# Petitioners Brief — Weinberger v. Romero-Barcelo

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petitioners Brief
- **Published:** January 1, 1982
- **Citation:** 456 U.S. 305

## Text

No. 80-1990

Jui the Supreme Gaurt of the

OcToBER TERM, 1981

CASPAR WEINBERGER, ET AL., PETITIONERS
v.
CARLOS ROMERO-BARCELA, ET AL.

ON WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

BRIEF FOR PETITIONERS

Rex E. LEE
Solicitor General

ANTHONY C, LIOTTA
Acting Assistant Attorney General

EDWARD J. SHAWAKER
ANNE 8. ALMY
: Attorneys
Department of Justice
Washington, D.C. 20530
(202) 633-2217

CAPTAIN THOMAS E. FLYNN
Office of Judge Advocate General
Department of the Navy
Alexandria, Virginia 22332

RICHARD M. CoRNELIUS :
Assistant General Counsel
Department of the Navy
Washington, D.C. 20350

—_—_————

QUESTION PRESENTED

Whether injunctions to require immediate cessation
of discharges in violation of the Clean Water Act
are mandatory under the standards articulated in
TVA v. Hill, 487 U.S. 158 (1978), and not subject
to the equitable discretion of the district court.*

*In addition to the Secretary of Defense, the defendants
below included the Secretary of the Navy, the Chief of Naval
Operations, the Commander in Chief of the Atlantic Fleet, the
Commandant of the Marine Corps, the Caribbean Commander
of the Atlantic Fleet, the Commandant of the Coast Guard,
and “unnamed John Doe Defendants.” In addition to Carlos
Romero-Barcelo, the Governor of the Commonwealth of
Puerto Rico, the original plaintiffs below included the Mayor
of Vieques, the Commonwealth Environmental Quality Board,
Mision Industrial de Puerto Rico, Inc., and individual fisher-
men/residents of Vieques: Luis Medina, Jésus Medina, Mario
Antolino Felix, Cristébal Medina, Severino Ventura Cintrén,
Héctor Medina, Cristébal Medina, Jr., Enrique Garcia, An-
tonio Ayala Gonzdlez, Angel Ventura and Daniel Medina.
Plaintiffs-intervenors included: Carlos A. Zenén, Mario Félix
Mariano Rivera Guishard, Alicio Ayala Sota, Francisco Medina
Meléndez, Esmeraldo Meléndez and Santos Rios, fishermen
who are residents of Vieques, the “Asociacién de Pescadores
de Vieques, Inc.," a cooperative of Vieques fishermen, and
“Fundacién Arqueolégica, Antropologica e Historica de
Puerto Rico,” a non-profit corporation involved in research
and preservation of historical and prehistorical cultural re-
sources (Pet. App. 58a-54a).

(1)

Opinions below
Jurisdiction
Statute involved
Statement
Introduction and summary of argument

I,

II.

Conclusion

TABLE OF CONTENTS

The Clean Water Act does not include a congres-
sional judgment overriding all equitable discre-
tion; instead flexibility of enforcement remedy
is necessary

The district court properly formulated a remedy
designed to bring the Navy into compliance with
the Clean Water Act

TABLE OF AUTHORITIES

Cases:

Aaron V. SEC, 446 U.S. 680 ......
Califano Vv. Yamasaki, 442 U.S, 682 202002.000220ccceee eens
City of Milwaukee v. Illinois, No. 79-408 (Apr. 28,
SOD .. cscnicsettintitciotel thnichaaliatnionscaptiectoncsinnmnisiiimmmmcil
E.I. Dupont de Nemours & Co. v. Train, 430 U.S.

EPA vy. National Crushed Stone Association, 449
iS ASRS LS SA ter

Hecht Co. v. Bowles, 321 U.S. 321 .............. 9,10, 11,

Middlesex County Sewage Authority v. National
Sea Clammers Association, No. 79-1711 (June
SORA IIIT, ivccicseiaeiiudiaenittNeilieh senediapesuselal

National Rifle Association v. Kleppe, 425 F. Supp.
1101, aff’d, 571 F.2d 674

(115)

Page

oo fUOONSlUmltC

14

15
17, 18

24
21

Cases—Continued

Realty Income Trust v. Eckerd, 564 F. 2d 447........
Reserve Mining Co, Vv. EPA, 514 F. 2d 492 ............
Rondeau v. Mosinee Paper Corp., 422 U.S. 49........
State of Alaska v. Andrus, 580 F. 2d 465, vacated

in part sub nom. Western Oil & Gas Association

v. Alaska, 431 U.S. 922 ..........
State Water Control Board V. Train, 559 F. 2d 921..

TVA V. Hill, 437 US. 158 ................. 9, 11, 12, 14, 15,

Union Electric v. EPA, 427 U.S. 246 ...................-.-
United States v. Kennebec Log Driving Co., 491
F, 2d 562, on remand, 399 F. Supp. 754 ..............
United States v. Republic Steel Corp., 362 U.S. 482..
United States v. Rohm & Haas Co., 500 F. 2d 167,
cert. denied, 420 U.S. 962 .............2....-.cceeeceeeeeeeesee
United States ex rel. Greathouse v. Dern, 289 US.
UE adcsaten

Statutes and regulations:

Clean Air Act Amendments of 1970, 42 U.S.C.
(Supp. III) 7401 et seq. ...........
42 U.S.C. (Supp. ITI) 7064 ..............................
Coastal Zone Management Act of 1972, 16 U.S.C.
SE SIE. askuichiteacasnsenedcicnasininnoretiniiscbenpnsdaseneninntzenit
Endangered Species Act of 1978, 16 U.S.C. (&
Se TERED Te OIG cstncctentccnesecemntninepeeosccscsncsccee
Section 2(b), 16 U.S.C. 1531 (b) ~....................
Section 2(c), 16 U.S.C. 1581 (c)......................

