Supreme Court Declares Injunctions Optional for FWPCA Violations

F. L. McChesney

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-Barcelo¹ 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.

Background

In the early 1940s, the United States Navy acquired title to Vieques, a small island near Puerto Rico, which is currently part of a large military complex known as the Atlantic Fleet Weapons Training Range. Since 1970 the Navy has conducted military training operations on the island and in surrounding waters. The Navy's operations sparked substantial local opposition.In 1978, the Governor of Puerto Rico, other Commonwealth officials, and several private citizens sought to enjoin the Navy's use of Vieques for weapons training, alleging harm to residents of Vieques, the fishing and agriculture industries, certain endangered species, and several historic sites. They claimed that the Navy had violated over a dozen federal and state statutes, executive orders, and the Constitution.³

The district court, in Barcelo v. Brown,⁴ held that the Navy violated the FWPCA by discharging ordnance into navigable waters without first obtaining an NPDES permit under § 402 of the FWPCA.⁵ Section 301, the court observed, contains a flat prohibition on "the discharge of any pollutant by any person" unless the discharge is covered by a permit.⁶ Though it ordered the Navy to apply for such a permit immediately, the court did not enjoin its training activities. In determining the appropriate remedy for the violation, the court observed that injunctive relief is an extraordinary remedy that is not to be granted casually. Rather, under the standards set out by the Supreme Court in Hecht Co. v. Bowles,⁷ the relief afforded should depend on a balancing of equities. It found that injunctive relief was not appropriate since the Navy's activities were causing no appreciable environmental harm.⁸ In addition, an injunction would "cause grievous, and perhaps irreparable harm, not only to Defendant Navy, but to the general welfare of this Nation."⁹

The First Circuit reversed,¹⁰ ruling that the district court erred in undertaking a traditional balancing of the competing interests. It compared the FWPCA's flat prohibition against unpermitted discharges to the Endangered Species Act's (ESA's) prohibition against government activity that will harm the critical habitat of endangered species. Following the Supreme Court's interpretation [12 ELR 10061] of the ESA in TVA v. Hill,¹¹ the First Circuit explained that the courts are not free to balance the equities where the permit requirement has been violated since Congress has already struck a balance among the relevant concerns by prohibiting the "discharge of any pollutant" without a permit.

Whether or not the Navy's activities in fact harm the coastal waters, it has an absolute statutory obligation to stop any discharges of pollutants until the permit procedure has been followed and the Administrator of the Environmental Protection Agency, upon review of the evidence, has granted a permit.¹²

The First Circuit found it irrelevant that the district court found no substantial environmental harm caused by the Navy's activities, stating that it is the Environmental Protection Agency's (EPA's) role to determine if the Navy's dropping of ordnance harms the environment. It is the judiciary's "responsibility to protect the integrity of the process …." by preserving EPA's role in determining the environmental significance of each discharge.¹³ The Court of Appeals also rejected the district court's reliance on national security considerations as a reason not to enjoin the Navy's activities. If an injunction would indeed interfere with national security interests, it noted, the Navy may seek a presidential exemption under § 313 of the Act which Congress enacted for just such cases.¹⁴ The First Circuit vacated the district court's order and remanded with instructions to order the Navy "to take all steps to insure that no ordnance is discharged into the coastal waters of Vieques until such time as it obtains a[n] NPDES permit."¹⁵

Weinberger v. Romero-Barcelo

Writing for eight members of the Court,¹⁶ Justice White, in reversing the First Circuit, placed considerable importance on Hecht Co. v. Bowles, the classic Supreme Court exposition of the powers and duties of courts to issue injunctive relief pursuant to statutory authority. In that case, the Court stated that while Congress may limit the district courts' discretion to grant or deny injunctive relief, such restrictions are to be inferred only where such a legislative intent is clearly stated in the statute. Justice White did not read the FWPCA to foreclose the district courts' equitable discretion. First, he rejected the First Circuit's reliance on the Court's ruling in TVA v. Hill. In the ESA, he explained, Congress has clearly limited the available remedies by placing an absolute ban on the destruction of critical habitats of listed species. The Court had held in TVA v. Hill, therefore, that only an injunction could effect the purposes of the statute and protect the critical habitat of the endangered snail darter.

