Equitable balancing in the age of statutes

Virginia Law Review

Volumn 96, Issue 3, 2010, Pages 485-547

  Goldstein, Jared A ^a,b  

^a ROGER WILLIAMS UNIVERSITY   (United States)

^b BROWN UNIVERSITY   (United States)

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EID: 77953264171     PISSN: 00426601     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (420)

1. Winter v. Natural Res. Def. Council, Inc., 129 S. Ct. 365, 382 (2008).
2. Id. at 366-367
3. Brief for the Petitioners at 14-15,
4. Winter v. Natural Res. Def. Council, Inc., 129 S. Ct. 365 (2008) (No. 07-1239).
5. Brief for the Respondents at 30-35,
6. Winter v. Natural Res. Def. Council, Inc., 129 S. Ct. 365 (2008) (No. 07-1239).
7. Id.; Brief for the Petitioners, supra note 3, at 21-34.
8. The balance of equities is one of four factors in the familiar test for obtaining an injunction, under which a plaintiff must demonstrate (1) that it has suffered an irreparable injury;
9. that remedies available at law, such as monetary damages, are inadequate to compensate for that injury;
10. that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted;
11. and (4) that the public interest would not be disserved by a permanent injunction. eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006).
12. See Amoco Prod. Co. v. Vill. of Gambell, 480 U.S. 531, 542 (1987)
13. (stating that the balance of equities requires that a court "must balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief"). Although the standards for preliminary and permanent injunctive relief differ slightly, both require equitable balancing.
14. See id. at 546 n.12. As a result, this Article addresses both preliminary and permanent injunctive relief equally and does not distinguish between the two.
15. Hecht Co. v. Bowles, 321 U.S. 321, 329 (1944);
16. see also Weinberger v. RomeroBarcelo, 456 U.S. 305, 311, 320 (1982)
17. (discussing the "traditional balancing of the parties' competing interests" and declaring that "a major departure from the long tradition of equity practice should not be lightly implied").
18. The plaintiffs included members of the Natural Resources Defense Council who enjoyed whale watching and nature documentarian Jean-Michel Cousteau, son of famed oceanographer Jacques Cousteau. Winter, 129 S. Ct. at 371.
19. Id. at 377-378
20. Id. at 378.
21. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 609-610 (1952) (Frankfurter, J., concurring).
22. See 10 U.S.C. § 5062(a) (2006) (directing that the Navy "shall be organized, trained, and equipped primarily for prompt and sustained combat incident to operations at sea"); 10 U.S.C. § 5062(d) (2006) (directing that "[t]he Navy shall develop aircraft, weapons, tactics, technique, organization, and equipment of naval combat and service elements").
23. National Environmental Policy Act of 1969, 42 U.S.C. § 4332(2)(C) (2006).
24. See Morton v. Mancari, 417 U.S. 535, 551 (1974)
25. ("[W]hen two statutes are capable of co-existence, it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective.");
26. see also Watt v. Alaska, 451 U.S. 259, 267 (1981) (asserting that the courts should read federal statutes "to give effect to each if we can do so while preserving their sense and purpose").
27. Mancari, 417 U.S. at 551.
28. See Frederick Schauer, Defining Originalism, 19 Harv. J.L. & Pub. Pol'y 343, 345-46 (1996)
29. ("[O]ne of the lessons of legal realism is a continuing skepticism about the tendency of legal actors, lawyers, judges, and legal scholars to disguise in the language of necessity what are in fact political, social, moral, economic, philosophical, or policy choices.");
30. see also Guido Calabresi, A Common Law for the Age of Statutes 172-81 (1982) (discussing when subterfuges are preferable to candor);
31. Roscoe Pound, Law in Books and Law in Action, 44 Am. L. Rev. 12, 12-15 (1910)
32. (discussing the use of fictions in the common law, such as changing the meaning of terms rather than conceding that the rules had changed).
33. See Weinberger v. Romero-Barcelo, 456 U.S. 305, 312, 320 (1982); infra notes 102-113 and accompanying text.
34. Romero-Barcelo, 456 U.S. at 320;
35. see also eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006).
36. Richard's Appeal, 57 Pa. 105, 113-14 (1868); see infra notes 42-48 and accompanying text.
37. See T. Alexander Aleinikoff, Constitutional Law in the Age of Balancing, 96 Yale L.J. 943, 943-945 (1987).
38. See Peter Charles Hoffer, The Law's Conscience: Equitable Constitutionalism in America 152 (1990)
39. (concluding that the first American case applying equitable balancing is Richard's Appeal);
40. Robert G. Bone, Normative Theory and Legal Doctrine in American Nuisance Law: 1850 to 1920, 59 S. Cal. L. Rev. 1101, 1159-60, 1178-79 & nn.191-93 (1986) (discussing the history of balancing in American nuisance law);
41. John Leubsdorf, The Standard for Preliminary Injunctions, 91 Harv. L. Rev. 525, 534 n.58 (1978)
42. (concluding that the balance of equities doctrine developed in British courts in the early nineteenth century for use in preliminary injunctions and was applied to permanent injunctions only at the end of the nineteenth century);
43. see also Noga Morag-Levine, Chasing the Wind: Regulating Air Pollution in the Common Law State 86-102 (2003)
44. (discussing the adoption of balancing by the Pennsylvania Supreme Court).
45. But see George P. Smith II, Nuisance Law: The Morphogenesis of an Historical Revisionist Theory of Contemporary Economic Jurisprudence, 74 Neb. L. Rev. 658, 664, 690 (1995)
46. (recognizing that Richard's Appeal is the first case employing equitable balancing but nonetheless maintaining that balancing "is to be found as an inherent part of the analytical process in all legal decisionmaking").
47. Edward Coke, Institutes of the Laws of England 24 (13th ed. 1788);
48. William Blackstone, Commentaries *201-06
49. (discussing ejectment, the injunctive remedy for trespass); id. at *220-22 (discussing injunction for nuisance);
50. Joseph Story, Commentaries on Equity Pleadings (Boston, Little and Brown 6th ed. 1857).
51. Henry Maddock, A Treatise on the Principles and Practice of the High Court of Chancery (New York, Clayton and Kingsland 1817);
52. Robert Henley Eden, A Treatise on the Law of Injunctions (London, J. Butterworth 1821);
53. James P. Holcombe, An Introduction to Equity Jurisprudence (Cincinnati, Derby, Bradley & Co. 1846).
54. See, e.g., 3 William Blackstone, Commentaries *220-21;
55. Maddock, supra note 24, at 287 ("The court, it is said, has a discretion in such cases, and so it has; but it is not an arbitrary and capricious, but a regulated and judicial discretion; a discretion governed by established rules of equity.");
56. Frederick Pollock & Frederic William Maitland, The History of English Law Before the Time of Edward I, at 168 (1895) ("[O]ur king's court is according to very ancient tradition a court that can do whatever equity may require.").
57. These defenses derived from a relatively well-established set of maxims, which guided the court's discretion in issuing equitable relief.
58. See Richard Francis, Maxims of Equity (London, J. Stephens 1726).
59. See Annotation, Doctrine of Comparative Injury in Suit to Enjoin Nuisance, 31 L.R.A. 881, 888 (1911)
60. ("[I]t is established by the weight of authority that where the existence of a nuisance is clearly shown, together with the fact that it is causing another material, substantial, and irreparable injury for which there is no adequate remedy at law, the injured person is primarily entitled, as a matter of right, to the issuance of an injunction enjoining or abating the nuisance, without reference to the comparative benefits conferred thereby, or the comparative injuries resulting therefrom; and in such cases the issuance of the injunction is not discretionary with the court."). As Professor Plater has explained, abatement orders and injunctions are overlapping but not identical orders, as abatement "is a functional term referring to the decision to restrict the defendant's activity," while injunctions are "remedial directives designed to implement the court's determinations on threshold questions, substantive liability, and future conduct.
61. " Zygmunt J.B. Plater, Statutory Violations and Equitable Discretion, 70 Cal. L. Rev. 524, 540 (1982).
62. William Aldred's Case, (1611) 77 Eng. Rep. 816 (K.B.).
63. Id. at 817.
64. Id. at 821.
65. See Morag-Levine, supra note 22, at 40-47 (discussing Aldred's Case);
66. Jeff L. Lewin, Boomer and the American Law of Nuisance: Past, Present, and Future, 54 Alb. L. Rev. 189, 195 n.30 (1990)
67. (discussing the sic utere rule as an absolute liability standard);
68. see also 3 William Blackstone, Commentaries *119
69. ("And the absolute rights of each individual were defined to be the right of personal security, the right of personal liberty, and the right of private property.").
