WEINBERGER v. ROMERO-BARCELO

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ORAL ARGUMENT OF ELINOR H. STILLMAN ON BEHALF OF THE PETITIONERS

Chief Justice Burger: We will hear arguments first this morning in Weinberger against Romero-Barcelo.

Mrs. Stillman, you may proceed whenever you are ready.

Mr. Stillman: Mr. Chief Justice, and may it please the Court:

This case is here on Writ of Certiorari to the United States Court of Appeals for the First Circuit.

Petitioners seeking reversal of the Court of Appeals judgment are the Secretary of Defense and officers of the Navy and the Marine Corps.

This action, which was brought by the Governor of Puerto Rico and others to enjoin the Navy's use of Vieques Island for weapons training, raised claims under a number of different statutes.

But the issue for review in this Court is simply whether a district court, upon finding a violation of Section 301(a) of the Clean Water Act respecting discharges of ordinances is required, regardless of circumstances, to enter an order directing the immediate cessation of the activity producing the discharge.

The court of appeals read the Act as imposing such a constraint on the court's remedial discretion, and it thus held that the district court lacks discretion to enter a less extreme order requiring the Navy promptly to seek a National Pollutant Discharge Elimination System Permit, commonly termed an NPDES permit, for the intermittent discharge of pollutants into the waters of Vieques Island that are part of the principal Naval Weapons Training area for the Atlantic fleet.

Petitioners submit that either the language nor the purposes of this Act require this constraint on a district court's traditional exercise of discretion in shaping equitable relief.

Indeed, the court of appeals' holding represents an unprecedented construction of the Clean Water Act, requiring an all-or-nothing approach to enforcement which would preclude any kind of credible enforcement program by EPA or by authorized state agencies.

Before discussing these larger implications of the court of appeals' holding, however, I would first like briefly to summarize some of the factual findings which led the district court to conclude that the order it entered adequately vindicated the interests of the Clean Water Act.

The eastern half of Vieques Island is part of what is known as the inner range of the Atlantic Fleet Weapons Training Facility headquartered at Roosevelt Roads Naval Station on the main island of Puerto Rico.

Ships, planes and Marines landing in amphibious maneuvers fire at air-to-ground targets, ship-to-shore targets, and artillery targets located in narrow zone on the eastern end of Vieques.

Both inert and live ordnance is used.

The exercises which take place some 200 days a year are coordinated from Roosevelt Roads and from an observation point on Vieques.

They are essential to the maintenance of operational qualification standards for the Atlantic Fleet.

Vieques is the only location presently available in which the fleet can engage in a full range of exercises simulating the conditions of actual combat.

In the course of these exercises, some of the ordnance misses the land-base targets and drops into waters within the three mile limit of Vieques.

Under terms of the Clean Water Act, this is a discharge of a pollutant from a point source, requiring an NPDES permit.

This is so because the definition of pollutants includes munitions, and a point source is any discrete conveyance including vessels.

EPA has never developed any effluent limitation guidelines for a point source class or category of military forces conducting weapons exercises.

Hence, the Navy committed no violation of any existing technology-based effluent limitation under the Act.

And the district court, following the trial of some 50 days, determined that the Navy's activities did not violate any of Puerto Rico's water quality laws, that no credible evidence established that the discharges had any measurable deleterious effect on the Vieques waters, and indeed, that there was no appreciable harm to the Vieques ecology.

In fact, the court concluded that the Navy's presence on Vieques had, on the whole, worked to the benefit rather than the detriment of the environment there.

And this was so because the Navy had to place restrictions on a large area around the area in which the weapons training is carried on, and these restrictions limited the amount of human trespassing that had caused problems for some of the area... would have caused problems absent these restrictions.

In sum, on the record there appeared to be no violation of any water quality standards or any technology-based standards, and the Navy's lack of an NPDES permit was the only apparent violation of the Clean Water Act.

Unidentified Justice: Mrs. Stillman, I take it that the EPA was prepared to issue a permit, but was unable to do so because Puerto Rico had refused to certify compliance with local water quality standards.

Is there no way that the Navy can challenge Puerto Rico's refusal, or is that going to be a permanent?

Mr. Stillman: The Navy can challenge the refusal.

I must say that that is still in litigation at the administrative stage in Puerto Rico.

There is still a motion for reconsideration pending, at least the last time I checked.

And we understand that the Environmental Quality Board there will probably issue a decision on that February 26.

Unidentified Justice: And if that happened, it would solve the problem.

Mr. Stillman: Well, if they grant the certification I think the permit probably would issue then because EPA has developed a draft permit under which, I might add, the Navy would be required to monitor water quality and make reports.

Unidentified Justice: And also, I understand the President could give an exemption from the permit requirement.

Is that right?

Mr. Stillman: Yes, he could.

I was going to get to this later in my talk, but since you bring it up I'll address it now.

Section 313 of the Act provides for a presidential exemption.

There are two kinds of exemptions.

There is one exemption for an effluent source of any agency, Executive Branch agency or department, for one year.

It's an exemption from Sections 306 and 307 of the Act, if the President finds it in the paramount interest of the United States to do so.

There's a second exemption provision which may be given for three years.

It has to be done by regulation.

And this can be for weapons of the military forces and related military equipment.

Now, respondents have suggested, and certainly, the court of appeals seemed to rely on this also, that the existence of this exemption provision somehow meant that the district court was denied discretion to do what it did in the case here.

That this exemption provision must be the only way that you can ever allow, even for a limited time, any carrying out of military exercises without a permit.

We strongly believe this is wrong.

For one thing, I think it's got to be understood that the exemption is not the equivalent of what the district court did here.

Under the three-year exemption, the Navy would not be required to do what it will be required to do under this permit.

Under the permit, if it issues, the Navy will be required to monitor, I believe, nine different, they call them parameters, but it's monitoring for rhinos like iron and acidity and so on.

Unidentified Justice: Mrs. Stillman, couldn't the President take care of that?

Couldn't he say to the Navy, we would like you to follow these restrictions?

