Amicus Curiae Brief — Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc.

No. 86-473

IN THE

Supreme Court of the United States

OCTOBER TERM, 1986

GWALTNEY OF SMITHFIELD, LTD..

. Petitioner,

CHESAPEAKE BAY FOUNDATION, INC.

and

NATURAL RESOURCES DEK ENSE COUNCIL,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Fourth Circuit

BRIEF OF AMICUS CURIAE

ROLLINS ENVIRONMENTAL SERVICES (NJ) INC.

WILLIAM H. LEWIS, IR.“

STEVEN SCHATZOW

DAVID G. TRIPP

THOMAS R. BARTMAN

MARIANNE M. LAMONT

1800 M Street, N.W.

Washington, D.C. 20036

(202) 872-5040

* Counsel of Record

Of Counsel:

MORGAN, LEWIS & BOcKIus

1800 M Street, N.W.

Washington, D.C. 20036

(202) 872-5000

WILSON - EPES PRINTING Cx Ine 789-0096 - WASHINGTON, D.C. 20001

TABLE OF CONTENTS

e —————

INTERESTS OF AMICUS CURIAE EE

INTRODUCTION AND SUMMARY OF ARGU-

MENT

ARGUMENT

THE AUTHORIZATION OF PRIVATE PROSE-

CUTION FOR CIVIL PENALTIES UNDER THE

CLEAN WATER ACT VIOLATES THE CON-

STITUTION’S SEPARATION OF POWERS........

A. The Authority To Prosecute For Civil Penalties

That The Clean Water Act Grants To Private

Citizens Is A Function The Constitution As-

signs Exclusively To The Executive

1.

Civil Enforcement Of Federal Law Is The

Quintessential Executive Function

Private Prosecutions For Civil Penalties

Under The Clean Water Act Constitute

Civil Enforcement Of Federal Law... a

Displacement Of The Executive’s Prosecu-

torial Discretion In And Of Itself Consti-

tutes An Impermissible Infringement On Its

Authority To Enforce Federal Laws

Private Prosecutions Under The Act Have

The Effect Of Overriding The Executive's

Exercise Of Prosecutorial Discretion

B. Authorizing Private Citizens To Prosecute For

Civil Penalties Violates The Appointments

Clause Because Congress Can Assign This Ex-

ecutive Function Only to Presidential Appoint-

11

13

ii

TABLE OF CONTENTS—Continued

1. The Executive’s Authority Under The Ap-

pointments Clause To Select Officers To Per-

form Executive Functions Has Been Inter-

| — ͤ!'—ꝛ—

2. Congress Authorization Of Federal En-

forcement Authority Being Carried Out By

Private Citizens, Like Its Selection Of Spe-

cific Individuals, Encroaches Impermissibly

On The Executive’s Appointments Power

3. Subjective Considerations, Such As Extent

Of Encroachment And Putative Improve-

ments In Government Efficiency, Are Not

8. ˙—]

4. Congress’ Otherwise Broad Powers Are Cir-

cumscribed So That Its Role In Designating

Federal Law Enforcers To Act On The

Public’s Behalf Is Limited To Choosing

Among Executive Officers

„%

iii

TABLE OF AUTHORITIES

CASES: Page

Americun Petroleum Institute v. EPA, 661 F.2d

r ...... 5, 13

Bowsher v. Synar, U.S. —, 106 S.Ct. 3181

(1986) ..-D, 7, 21, 23, 26, 28, 29

Buckley v. Valeo, 424 U.S. 1 (1976) We passim

Chesapeake Bay Foundation v. Bethlehem Steel

Corp., 608 F. Supp. 440 (D. Md. 1985) 9, 24, 29

Chesapeake Bay Foundation v. Bethlehem Steel,

Civ. No. Y-84-1620 (D. Md. January 30, 1987). 23

Commodity Futures Trading Commission v. Schor,

U.S. , 106 S.Ct. 3245 (1986) _............... 24

Confiscation Cases, 74 U.S. 454 (18699999 8,17

Connecticut Action Now, Inc. v. Roberts Plating

Co., 467 F.2d 81 (2d Cir. 1972) ............................. 29

CPC International, Inc. v. Train, 540 F.2d 1329

(8th Cir. 1976), cert. denied, 430 U.S. 966

EEE EE ESSE 13

Davis v. Passman, 442 U.S. 228 (1979) ....... 22, 23, 24, 29

First National Bank v. United Air Lines, 342 U.S.

. CO 2

FMC Corp. v. Train, 539 F. 2d 973 (4th Cir.

EE ES 5, 13

Hamker v. Diamond Shamrock Chemical Co., 756

e —— 1

Heckler v. Chaney, 470 U.S. 821 (1985) 11, 12, 13

Huntington v. Attrill, 146 U.S. 657 (1892) 9

Immigration and Naturalization Service v.

Chadha, 462 U.S. 919 (19827 7, 17, 19, 26, 27, 29

Industrial Union Department v. American Petro-

leum Institute, 448 U.S. 607 (1980) 28

In re: Application of President’s Commission On

Organized Crime, Subpoena of Scaduto, 763

EE 28

In Re: President’s Commission on Organized

Crime, Subpoena of Scarfo, No. 85-5539 (3d

r . 28

Jacklovich v. Interlake, Inc., 458 F.2d 923 (7th

e êÄF¼—— . in 29

iv

TABLE OF AUTHORITIES—Continued

Page

J.W. Hampton, Jr. & Co. v. United States, 276

e 7, 28

Kalaris v. Donovan, 697 F.2d 376 (D.C. Cir.),

cert. denied, 462 U.S. 1119 (1983) ....................... 28

Marathon Oil Company v. EPA, 564 F.2d 1253

// eee ee 13

Melcher v. Federal Open Market Committee, 644

0 OB BS eee 21, 23

Middlesex County Sewerage Authority v. National

Sea Clammers’ Association, 453 U.S. 1 (1981).. 10

Myers v. United States, 272 U.S. 52 (1926) 8, 18, 19

Nathan v. Smith, 737 F.2d 1069 (D.C. Cir.

KXKK 0 - dieaiieubinibcmtaantantalsin 12

Nixon v. Administrator of General Services, 433

0... ahidimntimeiiesndiinaiiniaiiaianininn 7, 28

Northern Pipeline Construction Co. v. Marathon

Pipeline Co., 458 U.S. 50 (198272 7, 19, 24, 25

Sierra Club v. Aluminum Cea of America, 585 F.

EB 8 Ok 9

SPIRG v. Monsanto Co., 600 F. Supp. 1474

, —— —x a etien 23, 24

Springer v. Philippine Islands, 277 U.S. 189

— ͤ . —— 8, 21

Synar v. United States, 626 F. Supp. 1374 (D.D.C.

1986) (three judge panel), aff'd sub nom.

Bowsher v. Synar, U.S. ——, 106 S.Ct.

Ue I 7

United States v. Cox, 342 F.2d 167 (5th Cir.),

cert. denied, 381 U.S. 935 (19650) 11

United States ex. rel. Marcus v. Hess, 317 U.S.

r Casini cee cate, 29

United States v. Niron, 418 U.S. 683 (1974) 11

Weyerhaeuser Co. v. Costle, 590 F.2d 1011 (D.C.

r UI tN aes tS eR 13

STATUTES AND REGULATIONS:

Federal Water Pollution Control Act, 33 U.S.C.

