IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 96-30697

IN RE: MARINE SHALE PROCESSORS, INC.

On Application for a Writ of Mandamus

to the United States District Court for

the Western District of Louisiana

July 24, 1996

Before REYNALDO G. GARZA, KING, and HIGGINBOTHAM, Circuit Judges.

PER CURIAM:

The petition for a writ of mandamus is DENIED.

I

This case comes to us under the following procedural posture.

Our opinions have become final. U nited States v. Marine Shale

Processors, Inc.

, 81 F.3d 1329 (5th Cir. 1996); United States v.

Marine Shale Processors, Inc.

, 81 F.3d 1361 (5th Cir. 1996); Marine

S hale Processors, Inc. v. United States Environmental Protection

Agency

, 81 F.3d 1371 (5th Cir. 1996). The first of these three

cases, the enforcement action, in part concerned M arine Shale’s

appeal from the district court’s order issuin g certain permanent

injunctions prohibiting violations of The Resource Conservation and

Recovery Act, 42 U.S.C. §§ 6901-92k, The Clean Air Act, 42 U.S.C.

§§ 7401-7671q, and The Clean Water Act, 33 U.S.C. §§ 1251-1376.

The district court had issued three injunction s, but had stayed

them pending appeal and further order of the court on the condition1 Although the United States hints to the contrary in its

brief to this court, our opinion did continue the stay of the

injunctions in this case, and thus the stay did not expire when we

issued the mandate.

2 that Marine S hale refrain from making certain distributions of

corporate income. In our decision, we left the injunctions in

place, but continued the stay 1 upon the same conditio n imposed by

the district court. We requested the district court to issue a

supplemental opinion explaining its decision to issue the permanent

injunctions. Our decision in this case was designed to give the

district court a maximum level of flexibility. After following the

principles set forth in that opinion, the court could dissolve or

continue the injunctions with or without the accompanying stay and

condition, subject to appellate review in this court.

In the third of the opinions cited above, Marine Shale asked

this court to overturn EPA’s decision to deny an application for a

Boiler and Industrial Furnace permit. We affirmed. As a result of

that decision, Marine Shale currently has no RCRA permit allowing

it to operate as a facility using thermal processes to treat

hazardous waste. It also lacks interim status as either an

industrial furnace or an incinerator. Marine Shale informs us that

it will petition the United States Supr eme Court for a writ of

certiorari in t he latter of the three cases. In the meantime,

Circuit Justi ce Scalia has denied Marine Shale’s application to

recall and stay the mandate pending filing and disposition of the

certiorari petition.3

On June 17, 1996, Marine Shale filed a pleading before

district court Judge Duplantier styled “Motion of M arine Shale

Processors, Inc. To Extend and Clarify Stay of Injunctions Pending

Com pletion of the Administrative Process.” The motion recited

that, in response to tele phone inquiries to EPA from facilities

generating hazardous waste, the Agency had responded that, in its

view, any facility sending hazardous waste to MSP after April 18,

1996 would violate RCRA. The face of the pleading itself requested

two forms of relief, “an extension of the stay of injunctions

pending completion of the permitting process,” and an order

directing EPA “not to initiate any enforcement action against any

generator for shipping material to MSP after April 18, 1996 in an

otherwise lawful manner during the existence of the stay.” The

brief accom panying the pleading, however, implied that MSP was

seeking a much broader form of relief. MSP in fact asked the

district court to “Exercise its Equitable Discretion to Allow MSP

to Continue Operating Pending Resolution of MSP’s Applications For

Permits to Prevent Irreparable Harm to MSP.” MSP Mot. at 6. The

brief is ambiguous as to whether the reference to “permits”

includes an a pparently forthcoming application by MSP for an

incinerator permit, which at this time has not yet been filed

befor e LDEQ or EPA, but apparently MSP did seek to include the

incinerator permit proceeding within the umbrella of issues before

Judge Duplantier. S ee MSP Mot. at 6 (“In requesting this extension

of the stay, MSP is seeking from this Court no more than a4

preservation of the status quo pending agency action on its

permits.”).

Judge Duplantier heard arguments from the parties in chambers,

then issued a ruling on the motion or ally and on the record. At

the outset, Judge Duplant ier clarified that “[w]hat, in effect,

Marine Shale is asking this court to do is to permit it to continue

to operate pending what everybody agrees would be a very lengthy

process (estimates vary from as low as a year or two to as long as

five or ten years), to continue to operate during that process

while it pursues an application with the State of Louisiana for a

permit to operate as an incinerator of hazardous waste.” Thus,

with good reason, Judge Duplantier understood Marine Shale’s

request as including an order prohibiting EPA from doing anything

to prevent MSP from operating until a final decision on MSP’s

incinerator permit application. This order would, in MSP’s view,

accompany an order staying the relevant injunctions, and apparently

extending their coverage to what MSP called “its vested ‘D’ and ‘U’

interim statu s.” Judge Duplantier then continued with the

following remarks:

Therefore, despite some language in the cou rt of

appeals decision which some interpret to the contrary, my

view of this court’s role in this matter is simply as

follows. There is a final judgment that has already been

issued with respect to the injunction process. That

injunction has been stayed pending appeal. The appellate

court has said that I should articulate more reasons

about why I do it. The reason I do it is simply as

follows. It isn’t a question of irreparable injury. It

isn’t a question of jobs. It isn’t a question of

economy. It isn’t a question of whether [MSP] can

operate in safety and with due regard to health

considerations and environmental considerations.5 The only issue is as follows. In order to operate

that facility and handl e hazardous waste, Marine Shale

needs a permit, either from the state government or the

federal government. It does not have that permit. In

order to operate pending the permit process, it needs

authority not from me -- I have no such authority -- it

needs authority either from this state or from the

federal government, the EPA, or both. I have no

authority with respect to that.