Section 7, 16 U.S.C. 1586 occ... 12,

Federal Water Pollution Control Act (Clean Water
Act), 33 U.S.C. (& Supp. III) 1251 et seq. ..........
Section 101(a), 33 U.S.C. (& Supp. III)
a eahlaelaidsehiinceioeiion
Section 301 (a), 33 US.C. 1311 (a) Sisautato
Section 301(b), 338 U.S.C. (Supp. III) 1311

(b)
Section 304(b), 33 U.S.C. 1314 (b) ates
Section 309(a)(1), 33 U.S.C. (Supp. ITI)
1319 (a) (1)

.. 10,17

17, 26
15

16
16

16

17

12

2, 4, 5

Vv

Statutes and regulations—Continued Page
Section 309(b), 38 U.S.C, 1819(b) ................. 15,17
Section 313(a), 33 U.S.C. (Supp. III) 1323

hen Naas hi heteh cnniecinsdcheenhghhenenscetienentoneniins 14, 23, 25
Section 401(a), 33 U.S.C. (Supp. III) 1341
SI tk Osa ate lean deeiaennicdemnnntmenteniotsenntaptbiins 6,19
Section 402, 88 U.S.C. 1842 .....2.........ceeeeseeeeees 21
Section 402(a), 383 U.S.C. (& Supp. III)
BI, iaiatienl se tilled cieeseesiscdbacdabicbgnemukesnntbennwes 25
Section 404, 33 U.S.C. 1344 ia 24
Section 502(6), 33 U.S.C. 1362(6) ................. 6
Section 502(12), 33 U.S.C. 1862(12) ............ 6
Section 502(14), 33 U.S.C. (Supp. III) 1362
IID chi cistiahidlintassatiaecninaisctindagudschienbetiapranintnmes 6
Section 504(a), 33 U.S.C. (Supp. III) 1364
ID sincecapatisicinpusiieeinensenevemniisinsinceentaninnaveneentsnceucnine 15
Section 505, 38 U.S.C. 1865 000000020. 25
Section 505(b) (1) (A), 33 U.S.C. 1365 (b) (1)
UAE? ‘Sicddnieatehstsinidnbelioetenetencnensiittbensentecenniacknenmesnniions 24
Section 505(b) (1) (B), 33 U.S.C. 1365 (b) (1)
Ba ES Ee averse mee 17
Section 505(c) (2), 33 U.S.C. 1365(c) (2)...... 19
Marine Mammal Protection Act of 1972, 16 U.S.C.
FE Ie PE ccnrientcnts cosenecniecennitnennennnenensimninbantannspnsniningss 4

Migratory Bird Treaty Act, 16 U.S.C. 703 et seq... 21
National Environmental Policy Act, 42 U.S.C. (&

BN I I I pi ccnensiensnesscntemaviebaseabsibones 4
National Historic Preservation Act of 1966, 16
RIE III I dis acic csccatctbadcacdibsivensasiingsieaiatinn 4

Noise Control Act of 1972, 42 U.S.C. 4901 et seq... 4
Resource Conservation and Recovery Act, 42 U.S.C.

AMIE TI, rutceriacstearhilenaceidheipnininidagienininhenitheneplinwasnionpeitin 4
Rivers and Harbors Appropriation Act of 1899
(Refuse Act), 38 U.S.C, 401 et seq. ..............000000000- 5, 16
Re 24
aca oat cgneniemeniininishentieneiiiienin 17
40 C.F.R.:
Section 123.9(c) ....... icky teaiieninilaaiglinehdeteibia 20

I eisiitecadevinentcbensinnneuimnmcnenovcisinseniee 21

VI

Miscellaneous: Page
A Legislative History of the Clean Air Act Amend-
ments of 1970, 98d Cong., 2d Sess. (1974) ........... 24
A Legislative History of the Water Pollution Con-
trol Act Amendments of 1972, 93d Cong., 1st
Sess, (1973) 16, 18, 19
Exec, Order No. 11593, 36 Fed. Reg. 8921 (1971).. 4,5
Exec. Order No. 12088, 43 Fed. Reg. 47707, 47709
STPIED nimctinstccsttnicinaitstsiniiitetiaininecsisidieadliandalialaaaana 25-26
46 Fed. Reg. 12773 (1981) 6
H.R. Rep. No. 92-911, 92d Cong., 2d Sess. (1972)... 18
H.R. Rep. No. 93-412, 93d Cong., Ist Sess. (1973) .. 12
7 Moore’s Federal Practice (2d ed. 1980) ................. 18
S. Rep. No. 92-414, 92d Cong., 1st Sess. (1971)...... 16
S. Rep. No. 93-307, 98d Cong., Ist Sess. (1973)...... 12-13

In the Supreme Court of the United States

OCTOBER TERM, 1981

No. 80-1990

CASPAR WEINBERGER, ET AL., PETITIONERS
v.

CARLOS ROMERO-BARCELO, ET AL.

ON WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

BRIEF FOR PETITIONERS

OPINIONS BELOW

The opinion of the court of appeals (Pet. App.
la-5la) is reported at 643 F.2d 835. The opinion of
the district court (Pet. App. 53a-168a) is reported at
478 F. Supp. 646.

JURISDICTION

The judgment of the court of appeals was entered
on January 26, 1981 (Pet. App. 169a-170a). A
timely petition for rehearing was denied on Febru-
ary 27, 1981 (Pet. App. 52a). The petition for a
writ of certiorari was filed on May 26, 1981, and
granted on October 5, 1981 (J.A. 186). The juris-
diction of this Court is invoked under 28 U.S.C.
1254(1).

(1)

2

STATUTE INVOLVED

The pertinent provisions of the Federal Water
Pollution Control Act (Clean Water Act), 33 U.S.C.
(& Supp. III) 1251 et seqg., are reprinted in Pet.
App. 171a-180a.

STATEMENT

This case concerns the Navy’s use of part of
Vieques Island, Puerto Rico, as a range for air-to-
ground, naval gunfire, and amphibious weapons train-
ing. The island, located off the southeast coast of
Puerto Rico, is approximately 20 miles long and has
an average width of 4 miles. It consists of approxi-
mately 33,000 acres, of which the United States owns
more than 25,000 acres. For many years, the De-
partment of the Navy has used a small portion of the
eastern end cf the island for weapons training. The
remaining Navy-held land is used primarily as a
buffer zone. (See Pet. App. 57a, 6la, 68a, 167a-
168a.)

The weapons training areas on Vieques are part
of a larger complex known as the Atlantic Fleet
Weapons Training Facility, headquartered at Roose-
velt Roads Naval Station in Ceiba, Puerto Rico, This
complex consists of four ranges: (1) the outer range,
a large area of ocean lying to the north and south of
Vieques,’ (2) the underwater range, located off the
western shore of St. Croix, (3) the electronic warfare
range consisting of a series of facilities located on
Puerto Rico, Vieques and other neighboring islands,’

1 At its closest points, the outer range is 35 miles north
of Vieques, and 20 miles to the south.

2 These facilities, referred to as “threat platform” simula-
tors, are designed to “provide a realistic electronic environ-
ment for the training of shipboard electronic warfare teams

and (4) the inner range consisting of the targets on
Vieques. Because of the existence of all these facili-
ties in the area, naval vessels and crews have the
unique opportunity to conduct exercises on several of
the ranges under conditions that simulate, as far as
possible, actual combat. Accordingly, all Atlantic
Fleet vessels assigned to the Mediterranean and the
Indian Ocean must successfully complete their train-
ing at Vieques to meet operational qualifications
standards. Cessation or interruption of Navy activity
on Vieques would cripple the service’s ability to per-
form tasks assigned to it by the National Security
Council. (See Pet. App. 163a-165a. )

