Weinberger v. Romero-Barcelo

Justice Stevens,

dissenting.

The appropriate remedy for the violation of a federal statute depends primarily on the terms of the statute and the character of the violation. Unless Congress specifically commands a particular form of relief, the question of remedy remains subject to a court’s equitable discretion.1 Because the Federal Water Pollution Control Act does not specifically command the federal courts to issue an injunction every time an unpermitted discharge of a pollutant occurs, the Court today is obviously correct in asserting that such injunctions should not issue “automatically” or “mechanically” in every case. It is nevertheless equally clear that by enacting the 1972 Amendments to the FWPCA Congress channeled the discretion of the federal judiciaiy much more narrowly than the Court’s rather glib opinion suggests. Indeed, although there may well be situations in which the failure to obtain an NPDES permit would not require immediate cessation of all discharges, I am convinced that Congress has circumscribed the district courts’ discretion on the question of remedy so narrowly that a general rule of immediate cessation must be applied in all but a narrow category of cases. The Court of Appeals was quite correct in holding that this case does not present the kind of exceptional situation that justifies a departure from the general rule.

The Court’s mischaracterization of the Court of Appeals’ holding is the premise for its essay on equitable discretion. This essay is analytically flawed because it overlooks the limitations on equitable discretion that apply in cases in which public interests are implicated and the defendant’s violation *323of the law is ongoing. Of greater importance, the Court’s opinion grants an open-ended license to federal judges to carve gaping holes in a reticulated statutory scheme designed by Congress to protect a precious natural resource from the consequences of ad hoc judgments about specific discharges of pollutants.

I

Contrary to the impression created by the Court’s opinion, the Court of Appeals did not hold that the District Court was under an absolute duty to require compliance with the FWPCA “under any and all circumstances,” ante, at 313, or that it was “mechanically obligated to grant an injunction for every violation of law,” ibid. The only “absolute duty” that the Court of Appeals mentioned was the Navy’s duty to obtain a permit before discharging pollutants into the waters off Vieques Island.2 In light of the Court’s opinion the point is worth repeating — the Navy, like anyone else,3 must obey the law.

*324The Court of Appeals did not hold that the District Court had no discretion in formulating remedies for statutory violations. It merely “conclude[d] that the district court erred in undertaking a traditional balancing of the parties’ competing interests.” Romero-Barcelo v. Brown, 643 F. 2d 835, 861 (CA1 1981). The District Court was not free to disregard the “congressional ordering of priorities” and “the judiciary’s ‘responsibility to protect the integrity of the . . . process mandated by Congress.’” Ibid. (quoting Jones v. Lynn, 477 F. 2d 885, 892 (CA1 1973)). The Court of Appeals distinguished a statutory violation that could be deemed merely “technical” from the Navy’s “[utter disregard of] the statutory mandate.” 643 F. 2d, at 861-862. It then pointed out that an order prohibiting any discharge of ordnance into the coastal waters off Vieques until an NPDES permit was obtained would not significantly affect the Navy’s training operations because most, if not all, of the Navy’s targets were land-based. Id., at 862, n. 55. Finally, it noted that the statute authorized the Navy to obtain an exemption from the President if an injunction would have a significant effect on national security. Id., at 862; see 33 U. S. C. § 1323(a) (1976 ed., Supp. IV).

Under these circumstances — the statutory violation is blatant and not merely technical, and the Navy’s predicament was foreseen and accommodated by Congress — the Court of Appeals essentially held that the District Court retained no discretion to deny an injunction. The discretion exercised by the District Court in this case was wholly at odds with the intent of Congress in enacting the FWPCA. In essence, the District Court’s remedy was a judicial permit exempting the Navy’s operations in Vieques from the statute until such time as it could obtain a permit from the Environmental Protection Agency or a statutory exemption from the President. The two principal bases for the temporary judicial permit were matters that Congress did not commit to judicial discretion. First, the District Court was persuaded that the pollu*325tion was not harming the quality of the coastal waters, see Romero-Barcelo v. Brown, 478 F. Supp. 646, 706-707 (PR 1979); and second, the court was concerned that compliance with the Act might adversely affect national security, see id., at 707-708. The Court of Appeals correctly noted that the first consideration is the business of the EPA4 and the second is the business of the President.5

