# Amicus Curiae Brief — Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_1079%3A16 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1987 - **Citation:** 484 U.S. 49 ## Text 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 ee aa a erates DISH oi iid ee sees ine noe ba ) . ; ee ee im a 7 a at. Feelead LD, ~ eile a, 7 ’ a silt call day ae ‘at OF 7 \ i - =) x > — vi “rr @ aan iat "os, ain - . po : . --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_1079%3A16. Public record. Not legal advice.