Wisconsin v. Weinberger: The Chancellor's Foot and NEPA's Good Right Arm

Kenneth L. Rosenbaum

Editors' Summary: The Wisconsin v. Weinberger litigation over the Navy's extremely low frequency submarine communication facility has produced three views of the courts' equitable discretion to refrain from enjoining NEPA violations. The district court held it had little discretion, while the judges on the Seventh Circuit put forth two views granting the courts a freer hand in balancing public interests in granting relief. The Commment examines these opinions and the competing judicial policies behind them: the protection of the courts' traditional equitable powers versus the separation of judicial and legislative functions. The author concludes that courts must accept the legislative declarations of public policy in NEPA and deny relief from violations only when the relief would disserve those goals.

[14 ELR 10402]

In Wisconsin v. Weinberger,¹ a recent National Environmental Policy Act (NEPA)² case, the Seventh Circuit raised the question of a court's discretion to refrain from enjoining a NEPA violation. The question is extremely important to NEPA's implementation. Litigation has been central to the enforcement of NEPA,³ and the object of almost every NEPA suit is an injunction.⁴ Any suggestion of limits to equitable relief raises a "disturbing specter,"⁵ for such limits are effectively limits to the Act itself.⁶

The Wisconsin v. Weinberger litigation produced three views of the court's equitable powers: one from the district court,⁷ one in dicta from the appellate majority, which reversed on other grounds,⁸ and one from a concurring judge.⁹ The case illustrates the complicated issue of the extent of a court's equitable discretion to enforce NEPA.

Wisconsin v. Weinberger

At issue in Wisconsin v. Weinberger was the Navy's construction of an extremely low frequency (ELF) submarine communication facility in Wisconsin and Upper Michigan.¹⁰ The environmental effects of ELF radiation, if any, are poorly understood. The Navy prepared an environmental impact statement (EIS) on the project in 1977. Plaintiffs alleged that significant new information on the health effects of ELF radiation had come to light since then and that the Navy should consider those effects in a supplemental EIS (SEIS). After carefully reviewing the information, the court held that the Navy had abused its discretion in failing to consider the new information under the NEPA process. The court enjoined further construction of the ELF facility until the Navy prepared an SEIS.¹¹

The Navy moved for the court to reconsider, arguing that the national defense would be impaired if the injunction were allowed to stand.¹² It submitted affidavits from [14 ELR 10403] the Secretary of the Navy and the manager of the ELF facility explaining the importance of the project. Plaintiffs countered with a General Accounting Office report and congressional testimony suggesting that the project's defense value was small.

In support of their motion for reconsideration, the defendants argued that the Supreme Court's decision in Weinberger v. Romero-Barcelo¹³ controlled. In Romero-Barcelo the Navy was found to be violating the Federal Water Pollution Control Act (FWPCA) by dropping bombs into the sea at a training range. The Romero-Barcelo district court¹⁴ had noted that the violation of the Act was technical and did not materially harm water quality; moreover, the Navy could comply with the Act simply by securing a permit. The court had declined to enjoin the bombing, but instead ordered the Navy to apply for a permit. On review, the Supreme Court agreed that the district court could exercise discretion to fashion its relief so long as the purposes of the Act were served.

Writing the trial court opinion in Wisconsin v. Weinberger, Chief District Judge Crabb did not find Romero-Barcelo controlling.¹⁵ She pointed out that in Romero-Barcelo the court had an alternative remedy available that also served the purposes of the Act. The ELF case, she declared, was much more like the Supreme Court case of Tennessee Valley Authority (TVA) v. Hill,¹⁶ the Tellico Dam-snail darter case. There, both sides agreed that anything short of an injunction against the operation of the dam would drive the snail darter extinct or destroy its critical habitat, frustrating the goal of the Endangered Species Act (ESA).¹⁷ In such a situation, the Supreme Court ruled, Congress had left the courts no discretion to refuse an injunction.

The purpose of NEPA, Judge Crabb declared, was to integrate environmental concerns into agency decision-making and to open the process to the public. If an agency's NEPA violation had not lessened its public consideration of environmental concerns, or if the violation could be corrected before any irrevocable commitments were made, a court need not flatly enjoin the project. The Navy fit neither situation. To consider special relief solely because of alleged national security interests would be to carve out a special exemption in NEPA. The judge concluded that NEPA permits no balancing of national security interests.