The targets on Vieques consist of artillery targets,
two bull’s-eye targets for inert air-to-ground bombing
practice, strafing targets, a series of mock targets of
opportunity (e.g., mock surface-to-air missile sites,
fuel farm, ammunition dump and airstrip) for live
air-to-ground bombing practice, and two remote con-
trolled moving targets. There are also six naval
gunfire targets. (Pet. App. 7a.) These targets are all
in the eastern portion of the island. The artillery
targets, the bull’s-eye inert bombing targets, and the
strafing targets are located in an area known as the
Surface Impact Area (SIA). The western boundary
of the SIA is nine kilometers from the closest portion
of the civilian occupied area of Vieques. (Jd. at 6a-
7a.) The remaining targets are located to the east
of the SIA, in an area known as the Air Impact Area
or Close Air Support Zone (AIA/CAS). The closest
point of the civilian zone is about 13 kilometers from

and tactical electronic order-of-battle, in support of exercises
and operations conducted on the various other ranges” (Pet.
App. 62a-68a; 478 F. Supp. at 655).

4

the border of AIA/CAS. The area between the civil-
ian zone and the SIA is occasionally used for amphib-
ious landing exercises; it is also leased to the local
cattle association for grazing purposes. Ibid.

Air and sea operations in the inner range occur
about 200 days a year, between the hours of 7:30
a.m. and 10:00 p.m. Aircraft training on the range
are forbidden to fly over civilian areas, and ordinarily
come no closer to such areas than five miles. Vessels
shooting at targets in the AIA/CAS are positioned
three to eleven miles south of the island. A danger
zone in the sea surrounding Vieques, which prohibits
civilian navigation in the area, is activated when the
range is in use. (Pet. App. 7a.)

2. On March 1, 1978, the Governor of Puerto
Rico, Carlos Romero-Barcelo, and others initiated a
suit seeking to enjoin continued use of the island
for weapons training. The complaint (J.A. 3-54)
charged the Navy with violations of almost every
piece of major environmental legislation enacted by
Congress in the last decade, including the National
Environmental Policy Act (NEPA), 42 U.S.C. (&
Supp. III) 4821 et seg.; the Clean Water Act, 33
U.S.C. (& Supp. ITI) 1251 et seg.; the Clean Air Act
Amendments of 1970, 42 U.S.C. (Supp. III) 7401 et
seq.; the Noise Control Act of 1972, 42 U.S.C. 4901
et seq.; the Resource Conservation and Recovery Act,
42 U.S.C. 6901 et seg.; the Endangered Species Act
of 1973, 16 U.S.C. (& Supp. III) 1531 et seq.;
the National Historic Preservation Act of 1966, 16
U.S.C. 470 et seg. (and Exec. Order No. 11593,
36 Fed. Reg. 8921 (1971), which implements that
Act); the Coastal Zone Management Act of 1972,
16 U.S.C. 1451 et seg., and the Marine Mammal
Protection Act of 1972, 16 U.S.C. 1361 et seg.

5

In addition, the complaint claims violations of the
Rivers and Harbors Appropriations Act of 1899, 33
U.S.C. 401 et seqg., various amendments to the United
States Constitution, and congressional and presiden-
tial directives concerning cessation of Navy opera-
tions on the neighboring island of Culebra. (See Pet.
App. 55a-56a.)*

The district court held an extensive hearing on the
merits of these allegations. The hearing on motions
for a preliminary injunction, later consolidated as a
hearing on the merits, lasted approximately 50 days
and included testimony by dozens of lay and expert
witnesses. The district court also made two site visits
to Vieques to inspect the inner range and the sur-
rounding waters (Pet. App. 56a-57a).

On September 17, 1979, the district court filed a
comprehensive decision and order (Pet. App. 53a-
168a). It found the Navy in violation of NEPA
for failure to file an Environmental Impact State-
ment (EIS) or a reviewable environmental record to
support a decision not to file such a statement (id.
at 155a-159a). It held the Navy to be in violation
of the Clean Water Act, 33 U.S.C. (& Supp. III)
1251 et seq., for occasionally and inadvertently dis-
charging ordnance into coastal waters without a Na-
tional Pollutant Discharge Elimination System
(NPDES) permit (Pet. App. 79a-8la).* It also
found the Navy had failed to comply fully with
Exec. Order No. 11593, swpra, as it had not nomi-

* As the district court remarked, the suit presented “an all-
inclusive challenge to Defendant Navy’s presence and activi-
ties in Vieques” (Pet. App. 57a).

*These deposits occur during naval gunfire and air to
ground training when the land-based targets are missed, and
the ammunition hits the water instead.

6

nated historic sites to the National Register (Pet.
App. 134a-138a). It ordered the Navy to file for an
NPDES permit, to nominate historic sites to the Na-
tional Register and to comply with the provisions of
NEPA (id. at 165a).°

Despite the “technical” violation of the Clean
Water Act (Pet. App. 162a),° the district court
found that “no credible evidence was presented

‘The Navy prepared an environmental impact statement;
in January 1981, the Secretary of the Navy reviewed the state-
ment and made a formal decision to continue using the weap-
ons training facilities located on Vieques. 46 Fed. Reg. 12773
(1981). The Navy also submitted 34 historic sites to the
Keeper of the National Register and requested his opinion on
their eligibility to be placed on the register.

Also, on December 28, 1979, the Department of the Navy
filed an application for an NPDES permit with the Environ-
mental Protection Agency. On May 29, 1981, the EPA issued
a draft NPDES permit and a notice of intent to issue that
permit. Section 401(a) of the Clean Water Act, 33 U.S.C.
(Supp. III) 1341(a), requires a certification of compliance
with state water quality standards before the EPA may issue
an NPDES permit. The Respondents herein received an ex-
tension of time, to and including December 20, 1981, in which
to determine whether a state certification will be issued, and
issued a notice of “Intention to Deny Water Quality Certifi-
cate” (June 25, 1981) (Reply Mem. App.).

The Clean Water Act defines pollutant to include “muni-
tions” Section 502(6), 33 U.S.C. 1862(6). A “point source”
means “any discernable, confined and discrete conveyance,
including but not limited to any * * * vessel * * * from which
pollutants are or may be discharged.” Section 502(14), 33
U.S.C. (Supp. III) 13862(14). Under these defixitions, shells
and bombs released from naval ships and aircraft can be
deemed pollutants discharged from point sources, The firing
of ordnance into waters outside the territorial sea (three
miles), however, is not subject to the Clean Water Act. See
Section 502(12), 33 U.S.C. 1362(12).

