Amicus Curiae Brief — Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc.
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No. 86-473
In The
SUPREME COURT OF THE UNITED STATES
October Term, 1986
GWALTNEY OF SMITHFIELD, LTD.,
Petitioner ,
Ve
CHESAPEAKE BAY FOUNDATION, INC.,
and
NATURAL RESOURCES DEFENSE COUNCIL,
Respondents.
ON PETITION FOR WRIT OF CERTIORARI
TO THE
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
MOTION FOR LEAVE TO FILE AND
BRIEF OF AMICUS CURIAE,
CONNECTICUT BUSINESS AND INDUSTRY
ASSOCIATION,
IN SUPPORT OF
PETITION FOR WRIT OF CERTIORARI
Wayne S. Henderson*
Patrick W. Hanifin
New England Legal Foundation
55 Union Street
Boston, Massachusetts 02108
(617) 367-0174
Counsel for Amicus Curiae
*Counsel of Record
November 22, 1986
MOTION OF CONNECTICUT BUSINESS
AND INDUSTRY ASSOCIATION
FOR LEAVE TO FILE BRIEF AS
ants Guar IN SUPPORT OF
R CERTIORARI
Pursuant to Rule 36.1 of the Rules of
the Supreme Court, the Connecticut
Business and Industry Association ("CBIA")
moves the Court for leave to file its
brief amicus curiae (bound with this
motion) in support of the petition for
certiorari.
CBIA is an organization of firms which
operate in the State of Connecticut. CBIA
presents the opinions of its members on
environmental policy and other public
issues to government agencies and
legisiators. It has sponsored meetings
between member firms and government
agencies to encourage compliance with the
environmental laws by fostering
cooperation between business and
government.
However, under the rule adopted by the
court below and by the District Court for
the District of Connecticut in Connecticut
Fund for the Environment and Natural
Resources Defense Council v. The Job
Plating Co., Inmc., 623 F.Supp. 207 (1985),
members of CBIA that have cooperated fully
with the government and are complying with
the Clean Water Act are still subject to
multimillion dollar penalties for past
violations in suits brought by private
parties.
Members of CBIA frequently have been
targets of citizen suits brought under the
Clean Water Act. Of 47 citizen Notices of
Intent filed in Connecticut, approximately
42 were fled against members of CBIA or
their subsidiaries. Of 32 citizen suits
known to have been filed in Connecticut,
all but one were filed against past or
present members of CBIA. These members
have paid over a million dollars in
settlements, much of which has been paid
2
————eo =“
as environmental contributions in lieu of
civil penalties for past violations of the
Act. Other suits are pending. Respondent
Natural Resources Defense Council has been
a plaintiff in all the citizen suits
brought against members of CBIA.
CBIA has requested the consent of the
parties to the filing of its amicus brief
in support of the petition for certiorari.
The Petitioner, Gwaltney of Smithfield,
Ltd., has consented, as evidenced by the
letter from its counsel, Hogan & Hartson,
attached to the filing letter enclosed
herewith. The Natural Resources Defense
Council has declined to give its consent.
The Chesapeake Bay Foundation, Inc., has
failed to respond to CBIA's request for
consent.
Amicus believes that it will present
arguments in favor of granting certiorari
which will not be presented by the parties
to this action or by other amici. CBIA
a a eee tee
offers a broader perspective gained from
an ongoing study of citizen suits under
the Clean Water Act, 33 U.S.C. Sec. 1365.
This study has shown that in the last
four years there has been a sudden flood
of such suits across the country. Over
five hundred notices of intent to file
such suits have been issued in at least 38
states and all ten of EPA's regions. The
lower courts are divided and in need of
guidance on whether to accept the recently
advanced theory that defendants who are in
full compliance with the Act are still
liable for multimillion dollar civil
penalties for past violations.
Research also shows that most of this
sudden increase in litigation is the work
of a small number of organizations. The
threat of large civil penalties for
indisputable past violations is frequently
used to influence defendants to accept
settlements which include payments to the
————————————
plaintiff, or to a related organization or
project, together with attorneys’ fees.
This incentive to sue for private gain
conflicts with the expressed intent of
Congress. It also frustrates efforts to
foster compliance with the law.
Permittees, such as the members of CBIA,
who have cooperated fully with official
regulations may nonetheless face
conflicting demands from freelance
"regulators".
This broader perspective on the issues
is peculiarly within CBIA's understanding,
both from its direct experience with its
members in Connecticut, and from its
investigation into the nationwide scope of
the current citizen suits practice. For
the foregoing reasons, CBIA prays that
this Court grant its motion for leave to
file the accompanying brief amicus curiae.
By its Attorneys,
Wayne S. Henderson, Esquire
Patrick W. Hanifin, Esquire
New England Legal Foundation
55 Union Street
Boston, Massachusetts 02108
(617) 367-0174
EE
QUESTION PRESENTED
Whether the citizen suits provision of
the Clean Water Act, 33 U.S.C. §1365,
authorizes citizens to bring suit for
civil penalties for past violations
against defendants who are currently in
full compliance with the Act?
VX
TABLE OF CONTENTS
TABLE OF AUTHORITIES eeeeeeeeeeeee 2
STATEMENT OF INTEREST
OF AMICUS CURIAE eeeeeeeeeeeeeeeee 1
INTRODUCTION AND
STATEMENT OF THE CASE .cceeeeeceeeed
SUMMARY OF ARGUMENT ....eeeeeeeeeeed
ARGUMENT
I. THE DECISION BELOW IS IN CONFLICT
WITH THE DECISIONS OF OTHER
FEDERAL COURTS OF APPEALS, AND
WITH A DECISION OF THIS COURT,
AND MIS-READS THE STATUTORY
LANGUAGE ccccccccccsccsesesess 10
A. The Ruling of the
Fourth Circuit Below
Squarely Conflicts With the
Rule in the Fifth and
Seventh Circuits, and With
This Court's Opinion in
Middlesex
COUNTY. cececceceececcees 10
B. The Legislative History
Establishes Congress’ Intent
to Limit Citizen Suits to
Abatement of Current
ViolationS. .ccsecececcessess 17
ll. THE LOWER COURTS ARE FACED WITH
AN INCREASING NUMBER OF SUCH
CITIZEN SUITS, AND ARE IN NEED
OF GUIDANCE FROM THIS
COURT «. cccccccccsccccccccssses 24
A. The Extent of Citizen Suit
Litigation Has _ Increased
Dramatically Over the Past
Four Y@@rs. ssscessccceses 24
B. The Plaintiffs’ Pattern of
Use of Citizen Suits
Conflicts With the
Congressional Intent In
Enacting The Provision. .. 29
GETED «ccccccccococcccoeecec eo» 43
|
TABLE OF AUTHORITIES
Cases
Atlantic States Legal Foundation v. Al
-Supp.
