UNITED STATES, Plaintiff, Appellant, v. MASSACHUSETTS WATER RESOURCES AUTHORITY; METROPOLITAN DISTRICT COMMISSION, Defendants, Appellees.
No. 00-2028
United States Court of Appeals For the First Circuit
July 16, 2001
Hon. Richard G. Stearns, U.S. District Judge
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
Before Boudin, Chief Judge, Torruella, Circuit Judge, and Stahl, Senior Circuit Judge.
John M. Stevens, Jonathan M. Ettinger, Jack W. Pirozzolo, Foley, Hoag & Eliot LLP, and Nancy C. Kurtz, were on brief, for appellant.
Alexandra D. Dawson on brief for Nashua River Watershed Association, Inc., Massachusetts Audubon Society, Inc., Friends of Quabbin, Inc., Water Supply Citizens Advisory Committee, and Rutherford H. Platt, amici curiae.
STAHL, Senior Circuit Judge. The federal Safe Water Drinking Act (SDWA or Act) authorizes the Environmental Protection Agency (EPA) to prescribe criteria specifying when public water systems are “required” to install a filtration system. The Act also provides, however, that courts asked to issue an injunction enforcing the EPA‘s filtration standards “may enter . . . such judgment as protection of public health may require . . . .” This appeal requires us to resolve the apparent tension between these two provisions. Specifically, we must decide whether the SDWA requires courts to order the statutorily prescribed remedy of filtration for violations of its substantive provisions and the regulations promulgated thereunder, or, alternatively, whether courts have the authority in SDWA cases not to order such remedies in those instances where the equities are found to counsel forbearance. Suffice it to say, we are not faced with an imminent threat to the public health in this case; none has been alleged by the United States on appeal.
obligation that extends into the future indefinitely, and that does not account for the present and future safety of the system‘s drinking water.
Based on our reading of the Act, we find that the district court acted within its discretion by declining to order that the Massachusetts Water Resources Authority (MWRA) install a filtration system. We therefore affirm its judgment.
I. Background
The facts surrounding this controversy are laid out in extensive detail in the district court‘s two written opinions, United States v. Mass. Water Res. Auth., 48 F. Supp. 2d 65 (D. Mass. 1999) (MWRA I) (holding that district court had equitable discretion not to order filtration remedy for SDWA violation); United States v. Mass. Water Res. Auth., 97 F. Supp. 2d 155 (D. Mass. 2000) (MWRA II) (declining to order filtration remedy based on equities of the case), and so we confine our recitation to those facts bearing specifically upon this appeal.
A. Regulatory Regime
In 1974, Congress, legislating in an area that had previously received scant attention under federal law, passed the Safe Drinking Water Act, Pub. L. No. 93-523, 88 Stat. 1660 (codified as amended at
systems.1 To this end, the Act vests authority in the EPA to promulgate and enforce two types of water-purity standards: maximum contaminant levels (MCLs) and treatment techniques. Under the Act, the EPA is to regulate the majority of contaminants in drinking water by formulating MCLs -- numerical standards that represent the agency‘s expert determination as to “the level at which no known or anticipated adverse effects on the health of persons occur and which allows an adequate margin of safety.”
Public Health Service. James Kavanaugh, Comment, To Filter or Not to Filter: A Discussion and Analysis of the Massachusetts Filtration Conflict in the Context of the Safe Drinking Water Act, 26 B.C. Envtl. Aff. L. Rev. 809, 814 (1999).
In 1986, however, Congress amended the Act so as to require (rather than merely to authorize) the EPA to develop treatment regimes with respect to scores of additional contaminants, and to require that violations of the Act‘s substantive provisions
Through these amendments, Congress also expressed a growing preference for the employment of specific treatment techniques, as opposed to the promulgation of MCLs, to solve the problem of contaminated drinking water. This policy shift occurred as the result of mounting scientific evidence
demonstrating the efficacy of filtration and disinfection techniques in reducing waterborne viral and bacterial contamination. Id., § 4.20A, at 151. Reflecting this view, Congress specifically required that disinfection be employed by all public water systems to reduce the live quantities of those pathogens, except for systems specifically eligible to receive a variance from the EPA.
On June 29, 1989, pursuant to this statutory command, the EPA promulgated the Surface Water Treatment Rule (SWTR or Rule),
at 40 C.F.R. pts. 141 and 142). Specifically, the Rule requires that all public systems achieve a three-log (99.9 percent) reduction in the Giardia lamblia parasite and a four-log (99.99 percent) reduction in viral contamination,
end of 2001, requires a two-log (99 percent) reduction in Cryptosporidium by all water systems that employ filtration, and an extension of watershed controls to cover Cryptosporidium for all unfiltered water systems.