He would have the authority, I suppose.

Mr. Stillman: He could, but under the statute we think, that--

Unidentified Justice: Well, he presumably wants to obey the law, I suppose.

Mr. Stillman: --But he could issue the exemption without disobeying the law.

Unidentified Justice: He would have the power to grant a total exemption, but do you think it's correct to assume that he would never exercise his discretion in a sort of a discretionary way and say well, I'll grant the exemption but only with these strings attached.

Mr. Stillman: No, I don't suggest there are limits on his discretion.

We're simply saying that we think the best accommodation under the best way of accommodating the interests of the Clean Water Act here is to find a solution where the court doesn't have to choose between on the one hand saying that national defense efforts will be held up, and on the other hand saying get an exemption, which may not require you to do anything.

Unidentified Justice: But if you lose in the proceedings going on in Puerto Rico, aren't you going to be confronted with exactly that choice?

Mr. Stillman: Well, that's right, the Navy would be confronted with that choice, but we think unless--

Unidentified Justice: And then what relief should the district court give?

Mr. Stillman: --Excuse me?

Unidentified Justice: If that happens, then what relief would be appropriate?

Mr. Stillman: If... may I say that one of the factors in deciding whether or not to seek an immediate cessation order on the part of the government is whether you think the applicant seeking the permit will ever be able to comply.

If the handwriting is on the wall--

Unidentified Justice: The answer would be no, if you lose in Puerto Rico, wouldn't it?

Mr. Stillman: --If we lose.

But... that's right.

If you came to some point where it was clear there were no appeal procedures, that they were going to refuse the certification, at that point I think the exemption clearly... we think that that is what the exemption was created for.

These exemptions were not created to be a routine use; that is, the--

Unidentified Justice: But you've already told us this is not a routine case, this is a very important military area.

Mr. Stillman: --Well, that's true.

But we think that it's better to have water quality standards set by the EPA than by the Office of Management and Budget, the President's Executive Branch.

That is, it betters serves the purposes of the Act to let the situation be handled under the processes of the Act, if that's possible.

Unidentified Justice: But what is the process of the Act if you lose in Puerto Rico?

I don't understand your position.

If you just can't get a permit, which is certainly conceivable--

Mr. Stillman: That's right, it's conceivable.

Unidentified Justice: --then your only choice, it seems to me, is either to comply with the statute or to get a presidential exemption.

Mr. Stillman: Well, that's true at that point, but we are not at that point in the case, and the district court was not at that point when it issued the order here.

Unidentified Justice: But you may be there in about three days.

Mr. Stillman: No, because there--

Unidentified Justice: Didn't you say February 26th is the decision date?

Mr. Stillman: --But there are appeal procedures from that.

That is not a final order.

Unidentified Justice: Mrs. Stillman, then I take it the government does not contest the need to get the permit?

Mr. Stillman: Does not contest the need to get the permit?

Oh, no, no, we did not appeal from the finding of a violation of the Act.

That is a technical violation.

We did not appeal the court's finding that this was covered by the permit provisions.

Unidentified Justice: And if the remedy had comported with what you thought was proper, they just wouldn't have enjoined you from doing it, from continuing with the activity.

Mr. Stillman: That's right.

Unidentified Justice: That is sort of a declaratory Judgment.

Mr. Stillman: Well, there is an order entered.

The order says to the Navy, you have to apply for a permit.

Unidentified Justice: Yes, but if you applied and you didn't get it, then an injunction would be proper, you think.

In this case.

Mr. Stillman: If it were absolutely clear that no permit... at the very end where it becomes clear that the denial of certification is going to stick and that there is no further recourse, at that point we might say the injunction is proper.

But even there, there might be provision, an equitable provision for reasonable time to get the exemption issued.

I don't want to give up on that.

Unidentified Justice: I suppose if we took this case under advisement and if the average time of getting an opinion out is 60 days, that the case might be moot by that time.

Mr. Stillman: I doubt that very much, Your Honor, simply because this opinion that may issue from the Environmental Quality Board on the 26th is not the final word, necessarily.

We have various appeal routes that we can take, and so I don't see how the case would be moot at that point.

Unidentified Justice: Suppose you get the permit.

Mr. Stillman: If we get the permit--

Unidentified Justice: Would it be moot then?

Or is that subject to review, administrative or otherwise?

Mr. Stillman: --There are review provisions for attacking the permit.

I think once we have the permit in its final... if the permit is only in draft form... now, once we have the permit in its final, certainly the case would probably be moot at that point.

Unidentified Justice: Probably would be.

Will we know this by the 26th?

Mr. Stillman: We would advise... oh, well, we wouldn't have the permit by the 26th.

There are a lot more procedures that have to be gone through.

Unidentified Justice: Even if the Board says yes, you may have it, how long is it going to take you to get it?

Mr. Stillman: Your Honor, I don't know exactly how long these procedures take.

Unidentified Justice: Should we decide the case, if the Board says yes, you may have a permit but it will take us some time to get it out?

Mr. Stillman: I am advised that it might take 90 days to get the final permit, even after the certification is issued.

Unidentified Justice: Is the certification appealable by, say, the Governor who is opposing the whole thing?

Mr. Stillman: I suppose the Governor could object to... I don't think it's a case in which only one side can take an appeal.

I should say that the Environmental Quality Board is part of the Governor's office.

I was Just reminded.

However, it may be one of those agencies like the National Labor Relations Board... it may be a split agency where there would be someone who could take an appeal.

Unidentified Justice: This whole thing has been going on for about 20 years, hasn't it?

Mr. Stillman: Excuse me?

Unidentified Justice: This whole problem has been going on for about 20 years, trying to get the Navy off of there.

Mr. Stillman: It has a long history, Your Honor.

Unidentified Justice: I don't know exactly how many years.

Mr. Stillman: Well, the Navy has been there since World War II, and there has been some kind of target practice going on there since I believe at least the late sixties and early seventies, and it started, I think the findings indicated in its present intensity at least, in 1975.