70. Aldred's Case, 77 Eng. Rep. at 821.
71. William Blackstone, Commentaries *217.
72. Id.
73. Id. at *219-22.
74. Id. at *217-18 (emphasis added); see also Morag-Levine, supra note 22, at 45-46.
75. Reviewing the works of several legal historians, Professor Leslie Rosenthal concluded that the English courts "would almost invariably grant an injunction to restrain a continuing nuisance, and the courts became, and remain, reluctant to use anything other than injunctions in nuisance cases."
76. Leslie Rosenthal, Economic Efficiency, Nuisance, and Sewage: New Lessons from Attorney-General v. Council of the Borough of Birmingham, 1858-1895, 36
77. J. Legal Stud. 27, 35 (2007) (citation omitted); id. at 33 ("Regarding the place of a social utility or balance-of-convenience defense for nuisance, traditionally, following Aldred's Case (77 Eng. Rep. 816 [1619]), the established general rule for nuisance has been that the utility or benefit from the actions causing the nuisance was no defense.").
78. See, e.g., Walter v. Seife, (1851) 64 Eng. Rep. 849, 852 (Ch.)
79. ("[O]ught this inconvenience to be considered in fact as more than fanciful, more than one of mere delicacy or fastidiousness, as an inconvenience materially interfering with the ordinary comfort physically of human existence, not merely according to elegant or dainty modes and habits of living, but according to plain and sober and simple notions among the English people?");
80. S.S. Peloubet, A Collection of Legal Maxims in Law and Equity ¶ 411, at 50 (New York, Diossy 1880) (citing the maxim de minimis non curat lex).
81. See 2 John Norton Pomeroy, A Treatise on Equity Jurisprudence §419 (San Francisco, Bancroft-Whitney 5th ed. 1941).
82. See Oliver Wendell Holmes, The Path of the Law, in Collected Legal Papers 183 (1920).
83. For instance, in Crowder v. Tinkler, (1816) 34 Eng. Rep. 645 (Ch.),
84. Lord Chancellor Eldon signaled that courts should consider the economic and social consequences of issuing injunctions against large enterprises. Property owners had sought an injunction against the construction of a gunpowder mill, which they alleged would cause pollution that would damage their property. The court declared that, before issuing an injunction, courts should weigh the consequences: "[G]reat caution is required in granting an Injunction of this nature, where the effect will be to stop a large concern in a lucrative trade." Id. at 646. The court did not, however, purport to compare the benefits from the manufacturer of gunpowder against the costs to the plaintiffs of having the mill nearby.
85. Richard's Appeal, 57 Pa. 105 (1868); see Hoffer, supra note 22, at 152 (describing Richard's Appeal as the first case to employ a balance of equities analysis);
86. George P. Smith II & Griffin W. Fernandez, The Price of Beauty: An Economic Approach to Aesthetic Nuisance, 15 Harv. Envtl. L. Rev. 53, 60 (1991) (same);
87. David E. Cole, Note, Judicial Discretion and the "Sunk Costs" Strategy of Government Agencies, 30 B.C. Envtl. Aff. L. Rev. 689, 716 (2003) (same).
88. Richard's Appeal, 57 Pa. at 106.
89. Id. at 111-112
90. Id. at 113-114
91. Id. at 107, 114.
92. As scholars have noted, the two cases cited by the court for the notion that balancing was elemental did not actually involve balancing. See Hoffer, supra note 22, at 152-53;
93. Smith & Fernandez, supra note 42, at 57-60.
94. For instance, in 1889 the Alabama Supreme Court described balancing as the rule that applies whenever injunctions are sought against nuisances,
95. Clifton Iron Co. v. Dye, 6 So. 192, 193 (Ala. 1889)
96. and in 1897 a federal circuit court described equitable balancing as "the recognized rule of the cases, both English and American, state and federal."
97. R.R. & Tel. Cos. v. Bd. of Equalizers, 85 F. 302, 308 (C.C. Tenn. 1897).
98. Pa. Coal Co. v. Sanderson, 6 A. 453, 459 (Pa. 1886).
99. Id. at 453, 454.
100. Id. at 459, 465.
101. Madison v. Ducktown Sulphur, Copper & Iron Co., 83 S.W. 658, 664-65 (Tenn. 1904).
102. The case has become part of the environmental law canon and appears in several environmental casebooks,
103. including David M. Driesen & Robert W. Adler, Environmental Law: A Conceptual and Pragmatic Approach 42-45 (2007);
104. Robert W. Percival, et al., Environmental Regulation: Law, Science, and Policy 67-69 (6th ed. 2009);
105. Zygmunt J.B. Plater et al., Environmental Law and Policy: Nature, Law, and Society 164 (4th ed. 2004).
106. Ducktown Sulphur, 83 S.W. at 659.
107. Id. at 666-667
108. Id. at 666.
109. See Frank Dobbin, Forging Industrial Policy: The United States, Britain, and France in the Railway Age 2 (1994).
110. See Hoffer, supra note 22, at 157 (asserting that within decades after the creation of equitable balancing, the practice had become "an extensively researched and argued invitation to the chancellor to manage controversy over industrial pollution and waste disposal").
111. Versailles Borough v. McKeesport Coal & Coke Co., 83 Pittsburgh Legal J. 379 (Pitt. Co. Ct. 1935).
112. Id. at 394.
113. Waschak v. Moffat, 109 A.2d 310, 316 (Pa. 1954).
114. Id.; cf. Griffin v. Southern Ry. Co., 64 S.E. 16, 17 (N.C. 1909)
115. ("It is contrary to the policy of the law to use the extraordinary powers of the court to arrest the development of industrial enterprises, or the progress of works prosecuted apparently for the public good, as well as for private gain.").
116. See Hoffer, supra note 22, at 154-57;
117. W. Page Keeton, Notes on "Balancing the Equities," 18 Tex. L. Rev. 412, 412-413 (1940);
118. Comment, Injunction-NuisanceBalance of Convenience, 37 Yale L.J. 96, 100 nn. 15-16 (1927) (collecting cases).
119. See, e.g., Smith v. Staso Milling Co., 18 F.2d 736, 739 (2d Cir. 1927).
120. Indeed, the Restatement (Second) of Torts endorses this approach. See Restatement (Second) of Torts §826 (1977). Under this approach, courts balance the equities at both the liability and remedial stages.
121. Bone, supra note 22, at 1178;
122. Developments in the Law: Equity-1933, 47 Harv. L. Rev. 1174, 1197 n.192 (1934)
123. (stating that "there is some conflict of opinion as to the acceptance of this relative interests doctrine" and citing conflicting cases and treatises). Zechariah Chafee, Jr., writing in 1930, criticized a treatise on equitable remedies because it "cites no cases rejecting the doctrine."
124. Zechariah Chafee, Jr., Book Review, 43 Harv. L. Rev. 840, 842 (1930)
125. (reviewing Fred F. Lawrence, A Treatise on the Substantive Law of Equity Jurisprudence (1929)).
126. H.G. Wood, A Practical Treatise on the Law of Nuisances in their Various Forms; Including Remedies Therefor at Law and in Equity §801, at 1176-1177 (3d ed. 1893)
127. ("Courts do not stop to balance conveniences; if a substantial legal right is invaded by the unlawful exercise of a trade or use of property by another, the smallness of the damage on the one side, or its magnitude on the other, is not a fact ordinarily of any special weight, but if the right and its violation are clear, an injunction will issue regardless of consequences.") .
128. John Norton Pomeroy, Jr., Pomeroy's Equity Jurisprudence and Equitable Remedies §1944, at 4416 (2d ed. 1919).
129. Note, Nuisance-Absence of Negligence-Economic Unavoidability as Defense, 77 U. Pa. L. Rev. 550, 552 (1929).
130. Even in jurisdictions that adopted balancing, many courts did so only for preliminary injunctions but not for permanent injunctions, while other courts, notably the United States Supreme Court, rejected balancing in cases involving government parties.
131. See Georgia v. Tenn. Copper Co., 206 U.S. 230, 236-39 (1907),
132. discussed infra notes 82-84 and accompanying text;
133. George L. Clark, Equity: An Analysis and Discussion of Modern Equity Problems, with Notes on Illinois Cases § 212, at 275 (1920);
134. Thomas Atkins Street, Federal Equity Practice: A Treatise on the Pleadings Used and Practice Followed in Courts of the United States in the Exercise of Their Equity Jurisdiction §2437, at 1418 (1909)
135. ("The doctrine of the balance of convenience or injury, which often determines the granting or refusal of a preliminary injunction, has little or no application on final hearing.").