(N.D.N.Y. 1986) errr TTTTT TTT TT is.
Chesapeake Bay Foundation and Natural
Resources — Council v. Bethlehem
Steel Corp., 22 Env't Rep. Cas. 1694
> . 985) eee eee eeeenneeeeneee 31
City of Evansville v. Kentucky Liquid
= Cling ,
604 ros 1008 (7th Cir. 1979),
cert.denied 444 U.S. 1025
11980) oeeee eee wenee 11,13,14,16
Consumer Products Safety Commission
v. GTE Sylvania,
447 U8 103 102,108 (1960) ....... 18
Connecticut Fund for the Environment and
Natural RA r Defense Council v.
Brid rt Be Ss Co.,
0. - - . Conn. Oct. 23,
1984) CORO 36
Connecticut Fund for the Environment and
Natural 1 rces Defense Council
v.Contract Plotin Co.,
631 F.Supp. 12
(D. Conn. 1986) ccccccccccceses 39
Connecticut Fund for the Environment and
Natur esources Defense Council v.
Job Plating Co., inc.,
623 F.Supp. 207
(D. Conn. BEBO Peocccccccoccee 17 ,32,39
ii
Connecticut Fund for the Environment and
Wate Resources Defense Council Vv.
liner Ine:
o. = 86 (D. Conn.
Jan. 30, 1985) Cette eeeeeeeeeeceeee 36
Pines Vv. Nestingtouse Electric Corp.,
-Supp.
(M.D. Pa 1985) eee ee ee eee ee eee 17,31
F riends ot the Earth v. Facet Enterprises ,
-Supp.
(W.D. N.Y. 1984) eee ee eee ee eee 31
Hamker v. iamand Shamrock Chemical Co.,
(5th Cir. 1985) eeeee 11-13,20,22-23
June 12,
1984) CCST HEC Ree eee 38
lilinois v. vutboard wate Corp., 619
. . ir. » ¥ ted
and ag. 453 U.S. 917 (i96T) on
remand, F.2d 473
th ir. 1982) eee ee eee ee eee 14
CTH THEE EEE EE EES 31
Middlesex
(1981) Dee 12-15,22-23
iii
a
Pa Cove Marina, Inc. v. Ciba
rp.,
2i Bniv't Rep. Cas. (BNA) 1390, 1393,
(D.R.I. 1984), 22 Env't Rep. Cas.
(BNA) 1999
(D.R.I. 1985) eevee eneneeeeeeee 14,16
Sierra lub v. Aluminum Compan of
nes
-Supp. 842
(N.D.N.Y. 1984) e*eneeeveeeeeeeeee 35
Sierra DV. mer R &
?
-2d 1013 (M.D. La. 1985)
+: _. ¢ temanetnete
Sierra Club v. Hanna Furnace rp.,
F.Supp.
(W.D.N.Y. 1985) seen eeeeeeeeee 17
Sierra Club and Natural Resources Defense
1983) eee eeeeeeeeeeeeeeeeeeeeeeere 36
Sierra Club v. Keystone Au ve Pla
No. HM 64-4020 (D. Md. May 30,
1986) eevee eeeeeeeeeeeeeeeeeeeeee® 35
Sierra Club v. Monochem, No. 84147B (M.D.
(5th Cir.) eee ener 16
Sierra Club v. Philips ECG,
No. W.D. N.Y. Jan. 25,
1983) *eeeeneeeeeeeeeeneeeeeeeeeeee 36
iv
ep . (BNA) 1050 (D.
Mass. 1984) ee ee ee eee eee eee eee eee 17
F.Supp. 103 (D. N.J. 1986)
ities 31
Oo. 63-685 (D. N.J. Jan. 19,
1984) ithe eee 2 38
Student Interest R h of
> upp.
(D. N.J. 1985) ee ee ee 16,37
Stud
(D. N.J. Nov. 16, 1985) see ee ee @ © 35
Studen b In t R rch of
-Supp.
(D. N.J. 1985) eee ee ee eee ee eee 31
Statutes and Regulations
26 U.S.C.
$2462 eC eee eee eee eee eee 31
33 U.S.C.
DESIG cccccccccccccccccccccccccecse 9
DESID ccccccccccccccccccsccecccccse 92
BETES cccccccccccccccececcocccees 3,11
EEE
42 U.S.C.
$6972 e*eeeeeeeeee ee eee eeeeeee eee ee 6
GOGOL Of SOG cecceccereeeeeeeeeeees 6
Superfund Amendments and Reauthorization
Act of 1986, Pub. L. 99-499,
40 C.F.R. §122.41(1)(4) see eee eeeeeee 30
EPA Civil Penalty Policy, Env't Rep. (BNA)
(Fed Laws) 41:2991 (1984) ..cccceeeee &
islativ terial
Vol. 1 eeeeee ee eee eee eee eee eee e 18-20 , 22
Vol. 2 *eeeeeereeee eee eee eeeeeee 19.22.34
S. Rep. No. 414, 82nd Cong., ist Sess. at
79-81, eee in 1972 U.S. Code Cong.
& Ad. News, » 2 at 3745 ... 19,22,34
Weter_
109. a gpwodes niet
Other Authorities
D.P. Jones, Activists Pressure Polluters.
t, October 6, 1986
see eee eeeeeeeeeeeeeeeeeee eee eee 40
Environmental Law Institute, itizen
2 ts: An A is _of tizen
nforcement tions Inder
EP.
eee ee eeeeeeeeeeeeeeeeee 53.25.30
vi
- Rep nv - Inst.) 10407
(1984) Se CTP eee ee eee eee eee 34
Petition for Writ of Certiorari of
Gwaltney of Smithfield. Ltd.
ieee eee eee ee 5.12.13, 28.33.42
Vii
STATEMENT OF INTEREST
OF AMICUS CURIAE
The Connecticut Business and Industry
Association ("CBIA") is the _ largest
business organization in the State of
Connecticut, having 6300 members who
employ a total workforce of over 700 , 000
employees. CBIA presents the views of its
members on public policy and legal issues
to legislative and judicial authorities.
