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United States v. Commonwealth of Puerto Rico and Environmental Quality Board, 721 F.2d 832, 1st Cir. (1983)
United States v. Commonwealth of Puerto Rico and Environmental Quality Board, 721 F.2d 832, 1st Cir. (1983)
2d 832
20 ERC 1189, 14 Envtl. L. Rep. 20,003
Marvin B. Durning, Seattle, Wash., with whom Lynn D. Weir, Seattle, Wash.,
Hector Reichard de Cardona, Secretary of Justice, Eduardo L. Buso, Dept. of
Justice, San Juan, P.R., Gerardo A. Carlo, Carlo & Dubos, Old San Juan, P.R.,
and Durning, Webster & Lonnquist, Seattle, Wash., were on brief, for
defendants, petitioners.
Francis X. Bellotti, Atty. Gen., Stephen M. Leonard, Asst. Atty. Gen., Boston,
Mass., Joseph I. Lieberman, Atty. Gen., Richard F. Webb, Asst. Atty. Gen.,
Hartford, Conn., Jim Smith, Atty. Gen., Bruce D. Barkett, Asst. Atty. Gen.,
Tallahassee, Fla., Stephen H. Sachs, Atty. Gen., Baltimore, Md., Thomas A.
Deming, Asst. Atty. Gen., Annapolis, Md., Rufus L. Edmisten, Atty. Gen.,
Daniel C. Oakley, Asst. Atty. Gen., Raleigh, N.C., Jim Mattox, Atty. Gen., Jim
Mathews and Nancy N. Lynch, Asst. Attys. Gen., Austin, Tex., on brief for
Com. of Mass., State of Conn., State of Fla., State of Md., State of N.C., and
State of Tex., amici curiae.
Before COFFIN and BREYER, Circuit Judges, and SELYA, * District Judge.
The United States, on behalf of the Navy, instituted this action in the district
court against the Commonwealth of Puerto Rico and its Environmental Quality
Board ("EQB"), seeking to set aside a decision of the EQB denying a water
quality certification request. The defendants (hereinafter collectively "Puerto
Rico" or "the Commonwealth") moved to dismiss the case for want of subject
matter jurisdiction, asseverating that the Clean Water Act of 1977, Pub.L. No.
95-217, 91 Stat. 1566 (1977) (codified as amended at 33 U.S.C. Secs. 12511376) ("CWA") requires the issues raised in the complaint to be adjudicated in
the courts of the Commonwealth. In a reported opinion, United States v. Puerto
Rico, 551 F.Supp. 864 (D.P.R.1982), the court below denied the motion, but
suggested certification of the issue presented as one justifying interlocutory
appellate review. The parties concurred in this suggestion, and an appropriate
order was entered below. We granted leave to appeal pursuant to 28 U.S.C. Sec.
1292(b), and now affirm.
I.
7
The underlying facts giving rise to this action have been set forth in detail in our
opinion in a predecessor case, Romero-Barcelo v. Brown, 643 F.2d 835 (1st
Cir.1981), rev'd in part sub nom. Weinberger v. Romero-Barcelo, 456 U.S. 305,
102 S.Ct. 1798, 72 L.Ed.2d 91 (1982), and it would be pleonastic to repeat
them here. A decurtate recital of certain crucial facts is, however, useful in
setting the stage upon which the instant confrontation was played out in the
district court.
Vieques Island lies off the southeast coast of Puerto Rico; over three-fourths of
the island is owned by the United States Navy. The Navy uses both the island
and its surrounding coastal waters to stage training exercises, some of which
involve live ammunition weapons fire. Puerto Rico originally brought suit to
enjoin the conduct of such activities. In so doing, the Commonwealth argued,
inter alia, that the dropping of ordnance into coastal waters without a National
Pollution Discharge Elimination System ("NPDES") permit violated the CWA.
In Romero-Barcelo, the Supreme Court affirmed our ruling that the CWA was
applicable to the ongoing naval operations and that a NPDES permit should
have been sought (643 F.2d at 861-62), though the Court reversed our decision
pertaining to the need for interim injunctive relief pending the obtaining of such
a permit. Weinberger v. Romero-Barcelo, 456 U.S. at 320, 102 S.Ct. at 1807.
9
II.