The Seventh Circuit reversed the district court on the need for an SEIS.¹⁸ But Judge Wood, joined by Chief Judge Cummings, went on to discuss the issue of equitable discretion under NEPA, and concluded that Judge Crabb had erred there also.¹⁹ Judge Wood distinguished TVA v. Hill.In the ESA, Congress had foreseen conflicts between preservation of species and development, and had clearly chosen preservation by the terms of the Act. In passing NEPA, Congress made no such absolute policy choices. In fact, NEPA preserves the agencies' freedom to balance environmental and social costs.²⁰ The spirit of NEPA also allows the courts to balance social costs, though the courts must try to further NEPA's objectives to the fullest extent possible.²¹ The judge concluded that irreparable injury from allowing the project to proceed was minor compared to the countervailing interests. In fact, arguably the injunction will serve no NEPA purpose: since the risks outlined in the new information are risks of long-term operation and not of construction, the court could have allowed construction to proceed while the SEIS was prepared, allowing informed agency decisionmaking and public participation without slowing the project.²² Also weighing in the Navy's favor was its good faith in trying to comply with NEPA is the past. And finally, the court emphasized the harm the injunction would cause, accepting without question the Navy's assertion that the project was essential to national security.

Judge Cudahy, concurring, declared that the Navy did violate NEPA, but agreed with the majority that the district court was wrong to enjoin the project.²³ Still, the judge thought the majority had overstated the case against an injunction. NEPA raises a presumption that an injunction should issue "as a matter of course" for an ordinary violation.²⁴ However, in an unusual case, where there are strong countervailing equities, a court should balance them. Here, the court found several countervailing factors combining to argue against enjoining the project. The threatened harm to NEPA interests, in the form of increased agency commitment to the project before proper environmental study, was small and would have been smaller had plaintiffs brought suit earlier.²⁵ The SEIS, though legally necessary, was unlikely to change the agency's decision. And the environmental harms possibly outlined in the new information were impacts from operation and could be avoided even if construction were not enjoined.

The concurrence took issue, though, with the majority's heavy reliance on national security considerations and its unquestioning acceptance of the Navy's allegations. Rather than focusing on outside equities, Judge Cudahy ultimately rested his decision on whether an injunction would truly serve the statute. "The NEPA ideal of careful environmental planning prior to action" was unachievable in cases like the one before the court, involving [14 ELR 10404] new information about ongoing projects.²⁶ If the courts forced projects to shut down to evaluate each new bit of information, agencies would learn to review information quickly but not well. NEPA would be better served if the court allowed the review and the project to proceed together, but carefully scrutinized the quality of the review.

Analysis

The three Wisconsin v. Weinberger opinions fairly represent the spectrum of positions that courts and commentators have taken on the issue of equitable discretion under NEPA. Courts generally agree that NEPA allows them to exercise some equitable powers. They may consider the threshold equitable issues of laches,²⁷ unclean hands,²⁸ or irreparable injury.²⁹ All agree they may exercise some discretion in crafting an injunction, accommodating equitable interests.³⁰ The disagreement is over how far they may let a violation of NEPA go unabated and whether they may refrain completely from enforcing the Act. Some courts and commentators have agreed with Judge Crabb that Congress has left the courts with no equitable license to allow violations to go unenjoined.³¹ A few courts have endorsed Judge Wood's view that a court may exercise a rather free hand in weighing public interests.³² Most courts, like Judge Cudahy, have taken a middle ground, either raising a presumption that NEPA interests outweigh others or otherwise giving great deference to congressionally mandated policy.³³

The differing opinions in part reflect different readings of NEPA and the congressional intent behind it, but more fundamentally, they stem from different views of the role of the courts.

The Fundamental Power View

The proponents of equitable license see it as a necessary element of judicial power in a just system of government. In the history of our judicial system, courts have never granted injunctions mechanically.³⁴ The modern court's power of injunction traces back to the old English courts of chancery.³⁵ These courts evolved their equitable powers to relieve injustices that came from inflexible application of the common law. The chancellor looked not only at objective facts, but also subjectively weighed the morality and good faith of the parties. In the last hundred years, the equitable inquiry of the court has expanded to include balancing the harms to the parties and consideration of the public interest. These inquiries, proponents argue, are necessary if the courts are to do justice.³⁶

[14 ELR 10405]

Proponents can point to the 1976 amendments to the Administrative Procedure Act (APA)³⁷ as congressional endorsement of their views. Section 702 of the APA governs judicial review of agency actions generally, including NEPA compliance.³⁸ In the 1976 amendments, § 702 was expanded to include a clause expressly preserving the courts' power to deny relief on equitable grounds.³⁹ The legislative history affirms the power of the courts to weigh harms to the parties and the public when reviewing agency action.⁴⁰