The filtration mandate in the SWTR is written in unequivocal -- and, in the context of federal regulations, unusually broad -- terms. Tracking the pertinent deadlines embodied in the Act, the Rule requires that public water systems not meeting all of the avoidance criteria by December 30, 1991, “must provide treatment consisting of both disinfection . . . and filtration” by June 29, 1993, or, if the violation occurs after December 30, 1991, within eighteen months of the date that the violation has been established.
drinking water is following the violation, and regardless of how diligent the water system is in remedying the problems that caused the avoidance-criteria failures in the first place.
Despite the mandatory nature of the Rule regarding the need for filtration, the EPA cannot compel a violator to comply with its provisions merely by issuing its own enforcement order.4 Rather, the agency must bring suit in federal district court to request that a remedy provided for elsewhere in the Act, such as the construction of a filtration facility, be ordered. See
provision has remained untouched, in pertinent part, since the Act‘s original passage in 1974.5
authorities are afforded the first opportunity under this system to make formal determinations regarding the need for filtration, the EPA must bring its own enforcement action in the absence of such a state determination, provided the state agency and the violating water system are given thirty days’ notice and an opportunity for consultation with the EPA.
On June 28, 1993, after the DEP adopted drinking water regulations requiring filtration whenever a public water system fails to satisfy the SWTR‘s avoidance criteria, see Mass. Regs. Code tit. 310, §§ 22.20A(2), (4), the EPA granted primary enforcement responsibility to the DEP. Public Water Supervision: Program Revision for Commonwealth of Massachusetts, 58 Fed. Reg. 34,583 (June 28, 1993).
B. The MWRA
Established in 1984, the MWRA owns and operates the public water system that provides most of the drinking water for the city of Boston and surrounding communities. Its water system serves approximately two million customers in over forty Massachusetts cities and towns. The MWRA has primary responsibility for treating its drinking water and transporting that water from its reservoirs to the distribution systems of the local communities it serves. In providing water to its customers, the MWRA works in tandem with the Metropolitan
District Commission (MDC), an organization responsible for monitoring the quality of water in the MWRA system and managing the watersheds surrounding the principal sources of the MWRA‘s water supply.7
The MWRA‘s water system, which was originally designed by the Massachusetts Board of Health in the late nineteenth century, consists of three large reservoirs connected by a network of 265 miles of water mains and 130 miles of aqueducts. Feeding into the system are two above-ground bodies of water in central Massachusetts, the Quabbin and Wachusett Reservoirs,
and aqueducts, ultimately connecting to the local distribution centers in the various communities that the MWRA serves.
For some time, the MWRA has employed two basic techniques to treat its drinking water: disinfection, used to kill live contaminants, and corrosion control, used to minimize the leaching of metals (such as lead) into the water from the antiquated pipes through which the water travels before reaching the taps of consumers. The water supply undergoes disinfection as it enters the distribution system through the Cosgrove Intake and again as it departs the primary distribution system at the Norumbega Reservoir. In the mid-1990s, the MWRA replaced the chloramine disinfection treatment it used at the Cosgrove Intake with an alternative disinfection treatment of ozonation, which consists of the injection of ozone bubbles into the water supply.8 According to the MWRA, ozonation kills a wider range of pathogens than do the traditional disinfection techniques, and the process provides the added benefit of improving the taste and coloration of treated water. While the EPA acknowledges the general effectiveness of ozonation, the agency has taken the position that it is not, by itself, an effective substitute for filtration.
In the months following the EPA‘s formulation of the SWTR, the MWRA determined that it would not be able to fulfill all of the avoidance criteria by the December 30, 1991 deadline. In particular, the MWRA concluded that occasional spikes in fecal coliform bacteria that had been measured in the Wachusett Reservoir in the late 1980s and early 1990s, a phenomenon later attributed to the seasonal roosting habits of gulls, could not be controlled by that date. Consequently, the MWRA did not seek a formal avoidance determination from the DEP. On January 24, 1992, the DEP notified the MWRA that, according to the terms of the SDWA, it would be required to install a filtration system by June 30, 1993.