And I might say that a witness from EPA who testified in the trial hearing indicated that EPA had never had any requests from the Environmental Quality Board in Puerto Rico to find that the shelling activity was a violation of the Clean Water Act.

They had had some notification concerning suits.

Unidentified Justice: Well, they couldn't bother with that they were so busy arguing it in the newspapers.

Mr. Stillman: Well, I don't know about that.

I do know that their complaint was something of a shotgun complaint and they did seem to be relying on a number of grounds and the Clean Water Act was only one part of the case, and that is the part that has come up here.

Unidentified Justice: Incidentally, Mrs. Stillman, are the exercises now suspended?

Mr. Stillman: No, they are not.

They are not.

And I want to make clear that we're concerned about this case not just because of the Navy, although certainly that's a very strong interest here.

We're concerned about the workings of the Clean Water Act as a whole because the use of compliance schedules has just been common place in this statute.

If it were really the case that when EPA wanted to take an enforcement action against a discharger of pollutants who is in violation of 301(a) of the Act, which covers a number of... you can be in violation in terms of your permit or not have a permit and so on--

If the question they have to face is either we don't take any action at all or we have... we go to court, and the only action that can be taken is that they're going to shut down the whole operation, it really would make this Act unworkable, and the Act has never worked that way.

This decision of the First Circuit really was quite unprecedented and just simply not consistent with the way the statute has worked.

Unidentified Justice: Is there any power under the statute in the EPA to grant any kind of temporary relief pending the final resolution of these questions?

Mr. Stillman: On the part of EPA administratively?

Unidentified Justice: Yes.

Mr. Stillman: Well, EPA can issue administrative compliance orders--

Unidentified Justice: A temporary permit or anything of that kind?

Mr. Stillman: Well, the court, by... this action was in court, so it's really a question of what the court was going to do here.

Unidentified Justice: Right, but I'm asking whether there is administrative relief available as well.

Mr. Stillman: Well, under Section 309, the Administrator can issue compliance orders, and... I don't know what you mean by temporary relief.

I guess that's what I' m not sure.

What we're trying to suggest is that there are a whole range of remedial responses, either administratively or judicially, which can take the form of, for example in some of these consent decrees, having civil penalties for every day that they are not meeting the schedule.

But this, of course, comes up in a citizens' suit, and so it is not in the framework of a general enforcement action.

Unidentified Justice: Do you think the framework of the whole statute indicates an intention on the part of Congress to take it out of the realm of the courts, if you will, and have these problems solved administratively, in effect?

Mr. Stillman: Your Honor, do I understand... are you touching on the point that respondents made that somehow the discretion that we want to give the court here is undermining EPA's permit review?

Unidentified Justice: Yes, I think that was argued by the respondents.

Mr. Stillman: Well, I don't think that's happening here.

For one thing, when a citizens' suit is filed, EPA gets notice and the Administrator can intervene or file his own suit, or... and he is free at any time.

If the Administrator thought that there was a situation here that demanded emergency action, that demanded immediate cessation remedy, he has emergency powers under Section 504 of the Act to go in and ask the court for that.

Evidently, EPA did not think that was the case.

And also, I might point out that the order that the court has given here is to invoke the EPA review processes.

That is, they ordered the Navy, go get the permit, at which point the Navy has to submit an application to EPA.

And EPA has not been left out of this process.

It is not cordoned off by what the court did here in any way, and we don't think that it really undermines EPA's participation or EPA's role.

I would like to also touch on the reliance that the other side has placed on TVA against Hill and Steelworkers against United States, because they suggested that this is just a case in which we are trying to say pay no attention to what Congress did; Congress did something very unwise here, and do it this way because we think this is a better way of doing it.

We think TVA v. Hill was a very different case.

In that case, the injunction sought was to enjoin the closing of the gates of Tellico Dam.

If, in fact, those gates had been closed, this would have resulted in the destruction of the critical habitat of an endangered species, against the direct prohibition of the statute.

And this kind of irreversible and prohibited result was inconsistent with what Congress seemed clearly to require.

In the Steelworkers case there was a very specific remedial directive from Congress... upon making these factual findings, give the 80-day Taft-Hartley injunction.

Now, that is a very different situation from the provision for judicial relief in this case.

As I said, there is a provision for immediate cessation orders; that is in Section 504 of the Act.

And that is upon certain emergency findings.

Now, we don't, of course, suggest that the fact that that remedy is specified in Section 504 means it would be unavailable in federal enforcement suits under 309 or in citizens' suits under 505.

We only suggest that since Congress didn't even mention it in these other two statutes, it can't have meant that that was the only remedy that could be given in those statutes.

I also want to make it clear that the kind of discretion that we are talking about here is a discretion to time final compliance.

We are not suggesting that there's any discretion to vary standards of the Act.

In other words, the court would not be free to say well, this discharger is not harming water quality standards; therefore, he is not going to have to comply with the technology-based effluent limitation.

The court can't do that.

The court also couldn't say well, there's a discharge here but it's quite harmless and it looks to us pretty unimportant, and so therefore, we're going to excuse him from compliance with the permit.

Unidentified Justice: Let me interrupt if I may.

You say it's just a question of timing then, when they must stop completely, assuming you don't get--

Mr. Stillman: That's right.

Unidentified Justice: --Why is it any different to stop six months from now instead of now?

I don't understand what... it's not as though you had to build a facility to get in compliance; just get them to stop shooting off the artillery.

Mr. Stillman: Well, the timing in this case... if they get this permit, the draft permit, they won't have to stop.

Unidentified Justice: No, but it seems to me you are conceding that if you lose in the other proceeding, then relief would be appropriate.

And then would relief forthwith be appropriate?

Mr. Stillman: Well, I was trying to suggest that it might be open to a court of equity to provide time to get--

Unidentified Justice: Time to do what?

Mr. Stillman: --Get the exemption.

Unidentified Justice: You mean from the President?

That the Navy is asking time to appeal to the Commander-in-Chief?

Mr. Stillman: Well,--

Unidentified Justice: I mean, are you serious about that argument?