. . . Again, to sum up, all that is before me today is the

motion of Marine Shale for me, in effect, to give it

authority to continue to operate and for me to tell EPA

that it cannot interfere with that operation. I have no

authority to do that. Whether I would like to do it or

not is not the issue. The issue is whether, under the

law, I have any authority to do that, and I have

concluded that I have no such authority.

Therefore, I deny the motion.

II

We believe that the district court’s ruling was correct. We

conclude that MSP has not shown the clear and indisputable right to

relief necessary to justify mandamus, and we deny MSP’s petition.

This case involves two separate issues. The first question is

the status of the coercive relief that the district court ordered

against Marine Shale

. The second is MSP’s request for coercive

relief against EPA . We consider each in turn.

A

When a court refuses to use its equitable power to order a

certain activity to cease, it does not automa tically render that

activity legal or immunize the activity from further legal process.

See Weinberger v. Romero-Barcelo

, 456 U.S. 305 (1982). As

Weinberger illustrates, a district court in certain circumstances

may refuse to issue an injunction even though a defendant is acting6

illegally. Nevertheless, the illegal character of the activity is

not immunized by the court’s refusal to issue an injunction.

Rather, the court has simply refused to employ one among several

powers to remedy a particular violation of law. S ee id. at 314

(“An injunction is not the only means of ensuring compliance” with

the Clean Water Act.). MSP sought an order from Judge Duplantier

broadening the scope of the injunction against the storage of Klisted waste to include the storage of other types of waste, along

with a ruling continuing the stay of all injunctions. However,

contrary to the assumptio n in MSP’s request, even if Judge

Duplantier issued the requested o rder, it would not render MSP’s

storage activity legal, if the activity was in fact illegal.

Accordingly, when Judge Duplantier initially stayed the

injunctions i n the enforcement action pending appeal, he did not

render legal MSP’s unpermitted storage of K-listed waste, discharge

of hot water into the Bayou Boeuf, or operation of minor emission

sources. Rather, the district court held back the equitable remedy

of an injunctio n at that time. We continued the stay pending

further word from the court below concerning the findings of fact

and legal reasoning supporting the issuance of the injunctions. As

we understand it, the district court did not intend its oral

statements from the bench in this hearing to constitute the

findings of fact and conclusions of law we requested in our

opinion. S ee 81 F.3d at 1360; Fed. R. Civ. P. 65(d). As far as

MSP’s pleading below concerned the injunctions Judge Duplantier had

already issued in the enforcement proceeding, MSP simply sought an7

order extending the scope of these injunctions and the accompanying

stay. The district court refused the request. The refusal left

matters as they stood before MSP’s motion, that is, MSP is

currently the subject of three injunctions, all three of which have

been stayed. The stay is still in force pending the explanation we

requested and a further order from Judge Duplantier either lifting

the stay or dissolving the injunctions.

B

MSP’s request for relief did not, however, extend merely to

the injunctions entered against it. Rather, MSP sought a wholly

new species of coercive order against the Environmental Protection

Agency relating to this court’s affirmance of the Agency’s BIF

permit denial. MSP asked Judge Duplantier to preclude EPA from (1)

taking any ac tion to shut MSP down while MSP completed a lengthy

incinerator permit application process, (2) exercising its

prosecutorial power again st MSP’s customers, and (3) informing

inquiring entities as to the agency’s litigating position. It was

to this portion of the request that the district court’s statements

r egarding power and jurisdiction were directed, and the district

court’s conclusions were manifestly correct. MSP has cited no

statute, constitutional provision, or source of la w providing a

court the right to gag the EPA in this case, or to prevent EPA from

exercising the power Congress gave it to respond to facilities

operating in violation of RCRA. No Article III court has as yet

decided any EPA request for coercive relief on the ground that MSP2 It is not apparent that the discretion described by the

Supreme Court in Weinberger is equally available in a case in which

a facility lacks a permit necessary to bring its primary and basic

activity into compliance with the law. Nor is it apparent that, if

such discretion exists, equity must look past the reality that a facility for over a decade did not file an ap plication for the

permit the law required it to have before opening. Those questions

must for their answer await another day.

8 is now a thermal treatment facility lacking both a permit and

interim status as either an industrial furnace or an incinerator. 2

We have before us now only a petition for a writ of mandamus

seeking to upset a denial of MSP’s request for an order prohibiting

EPA from exercising the powers Congress h as granted to it. We

agree with the district court that it had no power to grant MSP’s

extraordinary motion, and we therefore deny the petition.