By early 1993, after it became clear that the MWRA could not design and install a filtration system before June 1993, the MWRA, the MDC, and the DEP entered into negotiations on an administrative consent order (ACO) to govern the MWRA‘s compliance with the SWTR. Rather than requiring the immediate installation of a filtration system, the ACO established a “dual-track” approach for compliance. Under this scheme, the MWRA was permitted in the short term to employ a treatment regime consisting of disinfection, ozonation, and covered water storage facilities, while at the same time embarking upon an aggressive watershed protection plan for the Wachusett Reservoir. The MWRA also was expected to continue its campaign
of “gull harassment,” a policy meant to scare away birds so as to prevent them from defecating in the reservoir. If the MWRA properly pursued these endeavors, it would be given the opportunity under the ACO to petition, on or before August 3, 1998, for a “reopener” establishing that the avoidance criteria had been
Given that the ACO essentially excused the MWRA from complying with a key component of the SWTR, it seems rather surprising at first blush that the EPA, while aware of the negotiations over the ACO, did not attempt to block its implementation. In fact, despite having written the Rule‘s filtration requirement in mandatory terms (and despite the Act‘s mandate that there be filtration when the Rule‘s standards were not met), the EPA‘s actual practice has been to enforce the filtration mandate with less than the unswerving rigor that the statutory and regulatory language would seem to require. For
instance, notwithstanding the filtration command in the SWTR, in 1992 the EPA issued an internal guidance memorandum that gave state enforcement authorities the discretion to postpone final filtration determinations if a water system is able to prove that it could later meet the avoidance criteria through intermediate measures. And while the EPA never expressly acquiesced in the provision in the ACO that created the potential for the MWRA to eventually avoid filtration (in fact, it stated in a letter to the parties to the ACO that it reserved the right to bring an enforcement action at a later date), it did promise the DEP and the MWRA that it would abstain, at least in the short term, from filing its own enforcement suit once the ACO was executed.
Consistent with this approach, the EPA worked closely with the MWRA in its implementation of both compliance tracks in the three years following the signing of the ACO. This assistance included the agency‘s advice on steps to be taken by the MWRA to satisfy the avoidance criteria. In November 1996, John DeVillars, the EPA Regional Administrator, wrote a letter to the MWRA in which he generally commended the MWRA on its progress but cautioned that “in order to avoid filtration, more still needs to be done” (emphasis added). At least through the end of 1996, this statement epitomized the EPA‘s deliberately ambiguous posture vis-à-vis the MWRA‘s need to install
filtration: the agency generally supported the MWRA‘s efforts to achieve compliance with the avoidance criteria by alternative means, even as it held out the threat of suing to require filtration if it later found itself unsatisfied with the MWRA‘s performance.
In early 1997, after the MWRA acknowledged that it could not meet several interim deadlines contained in the ACO, the EPA began to lose patience, and the working relationship between the MWRA and the EPA quickly deteriorated. In two letters to the MWRA dated January 8, 1997, and May 15, 1997, the EPA Regional Administrator expressed “extreme concern” for the MWRA‘s failure to produce adequate design plans for a Wachusett Reservoir filtration facility, and reminded the MWRA that it was still in technical violation of the SWTR for its failure to install a filtration system back in 1993. The EPA‘s displeasure with the MWRA‘s approach was only exacerbated by a September 18, 1997 agreement between the DEP and the MWRA that amended the ACO to delay the completion of the design of the filtration plant until January 31, 2002.
requested that the MWRA be excused from further pursuing the filtration track by the end of 1997 if it could establish prospective compliance with the SWTR‘s avoidance criteria. The EPA, which was not consulted by the MWRA prior to the filing of this request, responded critically upon learning of it. In a December 9, 1997 letter to the MWRA, the MDC, and the DEP, the EPA Regional Administrator revealed that he had asked the U.S. Department of Justice to bring an SDWA enforcement action to require “filtration . . . [and] measures to enhance protection of the Wachusett reservoirs . . . according to a clear, binding and expeditious schedule.” Such legal action was necessary, in his opinion, because the MWRA “did not meet the avoidance criteria in 1991, has not met them to this day, and will not meet them by next summer, either.”
Three days after the EPA Regional Administrator sent this letter, the DEP issued a noncommittal response to the MWRA‘s request to forego filtration. While refusing to allow work on the filtration track to be terminated in light of the MWRA‘s acknowledgment that it could not meet the avoidance criteria regarding Giardia, viruses, and total coliform counts by the end of 1997, the DEP did grant the MWRA until October 31, 1998, or nearly three months later than allowed by the ACO, to reapply for a filtration waiver. Accepting that invitation, the MWRA submitted a follow-up request to the DEP on October 30,
1998. In that request, the MWRA sought permission to treat its water using ozonation and chloramine disinfection only. The MWRA also proposed that the savings realized from not installing a filtration facility be spent on a pipeline replacement plan and stepped-up monitoring program. On November 13, 1998, the DEP formally approved the request, finding that the MWRA had come into compliance with all of the SWTR‘s avoidance criteria and concluding that the MWRA had developed satisfactory plans for improving the quality of its water. The DEP‘s action effectively excused the MWRA from having to install a filtration system for the time being; however, the approval made clear that any future violation of any of the avoidance criteria would result in revocation of the waiver and reimposition of the filtration requirement.