If it is determined that there is no way to comply with the statute, is there any reason why an injunction should not then issue forthwith?

If there is a reason, what is it?

Mr. Stillman: --I see the logic of your position, Your Honor.

I'm reluctant to make these kinds of concessions, but no, I consider if--

Unidentified Justice: All right, well, I won't ask you to.

May I ask you this question.

Mr. Stillman: --I understand that it certainly makes sense to say if it's clear that a discharger cannot comply with the Act ever, that probably the rationale for certainly compliance schedules don't make too much sense.

However, I should say--

Unidentified Justice: As I understand the rationale of the compliance schedule problem it is that the entity just needs time to build the appropriate facility or something.

But that's not involved here.

You Just either are going to continue the activity or discontinue it, one of the two.

Mr. Stillman: --While we are seeking to comply with the Act.

It takes a while to go through the permit process.

We think the principle should operate in both cases.

I might say also on the other point, that sometimes a discharger will say to EPA, we've decided, we understand that we are never going to be able to meet these effluent limitations.

And in that case, they announce an intent to cease their activity.

But even in that case, sometimes schedules are worked out--

Unidentified Justice: Well, sure, because there's a big economic investment that has to be taken care of.

I can understand that.

But I don't quite see how that applies to this case, particularly when you've got such a clear remedy available.

Mr. Stillman: --Well, Your Honor, are you suggesting that this was an abuse of discretion or that there is no discretion?

Because I think the question of the exercise of discretion is not really up here.

What's up here is what the First Circuit said, which is the court simply has no discretion in these cases, and that's really what we are--

Unidentified Justice: Well, is there a case... do you have any support... I know you rely on the Hecht case... but any case in which a government agency has been violating the law and it is within its power to cease the violating forthwith, and the court has said well, go ahead and continue violating?

Mr. Stillman: --Well, I'm not sure there's any case that has quite the facts of this where ceasing the violation forthwith is ceasing an activity which would be permitted under the permit that it's seeking.

Unidentified Justice: But it's illegal as of today.

Well, what... could the court have said you are enjoined until you get the permit?

Wouldn't that sort of urge you to get it a little faster?

Mr. Stillman: Well, it might, but we are only suggesting that the court didn't have to do that.

Unidentified Justice: Well, wouldn't the court... doesn't the court have that authority?

Mr. Stillman: We say the court has... certainly, the court has equitable discretion.

And even a court of equity exercising the kind of discretion that we're saying it has here, of course, has discretion to enter an injunction upon a proper balance of factors.

But as we understand the question that we are asking this Court to resolve, it is does the court have discretion to enter this kind of order upon a proper showing of factors.

And that is what the First Circuit said, is they don't.

Once there's a violation, once there is a literal violation of the Act, that's it, and you have to have an immediate cessation of the discharge.

Unidentified Justice: Well, what would happen under this if this case had not come up here, and 20 years from now they have never gotten a permit?

Mr. Stillman: Well, I know the mills grind slowly, but I expect that there will be a final answer before 20 years are out.

Unidentified Justice: Well, it's sort of repealing the law, isn't it?

Mr. Stillman: No, we don't believe so.

We think that the Navy has been ordered to apply for this permit, it's going through the process in good faith, it's doing the best it can to get the permit.

What slowed it up, quite frankly, is the refusal of the Environmental Quality Board of Puerto Rico to certify, even though the district court and the court of appeals both looking at this discharge didn't think it was covered... or violated Puerto Rico water quality laws.

Unidentified Justice: If we read the court of appeals' opinion literally, I take it you're suggesting that that court has narrowed the traditional jurisdiction of a court of equity.

Mr. Stillman: That's correct.

Unidentified Justice: Now, could the Congress... I don' t know that we need to decide it, but could Congress alter the scope of equity jurisdiction which is vested in federal courts?

Mr. Stillman: Congress may.

We don't believe it did so in this case, Your Honor.

I would like to reserve the balance of my time, if I could.

Chief Justice Burger: Mr. Hodges?

ORAL ARGUMENT OF JOHN A. HODGES, ESQ. ON BEHALF OF THE RESPONDENTS

Mr. Hodges: Mr. Chief Justice, and may it please the Court:

This case presents a simple and stark fact.

The district judge, Judge Torruella, made a determination that Congress determined should be made by the President of the United States.

Unidentified Justice: Mr. Hodges, before you get too far, I would just like to call your attention to our Rule 34 with respect to a summary, 34(1)(h).

Your summary is nine lines long and covers one paragraph.

It doesn't appear to me that that is a very adequate summary.

I just call your attention to that for future reference.

Mr. Hodges: Your Honor, I appreciate that.

We do feel that this case does present a simple question.

Unidentified Justice: Well, that's just a conclusory statement in your summary.

And if that's all you needed to say, you didn't need to file the rest of your brief.

Mr. Hodges: Your Honor, we believe that this case presents an overriding consideration of the proper allocation of functions among the three branches of the government.

If ever there was a comprehensive statute, it is the federal Water Pollution Control Act.

In fact, this Court pounded that point home again and again in the City of Milwaukee v. Illinois.

Indeed, Congress addressed and resolve the very question that is at issue here.

It laid down an explicit requirement that prohibited federal facilities from discharging munitions into the navigable waters of the United States without a permit.

The permit is, indeed, the core of this Act.

It defines and facilitates both compliance and enforcement.

And the legislative history of this Act indicates--

Unidentified Justice: Mr. Hodges, what is the language of the Act you rely on to cover discharge of munitions?

Mr. Hodges: --Your Honor, Section 30... a combination of Section 301(a) of the Act which states that except as in compliance with, among other things, Section 402 of the Act, all discharges are prohibited.

I then tie that into Section 313(a) of the Act, which provides that the federal facilities shall comply with the requirements of the Act.

And then I tie into the definitions section of the Act, which defines pollutants as including munitions.

Unidentified Justice: If I hit a golf ball into the ocean, am I polluting it?

Mr. Hodges: Your Honor, that... it is quite possible that you might be.

That case is not this case.