10
Putting the novel issue presented for our consideration in proper perspective
necessitates, at the outset, both an explication of the relevant statutory mosaic
and perlustration of the proceedings below within that statutory frame of
reference.
11
In order to protect and enhance the quality of the nation's water resources,
Congress enacted the Federal Water Pollution Control Act Amendments of
1972, P.L. 92-500, 86 Stat. 816 (1972) ("FWPCA"). The FWPCA, erected on
the foundation of the Federal Water Quality Act of 1965, Pub.L. No. 89-234,
79 Stat. 903 (1965), was a bold and sweeping legislative initiative. Experience
with the FWPCA during its embryonic years led to substantial amendment,
evidenced most notably by the enactment in 1977 of the CWA.2 The linchpin of
the Act is the NPDES permit process. Such a permit is required for the
discharge of any pollutant into any body of water covered by the Act. 33 U.S.C.
Sec. 1342(a)(1). To secure a NPDES permit, an applicant must obtain a
certificate from the appropriate state agency validating compliance with both
federal and state water pollution control standards.3 33 U.S.C. Sec. 1341(a)(1).
Failure to procure such certification prevents the applicant from receiving its
permit; and a state decision denying certification, or one imposing conditions or
restrictions, is not reviewable administratively by the EPA. Roosevelt
Campobello International Park Commission v. United States Environmental
Protection Agency, 684 F.2d 1041, 1056 (1st Cir.1982) ("RCIPC I "). At least
in the case of applications by non-federal agencies, such a decision is likewise
exempt from review in federal court. Id. See also Shell Oil Co. v. Train, 585
F.2d 408, 414 (9th Cir.1978). The EQB is the Puerto Rican agency charged
with certification responsibilities, and its decisions are, in the normal course,
appealable to the Commonwealth's superior court. P.R. Laws Ann.Tit. 12, Sec.
1134(d)(2).
12
Some four years after passage of the FWPCA, the Supreme Court, in EPA v.
California ex rel. State Water Resources Control Board, 426 U.S. 200, 96 S.Ct.
2022, 48 L.Ed.2d 578 (1976), ruled that federal facilities need not comply with
state standards or pollution control requirements. Id. at 227-28, 96 S.Ct. at
2035; cf. Hancock v. Train, 426 U.S. 167, 198-99, 96 S.Ct. 2006, 2021-22, 48
L.Ed.2d 555 (1976) (rationale of EPA v. California applied to the Clean Air
Act). Congress, plainly disenchanted with this pronouncement, the following
year enacted 33 U.S.C. Sec. 1323(a) as a part of the CWA. This provision
provides in pertinent part:
13
14
The net effect of this statute was to reverse legislatively the Court's ruling in
EPA v. California, supra, and to require that federal facilities achieve
certification pursuant to 33 U.S.C. Sec. 1341(a)(1) in order to obtain NPDES
permits.
15
16
Except as otherwise provided by Act of Congress, the district courts shall have
original jurisdiction of all civil actions, suits or proceedings commenced by the
United States, or by any agency or officer thereof expressly authorized to sue by
Act of Congress.
17
III.
18
In order to sharpen the focus of the competing contentions raised by the parties,
in a context where no provision of the Act explicitly provides for deflection of
28 U.S.C. Sec. 1345 in CWA cases, it is useful to examine the circumstances
under which Sec. 1345 may be deemed to have been abridged by Congress.
More particularly, since the heart of the Commonwealth's exhortation is that 33
U.S.C. Sec. 1323(a) impliedly repeals 28 U.S.C. Sec. 1345 by virtue of its
command that all federal facilities must adhere to state procedural requirements
(including, in appellants' view, state forum designations anent the appeal of
EQB decisions), the parameters of the doctrine of implied repeal must be
ascertained.