CBIA and its members have been
directly involved in the issue that is
before the Court. Of the 47 Citizen
Notices of Intent filed in Connecticut
since 1983, approximately 42 have named
CBIA members as defendants.
The interest of CBIA is more fully set
forth in its Motion for Leave to File
Brief as Amicus Curiae, above.
INTRODUCTION AND STATEMENT OF THE CASE
The amicus, Connecticut Business and
Industry Association, adopts and
incorporates by reference the Statement of
the Case of Gwaltney of Smithfield, Ltd.,
in its Petition for Certiorari.
The amicus also submits, however, that
a broader perspective on the issues herein
is both relevant and important to this
Court's consideration of the Petition.
This case presents a question of statutory
interpretation which will not only
determine the interests of the parties
immediately before the Court, but will
also provide guidance to the many lower
courts which are confronting a rising
flood of such litigation naticnwide.
The citizen suits provision of the
Clean Water Act, which was enacted in
1972, was used only infrequently during
the first decade of its existence. During
the four years from 1978 through 1981, for
example, an average of fewer than five
such suits per year were filed.?
Since late in 1982, however, there has
been a dramatic increase in citizen suits
under the Clean Water Act. The increase
appears to have been at least accompanied,
if not in large part fueled, by the theory
that such suits are available not merely
for abatement actions for ongoing
violations, but for civil penalty claims
for past violations.
Beginning in late 1982, the United
States Environmental Protection Agency has
kept a log of all citizen notices of
intent to sue, required by $505 of the
Act, 33 U.S.C. §1365, filed with its
headquarters in Washington. In the
1. Environmental Law Institute,
Citizen Suits: An Analysis of
Citizen Enforcement Actions Under
EPA-Administered Statutes (1984)
(hereinafter "ELI Study") at
I11-10 ,27,29.
four-year period from September of 1982 to
August, 1986, at least 558 citizen suit
notices have been filed with EPA.”
The statute does not require notice to
EPA upon the subsequent filing of
litigation, and the percentage of citizen
Suit notices which have resulted in suit
is difficult to ascertain. Investigation
has thus far disclosed that at least 135
of the notices have been followed by the
filing of a federal court Complaint, but
the true figure is certainly higher. At
least 298 of the 558 notices, or roughly
93 percent, have been filed by one of only
six private organizations: the Natural
2. This is a minimum figure, as the
true numbers are likely in fact
to be higher. Some notices are
filed with EPA regional offices
and do not appear in EPA's
Washington files. Freedom of
Information Act requests are
pending with the remaining five
EPA regions.
Resources Defense Council, the Atlantic
States Legal Foundation, Connecticut Fund
for the Environment, Friends of the Earth,
Sierra Club, and the Student Public
Interest Research Group of New Jersey.
The amicus offers these facts
principally in support of three
propositions. First, the issue involved
in this matter is one only recently raised
by plaintiffs, and is of increasingly
widespread importance to an increasing
number of lower courts. The sheer number
of cases brought, together with the vast
potential for future cases not only under
the Clean Water Act,” but also under the
corresponding provisions of other federal
3. As of January, 1984, roughly
65,000 permits had been issued
under the Clean Water Act.
Petition for Certiorari of
Gwaltney of Smithfield, Ltd.
(hereinafter "Petition") p. 23.
Ss
environmental statutes, * indicate the
importance of the need for guidance to the
lower courts on the _ availability of
jurisdiction for such suits when past
violations are claimed.
Second, the use of citizen suits for
civil penalties for past violations, and
the plaintiffs’ common tactic of
settlement, raise questions concerning the
incentive to such litigation. Congress
made clear its intent to enact a provision
4. Provisions for citizen suits for
civil penalties against any
person “who is alleged to be in
violation" of the law exist in
the Resource Conservation and
Recovery Act, (RCRA) 42 U.S.C.
§6972 (1984) (penaities of up to
$25,000 per day of violation);
and in the Superfund Amendments
and Reauthorization Act of 1986,
Pub.L. 99-499,§206, adding new
$310 to the $Comprehensive
Environmental Response,
Compensation and Liability Act
(CERCLA), 42 U.S.C. §9601 et seq.
(penalties of up to $25,000 per
day of violation for a first
offense and up to $75,000 per day
for subsequent offenses).
6
ar
the use of which would be motivated solely
by concerns of public health and welfare.
Currently, however, the threat of steep
civil penalties under the Act is
frequently used to influence defendants to
accept settlement demands which include a
financial contribution either directly to
the plaintiff organization, or to &
related organization or an environmental
project, together with costs and attorneys
fees. The incentive to sue, particularly
for litigating environmental
organizations, has become less one of
concern for the public health and welfare,
and more one of private gain for the
organization.
And finally, the plaintiffs’
interpretation of the statute is improper
for reasons of public policy. The
increasing use of citizen suits in
instances where the responsible
environmental agency has_ specifically
chosen to ensure compliance by means other
than the exercise of its civil penelty
authority interferes with efforts to bring
permittees into full and prompt
compliance. Granting to citizen groups an
enforcement power in important respects
equal to, rather than supplementary of,
the Administrator's inevitably leads to
inconsistencies of application and
Significant disagreement with the
regulation and enforcement methods and
priorities of the responsible agencies.
For all of the above reasons, the amicus
submits that this Court's grant of the
requested writ is both necessary and
appropriate to clarify a question of law
which is of increasing importance to the
lower courts.
ee attainments
SUMMARY OF ARGUMENT
The decision of the Fourth Circuit
Court of Appeals below directly conflicts
with decisions of this Court and of the
Fifth and Seventh Circuits, which have
clearly stated that the citizen suits
provision of the Clean Water Act provides
jurisdiction only for current or ongoing
violations.
