United States v. MWRA , 256 F.3d 36 ( 2001 )

United States Court of Appeals
For the First Circuit
No. 00-2028
UNITED STATES,
Plaintiff, Appellant,
v.
MASSACHUSETTS WATER RESOURCES AUTHORITY;
METROPOLITAN DISTRICT COMMISSION,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Richard G. Stearns, U.S. District Judge]
Before
Boudin, Chief Judge,
Torruella, Circuit Judge,
and Stahl, Senior Circuit Judge.
Robert H. Oakley, Attorney, with whom Greer S. Goldman,
Attorney, Brian Donohue, Attorney, Steve Keller, Attorney, Scott
Bauer, Attorney, Lois J. Schiffer, Assistant Attorney General,
George B. Henderson, II, Assistant United States Attorney, and
Donald K. Stern, United States Attorney, were on brief, for
appellee.
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.
July 16, 2001
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. Rather, this dispute mainly has to do with the
operation of an EPA rule that purports to oblige public water
systems to install a filtration system if they fail to meet
certain regulatory standards by a prescribed deadline -- an
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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 42 U.S.C. §§ 300f to 300j-8 (1991 &
Supp. 2000)), with the basic goal of protecting the purity of
the drinking water provided by the nation's public water
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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." Id. § 300g-1(b)(4)(A). By contrast, the EPA only
may require the implementation of specific treatment techniques,
consisting of engineering or design standards, in instances
where the Administrator deems it infeasible, for technological
or economic reasons, to ascertain an acceptable concentration
level for the contaminant. Id. § 300g-1(b)(7)(A). As
originally written, the SDWA did not specifically require that
the EPA develop either MCLs or treatment techniques with respect
to any particular contaminant. As a result, between 1974 and
1986 the EPA promulgated regulations concerning only twenty-
three drinking water contaminants, and of these pollutants, all
but one had previously been subject to regulations issued by the
1Under the SDWA, the term "public water system" encompasses
any "system for the provision to the public of piped water for
human consumption through pipes or other constructed
conveyances, if such system has at least fifteen service
connections or regularly serves at least twenty-five
individuals." 42 U.S.C. § 300f(4)(A).
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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 and the rules promulgated thereunder be
prosecuted by either the states or the EPA. Id. at 814-15.
These amendments were prompted by the EPA's perceived laxity in
issuing rules under and enforcing the SDWA, see 2 William H.
Rodgers, Jr., Environmental Law, § 4.20A, at 152 (Supp. 2001)
("In making these changes Congress [was] convinced that it
[could] control prosecutorial options [under the SDWA] by
replacing 'mays' with 'shalls' in its enforcement
instructions."), and by anecdotal evidence suggesting a rise in
biological and chemical contamination of public water supplies
throughout the United States.
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
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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. 42 U.S.C. § 300g-1(b)(8). Congress
also changed the SDWA to provide for filtration of public water
systems. Id. § 300g-1(b)(7)(C)(i). But unlike the disinfection
mandate, filtration was not directly imposed upon all public
water systems; rather, Congress provided that the EPA "shall
propose and promulgate . . . criteria under which filtration .
. . is required as a treatment technique for public water
systems supplied by surface water sources." Id.
On June 29, 1989, pursuant to this statutory command,
the EPA promulgated the Surface Water Treatment Rule (SWTR or
Rule), 40 C.F.R. §§ 141.70-.73. The SWTR focuses on public
systems that draw their water in some measure from above-ground
sources. It seeks to reduce the risk of illness from waterborne
pathogens to one yearly occurrence per 10,000 consumers of water
from covered public systems. Drinking Water; National Primary
Drinking Water Regulations; Filtration, Disinfection; Turbidity,
Giardia lamblia, Viruses, Legionella, and Heterotrophic
Bacteria, 54 Fed. Reg. 27,486, 27,490 (June 29, 1989) (codified
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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, 40 C.F.R. §
141.70(a); establishes a mandatory disinfection requirement for
all systems, subject to the granting of variances by the EPA,
id. § 141.72; specifies the standards according to which all
filtration systems must be constructed, id. § 141.73; and sets
out eleven "avoidance criteria" for levels of certain waterborne
contaminants that all public water systems hoping to forego
filtration must satisfy, id. §§ 141.71(a)-(b).2 On December 16,
1998, in response to an additional amendment to the SDWA passed
in 1996, see 42 U.S.C. § 300g-1(b)(2)(C) (Supp. 2000), the EPA
promulgated the Interim Enhanced Surface Water Treatment Rule
(IESWTR), 40 C.F.R. §§ 141.170-.173, which requires that public
water systems implement treatment techniques with respect to the
protozoan Cryptosporidium larvum, whose presence in public water
systems has risen in the past two decades and which has been
demonstrated to cause significant health problems, particularly
for those individuals with weakened immune systems. This Rule,
whose requirements must be met by public water systems by the
2 Of the eleven "avoidance criteria," two relate to source
water quality, four concern minimum levels of disinfection, and
five involve system-specific watershed protection and operations
requirements. 40 C.F.R. §§ 141.71(a)-(b).
