stating that the "'the great volume of enforcement actions [are to] be brought by the State,' and that citizen suits are proper only 'if the Federal, State, and local agencies fail to exercise their enforcement responsibility.'" (quoting S. Rep. No. 92–414, p. 64 (1971), reprinted in 2 A Legislative History of the Water Pollution Control Act Amendments of 1972, p. 1482 (1973))
How later courts described this case
- stating that the "'the great volume of enforcement actions [are to] be brought by the State,' and that citizen suits are proper only 'if the Federal, State, and local agencies fail to exercise their enforcement responsibility.'" (quoting S. Rep. No. 92–414, p. 64 (1971), reprinted in 2 A Legislative History of the Water Pollution Control Act Amendments of 1972, p. 1482 (1973))
- holding that the CWA citizen suit provision, which cross-references the civil penalty provision in the section authorizing CWA enforcement actions by the EPA Administrator, see 33 U.S.C. § 1365(a), “supports ... our conclusion that citizens ... may seek civil penalties ... in a suit brought to enjoin or otherwise abate an ongoing violation”
- holding that, in seeking to have a case dismissed as moot, “the defendant must demonstrate that it is ‘absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.’ ” (quoting United States v. Concentrated Phosphate Export Ass’n, 393 U.S. 199, 203, 89 S.Ct. 361, 21 L.Ed.2d 344 (1968))
- holding that the citizen suit provision of the FWPCA was not intended to permit citizen suits for wholly past violations of the act and that a contrary interpretation of the “scope of the citizen suit would change the nature of the citizens’ role from interstitial to potentially intrusive”
Written by the judges who cited it.
Later courts went against this
Reported superseded by statute, as recognized in Glazer v. American Ecology Environmental Services Corp. — not on the Supreme Court's list
See also Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., 484 U.S. 49, 108 S.Ct. 376, 382, 98 L.Ed.2d 306 (1987) (“the harm sought to be addressed by the citizen suit lies in the present or the future, not in the past”), superseded by statute on other grounds as stated in Glazer v. American Ecology Environmental Services Corp., 894 F.Supp. 1029 (E.D.Tex. 1995).
District Court, E.D. TexasJun 13, 19952 citing opinionsby statuteother groundsunconfirmed confidenceRead it
Distinguished
Distinguished by Stillwater of Crown Point Homeowner's Ass'n v. Kovich, 820 F. Supp. 2d 859 (2011)
However, Gwaltney is distinguishable because the defendant in that case discharged wastewater in violation of CWA § 402, not fill material in violation of CWA § 404.
Distinguished by Delaware Valley Toxics Coalition v. Kurz-Hastings, Inc., 813 F. Supp. 1132 (1993)
484 U.S. 49, 58-59, 108 S.Ct. 376, 381-82, 98 L.Ed.2d 306 (1987), cited by the defendants, is distinguishable.
The opinion
Justice Scalia,
with whom Justice Stevens and Justice O’Connor join, concurring in part and concurring in the judgment.
I join Parts I and II of the Court’s opinion. I cannot join Part III because I believe it misreads the statute to create a peculiar new form of subject-matter jurisdiction.
h-H
The Court concludes that subject-matter jurisdiction exists under § 505 if there is a good-faith allegation that the defendant is “in violation.” Thereafter, according to the Court’s in *68 terpretation, the plaintiff can never be called on to prove that jurisdictional allegation. Ante, at 65. This creates a regime that is not only extraordinary, but to my knowledge unique. I can think of no other context in which, in order to carry a lawsuit to judgment, allegations are necessary but proof of those allegations (if they are contested) is not. The Court thinks it necessary to find that Congress produced this jurisprudential anomaly because any other conclusion, in its view, would read the word “alleged” out of § 505. It seems to me that, quite to the contrary, it is the Court’s interpretation that ignores the words of the statute.
Section 505(a) states that “any citizen may commence a civil action on his own behalf. . . against any person . . . who is alleged to be in violation ...” (emphasis added). There is of course nothing unusual in the proposition that only an allegation is required to commence a lawsuit. Proof is never required, and could not practicably be required, at that stage. From this clear and unexceptionable language of the statute, one of two further inferences can be made: (1) The inference the Court chooses, that the requirement for commencing a suit is the same as the requirement for maintaining it, or (2) the inference that, in order to maintain a suit the allegations that are required to commence it must, if contested, be proved. It seems to me that to favor the first inference over the second is to prefer the eccentric to the routine. It is well ingrained in the law that subject-matter jurisdiction can be called into question either by challenging the sufficiency of the allegation or by challenging the accuracy of the jurisdictional facts alleged. See, e. g., Land v. Dollar, 330 U. S. 731, 735, n. 4 (1947); Thomson v. Gaskill, 315 U. S. 442, 446 (1942); KVOS, Inc. v. Associated Press, 299 U. S. 269, 278 (1936); McNutt v. General Motors Acceptance Corp., 298 U. S. 178, 189 (1936). Had Congress intended us to eliminate the second form of challenge, and to create an extraordinary regime in which the jurisdictional fact consists of a good-faith belief, it seems to me it would have delivered those *69 instructions in more clear fashion than merely specifying how a lawsuit can be commenced.