Unidentified Justice: Do you think a federal judge can't exercise any discretion in distinguishing between a golf ball or an old sweater that gets blown off the deck of a fishing vessel or something, and some other genuine pollutant?

Mr. Hodges: Your Honor, I think that there may be other cases.

Congress has not indicated that a court would have that kind of discretion.

I would say, however, Your Honor, that in this particular case, Congress has specifically identified munitions to fall within this prohibition.

It has addressed this question and has resolved it.

Other questions could come up... shooting a duck, for example.

I know that's been raised by the government.

Some day we may end up with a duck case, but the duck case doesn't decide that case here.

Unidentified Justice: Do you think equity jurisdiction in the federal district judge today is different from what it was in 1787 in terms of traditional discretion?

Mr. Hodges: Your Honor, in regard to that I would like to Your Honor's decision, this Court's decision and Your Honor's opinion in TVA v. Hill, which indeed, this Court has applied in the City of Milwaukee v. Illinois case in which it stated that the concepts of equity jurisprudence only go so far.

And once a court is facing a statutory violation, and once Congress has spoken and has said what it wants done, and if the statute is not unconstitutional, and there's no question about that here, then should enforcement be sought and liability be shown, enforcement should be given by the court.

Unidentified Justice: And you think this statute is as categorical as the three statutes involved in TVA against Hill.

Mr. Hodges: Absolutely, Your Honor.

In fact, I think there is no distinction between thou shalt not kill this three-inch fish, and thou shalt not pollute without a permit.

Unidentified Justice: Why go to a court?

Mr. Hodges: Your Honor, we--

Unidentified Justice: You don't want the court to be a rubber stamp, do you?

Mr. Hodges: --Your Honor, the reason we went to court was because of the fact--

Unidentified Justice: Why doesn't the statute require you to go to court?

Mr. Hodges: --Your Honor, Section 505 of this statute provides for a citizens' suit where a federal facility or other person is violating the Act, and that is what happened in this case.

Unidentified Justice: Well, all you want the court to do is to grant you an injunction.

Mr. Hodges: That is correct, Your Honor.

Unidentified Justice: And it can't do anything else.

Mr. Hodges: Your Honor, again, I would like to point out the distinction between this case and all other cases that may arise under this Act.

What we are trying to do--

Unidentified Justice: But am I right that the only action the court can take is to grant an injunction?

Mr. Hodges: --Your Honor, what we are asking is an affirmance of what the court of appeals did, which is that forthwith, the district court should take all steps to assure that no further illegal discharges of munitions are taking place until the permit is obtained or a presidential exemption is--

Unidentified Justice: Is there any way to do that without an injunction?

Mr. Hodges: --Yes, Your Honor, if the Navy--

Unidentified Justice: How?

Mr. Hodges: --If the Navy would halt its--

Unidentified Justice: No.

I mean how could the court do it outside of giving an injunction?

Mr. Hodges: --The court--

Unidentified Justice: Why don't you admit that you want an injunction or nothing?

Mr. Hodges: --Your Honor, that is what we want.

What I'm trying to do here is--

Unidentified Justice: I want to know what other statute can you point to me that says that the only thing the court can do is to put you in jail?

Mr. Hodges: --Well, Your Honor, this would not be going to jail.

I would like to--

Unidentified Justice: What statute says the only thing the court can do is issue an injunction?

Mr. Hodges: --Your Honor, in this--

Unidentified Justice: Won't you agree there's no such statute?

Mr. Hodges: --This raises a very good point, because--

Unidentified Justice: Wouldn't you agree there's no such statute?

Mr. Hodges: --Your Honor, the traditional test under--

Unidentified Justice: You don't have to agree.

Mr. Hodges: --Your Honor, the traditional test... and we try to point this out... reconciling the Hecht case, the Rondeau case, and--

Unidentified Justice: I read that.

The only thing they relied on was Hill.

Mr. Hodges: --Your Honor, I think the point here is the fact that we have prohibitions.

We have a Congress that has addressed the particular question involved and it has said exactly how it wants it to be handled.

Now, it provided a grace period.

The federal facility had a choice.

It was given by Congress a grace period which expired in 1974, and if it didn't want to have that permit, it could go to the President of the United States.

Which then, if that exemption were granted, would have to be reported to Congress.

Now, the judges... the Judicial Branch was the only branch of the three that was left out of the exemption process.

If there is any example of expressio unius est exclusio alterius, this is it.

The Judiciary was kept out of this process, and for a very good reason.

First, Congress said that's the way they wanted to handle it, and secondly, the presidential exemption procedure is inherently a political, technical and indeed, a military determination that a district court really isn't very good at making that kind of determination.

But what did the district court do in this case?

The Navy, when it was finally sued, went to the district court and induced it to release it for the interim period until it... while it was attempting to get a permit--

Unidentified Justice: May I correct you.

Did the Navy go to court or did you take them there?

Mr. Hodges: --We took them to court, and what they sought at that point... and they succeeded... was the district judge made a determination at that point... and I quote his words, taking judicial notice of the present state of world affairs and other factors that he considered, that he considered to be reasonable and equitable, and he determined that it would be in the paramount interest of the United States of America, in his determination, that the Navy be allowed to continue to violate the statute while it sought to get that permit.

Now, the court of appeals did not do that.

The court of appeals did exactly what the various determinations of this Court has been; it applied the statute with an acute view towards the purposes of indeed this statute.

It saw that compliance could be immediate; there were no facilities that had to be built or anything else.

It focused on these particular requirements, which was 301, the requirement with 402.

You need to have that permit before you pollute.

He said, if you want to get out of this thing, you go and you see the President.

But he did not do what the district court did, and I think that properly held that under those circumstances, was an abuse of discretion.

Unidentified Justice: Do you think there is a difference in the power of the court to exercise discretion on a temporary basis as it was attempted here by the district court, and the case of a permanent injunction?

Mr. Hodges: Your Honor, no.

We would say that because... Congress didn't write the law in that way.