/ — —————— passim

Clean Air Act, 42 U.S.C. § 7604 (a) 17

V

TABLE OF AUTHORITIES-—Continued

Page

Resource Conservatior and Recovery Act, 42

r ee 17

Comprehensive Environmental Response, Com-

pensation and Liability Act, 42 U.S.C. § 9601.... 17

rr ee eee 10

False Claims Act, 31 U.S.C. § 37209” 29

Federal Trade Commission Act, 15 U.S.C. §§ 41,

S ( 10

Sherman Act, 15 U.S.C. $ 211 ....................................... 10

IN THE

Supreme Court of the United States

OCTOBER TERM, 1986

No. 86-473

—-

GWALTNEY OF SMITHFIELD, LTD.,

“ Petitioner,

CHESAPEAKE BAY FOUNDATION, INC.

and

NATURAL RESOURCES DEFENSE COUNCIL,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Fourth Circuit

BRIEF OF AMICUS CURIAE

ROLLINS ENVIRONMENTAL SERVICES (NJ) INC.

INTERESTS OF AMICUS CURIAE

Pursuant to Rule 36 of the Rules of the Supreme

Court, the Amicus Curiae, Rollins Environmental Serv-

ices (NJ) Inc., files this brief in support of petitioner,

Gwaltney of Smithfield, Ltd. Amicus Curiae adopts and

supports petitioner’s argument for reversal of the deci-

sion below on grounds that private prosecutions under

the Clean Water Act may not be brought to seek civil

penalties for purely past violations, as the Fifth Circuit

held in Hamker v. Diamond Shamrock Chemical Co., 756

F.2d 392 (5th Cir. 1985). This brief is submitted to

supplement that argument by bringing to the Court’s

1 Letters from all parties consenting to the filing of this brief have

been filed with the Clerk of this Court. .

2

attention serious questions about the constitutionality of

the statutory authority at issue. Since acceptance of peti-

tioner’s argument would obviate the need to address those

questions in this case, Amicus Curiae does not request

that the Court rule on them at this time. It merely

wishes to urge that the Court not preclude a full con-

sideration of the authority’s constitutionality in deciding

the statutory construction question that is presented.“

Rollins Environmental Services (NJ) Inc. (“Rollins”),

the owner and operator of a commercial hazardous waste

treatment facility in Bridgeport, New Jersey, is a defend-

ant in NJPIRG v. Rollins Environmental Services (NJ)

Inc., Civil Action No. 86-3438. NJPIRG is a private

prosecution now pending before the District Court for

the District of New Jersey in which civil penalties are

sought under the same section of the Federal Water

Pollution Control Act, 33 U.S.C. 1251 et seg. (the “Clean

Water Act” or the Act“) as the one this Court is asked

2 Respondents sought in this case the recovery of penalties for

purely past violations. Thus, a decision of this Court to find such

violations not punishable under the private prosecution authority

would moot the constitutional questions raised. However, despite

such a ruling, in other factual circumstances where the Clean Water

Act problems at issue had not already been completely resolved, the

private prosecution authority would be available for citizen-

initiation of actions for civil penalties, and the constitutional

infirmities would be equally evident and serious. A decision in this

case that purely past violations are not within the scope of the

authority would thus simply postpone the day that such infirmities

need be addressed.

In urging the Court’s cognizance of our views, we would note

Mr. Justice Jackson’s observation that “sometimes the path that we

are beating out by our travel is more important to the future way-

farer than the place we choose to lodge.” First National Bank v.

United Airlines, 342 U.S. 396, 398 (1952) (concurring opinion).

Drawing upon this metaphor, we in part urge the contrary: namely,

that the place the Court here “chooses to lodge” is indeed quite

important. However, we at the same time respectfully urge that the

Court’s decision do nothing to impede those on different journeys

in traveling the path that we are beating out” in this brief.

3

to construe in this case (§ 505). Plaintiffs in that action,

Public Interest Research Group of New Jersey, Inc.

(“NJPIRG”) and Friends of the Earth, have filed notice

that they will move jointly in NJPIRG for partial sum-

mary judgment. In their complaint, plaintiffs seek,

among other relief, civil penalties for past violations as

respondents did in this case. Thus, the decision of this

Court will ineluctably be a major factor in determining

the extent to which Amicus Curiae may be liable in

NJPIRG for civil penalties.

Rollins in NJPIRG has challenged the constitutionality

of the Clean Water Act’s private prosecution authority

under which massive civil penalties may be imposed—

the authority also at issue here—as a violation of the

Constitution’s separation of powers. Accordingly, Rollins

respectfully submits that crucial to the Court’s informed

review of the issues raised in this case is the presenta-

tion of the analysis upon which its constitutional chal-

lenge is based. '

INTRODUCTION AND SUMMARY OF ARG**MENT

Respondents’ prosecution of petitioner under the Clean

Water Act resulted in the imposition of civil penalties of

some $1.3 million under the Act’s private prosecution au-

thority. As interpreted by the courts below, that au-

thority is identical in all substantive respects to that which

the Act also delegates to the Executive Branch. Congress’

establishment of such an independent private scheme for

prosecuting alleged violators of federal law conflicts with

the Constitution’s grant of powers to the Executive. Un-

der Article II, the prosecution of civil actions to enforce

federal law and the exercise of prosecutorial discretion

with respect to the pursuit of such actions are within the

exclusive purview of the Executive Branch. Since Con-

gress can assign such executive functions only to Presi-

dential appointees, the Act’s authorizing of private citi-

zens to prosecute for civil penalties violates the separa-

tion of powers mandate of the Constitution.

4

Prior to enactment of this far-reaching authority in

1972, Congress had apparently never previously author-

ized such private prosecution in any other statute.* Al-

though it was little used for about a decade, this au-

thority increasingly has been invoked around the country

in recent years—so much so that by 1983 private citizens

initiated more prosecutions under the Clean Water Act

than did federal enforcement officials.

The constitutional prerogatives that this private prose-

cutorial authority conflicts with are the Executive’s duty

to “take Care that the Laws be faithfully executed,” and

the concomitant privilege—also provided for under Arti-

cle II—to appoint officers to execute federal law. En-

forcement of federal laws for protection of the public

interest is among the most basic of the functions the

Constitution bestows upon the Executive. Equally in-

disputable is the corollary principle apposite to this chal-

lenge—namely, that prosecution for civil penalties pay-

able to the federal Treasury is a central part of the

Executive’s civil enforcement jurisdiction. Indeed, law-

suits seeking civil penalties have been a favored avenue

of the federal government for prosecuting violations of

the wide range of congressionally-mandated regulatory

requirements.

Congress unquestionably has a substantial role in reg-

ulating the execution of federal law, but the Constitution

carefully eireumseribes that role in major respects—as

becomes apparent upon reviewing pertinent separation of

powers decisions of this Court. Among Congress’ powers

are the right to establish whatever limitations on execu-

tion it deems appropriate- and are otherwise constitu-

tional; it also may hold oversight hearings with respect

The qui tam authority provided for in a few statutes—which has

been suggested as a possible precedent—is not analogous to the pri-

vate prosecution authority in the Clean Water Act and subsequent

environmental statutes. See p. 29, n.23, infra.

5

to the administration and enforcement of federal law;

it may even authorize private individuals to bring actions

to seek damages or injunctive relief that may incidentally,

and possibly significantly, benefit the public interest.

What Congress cannot do is delegate the “execution of

federal law“ such as enforcement of federal statutes on

behalf of the broader public interest—to persons other

than Officers of the United States appointed by the Presi-

dent. Buckley v. Valeo, 424 U.S. 1, 122 (1976). Buckley

leaves no doubt that this is an inviolable separation of

powers principle. Id. Furthermore, in the wake of

Bowsher °. Synar, U.S. ——, 106 S.Ct. 3181

(1986), even where the President initially appoints an

official authorized to execute federal law, Congress cannot

control the removal of the official. Thus, in determining

who is to be responsible for the execution of laws on be-

half of the public, Congress is limited to deciding which

executive officials are to perform such functions.