The District Court lacked subject
matter jurisdiction over this suit because
the Clean Water Act was not being
violated at the time suit was filed. The
statutory language and the legislative
history establish Congress's intent that
citizen suits be available for the purpose
of abatement of ongoing violations, and
not for claims for civil penalties for
past violations.
The lower courts are divided and need
guidance on what is becoming a common
variety of suit. The extent of citizen
Suit litigation has increased
Substantially over the past several years.
Congress intended to enact a citizen
Suits provision which would be used purely
for the purpose of protecting the public
health and welfare. As the provision is
Curreutly being used, however, it provides
a private incentive to suit which
conflicts with the intent of Congress.
ARGUMENT
I. THE DSCISION BELOW IS IN CONFLICT WITH
THE DECISIONS OF OTHER FEDERAL COURTS OF
APPEALS, AND WITH A DECISION OF THIS
COURT, AND MIS-READS THE STATUTORY
LANGUAGE.
A. The Ruling of the Fourth Circuit
Below Squarely Conflicts With the Rule
in the Fifth and Seventh Circuits, and
With This Court's Opinion in Middlesex
County.
The Clean Water Act provides for
federal jurisdiction over citizen suits
against a private party only if that party
10
"ig alleged to be in violation" of an
effluent standard or limitation. 33
U.S.C. §1365(a)(1). This jurisdictional
requirement is clearly stated in _ the
present tense, and does not grant
jurisdiction over a party alleged to have
violated a standard at some time in the
past.
The Fifth Circuit Court of Appeals,
with reference also to decisions of the
Seventh Circuit and of this Court, has
provided the clearest ruling on the issue,
in Hamker v. Diamond Shamrock Chemical
Co., 756 F.2d 392, 395 (1985):
By its ordinary meaning, the
language of §1365 requires’ an
allegation of an ongoing violation . .
. « Hamker asserts that "to be in
violation of" means "to have
violated"; however this interpretation
obviously strains the grammar of the
statute and diverges from its ordinary
meaning. "(Section 1365] does not
provide for suits against parties
alleged to have violated an effluent
standard or limitation in the past. .
. ." City of Evansville v. Kentucky
Liquid Recycling, 604 F.2d 1008, 1014
(7th Cir. 1979), cert. den., 444 U.S.
11
: )
1025 (1980) (cited with approval in
Middlesex County Sewerage Authority v.
National Sea Clammers, 453 U.S. 1,
(18, n.28] (1981).
The Court below expressly disagreed
with Hamker, finding that the language of
the statute can be read "to comprehend
unlawful conduct that occurred only prior
to the filing of a lawsuit." Petition for
Writ of Certioriari (hereinafter
"Petition") at 8a. Relying, as to the
central issue, exclusively on_ district
court precedents, the Fourth Circuit held
that "citizen suits ..., seeking civil
penalties for permit violations committed
entirely in the past, are permitted under
§505(a)." Id. at 17a.
A clearer statement more squarely in
conflict with Hamker could not be devised.
In Hamker the Fifth Circuit plainly held
that "prospective relief is the only kind
of relief authorized by the Act's citizen
Suit provision, and that civil penalties
are available ‘only as prospective
relief.'"" Id. at 15a, citing Hamker, 7956
F.2d at 398-99. The Court below conceded
the direct conflict between its reading of
the statute and that of Hamker. While
suggesting that "it could be argued that
Hamker is distinguishable on its facts,"
the Court declared that even if it is not
distinguishable, "we decline to follow it
to the extent that it holds that §505(a)
of the Clean Water Act does not permit
citizen suits seeking civil penalties for
past violations." Petition at 15a.
The Court also acknowledged contrary
language by the Seventh Circuit in City ol
Evansville v. Kentucky Liquid Recycling,
604 F.2d 1008 (7th Cir. 1979), cert.
denied, 444 U.S. 1025 (1980), and by this
Court in Middlesex County Sewerage
Authority v. National Sea Clammers
Association, 453 U.S. 1 (1981). According
to the Court below, any statements in
13
"sali
Middlesex County "limiting the scope of
citizen suits to prospective relief were
mere dicta," while the Seventh Circuit's
comments in City of Evansville regarding
the unavailability of civil penalties for
past violations were “wholly unnecessary
to its decision." Petition at 16a, and n.
14, citing City of Evansville, 604 F.2d at
1014; Illinois v. Outboard Marine Corp.,
619 F.2d 623, 631 (7th Cir. 1980), vacated
and remanded, 453 U.S. 917 (1981), on
remand, 680 F.2d 473 (7th Cir. 1982): and
Pawtuxet Cove Marina v. Ciba-Geigy Corp.,
21 Env't Rep. Cas. (BNA) 1390, 1393
(D.R.I. 1984).
The Fourth Circuit may not, however,
so easily dismiss as inapposite statements
of statutory interpretation which are
central to the holdings of City of
Evansville and of Middlesex County. Both
cases presented claims for damages
pursuant to an implied private right of
14
action under the Clean Water Act, and the
analysis necessarily demanded an
examination of the nature and adequacy of
the remedies which the Act expressly does
provide.
It was in this context that the
Seventh Circuit and this Court made clear
reference to the limited nature of the
citizen's right of action explicitly
contained in the statute, and did so in
terms plainly inconsistent with the theory
of the instant case. The citizen suits
provision “allows suits under the Act by
private citizens, but authorizes only
prospective relief," 453 U.S. at 6
(emphasis supplied); and permits private
citizens "to sue for injunctions’ to
enforce" the statute. Id. at 14. The
structure of the Act and its legislative
history underscore "the limited nature of
the citizen suits being authorized." Id.
a 37. Be ae And according to the
15
Seventh Circuit:
: (The citizen Suits provision]
authorizes a civil action against a
party "alleged to be in violation" of
effluent Standards’ or _ limitations
under the Act.... It does not provide
for suits against parties alleged to
have violated an effluent Standard or
limitation in the past or for recovery
of damages.
City of Evansville, 604 F.2d at 1014
(emphasis supplied).
The district courts are Similarly
divided. District Courts in Louisiana,
Sierra Club v. Copolymer Rubber & Chemical
Corp., 621 F.2d 1013 (M.D. La. 1985) ,app.
pending, No. 85-3763 (5th Cir.), Sierra
Club vy. Monochem, No. 84147B (M.D. La.