What Congress said, as it has been repeatedly construed by this Court, that you must have a permit before you pollute.

And because of that fact, it didn't say--

Unidentified Justice: Of course, here we're dealing with inherent equity powers of the court.

And there is nothing express in the Act saying that courts should not have their inherent powers.

Isn't that true?

Mr. Hodges: --Yes, Your Honor, in this particular case I would say that there is.

We have a... all that is necessary we believe in the case is the substantive prohibition; the substantive prohibition that comes from Section 301(a) combined with Section 402.

You need to have that permit before you pollute.

And there's a good reason for it... to allow the expert agencies to take a look at this thing.

You do not need--

Unidentified Justice: All that says is that, you know, you've made out a substantive violation, but traditionally that is not all that a court of equity requires.

Mr. Hodges: --Your Honor, what the court of equity has required... again, it depends on what kind of tradition we're speaking of.

I would agree with that if we were speaking of a situation where there was no statute that was being violated.

But where a statute has been violated,... and I now refer to the decision in the Rondeau v. Mosinee Paper Corporation, and in the facts of the Hecht case where compliance has been achieved... there was a violation but there was no further violation... there was no need to grant an injunction.

But where... and I'm now referring to the Rondeau case... the traditional test of the granting of injunctive relief is, one, is there a violation, and secondly, is that violation ongoing.

And that is precisely the case here.

There is no question that the Navy has violated the statute, and there's no question that they continued to violate it at the time the act was done and they are doing it now.

Over 1000 bombs were dropped into the coastal waters of Vieques in the first seven months of 1981.

If there ever was an ongoing violation, that's it.

Congress said you can't do that.

Now, you can go to the President, the President can release you, but you can't do it in the way that the Navy has done it.

The district courts simply don't have that competence to be able... to make the determination.

The President and the courts are drinking out of different wells, as it were.

Think of the way in which a determination is reached by a court and the way it's reached by the President.

The President has the panoply of materials, computers, position papers, he can draw on anybody he wants to.

He can draw on the Navy, he can draw on the State Department, he can draw on a number of things.

The district court is faced with the record; it can't even take judicial notice of the President's state of affairs--

Unidentified Justice: Mr. Hodges, does the Act apply with the same force to a private operation, as you say it does to a government operation?

Mr. Hodges: --Yes, Your Honor, it does.

Section 313 of the Act ties the federal facilities into the other requirements of the Act, but it does apply to private persons, also.

Unidentified Justice: Let me put this case to you.

Let's assume, for example, that Pepco were operating a power plant on the Potomoac River that served the city of Washington, and that the facts in all other respects were identical to this case.

And assume further that the problem cannot be corrected in short of, say, three months.

Would the court have no authority to enter anything except an injunction?

Mr. Hodges: Your Honor, I think that... let me address it in a couple of ways.

First, we are restricted here to a situation of operation without a permit.

There are many cases in which someone does have--

Unidentified Justice: All right, let's assume all the facts are exactly the same.

Mr. Hodges: --Your Honor, I think that if compliance is physically possible, then yes,--

Unidentified Justice: Physically possible within three months.

Mr. Hodges: --If it is physically possible to comply forthwith, compliance should be required.

Unidentified Justice: But we are told it's not physically possible to comply in this case forthwith.

Mr. Hodges: Yes, Your Honor, it is.

All they have to do is stop dumping those things in the water.

Unidentified Justice: Well, in answer to Justice Powell's hypothetical, are you assuming that compliance on the part of Pepco could be attained simply by shutting down its plant?

And shutting down the city?

Mr. Hodges: That is quite possible, Your Honor.

I think we are not dealing here with this case.

Unidentified Justice: You think the Act requires that?

Mr. Hodges: I think the Navy has raised the point where they said look, dams are a point source.

There again, I--

Unidentified Justice: I am asking you, do you think the Act requires the shutting down of the plant in the example I gave?

Mr. Hodges: --Your Honor, I think that in a case where compliance is physically possible--

Unidentified Justice: Could you possibly answer it yes or no?

Mr. Hodges: --If it is physically possible, yes, it would require it.

Because--

Unidentified Justice: In three months.

Mr. Hodges: --During that interim period if it is physically possible, they would be required--

Unidentified Justice: And you define physically possible as shutting down the plant.

Mr. Hodges: --Yes, sir, I would.

Let me refer again to the other cases which this Court has decided.

In E.I. Dupont versus Train, again, the court was faced with the situation of a new source performance situation.

And the court was asked please agree to the variance here; and the court refused to do that.

They said look, the question isn't whether or not this is what is generally appropriate.

The question is what did Congress intend with respect to these particular questions, these particular provisions.

There is no exception... there is no different timetable than the one that the court... that Congress established.

It provided for a grace period already.

That's been slipped.

I don't think that we're going to find ourselves in a wholesale situation where everybody in the world is going to be shut down.

What is the class of people who are going to be gotten by this?

We're going to have the people who slipped that deadline, somehow snuck through and didn't get... didn't meet the deadline and now have been caught dead to rights.

Generally, that is what is going to be happening.

And under those circumstances,... Congress can change this Act if it wishes to do so.

And maybe the Navy has made a case that they should be presenting to the Congress.

But it is not up to the courts to do this.

And indeed, the concept of separation of powers is extremely important, and indeed, I would rely on the fact that in the City of Milwaukee case, this Court applied TVA v. Hill to this particular statute, saying that the usual concepts of separation of powers are too important to turn on the... what a court may think is equitable.

And indeed, it stated that this particular statute should not be construed in general terms of equity jurisprudence when Congress has, indeed, addressed and resolved the question.

Again,--

Unidentified Justice: But there, though, the people who had originally brought the action and seeking judicial relief were trying to get a different kind of relief than the EPA provided for.

And here it seems to me your people are trying to invoke the EPA statute and have the courts just issue an injunction whenever you see fit.

Mr. Hodges: --Well, what we're trying to do is... indeed, we are trying to do nothing more than what the statute provides.