7

* * * [to show] that any of the materials deposited
in the waters surrounding Vieques * * * has had
any measurable deleterious effects on the environ-
ment, or on the quality of the surrounding waters,
from a scientific vis-a-vis legal standpoint” (Pet.
App. 80a; 478 F. Supp. at 648). This general finding
was supported by numerous specific factual findings
detailing the exceptional health of the marine en-
vironment (e.g., Pet. App. 86a, 115a-133a). In sum,
the court concluded (Pet. App. 115a (footnote
omitted) ) :

Although the nature of Defendant Navy’s activi-
ties have a tendency towards provoking dramatic
conclusions, a dispassionate analysis of the sci-
entific evidence leads us to the conclusion that
the negative impact of the Defendant Navy’s
activities on the coastal zone of Vieques is negli-
gible, and if the truth be said, the control of
large areas of Vieques probably constitutes a
positive factor in its over all ecology. The very
fact that there are in the Navy zones modest
numbers of various marine species which are
practically non-existent in the civilian sector of
Vieques or in the main island of Puerto Rico,
is an eloquent example of res ipsa loquitur.

Based on these findings, the district court con-
cluded that injunctive relief was not appropriate in
this case, because “the activities of the Defendant
Navy are not causing any appreciable harm to the
Vieques ecology. * * * Nor is there any logical con-
nection between [the rectification of the technical
violations] * * * and ordering a halt to the activi-
ties of Defendant Navy, other than as punishment, a
purpose for which injunctive relief is not appro-
priate” (Pet. App. 162a). Moreover, the court noted
that there was “not the slightest doubt but that the

granting of the injunctive relief sought would cause
grievous, and perhaps irreparable harm, not only to
Defendant Navy, but to the general welfare of this
Nation” (id. at 163a), because of the effects on the
national security of the loss of the use of the unique
training facilities at Vieques.

On appeal,’ the court of appeals affirmed the dis-
trict court on most issues.* It did not reevaluate the
district court’s findings concerning the ecological
health of the Vieques waters, and indeed agreed that
“on this record the district court did not clearly err
in its finding” that the dropping of ordnance caused
no significant harm to the environment (Pet. App.
49a).° But the court held that the district court had

7 Because the literal language of the definitions of the
Clean Water Act covers inadvertent release of shells and
bombs into the coastal waters off Vieques, and the Environ-
mental Protection Agency was willing to develop an appropri-
ate NPDES permit, the petitioners did not appeal the district
court ruling that the Clean Water Act was violated.

8 In addition to the Clean Water Act issue presented here,
the court of appeals remanded issues under the Endangered
Species Act and the National Historic Preservation Act to
the district court for further consideration (Pet. App. 51a).

* The court of appeals did not consider the district court’s
detailed findings concerning the general health of the marine
environment. Those findings were made in connection with
the district court’s rejection of respondents’ claims under the
Endangered Species Act; the court of appeals remanded those
claims to the district court for reconsideration in light of a
“biological opinion” submitted to the Navy after the district
court’s judgment (Pet. App. 39a-40a). Although that opinion
supported the district court’s findings (Pet. App. 41a), the
court of appeals concluded that the remand was necessary to
permit the district court to consider “evidence that both this
court, and Congress, deem essential to a complete decision
of the issue” (ibid.).

used the wrong standard in denying an injunction
under the Clean Water Act. Relying on this Court’s
decision in TVA v. Hill, 437 U.S. 153 (1978), the
court held that the Navy’s violation of the statutory
mandate ipso facto required the issuance of an in-
junction; the equitable balancing of competing
interests was precluded once the statutory violation
was found (Pet. App. 48a-49a)."° Accordingly, it
vacated the remedy devised by the district court and
remanded with directions to enter an injunction
against the further inadvertent deposit of munitions
in the Vieques water without a NPDES permit (Pet.
App. 49a).”

INTRODUCTION AND SUMMARY OF ARGUMENT

The court of appeals should have looked to Hecht
Co. v. Bowles, 321 U.S. 321 (1944), rather than
TVA v. Hill, supra, for the analysis that controls this
case. In Hecht Co. v. Bowles, the administrator of
the Emergency Price Control Act of 1942 sought an
injunction under a statutory provision directing that
“upon a showing * * * that [any] person has
engaged * * * in [the prohibited] practices a tem-
porary or permanent injunction, restraining order,
or other order shall be granted” (321 U.S. at 327).
Although defendant Hecht Co. admitted the violations

% The court of appeals dismissed the national security in-
terests at stake with the remark that “[i]f this order signifi-
cantly interferes with the Navy’s preparedness it is free to
request the President to exempt it from the NPDES require-
ment in the interest of national security. See 38 U.S.C. Sec.
1823(a)” (Pet. App. 49a).

1 On Mar. 6, 1981, the mandate of the court of appeals was
stayed pending the disposition of our petition for certiorari.

10

charged, the district court refused to enter the
immediate cessation order requested. The court of
appeals reversed, believing (as did the court of ap-
peals here), the governing statute to “require the
issuance of [such an] order as a matter of course,
once violations were found.” 321 U.S. at 326. This
Court rejected that rigid interpretation of the statu-
tory language, finding in the legislative history and
the statutory purpose of the Price Control Act (as
we urge with respect to the Clean Water Act) no in-
dication of any intent to require such a significant
departure from the traditions of equity practice (321
U.S. at 329-330).

The statutory purposes do control the Court’s
equitable discretion. The exercise of the traditional
power of equity must be “conditioned by the necessi-
ties of the public interest which Congress has sought
to protect” (id. at 330). The court’s discretion “must
be exercised in light of the large objectives of the
Act. For the standards of the public interest, * * *
measure the propriety and need for injunctive relief
in these cases.” Jd. at 331. Thus, in determining
the nature of injunctive relief appropriate to remedy
a violation of a statute, a particularized analysis of
the statutory language, policies and purposes, as well
as the facts and circumstances of the violation, is
necessary. See State of Alaska v. Andrus, 580 F. 2d
465, 485 (D.C. Cir.), vacated in part sub nom. West-
ern Oil & Gas Association v. Alaska, 481 U.S. 922
(1978).

The district court here made just such an analysis,
and concluded that (Pet. App. 162a):

The violations which we have found, are in sub-
stance technical violations, which must be cured,
but do not require the drastic treatment sug-

would seem to be foreclosed by Hecht Co. v. Bowles

, |

gested by Plaintiffs. Furthermore, there does
not appear any reason why their rectification
can not be accomplished in a relatively short
period of time. Nor is there any logical connec-
tion between the accomplishment of this purpose
and ordering a halt to the activities of Defend-
ant Navy, other than as punishment, a purpose
for which injunctive relief is not appropriate.
See Hecht Co. v. Bowles, swpra.