The Constitution’s establishment of this fundamental

precept is not just an exercise in formalism, as is well

demonstrated in the context at issue. In establishing

clean water restrictions, the federal Environmental Pro-

tection Agency (“EPA”) has set limits at levels that are

not expected to be met 100% of the time. See e.g. FMC

Corp. v. Train, 539 F.2d 973, 985-86 (4th Cir. 1976) ;

American Petroleum Institute v. EPA, 661 F.2d 340,

351 (5th Cir. 1981). Congress, though, has authorized

identical civil penalty requirements in the Clean Water

Act for all violations—without regard to magnitude or

consistency with initial permit assumptions. Thus, sub-

stantial executive discretion is of necessity implicitly

sanctioned, both in deciding whether to bring lawsuits

and in determining amounts of penalties sought. The

government’s exercise of this broad discretion has been

accomplished, in part, through EPA’s use of an elaborate

enforcement policy that takes into account a vast array

of factors.

In contrast to this measured approach to enforcement,

respondents and other private groups routinely decide to

bring lawsuits simply because a report submitted by an

industrial facility to EPA or a state agency shows re-

quired permit limits to have been exceeded, even though

further investigation might show that the violations at

issue may have been contemplated at the time the limit

was established, or that no enforcement action might be

appropriate under the federal enforcement policy. The

presence of these mitigating circumstances notwithstand-

ing, the interpretation given by the courts below to the

private prosecution authority, which has the effect of

sanctioning prosecution of any violations for civil penal-

ties, allows respondents and others to obtain settlements

providing for sizable payments to private groups they

choose to designate—even though private damages or

other private payments clearly are not authorized, only

civil penalties payable to the federal Treasury.

Regardless of whether or not private citizens carry

out their prosecutorial role under the Act in a reasonable

manner, though, their intervention will in every event

act to displace the Executive’s exercise of prosecutorial

discretion, which has long been recognized as an integral

part of its power to enforce the law. Given the broad

range of factors that must be taken into account in de-

ciding whether and how to proceed in addressing ap-

parent Clean Water Act violations, the constitutional

guarantee that such discretion must reside only with the

Executive merely confirms the soundness of the Constitu-

tion’s framework.

Buckley v. Valeo, the seminal ruling of the Court that

is relevant here, appears moreover to stand as a clear

precedent in support of the conclusion that the Act’s pri-

vate prosecution authority to seek civil penalties should

be found unconstitutional. There, the Court held that,

under the Appointments Clause, similar civil enforcement

authority under the federal elections law could only be

carried out by persons appointed by the President.

7

ARGUMENT

THE AUTHORIZATION OF PRIVATE PROSECUTION

FOR CIVIL PENALTIES UNDER THE CLEAN WATER

ACT VIOLATES THE CONSTITUTION’S SEPARA-

TION OF POWERS. f

A. The Authority To Prosecute For Civil Penalties That

The Clean Water Act Grants To Private Citizens Is A

Function The Constitution Assigns Exclusively To The

Executive.

Article II of the Constitution vests the President with

the power and duty to “take Care that the Laws be faith-

fully executed. Art. II, §3.° Each Branch is to

“exercise one of the governmental powers recognized by

the Framers as inherently distinct.” Northern Pipeline

Construction Co. v. Marathon Pipe Line Co., 458 US.

50, 60 (1982); see also J.W. Hampton, Jr. & Co. v.

United States, 276 U.S. 394, 406 (1928). As Mr. Chief

Justice Burger stated in his dissenting opinion in Nixon

v. Administrator of General Services, 433 U.S. 425

(1977), the separation of powers is “in no sense a

formalism. It is the characteristic that distinguished our

Constitution.“ Id. at 506.

5 The Executive’s responsibilities were separated from those of

the Legislature based upon the philosophy that [when the Legisla-

tive and Executive powers are united in the same person or body,

.. . there can be no liberty, because apprehensions may arise lest

the same Monarch or Senate should enact tyrannical laws to execute

them in a tyrannical manner.” The Federalist No. 47 (J. Madison)

(Cook ed.) (emphasis in original). The Framers also had “the

profound conviction .. that the powers conferred on Congress

were the powers to be most carefully circumscribed.” Immigration

and Naturalization Service v. Chadha, 462 U.S. 919, 947 (1982).

Accordingly, the Constitution makes the Executive “separate and

wholly independent” from the Legislative Branch. Bowsher v. Synar,

106 S.Ct. 3181, 3186 (1986).

® The court in Synar v. United States, 626 F. Supp. 1374 (D. D.C.

1986) (three judge panel), aff'd sub. nom. Bowsher v. Synar,

U.S. ——, 106 S.Ct. 3181 (1986), recently discussed the Framers’

approach to limiting government through the separation of powers:

Mid-twentieth century Americans have become accustomed to

assuming that the central constitutional method of protecting

1. Civil Enforcement Of Federal Law Is The Quintes-

sential Executive Function.

Of the functions the Constitution delegates to the Ex-

ecutive, none is more fundamental than the duty to

enforce federal laws such as the Clean Water Act so

as to protect the public interest. See, e.g., Myers v. United

States, 272 U.S. 52, 117 (1926). Moreover, as this Court

stated in Buckley v. Valeo, [a] lawsuit is the ultimate

remedy for a breach of the law, and it is to the Presi-

dent . . . that the Constitution entrusts” the carrying out

of that responsibility. 424 U.S. at 138.

The Court made a similarly definitive statement more

than a century before:

[I]t is clear that all [civil litigation] so far as the

interests of the United States are concerned, are

subject to the direction, and within the control of,

the Attorney-General.

Confiscation Cases, 74 U.S. 454, 458-459 (1869). The

Court later was equally unequivocal in Springer v. Phil-

ippine Islands in stating that “(llegislative power, as

distinguished from executive power, is the authority to

make laws, but not to enforce them or appoint the agents

charged with the duty of such enforcement. The latter

are executive functions.” 277 U.S. 189, 202 (1928).

individual freedoms from being overridden by government ukase

is to prevent governmental intrusions into certain defined zones

of individual conduct. Thus, we quite rightly applaud actions

enshrining constitutional rights to freedom of speech, religion,

privacy, and equal protection.

Those who wrote the Constitution, however, did not employ this

technique. Rather, they emphasized the virtues of limiting gov-

ernmental power and then dividing the remaining power among

autonomous government compartments. Hence, most of our

constitutional rights of individual liberty or autonomy are

stated in constitutional amendments. The body of the Constitu-

tion as originally written is principally an exercise in applying

the concepts of federalism and separation of powers.

Id. at 1403-1404, quoting Krattenmaker, “Article III and Judicial

Independence, Why the New Bankruptcy Courts are Unconstitu-

tional,” 70 Geo. L.J. 297, 301-302 (1981).

9

2. Private Prosecutions For Civil Penalties Under The

Clean Water Act Constitute Civil Enforcement Of

Federal Law.

The private civil prosecution authority under the Clean

Water Act, as interpreted by the courts below, is coex-

tensive in every detail with that of the federal govern-

ment—with the single proviso that if the government

itself has already initiated civil or criminal action, private

prosecution cannot additionally be pursued. In fact, pri-

vate citizens stand squarely in the federal government’s

shoes in prosecuting these punitive actions," with the

full panoply of civil enforcement powers available to

be exercised. See Sierra Club v. Aluminum Co. of

America, 585 F. Supp. 842, 853 (N. D. N. V. 1984);

Chesapeake Bay Foundation v. Bethlehem Steel Corp.,

608 F. Supp. 440, 449 (D. Md. 1985) (citizens “seek the

enforcement of federal law”). Wielding the govern-

ment’s broad discretion is allowed, moreover, in what-

ever way the private prosecutor deems appropriate.

The breadth of the Act’s authorization for private

citizens to bring civil punitive actions could hardly be

greater. Prosecution is authorized for any alleged viola-

7 Prosecutions that seek the imposition of penalties are recognized

to be punitive, and for the benefit of the public as a whole. Addi-

tionally, they are clearly distinguishable from actions that are

remedial in nature. In Huntington v. Attrill, 146 U.S. 657, 13 S.Ct.