The Court unfairly uses the Court of Appeals’ opinion in this case as a springboard for a lecture on the principles of equitable remedies. The Court of Appeals’ reasoning was correct in all respects. It recognized that the statute categorically prohibits discharges of pollutants without a permit. Unlike the Court, see ante, at 314-315, it recognized that the requested injunction was the only remedy that would bring the Navy into compliance with the statute on Congress’ timetable.6 It then demonstrated that none of the reasons of*326fered by the District Court for refusing injunctive relief was consistent with the statute or was compelling under the circumstances. The position of the Court of Appeals in effect was that the federal 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.7

II

Our cases concerning equitable remedies have repeatedly identified two critical distinctions that the Court simply ignores today. The first is the distinction between cases in which only private interests are involved and those in which a requested injunction will implicate a public interest. Second, within the category of public interest cases, those cases in which there is no danger that a past violation of law will recur have always been treated differently from those in which an existing violation is certain to continue.

Yakus v. United States, 321 U. S. 414, illustrates the first distinction. The Court there held that Congress constitutionally could preclude a private party from obtaining an injunction against enforcement of federal price control regulations pending an adjudication of their validity. In any balancing process, the Court explained, special deference must be given to the public interest:

*327“Even in suits in which only private interests are involved the award is a matter of sound judicial discretion, in the exercise of which the court balances the conveniences of the parties and possible injuries to them according as they may be affected by the granting or withholding of the injunction. . . .
“But where an injunction is asked which will adversely affect a public interest for whose impairment, even temporarily, an injunction bond cannot compensate, the court may in the public interest withhold relief until a final determination of the rights of the parties, though the postponement may be burdensome to the plaintiff.” Id., at 440 (footnote omitted).

In that case, the public interest, reflected in an Act of Congress, was in opposition to the availability of injunctive relief. The Court stated, however, that the public interest factor would have the same special weight if it favored the granting of an injunction:

“This is but another application of the principle, declared in Virginia Ry. Co. v. System Federation, 300 U. S. 515, 552, that ‘Courts of equity may, and frequently do, go much farther both to give and withhold relief in furtherance of the public interest than they are accustomed to go when only private interests are involved.’ ” Id., at 441.

Hecht Co. v. Bowles, 321 U. S. 321, which the Court repeatedly cites, did involve an attempt to obtain an injunction against future violations of a federal statute. That case fell into the category of cases in which a past violation of law had been found and the question was whether an injunction should issue to prevent future violations. Cf. United States v. W. T. Grant Co., 345 U. S. 629, 633-636; United States v. Oregon Medical Society, 343 U. S. 326, 332-334. Because the record established that the past violations were inadvert*328ent, that they had been promptly terminated, and that the defendant had taken vigorous and adequate steps to prevent any recurrence, the Court held that the District Court had discretion to deny injunctive relief. But in reaching that conclusion, the Court made it clear that judicial discretion “must be exercised in light of the large objectives of the Act. For the standards of the public interest, not the requirements of private litigation, measure the propriety and need for injunctive relief in these cases.” 321 U. S., at 331. Indeed, the Court emphasized that any exercise of discretion “should reflect an acute awareness of the Congressional admonition” in the statute at issue. Ibid.

In contrast to the decision in Hecht, today the Court pays mere lipservice to the statutory mandate and attaches no weight to the fact that the Navy’s violation of law has not been corrected.8 The Court cites no precedent for its holding that an ongoing deliberate violation of a federal statute should be treated like any garden-variety private nuisance action in which the chancellor has the widest discretion in fashioning relief.9

Our prior cases involving the appropriate remedy for an ongoing violation of federal law establish a much more stringent test than the Court applies today. Thus, in United States v. City and County of San Francisco, 310 U. S. 16, a case in which the Government claimed that the city’s disposition of electric power was prohibited by an Act of Congress, the Court held that “this case does not call for a balancing of equities or for the invocation of the generalities of judicial maxims in order to determine whether an injunction should have issued.” Id., at 30. “The equitable doctrines relied on do not militate against the capacity of a court of equity as a *329proper forum in which to make a declared policy of Congress effective.” Id., at 31. An injunction to prohibit continued violation of that policy “is both appropriate and necessary.” Ibid.10

In Albemarle Paper Co. v. Moody, 422 U. S. 405, the Court plainly stated that an equitable remedy for the violation of a federal statute was neither automatic on the one hand, nor simply a matter of balancing the equities on the other.11 Albemarle holds that the district court’s remedial *330decision must be measured against the purposes that inform the Act of Congress that has been violated. Id., at 417.