However, an injunction is not the only means of ensuring achievement of the objectives of the FWPCA in this case. Like the statute construed in Hecht Co. v. Bowles, it provides for a variety of civil and criminal penalties.¹⁷ The existence of this array of remedies was seen as a suggestion that judicial enforcement of the Act should not be hamstrung by a rigid per se rule. He found further support for the presumption against injunctions in § 504,¹⁸ which requires EPA to seek an injunction to restrain immediately those discharges found to present "an imminent and substantial endangerment" to the health or welfare of persons. But in this case the discharge of ordnance had been found by the district court not to pollute the environment or threaten health.

Furthermore, the Justice observed, the statutory

scheme as a whole contemplates the exercise of discretion and balancing of equities [and] militates against the conclusion that Congress intended to deny courts their traditional equitable discretion in enforcing the statute.¹⁹

While the ultimate goal of the Act is to eliminate all discharges of pollutants, the permit program was developed because Congress realized that all pollution could not be halted immediately. The FWPCA establishes a system of "phased compliance,"²⁰ which suggested to Justice White that Congress intended to encourage the exercise of judicial discretion.

Nor did Justice White accept the First Circuit's interpretation of the Presidential exemption provision,²¹ considering it irrelevant to the district courts' discretionary authority in granting injunctive relief. Section 309 allows the district court to order the appropriate relief for achieving compliance with the Act, while the exemption provision serves to allow noncompliance when it is necessary to protect the national security.

Finally, Justice White found further support in the legislative history for preserving the district courts' equitable discretion. True, unlike previous water pollution statutes, the FWPCA established a goal of "no discharges," to be achieved primarily through the permit program. However, he noted, in writing the FWPCA Congress drew heavily from the enforcement provisions of the Rivers and Harbors Act of 1899. That statute contains no automatic injunction requirement, and violations of the Act have not been held to necessitate injunctive relief.²²

The Court reversed and remanded to the First Circuit with instructions to determine if the district court had abused its discretion in denying an immediate cessation order while the Navy applied for a permit. However, Justice Powell, while he joined the Court's opinion, wrote a separate concurrence because in his view, the Court of Appeals should be ordered to affirm the district court's [12 ELR 10062] decision. He would have found that the district court acted well within its discretion under the FWPCA, and viewed the Court's remand as leaving the issue open for unnecessary debate.

Justice Stevens, in dissent, criticized the majority for granting "an open-ended license to federal judges" to ignore Congress' statutory mandate to protect the nation's waters on the basis of "ad hoc judgments about specific discharges of pollutants."²³ While he agreed that injunctions should not issue automatically, he argued that district courts' equitable discretion is

constrained by a strong presumption in favor of enforcing the law as Congress has written it. By reversing, the Court casts doubt on the validity of that position. This doubt is especially dangerous in the environmental area, where the temptations to delay compliance are already substantial.²⁴

In his view, the FWPCA does not alter the presumption. The Navy is under an absolute duty to obtain a permit and only in a narrow category of cases are the courts free to ignore the general rule of immediate cessation. By leaving the district courts free to apply their traditional equitable discretion, the Court has treated an on-going statutory violation like "any garden-variety private nuisance action in which the chancellor has the widest discretion in fashioning relief."²⁵ Instead, the courts should apply a stricter standard that gives the public interest extra weight.

In addition, unlike the majority, Justice Stevens found no distinction between the ESA and the FWPCA; both contain a flat ban against certain activities and establish important congressional objectives. The neither case is it appropriate for the courts to decide whether the activity is environmentally harmful. In each statute, Congress has set the priorities and left it to the administrative agencies, not the courts, to evaluate the potential harm.

Discussion

The Supreme Court has often faced the question whether Congress has legislatively restricted the district courts' equitable discretion in granting or denying injunctive relief for statutory violations. A number of cases in the 1940s addressed this question under price control and labor statutes.²⁶ Hecht Co. v. Bowles involved the Emergency Price Control Act of 1942, which stated that a "temporary or permanent injunction, restraining order or other order" was to be granted for certain violations of the statute. The Supreme Court acknowledged that Congress may restrict the district courts' discretion, but held that to do so it must unambiguously reveal such an intent in the statute. Thus, in Hecht, though the agency had asked the lower court for an injunction, the Supreme Court ruled that the statute preserved the lower courts' discretion since it provided a number of remedies including any "other order" to ensure compliance.