C. The Proceedings Below
Meanwhile, on February 12, 1998, the United States had filed the instant SDWA lawsuit on behalf of the EPA. The lawsuit sought an injunction ordering the MWRA to comply with the filtration requirement set out in the Act and the Rule. The district court, while permitting some initial discovery, effectively stayed the case for nearly a full year in anticipation of the DEP‘s disposition of the MWRA‘s filtration-waiver request. Once the DEP approved the request, the United States moved for summary judgment, citing uncontradicted
evidence of the MWRA‘s past failures to meet the avoidance criteria and its continued refusal to install a filtration system. Its position was augmented by the MWRA‘s acknowledgment that, in January 1999, it had failed to meet one of the avoidance criteria at the Wachusett Reservoir -- in this case, the standard relating to fecal coliform concentration.10 The EPA
On May 3, 1999, the district court ruled on the United States‘s motion for summary judgment. While noting the DEP‘s November 1998 finding that the MWRA had come into compliance with all the avoidance criteria and opining that “this conclusion might have been conclusive of the litigation,” the court found that the MWRA‘s January 1999 violation “entitles the EPA to a judicial declaration that the MWRA is liable under
the SDWA for injunctive relief and civil penalties.” MWRA I, 48 F. Supp. 2d at 70.
The district court went on to hold, however, that, based on the principle that the discretion of courts to fashion equitable remedies as appropriate may only be circumvented by a “clear legislative command,” the court retained the discretion to determine the type of relief that should be granted. Id. at 71 (citing Weinberger v. Romero-Barcelo, 456 U.S. 305, 313 (1982)). While acknowledging a statement in the Act‘s legislative history to the effect that courts shall not use “traditional balancing principles used by equity courts” in ruling on SDWA suits, id. (quoting H.R. Rep. No. 93-1185 (1974), reprinted in 1974 U.S.C.C.A.N. 6454, 6476), the court determined that the judicial-enforcement provision of the Act contained language “descriptive of the traditional powers of a court of chancery” and that the statute did not “impos[e] the same narrow mandate” on courts to enforce violations of its substantive provisions that it placed on the EPA to promulgate rules. Id. at 71. In the final analysis, the court discerned no clear command that courts “limit [themselves] to mechanical enforcement of EPA compliance orders,” id., although it did find a “presumption expressed by Congress in the SDWA that filtration will almost always be the preferred remedy for a[n] SWTR violation.” Id. at 72.
Having determined that it possessed the equitable discretion to withhold the filtration remedy, the district court ordered a bench trial to determine whether, in fact, it was appropriate to exercise such discretion with respect to the MWRA. As the court saw it, the issue to be tried was whether “the MWRA‘s alternative strategy of ozonation, chlorination, and pipe replacement [will] better serve Congress‘s objective of providing ‘maximum feasible protection of the public health’ than will the EPA‘s insistence on filtration.” Id.
Between December 1999 and February 2000, the district court presided over a twenty-four day bench trial in which it heard from twenty-three witnesses and entered 524 exhibits into evidence. At trial, the United States sought to establish that filtration combined with disinfection is much more effective against highly treatment-resistant pathogens, such as Giardia and Cryptosporidium, than the ozonation alternative favored by the MWRA. It also sought to prove that the process of ozonation, while generally effective in combating most forms of live waterborne pathogens,
The district court issued its findings of fact and conclusions of law on May 5, 2000, holding, for the first time, that the MWRA would not be required to install a filtration system under present circumstances. MWRA II, 97 F. Supp. 2d at 188. While finding that filtration combined with disinfection was a superior treatment technique to the MWRA‘s proposed “ozonation-only” strategy, the court determined that, given the lack of an actual health issue in light of the MWRA‘s compliance with the avoidance criteria at the time of trial, “[a]ny risk to public health entailed by selection of the ‘ozone-only’ option is within acceptable levels.” Id. In making this determination, the court relied heavily on studies introduced at trial by the MWRA indicating that the ozonation technique could successfully keep the concentrations of pathogens in the water supply at or below the safety levels specified by the SWTR avoidance criteria. Id. It further found that, while the threat of bacterial “regrowth” posed by ozonation was real, that threat could more effectively be addressed through pipe rehabilitation, flushing, and corrosion control than through filtration.11 Id.
