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

, iy

rILED

MAR 27 987

No. 86-473 _/

Sh

CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1986

——_—__—____-—_&@ ——____ —-——_ —

(SWALTNEY OF SMITHFIELD, LTD..

Petitioner

—_—V—

CHESAPEAKE BAY FOUNDATION, INC.

and

NATURAL RESOURCES DEFENSE COUNCIL, INC..

Respondents

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FOURTH CIRCUIT

BRIEF OF AMICI CURIAE BETHLEHEM STEEL CORPORA-

TION, ACME STEEL COMPANY, ARMCO INCORPORATED,

INLAND STEEL COMPANY, LTV STEEL COMPANY, INC., USX

CORPC” ATION, AND AMERICAN IRON AND STEEL INSTI-

TUTE IN SUPPORT OF PETITIONER

BENJAMIN ROSENBERG*

Bricip E. KENNEY

THERESE M. SCHMITT

VENABLE, BAETJER AND HOWARD

1800 Mercantile Bank & Trust Bidg.

Two Hopkins Plaza

Baltimore, Maryland 21201

(301) 244-7400

Counsel for Amici

*Counse! of Record

STATEMENT OF INTEREST OF AMICI] CURIAE ...

SUMMARY OF THE ARGUMENT ................

ARGUMENT

IV.

Only the Government's Interest Is Involved in a

Citizen Suit for Civil Penalties under Section 505

I EEE

Citizens Bringing Enforcement Actions under the

Clean Water Act Purport to Exercise a Power

Exclusively Reserved to Executive Officers

Appointed under Article II of the Constitution ...

Citizens Are Not Subject to Any of the Constraints

which Apply to Exercise of the Enforcement Dis-

cretion by EPA and the States .................

Citizen Suits for Civil Penalties under Section 505

Interfere with Executive Enforcement of the Act

and Produce Inconsistent and Unjust Results ....

SEED Sdeuebecbuccesscsccccecesccecccs:

APPENDIX

Letter from Stephen D. Ramsey, Chief, Environ-

mental Enforcement Section, U.S. Department of

Justice, to the Honorable H. Lee Sarokin, U.S.

District Court for the District of New Jersey

a nous

13

18

TABLE OF AUTHORITIES

Cases Page

Bethlehem Steel Corp. v. Train, 544 F.2d 657

(3d Cir. 1976), cert. denied, 430 U.S. 975 (1977) ... 22

Bowsher v. Synar, 106 8. Ct. 3181 (1986) ....... 10, 12, 13

Buckley v. Valeo, 424 U.S. 1 (1976) .......... 9, 10, 12, 13

CPC International, Inc. v. Train, 540 F_2d 1329

(8th Cir. 1976), cert. denied, 430 U.S. 966 (1977)... 15

Chesapeake Bay Foundation v. Bethlehem Steel Corp.,

Civ. No. Y-84-1620 (D. Md. Jan. 30, 1987) ........ ba!

Chesapeake Bay Foundation v. Bethlehem Steel Corp.,

608 F. Supp. 440 (D. Md. 1985) ....... .... 13, 18, 20

Connecticut Fund for the Environment v.

Job Plating Co., 623 F. Supp. 207

ee GO s

Connecticut Fund for the Environment v.

L & W Industries, 631 F. Supp. 1289

@. Coun. S5GED . oo coccccceccessunnnn 19

FMC Corp. v. Train, 539 F.2d 973 (4th Cir. 1976) . . . 16, 17

Heckler v. Chaney, 105 S.Ct. 1649 (1985) ............ 21

Humphrey's Executor v. United States,

555 US. GER CGE) on ccccccocceessesuenel 10

Kitlutsisti v. Arco Alaska, Inc., 592 F. Supp. 832

(D. Alaska 1984), vacated as moot,

782 F.2d 800 (9th Cir. 1986)... .... 2... 0... eee. 20

Marathon Oi Co. r. EPA, 564 F.2d 1253

Bab Cae. BBUED «cc cccccececessnnsne 15

TABLE OF AUTHORITIES—/(Continued)

Cases Page

Massachusetts v. United States

Veterans’ Administration,

SD 18

Middlesex County Sewerage Authority v.

National Sea Clammers Association,

EE EE 7

Myers v. United States, 272 U.S. 52 (1926) ....... 9 10, 11

Sierra Club v. Morton, 405 U.S. 727 (1972) .......... 5

Sierra Club v. SCM Corp., 747 F.2d 99 (2d Cir. 1984) .. 5

Sierra Club v. Simkins Indus.,

617 F. Supp. 1120 (D. Md. 1985) ......... Pekeees 5

Stoddard v. Western Carolina Regional Sewer

Authority, 784 F.2d. 1200 (4th Cir. 1986) ......... 7

Student Public Interest Research Group of New Jersey

v. Georgia-Pacific Corp.,

615 F. Supp. 1419 (D.N.J. 1985) ................ 19

Student Public Interest Research Group of New Jersey

v. Tenneco Polymers, Inc., 602 F. Supp. 1394

eee cow eccéewcscccccces 18

Student Public Interest Research Group of New Jersey

v. Monsanto Co.,

600 F. Supp. 1474 (D.N.J. 1985) ................ al

United States v. Germaine, 99 U.S. 508 (1878)........ 10

United States v. ITT Rayonier, Inc., 627 F.2d 996

EEE 23

Weyerhaeuser v. Costle, 590 F.2d 1011

EE EEE 15

il

TABLE OF AUTHORITIES—(Continued)

Constitution Page

ik. & % PPererrerrrrrsr rrr rit tis passim

oe, Cree ee OE. GG i ccnccscnvccucseuseenas 8,9

rn rrr O60 Ee ee ae co ccccetadesnceeceeus 8, 9, 10

eh i MR, ds. cg ce eeneeunnetedéunaus i)

Statutes and Regulations

CC... ova choesunaunseeeeensbeneees 18

RD ow ode eeenueeeeneceueneeneds 13

Us UE nc oc c0ees cecccneecéobsoewseseesat 2

ME og wv dudéuehencedentesktcssennes 4

0 ere ee 4

DEE cnecntetcedagnsb abeseaeenenmened 4,5

Dee occeueeseewsescevadseeedsane cae 4,5

DUT cscdeuceeesauees 64060 ceeebeneews 4

EE a oOo le ola beeh ashe sae ees 4,5,6,7

BE oun did vet eberwacesvenuenuene 4,5,17

DE ¢ccecnctudsanstnndedsn abana 4

ED 6 6c eesscencccacavacseceseteses passim

Water Quality Act of 1987, Pub. L. No. 100-4, 101

SE We < s cncudiéiecdévasdeenmbesnedeaeenes 3.7

GG Bs ec cccccccsetceccedeceoeses 16

Oe ED . ccecesuseueuéueeeeeucet 17

es iv okaeducensesksnnuceens 5

Legislative Material

H.R. Rep. No. 911, 92d Cong., 2d Sess. reprinted in

EPA, Legal Compilation (Water), Supp. 1, vol. 1 at

GEE Scacoccsccstetoscuepeenaeseteceses: 7

S. Rep. No. 414, 92d Cong., Ist Sess., reprinted in

1972 U.S. Code Cong. & Ad. News 3668, and in

EPA, Legal Compilation (Water), Supp. 1, vol. 1, at

DP GGED cc ccccesscccesececenesscescoceeuses

~)

iV

TABLE OF AUTHORITIES—(Continued)

