Court precedent, on the other, that was jettisoned with our decisions in Blackwelder and Rum Creek Coal. I do not believe that the instant case presents the appropriate opportunity for this realignment, but I would like to think that we would welcome such an opportunity should one present itself.
UNITED STATES of America, Plaintiff, United States Department of Justice, Appellee, v. Rene ORTLIEB, III, Defendant, Michael S. Fawer, Appellant.
MICHAEL
UNITED STATES CIRCUIT JUDGE