1985) app. pending, No. 85-3762 (5th
Cir.); and Rhode Island, Pawtuxet Cove
Marina, Inc., v. Ciba-Geigy Corp., 21
Env't Rep. Cas. (BNA) 1390, 1393 (1984),
22 Env't Rep. Cas. (BNA) 1999 (1985), have
ruled that there is no jurisdiction over
such suits. Courts in New Jersey, e.g.
Student Public Interest Research Group v.
16
Monsanto Co., 600 F.Supp. 1474 (1985);
Massachusetts, Sierra Club and Natural
Resources Defense Council v. Raytheon, 22
Env't Rep. Cas. (BNA) 1050 (1984);
Connecticut, Connecticut Fund for the
Environment and Natural Resources Defense
Council v. The Job Plating Co., Inc., 623
F.Supp. 207 (1985); New York, Sierra Club
ve. Hanna Furnace Corp., 636 F.Supp. 527
(W.D.N.Y. 1985), Atlantic States Legal
Foundation v. Al Tech Specialty Steel
Corp., 635 F.Supp. 284 (N.D.N.Y., 1986);
Pennsylvania, Fishel v. Westinghouse
Electric Corp., 640 F.Supp. 442 (M.D.Pa.
1985), and Virginia, in the instant suit,
have reached the opposite conclusion.
B. The Legislative History
Establishes Congress's Intent to
Limit Citizen Suits to Abatement
of Current Violations.
Congress intended in the Clean Water
Act to write a statute whose meaning would
be clear on its face. "[WJe have tried in
17
this legislation not to leave the final
evaluation of the bill to legislative
history, but instead to write into law as
Clearly as possible the intent of the
Congress." Remarks of Sen. Muskie during
Senate debate, A _ Legislative History of
the Water Pollution Control Amendments of
1972 ("Leg. Hist."), Vol 1 at 163-164
(1973).
Where the language of a statute is
plain on its face, the courts. are
constrained to apply that language, and
not to re-fashion the wording according to
its own perception of how Congress must
have meant the provision to be phrased.
Consumer Products Safety Commission v. GTE
Sylvania, 447 U.S. 102, 108 (1980).
Resort to the legislative history for
interpretive guidance, however, further
underscores that Congress intended to
authorize citizen suits only to "abate"
ongoing violations of the Act. See S.
18
Rep. 414, 92d Cong., 1st Sess. at 79-81,
reprinted in 1972 U.S. Code Cong. & Ad.
News, vol. 2 at 3745 ("USCCAN") and in 2
Leg Hist. at 1482, 1497. "Abate" means "to
put an end to." Webster's New World
Dictionary, p. 2 (1976). Other comments
in the legislative history support this
interpretation. The purpose of the
citizen suits provision was described as
permitting citizens to "seek compliance .
» »« with the Act," Water Pollution Control
Legislation, Hearings Before the
Subcommittee on Air and Water Pollution of
the Committee on Public Works, United
States Senate, 92d Congress, lst Sess.,
Serial No. 92-H9 at 109; "to abate a
violation," id. at 114; and to sue "for
the purpose of abating pollution," Id. at
707 (comment of Sen. Eagleton). "[A]
citizen can obtain an _ injunction but
cannot obtain money damages for himself."
1 Leg. Hist. at 220-21 (comment of Sen.
19
Bayh).
Congress expressed concern that the
citizen suits provision be restricted to
abatement rather than be a source of funds
for private persons and groups. 1 Leg.
Hist. at 674. The Fifth Circuit pointed
out in Hamker that permitting citizen
suits for past violations would defeat
this Congressional intent:
If §1365 were interpreted as
permitting citizen suits ffor civil
penalties for past violations, all
state damage claims which could be
brought under pendent jurisdiction
could be litigated in a ‘federal forum,
thus undermining congressional intent
to.limit the burden on the district
courts. Since the Act provides for
awards oof attorney's fees and
expenses, there would be a _ substantial
incentive to bring suit under the Act
rather than in state court.
756 F.2d at 396.
The citizen suits provision of the
Clean Air Act of 1970, which provided for
citizen suits for the first time, and
which formed the model for the Water Act
version, was the subject of extensive
20
debate over fears that it would clog an
already congested federal court system.
R. Schwartz & D. P. Hackett, Citizen Suits
Against Private Industry Under the Clean
Water Act, 17 Natural Resources Lawyer 327
(1984) (herinafter Schwartz & Hackett) at
328. Concern was expressed over the
possibility of frivolous, harassing or
duplicative suits and conflicts between
EPA policy and citizens’ strategy. Id. at
328-29. In response Senator Hart arguec
that the inability Oi plaintifis to
collect damages would limit the number oi
suits filed. Id.
The addition in the Clean Water Act of
a provision empowering the Courts to
assess "any appropriate civil penalties"
was not discussed in the legislative
history, Schwartz & Hackett at 331, except
to specify that any such penalties be paid
into the federal Treasury. Congress
considered and specifically rejected the
21
of allowing citizens to _ collect
if the penalties. ]
Leg. Hist. at
220-21 (comment of Sen. Bayh). The Senate
nittee Report on the Amendments stated,
should be noted that any penalties
sed would be
scellaneous receipts
deposited as
and not be
ered by the complainant." Report of
Senate Public Works
Comm. at 79,
nted in 2 Leg. Hist. at 1497.
1is Court has recognizec. as has the
ircuit in Hamker, that "one of the
congressional purposes behind
ting citizen suits was to preclude the
ssibility that §1365 suits would place
1due burden on the federal courts."
Hamker, 756 F.2d at 396.
‘T]he legislative history of the
(Clean Air] Act contains’ explicit
indications that private enforcement
suits were intended to be limited to
the injunctive relief expressly
provided for. Senator Hart, for
example, stated:
It has been argued,
onferring additional!
~~)
however, that
rights on the
citizen may burden the courts unduly.
I would argue that the citizen suit
provision of §1358 has been carefully
drafted to prevent this consequence
from arising. First of all, it should
be noted that the bill makes no
provision for damages to the
individual. It therefore provides no
incentives to suit other than _ to
protect the health and _ welfare of
those suing and _ others _ similarly
Situated. It will be the rare, rather
than the ordinary, person, I suspect,
who, with no hope ci financial gain
and the very real prospect of
financial loss, will initiate court
action under this bill." 116 Cong.