The court of appeals did not consider whether the

district court’s balancing of the equities gave suffi-

cient weight to the statutory purposes of the Clean

Water Act. Instead, it concluded that the bare fact

that the Act had been violated required the issuance

of an immediate cessation order—a “position which :
[supra].” Rondeau v. Mosinee Paper Corp., 422 U.S.

49, 60 (1975).”

TVA v. Hill did not cast doubt on the holding of
Hecht Co. v. Bowles.” Indeed, the Court in TVA v.
Hill followed the approach utilized in Hecht Co. v.
Bowles, referring expressly to that case, and the dis-
trict court’s no benefit finding therein (487 U.S. at
193-194). The different result in 7VA v. Hill was due
to the specific characteristics of the statute and the
factual situation there before the Court. Those spe-
cial circumstances are not present here.

12 It is not entirely clear whether respondents support this
conclusion of the court of appeals, or argue only that the
result reached was correct in light of their view of the balance
of the equities (compare Resp. Br. in Opp. 10-11 & 8-9, 12,
15).

18 This court has relied on that decision in cases subsequent
to TVA v. Hill, Califano v. Yamasaki, 442 U.S. 682, 694 n. 9
(1979) ; Aaron v. SEC, 446 U.S. 680, 701 (1980).

13

Cong., 1st Sess. 6 (1973). Closing the gates of the
Tellico Dam, and destruction of the snail darter,
would have been directly and fundamentally in con-
flict with the purposes of the Act.

Neither of these two factors has any parallel in
this case. The language, structure, legislative history
and consistent administrative interpretation of the
Clean Water Act all point to the existence of judi-
cial discretion to fashion whatever relief is appropri-
ate (including, but not limited to, immediate cessation
orders) to secure prompt compliance with the pur-
poses of the Act. The district court found that the
waters surrounding Vieques are in excellent condition
and the court of appeals did not disagree. The dis-
trict court also found that the immediate cessation
of the target practice would severely impede the
Navy’s accomplishment of its national security re-
sponsibilities.* In light of those findings, the district
court correctly exercised its discretion, consistent
with the policies and purposes of the Clean Water
Act, in refusing to enjoin continuation of the target
pre ‘ice pending issuance of a NPDES permit.

4 The court of appeals also recognized that cessation of
use of the range might interfere with military preparedness,
but suggested that enjoining the Navy from missing the tar-
gets would not interfere with its training activities (Pet. App.
49a n.55), and that, if it did, the Navy could get a presiden-
tial exemption from the Clean Water Act (Pet. App. 49a).
Respondents make a similar suggestion (Resp. Br. in Opp. 8).
An exemption would not, of course, be as consistent with the
purposes of the Clean Water Act as the course chosen by the
district court, which contemplates the prompt comp, ince by
the Navy with the Act.

14

I. THE CLEAN WATER ACT DOES NOT INCLUDE A
CONGRESSIONAL JUDGMENT OVERRIDING ALL
EQUITABLE DISCRETION; INSTEAD FLEXIBIL-
ITY OF ENFORCEMENT REMEDY IS NECESSARY

A. Unlike Section 7 of the Endangered Species
Act, the Clean Water Act does not contain any ex-
plicit congressional statement subordinating other
federal interests to the preservation of water purity.
In contrast to the flat ban, without exception when
TVA v. Hill was decided, on the destruction of criti-
cal habitats in Section 7, the prohibition in Section
301(a) of the Clean Water Act, 33 U.S.C. 1311(a),
can be overcome by the grant of a permit (Section
313(a), 33 U.S.C. (Supp. III) 1823(a)). And Sec-
tion 313(a), 38 U.S.C. (Supp. III) 1323(a) imposes
a duty on federal agencies to comply with water pol-
lution abatement requirements “in the same manner,
and to the same extent as any nongovernment en-
tity * * *.” Neither Section 301(a) nor Section
313(a) imposes any duty on federal agencies or re-
strictions on federal actions that do not apply equally
to all other dischargers of pollutants.” Thus, unless
the restrictions of Section 301(a) are deemed to
override every competing interest held by anyone in
the Nation, the Clean Water Act does not contain an
“ordering of priorities” which the Courts are power-
less to alter.

The Act cannot reasonably be read as imposing
such overriding restrictions. To be sure, Congress
expected the Clean Water Act to be vigorously en-
forced and contemplated immediate cessation orders

16To the contrary, Congress provided a limited form of
relief for federal agencies through the exemption procedure.
See note 30, infra.

15

if appropriate to the circumstances. But there is
nothing in the Act or its history to suggest that Con-
gress intended to eliminate the traditional discretion
of the courts in enforcing the statutory requirements.
Cf. TVA v. Hill, supra, 487 U.S. at 193-194. There
is instead strong evidence that Congress contemplated
that the federal courts would exercise their equitable
discretion in fashioning “appropriate relief, includ-
ing a permanent or temporary injunction” against
violations of the Act (Section 309(b), 33 U.S.C.
1319(b) ).

1. The entire structure of the Clean Water Act
confirms the need for flexibility in developing “ap-
propriate” enforcement mechanisms."* The Act sets
out a complicated and phased system of pollution
abatement punctuated with statutory deadlines. As
this Court has held, some of the statutory standards
are absolute. See EPA v. National Crushed Stone
Association, 449 U.S. 64 (1980). Cf. Union Electric
Co. v. EPA, 427 U.S. 246 (1976). As a result, re-
medial flexibility will sometimes be needed to avoid
the unnecessary hardship that the automatic appli-
cation of the requirement to extreme factual cir-
cumstances might produce.

16 Congress did specify certain circumstances when dis-
charges of pollutants were to be immediately enjoined. In
Section 504(a), 33 U.S.C. (Supp. III) 1364(a), it authorized
the Administrator of the Environmental Protection Agency
to bring suit “to immediately restrain” discharges of pol-
lutants that he finds to be causing or contributing to “an
imminent and substantial endangerment of the health of per-
sons or to the welfare of persons * * *.” This provision is the
only Section of the Clean Water Act that approaches the
congressional ordering of priorities this Court found in Sec-
tion 7 of the Endangered Species Act. It also is strong evi-
dence that Congress did not expect that a rule of automatic,
immediate cessation would be applied to all violations of the
Act.