The Separation of Powers View

Opponents of equitable license in NEPA cases see the overriding question as one of separation of powers.⁴¹ As courts of equity began to balance harms and public interests, they incidentally began to encroach on the power of the legislature to set public policy. This encroachment might be acceptable in, say, the adjudication of a common law nuisance, where the legislature has recorded no judgment. But in the enforcement of a statute, where the legislature has declared what the public interest is, it is not the place of the courts to contradict that judgment.

If a court balances the equities in a NEPA case, it is furthering the very evil that Congress intended to remedy. It is making a trade-off between environmental and social costs without full information and without the benefit of public input.⁴²

Congress recognized that other public interests could override those embodied in NEPA. It did not require absolute compliance with the law, only compliance "to the fullest extent possible."⁴³ However, it unambiguously stated in the legislative history that compliance "to the fullest extent possible" means compliance except in cases of statutory conflict.⁴⁴ It thus established itself as the sole judge of when NEPA interests should bow to others.⁴⁵

Can the Views Be Reconciled?

Each of these views has merit, though ultimately they conflict. Because no system of written law is perfectly just, courts need flexibility. Because unbridled flexibility invites abuse, that flexibility must have limits. The best resolution of these interests is to seek some middle ground.

Courts should have some flexibility not to enjoin a violation in those rare cases where the injunction would ultimately disserve the goals of NEPA. Judge Cudahy believed that Wisconsin v. Weinberger was such a case; enjoining ongoing projects for failure to evaluate new information would encourage agencies to prepare quick, superficial reviews, complying with the letter but not the spirit of NEPA.⁴⁶ A court also would be justified in refusing to enjoin violations when an injunction could lead to more harm to the environment than the NEPA violation.⁴⁷

[14 ELR 10406]

The question of whether courts should balance non-NEPA public interests is closer. Where the competing public interest is obvious and extreme and where the NEPA interest and the related interest in environmental quality are slight, courts should have some flexibility. But even then, allowing noncompliance should be a last resort. A court should first try to fashion an injunction that would accommodate the competing interests; if that were not possible, the court should consider simply enjoining the NEPA violation, thereby remanding the task of balancing the interests to Congress.⁴⁸

If a court has the slightest doubt about the balance of the interests before it, it should decide in favor of the interests protected by statute. When a court declines to enjoin a violation of NEPA, it does so in derogation of the powers of Congress. It should do so only with the utmost restraint.

1. 14 ELR 20744 (7th Cir. Aug. 20, 1984).

2. 42 U.S.C. §§ 4321-4361, ELR STAT. 41009.

3. Although NEPA created the Council on Environmental Quality (CEQ), 42 U.S.C. §§ 4341-4347, ELR STAT. 41010, which oversees the NEPA process, it gave CEQ no enforcement power. Until 1973, when CEQ promulgated guidelines on environmental impact statement (EIS) preparation, 38 Fed. Reg. 20550 (1973) (formerly codified at 40 C.F.R. pt. 1500), the only universally applicable guidance on NEPA obligations came from the courts. In 1978, under presidential authority, Exec. Order No. 11991, 42 Fed. Reg. 26967 (1977), CEQ issued binding regulations governing NEPA's implementation. 40 C.F.R. pts. 1500-1508, ELR REG. 46001. In large part, these regulations codified the obligations identified in prior NEPA litigation.

4. A Federal Tort Claims Act action for damages could hypothetically hinge on a NEPA violation, but no such case has been reported in ELR.NEPA itself creates no private right of action for damages. Noe v. Metropolitan Atlanta Rapid Transit Authority, 644 F.2d 434, 11 ELR 20515 (5th Cir. 1981).

5. See Comment, NEPA Meets the Energy Crisis: D.C. Circuit Finds Statutory Violations But Refuses to Enjoin Ongoing Energy Projects, 8 ELR 10062 (1978).

6. Cf. Wisconsin v. Weinberger, 14 ELR at 20755 (Cudahy, J., concurring).

7. Wisconsin v. Weinberger (I), 578 F. Supp. 1327, 14 ELR 20407 (W.D. Wis. 1984); Wisconsin v. Weinberger (II), 582 F. Supp. 1489, 14 ELR 20524 (W.D. Wis. 1984).