Following Hecht, the Court in Weinberger v. Romero-Barcelo similarly refused to adhere to a per se rule that a violation of the FWPCA mandates the granting of an injunction. Merely the fact that an unpermitted discharge is illegal does not compel the courts to enjoin violations. Like the Price Control Act, the remedial provisions of the FWPCA are worded broadly. Section 309(b) authorizes civil actions for "appropriate relief, including a permanent or temporary injunction, …"²⁷ and the statute does not clearly require an injunction or any other specific remedy for violations.

The importance of the Court's opinion may lie in the analysis it followed in rejecting a per se rule. As it had in TVA v. Hill, the Court looked to the statutory scheme as a whole to see if Congress intended to require an automatic injunction. In TVA v. Hill the Court begrudgingly admitted that the legislative history and the Endangered Species Act itself led to no other conclusion but that critical habitat must be protected at all costs. No balancing of equities was permitted. To the contrary, the statutory language and the legislative history of the FWPCA reveal Congress' recognition that all discharges could not be halted immediately. Thus, the presumption in favor of discretion was preserved.

Neither Justice Powell nor Justice Stevens disagreed with the Court's holding that injunctions are not to be issued automatically under the FWPCA. Both Justice differed from the majority in that they were not content to remand to the First Circuit for a reevaluation of the equities. It was clear to Justice Powell that the district court's order was appropriate under the circumstances. Justice Stevens would have struck the balance in respondents' favor.

The majority, on the other hand, refused to consider whether the district court struck the proper balance. However, the Court made a special effort to point out that the disputed discharge had no impact on water quality.²⁸ The opinion also makes it clear that national security interests are relevant to the final decision to grant or deny an injunction, though it is not clear what weight they should be given in the balancing process. Perhaps the Court envisions a traditional nuisance-type balancing process.²⁹ But it would not be inconsistent with the Court's opinion for the First Circuit to give special weight to carrying out the purposes of the statute, which is the lesson of Hecht Co. v. Bowles and the general rule under the National Environmental Policy Act and other environmental statutes.³⁰

[12 ELR 10063]

Conclusion

What stands out about the Supreme Court's decision in Weinberger v. Romero-Barcelo is the Court's unanimity on the question of whether injunctive relief must follow a proven violation of the FWPCA. Even Justice Stevens agreed that an injunction need not be issued in every instance. In that respect the decision resolves persistent uncertainty evident in lower court decisions about the standard to be applied in determining whether an injunction is mandatory under the FWPCA or other environmental statutes.

The question left open, however, concerns the factors to be balanced by the trial court and the weight to be given them. If national security in terests are involved, they are clearly relevant factors, as are water quality effects. The Court's emphasis on the lack of environmental harm from the Navy's activities may suggest that the water quality impact of the unpermitted discharge should be given primary weight. But there is a contrary flavor to Justice White's warning that despite the need to further the purposes of the regulatory statute in question, "[i]n exercising their sound discretion, courts of equity should pay particular regard for the public consequences in employing the extraordinary remedy of injunction."³¹ Not only national security interests but economic impacts, the defendant's good faith, and other factors pertinent to the equities would appear to fall within the discretion of the trial court.

The decision may also have implications in litigation concerning dredge and fill activities conducted without a permit under § 404 of the FWPCA. To date, courts have been notably firm in issuing injunctions and ordering restitution.³² While violators must, at a minimum, seek a permit, Romero-Barcelo may give defendants new arguments for less stringent sanctions.

The uniqueness of the facts in the case and the limited reach of the Court's ruling means that Romero-Barcelo will be a relatively unilluminating precedent for courts considering the issuance of relief under the FWPCA.³³ For courts that see the equities tipping toward the discharger, however, the decision will provide support for an order permitting the discharge to continue while a permit is obtained.

1. 50 U.S.L.W. 4434, 12 ELR 20538 (U.S. Apr. 27, 1982).

2. 33 U.S.C. §§ 1251-1376, ELR STAT. & REG. 42101.

3. See Barcelo v. Brown, 478 F. Supp. 647, 651-52 (D.P.R. 1979). Only issues concerning the FWPCA were appealed to the Supreme Court.

