In West Virginia Rivers Coalition, Inc., et al. v. The Chemours Company FC, LLC, the Court of Appeals for the Fourth Circuit vacated a district court decision to preliminarily enjoin The Chemours Company (“Chemours”) from discharging hexafluoropropylene oxide dimer acid (“HFPO-DA”)—a Chemours-created PFAS chemical— from its Washington Works facility in excess of its permitted limit.  In doing so, the Fourth Circuit took no issue with the district court’s standing analysis, but determined the district court made legal and factual errors in its irreparable harm determination.

Judge Quattlebaum, writing for a unanimous panel, began with a brief overview of the primary activities at the Washington Works facility in Parkersburg, WV.  That facility—previously run by E.I. DuPont de Nemours & Company—manufactures high-performance polymers, frequently with the assistance of processing aids.  These processing aids improve the manufacturing process.  While perfluorooctanoic acid (“PFOA”) was previously used as a processing aid, it was phased out and replaced with HFPO-DA around 2013.

Chemours has a permit that authorizes its discharge of HFPO-DA to the Ohio River at two outfalls, with limits of 2,300 parts per trillion (ppt) of HFPO-DA per day at both outfalls, as well as average monthly concentration limits of HFPO-DA of 1,100 ppt at one outfall and 1,400 ppt at the other.  The limits were set by West Virginia with reference to the standard it determined was necessary to protect human health and the environment.  There was no factual dispute that Chemours had violated these limits for HFPO-DA on multiple occasions since 2022.

In December of 2024, Plaintiff West Virginia Rivers Coalition, Inc. (“Rivers Coalition”) sued Chemours under the Clean Water Act’s citizen suit provision, alleging a continuing violation of the HFPO-DA limits in its permit, and moved for a preliminary injunction to restrain Chemours from violating its permit.  The district court granted the preliminary injunction, finding Rivers Coalition has demonstrated associational standing through one of its members and had made the necessary showing for all factors under Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7 (2008) (the “Winter factors”), including irreparable harm.  Chemours appealed.

On the issue of standing, the panel found no error with the district court’s determination that there was a “substantial likelihood” that Rivers Coalition had standing.  Of the three requirements of associational standing, the only one at issue on appeal was whether the River Coalition’s member, Charlise Robinson, would have had standing to sue in her own right.  Ms. Robinson made representations that she “refrains from boating” on because of the unpermitted HFPO-DA discharges into the Ohio River, that she previously boated on the River, and that she boats on other bodies of water.  Though the panel expressed some skepticism of both associational standing and the demonstration of standing by avoidance, it concluded that Ms. Robinson had standing because of the “direct nexus” between her and the area of environmental impact.  Specifically, Chemours violated its permit with respect to HFPO-DA and one of the designated uses of the Ohio River near where Ms. Robinson lives is “water contact recreation.”

The panel only addressed one of the Winter factors—irreparable harm—and found the district court made three legal errors in finding that the Rivers Coalition had made the requisite showing of irreparable harm.  First, the district court improperly considered harm to the public in its irreparable harm analysis.  This was error because public harm is a separate Winter factor, so considering it in the irreparable harm analysis improperly double-counts it.  Second, the district court concluded that a continuing violation of federal environmental law creates a presumption of irreparable harm.  The panel found the statutory scheme of the Clean Water Act foreclosed this finding, as Congress had not created such a presumption (though it has done so in other contexts).  Therefore, the Winter factors should be applied normally.  Third, the district court determined that an excess discharge of HFPO-DA “clearly causes irreparable harm.”  In finding this was error, the panel stated that “just as violating a permit doesn’t give rise to a presumption of irreparable harm, violating a permit cannot automatically constitute irreparable harm.”  Rather, the party seeking a preliminary injunction must show irreparable harm to itself. 

With respect to this final legal error, the panel concluded the district court’s factual determination that Ms. Robinson has shown she would suffer irreparable harm without the preliminary injunction was clear error.  Ms. Robinson was required to show that irreparable harm was likely, meaning “more likely than not,” and the panel found the expert testimony undergirding this showing in the record only “made harm likelier, not more likely than not.”  Ultimately, the panel found that upon questioning, Ms. Robinson’s expert testified that the effects of HFPO-DA on Ms. Robinson could not be determined based on the amount of HFPO-DA to which she was exposed, precluding a finding that Ms. Robinson would suffer irreparable harm without an injunction. 

The Fourth Circuit’s decision offers critical guidance as to the showing a party must make in order to demonstrate the irreparable harm required to obtain a preliminary injunction.  Without clear evidence that it is more likely than not that the party itself will suffer irreparable harm absent court action to enjoin the conduct, a preliminary injunction should not issue.

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