224 (1892), this Court stated:

In the municipal law of England and America, the words penal“

and “penalty” have been used in various senses. Strictly and

primarily, they denote punishment, whether corporal or

pecuniary, imposed and enforced by the state for a crime or

offense against its laws.

Statutes giving a private action against the wrongdoer are

sometimes spoken of as penal in their nature, but in such cases

it has been pointed out that neither the liability imposed nor

the remedy given is strictly penal. . . .

The test whether the law is penal in the strict and primary

sense, is whether the wrong sought to be redressed is a wrong

to the public or a wrong to the individual

13 S.Ct. at 227-228 (citations omitted).

10

tion of the major federal water pollution clean-up re-

quirements. Civil penalties up to $25,000.00 per day

per violation—the same penalties authorized in prosecu-

tions by the federal government—can be sought in fed-

eral district court by anyone meeting a minimal stand-

ing requirement.

Furthermore, private prosecutions for civil penalties

under the Clean Water Act are intended to punish vio-

lators in the same way as governmental prosecution.

Protection of private rights is not their purpose at all.

Indeed, as this Court has confirmed, Congress specifically

rejected the establishment of a private right for dam-

ages. Middlesex County Sewerage Authority v. National

Sea Clammers Assoc., 453 U.S. 1, 21-22 (1981).

Congressional intent not to authorize the traditional

“private attorney general’ action under the Clean Water

Act is thus unambiguous. Moreover, a review of federal

statutes providing for that form of action, such as the

antitrust statutes, highlights the existence of major dif-

ferences between grants of such authority and the private

prosecution authority challenged here. For example, sec-

tion 4 of the Clayton Act authorizes “[a]ny person in-

jured in his business or property . . to recover dam-

ages.” 15 U.S.C. § 15. Enforcement on behalf of the

public interest (as opposed to such private remedial ac-

tions) is, by contrast, vested in federal agencies.

Though the private remedy the antitrust laws author-

ize (which includes authority for an award of treble

damages) additionally serves a public purpose in

ring antitrust violations, the relief clearly has the pri-

mary objective of remedying private injury. See gen-

erally, L. Sullivan, Handbook of the Law of Antitrust

769-774, 785 (1977); P. Areeda & D. Turner, 2 Anti-

trust Law § 331 (1978). Private prosecutions for civil

See, e.g., 15 U.S.C. § 41, et seg. (Federal Trade Commission Act) ;

15 U.S.C. § 13 (Clayton Act § 2, authorizing Federal Trade Commis-

sion prosecution of actions for price discrimination) ; and 15 U.S.C.

§ 21 (Sherman Act § 4, delegating enforcement to various agencies)

11

penalties to enforce the Clean Water Act, on the other

hand, seek the imposition of punitive measures to vindi-

cate wrongs against the public. Thus, they are only

superficially analogous to, and easily distinguishable

from, private attorney general actions authorized under

other laws.

3. Displacement Of The Executives Prosecutorial Dis-

cretion In And Of Itself Constitutes An Impermissi-

ble Infringement On Its Authority To Enforce Fed-

eral Laws.

The Executive’s exercise of prosecutorial discretion in

determining whether and how to proceed is a major ele-

ment of its authority to enforce federal law. By author-

izing private citizens to supplant federal enforcers in

making complex civil penalty prosecution decisions, the

Clean Water Act thus not only permits significant en-

croachment upon the Executive’s authority to initiate

lawsuits, it also seriously undermines the concomitant

prerogative of law enforcement—prosecutorial discretion.

That such discretion is entrusted to the Executive and

generally not even reviewable by the courts is clear.

“(T]he Executive Branch has exclusive authority and

absolute discretion to decide whether to prosecute a case.“

United States v. Nixon, 418 U.S. 683, 693 (1974) ; United

States v. Cox, 342 F.2d 167, 171 (5th Cir.), cert. denied,

381 U.S. 935 (1965) (as “an incident of separation of

powers,” courts are not to interfere with prosecutorial

discretion). And this key component of executive au-

thority is authorized in enforcement of all laws, not

merely criminal statutes. Heckler v. Chaney, 470 U.S.

821, 831 (1985).

As the Court stated in Heckler v. Chaney in a factual

context that involved civil enforcement of a federal

statute,

This Court has recognized on several occasions over

many years that an agency’s decision not to prose-

cute or enforce, whether through civil or criminal

12

process, is a decision generally committed to an

agency’s absolute discretion. (Citations omitted.)

[Wie recognize that an agency’s refusal to institute

proceedings shares to some extent the characteristics

of the decision of a prosecutor in the Executive

Branch not to indict—a decision which has long been

regarded as the special province of the Executive

Branch, inasmuch as it is the executive who is

charged by the Constitution to “take care that the

Laws be faithfully executed.” U.S. Const., Art. II,

§ 3.

Id. at 831-832. The Court there elaborated further on

this “presumption of unreviewability of decisions not to

enforce,” indicating that the presumption could be over-

come if Congress expressly gave courts the authority to

intervene or it otherwise acted to regulate agency action.

However, nowhere is there any suggestion that granting

private citizens the unfettered, standardless right to over-

ride the Executive’s exercise of prosecutorial discretion

would be permissible. Id.

The Court also pointed in Buckley v. Valeo to “(t]he

Commission’s enforcement power, exemplified by its dis-

cretionary power to seck judicial relief,” 424 U.S. at 138

(emphasis added), as an important executive function

exclusively assigned “to the President.” Similarly, in

holding that prosecutorial discretion resides solely with

the Executive, the D.C. Circuit Court of Appeals re-

cently stated, [if the execution of the laws is lodged

by the Constitution in the President, that execution may

not be divided up into segments. ... It is all the law

enforcement authority and it all belongs to the Execu-

tive.” Nathan v. Smith, 737 F.2d 1069, 1079 (D.C.

Cir. 1984). The D.C. Circuit further pointed out that

Congress’ undertaking “to control the law enforcement

power of the President” by giving “courts authority to

issue appropriate orders. . at the behest of private

persons” would, “[o]n the face of the Constitution, .. .

be a highly dubious attempt.” Jd. at 1078.

13

4. Private Prosecutions Under The Act Have The

Effect Of Overriding The Executive’s Exercise Of

Prosecutorial Discretion.

The need to exercise prosecutorial discretion in decid-

ing whether and how to respond to any violation is en-

demic in view of the way that Clean Water Act permits

are developed and the range of enforcement alternatives

that are available. Since, as noted supra, permit limi-

tations are not expected to be achievable at all times,

both EPA and the federal courts have recognized that

the exercise of enforcement discretion is an inherently

necessary element of the regulatory program under the

Act. See Weyerhaeuser Company v. Costle, 590 F.2d

1011, 1057 (D.C. Cir. 1978); CPC International, Inc.

v. Train, 540 F.2d 1329, 1338 (8th Cir. 1976), cert. denied,

430 U.S. 966 (1977) ; see also FMC Corporation v. Train,

539 F.2d 973, 986 (4th Cir. 1976) (holding that EPA

must provide protection against liability where permit

exceedances may result from exceptional incidents beyond

the reasonable control of a permittee) ; American Petro-

leum Institute v. EPA, 661 F.2d 340, 350-52 (5th Cir.

1981) ; Marathon Oil Company v. EPA, 564 F.2d 1253,

1272-1273 (9th Cir. 1977). EPA's assertion of its au-

thority to exercise enforcement discretion also is consist-

ent with prosecutorial discretion having been found to

be within the authority of other Officers of the United

States. See Heckler v. Chaney, 470 U.S. at 831-832.