16

2. Nothing in the legislative history of the Act
suggests that Congress intended that the only proper
judicial response to a vivlation of the Act would be
an immediate cessation order. The Senate Report
reveals that “[i]n writing the enforcement proce-
dures involving the Federal Government the Com-
mittee drew extensively * * * upon the existing en-
forcement provisions of the Rivers and Harbors Ap-
propriation Act of 1899 (Refuse Act) [83 U.S.C.
401]”. S. Rep. No. 92-414, 92d Cong., Ist Sess.
63 (1971), reprinted in A Legislative History of
the Water Pollution Control Act Amendments of
1972, 93d Cong., 1st Sess. 1481 (1978) (“Legislative
History’). See also Legislative History 1306. In-
junctions requiring immediate cessation of discharges
in violation of the Act have not been automatic under
the Refuse Act. See, e.g., Reserve Mining Co. v. EPA,
514 F.2d 492, 535-587 (8th Cir. 1975); United
States v. Rohm & Haas Co., 500 F.2d 167, 195 (5th
Cir. 1974), cert. denied, 420 U.S. 962 (1975);
United States v. Kennebec Log Driving Co., 491 F.2d
562, 571 (1st Cir. 1973), on remand, 399 F. Supp.
754, 759 (D. Me. 1975). Instead courts have care-
fully fashioned appropriate relief to vindicate the
purposes of the statute with due regard to the sur-
rounding facts and circumstances. There is no indi-
cation that at the time Congress acted it anticipated
any different result. Cf. United States v. Republic
Steel Corp., 362 U.S. 482, 492 (1960), noting that
in the Rivers and Harbors Act—of which the Refuse
Act is a part—“Congress has provided enough fed-
eral law * * * from which appropriate remedies may
be fashioned * * *.”

3. Finally, consistent agency practice assumes the
existence of the power to provide appropriate relief
short of immediate cessation orders. Indeed, enforce-

17

ment against violators of the Clean Water Act has
not been characterized by requests for, or entry of,
immediate cessation orders. Rather, enforcement ac-
tions typically result, by consent or otherwise, in a
remedial order setting out a detailed schedule of
compliance designed to cure the identified violation of
the Act. See, e.g., City of Milwaukee v. Illinois, No.
79-408 (Apr. 28, 1981), slip op. 4-5, 15-16. Congress,
moreover, has been fully aware of these enforcement
procedures.”

B. Unlike the circumstances of TVA v. Hill, supra,
an order requiring the immediate cessation of the
violating activity is rarely the sole remedy avail-
able to vindicate the purposes of the Clean Water
Act. While an equitable order is appropriate to
remedy violations of the Act, immediate cessation of
the violating discharges is not always necessary. In-
stead, courts must fashion “appropriate” relief (33
U.S.C. 1819(b)): relief that adequately vindicates
the purposes and policies of the Clean Water Act
with due regard to equitable principles. See gener-
ally Realty Income Trust v. Eckerd, 564 F.2d 447,
456-457 (D.C. Cir. 1977); Hecht Co. v. Bowles,
supra, 321 U.S. at 329-830; United States ex rel.
Greathouse v. Dern, 289 U.S. 352, 360-361 (1933) ;
State of Alaska v. Andrus, swpra, 580 F.2d at 485.

17The statute apparently contemplates the development
of such carefully tailored remedial orders, because it af-
fords interested citizens the opportunity to participate in
the formulation of these decrees through intervention (Sec-
tion 505(b) (1) (B), 38 U.S.C. 1865(b) (1) (B). Department
of Justice regulations further provide for a public comment
period (28 C.F.R. 50.07). This public participation in the for-
mulation of the decree would, of course, be pointless if every
violation of the Act were to be remedied by an immediate
cessation order.

18

7 Moore’s Federal Practice { 65.18[3], at 65-133 to
65-140.1 (2d ed. 1980). Thus, in most cases, an
“appropriate” injunctive remedy is one designed to
bring the violator into compliance with the require-
ments of the Clean Water Act as expeditiously as
practicable rather than to require immediate cessa-
tion of the discharge."* To be sure, immediate cessa-
tion is an appropriate remedy in some cases, @.g.,
where compliance is impossible or the public interest
demands it. *

More generally, an appropriate remedy must fur-
ther the fundamental purposes of the Act. The over-
all purpose of the Clean Water Act is to “restore
and maintain the chemical, physical and biological
integrity of the Nation’s waters” (Section 101(a),
33 U.S.C. (& Supp. III) 1251(a)).° To that end,

18 In their opposition to the petition for a writ of certiorari,
respondents argue that an immediate cessation order was
appropriate in this case because of the Navy’s “utter disre-
gard” of the statutory requirement (Resp. Br. in Opp, 8-9,
15). While we disagree with that characterization of the
Navy’s conduct (see infra, pages 28-24), we also submit that
respondent’s view that the appropriateness of the remedy
turns primarily on the culpability of the violator ignores the
remedial purpose of the injunctive remedy. As this Court em-
phasized in Hecht v. Bowles, supra, 321 U.S. at 329, “[t]he
historic injunctive process was designed to deter, not to
punish”,

1° The word integrity “refers to a condition in which the
natural structure and function of ecosystems is maintained”
(H.R, Rep. No. 92-911, 92d Cong., 2d Sess. 76 (1972), re-
printed in Legislative History 763). An ecosystem whose
structure and function is “natural” is “one whose systems are
capable of preserving themselves at levels believed to have
existed before irreversible perturbations caused by man’s ac-
tivities” (H.R. Rep. No. 92-911, supra, at 77, reprinted in
Legislative History 764).

19

Congress insisted on uniform treatment for classes
and categories of dischargers throughout the Nation
(see Legislative History 162, 356, 452-453, 473-475,
706-707, 710-711; E£.1. Dwpont de Nemours & Co. v.
Train, 430 U.S. 112, 129-130 (1977)), so as to pre-
vent states from creating pollution havens to lure
businesses from states responsibly acting to reduce
water pollution. See Legislative History 473-475.
Consistent with this policy of uniformity, federal
effluent limitations guidelines are based upon tech-
nical feasibility rather than the effect of discharges
on water quality. See Z.J. Dupont de Nemours &
Co. v. Train, supra.” On the other hand, Congress
recognized that it was impractical to require im-
mediate achievement of the desired levels of pollu-
tion control, and thus provided for a phased pro-
gram. It is entirely consistent with this statutory
scheme for the district courts to provide for some
flexibility in the timing of compliance in particular
cases, recognizing the practicalities of installing and
operating technical equipment, as well as the nature
of the violation and the public necessities—e.g.,
health, safety and welfare—at stake.