136. Street, supra note 68, at 1418;
137. Hulbert v. Cal. Portland Cement Co., 118 P. 928, 932 (Cal. 1911)
138. ("There can be no balancing of conveniences when such balancing involves the preservation of an established right.");
139. see also Bone, supra note 22, at 1178 (explaining that some nineteenth-century courts concluded that "an absolute right to injunctive relief followed automatically from the fact that defendant had invaded plaintiff's property right... since the value of plaintiff's property right could not be measured in monetary terms").
140. See 1 William Blackstone, Commentaries *134 ("The third absolute right, inherent in every Englishman, is that of property ...");
141. cf. Ronald Dworkin, Taking Rights Seriously 193-95 (1977) (discussing rights as "trumps").
142. But see Richard H. Pildes, Why Rights Are Not Trumps: Social Meanings, Expressive Harms, and Constitutionalism, 27 J. Legal Stud. 725, 727 (1998).
143. Woodruff v. N. Bloomfield Gravel Mining Co., 18 F. 753, 807 (C.C. Cal. 1884).
144. Whalen v. Union Bag & Paper Co., 101 N.E. 805, 806 (N.Y. 1913).
145. Id. at 806; cf. Woodruff, 18 F. at 807 ("If the smaller interest must yield to the larger, all small property rights, and all smaller and less important enterprises, industries, and pursuits would sooner or later be absorbed by the large, more powerful few.").
146. See, e.g., Boomer v. Atl. Cement Co., 257 N.E.2d 870, 872 (N.Y. 1970) (declaring that Whalen's rejection of the balance of injuries "authoritatively states the rule in New York"). But
147. see Daniel A. Farber, The Story of Boomer: Pollution and the Common Law, 32 Ecology L.Q. 113, 126 (2005) ("On a first reading of the opinion, Boomer appears to overrule the Whalen rule.").
148. Woodruff, 18 F. at 806 (quoting Attorney Gen. v. Council of Birmingham, 4 Kay & J. 539 (1858)).
149. See id. at 806 ("We are simply to determine whether the complainant's rights have been infringed, and, if so, afford him such relief as the law entitles him to receive, whatever the consequence or inconvenience to the wrong-doers or to the general public may be.");
150. Williams v. Haile Gold Mining Co., 66 S.E. 117, 118 (S.C 1909)
151. ("[T]he court could not have considered, in deciding whether to grant or refuse the injunction, the question raised by the defendant as to the balance of convenience, or of advantage or disadvantage to the plaintiff and defendant and the public at large, for the defendant's use of the stream. That question would be pertinent only in an application addressed to the Legislature ...").
152. See Comment, Injunction-Nuisance-Balance of Convenience, 37 Yale L.J. 96, 100 (1927) (acknowledging the legislative nature of balancing but asserting that courts are "active, potent, and not undesirable lawmakers]");
153. cf. Benjamin N. Cardozo, The Nature of the Judicial Process, 113-114 (Yale University Press) (1921) (discussing the legislative aspect of judicial balancing of interests).
154. Restatement of Torts §941 (1939). The Restatement rejected as overly simplistic, however, what it termed the "balance of convenience" approach, under which courts simply considered the benefits and costs of granting or denying an injunction. Id. at cmt. a. ("The law does not grant an injunction merely because of the advantage which the plaintiff might reap from it, and it does not refuse an injunction merely because of the convenience which that refusal might afford the defendant."). Instead, the Restatement suggested that the balance of equities should also seek to weigh the parties' relative responsibility for the harm and the parties' good faith, among other factors. Id. at cmt. b.
155. Burford v. Sun Oil Co., 319 U.S. 315, 345 (1943) (Frankfurter, J., dissenting).
156. Hecht Co. v. Bowles, 321 U.S. 321, 329 (1944).
157. See Weinberger v. Romero-Barcelo, 456 U.S. 305, 312 (1982)
158. (holding that equitable balancing should be applied in determining whether to enjoin violations of the Clean Water Act);
159. Yakus v. United States, 321 U.S. 414, 440 (1944)
160. (stating that "in suits in which only private interests are involved" courts exercise their equitable discretion by "balancing] the conveniences of the parties and possible injuries to them according as they may be affected by the granting or withholding of the injunction").
161. Georgia v. Tenn. Copper Co., 206 U.S. 230, 236 (1907).
162. Between the two cases, the Ducktown smelter had changed its smelting method from open air roasting to using smokestacks, which had the effect of protecting the local areas from sulfur dioxide but sending the smoke across the state hne to Georgia, where it destroyed forests and polluted streams.
163. See Thomas W. Merrill, Golden Rules for Transboundary Pollution, 46 Duke L.J. 931, 943 (1997).
164. Tenn. Copper, 206 U.S. at 237-238 ("The case has been argued largely as if it were one between two private parties; but it is not. The very elements that would be relied upon in a suit between fellow-citizens as a ground for equitable relief are wanting here. The State owns very little of the territory alleged to be affected, and the damage to it capable of estimate in money, possibly, at least, is small.").
165. Id. at 239 ("Whether Georgia by insisting upon this claim is doing more harm than good to her own citizens is for her to determine.").
166. United States v. City of S.F., 310 U.S. 16, 30 (1940).
167. Id.
168. Id. at 30-31. Black famously rejected balancing approaches in constitutional cases.
169. See, e.g., Baldwin v. New York, 399 U.S. 66, 75 (1970)
170. (Black, J., concurring) ("Those who wrote and adopted our Constitution and Bill of Rights engaged in all the balancing necessary.").
171. City of S.F., 310 U.S. at 30.
172. Id. at 31 ("The equitable doctrines relied on do not militate against the capacity of a court of equity as a proper forum in which to make a declared policy of Congress effective. Injunction to prohibit continued use-in violation of that policy-of property granted by the United States, and to enforce the grantee's covenants, is both appropriate and necessary.").
173. Hecht Co. v. Bowles, 321 U.S. 321, 330 (1944).
174. Id.
175. See Yakus v. United States, 321 U.S. 414, 440 (1944) (describing equitable balancing as the norm in private litigation).
176. Bowles, 321 U.S. at 331.
177. -437 U.S. 153(1978).
178. Hill, 437 U.S. at 156-161 (1978).
179. Endangered Species Act of 1973, 16 U.S.C. §1540(g)(1)(A) (2006).
180. As Justice Stevens later described it, "Griffin Bell, then Attorney General, brought a snail darter in a glass jar into the courtroom to dramatize the de minimis character of the public interest at stake."
181. John Paul Stevens, Learning on the Job, 74 Fordham L. Rev. 1561, 1564 (2006).
182. Hill, 437 U.S. at 213 (Rehnquist, J., dissenting).
183. Id. at 184 (majority opinion).
184. Id. at 187-188
185. Id. at 194 (quoting Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803)).
186. Id. at 195 ("[I]n our constitutional system the commitment to the separation of powers is too fundamental for us to pre-empt congressional action by judicially decreeing what accords with 'common sense and the public weal.'"). As the Court later more bluntly explained, "Congress, it appeared to us, had chosen the snail darter over the dam." Weinberger v. Romero-Barcelo, 456 U.S. 305, 314 (1982).
187. Romero-Barcelo, 456 U.S. at 312, 320.
188. Amoco Prod. Co. v. Vill. of Gambell, 480 U.S. 531, 542 (1987).
189. Winter, 129 S. Ct. at 376.
190. Romero-Barcelo, 456 U.S. at 307.
191. Id. at 311-312
192. Id. at 313 (quoting Hecht Co. v. Bowles, 321 U.S. 321, 329 (1944)).
193. Romero-Barcelo, 456 U.S. at 313.
194. As the Court has declared, "where a common-law principle is well established ... the courts may take it as given that Congress has legislated with an expectation that the principle will apply except 'when a statutory purpose to the contrary is evident.'"
195. Astoria Fed. Sav. & Loan Ass'n v. Solimino, 501 U.S. 104, 108 (1991)
196. (quoting Israndtsen Co. v. Johnson, 343 U.S. 779, 783 (1952));
197. see also United States v. Texas, 507 U.S. 529, 534 (1993).
198. Romero-Barcelo, 456 U.S. at 320.
199. Id. at 314 ("The purpose and language of the statute limited the remedies available to the District Court; only an injunction could vindicate the objectives of the Act.").
