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

MAR 27 1967

~

io JOSEPH F. SPANIOL, JR.

CLERK

No. 86-473

October Term. 1986

GWALTNEY OF SMITHFIELD, LTD

Petitioner.

i

CHESAPEAKE BAY FOUNDATION, ING

and

NATURAL RESOURCES DEFENSE COUNCIL.

Respondents

BRIEF OF AMICI CURIAE

MID-ATLANTIC LEGAL FOUNDATION, INC.

AND CONSUMER ALERT

IN SUPPORT OF PETITIONER

Richard B. McGlynn

Counsel of Record)

Doulas Foster

John G. Collins

Mid-Atlantic Legal Fk oundation. Inc

219 East 42nd Street

New York, New York 10017

212) 557-1350

Counsel for Amici Curiae

PACKARD PRESS LEGAL DIVISION 10th & SPRING GARDEN STREETS PHILA PA 19123 (215) 236-2000

gas pe Ah sen tr ds ig ee hm iii Dee ka aS ml

QUESTION PRESENTED

By adopting the citizen suit provisions of the federal

Clean Water Act, did Congress intend to empower indi-

vidual citizens to punish operators of economically and

socially productive facilities who, by the exercise of dil-

igence, good faith and state-of-the-art technology, have

ee oe ee ee om

TABLE OF AUTHORITIES

Cases: Page

Atlantic States Legal Foundation v. Al Tech Spe-

cialty Steel Corp., 635 F.Supp. 284 (N.D.N-Y.

EE EEE

Friends of the Earth v. Archer Daniels Midland Co.,

No. 84-CV-413 (N.D.N.Y. 1986).............

Friends of the Earth v. Consolidated Rail Corp., 768

I )

Friends of the Earth v. Facet Enterprises, Inc., 618

F.Supp. 532 (W.D.N.Y. 1984)...............

Middlesex County Sewerage Authority v. National

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

Student Public Interest Research Group v. AT&T

Bell Laboratories, 617 F.Supp. 1190 (D.N.J.

MCC GCcasescececccccscccccces:

Student Public Interest Research Group v. Anchor

Thread Co., 22 Evn't Rep. Cas. (BNA) 1150

aces cc ccccccccssccces

Student Public Interest Research Group v. Georgia-

Pacific Corp., 615 F.Supp. 1419 (D.N.J.

das sce ess cscs ccscccces

Student Public Interest Research Group v.

Monsanto Co., 600 F.Supp. 1474 (D.N.J.

es occu ccnaccacccccccccce:

Student Public Interest Research Group v. National

Starch and Chemical Corp., 23 Env't Rep. Cas.

(BNA) 1982 (D.N.J. 1985) ..................

Student Public Interest Research Group v. P.D. Oil

& Chemical Storage, Inc., 627 F.Supp. 1074

EEE

11

11

1]

11

11

11

1]

11

1]

TABLE OF AUTHORITIES— Continued )

Cases: Page

SE ee ee Be 8

I io nue ce than caseéadsneeaees passim

Legislative Material:

133 Come. Rec. S903 (1072)... . 1... wc cece ees 6

116 Comg. Rec. 33700 (1972)... ........ 0. cee. 5

118 Cong. Rec. 33715-16 (1972) ............ 7, 8, 12

Other Authorities:

Black’s Law Dictionary (5th Ed. 1979)........... 7

Memorandum to Executive Committee of New York

Public Interest Research Group, Inc., July 19,

GS waeuteieetondg seen te cena a oer Lt 11

Webster’s Unabridged Dictionary (2d Ed. 1980)... 7

iv

No. 86-473

In the

SUPREME COURT OF THE UNITED STATES

October Term, 1986

GWALTNEY OF SMITHFIELD, LTD.,

Petitioner,

v.

CHESAPEAKE BAY FOUNDATION, INC.

and

NATURAL RESOURCES DEFENSE COUNCIL,

Respondents.

BRIEF OF AMICI CURIAE

MID-ATLANTIC LEGAL FOUNDATION, INC.

AND CONSUMER ALERT

IN SUPPORT OF PETITIONER

INTERESTS OF AMICI

Pursuant to the Cotrt’s Rule 42, Mid-Atlantic Legal

Foundation, Inc. and Consumer Alert hereby move the

Court for leave to file the attached brief as amici curiae.

Consent was secured from counsel for all parties. Copies

of the letters of consent have been filed with the Court.

Mid-Atlantic Legal Foundation, Inc., is a non-profit,

tax-exempt corporation organized and existing under

the laws of Pennsylvania. It is a law firm which seeks to

present balanced articulation of the public interest in

matters of broad impact such as the instant case.