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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. Id. § 141.173(b).
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. Id. § 141.73 (emphasis
added). Moreover, filtration decisions under the Rule are
final, in that the Rule provides no mechanism by which a public
water system may petition for a reopening of a filtration
determination. See id. The upshot of this regulatory scheme is
that once a public water system has been found to have violated
one of the avoidance criteria, it forever remains subject to an
enforcement suit requesting the installation of a filtration
system.3 This result obtains no matter how safe the system's
3
The SDWA contains no statute of limitations, and "an action
on behalf of the United States in its governmental capacity . .
. is subject to no time limitation, in the absence of
congressional enactment clearly imposing it." E.I. Dupont de
Nemours & Co. v. Davis, 264 U.S. 456, 462 (1924); cf. United
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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 42
U.S.C. § 300g-3(b) ("The [EPA] Administrator may bring a civil
action . . . to require compliance with any applicable
requirement . . . ."). And the Act provides that in deciding
such suits, courts "may enter . . . such judgment as protection
of public health may require, taking into consideration the time
necessary to comply and the availability of alternative water
supplies." Id. The language of this judicial-enforcement
States v. Telluride Co., 146 F.3d 1241 (10th Cir. 1998)
(refusing to apply general five-year statute of limitations for
civil actions by the United States to enforcement suits under
Clean Water Act because statute of limitations does not cover
claims for equitable relief).
4
Without resort to judicial process, however, the EPA may
impose a civil penalty not exceeding $25,000 per day for
violations of administrative orders. 42 U.S.C. § 300g-
3(g)(3)(A).
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provision has remained untouched, in pertinent part, since the
Act's original passage in 1974.5
As a practical matter, much of the burden of enforcing
the SDWA falls on the shoulders of state environmental
authorities, such as the Massachusetts Department of
Environmental Protection (DEP). This is so because, under the
Act, state agencies that adopt drinking water regulations deemed
by the EPA to be at least as stringent as its own may assume
primary responsibility for identifying violations of the EPA's
regulations and for enforcing the filtration requirement against
the violators. Id. § 300g-2(a). The Act provides that within
thirty months of the promulgation of the SWTR, those state
agencies that participate in SDWA enforcement must identify the
water systems that are required to install filtration
facilities.6 Id. § 300g-1(b)(7)(C)(iii). Although state
5
In 1986, Congress amended § 300g-3(b) by increasing the
maximum available civil penalties under the Act from $5,000 per
day to $25,000 per day, and by eliminating the requirement that
an SDWA violation must be "willful" in order to be the basis for
civil penalties. And in 1996, Congress substituted the term
"any applicable requirement" for "a national primary drinking
water regulation" to reflect the semantic changes effected by
the 1986 amendments to the Act.
6
In 1996 Congress once again amended the SDWA to permit the
EPA to excuse from filtration certain public water systems that
draw water from uninhabited, undeveloped watersheds over which
the public water system has "consolidated" (i.e., sole)
ownership of the surrounding lands. 42 U.S.C. § 300g-
1(b)(7)(C)(v). The MWRA, however, does not qualify to take
advantage of the exception because it does not have consolidated
ownership of the land surrounding its reservoirs.
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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. Id. § 300g-
3(a)(1)(B).