Enforcement decisions in response to violations of Clean

Water Act permit restrictions involve the exercise of

prosecutorial discretion in at least four different con-

texts. First, the Agency must determine whether the

violation warrants any response at all. Second, it must

determine what type of response is warranted. Third, if

the Agency decides to initiate prosecution and pursue

penalties, it must determine the magnitude of penalties

that should be sought. And fourth, if prosecution is

brought, the government must make all the decisions

requisite to prosecuting and concluding such actions.

14

To assist it in exercising the requisite discretion, the

Agency has developed a definition of significant noncom-

pliance which considers the number and magnitude of

violations in determining whether any enforcement re-

sponse at all is appropriate. In those situations where

EPA decides a response is warranted, the Agency must

then proceed to consider what type of response is appro-

priate. Such enforcement may be either informal or

formal. If formal enforcement is to be pursued, EPA

has three mechanisms from which it can choose. It may

issue an administrative order requiring the discharger

to take certain action to come into compliance within a

specified time period; it may pursue, under recently en-

acted amendments to the Act, administrative civil pen-

alties for violations; or it may prosecute the violations

in federal court.

Determining the appropriate course to follow thus in-

volves the exercise of significant prosecutorial discretion,

with EPA required to make case-by-case evaluations tak-

ing into account a variety of highly subjective considera-

tions. EPA's clear decision to give enforcement priority

to taking steps to bring facilities into compliance, rather

than pursuing civil penalties, is evident from statistics

that compare the number of administrative orders issued

to the number of referrals to the Department of Justice

for civil prosecution. In 1983, for instance, EPA made

56 such referrals under the Clean Water Act, while it is-

sued 781 administrative orders.

For those limited cases where EPA decides to prosecute

alleged violations, the Agency must decide what amount

of penalties should be sought. Although the statute pro-

vides for potentially massive penalties (up to $25,000

per day per violation now, after being increased from

$10,000 per day earlier this year by Congress), EPA

has developed a complex penalty policy to estimate ap-

propriate penalties for varying circumstances. Under

this policy, the Agency evaluates both the gravity of the

violation and the economic benefit that the discharger

15

has received by failing to meet the terms of its permit.

Depending upon the facts at issue, this element of en-

forcement discretion can lead to EPA’s making signifi-

cantly different penalty demands.

Finally, once prosecutions are initiated, decisions must

be made at every step regarding whether prosecution

continues to be justified, how it should be pursued, and

whether settlement alternatives are appropriate to pro-

tect the public interest. Thus, continually making diffi-

cult judgments and exercising broad prosecutorial dis-

cretion are inherent in such prosecutions.

The process that EPA utilizes is in stark contrast to

the one private groups employ in their Clean Water Act

prosecutions. The citizens’ groups start at the same

point as EPA and state agencies, by reviewing discharge

monitoring reports (“DMR’s”)—reports that EPA re-

quires industrial facilities to submit—to determine

whether there are any violations. However, subsequent to

that point, the groups’ responses vary dramatically from

those of regulatory agencies. Often, the groups have no

knowledge of the facility, its history, the basis for the

permit limits, the attempts the facility has made to

achieve compliance, or the gravity of the harm that may

have been caused by the violations. Thus, they cannot

and do not exercise informed prosecutorial discretion in

determining whether violations are significant and

whether they require further action.

It also seems clear that their motivations for bringing

such actions are in many cases not the same as those of

EPA or state agencies.“ While governmental prosecutions

To understand additionally why private prosecutions are so

different from federal or state enforcement actions, one must further

review the actual process utilized by plaintiffs and their attorneys

in specific actions. Typically, these cases do not grow out of individ-

ual citizens’ concerns that a facility in their vicinity may be affecting

them and interfering with their enjoyment of the nearby waters.

Instead, in recent years they have resulted primarily from a well-

orchestrated effort on the part of a small number of law firms and

16

have focused, as noted above, primarily on achieving com-

pliance, private prosecutions have been directed more at

obtaining monetary penalties. Numerous such lawsuits

have been brought in situations where facilities are no

longer violating their permits; where they have ceased

to operate altogether; or where facilities are no longer

operating under permits because they have become con-

nected to municipal treatment systems.

In seeking penalties, private prosecutors thus obviously

are motivated differently than governmental agencies.

Yet, in contrast with private attorney generals, they

cannot properly be motivated by self-interest. However,

the record of private prosecutors making settlements con-

ditional on payments being made to private groups,“

rather than the federal Treasury, shows the conflicts that

in fact have arisen in private prosecutions. Indeed, a

significant level of conflict is inherent by virtue of the

national environmental groups to investigate DMRs in EPA and

state files and to identify major dischargers with significant numbers

of purported violations. This investigation is often undertaken by

the attorneys under a general retainer agreement. Once the attor-

neys complete their very narrow investigation, they then recommend

those dischargers against whom they feel prosecutions should be

brought. The recommendations are submitted to the plaintiff organ-

izations which basically rubber stamp them and authorize their

attorneys to proceed. The lawyers then serve the 60-day notice

required by the Act and proceed to file a complaint if an “adequate”

settlement offer is not made by the potential defendant. The lawyers,

if NJPIRG, supra, is representative, pursue settlement discussions

without any involvement of their clients.

10 The retainer agreement for example, between plaintiffs in

NJPIRG, supra, and their attorneys contemplated that settlement

amounts would be paid to private groups rather than to the federal

Treasury, as the law requires. Consistent with this intent, a survey

of 13 settlements in private prosecutions brought in 1983 shows

virtually all to have been settled through payments being made to

various private groups. In the sample reviewed, the settlement

amounts paid to such groups totalled in excess of $500,000. Private

prosecutions typically seek civil penalties at the outset, but settle-

ments later reached provide for payment to private groups.

17

private lawyers’ desire to achieve settlements that, at a

minimum, provide for payment of their attorneys’ fees.“

The unfairness resulting from enforcement of the

Act’s requirements without the Executive’s control, and/

or despite the intentional exercise of prosecutorial discre-

tion, is far from an academic issue. In NJPIRG, supra,

for example, both EPA and New Jersey reviewed various

problems Rollins experienced in meeting its permit limi-

tations. Both authorities then exercised their discretion

not to take judicial enforcement action despite extensive

knowle ge about the problems. The authorities’ consid-

ered judgment notwithstanding, private citizens are still

permitted under the Act to intervene and override the

experts’ opinion.

In sum, the Clean Water Act slices off from the Ex-

ecutive a discretion-laden portion of its responsibility en-

forcing key federal requirements—authority of a kind

apparently never previously granted in any other stat-

ute. By so doing, Congress acted in clear contravention

of the Constitution’s exclusive vesting in the Executive of

the power to vindicate public rights by filing lawsuits,

Confiscation Cases, 74 U.S. at 458-459."

11 Settlements reached in the private prosecutions described in

n.10 supra, provided for payment of attorneys’ fees that were almost

four times the amount of penalties payable to the federal Treasury.

12 Earlier grants of authority to private citizens in environmental

statutes had merely authorized the bringing of suits for injunctive

relief. See e.g., Clean Air Act, 42 U.S.C. § 7604 (a). More recently,

though, the Resource Conservation and Recovery Act, 42 U.S.C.

$$ 6901, 6925, and the Comprehensive Environmental Response,

Compensation and Liability Act, 42 U.S.C. § 9601, [206] (as

amended), have incorporated private prosecution provisions similar

to that of the Clean Water Act.

In fact, the appointment of unnamed private citizens to exer-

cise executive enforcement authority raises a significant set of con-

stitutional concerns in addition to those posed in prior cases by

Congress’ vesting of executive authority in its own officers, because

citizen prosecutors are not under the control of any branch of gov-

ernment. Congress’ establishment of the one-House veto in Chadha

18

B. Authorizing Private Citizens To Prosecute For Civil

Penalties Violates The Appointments Clause Because

Congress Can Assign This Executive Function Only To

Presidential Appointees.