200. Id. at 314-16. The distinction Romero-Barcelo draws between the supposedly absolute prohibition established by the Endangered Species Act and the discretion embodied in the Clean Water Act finds little support in the terms of the statutes. Both statutes establish blanket prohibitions on certain broad categories of actions in order to protect environmental values-the Endangered Species Act prohibits federal agencies from taking acts that jeopardize endangered species, 16 U.S.C. §1536 (2006), while the Clean Water Act prohibits discharges of water pollution, 33 U.S.C. § 1311(a) (2006). Both statutes likewise establish permit programs under which administrative agencies can authorize acts that would otherwise violate the prohibition. See 16 U.S.C. § 1539(a) (2006);
201. U.S.C. § 1342(a) (2006). Although both statutes envision the exercise of discretion in determining whether to grant permits, both statutes grant that discretion to executive agencies, not courts.
202. See Michael D. Axline, Constitutional Implications of Injunctive Relief Against Federal Agencies in Environmental Cases, 12 Harv. Envtl. L. Rev. 1, 26-27 (1988).
203. What may instead distinguish the two cases is that the statutory violation at issue in
204. TVA v. Hill was substantive, while the violation at issue in Romero-Barcelo was procedural.
205. Yet the Court has not offered a justification for holding that equitable balancing should not apply to substantive violations but should apply to procedural violations.
206. -480 U.S. 531, 542 (1987).
207. Alaska National Interest Lands Conservation Act, 16 U.S.C. § 3120(a) (2006).
208. Amoco, 480 U.S. at 544-545
209. Id.
210. Id.
211. Id. at 544 ("[T]he Ninth Circuit erroneously focused on the statutory procedure rather than on the underlying substantive policy the process was designed to effect- preservation of subsistence resources.").
212. Id. at 545 ("Environmental injury, by its nature, can seldom be adequately remedied by money damages and is often permanent or at least of long duration, i.e., irreparable. If such injury is sufficiently likely, therefore, the balance of harms will usually favor the issuance of an injunction to protect the environment.").
213. Winter, 129 S. Ct. at 376.
214. Id. at 371.
215. Id. at 377-378
216. Id. at 376.
217. Id.
218. Weinberger v. Romero-Barcelo, 456 U.S. 305, 315 (1982).
219. See id. at 312 (holding equitable balancing applicable in federal statutory actions);
220. Brown v. Bd. of Educ., 349 U.S. 294, 300 (1955)
221. (holding equitable balancing applicable in constitutional litigation);
222. Yakus v. United States, 321 U.S. 414, 440 (1944) (describing equitable balancing as the norm in private litigation).
223. See Winter, 129 S. Ct. at 381-382 (holding that its conclusion that no preliminary injunction should have been issued would apply equally to a motion for a permanent injunction).
224. See United States v. Oakland Cannabis Buyers' Coop., 532 U.S. 483, 498 (2001) ("To the extent the district court considers the public interest and the conveniences of the parties, the court is limited to evaluating how such interest and conveniences are affected by the selection of an injunction over other enforcement mechanisms.").
225. It is somewhat unclear, however, whether equitable balancing applies when the government seeks an injunction for a private party's statutory violation.
226. Compare Oakland Cannabis Buyers' Coop., 532 U.S. at 495-99
227. (stating the equitable balancing should apply when the United States seeks an injunction under the Controlled Substances Act), and Hecht Co. v. Bowles, 321 U.S. 321, 329-30 (1944) (holding that "traditional equitable principles" should determine whether the government was entitled to injunctions under the federal price control statute), with
228. California v. Am. Stores Co., 495 U.S. 271, 295 (1990)
229. ("In a Government case the proof of the violation of law may itself establish sufficient public injury to warrant relief."). The lower courts apparently have concluded that equitable balancing is not ordinarily required in government-initiated cases.
230. See, e.g., United States v. Marine Shale Processors, 81 F.3d 1329, 1359 (5th Cir. 1996)
231. (declaring that equitable balancing is precluded "when the United States or a sovereign state sues in its capacity as protector of the public interest");
232. U.S. EPA v. Envtl. Waste Control, Inc., 917 F.2d 327, 332 (7th Cir. 1990)
233. ("[T]he law of injunctions differs with respect to governmental plaintiffs (or private attorneys general) as opposed to private individuals. Where the plaintiff is a sovereign and where the activity may endanger the public health, 'injunctive relief is proper, without resort to balancing.'")
234. (quoting Envtl. Def. Fund, Inc. v. Lamphier, 714 F.2d 331, 337-338 (4th Cir. 1983)).
235. Thus, even though equitable balancing has been justified by a fictitious history, it is conceivable that Congress has come to expect courts to engage in it when applying statutes authorizing injunctive relief. The preliminary injunction at issue in Winter was issued pursuant to the Administrative Procedure Act ("APA"), which empowers courts to enjoin agencies from taking actions contrary to law but does not specify any standards for courts to do so. See 5 U.S.C. § 706(2) (2006). Because the APA was enacted in 1946, after equitable balancing had become accepted as a factor for issuing injunctions in common law actions, see supra notes 81-82 and accompanying text, it may be plausible to construe the APA to call for equitable balancing.
236. See Dames & Moore v. Regan, 453 U.S. 654, 686 (1981)
237. ("Past practice does not, by itself, create power, but 'long-continued practice, known to and acquiesced in by Congress, would raise a presumption that the [action] had been [taken] in pursuance of its consent....'")
238. (quoting United States v. Midwest Oil Co., 236 U.S. 459, 474 (1915));
239. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 610-11 (1952)
240. (Frankfurter, J., concurring) (declaring that a long history of congressional acquiescence "may be treated as a gloss on 'executive Power' vested in the President by § 1 of Art. II");
241. Michael J. Glennon, The Use of Custom in Resolving Separation of Powers Disputes, 64 B.U. L. Rev. 109, 128-34 (1984);
242. Cass R. Sunstein, Minimalism at War, 2004 Sup. Ct. Rev. 47, 68 ("In the domain of separation of powers, historical practices and changes over time are highly relevant.").
243. The formalist approach is typified by Justice Black's opinion for the Court in Youngstown, 343 U.S. at 582-89;
244. Chief Justice Burger's opinion for the Court in INS v. Chadha, 462 U.S. 919, 923-59 (1983);
245. Justice Stevens' opinion for the Court in Clinton v. City of New York, 524 U.S. 417, 420-49 (1998).
246. The functionalist approach is typified by the concurring opinions of Justices Frankfurter and Jackson in Youngstown, 343 U.S. at 593-628, 634-55;
247. the dissenting opinion of Justice White in Chadha, 462 U.S. at 967-1003;
248. and Justice Breyer's dissenting opinion in Clinton, 524 U.S. at 469-97.
249. See generally Peter L. Strauss, Formal and Functional Approaches to Separation-of-Powers Questions-A Foolish Inconsistency?, 72 Cornell L. Rev. 488, 489 (1987) (describing the Court's vacillation between formalist and functionalist approaches to separation-of-powers issues).
250. See TVA v. Hill, 437 U.S. 153, 194 (1978)
251. (declaring that it is "emphatically ... the exclusive province of the Congress not only to formulate legislative policies and mandate programs and projects, but also to establish their relative priority for the Nation");
252. Morton v. Mancari, 417 U.S. 535, 551 (1974) ("[C]ourts are not at liberty to pick and choose among congressional enactments....").
253. See, e.g., Mistretta v. United States, 488 U.S. 361, 382 (1989) ("[C]oncern of encroachment and aggrandizement... has animated our separation-of-powers jurisprudence ....");
254. Buckley v. Valeo, 424 U.S. 1, 122 (1976) (declaring that the checks and balances inherent in our separation-of-powers scheme serve as a "safeguard against the encroachment or aggrandizement of one branch at the expense of the other").
255. See, e.g., Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837, 865 (1984)
256. ("Courts must, in some cases, reconcile competing political interests, but not on the basis of the judges' personal policy preferences.");
257. TVA v. Hill, 437 U.S. at 194
258. (declaring that it is "emphatically ... the exclusive province of the Congress not only to formulate legislative policies and mandate programs and projects, but also to establish their relative priority for the Nation.");
259. Local 1976, United Bhd. of Carpenters v. NLRB, 357 U.S. 93, 100 (1958) (discussing "the truism that it is the business of Congress to declare policy and not this Court's").
260. William H. Rehnquist, The Notion of a Living Constitution, 54 Tex. L. Rev. 693, 698 (1976).
261. See TVA v. Hill, 437 U.S. at 211-213
262. Confirmation Hearing on the Nomination of John G. Roberts, Jr. To Be Chief Justice of the United States: Hearing Before the S. Comm. on the Judiciary, 109th Cong. 55 (2005).