]

2

Consumer Alert is a non-profit corporation organized

and existing under the laws of the District of Columbia.

It is a nationwide organization composed of over 6,000

members of whom approximately 160 are residents of

Virginia. Consumer Alert engages in the study and dis-

semination of information on problems and issues affect-

ing American consumers. Its principal objective is to

‘ ensure fair and fully expositive presentations of matters

affecting the public interest.

STATEMENT OF THE CASE

For the sake of brevity amici do not separately set

forth their statement of the case but adopt that of peti-

tioner.

Amici do set forth certain key facts and the issues

presented by those facts to the courts below and here.

(a) Key Facts

October 27, 1981 Petitioner acquires existing op-

erating facility and_ shortly

thereafter learns of permit

exceedences.

October 1982 Interrelated chlorine/fecal coli-

form problem solved.

October 1983 State-of-the-art waste water

treatment facility in place and

debugging.

Winter-Spring

1983-1984 Isolated start-up exceedences

only.

May 15, 1984 Last nitrogen exceedence re-

corded.

June 15, 1984 Citizen suit commenced.

3

From May 15, 1984 to the present, a period of two

and three-quarter years, no exceedences have occurred,

save one attributable to an Act of God.

(b) The Issue

The issue as perceived and defined by the courts be-

low was whether a continuing violation is necessary to

confer subject matter jurisdiction over citizen suits seek-

ing penalties for wholly past violations.

Amici suggest that the issue should be defined dif-

ferently: Did Congress intend to confer subject matter

jurisdiction over suits by individual citizens which seek

penalties for wholly past violations which occurred in a

period during which the operator

acted in good faith,

with reasonable diligence,

solved permit problems,

employed state-of-the art technology in the pro-

cess, and

5. accomplished full, effective, long-term compli-

ance with its permits.

e PP =

ARGUMENT

Amici respectfully argue that this court should an-

swer no to the issue as framed by amici, under precedent

of this Court, under proper principles of statutory con-

struction, and as a matter of sound judicial policy.

4

Precedent

This Court has already recognized and pronounced

that the Act allows suits by private citizens but autho-

rizes only prospective relief. |Middlesex County Sewer-

age Authority v. National Sea Clammers Association,

453 U.S. 1, 6, (1981)}.

The Court in Sea Clammers further recited that the

citizen suit provisions authorize private persons to sue

for injunctions to enforce the Act. (Id., 453 U.S., at 14).

The Court further acknowledged that in a proper in-

junction case, the district court may order civil penalties

payable to the government. (Sea Clammers, n. 25).

As the Court's discussion indicated, the existence of

a legitimate need for injunction in order to enforce the

Act is the jurisdictional predicate of an action in which

civil penalties may be added. '

Il

Statutory Construction

A. “To be in violation”

1. Statutory Language

The statutory language is clear. A citizen suit may be

brought only if the defendant is alleged to be in violation

of an effluent standard or limitation. {Clean Water Act,

Section 505(a), 33 U.S.C., Section 1365(a), hereinafter

cited as Section 505(a)}.

If Congress intended district courts to exercise ju-

risdiction over wholly past violations, it could easily have

drafted “is alleged to be or to have been in violation.” It

did not do so.

1. To note the harmony of statutory reading between Congress

and this Court, please see citation to legislative history of citizen suit

purposes at 7, infra.

2. Legislative History

Failing to find “have been” in the statute, the Court

below cited language used by Senator Muskie that a suit

might be brought “ ‘for an appropriate remedy in the

case of any person who is alleged to be, or to have been.

in violation, whether the violation be a continuous one.

or an occasional or sporadic one.’ 118 Cong. Rec. 33700

(1972).” (791 F.2d 304, 311-12).

That reliance is wholly misplaced, however, and in

_ any event misreads Senator Muskie’s language.

(a) The quoted “have been” language was written. If

“to be” in the statute were meant to include “have been.”

the statute could have been so drafted as it was in Sen.

Muskie’s written discussion.

(b) In any event, however, the “have been” phrase

did not address civil penalties for wholly past violations

as are presented by this case. Mr. Muskie was simply

explaining that “an appropriate remedy”, injunctive re-

lief, might be sought in a proper case notwithstanding

the sixty day notice period placed in the bill by the House

conferees.

