U.S. v. Com. of Puerto Rico

Decision Date07 December 1983
Docket NumberNo. 83-1046,83-1046
Citation721 F.2d 832
Parties, 14 Envtl. L. Rep. 20,003 UNITED STATES of America, Plaintiff, Respondent, v. COMMONWEALTH OF PUERTO RICO and Environmental Quality Board, Defendants, Petitioners.
CourtU.S. Court of Appeals — First Circuit

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.

Raymond W. Mushal, Atty., Environmental Enforcement Section, Land and Natural Resources Div., Dept. of Justice, Washington D.C., with whom Carol E. Dinkins, Asst. Atty. Gen., Washington, D.C., Raymond L. Acosta, U.S. Atty., Gary H. Montilla, Asst. U.S. Atty., Hato Rey, P.R., Richard M. Cornelius, Office of General Counsel, Dept. of the Navy, Craig T. Vanderhoef, Office of Navy Judge Advocate General's Corps, and Thomas P. Tielens, Office of Navy Judge Advocate General's Corps, Washington, D.C., were on brief, for appellee.

Before COFFIN and BREYER, Circuit Judges, and SELYA, * District Judge.

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. 1251-1376) ("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.

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.

While Romero-Barcelo was pending, the Navy commenced efforts to comply administratively with the strictures of the CWA, and in the course thereof filed for a NPDES permit. After receipt of the application, the United States Environmental Protection Agency ("EPA") requested the EQB, pursuant to 33 U.S.C. Sec. 1341, to issue a water quality certificate (such a certificate being a condition precedent to the EPA's issuance of a NPDES permit). 33 U.S.C. Sec. 1341(a)(1). The EQB refused to act on this request since no environmental impact statement ("EIS") had been filed with respect to the off-shore bombing. A draft EIS was subsequently prepared and circulated by the Navy, and a final EIS was thereafter issued. EPA then renewed its bid for a water quality certificate. The EQB entertained this request, held the requisite public hearing, and eventually denied certification, citing divers grounds. 1 The Navy's petition for reconsideration was summarily denied by the EQB, and the instant action thereupon ensued.

II.

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.

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).

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:

Each department, agency, or instrumentality of the executive, legislative, and judicial branches of the Federal Government (1) having jurisdiction over any property or facility, or (2) engaged in any activity resulting, or which may result, in the discharge or runoff of pollutants, and each officer, agent, or employee thereof in the performance of his official duties, shall be subject to, and comply with, all Federal, State, interstate, and local requirements, administrative authority, and process and sanctions respecting the control and abatement of water pollution in the same manner, and to the same extent as any nongovernmental entity including the payment of reasonable service charges. The preceding sentence shall apply (A) to any requirement whether substantive or procedural (including any recordkeeping or reporting requirement, any requirement respecting permits and any other requirement, whatsoever), (B) to the exercise of any Federal, State, or local administrative authority, and (C) to any process and sanction, whether enforced in Federal, State, or local courts or in any other manner. This subsection shall apply notwithstanding any immunity of such agencies, officers, agents, or employees under any law or rule of law. Nothing in this section shall be construed to prevent any department, agency, or instrumentality of the Federal Government, or any officer, agent, or employee thereof in the performance of his official duties, from removing to the appropriate Federal district court any proceeding to which the department, agency, or instrumentality or officer, agent, or employee thereof is subject pursuant to this section, and any such proceeding may be removed in accordance with section 1441 et seq. of Title 28. 4 (Emphasis added).

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.

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