263. See Dep't of Revenue of Ky. v. Davis, 128 S. Ct. 1801, 1821 (2008)
264. (Scalia, J., concurring) (describing judicial balancing in dormant commerce clause cases as requiring "quintessentially legislative judgments");
265. United Haulers Ass'n v. OneidaHerkimer Solid Waste Mgmt. Auth., 550 U.S. 330, 349 (2007)
266. (Thomas, J., concurring) (rejecting a balancing test on the ground that it "turns solely on policy considerations");
267. Confirmation Hearing on the Nomination of Samuel A. Alito, Jr. to Be an Associate Justice of the Supreme Court of the United States: Hearing Before the S. Comm. on the Judiciary, 109th Cong. 360 (2006) ("We are not policymakers and we shouldn't be implementing any sort of policy agenda or policy preferences....").
268. Compare NLRB, 357 U.S. at 100 (discussing "the truism that it is the business of Congress to declare policy and not this Court's"), with
269. Anne Bloom, The "Post Attitudinal Moment": Judicial Policymaking Through the Lens of New Institutionalism, 35 Law & Soc'y Rev. 219, 219 (2001)
270. ("In the last several decades, the view that American judges are policymakers has become all but axiomatic among political scientists.").
271. See, e.g., Malcolm M. Feeley & Edward L. Rubin, Judicial Policy Making and the Modern State: How the Courts Reformed America's Prisons 5 (1998) (defining policymaking as the "exercise [of] power" by officials "on the basis of their judgment that their actions will produce socially desirable results").
272. See Guido Calabresi, A Common Law for the Age of Statutes 2 (1982);
273. Richard A. Posner, Overcoming Law 229-236 (1995);
274. William N. Eskridge, Jr. & Philip P. Frickey, Statutory Interpretation as Practical Reasoning, 42 Stan. L. Rev. 321, 345 (1990).
275. See Thomas W. Merrill, The Common Law Powers of Federal Courts, 52 U. Chi. L. Rev. 1, 3-4 (1985);
276. Jay Tidmarsh & Brian J. Murray, A Theory of Federal Common Law, 100 Nw. U. L. Rev. 585, 586-87 (2006).
277. But see Martin H. Redish, Federal Common Law, Political Legitimacy, and the Interpretive Process: An "Institutionalist" Perspective, 83 Nw. U. L. Rev. 761, 766-67 (1989)
278. (arguing that federal common law violates separation-of-powers principles
279. James B. Beam Distilling Co. v. Georgia, 501 U.S. 529, 549 (1991) (Scalia, J., concurring) (emphasis omitted); see also Posner, supra note 143, at 235 ("Everyone professionally involved with law knows that, as Holmes put it, judges legislate 'interstitially,' which is to say they make law, only more cautiously, more slowly, and in more principled, less partisan, fashion than legislators.").
280. The Federalist No. 78, at 430 (Alexander Hamilton) (E.H. Scott ed., 1898).
281. Antonin Scalia, The Rule of Law as a Law of Rules, 56 U. Chi. L. Rev. 1175 (1989).
282. In this way, the principle against judicial policymaking is akin to the nondelegation doctrine, under which executive agencies can legitimately exercise legislative power if they are guided by "intelligible principle[s]."
283. See Whitman v. Am. Trucking Ass'ns, 531 U.S. 457, 472 (2001)
284. (citing J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 409 (1928)).
285. See generally Margaret H. Lemos, The Other Delegate: Judicially Administered Statutes and the Nondelegation Doctrine, 81 S. Cal. L. Rev. 405, 473-76 (2008).
286. Winter, 129 S. Ct. at 376 (2008)
287. (quoting Amoco Prod. Co. v. Vill. of Gambell, 480 U.S. 531, 542 (1987)).
288. Winter, 129 S. Ct. at 377-378
289. Id. at 378.
290. See, e.g., Restatement (Second) of Torts §941 (1979).
291. -42 U.S.C. § 4321 (2006) (declaring the congressional purpose "to promote efforts which will prevent or eliminate damage to the environment and biosphere").
292. See 5 U.S.C § 702 (2006) (providing a cause of action to any "person suffering legal wrong because of agency action"); 42 U.S.C. § 4332 (2006) (requiring that federal agencies comply with NEPA).
293. See 10 U.S.C. § 5062(d) (2006) (directing that "[t]he Navy shall develop aircraft, weapons, tactics, technique, organization, and equipment of naval combat and service elements").
294. To be sure, the Court in these cases discusses how the "public interest" would be affected by an injunction, but consideration of the public interest is understood to be a trump factor independent of the balance of equities. The standard formulation of the test for injunctive relief requires courts to consider the "public interest" in addition to considering the balance of equities. See, e.g., 13 James Wm. Moore et al., Moore's Federal Practice ¶ 65.22[3] (Matthew Bender 3d ed. 2009). Yet the conventional formulation of the public interest factor allows the public interest to be used to restrain the issuance of an injunction, not to justify it. As the Supreme Court recently explained, "[a]ccording to well-established principles of equity, a plaintiff seeking a permanent injunction must [demonstrate]... that
295. the public interest would not be disserved by a permanent injunction." eBay Inc. v. MercExchange, L.L.C, 547 U.S. 388, 391 (2006)
296. (emphasis added). The public interest has never been understood as a factor that can justify an injunction when the balance of equities does not. In any event, the Court's identification of the relevant public interests is easily manipulated. In Amoco, the Court considered the public interest in oil development but not in protecting resources for native Alaskan subsistence. See Amoco Prod. Co. v. Vill. of Gambell, 480 U.S. 531, 545-46 (1987). In Winter, the Court considered the public's interest in national security, but not the public's interest in protecting whales or in having the government make decisions informed by environmental analysis.
297. See 129 S. Ct. at 378.
298. See Public Works Appropriation Act, 1967, Pub. L. No. 89-689, 80 Stat. 1002, 1014 (1966) (appropriating money to construct Tellico Dam); 16 U.S.C. § 1536(a)(2) (2006).
299. TVA v. Hill, 437 U.S. 153, 187-188 (1978) ("Quite obviously, it would be difficult for a court to balance the loss of a sum certain-even $100 million-against a congressionally declared 'incalculable' value, even assuming we had the power to engage in such a weighing process, which we emphatically do not.").
300. Morton v. Mancari, 417 U.S. 535, 551 (1974).
301. See infra notes 224-227 and accompanying text.
302. See, e.g., Katie R. Eyer, Administrative Adjudication and the Rule of Law, 60 Admin. L. Rev. 647, 662 (2008) ("[I]t would be difficult to characterize a legal system as even properly possessing legal rules... in the context of limitless government discretion.").
303. Equitable balancing is akin to the balancing tests adopted in constitutional cases, about which Professor Aleinikoff concluded that "[n]o system of identification, evaluation, and comparison of interests has been developed." Aleinikoff, supra note 21, at 982.
304. See 27A Am. Jur. 2d Equity § 78 (2008).
305. Hecht Co. v. Bowles, 321 U.S. 329, 329-330 (1944).
306. Leubsdorf, supra note 22, at 526.
307. Id.
308. Id. ("Sometimes the injunction must not disserve the public interest, sometimes it must serve the public interest, and sometimes only the equities of the parties count."); David S. Schoenbrod, The Measure of an Injunction: A Principle to Replace Balancing the Equities and Tailoring the Remedy, 72 Minn. L. Rev. 627, 637 n.42 (1988).
309. See 27A Am. Jur. 2d Equity §78 (2008).
310. See supra notes 52-55 and accompanying text.
311. Winter, 129 S. Ct. at 382.
312. See Lands Council v. McNair, 537 F.3d 981, 1004-05 (9th Cir. 2008);
313. State ex rel. Guste v. Lee, 635 F. Supp. 1107, 1127 (E.D. La. 1986) ("In essence, the court is faced with the public's interest in the environment on the one hand, and the public's interest in preventing the demise of a 50-year old industry on the other.").
314. Winter, 129 S. Ct. at 378.
315. Madison v. Ducktown Sulphur, Copper & Iron Co., 83 S.W. 658, 666-667 (1904).
316. Professor Cass Sunstein has said that an interest is incommensurable if we cannot price it without "doing violence to our considered judgments about how these goods are best characterized." Cass R. Sunstein, Free Markets and Social Justice 80 (1997).