Moreover, the court, noting the tremendous sums that the MWRA was spending and had pledged to spend in subsequent years on health-related system improvements,12 accepted the MWRA‘s argument that the installation of a $180 million filtration system would severely complicate the MWRA‘s efforts to take on other water purification projects, such as pipe replacement, that would be needed with or without the presence of a filtration system. Id. As to the issue of watershed protection, the court agreed with the MWRA that the plan of acquiring lands close to the Wachusett Reservoir had proven successful in creating an effective barrier against manmade contamination, and that the implementation of a filtration plan would reduce popular support for maintaining strict environmental protection of the protected areas. Id. at 187-88.
In sum, the district court found the MWRA‘s proposed treatment plan to be a “sound alternative to . . . filtration when competing demands for limited resources and the level of risk from all potential threats to the safety of MWRA water are considered.” Id. at 189. The court determined that, in light of the ACO, only one avoidance criteria violation remained relevant -- the fecal coliform violation in January 1999 -- and that, based on that single SWTR violation and the myriad efforts
II. Equitable Discretion under the SDWA
On appeal, the United States does not challenge any of the district court‘s factual findings, including the court‘s determination that the MWRA‘s “ozonation-only” approach is an acceptable alternative to filtration. Nor does the United States assert that the district court abused its equitable discretion by declining to order filtration in light of the MWRA‘s history of avoidance-criteria noncompliance.13 Instead, its appeal essentially is confined to one argument: that under the SDWA, courts have no discretion to withhold indefinitely a provided-for remedy, such as filtration, if it has been demonstrated that a public water system has violated a substantive requirement of the Act. The district court‘s determination regarding the scope of its equitable discretion presents a pure issue of law, and so we review that determination de novo. Fergiste v. INS, 138 F.3d 14, 17 (1st Cir. 1998).
In this case, the United States seeks to bring the MWRA into compliance with the filtration requirement by resort to the SDWA‘s statutory injunction provision,
In its decisions addressing this complicated area of law, the Supreme Court has held repeatedly that the retention of a court‘s discretion to shape an injunction authorized by statute to the equities of the case -- or not to issue an injunction at all -- is to be presumed, but that this presumption may be overcome by a proper showing of congressional intent. “The grant of jurisdiction to ensure compliance with a statute hardly suggests an absolute duty to do so under any and all circumstances, and a federal judge sitting as chancellor is not mechanically obligated to grant an injunction for every violation of law.” Romero-Barcelo, 456 U.S. at 313; see also id. at 322 (Stevens, J., dissenting) (“Unless Congress specifically commands a particular form of relief, the question of remedy remains subject to a court‘s equitable discretion.“); Town of Huntington v. Marsh, 884 F.2d 648, 651 (2d Cir. 1989) (“[I]n the area of environmental statutes, the Supreme Court has explicitly rejected the notion that an injunction follows as a matter of course upon a finding of a statutory violation.“). And while Congress certainly may intervene and guide or control the exercise of the courts’ discretion, or even extinguish it entirely, courts measuring the quantum of equitable discretion preserved in a statute are “not lightly [to] assume that Congress has intended to depart from established principles.” Romero-Barcelo, 456 U.S. at 313 (citing Hecht Co. v. Bowles, 321 U.S. 321, 329 (1944)). This default rule can be justified, at least in part, by the fact that “[w]hen Congress entrusts to an equity court the enforcement of prohibitions contained in a regulatory enactment, it must be taken to have acted cognizant of the historic power of equity to provide complete relief in light of the statutory purposes.” Mitchell v. Robert DeMario Jewelry, Inc., 361 U.S. 288, 291-92 (1960). In this vein, the Supreme Court has held that if Congress wishes to circumscribe these equitable powers, it must do so with clarity: “Unless a statute in so many words, or by a necessary and inescapable inference, restricts the court‘s jurisdiction in equity, the full scope of that jurisdiction is to be recognized and applied.” Porter v. Warner Holding Co., 328 U.S. 395, 398 (1946) (emphasis added).