III

The Court’s discussion of the FWPCA creates the impression that Congress did not intend any significant change in the enforcement provisions of the Rivers and Harbors Appropriation Act of 1899. See ante, at 319. The Court goes so far as to suggest that the FWPCA is little more than a codification of the common law of nuisance.12 The contrast between this casual attitude toward the FWPCA and the Court’s writing in Milwaukee v. Illinois, 451 U. S. 304, is stark. In that case the Court refused to allow federal judges to supplement the statutory enforcement scheme by enjoining a nuisance, whereas in this case the question is whether a federal judge may create a loophole in the scheme by refusing *331to enjoin a violation. Why a different standard should be used to define the scope of judicial discretion in these two situations is not explained.

In Milwaukee v. Illinois the Court described the FWPCA in these terms:

“The statutory scheme established by Congress provides a forum for the pursuit of such claims before expert agencies by means of the permit-granting process. It would be quite inconsistent with this scheme if federal courts were in effect to ‘write their own ticket’ under the guise of federal common law after permits have already been issued and permittees have been planning and operating in reliance on them.” Id., at 326.

Ironically, today the Court holds that federal district courts may in effect “write their own ticket” under the guise of federal common law before permits have been issued.

The Court distinguishes TVA v. Hill, 437 U. S. 153, on the ground that the Endangered Species Act contained a “flat ban” on the destruction of critical habitats. Ante, at 314. But the statute involved in this case also contains a flat ban against discharges of pollutants into coastal waters without a permit.13 Surely the congressional directive to protect the *332Nation’s waters from gradual but possibly irreversible contamination is no less clear than the command to protect the snail darter.14 To assume that Congress has placed a greater value on the protection of vanishing forms of animal life than on the protection of our water resources is to ignore the text, the legislative history,15 and the previously consistent interpretation of this statute.16

It is true that in TV A v. Hill there was no room for compromise between the federal project and the statutory objective to preserve an endangered species; either the snail *333darter or the completion of the Tellico Dam had to be sacrificed. In the PWPCA, the Court tells us, the congressional objective is to protect the integrity of the Nation’s waters, not to protect the integrity of the permit process. Ante, at 314. Therefore, the Court continues, ante, at 315, a federal court may compromise the process chosen by Congress to protect our waters as long as the court is content that the waters are not actually being harmed by the particular discharge of pollutants.

On analysis, however, this reasoning does not distinguish the two cases. Courts are in no better position to decide whether the permit process is necessary to achieve the objectives of the FWPCA than they are to decide whether the destruction of the snail darter is an acceptable cost of completing the Tellico Dam. Congress has made both decisions, and there is nothing in the respective statutes or legislative histories to suggest that Congress invited the federal courts to second-guess the former decision any more than the latter.

A disregard of the respective roles of the three branches of government also tarnishes the Court’s other principal argument in favor of expansive equitable discretion in this area.17 The Court points out that Congress intended to halt water pollution gradually, not immediately, and that “the scheme as a whole contemplates the exercise of discretion and balancing of equities.” Ante, at 316. In the Court’s words, Congress enacted a “scheme of phased compliance.” Ibid. Equitable discretion in enforcing the statute, the Court states, is therefore consistent with the statutory scheme.