And what the Navy is attempting to do--

Unidentified Justice: Well, where does the statute say in so many words that anytime a citizens' suit is brought, the court shall issue an injunction if it finds a substantive violation?

Does it say that anywhere?

Mr. Hodges: --Your Honor,--

Unidentified Justice: Can you answer it yes or no?

Mr. Hodges: --Yes, it does.

Unidentified Justice: Where?

Mr. Hodges: And I will say that it does that in the substantive prohibitions, and it does--

Unidentified Justice: Can you refer me to a section where it says that?

Mr. Hodges: --Yes, sir, I can.

Section 301(a) and Section 402, and Section... again, the requirement that as construed by this Court that you must have permit prior to this.

I'd like to--

Unidentified Justice: Is the word "injunction" in any one of those sections?

Mr. Hodges: --Your Honor, there... injunctions are specified--

Unidentified Justice: Is the word "injunction" there.

Now, you certainly can answer that yes or no.

Mr. Hodges: --Yes, Your Honor.

Unidentified Justice: Is the word "injunction" in any one of those things?

Mr. Hodges: Not in those substantive sections, no, that is correct.

However, Your Honor, we rely on the substantive sections, and I also rely on the fact that in... that this Congress did not write on a clean slate when it enacted the 1972 statute.

It took away a provision from the old statute, which indeed had existed since 1948, that allowed for the formulation of decrees by the court on the basis of equity and other factors.

That was gotten rid of by the court in... by the Congress in 1972 and in its place it substituted an elaborate scheme... extraordinary, 125 pages in the committee print... of exactly how Congress wanted to have these matters handled.

And under those circumstances, Your Honor, we feel that the thrust of this Act is to, with respect to having a permit, is categorical; it is required where compliance is, indeed, possible.

I'd like to briefly address certain questions, if I can, that were posed by the Navy here.

The fact that there were no effluent guidelines does not make... does not release the Navy from having to have a permit.

Section 402 says that prior to the time that any effluent guidelines or other provisions may have been enacted, a permit... that the EPA could put in any provision that it wishes to have.

Furthermore, the facts... the Navy says that well, they feel that this would be the best particular accommodation, that they think is necessary.

But again, this Court has said not what is appropriate, but what did Congress provide.

Let me make one other point.

The Navy has said that the interests of Puerto Rico really were protected by the district court.

But what this does is to really second-guess the entire process.

It second-guesses the administrative process, it second-guesses what the President had done.

And with respect to the administrative process, the administrative process that the EPA will go into is more than... well, are things being banged up out there.

They are going to look into monitoring, they are going to look into... which the Navy has already admitted is one of the criteria that is going to be looked into, or was provided in this particular permit.

When the EPA looks at this, it will cover other things like what kind of limitations, when, where, how, and a number of things that a district court simply does not look at.

And therefore, the interests of the particular state are, indeed, not protected by what the district court, this district court, did in this particular case.

Unidentified Justice: Mr. Hodges, don't you really think that TVA versus Hill can be read as establishing the principle that normally, federal courts will, of course, enforce federal statutes and violations, but... and as a matter of good jurisprudence, the court would not decline to enforce a clear statutory provision.

However, that is not the same thing as saying that the court has no reserved equitable power.

I don't think the court in Hill said that we have no power reserved in the federal courts to refuse an injunction within the equitable discretion of the court.

Mr. Hodges: Your Honor, I think that, again, the thrust of TVA v. Hill was to say what did Congress provide.

And it is the job of the courts to do what Congress provided when it's addressed the problem and it has resolved it.

And really, I think that is the thrust of that particular case.

It's a recognition of the proper roles of the three functions... proper roles of the three branches of government.

And under those circumstances, I think that a traditional balancing of equities would be improper, and that a court should do what the court of appeals did in this case, which is to take a look at the statute, the statutory purposes, and look at this with the statutory purposes clearly in mind and with an acute sense of what Congress driving at in this statute, and then proceed to act.

There is, certainly--

Unidentified Justice: Or decline to act.

Is there not that reserved power?

Isn't it a question of how you do it and the things you should properly look at?

Mr. Hodges: --Your Honor, that is correct.

But in the context of this case, to decline to act, to enforce, a clear directive of how Congress said it wanted to have something done, when it really has addressed the question, would we think be an abuse of discretion.

And under these circumstances, we feel that the unanimous court of appeals--

Unidentified Justice: Even on a temporary basis to actually facilitate the operation of the congressional statutory scheme.

Mr. Hodges: --Your Honor, there may be other cases, but this case, what the district court did did not facilitate the compliance, because what it said was I am making a determination... or what it did was to make a determination that was to be made by the President of the United States in clear contravention of what this particular statute said.

Under these circumstances, and since there is a direct requirement that there be a permit prior to discharges, we would say that it would be an abuse of the court's discretion under those circumstances.

Unidentified Justice: Let me give you a more concrete hypothetical than the one I suggested before of a golf ball being dropped into the ocean.

A fishing fleet goes out and catches tons of fish in a day, and many of them clean the fish on board, some mechanically and some manually, and dump the refuse, the heads and entrails of fish, overboard.

And... now, that's presented without a permit, no permit.

They go to the district court to get an injunction and a marine biologist says that far from being bad, this is good.

Big fish eat smaller fish and small fish eat still smaller fish.

And that therefore, there is no harm to the environment, and on the contrary, it's an aid, a natural process.

Are you suggesting that a district judge could not exercise his discretion, and weighing the testimony of the marine biologist against the opposing testimony say no, I will not grant an injunction here?

Mr. Hodges: Your Honor, I would have to take a look at this particular statute to find out how that has been dealt, with.

I--

Unidentified Justice: Well, the statute we're talking about, here.

You're more familiar with it than we are.

You've been living with it longer.

Mr. Hodges: --Your Honor, I would think that the thrust of what we are dealing with is that the law... that a court should carry out what the law provides.

When enforcement is sought--

Unidentified Justice: What's your answer to my hypothetical, then?

Mr. Hodges: --When enforcement is sought and liability is found and a continuing violation takes place.