In accord with their intention to establish an independ-

ent Executive Branch, the Framers recognized that the

power and duty to faithfully execute the laws must be

accompanied by the Executive’s right to choose subordi-

nate officers to carry out that responsibility.

The vesting of the Executive power in the Presi-

dent was essentially a grant of the power to execute

the laws. But the President alone and unaided could

not execute the laws. He must execute them by the

assistance of subordinates. . . As he is charged

specifically to take care that they be faithfully ex-

ecuted, the reasonable implication, even in the absence

of express words, was that as part of his executive

power he should select those who were to act for him

under his direction in the execution of the laws.

Buckley, 424 U.S. at 135-136 (emphasis added), quoting

Myers v. United States, 272 U.S. at 117. Express provi-

sion for such selection by the Executive is made in the

Appointments Clause in Article II:

[The President] shall nominate, and by and with

the advice and consent of the Senate shall appoint

Ambassadors, other public Ministers and Consuls,

Judges of the supreme Court, and all other Officers

of the United States, whose Appointments are not

herein otherwise provided for, and which shall be

established by Law: but the Congress may by Law

vest the Appointment of such inferior Officers, as

they think proper, in the President alone, in the

Courts of Law, or in the Heads of Departments.

Art. II. § 2, Cl. 2.

raised the problem of the exercise of unchecked power by a House of

Congress and was objectionable on that ground, inter alia. 462 U.S.

at 966 (Powell, J., concurring). The exercise of enforcement author-

ity and prosecutorial discretion by private citizens under the Act is,

by comparison, even less circumscribed by internal substantive con-

straints than was the one-House veto.

19

The Framers conceived the checks and balances implicit

in the separation of powers as a “self-executing safe-

guard against the encroachment or aggrandizement of

one Branch at the expense of the other.” Buckley, 424

U.S. at 122. These express constraints have been held to

be an absolute bar to infringement unless affirmatively

superseded by other provisions of the Constitution.“ See

e.g., Chadha, 462 U.S. at 955-956; Buckley, 424 U.S. at

127; Myers v. United States, 272 U.S. at 116.

The proscribed congressional “encroachment” or “ag-

grandizement”—that this Court has found unconstitu-

tional so far—has been manifested in three principal

ways: through the elimination of a constitutionally-au-

thorized role of another Branch, Chadha, supra; through

provision for the Legislative Branch’s involvement in ap-

pointment or removal of individuals to carry out execu-

tive functions, Buckley, supra; and through the vesting

of another Branch’s powers in individuals who, although

chosen without congressional involvement, are still not

within the class of persons authorized under the Con-

stitution to carry out such powers, Northern Pipeline

Construction Co., 458 U.S. at 87. Each of these types

of encroachment arguably is involved in Congress’ au-

thorization of private citizens prosecuting Clean Water

Act violations.”

The Framers also envisioned that only through specific author-

ization in the Constitution itself may one Branch have a “partial

agency in” or “ control over” the actions of another. The Federalist

No. 47 (J. Madison) (Cooke ed.) (emphasis in original).

Under part A, su ra, the grant of prosecution authority to pri-

vate citizens was shown to eliminate the Executive's role in federal

enforcement with respect to violations prosecuted in private actions

for civil penalties. Similar to the situation that arose with respect

to the legislative veto in Chadha, Congress has authorized a mecha-

nisin in the Act under which the Executive's exclusive role also has

been eliminated with respect to certain decisions in clear conflict

with an express constitutional grant of authority.

1. The Executive's Authority Under The Appointments

Clause To Select Officers To Perform Executive

Functions Has Been Interpreted Strictly.

Congress’ violation of the Constitution through its es-

tablishment of the Clean Water Act private prosecution

authority becomes most evident in reviewing decisions of

this Court addressing the Executive’s power to appoint

and control persons authorized to carry out executive

functions. As noted previously, Buckley v. Valeo is the

seminal decision that addresses this exclusive appoint-

ment authority of the Executive.

In Buckley, the Court overturned Congress’ retention

of a role for itself in selecting officers charged with the

performance of executive authority similar to that in-

volved here. There, the functions at issue were to be

exercised by the Federal Election Commission, a majority

of whose voting members Congress had selected. Among

the Commission’s powers was the authority to take en-

forcement action under the federal elections statute and

regulations, including the initiation of civil suits.“

After reviewing the responsibilities of the Commisson,

this Court concluded that none of the Commissioners’

basic functions “operates merely in aid of congressional

authority to legislate or is sufficiently removed from the

administration and enforcement of public laws to allow

it to be performed by the present Commission.” Id. at

141. The Court held that “[t]hese administrative func-

tions may . . . be exercised only by persons who are

‘officers of the United States.“ Id (emphasis added).

The Court stated further thar ful nless their selection is

elsewhere provided for, all Officers of the United States

are to be appointed in accordance with the [Appoint-

16 The Court particularly emphasized the impermissibility of the

Commission carrying out civil enforcement responsibilities. Yet, the

largest civil penalty paid under the federal elections law has been

$190,000—a revic of Commission files through 1986 indicates. By

contrast, amounts imposed in specific private prosecutions under the

Clean Water Act in recent years have been in excess of $1,000,000,

as occurred in this case.

21

ments] Clause.” Id. at 132 (emphasis in original). Since

certain members of the Commission had not been ap-

pointed by the President, the Court ruled that most of

the powers of the Commission could not be exercised by

the Commission as it was then constituted.“ Jd. at 143.

This Court recently confirmed the Executive’s preroga-

tives with respect to officials who conduct executive func-

tions in Bowsher v. Synar, supra, a separation of powers

challenge to the Balanced Budget and Emergency Deficit

Control Act of 1985 (the Gramm-Rudman-Hollings Act).

There, the Court invalidated a key statutory provision

on grounds that it vested executive authority in the

Comptroller General, an officer removable by Congress.

The Court stated that “[{t]he structure of the Constitu-

tion does not permit Congress to execute the laws; it

follows that Congress cannot grant to an officer under

its control what it does not possess.” Id. at 5067. See

also Springer v. Philippine Islands, 277 U.S. at 202 (not

having the power of appointment, the legislature cannot

vest executive duties in a legislative office) .

In sum, Buckley and Bowsher expressly establish the

principle that Congress can vest executive power only in

Officers of the United States appointed by the President.

Under the Necessary and Proper Clause, Congress can

establish the means for implementing statutes, but its

“power under that Clause is inevitably bounded by the

17 In Melcher v. Federal Open Market Committee, 644 F. Supp. 510

(D. D.C. 1986), the federal district court reviewed a challenge which

alleged that Congress had vested the exercise of executive authority

in the Federal Open Market Committee of the Federal Reserve, a

body composed of private individuals appointed by Federal Reserve

banks. The Committee’s powers revolved around open market trad-

ing of government securities in the domestic market as an element

of the Federal Reserve’s function of promoting national economic

goals. The court found that the Committee’s activities need not be

carried out exclusively by Presidential appointees. Id. at 523. How-

ever, the court pointedly noted that the Committee was not respon-

sible for enforcing the law, thereby implying that the result might

have been different if that had been the case. Id., fn. 26.

22

express language of the Appointments Clause.” Buckley,

424 U.S. at 138-139.

2. Congress’ Authorization Of Federal Enforcement

Authority Being Carried Out By Private Citizens,

Like Its Selection Of Specific Individuals, En-

croaches Impermissibly On The Executive's Appoint-

ments Power.

This Court’s interpretations of the Appointments

Clause that are relevant here have so far been exclusively

in the context of Congress’ granting authority to persons

it selects or controls; however, the Court’s rulings enun-

ciate principles that are not restricted to circumstances

involving such congressional “aggrandizement” at the

expense of the Executive. That the Court has never been

presented with a single opportunity to reach a decision

in a precisely analogous context is hardly surprising in

view of the unprecedented nature of Congress’ authoriz-

ing private citizens to initiate prosecution for civil penal-

ties, and in doing so, thereby displacing, and in many

cases overriding, the Executive’s prosecutorial discretion.