The Court’s sophistry is premised on a gross misunderstanding of the statutory scheme. Naturally, in 1972 Congress did not expect dischargers to end pollution immediately.18 Rather, it entrusted to expert administrative *334agencies the task of establishing timetables by which dis-chargers could reach that ultimate goal. These timetables are determined by the agencies and included in the NPDES permits; the conditions in the permits constitute the terms by which compliance with the statute is measured.19 Quite obviously, then, the requirement that each discharger subject itself to the permit process is crucial to the operation of the “scheme of phased compliance.” By requiring each dis-charger to obtain a permit before continuing its discharges of pollutants, Congress demonstrated an intolerance for delay in compliance with the statute. It is also obvious that the “exercise of discretion and balancing of equities” were tasks delegated by Congress to expert agencies, not to federal courts, yet the Court simply ignores the difference.

> h-i

The decision in TVA v. Hill did not depend on any peculiar or unique statutory language. Nor did it rest on any special interest in snail darters. The decision reflected a profound *335respect for the law and the proper allocation of lawmaking responsibilities in our Government.20 There we refused to sit as a committee of review. Today the Court authorizes freethinking federal judges to do just that. Instead of requiring adherence to carefully integrated statutory procedures that assign to nonjudicial decisionmakers the responsibilities for evaluating potential harm to our water supply as well as potential harm to our national security, the Court unnecessarily and casually substitutes the chancellor’s clumsy foot for the rule of law.

I respectfully dissent.

Cf. Steelworkers v. United States, 361 U. S. 39, 54-59 (Frankfurter and Harlan, JJ., concurring).

“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.” Romero-Barcelo v. Brown, 643 F. 2d 835, 861 (CA1 1981).

This statement by the Court of Appeals is entirely consistent with the comments in the Senate Report on the legislation that “[enforcement of violations . . . should be based on relatively narrow fact situations requiring a minimum of discretionary decision making or delay,” and that “the issue before the courts would be a factual one of whether there had been compliance.” S. Rep. No. 92-414, pp. 64, 80 (1971).

The statute expressly subjects federal agencies to all laws “respecting the control and abatement of water pollution in the same manner, and to the same extent as any nongovernmental entity.” 33 U. S. C. § 1323(a) (1976 ed., Supp. IV). Indeed, Congress required federal agencies “to provide national leadership in the control of water pollution,” S. Rep. No. 92-414, supra, at 67, and to “be a model for the Nation,” H. R. Rep. No. 92-911, p. 118 (1972).

“Not only are the technical problems difficult — doubtless the reason Congress vested authority to administer the Act in administrative agencies possessing the necessary expertise — but the general area is particularly unsuited to the approach inevitable under a regime of federal common law. Congress criticized past approaches to water pollution control as being ‘sporadic’ and ‘ad hoc,’ S. Rep. No. 92-414, p. 95 (1971), 2 Leg. Hist. 1511, apt characterizations of any judicial approach applying federal common law, see Wilburn Boat Co. v. Fireman’s Fund Ins. Co., 348 U. S. 310, 319 (1955).” Milwaukee v. Illinois, 451 U. S. 304, 325.

In my opinion the national security considerations that were persuasive to the District Court are not matters that are suitable for judicial evaluation. Congress has wisely given the President virtually unlimited authority to exempt the military from the statute on national defense grounds. If those grounds justify an exemption in this case, the Navy clearly should have obtained it from its Commander in Chief, not from a judge unlearned in such matters. This Court, however, makes the curious argument that the Presidential exemption was intended to permit noncompliance with the statute and therefore merely complements the equitable discretion of a district court also to authorize noncompliance. Ante, at 318-319.

The District Court ordered the Navy to file for an NPDES permit “‘with all deliberate speed.’” Romero-Barcelo v. Brown, 478 F. Supp. 646, 708 (PR 1979) (quoting Brown v. Board of Education, 349 U. S. 294, 301).

It is ironic that the Court comes to the aid of the Navy even though Congress authorized an executive exemption for federal (particularly military) operations but no analogous exemption for important private activities, and even though Congress intended federal agencies to assume a leadership role in the water pollution control effort. To paraphrase the Senate Report, the Federal Government cannot expect private industry to obey the law by ceasing discharges of pollutants until a permit is obtained if the Federal Government is not willing to obey the same law or at least invoke a statutory exemption. See S. Rep. No. 92-414, p. 67 (1971).

The Navy has been in continuous violation of the statute during the entire decade since its enactment.