Legislative Material Page

133 Cong. Rec. H191 (daily ed. Jan. 8, 1987) ......... 23

132 Cong. Rec. H10556

ey SEED wd kc 6d eee. bédebeecdeuces 23

Other Authority

Preamble to Final National Pollutant Discharge

Elimination System Permit Regulations,

49 Fed. Reg. 37998 (1984) .............0000e- 16, 17

Preamble to Final Iron and Steel Manufacturing Point

Source Category Effluent Limitations Guidelines,

Pretreatment Standards, and New Source Perfor-

mance Standards, 47 Fed. Reg. 23258 (1982) ..... 16

Preamble to Proposed Iron and Steel Manufacturing

Point Source Category Effluent Limitations

Guidelines, Pretreatment Standards, and New

Source Performance Standards, 46 Fed. Reg. 1858

SE cd ateuneucevioekues chase duchdaudedecess 16

Preamble to Final National Pollutant Discharge

Elimination System; Revision of Regulations,

44 Fed. Reg. 32854 (1979) .......... ccc eeeeee: 16

Preamble to Effluent Limitations Guidelines and Stan-

dards of Performance for New Sources; Advance

Notice of Public Review Proceedings,

ee SED cen vdskadvaccceuctass 15

EPA Office of Water, The Enforcement Management

System; National Pollutant Discharge Elimination

System (Clean Water Act), Attachment A: Viola-

tion Review Process; Attachment B: Enforcement

PEED ben 660 6ube65esshdb beens 14

TABLE OF AUTHORITIES—(Continued)

Other Authority Page

EPA Civil Penalty Policy, Env’t Rep. (BNA)

(Fed. Laws) 41:2991 (1984) ............eeeeeees 15

EPA Office of Water, Compliance/Enforcement

Strategy for the Clean Water Act (1983) ......... 14

Motion for Leave to File and Brief of Amicus Curiae,

Connecticut Business and Industry Association,

In Support of Petition for Writ of Certiorari, No.

DT toeus desu eds epaea ide Rémmne nee ae et 3

K. Davis, Administrative Law Treatise (1982 Supp.) .. 21

C. Thach, The Creation of the Presidency 1775-1789

SEED 6 So escnscedesesedbescawesedsseeteescece 11

Scalia, The Doctrine of Standing as an Essential

Element of the Separation of Powers, 17 Suffolk

ele CE GED Ke ceccccestWeeesescsesccs 5

Letter from Stephen D. Ramsey, Chief, Environmental

Enforcement Section, U.S. Department of Justice,

to the Honorable H. Lee Sarokin, U.S. District

Court for the District of New Jersey

Ss GE Khe cCbcsdccncsdesneeuddcces 22, 23, 24

vi

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, INC.,

Respondents

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF OF AMICI CURIAE

BETHLEHEM STEEL CORPORATION,

ACME STEEL COMPANY, ARMCO INCORPORATED,

INLAND STEEL COMPANY, LTV STEEL

COMPANY, INC., USX CORPORATION, AND

AMERICAN IRON AND STEEL INSTITUTE

IN SUPPORT OF PETITIONER

Pursuant to Rule 36.2 of the Rules of this Court, Bethle-

hem Steel Corporation, Acme Steel Company, Armco Incor-

porated, Inland Steel Company, LTV Steel Company, Inc.,

USX Corporation, and American Iron and Stee! Institute

submit this brief as amici curiae in support of the Peti-

2

tioner, Gwaltney of Smithfield, Ltd. (“Gwaltney’’). All par-

ties to this case have consented to the filing of this brief, as

evidenced by letters of consent filed with the Clerk of this

Court.

STATEMENT OF INTEREST OF AMICI CURIAE

Amici Bethlehem Steel Corporation (“‘Bethlehem’’), Acme

Steel Company (“‘Acme’’), Armco Incorporated, Inland Stee!

Company, LTV Steel Company, Inc., (“LTV Steel’’), and

USX Corporation are engaged in the manufacture of iron

and steel. Each holds one or more National Pollutant Dis

charge Elimination System (““NPDES’’) permits issued pur-

suant to the Federal Water Pollution Control Act, 33 U.S.C.

§ 1251 et seq., also known as the Clean Water Act (‘the

Act’”’).' All but Aeme and LTV Steel have been defendants

in at least one citizen suit under section 505 of the Act, 33

U.S.C. § 1365.

Amicus American Iron and Steel Institute (““AISI’’) is a

trade organization composed of manufacturers, processors,

and other producers of iron and steel and related products,

including all corporate amici. Virtually every member of

AISI is subject te regulation under the Clean Water Act,

and many of them also have been defendants in citizen suits.

AISI presents the views of its members on legal issues and

issues of public policy which are of concern to its members.

Amici support the proposition urged by Gwaltney that the

Clean Water Act does not authorize private citizens to sue

for civil penalties for purely past violations of the Act. The

1. All citations to the Act herein incorporate relevant amendments

under the Water Quality Act of 1987, Pub. L. No. 100-4, 101 “tat. 7

(1987), unless otherwise noted.

3

question we brief is of much broader scope and concern,

however. Amici believe that this case raises important

issues concerning the constitutionality of the Clean Water

of the Act. Amici submit that the Clean Water Act’s grant

to private citizens of a license to prosecute actions on behalf

of the government violates Article II of the Constitution.

This unconstitutional statutory scheme has resulted in

unjust, inconsistent, and improper execution of the Act.

SUMMARY OF THE ARGUMENT

As interpreted by many federal district courts and by the

district and circuit courts in this case, section 505 of the

Clean Water Act authorizes “any citizen” to bring a civil

acuon in federal court to enforce any standards, limitations,

or orders promulgated under the Act—essentially displacing

the system of governmental enforcement created by Con-

gress in the Act’s other provisions. The citizen plaintiffs,

most of whom are environmental interest organizations

suing in a representative and corporate capacity, are not

subject to the restraints on governmental enforcement.’ But

in every citizen suit seeking civil penalties for alleged viola-

tion of the Clean Water Act, the exclusive interest advanced

is that of the government, not the citizen plaintiffs.

The citizen suit provision of the Clean Water Act thus

unconstitutionally vests power to enforce the law in persons

who are not duly appointed Officers of the United States.

Citizen plaintiffs are perm ved to bring enforcement actions

as to which they have no personal stake in the outcome, to

vindicaté only the government's interest, without any

accountability to the President or other Officer of the

2. For an extensive review of the use that these organizations have

made of the Clean Water Act citizen suit provision and the abuse that

may have resulted, the Court is_respectfully referred to the Amicus

Curae brief of the Connecticut Business and Industry Association filed in

support of the Petition for Writ of Certiorari in this case. Amici expressly

adopt the arguments set forth therein.

4

United States appointed pursuant to Article II. in a complex

regulatory scheme such as the Clean Water Act, the

national goals of uniform, fair and effective enforcement of

the law are undermined by permitting private persons with

no executive authority or responsibility to usurp and disrupt

the execution of the law by the Executive Branch.

If this Court rules in favor of Gwaltney it may not be

necessary to reach the constitutional issue briefed herein.

We urge the Court, nevertheless, to consider the serious

constitutional implications of reading the Clean Water Act

to permit private citizens to sue for civil penalties payable to

the Treasury.

I. Only the Government's Interest Is Involved in a Citi-

zen Suit for Civil Penalties under Section 505 of the

Clean Water Act.