4. 478 F. Supp. 647 (D.P.R. 1979).

5. 33 U.S.C. § 1342, ELR STAT. & REG. 42141.

6. 33 U.S.C. § 1311, ELR STAT. & REG. 42123.

7. 321 U.S. 321 (1944).

8. 478 F. Supp. at 707. The court concluded that the release of ordnance from aircraft constituted discharge of a pollutant from a point source even though EPA has adopted no applicable effluent limitations. However, no evidence was introduced that the occasional bombing of offshore targets had any measurable deleterious effects on water quality.Id. at 663-64.

9. Id. at 707.

10. Romero-Barcelo v. Brown, 643 F.2d 835, 11 ELR 20391 (1st Cir. 1981).

11. 437 U.S. 153, 8 ELR 20513 (1978).

12. 643 F.2d at 861, 11 ELR at 20405.

13. 643 F.2d at 861, 11 ELR at 20405, quoting from Jones v. Lynn, 477 F.2d 885, 892, 3 ELR 20358, 20360 (1st Cir. 1973).

14. 33 U.S.C. § 1323(a), ELR STAT. & REG. 42138.

15. 643 F.2d at 862, 11 ELR at 20406.

16. Justice Powell concurred separately and Justice Stevens dissented.

17. See 33 U.S.C. § 1319, ELR STAT. & REG. 42130.

18. 33 U.S.C. § 1364, ELR STAT. & REG. 42147.

19. 12 ELR at 20541.

20. The FWPCA calls for the achievement of the "best practicable control technology currently available" by July 1, 1977, and a stricter standard, the "best available technology economically achievable" by July 1, 1984 and a goal of no pollutant discharges by 1985. 33 U.S.C. § 1311(b), ELR STAT. & REG. 42123. See generally Comment Industry Effluent Limitations in Disarray as Congress Prepares for Debate on Water Act Amendments, 12 ELR 10033 (Apr. 1982).

21. FWPCA § 313(a), 33 U.S.C. § 1323(a), ELR STAT. & REG. 42138.

22. 12 ELR at 20542.

23. Id.

24. Id. at 20543.

25. Id.at 20544.

26. See Yakus v. United States, 321 U.S. 414 (1944); Hecht Co. v. Bowles, 321 U.S. 321 (1944). See also McLeod v. General Electric Co., 366 F.2d 847 (2d Cir. 1966).

27. 33 U.S.C. § 1319(b), ELR STAT. & REG. 42131.

28. The Court also noted that the Navy had applied for an NPDES permit in December 1979, and that EPA issued a draft permit in May 1981. However, Puerto Rico refused to issue a § 401(a) water quality certification, an action blocking issuance of the permit which has been challenged in court. 12 ELR at 20544 n.9.

29. See 12 ELR at 20543 n.7.

30. See United States v. Price, __ F. Supp. __, 11 ELR 21047 (D.N.J. Sept. 23, 1981) (neither Resource Conservation and Recovery Act nor Safe Drinking Water Act deprive courts of equitable discretion by providing for injunctive relief); California v. Bergland, 483 F. Supp. 465, 10 ELR 20098 (E.D. Cal. 1980) (injunction should issue for substantial NEPA violation); but see Alaska v. Andrus, 580 F.2d 465, 8 ELR 20237 (D.C. Cir. 1978) (EIS for Department of the Interior's sale of leases for outer continental shelf oil and gas exploration in the Gulf of Alaska fails to comply with NEPA but court refuses to enjoin sale).

31. 12 ELR at 20540.

32. See, e.g., Riverside Irrigation District v. Stipo, 658 F.2d 762, 12 ELR 20243 (10th Cir. 1981); United States v. Lee Wood Contracting, Inc., 529 F. Supp. 119, 12 ELR 20421 (E.D. Mich. 1981); United States v. Board of Trustees of Florida Keys Community College, 12 ELR 20391 (S.D. Fla. Sept. 3, 1981).

33. The Reagan Administration's proposed amendments to the FWPCA include a provision to exempt from the definition of pollutants "munitions expended in the course of conventional weapons training by the armed forces of the United States, or by its allies in joint training exercises." See INSIDE E.P.A., vol. 3, no. 19, at 8 (May 14, 1982).