If the EPA is a party to the civil action, either as
the plaintiff in a federal enforcement action or as
an intervenor in a citizen suit (see 33 U.S.C. 1365
(c) (2)), the court will have the recommendation of
the Administrator as to the appropriate form of
relief." Ordinarily, we would expect a district court

2 Federal NPDES permits must also satisfy state water
quality standards. Section 401(a), 33 U.S.C. 1341(a). In
some cases, these standards require more stringent conditions
than those indicated by national effluent limitations.

21In developing a remedial program, the Administrator
considers such factors as the practicality of a time schedule

20

to defer to the EPA’s judgment of an appropriate
remedial order absent a finding that the EPA’s
request is arbitrary or capricious or ignores
relevant factors. In cases such as this, where the
EPA is not a party to an action and has not other-
wise addressed the question of an appropriate rem-
edy (through, for example, a compliance order (33
U.S.C. (Supp. III) 1819(a)(1)), a district court
must fashion a remedy independently. The primary
purpose of any order must be to bring the discharger
into compliance with the Act within a reasonable
time.” But the court should not close its eyes to
appropriate equitable considerations in establishing
a compliance schedule.

II. THE DISTRICT COURT PROPERLY FORMULATED
A REMEDY DESIGNED TO BRING THE NAVY
INTO COMPLIANCE WITH THE CLEAN WATER
ACT

The district court directed the Navy to apply for
an NPDES permit, but declined to enjoin the Navy
activity that results in discharges pending issuance
of the permit. First and foremost, the district court’s
remedy was designed to bring the Navy into compli-

for compliance, good faith of the discharger, national uni-
formity of treatment for classes and categories of discharg-
ers and competing interests in health, safety and welfare.
And, while lack of environmental damages is not a defense to
violation of the Clean Water Act, the likelihood of irreparable
degradation of water quality would suggest rigorous remedial
action. Cf. 40 C.F.R. 123.9(c).

22 Remedial orders often involve a timetable for completion
of treatment facilities, hiring and training of personnel and
other technical issues. See, e.g., City of Milwaukee v. Illinois,
supra, slip op. 4-5, 15-16. For this reason, district courts
often order the parties to negotiate a remedial program, or
otherwise rély on the parties’ expertise.

21

ance with the Clean Water Act. Second, the remedy
took into account the particular equities presented:
the lack of perceptible environmental damage, the
countervailing interest in national security, and the
past conduct of the parties.

The district court found the Navy in violation of
the Clean Water Act because it had failed to obtain
an NPDES permit pursuant to Sections 301(a) and
402 of the Act, 33 U.S.C. 1311(a) and 1342. There
was, however, no evidence that the Navy had vio-
lated any substantive limitation or standard un-
der the Act other than the permit requirement.
The district court found, and the court of appeals
affirmed, that the Navy activity complied with Puerto
Rico water quality standards (Pet. App. 18a-22a,
81la-86a). The EPA has not issued effluent limita-
tions guidelines for occasional deposits of ordnance
pursuant to Sections 301(b) and 804(b), 33 U.S.C.
(Supp. IIT) 1811(b) and 1314(b). See Z. I. du Pont
de Nemours & Co. v. Train, 480 U.S. 112, 130-
133 (1977). In fact, no effluent limitations guide-
lines have been promulgated for activities resem-
bling depositing ordance unintentionally in coastal
waters. See 40 C.F.R. Part 400 et seg.” In
these circumstances, an injunction restraining the
Navy activity would prohibit what the agency ad-

23 In a somewhat similar situation, problems associated with
the deposit of shot into the water by duck hunters who miss
their targets have been regulated by the Secretary of the
Interior under the Migratory Bird Treaty Act, 16 U.S.C. 703
et seq. See National Rifle Association v. Kleppe, 425 F. Supp.
1101 (D.D.C. 1976), aff’d, 571 F.2d 674 (D.C, Cir. 1978). The
EPA aided the Department of the Interior in developing these
regulations; there was no suggestion that duck hunters need
an NPDES permit to comply with the Clean Water Act.

22

ministering the Clean Water Act ultimately may find
acceptable in issuing an NPDES permit.”

Beyond the public interest in bringing the Navy
into compliance with the Act, the purpose and poli-
cies of the Clean Water Aci do not demand more
rigorous remedial action. The district court found
“no credible evidence * * * that any of the [Navy
activities] has had any measurable deleterious effects
* * * on the quality of the surrounding waters” (Pet.
App. 80a), and concluded that “the activities of de-
fendant Navy are not causing any appreciable harm
to the Vieques ecology” (Pet. App. 162a). The evi-
dence presented at trial established that the Navy’s
activity on Vieques—including the occasional, inad-
vertent release of ordnance into the coastal waters—
does not adversely modify the ability of the waters to
sustain animal or plant life through turbidity, sedi-
mentation or changes in chemical composition (Pet.
App. 80a, 115a-126a). The coral reef and seagrass
systems in waters surrounding the island were found
to he healthy, functioning components of the marine
environment. In fact, the district court reached the
overall conclusion that “the [Navy’s] control of
large area of Vieques probably constitutes a posi-
tive factor in its overall ecology” (Pet. App. 115a).
More specifically, it noted that “these waters are as
aesthetically acceptable as any to be found anywhere,
and [respondents’] witnesses unanimously testified
as to their being the best fishing grounds in Vieques”
(Pet. App. 86a)” Therefore, the district court found

4 Should the NPDES permit impose conditions or limita-
tions that the Navy did not meet, additional remedial relief
might then be appropriate. However, if those circumstances
arose, we would expect the Navy to obtain an exemption. See
note 30, infra.

25 The court of appeals conceded that the record supports
the district court’s finding that the dropping of munitions

23

an immediate cessation order was not necessary to
protect the aquatic environment.”

In addition, there are significant and exceptionally
strong equitable considerations arguing against the
imposition of a cessation order in this case. The dis-
trict court properly declined to enter injunctive relief
that would have a profound adverse impact on the
ability of the Atlantic Fleet to satisfy its national
security obligations. The Navy weapons training
facilities in and around Vieques are unique in the
Atlantic. They provide the Atlantic Fleet with the
opportunity to train under conditions resembling ac-
tual combat. The quality of training experience of-
fered by the Vieques facilities cannot be duplicated
by use of other Navy target ranges (see pages 2-3,
supra). Every vessel from the Atlantic Fleet as-
signed to active duty in the Mediterranean or the
Indian Ocean must qualify its guns on the Vieques
range (see Pet. App. 164a-165a).”

Finally, consideration of the actions of the parties
does not suggest that an injunction immediately re-

into the water caused no significant harm to the environment
(Pet, App. 48a-49a).