The Federal Water Pollution Control Act (Clean Water

Act) created a two-tiered, federal-state partnership to

achieve the statutory objective of restoring and maintaining

the quality of the nation’s waters. The United States Envi-

ronmental Protection Agency (“EPA” or “the Agency’)

plays the lead role in this partnership, with primary respon-

sibility for: (1) collecting, generating, and disseminating

information, §§ 1314(a), (c), (d), (f), (j), and 1342(p), inter

alia; (2) establishing and approving guidelines and stan-

dards, §§ 1311, 1312, 1313(b), 1314(b), (fi), 1317, 1342(p),

1345(d); (3) applying established guidelines and engineering

judgment in issuing and reviewing permits, and granting

certain variances from established standards, §§ 1311(g),

(h), (nm), 1342(a), (df); and (4) monitoring and enforcing

compliance, §§ 1319, 1342(h), (i). A number of options are

available to EPA when it determines that enforcement is

appropriate, including administrative abatement and compli-

ance orders, § 131%a); administrative penalties, § 1319%g),

civil actions for injunctive relief or civil penalties, or both,

§ 1319%b), (d); and criminal enforcement, § 1319(c). See also

§ 131%f).

5

States also have important responsibilities under the Act.

They establish and revise water quality standards, with

the approval of EPA, § 1313(a), (c); identify special water

quality problems, their sources, and control strategies,

§§ 1313(d), 1314(1); implement continuous water quality

planning, § 1313(e); and consult with EPA on numerous

issues arising under the Act. States also may develop

approved programs under which they issue and enforce dis-

charge permits, subject to EPA's right to enforce where a

state declines to do so after notice, or in the event of a

state’s widespread failure to enforce. §§ 131%a), 1342(b)-(c),

40 C.F.R. Part 123. State enforcement options must be simi-

lar to EPA’s in order for a state to obtain program approval.

§ 1342(b\7).

The Clean Water Act thus establishes a complex scheme

in which EPA and the states play complementary roles.

Individual states exercise a fair degree of autonomy, while

EPA ensures nationwide consistency in implementation of

the Act through its policy-making, standard-setting, and

oversight activities, as well as its ultimate enforcement

authority. It is EPA’s ability to coordinate the execution of

the Act which makes uniform, fair, and effective enforce-

ment possible.

Nothing about the Clean Water Act as described thus far

is constitutionally objectionable. What makes the Act offen-

sive to the Constitution is its provision for parallel, yet

completely separate and distinct, enforcement by private

citizens. Under section 505 of the Act, citizens who allege

that they meet minimal standing requirements’® may seek

3. Bald allegations of harm to one’s aesthetic sensibility or recrea-

tional interest are sufficient to establish standing to sue. Sierra Club v.

Morton, 405 U.S. 727 (1972), Sierra Club v. SCM Corp., 747 F.2d 99 (2d

Cir. 1984); Sierre Club v. Simkins Indus. 617 F. Supp. 1120, 1131 (D.

Md. 1985). For a discussion of the particular importance of standing as a

safeguard against the usurpation of the executive function, see Scalia,

The Doetrine of Standing as an Essential Element of the Separation of

Powers, 17 Suffolk U.L. Rev. 881, 894-97 (1983).

6

enforcement of a perceived violation of the Act in a federal

district court, without regard to or, in many cases, despite

EPA's or a state’s determination that enforcement is not

warranted. As interpreted by a number of lower courts, the

Act authorizes any citizen to bring an enforcement action in

federal court, without having an interest in the outcome of

the suit which is distinguishable from the interest of any

other citizens or the government itself.

Under section 505(a\1), any citizen may bring a civil

action in a federal district court against

any person who is alleged to be in violation of (A) an

effluent standard or limitation . . . or (B) an order issued

by the Administrator [of EPA] or a State with respect to

such a standard or limitation... .

33 U.S.C. § 1365(a\1). Prior to bringing such an action, a

citizen must provide EPA, the appropriate state agency and

the alleged vic' ‘or sixty days’ written notice of the citizen's

intention to file suit. § 1365 (bx 1A). While EPA may inter-

vene in the suit as a matter of right, there is no requirement

that it do so. § 1365(c\(2). If a citizen complies with the Act’s

sixty-day notice provision, and no administrative action was

previously commenced or administrative penalty paid under

section 30%g) of the Act, there is no statutory bar to a

citizen suit unless, prior to the filing of the citizen’s com-

plaint, EPA or the state “has commenced and is diligently

prosecuting’ a separate civil or criminal action to require

compliance. § 1365(b\1\(B). Once the statutory conditions to

filing a citizen suit complaint have been met, the district

court is required to take jurisdiction. If a violation of the

Act is proved, the district court is to determine whether ‘‘to

apply any appropriate civil penalties,”” § 1365(a), of up to

7

$25,000 per day‘ for each violation under section 30%c) and

(d) of the Act, 33 U.S.C. § 1319(c), (d).°

When Congress authorized private citizens to seek and

district courts to award civil penalties, it also clearly indi-

cated that citizen plaintiffs were not to derive any monetary

benefit from a successful citizen suit. The Senate Report

that accompanied the Clean Water Act is explicit on this

point: “any penalties imposed would . . . not be recovered by

the complainant.’ In holding that the Clean Water Act did

not create a private cause of action for damages, this Court

noted that any civil penalties awarded in a citizen suit would

have to be paid to the federal treasury as miscellaneous

receipts. Middlesex County Sewerage Authority v. National

Sea Clammers Association, 453 U.S. 1, 14 n.25 (1981). Hav-

ing no right to moneys payable to the Treasury, citizen suit

plaintiffs have no more interest in a civil penalty than any

other citizen.’ The funds, once paid, belong exclusively to

the government. Congress intended that the exclusive bene-

4. Prior to the enactment of the Water Quality Act of 1987 the maxi-

mum penalty was $10,000 per day of violation.

5. In Stoddard v. Western Carolina Regional Sewer Authority, 784

F.2d 1200, 1208 (4th Cir. 1986), the court found that the language of §

30%d) “leaves little doubt that, under the circumstances of |that| case, a

penalty in some form is mandated.”’

6. S. Rep. No. 414, 92d Cong., Ist Sess. 79, reprinted in 1972 U.S.

Code Cong. & Ad. News 3668, 3745, and in EPA, Legal Compilation

(Water), Supp. 1, vol. 1, at 90, 168 (1973). The House Committee on

Publie Works stated similarly that “|t}he penalties imposed would be

deposited as miscellaneous receipts in the treasury and not be recovered

by the citizen bringing the suit."" H.R. Rep. No. 911, 92d Cong., 2d Sess.

133, reprinted in EPA, Legal Compilation (Water), Supp. 1, vol. 1, at 205,

337 (1973).

7. This Brief addresses only the constitutional! infirmity of citizen suits

for civil penalties payable to the Treasury. The question whether injunc-

tive relief could be sought in citizen suits without running afoul of the

constitutional principles implicated by suits for civil penalties is not

before the Court. Respondents Chesapeake Bay Foundation, Inc. and

Natural Resources Defense Council, Inc. have alleged no facts that would

entitle them to injunctive relief.

ficiary of civil penalties awarded in a Clean Water Act case

would be the government.

Reduced to its essence, section 505 is an open invitation to

any citizen to assume the mantle of government for the

purpose of enforcing the Act.* This violates the fundamental

constitutional principle that the determination whether and

by what means the law will be enforced is exclusively within

the executive authority of the President.’ To ensure, inter

alia, accountability and consistency in the execution of the

laws, the Framers vested “the executive Power . . . of the

United States” in the President. U.S. Const. art. II, § 1, el.

1. Amici respectfully assert that Congress exceeded its con-

stitutional powers when it granted citizens the purported

right to bring enforcement actions under section 505 for

civil penalties payable solely to the federal treasury. '°

Il. Citizens Bringing Enforcement Actions under the

Clean Water Act Purport to Exercise a Power Exclu-

sively Reserved to Executive Officers Appointed

under Article II of the Constitation.