Rec. 33104 (1970).
Middlesex, 453 U.S. at 17, n. 27 (emphasis
supplied). It was this measure,
incorporated in the Clean Water Act, which
Senator Muskie recognized as a
"restrictive" citizen Suits provision.
Scwartz & Hackett, at 330. See also,
Hamker, 756 F.2d at 396 (availability of
citizen suit for civil penalties for past
violations, because Act allows for
attorneys’ fee awards and expenses, would
undermine congressional intent to limit
actions to those brought solely to protect
health and welfare.)
The present use of the citizen suits
provision for civil penalty claims for
past violations directly conflicts’ with
this expression of Congressional intent.
Il. THE LOWER COURTS ARE FACED WITH AN
INCREASING NUMBER OF SUCH CITIZEN SUITS,
AND ARE IN NEED OF GUIDANCE FROM THIS
COURT.
A. The Extent of Citizen Suit
Litigation Has Increased
Dramatically Over the Past Four
Years.
This Court's jurisdiction is
appropriate in this matter also to provide
guidance to the increasing numbers of
district courts which are required to
confront the issue. Litigation under the
citizen suits provision of the Clean Water
Act has become, since late in 1982,
increasingly common, and similar private
rights of action exist under both RCRA and
CERCLA as recently amended.
From its enactment in 1972 until late
in 1982, the citizen suits provision of
the Clean Water Act was rarely used.
During the four years from 1978 through
1981, for example, an average of fewer
than five per year were filed nationwide.
ELI Study III-10, 27, 29.
Beginning in late 1982 with the filing
of a group of 14 by one law office, the
numbers of such suits have increased
dramatically. Although EPA's records are
apparently not complete, they do reveal
that in the four years since that time at
least 558 notices have been filed. See
Chart, Appendix A, attached hereto. What
percentage of these notices have
subsequently been followed by litigation
is not yet fully known, but it is Known
that at least 135 have resulted in federal
court Complaints. If Connecticut is any
guide the numbers are likely to be even
higher. Of 47 notices of intent filed in
Connecticut from 1983 to date, 32 (68%)
are Known to have led to federal court
litigation.”
The citizen suit notices have been
well distributed geographically, with each
of the ten EPA Regions and at least 36
states and the District of Columbia
represented. The principal activity has
been in Pennsylvania (90 notices), New
York (73), Connecticut (47), New Jersey
(36), Louisiana (34), Massachusetts (33),
Texas (31), California (24), and Ohio
(22).
The identity of the plaintiff groups
responsible for the upsurge of notices is
De By another account, of the 108
citizen suit notices filed in
1983 alone, 62 led to _ federal
court suits, which together
requested approximately $100
million in _ penalties. Lewis,
"Environmentalists' Authority to
Sue Industry for Civil Penalties
Is Unconstitutional Under the
Separation of Power Doctrine," 16
Envir. Law Rep. 10101, 10102
(1986).
26
not nearly so _ diverse. Most of the
citizen suit notices known to have been
filed since September of 1982 -- 298 of
the 558 notices, or 53% -- have been filed
by or on behalf of only six organizations:
Natural Resources Defense Council, Sierra
Club, Friends of the Earth, Atlantic
States Legal Foundation, Connecticut Fund
for the Environment, and New Jersey Publi
Interest Research Group. All six are
ither parties or amici in the instant
case. [hey often jo in filing notices
There is, of course, nothing per se
improper in the fact that so large a share
6. The Natural Resources Defense
Council has filed 106 notices;
Sierra Club has filed 121;
Friends of the Earth, 37 ;
Atlantic States Legal Foundation,
"6; Connecticut Fund for the
Environment, 42; and New Jersey
Public Interest Research Group,
38. These figures total more
than 298 because of the frequent
joint filings.
~
4
t
ee ee
of this litigation and threatened
litigation is carried on by so limited a
cast of plaintiffs. But the extent of the
plaintiffs’ practice in this area, and the
pattern which it follows, combine to lend
weight to the argument that this use of
the citizen suits provision, which appears
to be fueled in large part by the theory
that such suits are available for past
violations, is a far cry from _ what
Congress ever intended.
7. The time lag involved in the
preparation and filing of the
Discharge Monitoring Reports on
which the notices are based, and
the incompleteness of the
information the amicus has yet
received, combine to make it all
but impossible at this point to
say what portion of the citizen
suits notices or complaints filed
relate, as in the instant case,
to purely past violations. It is
known that more than 20 such
claims have thus far reached the
stage of reported decisions,
Petition at 22, n.15, so the
numbers of those brought and
unreported, settled, or _ still
pending is likely to be
considerably higher. What is
28
B. The Plaintifis' Pattern of Use of
Citizen Suits Conflicts With the
Congressional Intent In Enacting
The Provision.
Far from displaying a_ motivation
solely to protect the public health and
welfare, the current pattern and practice
of those groups’ responsible for the
upsurge in Clean Water Act citizen suit
filings instead appears to demonstrate
[Footnote Continued]
plainly apparent from a review of
the EPA files, however, is that
virtually every notice contains
Claims for civil penalties for
past’ violations, whether’ the
defendant is presently in
compliance or not. It is,
therefore, in a very real sense
that the recent increase in
citizen suits is fueled by the
availability of civil penalties
for past violations.
that the primary motivating factors in
such actions, particularly as to past
violations, are that the threat of steep
civil penalties may serve as a spur to
settlement, and that attorneys fees are
available to fund the effort.
Holders of NPDES permits under the Act
are required to monitor their own effluent
discharges, and to file monthly Discharge
Monitoring Reports. 33 1.S.C.
§1318(a)(3)(A); 40 C.F.R. §122.41(1)(4).
These DMRs are public records, and it is a
simple matter for a _ potential plaintiff
organization to review them, compare the
numerical reports with the permit limits,
and establish technical violations of the
Act. ELI Study at I-7, V-2, V-12. Courts
have generally ruled that the DMKRs
constitute admissions, and some have held
that they provide conclusive evidence of
violation of he statute's strict
30
liability standard. .