8. Wisconsin v. Weinberger, 14 ELR 20744 (7th Cir. Aug. 20, 1984).

9. Id. at 20752-55 (Cudahy, J., concurring).

10. The facts are set out in Wisconsin v. Weinberger (I), 578 F. Supp. at 1334-55, 14 ELR 20408-19.

11. Id.

12. The circumstances of the motion and the Navy's arguments are discussed in Wisconsin v. Weinberger (II), 582 F. Supp. 1489, 14 ELR 20524 (W.D. Wis. 1984).

13. 456 U.S. 305, 12 ELR 20538 (1982).

14. Romero-Barcelo v. Brown, 478 F. Supp. 646 (D.P.R. 1979), rev'd, 643 F.2d 835, 11 ELR 20391 (1st Cir. 1981), rev'd sub nom. Weinberger v. Romero-Barcelo, 456 U.S. 305, 12 ELR 20538 (1982).

15. Wisconsin v. Weinberger (II), 582 F. Supp. at 1493-94, 14 ELR at 20526.

16. 437 U.S. 153, 8 ELR 20513 (1978).

17. 16 U.S.C. §§ 1531-1543, ELR STAT. 41825.

18. Wisconsin v. Weinberger, 14 ELR 20744 (7th Cir. Aug. 20, 1984)).

19. Id. at 20750-52.

20. The judge's argument here is weak. NEPA can be read to make absolute policy choices. See infra text accompanying notes 43-45. And although NEPA contemplates balancing of costs, it calls for the balancing to be done with full information and public input, which the court cannot do. See infra text accompanying note 42.

21. NEPA itself only calls for compliance "to the fullest extent possible." NEPA § 102, 42 U.S.C. § 4332, ELR STAT. 41010. But see infra notes 43-45 and accompanying text.

22. The judge noted that allowing the Navy to continue construction while preparing an SEIS might slightly bias a later decision about whether to terminate the project. But, the judge argued, since this was an ongoing project, and the additional commitment of resources during construction would be minor compared to what the Navy had already committed, the resulting bias would be minor. 14 ELR at 20751.

23. Id. at 20752-55.

24. Id. at 20754.

25. None of the opinions argued that the plaintiffs' delays were in bad faith or constituted laches.

26. 14 ELR at 20755 (emphasis in original).

27. The defense of laches is available but generally disfavored in NEPA litigation. See Jicarilla Apache Tribe v. Andrus, 687 F.2d 1324, 1337-38 (10th Cir. 1982); Concerned Citizens on I-190 v. Secretary of Transportation, 641 F.2d 1, 7-8, 11 ELR 20087, 20091 (1st Cir. 1980); Coalition for Canyon Preservation v. Bowers, 632 F.2d 774, 779, 11 ELR 20053, 20054 (9th Cir. 1980). See also National Wildlife Federation v. United States Forest Service, 14 ELR 20755, 20761 (D. Or. Aug. 6, 1984) (dealing with a laches defense on the merits but claiming no authority to balance the equities in deciding whether to enjoin a NEPA violation).

28. See Jicarilla Apache Tribe v. Andrus, 687 F.2d at 1340.

29. Judge Crabb described three situations she believed did not call for an injunction, and arguably they are all situations where there would be no irreparable injury. See Wisconsin v. Weinberger (II), 582 F. Supp. at 1494-95, 14 ELR at 20526. The Ninth Circuit raises a presumption of irreparable harm upon finding a NEPA violation. Save Our Ecosystems v. Clark, 14 ELR 20241 (9th Cir. Jan. 27, 1984).

30. Even Judge Crabb recognized she had some flexibility, and in fact she exercised it to craft an injunction stricter than NEPA would require. NEPA could have been statisfied if the Navy were ordered to evaluate the new information and make a finding on whether an SEIS was necessary. Judge Crabb, declaring that the public interest would be better served if the public had input into the Navy's decision, ordered the Navy to dispense with the preliminary inquiry and simply prepare an SEIS. Wisconsin v. Weinberger (I), 578 F. Supp. at 1364-65, 14 ELR at 20424.