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
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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,
which collectively contain approximately 475 billion gallons of
water. The Quabbin Reservoir, by far the larger of the two
bodies of water, empties into the Wachusett Reservoir. The MWRA
draws water from the eastern edge of the Wachusett Reservoir at
the Cosgrove Intake, and transports the water through a series
of tunnels and aqueducts until it reaches the Norumbega
Reservoir, an intermediate storage basin in Weston,
Massachusetts. From there the water travels in all directions,
through a complex, 6,700-mile web of additional tunnels, pipes,
7Even though the MDC was named as a defendant in this
lawsuit by virtue of its ownership and control of many of the
water-treatment facilities in question, the United States did
not allege in the district court, nor does it allege before this
court, that the MDC violated any laws with respect to this
controversy. We therefore refer to the appellees throughout
this opinion as "the MWRA," except where it is necessary to
distinguish between the two entities.
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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.
8
The MWRA continues to use chloramine disinfection at the
Norumbega Reservoir site.
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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
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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 met and that filtration was not required.9 At the same
time as it pursued the watershed protection strategy, however,
the MWRA also was obligated to plan the siting and design of the
filtration facility that it would be required to install in the
event that it could not establish its eligibility for filtration
avoidance by August 1998. The MWRA, the MDC, and the DEP signed
the ACO on June 11, 1993.
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
9A subsequent amendment to the ACO pushed back to October
31, 1998, the MWRA's target date for demonstrating compliance
with the avoidance criteria.
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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
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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.
On October 1, 1997, over a year before the MWRA was to
have submitted its petition to reopen the filtration
determination, the MWRA and the MDC filed with the DEP an early
"Request for Review and Revision of DEP Determination that
Filtration is Required for Wachusett Reservoir." This document
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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,
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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
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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
subsequently asked the DEP to revoke the MWRA's filtration
waiver based on this violation, but the DEP declined to do so.
Since the January 1999 avoidance-criteria failure, the MWRA's
record of providing safe drinking water has been unblemished.
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
10
The MWRA asserts that the January 1999 fecal coliform
failure was illusory, in that the relevant water samples barely
missed meeting the acceptable levels of bacterial colonies and
that the testing during that period was conducted at tolerance
levels and frequencies far more rigorous than those required by
the SWTR and other EPA guidelines. The district court noted,
however, that the MWRA failed to raise the testing-technique
issue in opposition to the United States's motion for partial
summary judgment. MWRA II, 97 F. Supp. 2d at 176.
Consequently, it found the testing method used by the MWRA in
January 1999 to be "a fact of no legal significance." Id. at
189.
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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.
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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, may produce microbes that nourish
certain types of bacteria, thereby creating the potential for
"regrowth" of certain pathogens in the water supply. For its
part, the MWRA noted that it was in compliance with the
avoidance criteria at the time of trial, thereby removing the
urgency of installing a filtration system. It further attempted
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to demonstrate that its proposed approach of pipeline
rehabilitation, watershed protection, and ozone and chloramine
disinfection treatments would provide more comprehensive water
purification than filtration alone.
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,
-23-
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.
11
The district court noted that the possibility of
"regrowth," without actual evidence of heightened levels of
bacteria, was not a component of the SWTR's filtration-
avoidance criteria. Id. at 189.
12
In particular, the court found that the MWRA had budgeted
approximately $1.7 billion for four major (and needed) capital
improvement projects: a new water supply tunnel; a covered-
storage facility for treated water; a new disinfection facility;
and an ongoing water-main rehabilitation project. Id. at 169.
Additionally, the district court found that the MWRA had
instituted a successful grant program in which it was providing
$25 million per year to its constituent cities and towns to
improve the safety of their local water delivery systems. Id.-24-
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
undertaken by the MWRA to improve the quality of its water, the
United States had not demonstrated that reallocating funds from
the MWRA's planned health-related system improvements to
filtration was warranted. Id. Consequently, the court denied
the United States's request for injunctive relief. Id. It
retained jurisdiction, however, to facilitate reexamination of
the decision in the event that future circumstances warrant it.
Id. This appeal followed.
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
-25-
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, 42 U.S.C. § 300g-3(b).
The role a court plays in deciding whether to grant a statutory
injunction is different than the one it plays when it weighs the
equitable claims of two private parties in a suit seeking
injunctive relief. Yakus v. United States, 321 U.S. 414, 441
13The United States does suggest that the district court
erred by discounting the MWRA's pre-1999 avoidance-criteria
violations in its decision not to order filtration. It also
contends that it has not been estopped from pointing out the
MWRA's pre-1999 violations by its failure to block the ACO.