In order to ascertain whether Congress meant to constrain the equitable discretion afforded courts in SDWA cases, our examination begins -- and, for the most part, ends -- with the SDWA itself. This is so because the discretion that inheres in a statutory injunction provision is, by definition, a product of the statute, and accordingly must be cabined by the purposes for which the statute was created. United States v. Monsanto, 491 U.S. 600, 613 (1989). Where, as here, the statutory injunction provision does not explicitly delimit the court‘s equitable authority, it is necessary to “look to the [statute‘s] remedial framework as a whole.” Williams v. Jones, 11 F.3d 247, 256 (1st Cir. 1993). This task requires that courts not only consider the “language, history and structure” of the legislation, TVA v. Hill, 437 U.S. 153, 174 (1978), but also the “underlying substantive policy” that the statutory procedures are designed to further, Amoco Prod. Co. v. Village of Gambell, 480 U.S. 531, 544 (1987). Under this analysis, the language and structure of the Rule regarding the need for filtration reflect policy judgments made by the EPA, not
The United States does not quibble with this analytical framework. Rather, it argues that the judicial-enforcement provision of the SDWA,
In reaching this conclusion, the United States focuses on the SDWA‘s judicial-enforcement provision,
The [EPA] Administrator may bring a civil action in the appropriate United States district court to require compliance with any applicable requirement [of the Act] . . . . The court may enter, in an action brought under this subsection, such judgment as protection of public health may require, taking into consideration the time necessary to comply and the availability of alternative water supplies . . . .
As the United States sees it, the key words in this passage are “compliance” and “comply.” Based on their presence, as well as on the Act‘s command that the EPA delimit circumstances under which filtration is “required,”
To bolster this argument, the United States adverts to a passage from
[T]he Committee intends that courts which are considering remedies in enforcement actions under [§ 300g-3] are not to apply traditional balancing principles used by equity courts. Rather, they are directed to give utmost weight to the Committee‘s paramount objective of providing maximum feasible protection of the public health at the times specified in the bill.
H.R. Rep. No. 93-1185 (1974), reprinted in 1974 U.S.C.C.A.N. 6454, 6476.
The Second Circuit has accepted this analysis, albeit in dicta, and concluded that, for largely the same reasons advanced by the United States, courts may not consider the propriety vel non of filtration
[T]he decision to filtrate or not is a policy choice that Congress seems to have made and that, in any event, is beyond our judicial function. Our conclusion is not altered by appellants’ interesting, but ultimately unpersuasive, argument that, since the SDWA authorizes a court to enter “such judgment as protection of public health may require,” 42 U.S.C. § 300g-3(b), the district court has the power to refuse to order filtration in this action . . . . We think that the equitable power vested in the district court is more circumscribed than intervenors propose; it is available to ensure compliance with the statute and the regulations promulgated thereunder, not to rework or reject these legislative and regulatory determinations.
While we agree that the SDWA‘s text and legislative history provide evidence of Congress‘s intent not to allow courts in SDWA cases to apply the traditional test for issuing injunctions,15 we are not convinced that such evidence gives rise to a “necessary and inescapable inference” that the substantive remedies made available under the Act must always be ordered whenever a regulation promulgated under the Act has been violated.16 Rather, we believe that as long as a court issues a “judgment as public health may require,”
First, the critical passage of the SDWA‘s judicial-enforcement subsection states that, following a violation of the Act‘s substantive provisions, the court “may enter . . . such judgment as protection of public health may require . . . .”
If anything, the strongest inference that may be drawn from the SDWA is that Congress did intend for “may” in
Additional evidence of the preservation of equitable discretion comes from the fact that, in the 1986 SDWA amendments, Congress vested power in the EPA to issue administrative orders for minor SDWA violations, and to collect fines for those violations, without first seeking authorization from the courts. See
In sum, there is substantial evidence in the SDWA‘s text and legislative history to suggest that “may” really does mean “may” in
Our conclusion on the SDWA‘s preservation of equitable discretion also is reinforced by other portions of the Act‘s judicial-enforcement provision. While the United States relies heavily on language in
Take, for example, the provision empowering the EPA to bring a civil action “to require compliance.” Similar language appears in a number of other statutes’ judicial-enforcement provisions, and generally has been construed as leaving intact the judiciary‘s equitable discretion to deny the issuance of an injunction. The courts reaching this interpretation have reasoned that the language simply represents Congress‘s grant of authority to an agency to bring a suit to require compliance -- in other words, that the agency can seek to require compliance through legal process.
For instance, under the judicial-enforcement provision of the Securities and Exchange Act of 1934,
appears in the citizen-suit provision of the Clean Water Act; under this statute, suits may not be instituted by individuals or organizations if the EPA or the appropriate state enforcement authority “has commenced and is diligently pursuing a civil or criminal action . . . to require compliance” with the Act‘s substantive provisions.