Under a rule of law that permits civil
penalty Suits for violations which
occurred as long as five years prior to
the date of suit,” a permittee whose DMRs
display even the slightest violation over
the previous five. years is likely to be
8. Locust Lane v. Swatara Township
Authority, 636 F.Supp. 534 (M.D.
Pa. 1986); Student Public
Interest Research Group of New
Jersey v. Jersey Central Power
Co., 642 F.Supp. 103 (D.N.J.
1966).
9. While occasional courts have held
there to be no statute of
limitations for such actions, and
have therefore permitted
plaintifis to go back
indefinitely, Student Public
Interest Research Group of New
Jersey v. Tennaco Polymers, 602
F.Supp. 1394 (D.N.J. 1985),
Fishel v. Westinghouse Electric
Corp., 640 F.Supp. 442 (M.D. Pa.
1985), the more usual rule is to
imply the general federal penalty
Statute of limitations of five
years. 28 U.S.C. §2462. Friends
of the Earth Ve Facet
Enterprises, 618 F.Supp. 532
(W.D.N.Y. 1984); Chesapeake Bay
Foundation and Natural Resources
31
disposed to settlement)”. The statute
sets a civil penalty of "$10,000 per day
of such violation," 33 U.S.C. §1319(d),
and some courts, including the Court below
10.
[Footnote Continued]
Defense Council v. Bethlehem
Stee! Corp., 22 Env't Rep. Cas.
1894 (D.Md. 1985); Conn. Fund for
the Environment and_ Natural
Resources Defense Council v. Job
Plating Co., Inc., 623 F.Supp.
207 (D.Conn 1985); Atlantic
States Legal Foundation v. Al
Tech Specialty Steel Corp., 635
F.Supp. 284 (N.D.N.Y. 1986).
The plaintiff organizations may
profess to some _ degree _ of
reasonable judgment in choosing
to pursue only those violations
which have reached a_ certain
level of significance, but two
points in response are worthy of
note. First, whatever’ the
enforcement priorities set by the
plaintiff organizations, they are
bound to differ from those of EPA
and the_- state environmental
agencies which by statute are
given the responsibility to make
such priority judgments. And
second, the rule of law which
enables these plaintiff
organizations to pursue. their
litigation and settlement
campaign is one which will apply
32
in the instant matter, have interpreted
that provision to permit an assessment of
up to $300,000 for violation of a single
monthly average limitation. Petition at
18a - 22a. Given the severity of the
potential penalty, plus attorneys' fees to
the plaintiff and the defense costs of
litigating the matter, and given the
unavailability of other than _ equitable
defenses, a defendant is faced with little
choice but to settle.
The settlement terms proferred by the
plaintiff organizations provide further
(Footnote Continued]
to all plaintiffs, including
those less responsible in their
judgments. A citizen suit for
even a single minor and technical
violation of the Act five years
prior to the filing of a
Complaint will be made possible
by the plaintiffs' statutory
reading. Since a DMR admits
liability, and since the statute
provides a strict liability
standard, $10,000 potential
penalty, and attorneys fees in
any event, there is little if any
incentive not to sue for even the
most trivial violation.
33
demonstration that the current tactic
diverges’ significantly from Congress's
intended result. Civil penalties assessed
under the Act were meant for deposit in
the Treasury, Report of the Senate Public
Works Comm. at p. 79, reprinted in 2 Leg.
Hist. at 1497, but the settlements which
plaintiffs demand often require various
environmental contributions in lieu of
penalties.
As a starting point, the environmental
groups frequently inform target
companies that their settlement goals
include entry of a consent decree
containing the following provisions:
1. civil penalties or alternatively,
a contribution of a comparable amount
to an environmental project located in
the same state,. . «+ -
4. reimbursement for the plaintiffs'
attorney's fees and litigation costs.
Schwartz & Hackett at 328 (1984). See
also, J. Miller, Private Enforcement of
Federal Pollution Control Laws Part III,
14 Env'l L. Rep.( Env't L. Inst.) 10407,
10426 (1984) Consent decrees in citizen
34
Suits brought by environmental groups
have typically included payments of
$20,000 to $400,000 to environmental
Organizations in lieu of civil penalties
to the U.S. Treasury.?! The agreements
sometimes provide for a_e schedule of
penalties to be paid to environmental
groups in the event that the defendant
violates the consent decree; these
penalties may amount to far more than the
ll. E.g., Sierra Club v. Keystone
Automotive Plating Co., No. HM
84-4020, (D.Md., May 30, 1986)
($400,000 to the Nature
Conservancy); Student Public
Interest Research Group of New
Jersey Vv. Ragen Precision
Industries, No. 83-1604 (D.N.J.
Nov. 16, 1985) ($100,000 to the
Passaic River Coalition); Sierra
Club v. Aluminum Company of
America, 985 F.Supp. 842
(N.D.N.Y. 1984) (consent decree
Oct. 5, 1984) ($87,400 to the
Adirondack Historical Association
for environmental education
projects and conservation).
: , 12
"contribution". In some
instances, the plaintiffs have themselves
tne beneficiaries of these
13
payments. Typically, these sums are
lescribed as "contributions" to tax-exempt
rganizations.
E.g., Connecticut Fund for the
Environment and Natural Resources
Defense Council v. Bridgeport
Brass Company, No. H-84-955
(D.Conn. Oct. 23, 1984) ($30,000
to the Open Space Institute, an
organization with the same
address as the NRDC, plus up to
$86,000 more in noncompliance
penalties payable to the same
organization).
E.g., Sierra Club and Natural
Resources Defense Council v.
Interpace Corp., No. 83-0127C,
(W.D.N.Y., Feb. 14, 1983)
($25, 000 for environmental
projects selected by plaintiffs) ;
Sierra Club v. Philips ECG, No.
83-52T (W.D.N.Y. Jan. 25, 1983)
($15,000 to be used by Sierra
Club for projects of its choice
relating to Seneca River).
E.g., Connecticut Fund for the
Environment and Natural Resources
Defense Council v. Pfizer Inc.,
No. H 85-86 (D.Conn. Jan. 30,
1985) (at least $25,000 to "The
Open Space Institute, a 501C(3)
tax exempt charitable
organization").
36
The United States has protested that
payments to private groups in lieu of
civil penalties are improper and may be
illegal, /° but such agreements have
nonetheless been approved by the district
courts.