In my view, therefore, the issue to be resolved by the Court of Appeals on remand of this suit is not whether the allegation of a continuing violation on the day suit was brought was made in good faith after reasonable inquiry, but whether petitioner was in fact “in violation” on the date suit was brought. The phrase in § 505(a), “to be in violation,” unlike the phrase “to be violating” or “to have committed a violation,” suggests a state rather than an act — the opposite of a state of compliance. A good or lucky day is not a state of compliance. Nor is the dubious state in which a past effluent problem is not recurring at the moment but the cause of that problem has not been completely and clearly eradicated. When a company has violated an effluent standard or limitation, it remains, for purposes of § 505(a), “in violation” of that standard or limitation so long as it has not put in place remedial measures that clearly eliminate the cause of the violation. It does not suffice to defeat subject-matter jurisdiction that the success of the attempted remedies becomes clear months or even weeks after the suit is filed. Subject-matter jurisdiction “depends on the state of things at the time of the action brought”; if it existed when the suit was brought, “subsequent events” cannot “ous[t]” the court of jurisdiction. Mollan v. Torrance, 9 Wheat. 537, 539 (1824); see, e. g., Smith v. Sperling, 354 U. S. 91, 93, n. 1 (1957); St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U. S. 283, 289-290 (1938). It is this requirement of clarity of cure for a past violation, contained in the phrase “to be in violation,” rather than a novel theory of subject-matter jurisdiction by good-faith allegation, that meets the Court’s concern for “‘the practical difficulties of detecting and proving chronic episodic violations,’ ” ante, at 65, quoting Brief for United States as Amicus Curiae 18.
Thus, I think the question on remand should be whether petitioner had taken remedial steps that had clearly achieved *70 the effect of curing all past violations by the time suit was brought. I cannot claim that the Court’s standard and mine would differ greatly in their practical application. They would, for example, almost certainly produce identical results in this lawsuit. See 611 F. Supp. 1542, 1549, n. 8 (ED Va. 1985) (District Court, in stating that allegation of continuing violation was in good faith, relied entirely on post-complaint uncertainty as to whether cause of TKN violation was cured). This practical insignificance, however, makes all the more puzzling the Court’s willingness to impute to Congress creation of an unprecedented scheme where that which must be alleged need not be proved.
1 — 1 H-f
Even if the Court were correct that no evidence of a state of noncompliance has to be produced to survive a motion for dismissal on grounds of subject-matter jurisdiction, such evidence would still be required in order to establish the plaintiff’s standing. While Gwaltney did not seek certiorari (or even appeal to the Court of Appeals) on the denial of its motion to dismiss for lack of standing, it did raise the standing issue before us here, see Reply Brief for Petitioner 17-18, and we in any event have an independent obligation to inquire into standing where it is doubtful, see Bender v. Williamsport Area School Dist., 475 U. S. 534, 541 (1986). If it is undisputed that the defendant was in a state of compliance when this suit was filed, the plaintiffs would have been suffering no remediable injury in fact that could support suit. The constitutional requirement for such injury is reflected in the statute itself, which defines “citizen” as one who has “an interest which is or may be adversely affected.” 33 U. S. C. § 1365 (g). See Middlesex County Sewerage Authority v. National Sea Clammers Assn., 453 U. S. 1, 16 (1981).
Accordingly, even on the Court’s theory of this case it seems to me that the remand should require the lower court to consider not just good-faith allegation of a state of violation *71 but its actual existence. To be sure, nothing in the Court’s opinion precludes such consideration of standing, but under sound practice the remand should require it. See, e. g., Havens Realty Corp. v. Coleman, 455 U. S. 363, 378 (1982); Combs v. United States, 408 U. S. 224, 227-228 (1972) (per curiam). Of course that disposition would call attention to the fact that we have interpreted the statute to confer subject-matter jurisdiction over a class of cases in which, by the terms of the statute itself, there cannot possibly be standing to sue.