31. Perhaps the strongest statement of this view is Plater, Statutory Violations and Equitable Discretion, 70 CALIF. L. REV. 524 (1982). Carefully distinguishing cases involving preliminary injunctions or substantial compliance, Plater wrote "[i]t does not appear that any lower court, much less the Supreme Court, has ever found in a proceeding on the merits that federal actions violating NEPA could continue in opposition to the statutory mandates." Id. at 575. For strong statements from courts on the topic, see National Wildlife Federation v. United States Forest Service, 14 ELR at 20761 ("balancing [the equities] is not necessary"); Puna Speaks v. Edwards, 554 F. Supp. 117, 13 ELR 20480, 20481 (D. Hawaii 1982) ("this Court's authority to balance the relative harm to the parties that would result from an injunction or to determine the public interest has been effectively preempted").

32. Winner, The Chancellor's Foot and Environmental Law: A Call for Better Reasoned Decisions on Environmental Injunctions, 9 ENVTL. L. 477 (1979), advocates free though carefully justified use of equitable discretion. Decisions showing free balancing include Sierra Club v. Hennessy, 695 F.2d 643, 649-50, 13 ELR 20170, 20173-74 (2d Cir. 1982) (financial harm to city and state outweighs NEPA harm); Florida Wildlife Federation v. Goldschmidt, 506 F. Supp. 350, 13 ELR 20703 [digest] (S.D. Fla. 1981) (financial costs and need for highway outweigh NEPA interests; ruling on preliminary relief).

33. See, e.g., Save Our Ecosystems v. Clark, 14 ELR at 20245 ("Only in rare circumstances may a court refuse to issue an injunction … the policies underlying NEPA 'weight the scales in favor of those seeking suspension of all action ….'"); Massachusetts v. Watt, 716 F.2d 946, 952, 13 ELR 20893, 20896 (1st Cir. 1983) ("It is appropriate for courts to recognize … the very theory upon which NEPA is based …. This is not to say that a likely NEPA violation automatically calls for an injunction; the balance of harms may point the other way."). Cf. W. RODGERS, ENVIRONMENTAL LAW § 7.10 at 799 (1977):

As in nuisance cases, courts construing NEPA often suggest the relief afforded is a product of balancing equities or balancing hardships. This certainly does not mean that injunctive relief is dependent upon plaintiff showing that the injury occasioned by going ahead with the project is greater on a cost-benefit basis than the loss occasioned by delay. Indeed, the cases reflect a determination that "[c]onsiderations of administrative difficulty, delay or economic cost will not suffice to strip [section 102] of its fundamental importance." The remedy presumptively available in all cases is the injunction to maintain the status quo; …. Forcing the agencies to mark time until they comply is thought to be the best way to assure NEPA's purposes of eliminating environmental damage by accident or coincidence and allowing it only by design and after justification with consequences fully understood.

(footnotes omitted, emphasis in original).

34. See TVA v. Hill, 437 U.S. 153, 193, 8 ELR 20513, 50523 (1978). Note that TVA v. Hill, a case that heavily relied on the separation-of-powers argument, discussed infra in text accompanying notes 41-45, and ultimately granted injunctive relief, nonetheless recognized the courts' inherent equitable powers. Arguably, when crafting relief, a court must weigh both fundamental-powers and separation-of-powers considerations. See infra text accompanying notes 46-48.

35. For a history of equity and its implications for environmental law, see Winner, supra note 32, at 479-510.

36. See id. at 510-17. Winner argues that balancing the equities is necessary to good environmental law. He calls for a "cooperative separation of powers" where courts exercise some of the policy functions of the legislature. To prevent abuse of this power, he calls for courts to justify their decisions carefully and develop a system of precedent governing the exercise of equitable discretion.

37. 5 U.S.C. §§ 500-706, ELR STAT. 41001. The 1976 amendments are Pub. L. No. 94-574, 90 Stat. 2721 (1976).

38. 5 U.S.C. § 702, ELR STAT. 41005. "The Courts of Appeal of every circuit have upheld the courts' jurisdiction under the Administrative Procedure Act to grant injunctions to enforce NEPA." 2 F. GRAD, TREATISE ON ENVIRONMENTAL LAW § 9.03(b), at 9-136 (1980) (footnote omitted).

39. "Nothing herein (1) affects other limitations on judicial review or the power or duty of the court to dismiss any action or deny relief on any other appropriate legal or equitable ground; …." 5 U.S.C. § 702, ELR STAT. 41005.

40. "These grounds include, but are not limited to, the following: (1) extraordinary relief should not be granted because of the hardship to the defendant or the public ('balancing the equities') or because the plaintiff has an adequate remedy at law; …." S. REP. NO. 996, 94th Cong., 2d Sess. 11 (1976). See also H.R. REP. NO. 1656, 94th Cong., 2d Sess. 12 (1976).