317. For general discussions of the problems of incommensurability, see Brett G. Scharffs, Adjudication and the Problems of Incommensurability, 42 Wm. & Mary L. Rev. 1367 (2001);
318. Frederick Schauer, Instrumental Commensurability, 146 U. Pa. L. Rev. 1215 (1998);
319. Cass R. Sunstein, Incommensurability and Valuation in Law, 92 Mich. L. Rev. 779 (1994);
320. Jeremy Waldron, Fake Incommensurability: A Response to Professor Schauer, 45 Hastings L.J. 813 (1994).
321. See supra notes 31-37 and accompanying text; see also Bone, supra note 22, at 1135-1226 (tracing the demise of the theory of absolute property rights).
322. -437 U.S. 153, 187-188 (1978).
323. Amoco thus expresses no qualms about judicial balancing of the value of natural resources used by native Alaskans for subsistence against the economic value of oil exploration, Amoco Prod. Co. v. Vill. of Gambell, 480 U.S. 531, 545 (1987),
324. and Winter does not hesitate to compare the value of antisubmarine training against the value of whales alleged to be harmed by that training, Winter, 129 S. Ct. at 377-378 (2008).
325. Aleinikoff, supra note 21, at 972 ("A frequent criticism of balancing is that the Court has no objective criteria for valuing or comparing the interests at stake.").
326. Dep't of Revenue v. Davis, 128 S. Ct. 1801, 1821 (2008) (Scalia, J., concurring in part);
327. see also Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 987 (1992) (Scalia, J., concurring in the judgment in part and dissenting in part) (arguing that the "undue burden" test "conceal[s] raw judicial policy choices concerning what is 'appropriate' abortion legislation");
328. Bendix Autolite Corp. v. Midwesco Enters., Inc., 486 U.S. 888, 897 (1988) (Scalia, J., concurring) ("Weighing the governmental interests of a State against the needs of interstate commerce is... a task squarely within the responsibility of Congress... and 'ill suited to the judicial function.'"); Aleinikoff, supra note 21, at 973 ("The balancer's scale cannot simply represent the personal preferences of the balancer, lest constitutional law become the arbitrary act of will today characterized as 'lochnering.'").
329. For instance, in District of Columbia v. Heller, 128 S. Ct. 2783, 2821 (2008), the Supreme Court rejected an interest-balancing approach to determine the scope of the Second Amendment, concluding that the balance of competing interests had already been conducted by the Framers of the Constitution on behalf of the people. The Court declared that the Amendment "is the very product of an interest-balancing by the people-which Justice Breyer would now conduct for them anew."
330. See also Baldwin v. New York, 399 U.S. 66, 75 (1970) (Black, J., concurring) ("Those who wrote and adopted our Constitution and Bill of Rights engaged in all the balancing necessary.").
331. See generally Laurent B. Frantz, The First Amendment in the Balance, 71 Yale L.J. 1424, 1443-44 (1962) (discussing dispute between First Amendment balancers and literalists);
332. Alexander Meiklejohn, The First Amendment Is an Absolute, 1961 Sup. Ct. Rev. 245, 246-52 (1961).
333. See, e.g., NASA v. Fed. Labor Relations Auth., 527 U.S. 229, 245 (1999) ("We must presume, however, that Congress took account of the policy concerns on both sides of the balance when it decided to enact the IGA ....").
334. See Schoenbrod, supra note 167, at 635 ("It is not at all clear how balancing the equities differs, if at all, from second-guessing the decisions of legislators or others who laid down the law of liability.").
335. As many scholars have noted, the statutory environmental regime reflects Congress's recognition of the unique nature of environmental harms. See, e.g., Richard J. Lazarus, Restoring What's Environmental About Environmental Law in the Supreme Court, 47 U.C.L.A. L. Rev. 703, 744 (2000) ("What makes environmental law distinctive is largely traceable to the nature of the injury that environmental protection law seeks to reduce, minimize, or sometimes prevent altogether.");
336. Albert C. Lin, The Unifying Role of Harm in Environmental Law, 2006 Wis. L. Rev. 897, 907-08 (2006).
337. See, e.g., Wood, supra note 66, § 789, at 1157 (noting that equity will not issue an injunction unless the complainant demonstrates "actual injury to the property, or to its comfortable enjoyment").
338. See Lazarus, supra note 183, at 745-746, 748.
339. Id. at 747 (explaining that due to the uncertainties associated with preventing environmental injury "[t]he inevitable upshot is that environmental laws that seek to prevent harm are directed to risk rather than to actual impact"). For instance, the Clean Air Act directs EPA to set ambient air quality standards at a level which, "allowing an adequate margin of safety, are requisite to protect the public health." 42 U.S.C. §7409(b)(1) (2006);
340. see also Toxic Substances Control Act of 1976, 15 U.S.C. § 2605(a) (2006) (allowing EPA to prohibit chemicals that pose an "unreasonable risk of injury to health or the environment");
341. Clean Water Act § 307(a)(4), 33 U.S.C. § 1317(a)(4) (2006) (requiring that effluent standards for toxic pollutants promulgated under Clean Water Act shall provide "an ample margin of safety");
342. Safe Drinking Water Act § 1412, 42 U.S.C. §300g-1(b)(3)(D)(4) (2006) (requiring that maximum drinking water contaminants "shall be set at a level at which no known or anticipated adverse effects on the health of persons occur and which allows an adequate margin of safety").
343. See Robert V. Percival, Responding to Environmental Risk: A Pluralistic Perspective, 14 Pace Envtl. L. Rev. 513, 515 (1997) ("The pervasiveness of uncertainty concerning the ultimate effects of environmental pollutants and toxins is the primary reason why the contemporary regulatory state displaced the common law as the first line of defense for public health. The common law's requirement of individualized proof of causal injury is very difficult to satisfy in cases where environmental pollutants cause widely dispersed, latent harm.").
344. See Shi-Ling Hsu, The Identifiability Bias in Environmental Law, 35 Fla. St. U. L. Rev. 433, 466 (2008) ("For most environmental or ecological harms, which tend to be widespread and diffuse, it is difficult to identify a specific plaintiff or group of persons whom have suffered 'concrete and particularized' harm.");
345. James Krier, Environmental Watchdogs: Some Lessons from a "Study" Council, 23 Stan. L. Rev. 623, 664 (1971) (noting the breadth and diffusion of environmental risks); Lin, supra note 183, at 908 ("[C]ommon law tort provides neither sufficient redress for widespread harms nor adequate mechanisms for anticipatory intervention. To address these shortcomings, the legal system turned to public law-legal structures based on statutes and administrative regulations."); Percival, supra note 187, at 515 ("The rise of the modern regulatory state is largely a product of the difficulties faced by the common law in responding to risks of widely dispersed, latent harm, such as the harms caused by environmental pollutants and toxins.").
346. -42 U.S.C. § 7409(b)(1) (2006); see also Whitman v. Am. Trucking Ass'ns, 531 U.S. 457, 494-96 (2001) (Breyer, J., concurring) (discussing the scope of EPA's authority to determine air quality standards based on considerations of risk).
347. The citizen suit provision of the Clean Water Act, for instance, provides a cause of action to anyone "having an interest which is or may be adversely affected" by an alleged statutory violation. 33 U.S.C. § 1365(a)(1)-(2), (g) (2006). The citizen suit provisions of the Endangered Species Act, 16 U.S.C. § 1540(g)(1) (2006), and Clean Air Act, 42 U.S.C. § 7604 (2006), employ similarly broad language.
348. Sierra Club v. Morton, 405 U.S. 727, 734 (1972) ("[T]he fact that particular environmental interests are shared by the many rather than the few does not make them less deserving of legal protection through the judicial process.").
349. Winter, 129 S. Ct. at 375, 378 (2008) (agreeing with the Navy that "even if MFA sonar does cause a limited number of injuries to individual marine mammals,... plaintiffs have failed to offer evidence of species-level harm that would adversely affect their scientific, recreational, and ecological interests");
350. see also Friends of the Earth, Inc. v. Laidlaw Envtl. Serv., Inc., 528 U.S. 167, 181 (2000) ("The relevant showing for purposes of Article III standing, however, is not injury to the environment but injury to the plaintiff."). See generally Lin, supra note 183, at 936 ("The Supreme Court's standing cases, however, have insisted on finding harm to humans, and not just harm to the environment.").
351. When the Court stated that "we do not question the seriousness" of the interests on the plaintiffs' side, one can almost hear the Justices trying to suppress their laughter at the weakness of those interests. Winter, 129 S. Ct. at 378.