19
The Supreme Court has recently had occasion to reexamine this doctrine in
Kremer v. Chemical Construction Corp., 456 U.S. 461, 102 S.Ct. 1883, 72
L.Ed.2d 262 (1982). There, the plaintiff alleged that his dismissal from
employment violated Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. Sec. 2000e et seq. ("Title VII"). After unsuccessful pursuit of state
employment discrimination claims, both administratively and in the state
courts, the employee brought a Title VII action in the district court. Since the
factual predicate of the suit was virtually identical to that upon which the state
proceedings had been based, the claim was dismissed on the ground that the
federal courts were constrained to give preclusive effect to state court
adjudications pursuant to 28 U.S.C. Sec. 1738.5 On appeal, the employee
expostulated that in enacting Title VII, Congress had, by implication, repealed
28 U.S.C. Sec. 1738 as regards employment discrimination cases. In rejecting
this argument, the Supreme Court first reiterated the long-settled notion that
implied repeals are not lightly to be indulged. Id. at 468, 102 S.Ct. at 1890;
accord Radzanower v. Touche Ross & Co., 426 U.S. 148, 154, 96 S.Ct. 1989,
1993, 48 L.Ed.2d 540 (1976); United States v. Brien, 617 F.2d 299, 310 (1st
Cir.), cert. denied, 446 U.S. 919, 100 S.Ct. 1854, 64 L.Ed.2d 273 (1980). The
Court further held that statutes should be read consistently when possible,
Kremer v. Chemical Construction Corp., 456 U.S. at 468, 102 S.Ct. at 1890;
accord United States v. Brien, 617 F.2d at 310, and proceeded to catalogue the
two recognized categories of repeals by implication:
20 where provisions in the two acts are in irreconcilable conflict, the later act to the
(1)
extent of the conflict constitutes an implied repeal of the earlier one; and (2) if the
later act covers the whole subject of the earlier one and is clearly intended as a
substitute, it will operate similarly as a repeal of the earlier act. But, in either case,
the intention of the legislature to repeal must be clear and manifest .... Radzanower
v. Touche Ross & Co., supra, at 154 [96 S.Ct., at 1993], quoting Posadas v. National
City Bank, 296 U.S. 497, 503 [56 S.Ct. 349, 352, 80 L.Ed. 351] (1936).
21
Kremer v. Chemical Construction Corp., 456 U.S. at 468, 102 S.Ct. at 1890.
Such an analysis is, of course, wholly appropriate in assaying any claim that the
original jurisdiction of the district courts under 28 U.S.C. Sec. 1345 has been
truncated by illation, as the Court has acknowledged that such jurisdiction
"should not be disturbed by a mere implication flowing from subsequent
legislation." Colorado River Water Conservation District v. United States, 424
U.S. 800, 808, 96 S.Ct. 1236, 1242, 47 L.Ed.2d 483 (1976).
22
Applying these guidelines to the case at bar, our task is plain: we must analyze
whether Congress intended 33 U.S.C. Sec. 1323(a) to act as a substitute for the
jurisdictional provisions of the Judiciary Code (especially 28 U.S.C. Sec.
1345); or in the alternative, whether an unbridgeable schism exists between 33
U.S.C. Sec. 1323(a) and 28 U.S.C. Sec. 1345.
IV.
23
The legislative history of the CWA, in and of itself, provides precious little
insight into whether Congress intended the federal compliance provision to be a
surrogate for 28 U.S.C. Sec. 1345. The Senate Report, more concerned with the
federal government's failure to serve as an exemplar for pollution control,
simply stated:
24
[S]ection
313 [of the FWPCA] is amended to specify that, as in the case of air
pollution, a Federal facility is subject to any Federal, State, and local requirement
respecting the control or abatement of water pollution, both substantive and
procedural, to the same extent as any person is subject to these requirements. This
includes, but is not limited to, requirements to obtain operating and construction
permits, reporting and monitoring requirements, any provisions for injunctive relief
and such sanctions imposed by a court to enforce such relief, and the payment of
reasonable service charges.
25
S.Rep. No. 95-370, 95th Cong., 1st Sess. 67, reprinted in 1977 U.S.Code Cong.
& Ad.News 4326, 4392. ("Senate Report").
26
27
28
H.Conf.Rep. No. 95-830, 95th Cong., 1st Sess. 93, reprinted in 1977 U.S.Code
Cong. & Ad.News 4424, 4468.
29
It is in the dim light of this murky backdrop that we must proceed in our effort
29
30
It is in the dim light of this murky backdrop that we must proceed in our effort
to divine the congressional will.6
Although the legislative history of the CWA is cryptic at best, that history (see,
e.g., id.), as well as our recent decision in Roosevelt Campobello International
Park Commission v. EPA, 711 F.2d 431 (1st Cir.1983) ("RCIPC II "), suggests
that we examine the comparable provision in the Clean Air Act Amendments of
1977, P.L. No. 95-95, 91 Stat. 685 (1977) (codified as amended at 42 U.S.C.