However, as the United States states in its brief, under its
theory of the case -- that a district court does not have the
discretion to excuse SWTR violations -- the additional
violations are essentially irrelevant, as even one failure to
meet the avoidance criteria after the December 30, 1991 deadline
creates an ongoing violation that triggers the filtration
obligation under the Rule.
-26-
(1944). This is so because a court asked to order a statutory
injunction must reconcile two sets of competing concerns.
Courts asked to issue an injunction must ordinarily assume the
role of a court of chancery -- a role that requires them to
determine whether the equities of the case favor, and whether
the public interest would be served by, the granting of
injunctive relief. See United States v. Oakland Cannabis
Buyers' Coop., ___ U.S. ___, 121 S. Ct. 1711, 1720 (2001) ("In
exercising their sound discretion, courts of equity should pay
particular regard for the public consequences in employing the
extraordinary remedy of injunction.") (quoting Romero-Barcelo,
456 U.S. at 312). But in the context of statutory injunctions,
the court's freedom to make an independent assessment of the
equities and the public interest is circumscribed to the extent
that Congress has already made such assessments with respect to
the type of case before the court. Burlington N. R.R. v. Bair,
957 F.2d 599, 601-02 (8th Cir. 1992) (citing Atchison, Topeka &
Santa Fe Ry. v. Lennen, 640 F.2d 255, 259 (10th Cir. 1981) (per
curiam)); cf. Clark v. Smith, 38 U.S. (13 Pet.) 195, 203 (1839)
(finding "inherent in the Courts of Equity a jurisdiction to .
. . give effect to the policy of the legislature").
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
-27-
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
-28-
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"
-29-
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
Congress, and as such, are not relevant indicia of legislative
intent. Cf. Chevron U.S.A., Inc. v. Natural Res. Def. Council,
467 U.S. 837, 842-43 & n.9 (1984) (directing courts to
distinguish between agency policy and congressional intent and
to reject administrative constructions that do not give effect
to the intent of Congress).
The United States does not quibble with this analytical
framework. Rather, it argues that the judicial-enforcement
provision of the SDWA, 42 U.S.C. § 300g-3(b), when read along
with the rest of the Act, admits of only one appropriate outcome
in cases where a water system fails an avoidance criterion: the
delinquent water system must be directed to install a filtration
system. Accordingly, in the United States's view, the SDWA does
create a "necessary and inescapable inference" that courts may
not decline to order filtration whenever a violation of the Act
or the rules promulgated thereunder has been established.
-30-
In reaching this conclusion, the United States focuses
on the SDWA's judicial-enforcement provision, 42 U.S.C. § 300g-
3(b), which states, in relevant part:
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," id. § 300g-
1(b)(7)(C)(i), the United States contends that, while § 300g-
3(b) may not have abrogated courts' equitable powers to specify
when ("the time necessary to comply") and how ("the availability
of alternative water supplies") a violator is to comply with the
filtration requirement, the provision does deprive courts of the
authority to allow SDWA violators to remain in permanent
noncompliance. In this respect, the United States contends that
the case at bar is most akin to Hill, a decision in which the
Supreme Court found that the district court did not have the
equitable discretion under the Endangered Species Act to decline
the issuance of an injunction if it found that a violation of
-31-
the statute's substantive provisions had occurred. 437 U.S. at
193-95.
To bolster this argument, the United States adverts to
a passage from § 300g-3(b)'s legislative history that, it
argues, evinces congressional intent to diminish courts'
equitable discretion under the SDWA. This passage, appearing in
the report of the House Interstate and Foreign Commerce
Committee (which authored the version of the Act that ultimately
became law in 1974), states:
[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 in individual SDWA cases. In
United States v. City of New York, 198 F.3d 360 (2d Cir. 1999),
a case in which a citizens' group sued to undo a consent
agreement between New York City and the EPA that required the
installation of a filtration system, the court in dicta stated:
-32-
[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.
Id. at 366.14
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
14
This passage was dicta because the court disposed of the
proposed intervenors' appeal on the alternative ground that the
district court did not abuse its discretion by denying the
organization's requests for intervention as a matter of right
and for permissive intervention. See id. at 367-68.