352. See, e.g., NEPA, 42 U.S.C. § 4331(b) (2006) (directing that federal agencies "use all practicable means" to "assure for all Americans safe, healthful, productive, and esthetically and culturally pleasing surroundings" and to "preserve important historic, cultural, and natural aspects of our national heritage, and maintain, wherever possible, an environment which supports diversity and variety of individual choice"); Marine Mammal Protection Act, 16 U.S.C. § 1361 (2006) (declaring that "marine mammals have proven themselves to be resources of great international significance, esthetic and recreational as well as economic, and it is the sense of the Congress that they should be protected and encouraged to develop to the greatest extent feasible commensurate with sound policies of resource management and that the primary objective of their management should be to maintain the health and stability of the marine ecosystem.").
353. The court in Ducktown Sulphur thus asked how it could justify shutting down a factory that generated millions of dollars and employed hundreds of people in order to address the interests of a few dirt farmers. Madison v. Ducktown Sulphur, Copper & Iron Co., 83 S.W. 658, 666-667 (Tenn. 1904). In fact, the widespread environmental destruction caused by the smelting operation was felt in both Tennessee and Georgia and continues to plague the area today.
354. Giehyeon Lee et al., Removal of Trace Metals by Coprecipitation with Fe, Al, and Mn from Natural Waters Contaminated with Acid Mine Drainage in the Ducktown Mining District, Tennessee, 17 Applied Geochemistry 569 (2002).
355. It might be argued that the traditional test for injunctive relief could consider widely disbursed harms through the consideration of the "public interest." Indeed, the standard formulation of the test for injunctive relief requires courts to consider the "public interest" in addition to considering the balance of equities. See, e.g., 13 Moore et al., supra note 156, ¶ 65.22[3] (identifying the factors courts should consider in issuing a preliminary injunction to include whether the injunction will disserve the public interest). Yet, as discussed supra in note 156, the conventional formulation of the public interest factor allows the public interest to be used to restrain the issuance of an injunction, not to justify it. As the Supreme Court recently explained: "According to well-established principles of equity, a plaintiff seeking a permanent injunction must [demonstrate] ... that the public interest would not be disserved by a permanent injunction." eBay Inc. v. MercExchange, L.L.C, 547 U.S. 388, 391 (2006) (emphasis added). The public interest has never been understood as a factor that can justify an injunction when the balance of equities does not.
356. See supra notes 102-130 and accompanying text.
357. See supra note 186 and accompanying text.
358. See Lazarus, supra note 183, at 747.
359. United States v. Oakland Cannabis Buyers' Coop., 532 U.S. 493, 497 (2001) ("Courts of equity cannot, in their discretion, reject the balance that Congress has struck in a statute."); see also id. at 497-98 (stating that a district court's choice in the face of a proven statutory violation "is simply whether a particular means of enforcing the statute should be chosen over another permissible means; their choice is not whether enforcement is preferable to no enforcement at all");
360. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 609-10 (1952) (Frankfurter, J., concurring) ("When Congress itself has struck the balance, has defined the weight to be given the competing interests, a court of equity is not justified in ignoring that pronouncement under the guise of exercising equitable discretion.");
361. United States v. City of S.F., 310 U.S. 16, 31 (1940) ("The equitable doctrines relied on do not militate against the capacity of a court of equity as a proper forum in which to make a declared policy of Congress effective.").
362. According to Professor Plater, Romero-Barcelo is the first case when a court employed equitable balancing to override a statutory prohibition. Plater, supra note 27, at 594.
363. See Daniel A. Farber, Equitable Discretion, Legal Duties, and Environmental Injunctions, 45 U. Pitt. L. Rev. 513, 524-25 (1984). Although he recognized that Romero-Barcelo "is unclear on the critical issue of the extent of equitable discretion," Professor Farber construes the case in this narrow fashion as authorizing judicial discretion only to allow temporary noncompliance. Id. Professor Plater, by contrast, construes the case more broadly as authorizing statutory violations. See Plater, supra note 27, at 594.
364. Brown v. Bd. of Educ. (Brown II), 349 U.S. 294, 301 (1955).
365. Winter, 129 S. Ct. at 381.
366. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349 (1989) ("Simply by focusing the agency's attention on the environmental consequences of a proposed project, NEPA ensures that important effects will not be overlooked or underestimated only to be discovered after resources have been committed or the die otherwise cast.").
367. See Brown II, 349 U.S. at 300.
368. Id. at 300-301 (declaring that "it should go without saying that the vitality of these constitutional principles cannot be allowed to yield simply because of disagreement with them"). Accordingly, in determining how to alleviate segregation, courts could legitimately consider various administrative obstacles to desegregation but could not consider, for instance, public opposition to integration or the supposed educational benefits of segregation. Id.
369. For instance, Section 11(g)(1) of the Endangered Species Act, 16 U.S.C. § 1540(g)(1) (2006), the provision at issue in TVA v. Hill, authorizes any person to bring suit "to enjoin any person, including the United States and any other governmental instrumentality or agency (to the extent permitted by the eleventh amendment to the Constitution), who is alleged to be in violation of any provision of this chapter or regulation issued under the authority thereof" and provides the district courts with jurisdiction "to enforce any such provision or regulation, or to order the Secretary to perform such act or duty, as the case may be."
370. The citizen suit provision of the Clean Water Act, 33 U.S.C. § 1365(a) (2006), at issue in Romero-Barcelo, employs similar language in granting the district courts jurisdiction "to enforce"
371. the provision of the Act and permits issued under the Act. Section 706 of the Administrative Procedure Act, 5 U.S.C. § 706 (2006), provides the courts with authority to enforce the National Environmental Policy Act, at issue in Winter, providing in seemingly mandatory language that "[a] reviewing court shall-(1) compel agency action unlawfully withheld ... and (2)... set aside agency action ... found to be ... without observance of procedure required by law."
372. As the Court has declared, "where a common-law principle is well established ... the courts may take it as given that Congress has legislated with an expectation that the principle will apply except 'when a statutory purpose to the contrary is evident.'" Astoria Fed. Sav. & Loan Ass'n v. Solimino, 501 U.S. 104, 108 (1991)
373. (quoting Israndsten Co. v. Johnson, 343 U.S. 779, 783 (1982)).
374. See Cass R. Sunstein, Interpreting Statutes in the Regulatory State, 103 Harv. L. Rev. 405, 458-459 (1989) (discussing doctrines adopted by the Supreme Court under which, "when statutes have ambiguities or leave gaps, discretionary judgments should be made by the relatively more accountable agency rather than by courts").
375. -467 U.S. 837, 865 (1984).
376. See John F. Manning, Constitutional Structure and Judicial Deference to Agency Interpretations of Agency Rules, 96 Colum. L. Rev. 612, 634 (1996) (stating that Chevron expresses "a constitutional commitment to [federal] policymaking by more, rather than less, representative institutions");
377. see also 1 Laurence H. Tribe, AmericanConstitutional Law 994 (3d ed. 2000) (stating that, though the Chevron doctrine "is not a rule of constitutional law per se,... it is nonetheless premised on important separation-of-powers principles");
378. id. at 625 ("Chevron embraces the assumption that if a silent or ambiguous statute leaves an interpreter room to choose among reasonable alternative understandings, the interpretive choice entails the exercise of substantial policymaking discretion.");
379. id. at 626 (stating that Chevron "emphasized that our constitutional system favors relatively more accountable agencies, and not relatively less accountable courts, as repositories of policymaking discretion").
380. City of Milwaukee v. Illinois (Milwaukee II), 451 U.S. 304, 317 (1981).
381. Textile Workers Union v. Lincoln Mills, 353 U.S. 448, 457 (1957).
382. United States v. Kimbell Foods, Inc., 440 U.S. 715, 738 (1979) ("[I]n fashioning federal principles to govern areas left open by Congress, our function is to effectuate congressional policy.");
383. Wallis v. Pan Am. Petroleum Corp., 384 U.S. 63, 69 (1966) ("If there is a federal statute dealing with the general subject, it is a prime repository of federal policy and a starting point for federal common law.").
384. But see Martin H. Redish, supra note 144, at 766-67 (1989) (arguing that federal common law violates separation-of-powers principles because it is essentially a legislative task).
385. See, e.g., Stephen Breyer, On the Uses of Legislative History in Interpreting Statutes, 65 S. Cal. L. Rev. 845, 848 (1992) ("Using legislative history to help interpret unclear statutory language seems natural.").
