ENSURING COMPLIANCE: EQUITABLE RELIEF IN THE FACE OF VIOLATIONS OF SUBSTANTIVE ENVIRONMENTAL STANDARDS.

• Author: Johnston, Craig N.

1. INTRODUCTION 793 II. AN OVERVIEW OF TV A v. HILL, ROMERO-BARCELO, AND OAKLAND CANNABIS 796 III. SYNTHESIZING TV A v. HILL, ROMERO-BARCELO, AND OAKLAND CANNABIS 799 IV. THE POTENTIAL IMPACT OF EBA Y, WINTER, AND MONSANTO 802 V. CONCLUSION 803 I. INTRODUCTION

   Today I would like to address limits on the discretion that courts possess, when facing plaintiffs' requests for injunctive relief after they have successfully established that defendants are violating substantive requirements under our environmental laws. As a threshold matter, it is worth pointing out that our major environmental statutes routinely authorize enforcers--by which I mean both agencies such as the U.S. Environmental Protection Agency (EPA) and those proceeding under the relevant citizen-suit provisions--to seek both civil penalties and permanent injunctions in judicial actions. (1) With regard to injunctive relief, the statutes also commonly provide the courts with the explicit authority to restrain violations and/or compel compliance. (2)

   In the ordinary course, one would expect these cases to work in a fairly straightforward fashion. Once an environmental plaintiff establishes that a regulated entity has been violating the law, the plaintiff would request an injunction as necessary to compel the defendant to promptly fix the underlying problems (e.g., inadequate treatment technology) that led to the relevant violations. The defendant would of course weigh in with its view as to both what, if anything, is necessary to halt the violations and how much time it needs to implement any required remedial measures. In the end, the court would determine both the appropriate remedy and how much time it should give the defendant to implement the relevant solution. On top of that, the plaintiff would seek, and the judge would likely impose, penalties for past violations. These penalties would be calculated both to recapture any economic benefit the defendant may have enjoyed by delaying its compliance and also to ensure that enforcement action generated some measure of deterrence.

   Over the course of the last forty-one years, however, the United States Supreme Court has issued a series of opinions that have clouded these otherwise straightforward dynamics, at least insofar as they apply to injunctive relief. First, in Tennessee Valley Authority v. Hill (3) (TVA v. Hill), the Court relied on separation of powers concerns in finding that the jeopardy prohibition in [section] 7 of the Endangered Species Act (4) completely deprived the lower court of equitable discretion to do anything other than issue an injunction that would protect the relevant species. (5) Just three years later, however, the Court seemed to walk back on at least a broad application of TVA v. Hill in Weinberger v. Romero-Barcelo (6) (Romero-Barcelo). While issuing what I hope to demonstrate was a narrow holding, Justice White's opinion for the majority included some seemingly unqualified language about injunctions being an "extraordinary remedy" that should only be issued where both there would otherwise be "irreparable injury" and legal remedies would be inadequate. (7) But then nearly two decades later, in United States v. Oakland Cannabis Buyers' Co-op (8) (Oakland Cannabis), the Court--while giving lip service the same principles of equitable discretion highlighted in Romero-Barcelo--made clear that this discretion does not give courts the ability to "override Congress' policy choice[s], articulated in a statute, as to what behavior should be prohibited." (9)

   More recently, however, the tide seems to have shifted back in the other direction. In a series of statutory-violation cases decided between 2006 and 2010-eBay, Inc. v. Mercexchange, L.L. C. (10) (eBay), Winter v. Natural Resources Defense Council Inc. (11) (Winter), and Monsanto Co. v. Geertson Seed Farms (12) (Monsanto)--the Supreme Court stressed the need for the courts to apply traditional equitable factors before issuing injunctions. (13) The fact that the latter two cases were environmental cases underscored the possibility that they may serve to alter the analysis that would otherwise apply under TVA v. Hill, Romero-Barcelo and Oakland Cannabis. In Monsanto, the Court deemed the traditional four-factor balancing approach to be applicable to requests for injunctive relief in cases under the National Environmental Policy Act of 1969 (14) (NEPA):

   [A] plaintiff seeking a permanent injunction must satisfy a four-factor test before a court may grant such relief. A plaintiff must demonstrate: 1) that it has suffered an irreparable injury; 2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; 3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and 4) that the public interest would not be disserved by a permanent injunction. (15) In this Essay, I will discuss the relationship between these six Supreme Court decisions, as they collectively bear on the proper judicial response to requests for permanent injunctions where necessary to abate violations of our substantive environmental laws. As will be seen, my thesis is that a correct reading of these cases--particularly of TVA v. Hill, Romero-Barcelo and Oakland Cannabis-indicates that courts have discretion about how and when compliance is to be achieved, but not about whether it should be achieved. If a court is convinced that it can generate prompt compliance by threatening stipulated penalties for any and all future violations, it need not issue an injunction at all. But in the end, compliance is and must be the bottom line. Where injunctions are likely to be the only way to generate prompt compliance, courts cannot undermine congressional mandates by relying on equitable principles to deny claims for such relief. In such circumstances, the equitable analysis must give way, at least to the extent that it might affect the very question of whether--as opposed to when--compliance will be achieved.

   My analysis will proceed in three stages. First, I will provide brief overview of what I consider to be the three key cases that bear directly on the question at hand: TVA v. Hill, Romero-Barcelo, and Oakland Cannabis. Next, I will provide a synthesis of what I believe is the collective import of these decisions. And finally, I will explain why I believe that the three more recent opinions--eBay, Winter, and Monsanto--do not in any way undermine the significance of the earlier three decisions as they bear on the application of injunctive relief in enforcement cases.

   Before I dive into this discussion, however, I would like to propose two relatively simple hypotheticals, to frame the analysis. In the first, I want to assume the presence of an industrial facility that is subject to stringent technology-based standards under the Clean Water Act, (16) but which installed a treatment system that is simply not capable of meeting the relevant requirements. Let us assume that, in order to meet the requirements, it would need to install additional treatment equipment at a cost that is significant, but not debilitating. But let us also assume that this particular facility discharges into very deep marine waters that are subject to strong tidal dispersion. And finally, I want us to assume that the company can show that, even with its existing treatment system (and the resulting violations), its discharges have, at most, only a de minimis adverse impact on the relevant waters, which--as it happens--readily meet all applicable water quality standards.

   My second hypothetical involves an impoverished municipality that has uncontrolled combined sewer overflows (CSOs), which means that the city's sewage system sometimes discharges raw sewage into a nearby river. Let us assume that these discharges are truly foul, and that they lead to extreme violations of water quality standards pertaining to bacteria...