The President, as Chief Executive Officer of the United

States, is constitutionally charged with executing federal

law. His right and duty to execute the laws are encom-

8. The plethora of citizen suits is not surprising, given the application

of strict liability, Connecticut Fund for the Environment v. Job Plating

Co., 623 F. Supp. 207, 218 (D. Conn. 1985), and the Act's grant of

authority to award counsel fees and litigation responses to a ‘ ‘prevailing

or substantially prevailing party,” 33 U.S.C. § 1365¢d).

9. Amici certainly do not question the authority of the courts or heads

of departments to appoint inferior Officers when such appointment is

authorized by statute. Art. II, § 2, cl. 2. Unlike independent cov ise! or

special prosecutors, private citizens suing under § 505 have not been

appointed by, and so are not subject to the supervision of, any persons

authorized to do so under Article II. See infra note 12.

10. Contra, Chesapeake Bay Foundation, Inc. v. Bethlehem Steel Corp..

Civ. No. Y-84-1620, slip op. at 1-10 (D. Md. Jan. 30, 1987). See also

Student Public Interest Research Group of New Jersey v Monsanto Co.

600 F. Supp. 1474, 1478-79 (D.N.J. 1985).

or in the Heads of Departments.

The Appointments Clause sets forth the exclusive procedure

for selecting and izing those who may exe-

11. See, e.g., Myers v. United States, 272 U.S. 52, 117 (1926) (“The

vesting of the executive power in the President was essentially a grant of

the power to execute the laws."’).

424 U.S. 1, 127 (1976). These are the only methods by

which Officers of the United States may be selected."

The power to remove Officers of the United States from

their positions also is vested in the President, except where

Congress chooses to avail itself of the remedy of impeach-

ment. Cf Bowsher v. Synar, 106 S. Ct. 3181, 3187-88

(1986). The removal power has been acknowledged as prop-

erly a part of the President's executive authority since the

first session of the First Congress in 1789. Myers oe. United

States, 272 U.S. 52, 111-57 (1926). As recounted in Myers

12. The phrase “Heads of Departments.” used as it is in conjunction

with the phrase “Courts of Law,” suggests that the Departments

referred to are themselves om the Executiwe Branch or at least

have seme connection with that branch. While the Clause

expressly authormes Congress to vest the appointment of certain

officers in the “Courts of Law.” the absence of similar language te

include Congress must mean that neither Congress nor its officers

were included withen the language “Heads of Departments” m thes

part of el. 2.

Buckley « Veleo, 424 US. 1, 127 (1976) see alee od. at 128-29.

13 Unless thei selection is elsewhere provided for, aff officers of

the United States are te be appointed im accordance with the

|Appewtments! Clause... . Ne class or type of officer is excluded

because of its spemal functions The President appoints judicial as

well as executive officers. Newher has it been disputed __ _ that the

Clause controls the appointment of the members of a typical

admomstratrve agency even theugh its functions. as this Court

recognized in Humphrey's Executor ¢ United States, 296 US. 602.

624 (1935). may be “predominantly quasi-judicial and quasi-

legrsiative rather than executive The Court im that case carefully

emphasized that although the members of such agenoes were to he

independent of the Executive im thew day-to-day operations, the

bE xecutive was not excluded from selecting them. /¢_. at 625-428.

Id at 132 33 temphases om oral) See else Uneted States ¢ Germaune.

#9 US 508, WS 10 (1878) (That all persons whe can be said to held an

office under the government about to be established under the Constitu-

tron were ontended to te onctuded withon one of the other of these modes

of appeantment there can be but litth doubt.” Jd at 510).

1]

and other sources,'‘ spirited debate in that first session of

Congress led to “‘a legislative declaration that the power to

remove officers appointed by the President and the Senate

vested [by virtue of the Constitution] in the President

alone.”’ Jd. at 114.

The Myers Court noted that the President may have need

to “supervise and guide’’ those who execute the laws in

their construction of the statutes which they enforce, “‘in

order to secure that unitary and uniform execution of the

laws which Article II of the Constitution evidently contem-

plated in vesting general executive power in the President

alone.”’ 272 U.S. at 135 (emphasis added).

Furthermore, [l]jaws are often passed with specific provi-

sion for the adoption of regulations by a department or

bureau head to make the law workable and effective. The

ability and judgment manifested by the official thus

empowered, as well as his energy and stimulation of his

subordinates, are subjects which the President must con-

sider and supervise in his administrative control.

Id. Even where duties may be “peculiarly and specifically

committed to the discretion of a particular officer,’’ or quasi-

judicial in nature, the President may remove an officer on

the ground that the discretion statutorily entrusted to him

“thas not been on the whole intelligently or wisely exercised.

Otherwise [the President] does not discharge his own consti-

tutional duty of seeing that the laws be faithfully executed.”’

Id.

It is clear that to ensure proper execution of the laws the

President must have responsibility, in the form of both polit-

ical accountability and unitary control and supervision, to

ensure uniform implementation of the laws. These principles

underlie Article II itself, the powers granted therein, and

14. See, e.g., C. Thach, The Creation of the Presidency 1775-1789 at

140-65 (1969).

12

those derived from it. These very principles are violated and

Article II is contravened by citizen suits for civil penalties

under section 505 of the Clean Water Act.

Section 505’s purported grant of authority to self-

appointed citizen enforcers to perform the ‘‘core’’ executive

function of bringing enforcement suits on behalf of the gov-

ernment offends Article I], under which only the President

and executive Officers may be charged with executing the

laws of the United States. Bowsher v. Synar, 106 S. Ct.

3181, 3187-89, 3191 (1986); Buckley v. Valeo, 424 U.S. 1,

118-19, 126 (1976). Buckley and Bowsher examined the

nature of statutorily authorized actions in order to deter-

mine whether the authorizations were consistent with Arti-

cle Il. The critical question in both cases was whether

delegated powers involved “‘execution of the law’’ in a con-

stitutional sense. Buckley, 424 U.S. at 137-41; Bowsher, 106

S. Ct. at 3191-92. Finding that they did, this Court held

that the powers in question constitutionally could not be

assigned to persons who were not appointed (Buckley) or

removable (Bowsher) in accordance with Article II. Buckley,

424 U.S. at 140-41; Bowsher, 106 S. Ct. at 2192.

Buckley and Bowsher provide complementary statements

of the test to be applied in such cases. According to Buckley,

the proper inquiry is whether the assigned powers involve

the exercise of ‘‘significant authority pursuant to the laws of

the United States.” 424 U.S. at 126. Bowsher phrased the

test in the negative: whether the powers are “essentially

ministerial and mechanical so that their performance does

not constitute ‘execution of the law’ in a meaningful sense.”

106 S. Ct. at 3192. Only Article II Officers or their desig-

nees may exercise ‘‘significant authority’’ pursuant to fed-

eral law or “‘execute the law.”

Authority to bring civil actions for the imposition of civil

penalties payable to the federal treasury is manifestly sig-

nificant. It also is unquestionably part of the executive func-

13

tion. Such

enforcement power, exemplified by . . . discretionary

power to seek judicial relief, is authority that cannot possi-

bly be regarded as merely in aid of the legislative function

of Congress. A lawsuit is the ultimate remedy for a breach

of the law, and it is to the President . . . that the Consti-

tution entrusts the responsibility to “take Care that the

Laws be faithfully executed.”