15
In order to issue a permanent injunction, a district court
typically must find that (1) the plaintiff has demonstrated
actual success on the merits of its claims; (2) the plaintiff
would be irreparably injured in the absence of injunctive
relief; (3) the harm to the plaintiff from defendant's conduct
would exceed the harm to the defendant accruing from the
issuance of an injunction; and (4) the public interest would not
be adversely affected by an injunction. E.g., A.W. Chesterton
Co. v. Chesterton, 128 F.3d 1, 5 (1st Cir. 1997). At least with
respect to some statutory injunction provisions, however, courts
have found that when Congress decides to make available the
remedy of injunction for violations of a statute's substantive
-33-
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," 42 U.S.C. § 300g-3(b),
thereby ensuring that the public system provides water that is
safe according to standards identified by the EPA, the court
retains a measure of flexibility under the Act to tailor the
specifics of an equitable remedy that will help bring about that
goal. Our determination on this point is bolstered by several
provisions, irreparable injury is presumed to flow from such
violations. E.g., United States v. City of Painesville, 644
F.2d 1186, 1194 (6th Cir. 1981).
We note that, in spite of the legislative history indicating
Congress's intent to narrow the scope of equitable discretion
under the SDWA, at least one court has applied traditional
principles of equitable balancing to determine the propriety of
an injunction for violations of the Act's substantive
provisions. See United States v. Midway Heights County Water
Dist., 695 F. Supp. 1072 (E.D. Cal. 1988) (denying public water
system's motion for stay of preliminary injunction requiring it
to comply with national drinking water regulations).
16We note that in City of New York, the proposed intervenors
did not argue that the equities of the case favored withholding
filtration in that particular case; rather, they sought to
effect a "head-on challenge to filtration" per se. 198 F.3d at
366. The proposed intervenors' challenge principally was based
on their assertion that "filtration . . . is [both] dangerous to
consumers [and] fiscally wasteful." Id. at 363; see also id. at
364 ("[Appellants] do[] not seek to enforce administratively
established criteria; [they] seek[] to block such
enforcement."). Moreover, in City of New York (unlike in the
present case) the public water system conceded that it would not
be able to meet the avoidance criteria in the future. Id. at
362-63.
-34-
factors relating to the Act's "language, history and structure,"
Hill, 437 U.S. at 174, and its "underlying substantive policy,"
Village of Gambell, 480 U.S. at 544.
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 . . . ." 42
U.S.C. § 300g-3(b) (emphasis added). When Congress uses the
permissive "may" in settings such as § 300g-3(b), it is
"eminently reasonable" to presume that the choice of verbiage is
a deliberate one, and that, in the context of that statute,
"'may' means may."17 McCreary v. Offner, 172 F.3d 76, 83 (D.C.
Cir. 1999); see also United States v. Rodgers, 461 U.S. 677, 706
(1983) ("The word 'may,' when used in a statute, usually implies
some degree of discretion."); Flynn v. United States, 786 F.2d
586, 591 (3d Cir. 1986) (finding that where statute states that
court "may" grant injunctive relief, the statute's use of the
conditional "suggests that such relief is not mandatory in every
case"). This tenet of statutory construction should obtain
17
Conversely, when Congress employs the word "shall" in like
contexts, it often means that "Congress has imposed a mandatory
duty upon the subject of the command." Forest Guardians v.
Babbitt, 174 F.3d 1178, 1187 (10th Cir. 1999) (citing Monsanto,
491 U.S. at 607). However, even the use of the word "shall"
does not necessarily eliminate all equitable discretion if
Congress's purpose not to eliminate such discretion is manifest.
Hecht Co., 321 U.S. at 329.