The other passage in
In sum, while the United States‘s position certainly is not implausible, the fact that the MWRA‘s interpretation of the SDWA is at least as plausible effectively forecloses the possibility that a “necessary and inescapable inference” exists in the Act as to the necessity for filtration upon a finding of a regulatory violation. Porter, 328 U.S. at 398.
The United States insists that, in terms of breadth of equitable discretion, the SDWA bears an uncanny resemblance to the Endangered Species Act (ESA) -- a statute found by the Supreme Court to have removed courts’ authority to withhold injunctive relief. Hill, 437 U.S. at 193-95. In Hill, the Supreme Court found that the ESA had flatly banned federal agencies from carrying out activities which threaten to destroy or modify the habitat of endangered species. Id. at 194. Through an examination of the statute‘s voluminous text and legislative history, the Court found that Congress “ha[d] spoken in the plainest of words, making it abundantly clear that the balance had been struck in favor of affording endangered species the highest of priorities . . . .” Id. In so finding, moreover, the Court essentially ignored the statute‘s judicial-enforcement provision,
Attempting to tether this case to that precedent, the United States flags what it sees as analogous indicia of legislative intent with respect to the filtration mandate in the SDWA, and urges us to overlook the similarly permissive nature of the SDWA‘s judicial-enforcement provision.
While there is force to this argument, in the final analysis we do not believe that it holds water. The principal problem with the United States‘s effort to juxtapose the ESA and the SDWA is that, for reasons discussed above, the overwhelming evidence of congressional intent that the Supreme Court found in Hill simply does not exist with respect to the filtration mandate in the SDWA. The United States points us to no specific evidence that the narrow goal of filtration (as opposed to the broader aim of safe drinking water) was to receive the overarching priority that endangered-species protection garnered under
Apart from its arguments concerning the text of the SDWA, the United States also pursues a broader line of attack in this appeal: that the district court‘s decision excuses an ongoing statutory violation, and therefore exceeds the scope of equitable discretion that may be exercised under any statute. While acknowledging the Supreme Court‘s statement that “a federal judge sitting as chancellor is not mechanically obligated to grant an injunction for every violation of law,” Romero-Barcelo, 456 U.S. at 313, the United States contends that the Court has never authorized courts to do what it claims the district court did in this case -- namely, to permit a water system in violation of the SDWA to remain in violation indefinitely. In pressing this argument, the United States points to three of the Court‘s seminal cases in this area from the last century: Hecht Co., Romero-Barcelo, and Village of Gambell. Even though the Supreme Court endorsed the district court‘s exercise of equitable discretion in each of those decisions, the United States correctly observes that the district court‘s order in all three cases was designed to lead to compliance with the relevant statute.21 By declining to order the MWRA to install a filtration system, the United States contends, the district court was unfaithful to these precedents by “allow[ing] the MWRA to remain out of compliance with the SDWA and the SWTR permanently.”
We agree that in all three of these cases -- and, indeed, in all cases in which the Supreme Court has spoken in this area -- the violating party was not permitted to evade the substantive requirements of the statute. We disagree, however,
Although the EPA is correct that filtration is an absolute requirement under the SDWA/SWTR regime for those water systems that fail to meet the avoidance criteria, the preeminence of filtration in bringing about the goal of safe drinking water is primarily a function of the Rule, not the Act. The purpose of the Act, in the words of its drafters, is to “assure that water supply systems serving the public meet minimum national standards for protection of public health.” H.R. Rep. No. 93-1185, reprinted in 1974 U.S.C.C.A.N. 6454, 6454. In other words, the framers of the Act were concerned with ensuring that consumers of public water systems have access to safe drinking water, with the safety of the water to be judged according to objective criteria developed by the EPA. Filtration, while serving an important role in furtherance of the objective of safe water, is merely a prophylactic remedy made available to help bring about that objective. One fact underscores this point particularly well, and demonstrates why the exercise of equitable discretion is especially appropriate with respect to this particular regulatory scheme: under the Act, if a water system never violates any of the avoidance criteria, its water is presumptively “safe” according to the SDWA, regardless of whether it ever installs a filtration system. In essence, the water system‘s compliance with the avoidance criteria makes the water safe from the EPA‘s perspective -- a point conceded by the United States at trial. We fail to see how accomplishment of the Act‘s substantive goals is undermined by overlooking past violations of regulatory deadlines that have no bearing on the current or future purity of the water delivered to consumers. See Romero-Barcelo, 456 U.S. at 310 (noting that purpose of injunctive relief is to deter future violations, not to punish past ones) (citing Hecht Co., 321 U.S. at 329-30); cf. Friends of the Earth v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 192 (2000) (holding that district court had discretion under Clean Water Act “to determine which form of relief is best suited, in the particular case, to abate current violations and deter future ones“) (emphasis added). Moreover, given that the district court has retained jurisdiction in this case for the purpose of policing any future violation, thereby allowing it to revisit the validity of its earlier decision not to order filtration, the United States has a ready forum in which to seek relief for any future