Buckley, 424 U.S. at 138 (citation omitted and emphasis

added); see also id. at 139-40. Moreover, any decision

whether to bring a legal action necessarily requires the

exercise of ‘‘judgment concerning facts that affect the appli-

cation’’ of the law—hardly a ministerial or mechanical func-

tion. Bowsher, 106 S. Ct. at 3192. Citizen suits for civil

penalties under section 505 thus clearly constitute ‘‘execu-

tion of the law”’ within Article II, and the grant of authority

to bring such suits to persons who are not appointed by the

President or subject to his supervision and removal is uncon-

stitutional.'®

III. Citizens Are Not Subject to Any of the Constraints

which Apply to the Exercise of Enforcement Discre-

tion by EPA and the States.

The constitutional flaw in authorizing execution of the law

by private citizens is of much more than theoretical signifi-

cance under the Clean Water Act. Judicious and consistent

exercise of enforcement discretion is critical to the fairness,

15. Qui tam actions sometimes have been cited wrongly as precedent

for or analogous to citizen suits under § 505. See, e.g., Chesapeake Bay

Foundation v. Bethlehem Steel Corp., 608 F. Supp. 440, 449 (D. Md.

1985). “Qui tam” is a shortened form of a Latin phrase which means

“who as well for the lord the king as for himself sues,"’ and qui tam

plaintiffs are entitled to receive a portion of any penalties recovered. See,

e.g., 31 U.S.C. § 3730, which provides for civil actions by informers under

the False Claims Act, and entitles such informers to up to 25 percent of

the proceeds of their suits. § 3730(b), (cX2). Under § 505, however, any

civil penalties obtained are payable only to the Treasury—citizens have no

claim on the proceeds. We have been unable to find any reported decision

addressing the constitutionality of qui tam actions in the face of a chal-

lenge under Article II.

14

consistency, and ultimately the integrity of the NPDES per-

mitting program. The permitting program is, in turn, cen-

tral to the Act’s highly complex, technology-based

regulatory scheme to improve the quality of the nation’s

waters. Decisions whether, when, why, and against whom to

bring enforcement actions thus go to the heart of the overall

purpose of the Act. There is no more “‘significant authority”

pursuant to the Clean Water Act than to sue in federal court

to enforce it.

EPA and the state agencies charged with responsibility to

enforce the Act and to monitor compliance with NPDES

permits issued thereunder must have discretionary author-

ity in their enforcement activity. Among the major long-

term goals of the Act are the promotion of voluntary

compliance with established standards and limitations wher-

ever possible, and the ‘return [of] all noncomplying permit-

tees to compliance as quickly and efficiently as practicable.”

EPA Office of Water, Compliance/Enforcement Strategy for

the Clean Water Act 24 (1983). The most efficient means to

ensure compliance often will not be an enforcement action.

EPA’s policy guidelines for enforcement personnel include

various considerations to be taken into account in determin-

ing an appropriate “level of enforcement response,” includ-

ing “fairness and equity, national consistency and the

integrity of the NPDES program.’’'® Moreover, EPA has

16. EPA's guidance documents state that

[w}hen making determinations on the level of the enforcement

response, the technical and legal staff should consider the degree of

variance from the permit condition or legal requirement, the duration

of the violation, previous enforcement actions taken against the viola-

tor, and the deterrent effect of the response on the similarly situated

regulated community. Equally important are considerations of fair-

ness and equity, national consistency and the integrity of the NPDES

program.

EPA Office of Water, The Enforcement Management System: National

Pollutant Discharge Elimination System (Clean Water Act), Attachment

B: Enforcement Response Guide 1 (1986). See also id., Attachment A:

Violation Review Process 1-2 (noting that the decision to bring an

enforcement action should not be based solely on whether there has been

a violation, and setting forth other factors to be considered).

15

issued a Civil Penalty Policy to guide its personnel in calcu-

lating an appropriate penalty in enforcement actions. This

policy was prepared, in part, to further the Act’s goals of

“deterrence, [and] fair and equitable treatment of the regu-

lated community.’’ EPA Civil Penalty Policy, Env’t. Rep.

(BNA) (Fed. Laws) 41:2991 (Feb. 16, 1984).

EPA and the regulated community have operated under

the shared assumption that when Congress mandated the

establishment of technology-based standards and limitations

under the Act it was, in a sense, requiring EPA to reach

some reasonable compromise between the limits of engi-

neering capability and predictability, on the one hand. and

the technology-forcing goals of the Act on the other. EPA

performs studies and then establishes standards and Efflu-

ent Limitations Guidelines (‘“‘ELGs’’) at levels which it

believes can be justified as a general matter,'’ while essen-

tially conceding that permittees cannot necessarily achieve

one hundred percent compliance with them. The reality is

that, in setting its standards, EPA has relied on enforce-

ment discretion as a safety valve to relieve the unfairness of

a rigid liability scheme applied to uncertain and predictive

standards, and the courts have approved this approach. Wey-

erhaeuser Co. v. Costle, 590 F.2d 1011, 1057-58 (D.C. Cir.

1978); CPC International, Inc. v. Train, 540 F.2d 1329, 1338

(8th Cir. 1976), cert. denied, 430 U.S. 966 (1977). But ef.

Marathon Oil Co. v. EPA, 564 F.2d 1253, 1272-73 (9th Cir.

17. For a general discussion of the process by which EPA develops

ELGs, see 38 Fed. Reg. 21202, 21202-0383 (Aug. 6, 1973).

16

1977), FMC Corp. v. Trein, 539 F.2d 973, 986 (4th Cir.

1976).'*

Some permit exceedances result from circumstances

which are simply beyond the reasonable control of permit-

tees. EPA’s “bypass” and “upset”’ regulations, 40 C.F.R. §

122.41(m), (n), address certain exceptional incidents of this

nature, but those regulations do not cover all such incidents.

EPA recognizes that its upset and bypass regulations fail to

address certain permit exceedances which should be

excused. It therefore relies upon enforcement discretion as

a supplement to the upset and bypass exceptions to strict

liability."

18. See also Preamble to Proposed Iron and Steel Manufacturing Point

Source Category Effluent Limitations Guidelines, Pretreatment Stan-

dards, and New Source Performance Standards, 46 Fed. Reg. 1858 (Jan-

uary 7, 1981). This preamble addresses enforcement discretion as follows:

One additional topic that warrants discussion is the operation of

EPA’s NPDES enforcement program, many aspects of which have

been considered in developing this regulation. The Agency wishes to

emphasize that, although the CWA is a strict liability statute, the

initiation of enforcement proceedings by EPA is discretionary. EPA

has exercised and intends to exercise that discretion in a manner

which recognizes and promotes good faith compliance efforts and

conserves enforcement resources so as to maximize their availabil-

ity for actions against those who fail to make good faith efforts to

comply with the Act.

46 Fed. Reg. at 1870 (emphasis added). The preamble to the Final Rule

contains virtually the same language. 47 Fed. Reg. 23258, 23281 (May 27.

1982).

19. See, eg.. 49 Fed. Reg. 37998, 38038-39 (September 26, 1984)

(stating that the NPDES regulations would not include a formal upset

defense for exceedances of water-quality-based permit limitations

because it would not be “practical” to implement; instead, the Agency

would “continue to evaluate such discharges on a case-by-case basis and

use its discretion in deciding whether to bring an enforcement action.”’).

44 Fed. Reg. 32854, 32862-63 (June 7, 1979) (indicating that the Agency

will consider factors not expressly included in the “bypass” regulations

when exercising its discretion to enforce against permit exceedances

caused by the bypassing of pollution control equipment, and that even

where a permittee cannot identify the cause of an alleged upset, “the

Agency may still exercise prosecutorial discretion not to enforce in situa-

tions where it is not warranted."’)