-35-
unless "obvious inferences from the structure and purpose of the
statute [indicate] that 'may' was intended to have something
other than its ordinary meaning." Reynolds v. Spears, 93 F.3d
428, 434-35 (8th Cir. 1996) (citing United States v. Rodgers,
461 U.S. at 706) (internal quotation marks omitted).
If anything, the strongest inference that may be drawn
from the SDWA is that Congress did intend for "may" in § 300g-
3(b) to track its everyday meaning. As mentioned in Part I,
supra, Congress amended the Act in 1986 to enhance the level of
enforcement under the SDWA. See 42 U.S.C. § 300g-3(a)(1)(B)
(providing that if the responsible state enforcement authority
does not commence enforcement action within thirty days of being
notified by the EPA of existence of violation, "the
Administrator shall issue an [administrative] order . . . or the
Administrator shall commence a civil action . . . .") (emphases
added); Rodgers, supra, § 4.20A, at 152 ("In making these
changes Congress [was] convinced that it [could] control
prosecutorial options by replacing 'mays' with 'shalls' in its
enforcement instructions."). But in so amending the Act,
Congress left untouched the "mays" contained in the Act's
neighboring judicial-enforcement provision, thereby making only
prosecution of substantive SDWA violations an expressly
mandatory undertaking. It presumably did so with the
understanding that under the Act, enforcement requires the
-36-
actions of two entities -- the state enforcement authority or
the U.S. Attorney's office, who must sue to require compliance,
and the district court, which must issue an injunction -- to
bring about a substantive remedy under the Act. "[W]hen the
same [provision] uses both 'may' and 'shall,' the normal
inference is that each is used in its usual sense -- the one act
being permissive, the other mandatory." Anderson v. Yungkau,
329 U.S. 482, 485 (1947); see also Barbieri v. RAJ Acquisition
Corp. (In re Barbieri), 199 F.3d 616, 619-20 (2d Cir. 1999)
(distinguishing neighboring subsections of same section of
Bankruptcy Code based on presence of "may" in one provision and
"shall" in the other provision).
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 42 U.S.C. § 300g-3(g). In the report of
the Senate Environment and Public Works Committee (which
generated the version of the bill that ultimately became law) on
the enactment of these amendments, the Committee stated that
"[t]he purpose of adding administrative order authority is not
to replace judicial enforcement, but to add a complementary
enforcement mechanism." S. Rep. No. 99-56, at 9 (1986),
-37-
reprinted in 1986 U.S.C.C.A.N. 1566, 1574. By affording the
EPA an intermediate remedy for SDWA violations that does not
require court action, Congress explicitly contemplated a system
in which substantive violations of the Act (particularly minor
ones) would not always result in the issuance of an injunction.
See Romero-Barcelo, 456 U.S. at 317-18.
In sum, there is substantial evidence in the SDWA's
text and legislative history to suggest that "may" really does
mean "may" in § 300g-3(b). While these clues alone might not
suffice to eliminate all doubt that Congress intended for "may"
to have a permissive meaning, at a minimum, they do eliminate
the possibility that the SDWA's structure and purpose generate
an "obvious inference" that the word "may" in § 300g-3(b) really
means "shall."18 Rodgers, 461 U.S. at 706; see also Russ Winner,
The Chancellor's Foot and Environmental Law: A Call for Better
Reasoned Decisions on Environmental Injunctions, 9 Envtl. L.
18The United States asserts that by creating a filtration
exemption under the SDWA in 1996 for water systems with
uninhabited and undeveloped watersheds in consolidated control,
42 U.S.C. § 300g-1(b)(7)(C)(v), Congress demonstrated its belief
that such an amendment was needed to circumvent the mandatory
command of the Act's filtration requirement. We disagree. This
provision merely authorizes state enforcement agencies, who
would otherwise be obliged to bring an enforcement action for
avoidance-criteria violations, see id. § 300g-3(a)(1)(B)
(requiring the EPA to bring suit for substantive SDWA violation
if state enforcement agency fails timely to do so), to permit
compliance with the Act by means other than filtration for
certain types of water systems. The amendment does not touch
upon the power of the court to issue -- or not issue -- an
injunction.
-38-
477, 506 (1979) ("If . . . the legislation explicitly requires
that 'an injunction must issue,' a court . . . has no choice but
to comply. Most of the time, however, the legislature is silent
as to injunctive remedy or merely says that an injunction 'may'
issue. In this case, courts usually retain their full equitable
discretion.").
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 § 300g-3(b) referring to compliance with
the Act, and specifically on statements to the effect that the
EPA Administrator is authorized to "bring a civil action . . .
to require compliance" and that a court hearing an SDWA suit
"may enter . . . such judgment as protection of public health
may require, taking into consideration the time necessary to
comply," we find that such language, when compared to similar
language in other federal enforcement statutes, does not compel
the conclusion that the court must issue an injunction.
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
-39-
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, 15 U.S.C. §
78u(d)(1), the SEC "may, in its discretion, bring an action . .