(c) Mr. Muskie meant what he said, i.e., that injunc-

tive reliei might continue to be the subject of a legitimate

citizen action whether the violation were “continuous,”

“occasional,” “sporadic,” or “intermittent,” and that an

injunction might issue to order the cessation of an

outfall’s violation whether the outfall was continuously

freeflowing, or the producer of violations recurring in

varying the lengths of time.

Whether the violation is less than continuous or con-

tinuous, it must be ongoing in order to give rise to a

proper case to enforce the statute.

(d) Mr. Muskie’s concern with technologically un-

remedied violations of outfalls less than continuous and

the meaning of such words as “intermittant” is further

clarifed by his discussion of .e Administrator's respon-

sibilities:

6

The Administrator must issue an abatement order

whenever there is a violation of the terms or condi-

tions of a permit, including the effluent limitations.

time schedules, and monitoring requirements.

Should he fail to issue an order, a citizen suit may be

brought against him to direct the issuance of such

an order. The Administrator's authority is not limited

to those cases in which there is a continuing viola-

tion. Any discharge, intermittent or continuous,

which the administrator finds violates the terms of

the permit, is to be enforced. The conferees expect

that the Administrator will act as aggressively

against those violations which only intermittently

occur as he will act against those violations which

occur on a continuous basis. Failure to take this kind

of effective action will permit intermittent dumping

of waste with impunity. Citizen suits can be brought

to enforce against both continuous and intermittent

118 Cong. Rec. 33693 (1972).

B. Jurisdictional Predicate

1. Statutory Language

That an unremedied violative discharge is the juris-

dictional predicate for a citizen suit under Section 505

may be seen from simple application of plain English and

rules of grammar.

The firs: paragraph of Section 505 states that a cit-

izen suit may be brought against any person alleged to be

in violation of (A) an effluent standard or limitation; or

(B) an order, or against the Administrator to force him to

act.

The second paragraph recites, in parallel, that dis-

trict courts will have jurisdiction to enforce such a stan-

dard or limitation or such an order or to order the

—

/

Administrator to act and to apply any appropriate civil

penalties.” .

The jurisdictional predicate is an offending dis-

charge in need of remedy and an operator as to whom the

statute must be enforced. If Congress intended actions to

be for wholly past violations, it could easily have drafted

the second paragraph to provide jurisdiction to enforce

standards, or an order administrative action or to apply

civil penalties. It did not do so.

2. Legislative History

Amici suggest that Congress did not so draft because

it never intended jurisdiction to lie for purely punitive

action but only for cases involving the necessity of re-

medial action.

Congress understood that the jurisdictional predi-

cate for a citizen suit was a discharge requiring enforce-

meni by injunction in order that standards be attained

and said so.

In the written words of Senator Boggs:

“CITIZEN SUITS

This bill creates a mechanism allowing private citi-

zens to go to court to assure the attainment of

pollution-control standards.”

118 Cong. Rec. 33715 (197 2).

In cases such as that presented here, the jurisdic-

tional predicate to a citizen suit simply does not exist.

Petitioners in a systematic program of correction culmi-

nating in outfall control under state-of-the-art technol-

ogy achieved complete compliance with permit

2. Amici suggest plain meanings of words. Webster's defines

“to enforce” as “to compel observance of; as to enforce the laws.”

|Webster’s Unabridged Dictionary, 2d Ed. 1980). Black's defines

“enforce” as: “to put into execution, to cause to take effect; to make

effective; as, to enforce a particular law __. . to compel obedience

to.” [Black's Law Dictionary, Sth Ed. (1979)).

Clearly. in a civil context, if one is observing and obeying the

laws they need not be enforced as against him.

8

limitations. No exceedences have occurred for two and

three-quarter years but one attributable to an Act of God.

No injunction is necessary to compel Petitioners to meet

the required standards. They have done so long since

and did so prior to commencement of the instant action.

The district court lacked subject matter jurisdiction.

C. Lower Court Errors

The object of the Act is clean water and compliance

by dischargers with their permits. It is clear from statu-

tory language and legislative history that citizen suits

were intended to be grounded — as a jurisdictional mat-

ter — on the necessity of injuction required to abate vi-

olations and achieve compliance. |See, 33 U.S.C. $1319;

Section 505; comments of Senators Boggs and Bayh at

118 Cong. Rec., 33715-33716}.

Nevertheless, the Fourth Circuit below and various

district courts have sought to find justification for allow-

ing civil penalties for solely past violations. In doing so

they have ignored the role Congress carefully crafted for

citizen suits as an enforcement tool to force the achieve-

ment of compliance, and instead have elevated citizen

suits to new levels under which achievement of compli-

ance is rendered essentially irrelevant.