**The national interest in uniformity among classes and
categories of discharges is not implicated in this case because
the Navy activity is unique, and there is no possibility of the
Navy obtaining an advantage over its competitors by failing
to comply with the Clean Water Act.

27 The statute itself recognizes that there may be situations
in which the national security precludes compliance with the
Act’s requirements, and provides for a presidential exemption
in such situations (38 U.S.C. (Supp. III) 1828(a)). That
recognition strongly suggests that national security interests
are a proper factor for the court to consider in fashioning
appropriate relief where ultimate compliance with the statu-
tory standards can be achieved and the agency has elected to
comply with the Act rather than to seek an exemption.

24

straining Navy activity on Vieques is appropriate.
The Navy has, in the past, applied for and received
permits under the Clean Water Act for its activities
which result in discharges into waters of the United
States.” The EPA made several inspection visits to
Vieques to ascertain the Navy’s compliance with
various environmental laws and the Puerto Rico En-
vironmental Quality Board, respondent herein, com-
municated with the EPA concerning the Navy’s com-
pliance with the Act. Neither of the agencies sug-
gested that a NPDES permit was required for the
release of ordnance that may, inadvertently, fall into
the coastal waters.

Nor did the respondents notify the Navy or the
EPA of their claim of violation of the Clean Water
Act prior to filing this suit despite the provisions of
Section 505(b)(1)(A) of the Act, 33 U.S.C. 1865
(b) (1) (A).” After the district court decision, the

28 These include NPDES permits for its wastewater treat-
ment facilities at Camp Garcia on Vieques and at Roosevelt
Roads Naval Station on Puerto Rico, It also obtained a per-
mit for construction of a boat ramp on Vieques pursuant to
Section 404 of the Clean Water Act, 33 U.S.C. (Supp. III)
1344 and Section 10 of the Rivers and Harbors Appropriation
Act of 1899, 83 U.S.C. 403.

2° Section 505(b) (1) (A), requires a sixty-day notice to the
alleged violator and the EPA as a prerequisite for a citizen’s
suit to enforce the provisions of the Clean Water Act. See
Middlesex County Sewage Authority v. National Clammers
Association, No, 79-1711 (June 25, 1981), slip op. 6-7. The
notice requirement was copied from the similar provision in
the Clean Air Act Amendments of 1970, 42 U.S.C, (Supp.
III) 7604. See Legislative History 820. The purpose of the
notice requirement, as stated in the Clean Air Act legislative
history, is to allow the administrative authorities time to
act on the alleged violation. 8. Rep. No, 91-1196, 91st Cong.,
2d Sess. 37 (1970), reprinted in A Legislative History of the
Clean Air Act Amendments of 1970, 98d Cong., 2d Sess. 437
(1974). A subsequent citizen’s suit is to be considered “against

25

Navy expeditiously filed an application for a NPDES
permit with the EPA (see page 6 note 5, supra).
The delay in issuing the permit has been due to the
need for the EPA to.devise ad hoe conditions for the
permit pursuant to Section 402(a), 38 U.S.C. (&
Supp. III) 1842(a); it is also due to Puerto Rico’s
reluctance to certify compliance with local water
quality standards under that Section. But see Pet.
App. 18a-22a; 81a-86a.

This past conduct of the parties argues forcefully
against imposition of an injunction requiring immed-
iate cessation of Navy activity. The respondents
made no efforts, formal or otherwise, to notify the
Navy about, or seek a cure for, what they perceived
to be a violation of the Act prior to invoking the
equitable powers of the courts. The Navy, however,
has shown itself willing to cooperate with environ-
mental agencies and has offered no grounds for a
belief that it will fail to comply with the standards
those agencies develop. In these circumstances it is
not equitable for the Navy alone to bear the burden
of the delay attendant upon developing and approv-
ing an NPDES permit in this case.”

the background of the agency action” and such action could
justify dismissal or suspension of the citizen’s suit. /bid.

In the present case, respondents filed suit without advance
notice and then filed a supplemental complaint sixty days
later to satisfy the jurisdictional requirements of Section 605,
83 U.S.C. 1865 (J.A. 71-72).

*” The possibility of a presidential exemption pursuant to
Section 318(a), 33 U.S.C. (Supp. III) 1828(a), does not alter
this analysis. Section 818(a) authorizes the President to
“exempt any effluent source of any department * * * in the
executive branch from compliance with any * * * require-
ment if he determines it to be in the paramount interest of
the United States to do so * * *.” Exec, Order No, 12088, 43

26

In any event, should this Court harbor doubts as
to the appropriateness of the district court’s exercise
of equitable discretion, the proper course would be to
remand that issue to the court of appeals for consid-
eration under the correct legal standards. In the de-
cision below, the court of appeals did not find that
the district court abused its discretion in fashioning
relief, but that the lower court lacked discretion to
decline to enter an injunction immediately restrain-
ing the violating activity (Pet. App. 48a-49a).” It
is the court of appeals’ erroneous application of the
standards for injunctive relief derived from TVA v.
Hill, swpra, to these very different circumstances that
must be reversed.

Fed. Reg. 47707, 47709 (1978), which implements the exemp-
tion authority, is designed to restrict exemptions to extraor-
dinary circumstances. The EPA Administrator and the
Director of the Office of Management and Budget are to
mediate exemption requests submitted by agency heads. The
federal agency is required to certify in the exemption request
that it cannot meet the applicable pollution control standards.
Exemptions are granted by the President only if the conflict
between pollution control standards and crucial federal activi-
ties cannot be resolved through the development of a prac-
ticable remedial program.

If the possibility of an exemption alters the equitable bal-
ance so as to subject the agencies of the United States to
automatic injunctions, it essentially shifts the burden of de-
vising an equitable and practical remedial program from the
courts to the Office of the President. In the absence of a clear
cungressional statement of intent, the courts should not
abdicate their responsibility to fashion appropriate equitable
relief.

*1 For this reason, respondents’ apparent suggestion that
the court of appeals merely applied traditional equitable prin-
ciples “tempered by the obligation to carry out the statutory
mandate” (Resp. Br. in Opp. 12) simply misreads the opinion
below.

27
CONCLUSION

The judgment of the court of appeals should be
reversed.

Respectfully submitted.

Rex E. LEE
Solicitor General

ANTHONY C. LIOTTA
Acting Assistant Attorney General

EDWARD J. SHAWAKER
ANNE 8. ALMY
Attorneys
CAPTAIN THOMAS E. FLYNN
Office of Judge Advocate General

RICHARD M. CORNELIUS
Assistant General Counsel
Department of the Navy

NOVEMBER 1981

He ov. 8. CovERNMENT PRinTine OFrice; 1961 358134 690

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_2169%3A5. Public record. Not legal advice.