. to enjoin . . . acts or practices" violating the statute's
substantive provisions. In SEC v. Frank, 388 F.2d 486, 491 (2d
Cir. 1968), Judge Friendly, writing for the panel, found such
language not susceptible of the interpretation that equitable
discretion had been stripped from the district court: "Such
bland language affords no sufficient basis for concluding that
Congress meant special weight to be given the Commission's
decision to allow its staff to institute suit. If Congress
wishes to go further, it should say so in language all can
understand." Likewise, in Federal Power Commission v. Arizona
Edison Co., 194 F.2d 679, 684-86 (9th Cir. 1952), the Ninth
Circuit, reaching an analogous conclusion with respect to
identical language in the judicial-enforcement provision of the
Federal Power Commission Act, 16 U.S.C. § 825m(a), held that the
courts' traditional powers of equity had not been eviscerated by
the agency's power to bring suit to require compliance. Another
example of this usage, albeit in a slightly different context,
-40-
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. 33 U.S.C. § 1365(b)(1)(B) (emphasis
added). Despite this reference to "requir[ing] compliance" in
the statutory language, the Supreme Court held in Romero-Barcelo
that the Clean Water Act does not require the issuance of an
injunction in all cases where a statutory violation has been
identified. 456 U.S. at 313 (holding that "[t]he grant of
jurisdiction to ensure compliance with a statute hardly suggests
a duty to do so under any and all circumstances"). These
examples demonstrate that a statutory provision that gives an
agency the power to litigate "to require compliance," without
more, does not necessarily obligate the court asked to rule on
such a suit to issue any particular remedy.19
The other passage in § 300g-3(b) referred to by the
United States -- the one stating that courts are to consider
"the time necessary to comply and the availability of
alternative water supplies" in fashioning equitable relief -- is
better construed to mean that, to the extent a court issues a
19
As we note infra, we believe that the district court did
require compliance with the SDWA in this case.
-41-
"judgment as public health may require" that does include the
filtration remedy (which, as the district court noted, will
usually be the case), it must allow the public water system
reasonable time to comply in light of the availability of
alternative water sources. From the command that a court must
consider the time necessary to comply when it does order a
"judgment as public health may require," however, it does not
necessarily follow that the court must always exact the type of
compliance sought by the agency whenever a violation of the Act
has been identified. This construction is supported by the fact
that, in spite of the ubiquitousness of the term "compliance" in
§ 300g-3(b), courts are not expressly limited by the statute to
entering judgments that "require compliance," but instead have
been granted the leeway to issue "judgment[s] as protection of
public health may require." Cf. Natural Res. Def. Council v.
Southwest Marine, Inc., 236 F.3d 985, 1000 (9th Cir. 2000)
(holding that, with respect to judicial-enforcement provision in
Clean Water Act limiting courts to "enforce[ment]" of existing
standards and orders, "the authority to 'enforce' an existing
requirement is more than the authority to declare that the
requirement exists and repeat that it must be followed"), cert.
denied, 121 S. Ct. 2242 (2001).
In sum, while the United States's position certainly
is not implausible, the fact that the MWRA's interpretation of
-42-
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, 16 U.S.C. § 1540(g), which, far from
expressly requiring the issuance of an injunction upon the
finding of a statutory violation, merely gives district courts
"jurisdiction . . . to enforce any . . . provision" of the Act.20
20
This apparent omission was noted in a dissent by then-
Justice Rehnquist, who, after taking note of the provision,
determined that it was not strong enough to eliminate the
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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 the ESA. As the district court noted, by imposing the
disinfection mandate directly even as it imposed the filtration
remedy indirectly, Congress "stopped short of ordering
filtration as an all-encompassing preventive." MWRA II, 97 F.
Supp. 2d at 165. As for the Supreme Court's failure to consider
the language of the ESA's judicial-enforcement provision in
Hill, we note that in subsequent cases, such as United States v.
presumption of retained equitable discretion. Hill, 437 U.S. at
211-13 (Rehnquist, J., dissenting).