Secs. 7401-642) ("CAA") and its antecedents.
31
32
33
34
V.
35
36
The goal of 33 U.S.C. Sec. 1323(a) is to insure that federal facilities comply
fully with apposite state laws and regulations, Senate Report at 67, recognizing
that the states are the prime bulwark in the effort to abate water pollution. 33
U.S.C. Sec. 1251(b). But, is state court adjudication of the denial of NPDES
certificates pursuant to 33 U.S.C. Sec. 1341(a)(1) so critical to the teleology of
federal compliance that the dictates of 28 U.S.C. Sec. 1345 must necessarily be
overridden? To this question, we must respond in the negative.
37
We observe, first, that laying the two statutes side by side fails to reveal any
inherent contradictions. Compliance with state and local standards-"requirements, administrative authority, and process and sanctions", in the
parlance of 33 U.S.C. Sec. 1323(a)--can, it would seem, be enforced as well by
the federal courts as by non-federal tribunals. And, sub-part (C) of Sec. 1323(a)
specifically contemplates, at least to some entropic extent, enforcement by the
federal judiciary.
38
In passing the CAA, Congress apparently acted upon the belief that state court
adjudication of state law issues was of paramount importance in air pollution
control matters; elsewise, Congress would not have consciously foreclosed, at
least part-way, the availability of a federal forum.8 By adopting a removal
provision for the CWA, however, Congress signalled precisely the opposite
intent. It must have assumed that the maintenance of litigation anent state water
pollution laws in federal courts would not adversely affect federal compliance
with such laws.9 Implicit in this assumption is the recognition that, since state
law governs controversies involving NPDES permits, see, e.g., District of
Columbia v. Schramm, 631 F.2d 854, 863 (D.C.Cir.1980), the federal judicial
system has the capacity to apply state law in enforcement proceedings.
Certainly, assessment of whether or not the determination of an administrative
agency is supported by substantial evidence (the criterion established for
review of the instant EQB certification denial under P.R.Laws Ann.Tit. 12, Sec.
1134(g)) is not foreign to the wonted responsibilities of the district courts. See,
e.g., 5 U.S.C. Sec. 706(2)(E). And, if the federal courts are capable of
interpreting state law so as to effect compliance therewith when the United
States is a defendant, we find no reason to doubt that the same ability inheres
when the government is a plaintiff. Indeed, the Congress has historically seen
fit to entrust state law questions to the tender ministrations of the federal
judiciary in much broader contexts. See Erie Railroad Co. v. Tompkins, 304
U.S. 64, 78, 58 S.Ct. 817, 822, 82 L.Ed. 1188 (1938). It is true that we recently
noted that the CWA and CAA are ordinarily to be read in pari passu, RCIPC II,
711 F.2d at 437, but this parallelism cannot be taken beyond the frontiers of
logic. The case at bar furnishes an excellent example of such an outer limit,
given the unique removal language embodied in the CWA and omitted from
the CAA.
VI.
40
In light of the above, there can be but a single meaningful solution to this
jurisdictional tangram. As was true of the Supreme Court in Franchise Tax
Board v. Construction Laborers Vacation Trust, supra, "Our concern in this
case is consistent application of a system of statutes conferring original federal
court jurisdiction". --- U.S. at ----, 103 S.Ct. at 2856. Consentient with
established principles of statutory construction and with prior case law, there is
no legally sufficient basis to presume that 33 U.S.C. Sec. 1323(a) was designed
to preempt the provisions of the Judiciary Code or to supplant 28 U.S.C. Sec.
1345 as to water pollution control matters. Further, Congress has made and
adequately evinced its judgment that state court adjudication is not needed to
promote federal compliance under the CWA;10 accordingly, we can find no
irreconcilable conflict between 33 U.S.C. Sec. 1323(a) and 28 U.S.C. Sec.
1345. Thus, we give effect to both by permitting the appellee to maintain the
instant action in the district court. The district judge correctly denied the
Commonwealth's motion to dismiss.
41
The case is remanded to the court below for further proceedings consistent with
this opinion.
42
Affirmed.