41. See Plater, supra note 31, at 588-92. See also TVA v. Hill, 437 U.S. at 194, 8 ELR at 20523:

Our system of government is, after all, a tripartate one, with each Branch having certain defined functions delegated to it by the Constitution. While "[it] is emphatically the province and duty of the judicial department to say what the law is," … it is equally — and emphatically — the exclusive province of Congress not only to formulate legislative policies, mandate programs and projects, but also to establish their relative priority for the nation.

(citation omitted).

42. These procedural decisionmaking objectives are widely considered the central objective of NEPA. See 40 C.F.R. § 1500.1(b) & (c), ELR REG. 46015 (CEQ NEPA regulations — purpose of NEPA).

43. NEPA § 102, 42 U.S.C. § 4332, ELR STAT. 41010.

44. The "to the fullest extent possible" language was added by the conference committee. Their explanations of it appear at 115 CONG. REC. 39702-03, 40417-18 (1969). The courts have uniformly interpreted the phrase to only allow noncompliance in cases of statutory conflict. See, e.g., Flint Ridge Development Co. v. Scenic Rivers Association of Oklahoma, 426 U.S. 776, 6 ELR 20528 (1976); Forelaws on Board v. Johnson, 743 F.2d 677, 14 ELR 20839 (9th Cir. 1984); Pacific Legal Foundation v. Andrus, 657 F.2d 829, 11 ELR 20871 (6th Cir. 1981); Calvert Cliffs' Coordinating Committee, Inc. v. Atomic Energy Commission, 449 F.2d 1109, 1 ELR 20346 (D.C. Cir. 1971). CEQ seems to have construed the phrase to also excuse strict compliance in emergencies. See 40 C.F.R. § 1506.11, ELR STAT. 46030.

45. As a specific restriction on equitable powers, NEPA would override APA § 702's general license to invoke equitable powers, discussed supra in text accompanying notes 37-40.

46. See supra text accompanying note 26. Judge Cudahy is not the first to suggest that failure to do an SEIS sometimes does not justify total suspension of an ongoing project. See, e.g., Environmental Defense Fund, Inc. v. Marsh, 651 F.2d 983, 11 ELR 21012 (5th Cir. 1981).

47. An example is the situation in Natural Resources Defense Council, Inc. v. Nuclear Regulatory Commission, 606 F.2d 1261, 9 ELR 20630 (D.C. Cir. 1979). There, the court found the Energy Research and Development Administration violated NEPA by failing to prepare an EIS on tanks for storage of high-level radioactive waste. The tanks were needed to replace older tanks, some of which were leaking.In order to minimize leakage, the court declined to enjoin construction of the new tanks. Instead, the court ordered the agency to prepare an EIS while construction continued and to incorporate design or safety features suggested by the EIS later if possible.

An analogous example, involving the Federal Land Policy and Management Act (FLPMA) as well as NEPA, is American Motorcycle Association v. Watt, 714 F.2d 962 (9th Cir. 1983). There, the court found that even if plaintiffs were likely to succeed in their claims that the California Desert Conservation Area Plan was procedurally flawed, they were not entitled to a preliminary injunction against the Plan. Rather than preserving the status quo, an injunction would permit destructive public use of lands protected in the Plan and so would not serve the environmental goals of NEPA and FLPMA.

Courts have also declined to issue injunctions on the weaker justification that the injunction would not advance (as opposed to "would disserve") NEPA's goals. See, e.g., Alaska v. Andrus, 580 F.2d 465, 8 ELR 20237 (D.C. Cir.), vacated in part on other grounds sub nom. Western Oil & Gas Association v. Alaska, 439 U.S. 922 (1978). Romero-Barcelo, an FWPCA case, also declined an injunction where the remedy would not advance the statutory goals.

48. See Plater, Supra note 31, at 583-88. Plater gives three examples where a court's strict enforcement of an environmental statute has prompted Congress to review the issue: the snail darter case, TVA v. Hill; the Alaska pipeline case, Wilderness Society v. Morton, 479 F.2d 842, 3 ELR 20085 (D.C. Cir. 1973); and the Monongahela clear-cutting case, West Virginia Division of the Izaak Walton League v. Butz, 522 F.2d 945, 5 ELR 20573 (4th Cir. 1975). In each case, Congress undertook an investigation of the issues and a weighing of policy that was far beyond the capabilities of the courts. And the solutions Congress reached were more complex and subtle than those the courts could devise.