By reviewing Buckley, together with prior decisions

involving Congress’ authority to determine who may en-

force federal law, the broader applicability of the under-

lying principle in Buckley that limits enforcement re-

sponsibilities on behalf of the public to only Presidential

appointees becomes readily apparent. For example, in

Davis v. Passman, 442 U.S. 228 (1979)—which involved

Congress’ creation of a private right of action, not an

authorization for private citizens to prosecute federal law

violations in actions seeking punitive relief—this Court

stated, “{s]tatutory rights and obligations are established

by Congress, and it is entirely appropriate for Congress,

in creating these rights and obligations, to determine in

addition, who may enforce them and in what manner.”

Id. at 242. If read out of context, this language would

appear to conflict with Buckley and later decisions, which

make clear that certain categories of persons clearly

cannot be given executive powers. However, recognizing

the principle enunciated in Buckley as a constraint on

the broad language in Davis v. Passman, any apparent

inconsistency is eliminated and the ultimate governing

doctrine becomes clear: Congress can determine who is

to “enforce” the law, but it must delegate to Presidential

appointees the authority to perform the civil enforcement

powers of the federal government. The Legislature’s

powers are unconstrained in making such determinations

only in authorizing private rights of action.

Recently, though, in Chesapeake Bay Foundation, Inc.

v. Bethlehem Steel Corp., Civil Action No. Y-84-1620

D. Md. January 30, 1987), the district court found that

the broad language in Buckley and Bowsher expressing

the principle that only “Officers of the United States”

may carry out executive functions is valid solely in the

context where Congress has retained for itself a role in

the selection or control of officers who perform such func-

tions. The district court noted that the Court in those

cases had emphasized the impermissibility of such con-

gressional “aggrandizement”, slip. op. at 4-5. However,

it failed to point out that those cases only involved con-

gressional aggrandizement. Nor did it discuss this

Court’s never having had an occasion to consider the con-

stitutionality of a congressional grant to private citizens

of prosecution authority that permits them to override

the Executive’s prosecutorial discretion.

The district court in Bethlehem Steel curiously found

no need to limit the principles of Davis v. Passman, su-

pra, to the facts presented, as it did with Buckley and

Bowsher.” In quoting Davis, as the district court had

done in SPIRG v. Monsanto Co., 600 F. Supp. 1474

18 Similar selectivity in application of principles of other decisions

is seen in the district court’s reference to the statement in Federal

Open Market Committee, supra n.17, to the effect that Buckley and

Bowsher involved Congress’ aggrandizement of its own role. How-

ever, the district court failed to point out that Federal Open Market

Committee specifically noted that delegation of federal law enforce-

ment to private individuals was not at issue there.

24

(D.N.J. 19850, the court made no reference whatever

to the fact that the Davis decision only addressed Con-

gress’ establishment of a private right of action.

In decisions involving the Judicial Branch, this Court

has made clear, though, that the Constitution’s

.

i

Branch’s authority are not limited to situations where

Congress’ aggrandizement of its role is at issue. In

Northern Pipeline, supra, the Court in considering an in-

trusion analogous to that presented here held that judges

who are removable otherwise than as provided under

Article III could not be granted constitutionally-estab-

lished federal judicial authority, even though Congress

had no control over the judicial selection or

process. At issue there was Congress’

ity to adjudicate bankruptcy cases in

judges. The Court held that

sibly removed . . . essential attributes of the

power from the Art. III district court, and ha[d]

those attributes in a non-Art. III adjunct.” 458 U.S. at

87. The Court concluded that Congress thus had ex-

ceeded its constitutional authority and impermissibly en-

croached upon the authority of the Judiciary.” Simi-

The Monsanto court also rejected a constitutional challenge to

a

He

authority which are not supportable under Article II and pertinent

decisions of this Court. Defendant there, though, failed to cite

Buckley and the other relevant separation of powers precedents.

Thus, the court was not presented with an argument addressing,

and in turn failed to recognize, the distinction between congres-

sional delegation of its own legislative authority and congressional

delegation of the Executive’s federal enforcement authority. The

Monsanto court's reasoning is flawed in ways similar to that in the

Bethlehem Steel decision, and its conclusion that “Congress may

vest enforcement power on whomever it pleases,” 600 F. Supp.

1478, is clearly not sustainable under the Appointments Clause

construed by this Court.

In Commodity Futures Trading Commission v. Schor, —— US.

——, 106 8. Ct. 3245 (1986), this Court recognized that certain

25

larly, but seemingly even more objectionably, Congress’

violation of the separation of powers doctrine here re-

sults from removing “essential attributes” of the Exec-

utive’s enforcement authority by delegating it to un-

specified private citizens—individuals who unlike the

judges subjected to review in Northern Pipeline are not

in the first instance selected by the Executive.

3. Subjective Considerations, Such As Extent Of En-

croachment And Putative Improvements In Govern-

ment Efficiency, Are Not Relevant.

In overturning congressional infringements of execu-

tive authority on separation of powers grounds, this

Court has not looked to the extent of the alleged en-

croachment, or even to whether government efficiency

would be enhanced, in reaching its judgment as to con-

stitutionality. The Court’s approach instead has been

straightforward: If the function to be carried out is an

executive function—an inquiry which this Court has

reviewed carefully, and which unquestionably has been

shown to be the case here—Congress must delegate im-

plementation to one or more Presidential appointees.”

The extent of encroachment on the Executive's en-

forcement authority through actual private prosecutions,

although substantial in recent years, has in fact varied

limited encroachments on the judiciary’s role are permissible, par-

ticularly where the parties waive their rights to adjudication by

Article III courts. As in Northern Pipeline, the Court pointed out

that it would look to whether “essential attributes” of the judiciary’s

role had been removed. Since the rights to be adjudicated were not

provided for under the Constitution, this Court concluded that the

encroachment under all of the circumstances presented did not have

“the purpose of emasculating” Article III courts. Id. at 3257. By

contrast, in cases where citizens pursue enforcement action, the

private prosecution authority does emasculate the prosecutorial dis-

cretion of the Executive, an “essential attribute” of its constitution-

ally-created role.

21 Under the Appointments Clause, the appointment of “inferior

officers” may be vested “in the President alone, in the Courts of

Law, or in the Heads of Departments.” U.S. Const., Art. II, § 2, ci. 2.

26

during the period since the Act’s enactment. But the

Executive Branch’s prosecutorial discretion is such an

“essential attribute” of its constitutional authority to

enforce federal law that any unbridled delegation of en-

forcement responsibility to private individuals by itself

results in a significant encroachment. The cases seem in

any event to leave no room for finding a provision con-

stitutional if Congress has infringed to any extent on the

Executive’s powers under Article II of the Constitution.

For example, in Bowsher v. Synar, even though there

was only a theoretical potential for congressional removal

of an official appointed by the President, this Court held

that that official could not be assigned executive func-

tions. The Bowsher ruling shows that the real issue is

whether an executive function has been assigned to some-

one not under the control of the President, not the likely

extent of infringement.

Also not germane is an argument that authorizing

private Clean Water Act prosecutions for civil penalties

is an efficient supplement to executive enforcement. This

Court in Chadha noted in connection with the one-House

veto that, [in purely practical terms, it is obviously

easier for action to be taken by one House without sub-

mission to the President... 462 U.S. at 958-959. The

Court then pointed out, however, that “it is crystal clear

from the records of the [Constitutional] Convention, con-

temporaneous writings and debates, that the Framers

ranked other values higher than efficiency,” such as the

“desire to define and limit the exercise of the newly cre-

ated federal power.” Id.