17

In cases where no generally applicable ELG or other stan-

dard has been promulgated for a particular effluent or dis-

charge, a permit writer exercises “Best Professional

Judgment” to establish a limitation in a particular permit.

tive in nature, and the best judgment of even a knowledge-

able permit writer may be mistaken.” There is virtually no

recourse for permittees unfortunate enough to find them-

selves subject to permit limitations based upon such errone-

exercise of enforcement discretion by the executive agency

charged with enforcement responsibility.*' The exercise of

enforcement discretion is essential to assure equitable

enforcement of the law in such cases.

section 505 are not subject to EPA’s enforcement guidelines

and policies or to the constraints of good faith and fair

leali hict ye pee : ies. They

20. At least one court has noted, and EPA has tacitly admitted, that

occasionally the Agency's prediction of what results a given technology

will produce may simply be incorrect. FMC Corp. v. Train, 539 F.2d 973,

984 (4th Cir. 1976), Preamble to Final Nationa! Pollutant Discharge Elim-

ination System Permit Regulations, 49 Fed Reg. 37998, 38039-40 (Sep-

tember 26, 1984) (noting that the regulations as of that date did not allow

modification of a permit during its term on the grounds of either mis-

taken prediction by the permit writer or failure of technology, and indica-

ting that the allowable bases for permit modification were being

expanded to include such grounds, effective October 26, 1984). The rele-

vant permit modification provision has been codified at 40 C.F.R. §

122.62(a 17). Cf. 33 U.S.C. § 1342 (oN2KBHE).

21. Even permittees who are unable to comply with their permits due

to mistaken prediction or failure of technology, and who since late 1984

may qualify for permit modification under 40 C_F_R. § 122.62(a17), are

subject to liability under the Act. They too must rely on the good faith

exercise of enforcement discretion by the executive agencies with respect

to those permit exceedances which occur prior to any permit modifica

tion.

18

may have no interest in the effective, fair, nationally uni-

form, and constitutional enforcement of the statute. More-

over, their exercise of the unlimited authority to bring suit

granted by section 505 can and does interfere with execu-

tion of the Act by EPA and state agencies.

IV. Citizen Suits for Civil Penalties under Section 505

Interfere with Executive Enforcement of the Act and

Produce Inconsistent and Unjust Results.

Citizen plaintiffs under section 505 have been viewed as

“standing in the shoes of’ EPA or state enforcement agen-

cies, and as seeking the same relief. See, ¢.g., Chesapeake

Bay Foundation v. Bethlehem Steel Corp., 608 F. Supp. 440,

448 (D. Md. 1985). The Bethlehem court held that citizens

therefore should have at least as long a period in which to

bring enforcement actions as EPA would have—and a

longer period than a state enforcing agency would have with

respect to the very same alleged violations. Jd. at 446-50

(federal five-year period of limitations applies to citizens,

rather than one- or three-year state statutes of limita-

tions).** The Bethlehem court reasoned that citizens’

““recourse to the courts is appropriate only when the

administrative action taken is less than adequate,’"’ and

that ‘‘[a] citizen has no opportunity to determine whether

the EPA administrative enforcement procedures are ade-

quate until the limitations period for the EPA has nearly

passed.”’ Jd. at 448, quoting in part Massachusetts v. United

States Veterans’ Administration, 541 F.2d 119, 121 (1st Cir.

1976). Accord, Student Public Interest Research Group of

New Jersey v. Tenneco Polymers, Inc., 602 F. Supp. 1394,

1399 (D.N.J. 1985).

22. The Bethlehem court recognized the need for national uniformity in

the enforcement of the Clean Water Act when it rejected the analogous

one-year state statute of limitations in favor of the five year statute

provided in 28 U.S.C. § 2462, 608 F. Supp. at 447-50. See, ¢.g.. id. at 448

(“The application of a state statute of limitations would | produce non

uniform enforcement as between citizens and the government "')

19

Aside from the question of what standards citizens or the

courts are to apply in determining whether governmental

enforcement is “adequate,”’ the quoted language from the

Bethiehem case raises at least two important issues. First.

how do citizen suits for civil penalties affect the overall

execution of the Act, in terms of the timing or sequence of

private and governmental enforcement actions? Second,

how do such suits affect the overall execution of the Act

when they seek penalties for alleged violations which federal

and state authorities have determined not to be proper sub-

jects for enforcement? These issues will be addressed sepa-

rately.

Citizen suits threatened and instituted in recent years

have raised thorny problems of consistency and finality of

decisions relating to governmental enforcement under other

provisions of the Act. Whether couched in terms of issue or

claim preclusion, “diligent prosecution’’ under section

505(b\M 1B), administrative prerogative or efficiency, or

basic fairness, the problems all concern the tension between

executive enforcement and citizen enforcement of the Act.

Should preclusive effect be given to governmental enforce-

ment actions instituted and concluded prior to the issuance

of citizens’ sixty-day notice letters, those instituted after the

issuance of such letters, or others instituted after com-

mencement of a citizens’ suit? At least one court has held

that a civil enforcement action instituted and concluded by

the State of Connecticut prior to institution of a citizen suit

did not bar a later citizen suit on the same alleged viola-

tions. Connecticut Fund for the Environment v. L & W

Industries, 631 F. Supp. 1289, 1291 (D. Conn. 1986). But see

Student Public Interest Research Group of New Jersey +.

Georgia-Pacific Corp., 615 F. Supp. 1419, 1432 (D.N.J.

1985) (prior EPA enforcement action barred subsequent citi-

zens’ litigation on violations adjudicated therein).

Amici believe that the L & W Industries case was wrongly

decided. That decision demonstrates, however, the lengths

to which some courts have gone in interpreting section 505

to authorize citizens’ second-guessing of governmental

enforcement under the Act. Duplicative enforcement actions

serious defect of such actions, however, is their obvious

potential to produce unfair results and inconsistent, unnec-

essary, and redundant enforcement proceedings, thus inter-

fering substantially with executive implementation of the

Act.

Other forms of citizen interference with executive admin-

istration of the Act are less obvious but equally significant.

By requiring citizens to give notice of their intent to sue, 33

U.S.C. § 1365(cX3), Congress clearly intended to trigger

administrative review of the alleged violations and to pro-

vide a discrete opportunity for executive enforcement.” Yet,

theoretically, an alleged violation that occurred as few as

sixty-one days prior to the filing of the complaint in a citizen

suit, and as to which no governmental enforcement determi-

nation had been made, would be sufficient to require a dis-

trict court to hear the case. The same hypothetical violation

would give rise to jurisdiction even if the appropriate admin-

istrative agencies had made an enforcement decision not to

prosecute. In either event, exercise of the courts’ jurisdic-

tion effectively precludes or overrules the executive

23 Courts have undermined this process by allowing citizens to amend

their complaints to allege violations which had not been identified in the

orginal 60-day notice, without requiring any additional notice to EPA.

See, «@., Chesapeake Bay Foundation v. Bethlehem Steel Corp., 608 F.

Supp. 440, 450-51 (D. Md. 1985): Kitlutsisti v. Arco Alaska, Inc., 592 F.

Supp. 832, 842 (D. Alaska 1984), vacated as moot, 782 F.2d 800 (9th Cir.

1986).

agency's determination whether to penalize specific permit

exceedances.“*

A similar situation may arise where a permittee works in

close communication and consultation with the federal or

ee ee ee

mental treatment technology. The agency's exercise of its

enforcement discretion not to bring an action for violations

of a NPDES permit while the permittee is working in good

faith to fine tune or adjust new pollution control technology,

or new applications of existing technology, should not be

ignored or summarily rejected by a district court in a citizen

suit.