The conversion has been accomplished by assigning

merely plausible constructions to language (79! F.2d. at

309) and by adopting presumptions and inversions of

logic. For examples:

(a) The court below reasoned that “{a| significant de-

terrent would be lost if citizen suits seeking civil penal-

ties for past violations were not permitted.” The

Statement begged the issue in two respects. First, the

issue is not whether civil penalties would ever be proper

in a citizen suit. In a right case they would be. The issue

is whether they are recoverable for wholly past violations

after compliance has been achieved.

Second, the issue is not whether civil penalties are or

are not a deterrent, in and of themselves, but whether

9

Congress intended them to apply after compliance has

been achieved and enforcement by injunction rendered

unnecessary.

(b) The court stated that “|w/hile it cannot be de-

nied that citizens’ enforcement authority is narrower

than that of government — citizens, for example, obvi-

ously cannot seek criminal penalties or issue compliance

orders — the Act does noi deprive citizens of the right to

sue for past violations.” (791 F.2d, at 310).

Again the distinction between penalties in a right

case and one where compliance has been achieved was

ignored and the issue begged.

Moreover, the issue before the court was the scope of

enforcement rights and powers established by the Act.

The issue therefore was not whether the Act deprives

citizens of a personal right to sue for wholly past viola-

tions but whether the Act grants such a right.

(c) Acknowledging the distinction between the

threshold issue of jurisdiction and that of remedy, the

court below completed its legislative task by inverting

the concepts. The Fourth Circuit said:

Gwaltney criticizes the logic of these {district

court] opinions, arguing that they confuse the

threshold issue of jurisdiction with the issue of pen-

alties available once jurisdiction attaches and liabil-

ity is found. Gwaltney contends that although the

Act does provide for civil penalties, and even for pen-

alties based on past violations, no relief whatsoever is

available unless there is an ongoing violation on

which to ground jurisdiction under section 505(a).

There is some merit to this argument, because

technically the issues of jurisdiction and penalties

are analytically distinct. However, the Act's provi-

sion for civil penalties in citizen suits cannot be to-

tally ignored. When read in conjunction with the

Act's overall structure and its legislative history, it

suggests strongly that citizens should be allowed to

10

seek civil penalties for past violations even in the ab-

sence of an ongoing violation. (791 F.2d, at 310.

n.11) (emphasis supplied).

The Court reasoned that because penalties may be

applied if jurisdiction attached. therefore jurisdiction at-

tached ,

The reasoning of the court below, and the district

courts upon which it relied, demonstrate a predisposition

to expansive interpretation of the citizen suit provisions

and of the rights of citizen plaintiffs thereunder.

That predisposition, however, is at direct odds with

the careful draftsmenship of the statute and of Congress’

concern, almost to the point of preoccupation, that citi-

zen suits be limited to injunction actions, i.e., to situa-

tions in which injunctive enforcement is necessary to

the achievement of compliance with the Act.

In situations such as that presented in the instant

case, the factual predicates to such actions simply do not

exist. Compliance has already been achieved.

Il

Judicial Policy

The application in citizen suits of civil penalues for

wholly past violations should be disallowed on two im-

portant grounds which may be viewed as statutory con-

struction or sound judicial policy or both.

A. Motivation and Equity

In their statement of the issue amici ask whether

Congress intended to empower citizens to punish plant

operators who had achieved compliance by the applica-

tion of diligence and state-of-the-art technology.

To support their suggestion that punishment per se

as well as the desire io profit financially are significant

motivations underlying at least some of these cases.

amici, as amici curiae, share with the Court salient por-

tions of a recent memorandum of a group considering

becoming plaintiffs in new cases.

iA plainuff's environmental) law firm has brought

approximately 26 suits under the Clean Water Act

against ‘direct dischargers’ in New York and New

Jersey (in fact, NJPIRG claims that the suits they file

will provide a significant source of income for them )

(sic), Friends of the Earth and Atlantic States Legal

Foundation in New York.**

3. NJPIRG is an acronym for New Jersey Public Interest Re-

search Group awa Student Public Interest Research Group

4. Cf, Atlantic States Legal Foundation v. Al Tech Speciality

Steel Corp., 635 F. Supp. 284(N_D.N_Y. 1986), Friends of the Earth

v. Archer Daniels Midland Co., No. 84 Civ. 413 (N.D.N_Y. 1986).