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Oakland Cannabis Buyers' Cooperative, the Court has found that
piece of legislative evidence to be particularly relevant in
ascertaining the extent to which equitable discretion had been
retained. See ___ U.S. ___, 121 S. Ct. 1711, 1721 (2001)
(analyzing judicial-enforcement provision of Controlled
Substances Act, 21 U.S.C. § 882(a), and concluding that the
district court "is not textually required by any clear and valid
legislative command" in that provision to issue an injunction)
(internal quotation marks omitted). Whether or not the approach
taken in Hill with respect to the ESA is still "good law," we
are not persuaded that a similar approach is appropriate here.
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
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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,
21In Hecht Co., the defendant had remedied its past
violations of the Emergency Price Control Act, and the district
court had found that those transgressions were not likely to
recur. 321 U.S. at 325-26. In Romero-Barcelo, the Court noted
that the violator (the Navy) was likely in the near future to
receive the permit it needed to comply with the Federal Water
Pollution Control Act amendments to the Clean Water Act, and
found that the statute's judicial-enforcement provision "permits
the district court to order that relief it considers necessary
to secure prompt compliance with the Act." 456 U.S. at 320(emphasis added). And in Village of Gambell, the Court found
that because oil companies needed to receive further approval
from the Secretary of the Interior before engaging in drilling
off the coast of Alaska, the district court was not required,
under the Alaska National Interest Lands Conservation Act, to
enjoin the companies' activities based on their past failures to
meet the Act's procedural requirements. 480 U.S. at 544.
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with the United States's argument that the court is permitting
noncompliance in this case. "[W]hen a court of equity exercises
its discretion, it may not consider the advantages and
disadvantages of nonenforcement of the statute, but only the
advantages and disadvantages of employing the extraordinary
remedy of injunction over the other available methods of
enforcement." Oakland Cannabis Buyers' Coop., 121 S. Ct. at
1722 (internal citations and quotation marks omitted). Because
the court's order is designed to ensure that the Act's paramount
objective of safe drinking water remains fulfilled in the
future, the district court did not, as the United States argues,
sanction perpetual noncompliance with the Act. See Village of
Gambell, 480 U.S. at 544 (directing courts charged with ensuring
compliance with a statute to focus on "the underlying
substantive policy the process was designed to effect").
Contrary to the situation in Hill, this is not a case where
"Congress' order of priorities, as expressed in the statute,
would be deprived of effect if the District Court could choose
to deny injunctive relief." Oakland Cannabis Buyers' Coop., 121
S. Ct. at 1721 (internal quotation marks omitted) (citing Hill,
437 U.S. at 194).
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
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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
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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 avoidance-criteria violations. See Romero-Barcelo, 456
U.S. at 320 ("Should it become clear that . . . compliance with
the [statute] will not be forthcoming, the statutory scheme and
purpose would require the court to reconsider the balance it has
struck.").
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
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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 § 300g-3(b), courts are authorized to issue
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"judgments as protection of public health may require."
Moreover, by retaining jurisdiction in this case, the district
court has assumed the responsibility of ensuring that, through
continued oversight of the MWRA's avoidance-criteria compliance,
the MWRA's water supply will remain "safe" according to the
EPA's standards.
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"
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of public water systems, 42 U.S.C. § 300g-1(b)(7)(C)(i),
Congress entrusted the EPA with the power to make policy
judgments with respect to the factors that would make filtration
mandatory. It is also true that, as a general matter, those
judgments are not to be second-guessed by courts. But policy
determinations in statutes and regulations that Congress chooses
to have enforced through suits in equity are always subject to
courts' equitable discretion -- that is, at least to the extent
that Congress has preserved discretion in the statute and has
not proscribed, through its expressions of policy, the type of
equitable remedy that a court seeks to implement. If Congress
has left the door open to a court to exercise equitable
discretion respecting enforcement of a statute such as the SDWA,
and the court senses that the equities of the case may favor
alternative means of exacting compliance with the statute ( i.e.,
other than the issuance of an injunction), the court does not
exceed the boundaries of its authority by conducting fact-
finding for the purpose of determining how best to wield its
discretion in light of the priorities established in the
statute. The district court did not hold a trial to revisit the
underlying wisdom of the SWTR; rather, it held a trial to
ascertain whether, based on both the particular facts of this
case and the substantive goals of the Act, it was more
appropriate to order filtration or to permit the MWRA to pursue
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its alternative approach to the extent that it could satisfy the
Rule's avoidance criteria and ultimately provide a safer water
supply.
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
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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.
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