If the regulated community cannot have confidence that

positions it has negotiated in good faith with the regulators

will not be subject to attack in parallel enforcement actions

under section 505, a major incentive for industry to volun-

tarily engage in efforts to further the Act's goals will be

eliminated. No permittee is likely to undertake experimental

applications of technology under such circumstances, and

valuable innovations thus may not be achieved.”’

24. It is not clear whether agency decisions not to enforce against

specific permit exceedances are subject to judicial review, or if so, what

the appropriate standard may be. See Heckler ». Chaney, 105 S.Ct. 1649

(1985). Without deciding these issues, courts hearing cases under § 505

have essentially disregarded the executive agency's judgment regarding

appropriate enforcement of the Act. This runs counter to the fundamen

tal principle of administrative law that courts should avoid substituting

their own judgment for that of the agency on determinations of diseretion

and policy. K. Davis, Administrative Law Treative § 29.00-1 at 520 (1982

Supp.)

25. EPA's administration of the NPDES program also may be more

difficult as a result of recent citizen suits. Without the ability to rely on

the Agency's proper exercise of enforcement discretion, permittees’ vul

nerability to such suits will lead them to oppose ELAjs, chahenge more

proposed permits, and request more permit modifications im order to

ensure that they can comply with permit limitations a// of the time.

The foregoing are but a few examples of situations which

arise under the complex, technical regulatory scheme of the

Clean Water Act. If the law is to be executed in a fair and

rational manner, and if the NPDES permitting process is to

have integrity, enforcement of the Act must be coordinated

by the Executive Branch as required by the Constitution.”

The dilemma that citizen suits pose for the regulators is

reflected in the government's inability to adopt a rational,

consistent position with respect to them. While professing

not to oppose citizen suits per se, the Department of Justice

has argued on behalf of EPA that “the United States is not

and should not be bound” by their results unless the Execu-

tive joins as a party. Letter from Stephen D. Ramsey,

26. The Executive's ability to intervene 9 oteen eats USC

§ 136MeW2), does not provide suffierent executive ccombnation and con

trol of such suits. There is no indication that PPA could intervene in a

citizen's action in order te stop that actor fm \ me forward where it

has determined that no enfore nent «= aporoe@ete for example Sere

Rethichem Steel Corp. « Traum S44 Fd 657 Oh Old Coe 197K), cont

denied, 490 U.S. 975 (1977). Nor should the gowernment be required te

expend its mitted enforcement resources fo onberoenme on every crtwen

suit

ea

Hs Ltt i

“ah i a

i] HHL

TE We

a25 GLE

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asin eesiaens tie!

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— —

24

if the United States were legally precluded from filing a

subsequent action because a citizen suit on the same viola-

tions had been resolved, the entire enforcement scheme

envisioned by Congress would be disrupted. Under such

circumstances, the United States would be forced to spend

its hmited resources monitoring and intervening in citizen

suits in order to protect federal enforcement interests,

thus destroying .. . government enforcement priorities

Requiring the United States to intervene or lose its

right to litygate a particular violation would also enable

citizens and setthng defendants to dictate an enforcement

timetable to the federal government, contrary to the

desire of Congress that the government be the primary

enforcer of the statute.

Ramsey letter at 3-4, App. A-4 te -5.

Mr. Ramsey also noted that the motivation and priorities

of citizen plaintiffs may differ from those of government

enforcers.

[A] private plaintiff has an interest in remedying the spe-

cific local problem that gave rise to his or her standing to

sue. Such a plaintiff may not be interested in advancing

the goals ef the national law enforcement scheme or the

broader puble interest un an enforcement strategy that is

onmented toward establishing favorable precedents of

national appheatlty. developing consistency in particular

areas of the law. and otherwise maximizing the deterrent

effects of enforcement efforts. Allowing the public inter-

est, as represented by the United States, to be bound by

ityration between private parties would deprive all mem-

bers of the puble not sharing the parties’ narrower inter-

ests of their day in court.

Ramsey letter at 4, App. A-5. While such private plaintiffs

may indeed have other interests to advance, it is clear that

all section 505 suits are actions to enforce the Act and are

brought to vindicate the government's interest. The incon.

sistences which result from private enforcement exemplify

25

the dangers of assigning executive authority to private per-

sons not subject to the supervision of the Executive Branch.

Unlike executive officers under Article II, citizens suing

under section 505 are accountable to no one. This state of

affairs is antithetical to the Framers’ notion of responsible

government in general, and responsibility in the execution

of the laws in particular. It violates the letter and the spirit

of Article II of the Constitution.

26

CONCLUSION

For the reasons set forth in Petitioner’s Brief, amici urge

the Court to hold that the Clean Water Act does not autho-

rize private citizens to sue for civil penalties for purely past

violations of the Act. In the alternative, and for the reasons

set forth herein, amici urge the Court to hold that the Act’s

grant of authority to private citizens to sue for civil penal-

ties violates Article I] of the Constitution.

Respectfully submitted,

Benjamin Rosenberg*

Brigid E. Kenney

Therese M. Schmitt

Venable, Baetjer and Howard

1800 Mercantile Bank & Trust Bldg.

Two Hopkins Plaza

Baltimore, Maryland 21201

(301) 244-7400

Counsel for Amici

*Counsel of Record

March 27, 1987

APPENDIX

Honorable H. Lee Sarokin

United States District Court

District of New Jersey

United States Courthouse and

Post Office Building, Room 347

Newark, New Jersey 07102

Re: Students Public Interest Research Group of

New Jersey, Inc. v. Public Service Electric

and Gas Company, Civ. No. 83-1603 SA

Dear Judge Sarokin:

On May 21, 1984, the United States Environmental Pro-

tection Agency (EPA) was ordered to show cause why the

proposed Consent Decree in the above-named action should

not be entered. The government filed comments objecting to

certain terms of the Decree. See the Response of the United

States Environmental Protection Agency, Region II, Office

of General Counsel, Water, Grants, and General Law

Branch to Order to Show Cause. As set forth in that

response, it is the United States’ position that the above-

named action, which was commenced pursuant to the

authority of section 505 of the Clean Water Act, 33 U.S.C.

1365, does not in any way limit or restrict the power and

authority of the government to address past, continuing, or

prospective violations of the Act under its statutory enforce-

ment authority pursuant to section 309 of the Act, 33

U.S.C. 1319.

We have recently received a brief filed by Plaintiff Stu-

dent Public Interest Research Group of New Jersey and a

A-l

A-2

letter from counsel for Plaintiff. This letter is intended to

clarify the United States’ position in response to continued

inquiry from counsel for both parties and the brief filed by

Defendants. The government will of course be available to

appear at any hearing set by the Court to address the mat-

ters set forth in this letter. We consider this issue to be of

fundament [sic] importance to the government's ability to

enforce environmental statutes and to the viability of citizen

enforcement. Our views are as follows.

The United States’ authority to enforce regulations, stan-

dards, and permit conditions established under the Clean

Water Act is not affected by entry of a consent decree

between two private parties in an action under

section 505 of the Act. We are concerned that the language

of paragraph 7, page 7 and paragraph 12, page 10 of the

proposed Decree may be construed as limiting the

ment powers of EPA. It is the United States’ position that

these provisions cannot and do not interfere with the rights

of the United States. Nonetheless, to resolve all doubt

regarding these provisions, the court may wish to

from entering the Decree until the terms of the Decree

conform fully with the statutory scheme and existing law.