Indeed, I am unaware of any case in which the Court has permitted a statutory violation to continue.

In the steel seizure ease, Justice Frankfurter rejected “the Government’s argument that overriding public interest prevents the issuance of the injunction despite the illegality of the seizure”:

“ ‘Balancing the equities’ when considering whether an injunction should issue, is lawyers’ jargon for choosing between conflicting public interests. When Congress itself has struck the balance, has defined the weight to be given the competing interests, a court of equity is not justified in ignoring that pronouncement under the guise of exercising equitable discretion.” Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 609-610 (concurring opinion).

“The petitoners contend that the statutory scheme provides no guidance, beyond indicating that backpay awards are within the District Court’s discretion. We disagree. It is true that backpay is not an automatic or mandatory remedy; like all other remedies under the Act, it is one which the courts ‘may’ invoke. The scheme implicitly recognizes that there may be cases calling for one remedy but not another, and — owing to the structure of the federal judiciary — these choices are, of course, left in the first instance to the district courts. However, such discretionary choices are not left to a court’s ‘inclination, but to its judgment; and its judgment is to be guided by sound legal principles.’ United States v. Burr, 25 F. Cas. 30, 35 (No. 14,692d) (CC Va. 1807) (Marshall, C. J.). The power to award backpay was bestowed by Congress, as part of a complex legislative design directed at a historic evil of national proportions. A court must exercise this power ‘in light of the large objectives of the Act,’ Hecht Co. v. Bowles, 321 U. S. 321, 331 (1944). That the court’s discretion is equitable in nature, see Curtis v. Loether, 415 U. S. 189, 197 (1974), hardly means that it is unfettered by meaningful standards or shielded from thorough appellate review. In Mitchell v. DeMario Jewelry, 361 U. S. 288, 292 (1960), this Court held, in the face of a silent statute, that *330district courts enjoyed the ‘historic power of equity’ to award lost wages to workmen unlawfully discriminated against under § 17 of the Fair Labor Standards Act of 1938, 52 Stat. 1069, as amended, 29 U. S. C. § 217 (1958 ed.). The Court simultaneously noted that ‘the statutory purposes [leave] little room for the exercise of discretion not to order reimbursement.’ 361 U. S., at 296.

“It is true that ‘[e]quity eschews mechanical rules . . . [and] depends on flexibility.’ Holmberg v. Armbrecht, 327 U. S. 392, 396 (1946). But when Congress invokes the Chancellor’s conscience to further transcendent legislative purposes, what is required is the principled application of standards consistent with those purposes and not ‘equity [which] varies like the Chancellor’s foot.’ Important national goals would be frustrated by a regime of discretion that ‘produce[d] different results for breaches of duty in situations that cannot be differentiated in policy.’ Moragne v. States Marine Lines, 398 U. S. 375, 405 (1970).” Albemarle Paper Co. v. Moody, 422 U. S. 405, 415-417 (footnotes omitted).

“The objective of this statute is in some respects similar to that sought in nuisance suits, where courts have fully exercised their equitable discretion and ingenuity in ordering remedies. E. g., Spur Industries, Inc. v. Del E. Webb Development Co., 108 Ariz. 178, 494 P. 2d 700 (1972); Boomer v. Atlantic Cement Co., 26 N. Y. 2d 219, 257 N. E. 2d 870 (1970).” Ante, at 314, n. 7.

Indeed, this proposition has been consistently, repeatedly, and unequivocally reaffirmed by this Court:

“The discharge of ‘pollutants’ into water is unlawful without a permit issued by the Administrator of the EPA or, if a State has developed a program that complies with the FWPCA, by the State.” Train v. Colorado Public Interest Research Group, 426 U. S. 1, 7.
“Under the NPDES, it is unlawful for any person to discharge a pollutant without obtaining a permit and complying with its terms.” EPA v. California ex rel. State Water Resources Control Board, 426 U. S. 200, 205.
“We conclude that, at least so far as concerns the claims of respondents, Congress has not left the formulation of appropriate federal standards to the courts through application of often vague and indeterminate nuisance concepts and maxims of equity jurisprudence, but rather has occupied the *332field through the establishment of a comprehensive regulatory program supervised by an expert administrative agency.” Milwaukee v. Illinois, 451 U. S., at 317.