386. See, e.g., Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law 31-37 (1997).
387. Additional principles of statutory construction that the Court has developed for addressing textual ambiguities include the presumption against construing federal statutes to preempt state law. Bates v. Dow Agrosciences LLC, 544 U.S. 431, 449 (2005). For the presumption against the creation of federal common law,
388. see Texas Industries v. Radcliff Materials, 451 U.S. 630, 641 (1981). And for the clear statement of the rule against construing federal statutes to abrogate state Eleventh Amendment immunity,
389. see Atascadero State Hospital v. Scanlon, 473 U.S. 234, 238-40 (1985). Unlike equitable balancing, these principles of statutory construction create relatively bright-line rules that take policy questions out of courts' hands.
390. -42 U.S.C. § 4332(C) (2006).
391. See U.S. Const, art. II, §2, cl. 1; 10 U.S.C. § 5062(a) (2006) (directing that the Navy "shall be organized, trained, and equipped primarily for prompt and sustained combat incident to operations at sea"); 10 U.S.C. § 5062(d) (2006) (directing that "[t]he Navy shall develop aircraft, weapons, tactics, technique, organization, and equipment of naval combat and service elements").
392. In Romero-Barcelo, the Navy engaged in training exercises pursuant to one set of legal commands, but these commands allegedly conflicted with the Clean Water Act's prohibition on discharging water pollution without a permit. 456 U.S. 305, 308-09 (1982).
393. In Amoco, the Secretary of the Interior granted oil and gas leases in the Bering Sea to oil companies under the Outer Continental Shelf Lands Act, but this allegedly had an adverse effect on hunting and fishing by aboriginals under the Alaska National Interest Lands Conservation Act. 480 U.S. 531, 534-36 (1987).
394. Indeed, to the extent that Congress had considered the question, Congress apparently had been under the impression that the snail darters could be relocated, allowing the dam to be built without eliminating the fish. See TVA v. Hill, 437 U.S. 153, 170-171 (1978) (reviewing the legislative history).
395. Id.
396. Bernadette Bollas Genetin, Expressly Repudiating Implied Repeals Analysis: A New Framework for Resolving Conflicts Between Congressional Statutes and Federal Rules, 51 Emory L.J. 677, 681 (2002).
397. Morton v. Mancari, 417 U.S. 535, 551 (1974);
398. see also Watt v. Alaska, 451 U.S. 259, 267 (1981) (asserting that the courts should read federal statutes "to give effect to each if we can do so while preserving their sense and purpose").
399. As the Court has stated:It is a basic principle of statutory construction that a statute dealing with a narrow, precise, and specific subject is not submerged by a later enacted statute covering a more generalized spectrum unless the later statute expressly contradicts the original act or unless such a construction is absolutely necessary in order that the words of the later statute shall have any meaning at all. Traynor v. Turnage, 485 U.S. 535, 547-548 (1988) (internal quotations and citations omitted). These principles date back at least to the time of the Constitution. See The Federalist No. 78 (Alexander Hamilton) (stating that where statutes conflict, a court should attempt to read the two statutes "so far as they can, by any fair construction, be reconciled to each other").
400. See, e.g., Radzanower v. Touche Ross & Co., 426 U.S. 148, 155 (1976) ("Repeal is to be regarded as implied only if necessary to make the [later enacted law] work, and even then only to the minimum extent necessary. This is the guiding principle to reconciliation of the two statutory schemes.") (
401. quoting Silver v. N.Y. Stock Exch., 373 U.S. 341, 357 (1963)).
402. Morton, 417 U.S. at 551.
403. See Brief for the Respondents, supra note 4, at 30-35; Brief for the Petitioners, supra note 3, at 21-34.
404. A search of the Department of Defense website, http://www.defense.gov, reveals several hundred publicly available environmental impact statements, detailing the anticipated environmental impacts of vital national security programs, including the national missile defense program.
405. See Smith v. Robinson, 468 U.S. 992, 1024 (1984) (Brennan, J., dissenting) ("[Conflicting statutes should be interpreted so as to give effect to each ....").
406. -42 U.S.C § 4332 (2006).
407. Brief for the Petitioners, supra note 3, at 22-26 (discussing the scope and validity of 40 C.F.R. §1506.11, which authorizes the President to declare an "emergency" and exempt federal actions from NEPA's requirements).
408. Flint Ridge Dev. Co. v. Scenic Rivers Ass'n of Okla., 426 U.S. 776, 787-788 (1976).
409. See, e.g., No GWEN Alliance v. Aldridge, 855 F.2d 1380, 1384 (9th Cir. 1988) ("There is no 'national defense' exception to NEPA.... 'The Navy, just like any federal agency, must carry out its NEPA mandate 'to the fullest extent possible'... even though the project has serious national security implications.'") (
410. quoting Concerned About Trident v. Rumsfeld, 555 F.2d 817, 823 (D.C. Cir. 1977));
411. Basel Action Network v. Mari. Admin., 370 F. Supp. 2d 57, 71 (D.D.C. 2005) (holding that NEPA does not require an environmental impact statement for federal actions taken overseas); see also Dep't of Defense, Dir. 6050.7, Environmental Effects Abroad of Major Department of Defense Actions 14 (Mar. 31, 1979) (certified current as of Mar. 5, 2004) (providing that overseas combat activities are not covered by the environmental impact statement requirement).
412. See, e.g., 16 U.S.C. § 1533(a)(3)(B)(i) (2006) (exempting Department of Defense property from the Endangered Species Act's critical habitat provision); 33 U.S.C. § 1323(a)(C) (2006) (authorizing the President to exempt certain kinds of water pollution from the Clean Water Act's requirement upon a finding that an exemption is "paramount to the interest of the United States"); 42 U.S.C. § 7418(b) (2006) (authorizing the President to exempt federal sources and facilities from compliance with the Clean Air Act if it is "in the paramount interest of the United States"). See generally Stephen Dycus, National Defense and the Environment 16 (Univ. Press of New England 1996);
413. Hope Babcock, National Security and Environmental Laws: A Clear and Present Danger?, 25 Va. Envtl. L.J. 105, 110-20 (2007);
414. Stephen Dycus, Osama's Submarine: National Security and Environmental Protection After 9/11, 30 Wm. & Mary Envtl. L. & Pol'y Rev. 1, 11 (2005).
415. See, e.g., Fiscal Year 2001 National Defense Authorization Act, Pub. L. No. 106-398, § 317, 114 Stat. 1654, 1654A-57 (2000) (exempting Department of Defense from preparing environmental impact statement for low-level flight training); 42 U.S.C. § 10141(c) (2006) (exempting EPA from NEPA review of criteria for handling spentnuclear fuel and high-level radioactive waste); 43 U.S.C. § 1652(d) (2006) (exempting construction of Trans-Alaska Pipeline from further NEPA compliance).
416. Hyde v. Shine, 199 U.S. 62, 78 (1905);
417. see also Bowles v. Russell, 551 U.S. 205, 214 (2007) ("[T]his Court has no authority to create equitable exceptions to jurisdictional requirements...."); 50 Am. Jur. Statutes §432 (1944) ("Where the legislature has made no exception to the positive terms of a statute, the presumption is that it intended to make none, and it is a general rule of construction that the courts have no authority to create, and will not create, exceptions to the provisions of a statute not made by the act itself.").
418. See Lisa Lightbody, Case Comment, Winter v. Natural Resource Defense Council, Inc., 33 Harv. Envtl. L. Rev. 593, 606 (2009) (arguing that Winter "may have created a de facto national security exception to NEPA and similar statutes"). 240 This is just what happened after TVA v. Hill, as Congress amended the Endangered Species Act to create a committee authorized to exempt federal projects from the Act. See 16 U.S.C. §1536(g) (2006). When the committee opted not to exempt the Tellico Dam project, Congress acted again, enacting an appropriation rider that specifically exempted the project from the Endangered Species Act. 125 Cong. Rec. 23, 863-72 (1979);
419. Energy and Water Dev. Appropriation Act of 1980, Pub. L. No. 96-69, 93 Stat. 437, 449-50 (1979)
420. A similar history of congressional response to a federal injunction occurred with regard to another environmental statute in the course of litigation over the impact of the Navy's use of sonar on whales. After a lower court enjoined Naval training exercises for violating the Marine Mammal Protection Act ("MMPA"), Natural Res. Def. Council v. Evans (Evans H), 279 F. Supp. 2d 1129, 1188-91 (N.D. Cal. 2003), Congress amended the MMPA to specify precisely the sort of impacts on marine mammals that the Navy could and could not take during training exercise, National Defense Authorization Act for Fiscal Year 2004, Pub. L. No. 108-136, § 319(a), 117 Stat. 1392, 1433 (2003) (amending the Marine Mammal Protection Act, 16 U.S.C. § 1962(18) (2006)).