And if it's physically possible to stop, then we would say that--

Unidentified Justice: Then your answer is that the district judge could not exercise his discretion and deny an injunction in the case I have just given you hypothetically.

Mr. Hodges: --Yes, Your Honor, that would--

Unidentified Justice: Well, the same thing would go for the net, then, even if they didn't dump anything in the ocean.

If they just put the nets in to fish and the testimony was well, these nets are as clean as they can be.

Nevertheless, you're putting something in the water.

Mr. Hodges: --Your Honor, I do not believe that that would be considered to be a discharge of a pollutant.

Unidentified Justice: Well, you're discharging something out of the ship.

Maybe only temporarily, but there it is.

Mr. Hodges: Your Honor, under... there are many instances where the EPA--

Unidentified Justice: How about launching a new ship?

It's going to be on the water forever.

Mr. Hodges: --Your Honor, I don't know whether or not a ship, indeed, will be considered to be a... defined to be a pollutant in this regard.

Certainly, if there are problems with this particular statute and certainly, this Congress has kept its hands on the statute.

I think the very length of the statute and the extraordinary detail which the statute has gone into, and indeed, the fact that the... that Congress enacted very substantial amendments in 1977 has shown that it can deal with this question when it wants to.

It wants to keep its hands on; it does not want to have this particular statute unraveled through the... through district courts not doing what they are supposed to do under the statute.

Your Honor, in closing, we would say that we feel in this particular case, the statute is clear, the Navy has violated it, it continues to violate it.

Compliance is physically possible.

The district court made a determination of the kind that should have been made by the President of the United States.

And the court of appeals, dealing with this particular violation here, not any other violations of this particular Act, felt that the Navy's... that that particular discharge should be halted until the Act was complied with.

The only final thing that I would say is that we would urge this Court to reach its determination in this case with respect to the facts before it.

This does not deal with every violation of the federal Water Pollution Control Act.

The Congress--

Chief Justice Burger: Your time has expired now, counsel.

Mr. Hodges: --Thank you, Your Honor.

Chief Justice Burger: Do you have anything further, Mrs. Stillman?

ORAL ARGUMENT OF ELINOR H. STILLMAN, ESQ. ON BEHALF OF PETITIONERS -- Rebuttal

Mr. Stillman: Just three points, Your Honor.

First, I'd like to point out that Section 313 of the Act applicable to federal facilities does say that federal facilities shall be covered in the same manner and to the same extent as any non-governmental entity.

And therefore, if what the court of appeals said about the Navy here is true, it would be true of electric plants, it would be true of these dams that we brought up in terms of the case we cited--

Unidentified Justice: Ms. Stillman, I wanted to ask one question about that, because I guess the whole part of the opinion you object to is the pages 48 and 49 of the Appendix to your cert petition.

Mr. Stillman: --That's true.

Unidentified Justice: It's just really one long paragraph.

And early in that part, the court of appeals says there's an absolute statutory obligation, which sounds like they mean there's always got to be injunctive relief.

But really they're talking about the violation there, not the remedy.

Mr. Stillman: That's right.

Unidentified Justice: And then later they point out that... they cite a couple of district court cases that I have no read, and then they point out that this is not a case where the statutory violation was deemed technical.

Here, the Navy has utterly disregarded the statutory mandate.

It sounds to me there like they're saying maybe it was an abuse of discretion for the district judge to--

Mr. Stillman: Well--

Unidentified Justice: --Otherwise, why would they draw a distinction between a technical violation and utter disregard of the statutory mandate, when they're talking about remedy?

Mr. Stillman: --Your Honor, all I can say is that certainly, we think the case might well be held... I'll admit that they haven't spoken with utmost clarity there, but we argued in our petition for cert that this was a very far-reaching--

Unidentified Justice: Well, I understand.

Would the government be satisfied with a remand for a decision under the abuse of discretion standard rather than... is that all you're asking?

What relief are you asking in this case?

Mr. Stillman: --We've never suggested that we didn't think that the district court didn't have equitable discretion to look at all factors and balance and so on.

Unidentified Justice: No, but would you have sought review if the court of appeals had clearly said, we think when there is a flagrant, utter disregard of a statute, as there has been here, that in that case it's abuse of discretion not to grant an injunction?

Mr. Stillman: Well, I have two answers to that.

We would strongly disagree with that finding on the court of appeals' part.

Whether we would regard the case as cert worthy then might be another question.

But we certainly don't think that the Navy flagrantly disregarded anything.

I think what the court of appeals might have been meaning by that was just that there was a clear statute and the Navy violated it.

I might say that it may look clear in hindsight.

People just didn't think that this kind of exercise was covered until these matters finally got into litigation.

And this Act is full of surprises, may I say.

There may be, just like the dam case that we cited, you might say that if it's true that those dams are all point sources that they're in flagrant disregard of the statute.

And we don't think that that means that if you bring a suit against one of those dams now that they have to--

Unidentified Justice: I hope the future doesn't do to this case what the future did to the dam case.

Mr. Stillman: --Excuse me?

Unidentified Justice: The future did to the dam case, it said that it wasn't true.

Mr. Stillman: I would also like to say that it's not true that a permit can be obtained forthwith.

It's not like applying for a library card.

And also, I would like finally to address the question that counsel posed, which is what did Congress provide in this statute?

What we say Congress provided was some rather absolute prohibitions, and sections governing enforcement which do not specify that there has to be an injunction of the kind which we think that the court of appeals specified.

Unidentified Justice: Well, in other words, you agree with the court of appeals to the extent that it says there's an absolute statutory obligation.

Mr. Stillman: Yes.

We don't agree that there is no range of remedial responses when a violation is found.

Unidentified Justice: Of course, they don't say there's no range of remedial responses.

That's part of the problem.

Mr. Stillman: Well, Your Honor, we assume that cert was granted--

Unidentified Justice: Well.

Mr. Stillman: --because the court read it as we did, or four members did.

Your Honor, we urge that the judgment of the court of appeals should be reversed.

Chief Justice Burger: Thank you, counsel, the case is submitted.