In substance, the EQB concluded that the discharges violated both the Puerto
Rico Public Policy Environmental Act, P.R.Laws Ann.Tit. 12, Sec. 1121 et seq.
and the CWA; that no effective monitoring system could be devised to verify
compliance with any restrictions set by the EQB; and that the evidence adduced
was insufficient to establish a reasonable likelihood of compliance with Puerto
Rico's Water Quality Standards. See Resolution and Notification of EQB (Dec.
2, 1981), at 16-17
A state has the authority to promulgate water pollution control standards which
are stricter than those mandated by the federal government. Commonwealth
Edison v. Train, 649 F.2d 481, 486 (7th Cir.1980); see 33 U.S.C. Sec. 1370.
Puerto Rico is considered as a "state" for purposes of the Act. 33 U.S.C. Sec.
1362(3), and thereby enjoys the power to fix such standards
33 U.S.C. Sec. 1323 also ceded to the President authority to grant exemptions
for, inter alia, military operations. Despite the carving-out of this national
security escape hatch, no such exemption has, for aught that appears of record
here, ever been sought with reference to the Navy's training exercises at
Vieques Island, and none has been conferred. In the absence of executive
action, national security considerations, heretofore sometimes relied on by us in
matters related to the much-litigated terrain of Vieques Island, see e.g., United
States v. Zenon, 711 F.2d 476, at 478-479 (1st Cir.1983), can play no role in
our assessment of this appeal
It is not for us to gauge the wisdom of Congress' judgment on these issues; that
is, after all, the prerogative of the electorate. Munn v. Illinois, 94 U.S. 113, 134,
24 L.Ed. 77 (1876). See, e.g., Harris v. McRae, 448 U.S. 297, 326, 100 S.Ct.
2671, 2693, 65 L.Ed.2d 784 (1980); Maher v. Roe, 432 U.S. 464, 479, 97 S.Ct.
2376, 2385, 53 L.Ed.2d 484 (1977); Williamson v. Lee Optical Co., 348 U.S.
483, 488, 75 S.Ct. 461, 464, 99 L.Ed. 563 (1955)
10
Appellants raise implicitly (and the amici raise explicitly) the issue of
abstention. The amici argue that, even if jurisdiction inheres in the district court
in this instance, the federal judiciary should eschew such jurisdiction in order to
allow the Puerto Rican courts the opportunity to rule on a thorny issue of state
law. Cf. Louisiana Power & Light Co. v. City of Thibodaux, 360 U.S. 25, 2829, 79 S.Ct. 1070, 1072-1073, 3 L.Ed.2d 1058 (1959). The amici also contend
that the hand of the district court should be stayed so as not to disrupt the
Commonwealth's endeavors to establish a coherent policy anent water pollution
control. Cf. Alabama Pub. Serv. Comm. v. Southern R. Co., 341 U.S. 341, 34950, 71 S.Ct. 762, 768-69, 95 L.Ed. 1002 (1951)
To be sure, the issue presented in this case is of vital significance to the
Commonwealth. But, the state policies at issue do not serve a sufficiently
important countervailing interest to justify abstention by the federal courts. See
Colorado River Water Conservation Dist. v. United States, 424 U.S. at 813-16,
96 S.Ct. at 1244-45. At bottom, this case does not involve far-reaching and
presently unresolved principles of Puerto Rican law; rather, it calls for a routine
determination as to whether or not an administrative body's finding is supported
by substantial evidence. The novel and compelling issue presented is one of
federal law and federal jurisdiction. This juxtaposition is a far cry from the
conundrum limned in Thibodaux, supra, regarding the extent of a city's power
to condemn the property of a utility; nor does the case at bar implicate matters
of strictly local concern. Unlike the availability of intrastate rail service at issue
in Alabama Pub. Serv. Comm., supra, the goals and methods for controlling
water pollution are, in large part, dictated by the federal government. See, e.g.,
33 U.S.C. Secs. 1251, 1342, 1370.
It would be anomalous indeed to require the federal courts to abstain from any
role in the initial certification process, and yet remain duty-bound to rule on
enforcement actions citing the federal government's putative non-compliance
with Puerto Rican water pollution control standards. The policies and interests
of the Commonwealth are implicated equally at either stage; and, if abstention
is interdicted by congressional directive at the latter stage, we find no logic to
support a judge-made inhibition at the earlier stage.