Friends of the Earth v. Consolidated Rail Corp., 768 ¥ 2d 57 (Cw

1985); Friends of the Earth v. Facet Enterprises, inc . 618 F Supp

532 (W_D.N_Y. 1984), Student Public Interest Research Group «

AT&T Bell Laboratories, 617 F Supp. 1190 (D.N.J 1985), Student

Public Interest Research Group v. Anchor Thread Co . 22 Env't. Rep

Cas. (BNA) 1150 (D.N_.J. 1984), Student Public Interest Research

Group v. Ceorgia-Pacific Corp., 615 F Supp. 1419 (D.N.J. 1985),

Student Public Interest Research Group v. Monsanto Co, 600 F

Supp. 1474(D.N.J. 1985), Student Public Interest Research Group

v. National Starch and Chemical Corp.. 23 Env't. Rep. Cas. (BNA)

1982 (D.N.J. 1985): Student Public Interest Research Group v PD

Oil & Chemical Storage. inc . 627 F Supp. 1074 (D.N.J 1986)

12

(Memorandum. Randall Weiner. Walter Hang and

Alison Kelly to NYPIRG Executive Committee re Clean

Water Act Citizens Suits, July 19. 1986).

As noted earlier, it is very clear from the legislative

history of the Act. that Congress was very concerned that

the enforcement tool of the citizen suit be used to enforce

the act by injuction and that it not be used for the re-

covery of personal profits. (See remarks of Sens. Boggs

and Bayh, 118 Cong. Rec. 33715-16).

The provision in fact. however, has been used for

private gain. a result inconsistent with congressional in-

tent. Furthermore. although Congress’ goal is clean wa-

ter, plaintiffs have used citizens suits to “punish”

pollutors for the sake of punishment.

Amici urge that the Congress never contemplated.

and this court should not sanction. citizen actions such

ogies and so to accomplish long term compliance. Such

defendants stand not as polluters, but as persons who are

in obedience to the law and who have attained all the

environmental benefits of compliance.

B. Punishment of the Public

A plant operator such as Gwaltney who has attained

long term compliance with the act will have done so by

the expenditure of incremental costs and expenses and

of a portion of overhead costs. Consumers will be obli-

gated to pay such costs through higher prices.

Similarly. civil penalties would likewise ulumately

be paid for by the consumer The addition of substantial

civil penalties in punishment of a compliance achiever

would therefore operate as punishment of the consum-

ing public without anv envirenmental benefit.

13

In enacting the Clean Water Act Congress was con-

cerned with the accomplishment of environmental gain,

not in punishing the public where no such gain results.

Amici urge that such a result be prohibited whether

as a matter of statutory construction, or of sound judicial

policy, or both.

Conclusion

For the foregoing reasons, Amici urge this Court to

hold that district courts do not have jurisdiction under

the Clean Water Act to apply civil penalties for wholly

past permit violations under the Act.

Respectfully submitted,

LL Brgy

Richard B. McGlynn ¥,

(Counsel of Record )

Douglas Foster

John G. Collins

Mid-Atlantic Legal Foundation, Inc.

219 East 42nd Street

New York, New York 10017

(212) 557-1350

Counsel for Amici Curiae

IN THE

SUPREME COURT OF THE UNITED STATES

No. 86-473 October Term, 1986

GWALTNEY OF SMITHFIELD, LTD.,

. Petitioner

CHESAPEAKE BAY FOUNDATION, INC. ‘

and

NATURAL RESOURCES DEFENSE COUNCIL,

Respondents

CERTIFICATE OF SERVICE .

1, Richard B. McGlynn, Counsel of Record for amici

curiae Mid-Atlantic Legal Foundation, et al., certify that

on the 26th day of March, 1987, I caused to be served

copies of the attached motion and brief on the following:

Joseph Spanioli, Jr.. Clerk E. Barrett Prettyman, Jr.

U.S. Supreme Court Hogan & Hartson

1 First Street, N_E. 815 Connecticut Avenue

Washington, D.C. 20543 Washington, D.C. 20006-4072

(40 copies—-FIRST CLASS MAIL) (3 copies—FIRST CLASS MAIL)

James Thornton. Jeter M. Watson

Natural Resources Defense Chesapeake Bay Foundation

Council 1001 East Main Street

122 East 42nd Street Suite 815

New York, N.Y. 10168 Richmond, VA 23219

(3 copies—-FIRST CLASS MAIL) (3 copies—-FIRST CLASS MAIL)

Ay

Richard B. McGlynn

Counsel of Record for \/ Curiae

Mid-Atlantic Legal Foundation, Inc.

219 East 42nd Street

New York, N.Y. 10017

(212) 557-2350

March 26, 1987

14

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