Besides the issue of ongoing supervision to ensure compliance, the case at bar bears a close similarity to Romero-Barcelo in at least one other respect: the district court‘s focus on the relevant statute‘s substantive purposes, rather than its technical requirements. In Romero-Barcelo, the plaintiffs claimed that, by allowing the Navy to continue bombing exercises on Vieques Island without first having obtained a discharge permit, the court was countenancing an ongoing statutory violation -- namely, the unpermitted discharge of ordnance into navigable waters. 456 U.S. at 314. Disagreeing with this characterization, the Supreme Court found that, by tying future Navy activities to its procurement of a discharge permit, the district court had “neither ignored the statutory violation nor undercut the purpose and function of the permit system.” Id. at 315. This was the case, according to the Court, because “[t]he integrity of the Nation‘s waters, . . . not the permit process, is the purpose of the [statute].” Id. at 314. So it is here: the manifest purpose of the SDWA is safe drinking water, not filtration.
Of course, we are aware that the filtration mandate is, in some meaningful way, more “substantive” than the FWPCA‘s permit requirement, and that, through the 1986 amendments to the SDWA, Congress expressed its intent that filtration should be used by water systems that fail to meet the standards for avoidance established by the EPA. But in the end, we believe that we would do far greater violence to both the text and the purpose of the SDWA were we to strip courts of the flexibility to shape equitable decrees in appropriate situations. For as we noted infra, under
The United States‘s final contention -- in reality, it is nothing more than a variation on the basic theme of its appeal -- is that the district court, by holding a trial on the propriety of applying the filtration requirement to the MWRA, arrogated to itself powers that had been placed by Congress in the hands of the EPA. In its view, the district court‘s trial amounted to little more than an improper reconsideration of the determinations that the EPA made in promulgating the Rule. Under the SDWA, the United States argues, such considerations are the exclusive province of experts in the EPA, not the courts, and if the district court‘s decision is left to stand, every water system that finds itself displeased with the SWTR‘s rigid requirements will have the opportunity to challenge the wisdom of the Rule as applied to it.
This line of reasoning only is valid as far as it goes -- and it does not go as far as the United States suggests. It is certainly true that, in delegating authority to the EPA to ascertain circumstances in which “filtration . . . is required” of public water systems,
In sum, with respect to the SDWA, a court must “take as given the value choices embodied in the statutes and policies administered by the [agency], but is entitled and in fact required to consider whether the enforcement of the [agency‘s] order would violate equitable principles that are neutral with regard to those value choices.” NLRB v. P*I*E Nationwide, Inc., 894 F.2d 887, 893 (7th Cir. 1990). In our view, this is precisely what the district court did in this case.
Conclusion
Under the SDWA, it should be a rare case in which a violation of regulatory standards does not lead to an injunction if the responsible enforcement agency requests one. This is so because, as the district court in this case properly found, the SDWA contains a “presumption expressed by Congress . . . that filtration will almost always be the preferred remedy for a[n] SWTR violation.” MWRA I, 48 F. Supp. 2d at 72. Expressions by Congress of this sort, once identified, must be respected by courts, lest equitable discretion become the judiciary‘s preferred method of reshaping policy determinations made by other branches of government that are better equipped to make them. But the district court, after carefully considering the facts, found that this was indeed such a rare case, and accordingly declined to issue an injunction. In rendering this judgment, the court was careful to shape its decision so as to ensure that the MWRA‘s drinking water will meet the avoidance-criteria standards that are the EPA‘s benchmarks for safety. It exercised the flexibility left to it by Congress in the statute, and assumed the responsibility of monitoring the MWRA‘s compliance in the event that future violations require a reexamination of the decision not to order filtration. In short, the district court used its equitable discretion to appropriate ends: furthering the substantive purposes of the Act. In so doing, it did not act outside the scope of its authority with respect to the specific statute at issue in declining to issue an injunction. Accordingly, the district court‘s judgment is
Affirmed. No costs.