In addition to contributions in lieu
of penalties, the consent agreements
usually provide for substantial attorneys
fees and other litigation charges to be
paid to the plaintiff organizations. Such
fees sometimes exceed the amount of the
15. In its amicus brief in the court
below, the United States argued
that "all civil penalties
assessed in this action must be
deposited with the United States
Treasury." Brief at n. 18. In
its amicus brief on the
constitutionality of the citizen
suits provision in Student Public
Interest Research Group of New
Jersey v. Monsanto, 600 F.Supp.
1474 (D.N.J. 1984), the United
States went so far as to argue
that an environmental plaintiff
whicn settled a citizen suit for
a payment ‘to itself couid be
37
penalty or “contribution." aS
A comprehensive picture of the pattern
of citizen suits on a nationwide basis is
difficult to provide. But a view of those
notices filed in Connecticut is at least
instructive, and may be representative of
the nationwide practice.
16.
[Footnote Continued)
considered in violation of the
Miscellaneous Fees Act, 31 U.S.C.
§3302(c), which requires "l(a]
person having custody or
possession of public money" to
deposit it in the Treasury.
Brief, n. 31.
E.g., Student Public Interest
Research Group of New Jersey and
Natural Resources Defense Council
v. J.1. Baker Chemical Co., No.
83-685, (D.N.J., Jan. 19, 1984)
($10,000 civil penalty payable to
U.S. Treasury and $29,000 in
attorneys’ fees and other costs
payable to plaintiffs); Hudson
River Sloop Clearwater, Inc., and
Natural Resources Defense Council
v. White Mop Wringer Co., No.
82-CV-1306 (N.D.N.Y., June 12,
1984) ($15,000 to Open Space
Iastitute and up to $23,000
attorneys fees and other
litigation expenses).
38
The sudden upsurge of citizen suit
activity in Connecticut began in
September, 1983, with the filing of 21
Notices of Intent. The Notices were filed
jointly by the Connecticut Fund for the
Environment and the Natural Resources
Defense Council, and, except for the
recitation of the particulars of the
discharges, locations, and dates which
allegedly violated the Act, the format and
language of each Notice is identical.
From 1983 through the present date,
47 Notices are known to have been filed in
Connecticut, 42 of which have been filed
by CFE and NRDC. Of those 42 Notices
filed, two have gone to judgment on the
merits, )’ and three are still pending.
17. CFE and NRDC vy. Job Plating Co.,
623 F.Supp. 207 (1985), Motion
for Summary Judgment decided in
favor of plaintiffs on Sept. 27,
1985, on basis that jurisdiction
is available for civil penalties
for purely past violations,
39
The remaining 37 have been settled, 10
prior to the filing of a Complaint and the
other 27 after suit had been instituted.
According to a recent newspaper
accounting, the settlements of the 28
litigation cases in Connecticut have
netted at least $916,500 in environmental
contributions in lieu of penalties, and an
additional $484,250 in attorneys fees to
the plaintiff organizations. D.P. Jones,
"Activists Pressure Polluters", Hartford
Courant, October 6, 1986, p. 1, quoting
counsel for CFE. Figures for the 10
matters settled prior to suit are not
known.
(Footnote Continued]
settled for $77,500 after Court
referred parties to Gwaltney
lower court ruling for
plaintiffs; CFE and NRDC vy.
Contract Plating Co., 631 F.Supp.
1291 (1986), citizen suit barred
by State's diligent prosecution
of prior suit.
40
These figures are presented not in dispute
of their appropriateness as to any given
case or fact pattern -- at least with
regard to any civil penalties in the
nature of prospective relief -- but only
to offer some indication of the magnitude
of the current use of the citizen suit
Strategy, and particularly by a small
group of six organizations. The
availability of environmental
contributions, sometimes directly to the
plaintiff organization itself, as well as
substantial attorneys fees for what is a
relatively simple assembly-line type of
litigation, provides 4 significant
incentive to bring such litigation. This
Congress clearly did not intend in the
citizen suits provision of the Clean Water
Act.
One further point of pragmatism should
perhaps be noted. The enforcement powers
of the EPA and its delegated state
41
agencies granted by the Act include both
injunctive relief and penalty provisions.
The primary goal of the statute being to
achieve full and prompt compliance, a
regulatory authority may well choose to
forego the imposition of a penalty as a
means, whether informally by discussion or
more formally by consent order, to
persuade a more immediate or comprehensive
corrective measure. This flexibility to
determine the appropriate enforcement
priorities is reflected in the EPA
Enforcement Policy. EPA Civil Penalty
Policy, Env't Rep. (BNA) (Fed Laws)
41:2991 (1984). That the use of citizen
suits for civil penalties for purely past
violations interferes with the setting ol
such enforcement priorities is apparent
from the facts of the instant case.
Gwaltney undertook corrective measures
to bring itself into full compliance, all
with notice to and the approval of the
42
em
State Water Control Board, which then
declined to press for penalties for past
violations. Petition at 3-4. To allow
private citizen groups to pick up the
enforcement cudgel which the agency, in
the exercise of its responsibility to
achieve compliance, had chosen to let lie,
is both impermissible under the Act and
unwise public policy.
CONCLUSION
For the reasons stated above, the
amicus respectfully submits that this
Court should grant the petition for writ
of certiorari in this case.
CONNECTICUT BUSINESS AND
INDUSTRY ASSOCIATION,
Amicus Curiae,
By its attorneys,
Wayne S. Henderson*
Patrick W. Hanifin
New England Legal Foundation
) 55 Union Street
Boston, Massachusetts 02108
(617) 367-0174
* Counsel of Record
| 43
APPENDIX A
CITIZEN SUIT NOTICES
All Notices Filed By Major
Year Notices Environmental Groups*
1978 1 Unknown
1979 ) Unknown
1980 6 Unknown
1981 6 Unknown
1982 19 15
1983 110 72
1984 174 124
1985 138 42
1986 ** 118 _45
TOTALS 558 298
*
**
Natural Resources Defense Council, Atlantic
States Legal Foundation, Connecticut Fund
for the Environment, Friends of the Earth,
Sierra Club, Student Public’ Interest
Research Group of New Jersey.
Partial results through approximately
September, 1986.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.