                                                                                  [PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT                         FILED
                                                                     U.S. COURT OF APPEALS
                                                                       ELEVENTH CIRCUIT
                                                                            07/14/99
                                                                        THOMAS K. KAHN
                                         No. 98-9011                         CLERK



                           D. C. Docket No. 5:97-CV-78-3(HL)

SIERRA CLUB, a public-interest corporation,

                                                                          Plaintiff-Appellant,

                                             versus

GEORGIA POWER COMPANY,

                                                                         Defendant-Appellee.



                      Appeal from the United States District Court
                          for the Middle District of Georgia

                                       (July 14, 1999)


Before MARCUS, Circuit Judge, HILL, Senior Circuit Judge, and FERGUSON*,
District Judge.

______________
*Honorable Wilkie D. Ferguson, Jr., U. S. District Judge for the Southern District of Florida,
sitting by designation.

PER CURIAM:
      This is an interlocutory appeal from the district court’s denial of Appellant

Sierra Club’s motion for a preliminary injunction pursuant to 28 U.S.C. § 1292(a).

The preliminary injunction would have directed the Georgia Power Company

(Georgia Power) to comply with the pollutant discharge limits of its National Pollutant

Discharge Elimination System permit (the permit) issued by the Environmental

Protection Agency.

      Under the permit, Georgia Power is authorized to discharge heated wastewater

from its coal-fired electricity generation facility (the plant) into Lake Sinclair near

Milledgeville, Georgia, subject to the numerical temperature limits of “90 degrees

Fahrenheit or 5 degrees above intake temperature.” Sierra Club contends that Georgia

Power can achieve this heat limit by reducing the amount of power generated at the

plant. Georgia Power contends that it cannot do so without, contrary to the public

interest, impacting upon the level of power generated throughout its entire electrical

system.

      Following the presentation of evidence and argument at hearing, the district

court agreed with Georgia Power. It concluded that the potential harm to the general

public from a reduction of electrical power or thermal loading into the lake,

outweighed the potential injury to lakeside residents if the plant continued to operate




                                          2
at its current output pendente lite. Accordingly, the district court denied Sierra Club’s

motion for a preliminary injunction.

      The grant or denial of a preliminary injunction is a decision within the sound

discretion of the district court. United States v. Lambert, 695 F.2d 536, 539 (11th Cir.

1983)(citation omitted). On appeal from the grant or denial of a preliminary

injunction, we do not review the intrinsic merits of the case. Id. “It is the function of

the trial court to exercise its discretion in deciding upon and delicately balancing the

equities of the parties involved.” Id., citing Tatum v. Blackstock, 319 F.2d 397, 401-

02 (5th Cir. 1963). A preliminary injunction is a “drastic” remedy, and we will

disturb the denial of a preliminary injunction only if the district court abused its

discretion. Crochet v. Housing Authority of Tampa, 37 F.3d 607, 610 (11th Cir. 1994)

citing Café 207, Inc. v. St. Johns County, 989 F.2d 1136, 1137 (11th Cir. 1993).

      There is adequate evidence in the record to support the district court’s ruling

that the grant of a preliminary injunction would be adverse to the public interest. See

Lambert, 695 F.2d at 539. It is apparent from the record that the only way to reduce

thermal loading to the lake (during the summer of 1998, when meteorological

conditions throughout the southeastern United States were much warmer than normal)

would have been substantially to reduce or eliminate electrical generation, to the great

disadvantage of the general public. Further evidence reflects that fish kills resulting


                                           3
from warm lake temperatures were temporary, not significant, and limited to a small

percentage of the lake. Expert testimony concluded that the loss of fish “should not

hurt the health of the lake in general” and that in the thirty years of plant operation,

fish kills occurred in only six of those years, and then generally only during summer

heat waves of extreme temperature. In order to meet Sierra Club’s demands, the plant

would have to be shut down during extremely hot days, when demand for power is

greatest.

       We do not review the intrinsic merits of the case. Lambert, 695 F.2d at 539.

It is the function of the district court to exercise its discretion and delicately to balance

the equities of the parties involved. Id. The district court was correct in concluding

that a steady supply of electricity during the summer months, especially in the form

of air conditioning to the elderly, hospitals and day care centers, is critical.1

       Under these circumstances, we certainly cannot state that the district court

abused its discretion in declining to issue a preliminary injunction. We affirm the

judgment of the district court.

   AFFIRMED.




       1
         A plan has for some time been proposed by Georgia Power to build a forty million
dollar cooling tower to prevent the risk of future violations. This proposed relief is under review
by national and state administrative agencies.

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