Moreover, there is no principle of constitutional inter-

pretation that permits the avoidance of enforcing clearly

expressed limits on legislative powers simply because it

might appear that those limits are unnecessary at a par-

ticular time. Krattenmaker, “Article III and Judicial

Independence: Why The New Bankruptcy Courts Are

Unconstitutional,” Geo. L.J. 297, 306 (1981). As the

United States Department of Justice has stated:

27

Of course it is quite irrelevant to the crucial impor-

tance of maintaining the integrity of these founda-

tional [separation of powers] principles that in a

particular instance where the principles are ignored,

no immediate threat to individual liberty, or even to

governmental responsibility, impends. What protects

these values, and offers constant reassurance to the

people of that protection, is the structure of the

Constitution itself; and what threatens these values

and the security of the people is any disposition to

delapidate that structure. The Framers concerned

themselves with potential abuses of power and sought

to structure a system that would prevent or contain

them in their incipiency.

Brief for the United States at 17, Bowsher v. Synar,

Nos. 85-1377, 85-1378, 85-1379 (Sup. Ct., filed April

1986).

Accordingly, subjective value judgments as to the util-

ity or intrusiveness of the Act’s private prosecution au-

thority for civil penalties are not pertinent to a deter-

mination regarding the authority’s constitutionality.

4. Congress’ Otherwise Broad Powers Are Circum-

scribed So That Its Role In Designating Federal

Law Enforcers To Act On The Public’s Behalf Is

Limited To Choosing Among Executive Officers.

Congress’ powers are extensive in various areas re-

lated to federal law enforcement to protect the public

interest, but the Constitution draws a line short of the

Legislature being authorized to displace the Executive’s

right to appoint the officials who are actually to carry

out that enforcement responsibility. See, e.g., Buckley,

supra. As noted in Chadha, the Framers were particu-

larly conscious of the “hydraulic pressure inherent within

each of the separate Branches to exceed the outer limits

of its power . . 462 U.S. at 951.

The Legislature’s authority to delegate functions of the

federal government is clearest with respect to the grant-

ing of quasi-legislative rulemaking power to federal agen-

cies, subject only to the constraint that Congress provide

sufficiently precise standards to guide the exercise of

such authority. See, e.g., Industrial Union Department

v. American Petroleum Institute, 448 U.S. 607, 646

(1980) ; J. W. Hampton, Jr. & Co. v. United States, 276

U.S. 394, 409 (1928). Congress also is conditionally em-

powered to appoint officers to carry out appropriate leg-

islative functions.” Buckley, 424 U.S. at 127.

Similarly, Congress’ right under the Constitution to

enact laws in itself necessarily includes authority to pro-

vide for the enforcement of such laws. Congress thus

can designate one or more Presidential appointees who

are to exercise that enforcement authority. Indeed, in

Bowsher v. Synar, this Court seemed to imply that Con-

gress could have assigned the Comptroller General, an

official appointed by the President, the authority to carry

out executive functions, if it had not retained a direct

role in his removal.

Congress additionally has the authority to regulate the

performance of enforcement activities by executive offi-

cers. See, e.g., Kalaris v. Donovan, 697 F.2d 376, 398

(D.C. Cir.), cert. denied, 462 U.S. 1119 (1983). This

right, however, is subject to the limitation that such

regulation must not interfere with the constitutional

duties of the Executive Branch. Nixon v. Administrator,

433 U.S. at 444-445.

Finally, as alluded to supra, it is clearly established

that Congress can by statute vest in private persons the

right to bring private actions to redress private in-

22 The Executive, like Congress, can delegate its own authority to

officers of other Branches. In the case of such delegation, the sepa-

ration of powers mandate is violated only if such vesting of authority

in such officers interferes with that other Branch’s carrying out of

its constitutionally required powers. See In Re: Application of

President’s Commission On Organized Crime, Subpoena of Scaduto,

763 F.2d 1191 (11th Cir. 1985); In Re: President’s Commission on

Organized Crime, Subpoena of Scarfo, 783 F.2d 370 (3d Cir. 1986) ;

Nixon v. Administrator, 433 U.S. 425, 433 (1977).

29

juries.” Davis v. Passman, supra, elaborates on this au-

thority to create such private right of actions, which are

permissible even where there may be significant benefits

to the public at large.

28 Searching for an analogue to justify private prosecution for

civil penalties, respondents might argue that civil penalty suits are

only an updated version of the common law qui tam actions. This

type of suit originated as a legal means for informers in England

to obtain a bounty. The Rivers and Harbors Act of 1899, 33 U.S.C.

§§ 401-466, permits informers to obtain bounties equivalent to one-

half of whatever amounts are recovered. However, courts have

uniformly ruled against the initiation of such suits by private

individuals, holding that the right to bring them was granted exclu-

sively to the United States Attorney General. See, e.g., Jacklovich v.

Interlake, Inc., 458 F.2d 923, 924 (7th Cir. 1972). It has also been

held that a private prosecution brought under the Clean Water Act

is not a qui tam action, because the Act requires that all penalties

be paid to the federal Treasury. Chesapeake Bay Foundation v.

Bethlehem Steel Corp., 608 F. Supp. 440, 449 (D. Md. 1985). The

only instances in which individual citizens have been authorized to

initiate actions to recover any amounts payable in part to the fed-

eral Treasury appear to be qui tam actions outside the envirouinental

area where potential penalty amounts were very small. For ex-

ample, the False Claims Act, 31 U.S.C. § 3729, enacted in 1863,

authorizes bounty hunters to bring actions to recover damages as

well as a small amount to be forfeited by the defendant, and then

keep one-half of any judgment. See, e.g., United States ez. rel.

Marcus v. Hess, 317 U.S. 537 (1943). However, under this law and

all other laws prior to the Clean Water Act, actions for penalties

were only authorized to be brought by citizens in situations where

the suing party was permitted to retain a share of the limited

penalties that were potentially recoverable. Courts, moreover, have

been uniformly reluctant to permit private citizens themselves to

bring qui tam actions (as opposed to permitting the payment of a

bounty after federal prosecution). See, discussion in Connecticut

Action Now, Inc. v. Roberts Plating Co., 457 F.2d 81, 84-85 (2d Cir.

1972). It is significant that the constitutionality of qui tam provi-

sions has evidently never been subject to judicial review, certainly

not since the holdings in Buckley, Chadha, and Bowsher. Also of

significance is their origination in England under a non-constitu-

tional form of government. Qui tam actions have been principally

authorized to provide a means for private recoveries, and for that

reason, they represent a much more limited infringement on the

role of the Executive Branch than actions brought to recover civil

In sum, Congress has broad powers in implementing

and delegating its own authority, as well as in prescrib-

ing constraints on the Executive’s carrying out of ex-

ecutive authority. However, delegating executive author-

ity to private citizens conflicts with the Constitution’s

separation of powers. Congress’ role in selecting who

may carry out federal enforcement is restricted to the

right to choose among executive officials appointed by

the President.

CONCLUSION

For the foregoing reasons, Amicus Curiae Rollins En-

vironmental Services (NJ) Inc. urges that the Court

reverse the decision below.

Respectfully submitted,

WILLIAM H. LEWIS, In.“

STEVEN SCHATZOW

Davm G. TRIPP

THOMAS R. BARTMAN

MARIANNE M. LAMONT

1800 M Street, N.W.

Washington, D.C. 20036

(202) 872-5040

* Counsel of Record

Of Counsel:

MORGAN, LEWIS & BockIus

1800 M Street, N.W.

Washington, D.C. 20036

(202) 872-5000

penalties payable exclusively to the federal Treasury. Nevertheless,

the qui tam authorizations that allow actions for punitive relief to

be prosecuted by private bounty hunters are inconsistent with

Buckley and related cases and the constitutional mandate of sepa-

ration of powers.

*