The court's authority to monitor the terms of a decree is

well-settled. Prior to approving a consent decree a court

must satisfy itself of the settiement’s overall fairness to

beneficiaries and consistency with the public interest. Citi-

zens for a Better Environment v. Gorsuch, 718 F.2d 1117,

1126 (D.C. Cir. 1983), cert. denied, 104 S. Ct. 2668 (1984). In

determining consistency with the public interest, the court

must focus on the purposes the relevant statute is intended

to serve. Jd. at 1125; see System Federation No. 91 v.

Wright, 364 U.S. 642, 651 (1961) (district court's authority

to adopt a consent decree comes only from statute decree is

intended to enforce, not from parties’ consent to decree):

United States ». Motor Vehicle Mfrs. Ass'n of the United

States, Inc., 643 F.2d 644, 650-51 (9th Cir. 1981) (parties

may not enter into consent judgment inconsistent with stat-

under the circumstances, the court must eschew any rubber

approval. United States v. Seymour Recycling Corp.,

. Supp. 1334, 1337-38 (S.D. Indiana 1982); see United

. Hooker Chemicals & Plasties Corp., 540 F. Supp.

-73 (W.D.N.Y. 1982). Independent evaluation by

is particularly important where, as here, the

on a federal environmental statute and the

He

Hi

gies

Lit

ity

gi

:

|

to restrict the authority of the United

court may wish to require the parties to amend

to conform to Water Act. In any

however, the Decree

ra

tt

:

;

He

:

lk

Private citizen suits under the Clean Air and Clean Water

Acts were intended to supplement and encourage federal

and state enforcement efforts. See Environmen.al Policy

Division, Congressional Research Service, A Legislative

History of the Clean Air Amendments of 1970, at 263, 436-

39 (1974). See also Environmental Policy Division, Congres-

sional Research Service, A Legislative History of the Water

Pollution Control Act Amendments of 1972, at 1497-98

Acts are achieved. Citizens must give notice to the United

States prior to filing suit, and if the United States proceeds

of the Clean Water Act, 33 U.S.C. 1365041 MAMD.'

1 Citizens may intervene in a federal enforcement action, 33 U.S.C.

§$1365¢b4 10B), and are permitted by regulation, 28 C_F.R. 50.7. te com

ment on proposed consent decrees.

ee

A-4

In cases where the United States does not file an enforce-

ment action, whether because of res »urce limitations or

other factors, nothing in the Clean Water Act or its legisla-

tive history suggests that the preeminent government

enforcement role could be undermined by private party liti-

gation. Neither notice of the suit nor notice of a proposed or

final settlement alters the United States’ rights under the

Act, absent intervention cr control of the litigation by the

United States. See Montana v. United States, 440 U.S. 147

(1979).

The continuing authority of the United States to institute

an enforcement action following a suit by a private plaintiff

has been repeatedly upheld. See, e.g., United States v. East

Baton Rouge Parish School Board, 594 F.2d 56 (5th Cir.

1979); see Hathorn v. Lovorn, 457 U.S. 255, 268 n.23 (1982);

City of Richmond v. United States, 422 U.S. 358, 373-74 n.6

(1975); Donovan v. Cunningham, 716 F.2d 1455, 1462 (5th

Cir. 1983). The authority exists because the interests of the

United States and private plaintiffs are distinct. ‘“The

United States has an interest in enforcing federal !aw that is

independent of any claims by private citizens.’ United

States v. East Baton Rouge Parish School Board, 594 F.2d at

58. See generally 18 C. Wright & A. Miller, Federal Practice

and Procedure [4458 at 517-20 (1981).

Indeed, if the United States were legally precluded from

filing a subsequent action because a citizen suit on the same

violations had been resolved, the entire enforcement scheme

envisioned by Congress would be disrupted. Under such

circumstances, the United States would be forced to spend

its limited resources monitoring and intervening in citizen

suits in order to protect federal enforcement interests, thus

destroying both government enforcement priorities and the

purpose of the citizen suit provision. As the court stated in

the United States v. East Baton Rouge Parish School Board,

594 F. 2d at 58, binding the United States to private plain-

tiff litigation “‘would irapose an onerous and extensive bur-

den upon the United States to monitor private litigation in

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order to ensure that possible mishandling of a claim by a

private plaintiff could be corrected by intervention.’’ Requir-

ing the United States to intervene or lose its right to litigate

a particular violation would also enable citizens and settling

defendants to dictate an enforcement timetable to the fed-

eral government, contrary to the desire of Congress that

the government be the primary enforcer of the statute.

Moreover, a private plaintiff has an interest in remedying

the specific local problem that gave rise to his or her stand-

ing to sue. Such a piaintiff may not be interested in advanc-

ing the g vals of the national law enforcement scheme or the

broader public interest in an enforcement strategy that is

oriented toward establishing favorable precedents of

naticnal applicability, developing consistency in particular

areas of the law, and otherwise maximizing the deterrent

effects of enforcement efforts. Allowing the public interest,

as represented by the United States, to be bound by litiga-

tion between private parties would deprive all members of

the public not sharing the parties’ narrower interests of

their day in court.

Finally, where the United States retains the autnority to

seek both compliance and penalties for the entire period of

any noncompliance, including noncompliance that continues

during and after a citizen suit, a defendant has an additional

incentive to provide and adhere to a reasonable compliance

schedule when negotiating with a citizen plaintiff. This pro-

motes the statutory scheme.

In the Senate Report supporting the Solid Waste Disposal

Act Amendments of 1983, which added to the citizen suit

provision of that Act the same penalty provision present in

the Clean Water Act, the concerns discussed above led the

Senate to note expressly that private litigation of a request

for civil penalties or the granting of such an award ‘“‘will

not, in any way, limit or preclude the right of the United

States to seek or obtain the payment of penaities arising out

of the same or related violations, except that the maximum

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penalty to be paid for each violation shall not exceed that

provided in section 3008” (the government enforcement pro-

vision). The United States agrees that under the Clean

Water Act as well, the full extent of a violator’s civil penalty

liability may be recovered only once; however, as under the

amended Solid Waste Disposal Act, the government may

seek to recover any portion of a violator’s potential civil

penalty liability not recovered in a prior citizen suit. Simi-

larly, assuming a continuing violation, the United States

may seek to obtain compliance with the Clean Water Act

and its implementing regulations more rapidly or more com-

prehensively than provided by the relief obtained in a prior

citizen suit.

As a matter of practice, the United States will very rarely

initiate an enforcement action following the resolution of a

citizen suit. Limited federal enforcement resources will

require the United States to evaluate carefully the results of

a prior citizen suit and to weigh the need for and cost of an

additional suit against other federal enforcement priorities.

Only in unusual circumstances would the United States

reverse its initial discretionary decision not to proceed

against the violation in issue.

In sum, there are sound legal and policy reasons why the

United States is not and should not be bound by the results

of a citizen suit to which the government is not a party.

Thus, the United States wishes to make clear that it does

not consider itself bound in any way by the Decree. For the

reasons discussed above, the court may wish to require mod-

ification of the terms of the Decree to reflect the structure

and purposes of the Clean Water Act and existing case law.

- ee a

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We would be pleased to provide any additional clarifica-

tion that is needed regarding our position on this issue.

Respectfully submitted,

Stephen D. Ramsey

Chief, Environmental

Enforcement Section

U.S. Department of Justice,

Room 1521

10th and Pennsylvania Avenue, N.W.

Washington, D.C. 20530

cc: Turner T. Smith, Jr., Esq.

K. Dennis Sisk, Esq.

Carl L. Sulzberger, Esq.

Bruce J. Terris, Esq.

Carolyn A. Smith, Esq.

Michael Gordon, Esq.

Mr. George McCann

Richard H. Mays, Esq.

Douglas R. Blazey, Esq.

Richard G. Tisch, Esq.