This paper argues that, while courts have wide discretion in issuing bonds on the enjoining party when issuing an injunction, a party’s ability to pay implicates a critical due process right that courts must consider when exercising that discretion. Courts of all levels have affirmed the due process right to be free of costs that inhibit justice. The Supreme Court has explained that “a cost requirement, valid on its face, may offend due process because it operates to foreclose a particular party’s opportunity to be heard.”1 This right has been extended to protect against cost prohibitive bonds and specifically in National Environmental Policy Act (hereinafter “NEPA”) cases. This paper argues this precedent should be expanded to cases where local, grassroots, non-profit, or community-based organizations have limited financial means and a bond—beyond a nominal bond—would limit or foreclose that party’s opportunity to access justice.

To exemplify this, this paper explores a case study in which a prohibitively expensive bond could have betrayed constitutional principles of due process: In South Minneapolis, a community organization—the East Phillips Neighborhood Institute (hereinafter EPNI)—sought an injunction on the City of Minneapolis’ plans to demolish a commercial building in their neighborhood. That demolition would have unearthed decades of buried arsenic, threatening the neighborhood’s air, water, and soil. The District Court initially sought to impose a $300,000 bond on EPNI as a security to cover “costs and damages as may be incurred or suffered by [the City if it were] . . . found to have been wrongfully enjoined.”2 This was more than triple the amount EPNI had in its bank account at the time. This paper argues that consideration of a party’s financial status, under both federal constitutional law and Minnesota state law, when assessing bonds related to injunctive relief is not only permissible but required. Grassroots and local organizations serve a vital role in safeguarding our communities, and it betrays fundamental principles of due process if such organizations are not able to access the courts due to excessively high bonds.