Judicial enforcement of federal environmental statutes has resulted in some uncertainty over the extent of the discretion enjoyed by the courts in fashioning equitable remedies. Some courts have insisted that where they are faced with a clear violation of a statute containing a flat ban on or a mandatory precondition to an activity the court must enjoin the activity pending compliance. Others, apparently the majority, have held that while injunctions are not mandatory, there is a presumption in favor of furthering the statutory purposes. Thus, when deciding whether to grant or deny an injunction, the court must given extra weight to those purposes in balancing the competing interests.

The Supreme Court recently shed new light on the question. In Weinberger v. Romero-Barcelo,¹ the Navy had violated the Federal Water Pollution Control Act (FWPCA)² by failing to obtain a national pollutant discharge elimination system (NPDES) permit before "discharging" bombs and other ordnance into the waters of Puerto Rico. The Court refused to follow a per se rule that a violation of the statute must be immediately enjoined. Instead, looking to the available remedies under the Act and the nature of the overall regulatory scheme, it decided that Congress had preserved the federal courts' equitable discretion. Unfortunately, the Court had no occasion to identify all the factors that should be considered in balancing the competing interests, nor to elaborate on the details of the balancing process.