In EPA v. National Crushed Stone Assn., 449 U. S. 64, the Court read the “plain language of the statute,” id., at 73, to require private firms “either to conform to BPT standards or to cease production.” Id., at 76.

“Congress’ intent in enacting the Amendments was clearly to establish an all-encompassing program of water pollution regulation. Every point source discharge is prohibited unless covered by a permit, which directly subjects the discharger to the administrative apparatus established by Congress to achieve its goals.” Milwaukee v. Illinois, supra, at 318 (emphasis in original; footnote omitted).

The Senate Report emphasized that “if the timetables established throughout the Act are to be met, the threat of sanction must be real, and enforcement provisions must be swift and direct.” S. Rep. No. 92-414, p. 65 (1971).

"The establishment of such a self-consciously comprehensive program by Congress, which certainly did not exist when Illinois v. Milwaukee[, 406 U. S. 91,] was decided, strongly suggests that there is no room for courts to attempt to improve on that program with federal common law.” Milwaukee v. Illinois, supra, at 319.

Today’s holding that a federal court has inherent power to grant exemptions from the statutory permit requirement presents a dramatic contrast with the holding in Milwaukee v. Illinois:

“Federal courts lack authority to impose more stringent effluent limitations under federal common law than those imposed by the agency charged by Congress with administering this comprehensive scheme.” 451 U. S., at 320.

See also n. 5, supra.

“The Committee believes that the no-discharge declaration in Section 13 of the 1899 Refuse Act is useful as an enforcement tool. Therefore, this *334section [§ 301] declares the discharge of pollutants unlawful. The Committee believes it is important to clarify this point: No one has the right to pollute.

“But the Committee recognizes the impracticality of any effort to halt all pollution immediately. Therefore, this section provides an exception if the discharge meets the requirements of this section, Section 402, and others. listed in the bill.” S. Rep. No. 92-414, supra, at 43.

“An NPDES permit serves to transform generally applicable effluent limitations and other standards — including those based on water quality— into the obligations (including a timetable for compliance) of the individual discharger, and the Amendments provide for direct administrative and judicial enforcement of permits. With few exceptions, for enforcement purposes a discharger in compliance with the terms and conditions of an NPDES permit is deemed to be in compliance with those sections of the Amendments on which the permit conditions are based. In short, the permit defines, and facilitates compliance with, and enforcement of, a preponderance of a discharger’s obligations under the Amendments.” EPA v. California ex rel. State Water Resources Control Board, 426 U. S., at 205 (citations omitted).

“Our individual appraisal of the wisdom or unwisdom of a particular course consciously selected by the Congress is to be put aside in the process of interpreting a statute. Once the meaning of an enactment is discerned and its constitutionality determined, the judicial process comes to an end. We do not sit as a committee of review, nor are we vested with the power of veto. The lines ascribed to Sir Thomas More by Robert Bolt are not without relevance here:

“ ‘The law, Roper, the law. I know what’s legal, not what’s right. And I’ll stick to what’s legal. . . . I’m not God. The currents and eddies of right and wrong, which you find such plain-sailing, I can’t navigate, I’m no voyager. But in the thickets of the law, oh there I’m a forester. . . . What would you do? Cut a great road through the law to get after the Devil? . . . And when the last law was down, and the Devil turned round on you — where would you hide, Roper, the laws all being flat? . . . This country’s planted thick with laws from coast to coast — Man’s laws, not God’s — and if you cut them down . . . d’you really think you could stand upright in the winds that would blow then? ... Yes, I’d give the Devil benefit of law, for my own safety’s sake.’ R. Bolt, A Man for All Seasons, Act I, p. 147 (Three Plays, Heinemann ed. 1967).
“We agree with the Court of Appeals that in our constitutional system the commitment to the separation of powers is too fundamental for us to pre-empt congressional action by judicially decreeing what accords with ‘common sense and the public weal.’ Our Constitution vests such responsibilities in the political branches.” TVA v. Hill, 437 U. S. 153, 194-195.