Amicus Curiae Brief — Steel Co. v. Citizens for Better Environment

(9) Supreme Court, U.S.

No. 96-643 FILED

THE STEEL COMPANY, a/k/a

CHICAGO STEEL AND PICKLING COMPANY,

Petitioner,

v.

CITIZENS FOR A BETTER ENVIRONMENT,

Respondent.

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Petition for Writ of Certiorari to the United States

Court of Appeals for the Seventh Circuit

~~

BRIEF AMICUS CURIAE

OF PACIFIC LEGAL FOUNDATION

IN SUPPORT OF PETITIONER

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ROBIN L. RIVETT

*M. REED HOPPER

*Counsel of Record

Pacific Legal Foundation

2151 River Plaza Drive,

Suite 305

Sacramento, California 95833

Telephone: (916) 641-8888

Attorneys for Amicus Curiae

Pacific Legal Foundation

ie fbf

I. THIS COURT SHOULD GRANT THE

WRIT OF CERTIORARI TO RESOLVE

A CONFLICT BETWEEN THE SIXTH

AND SEVENTH CIRCUITS ON THE

SCOPE OF THE CITIZEN SUIT

PROVISION OF EPCRA ...............

A. On Facts Indistinguishable from This Case,

3 the Sixth Circuit Held Citizens May Not

Sue for Wholly Past Violations of EPCRA

B. The Seventh Circuit Decision Contradicts

the Sixth Circuit Decision in Every Particular .

Il. THIS COURT SHOULD GRANT THE

WRIT OF CERTIORARI TO RESOLVE

THE CONFLICT BETWEEN THE SEVENTH

CIRCUIT’S DECISION AND THIS COURT’S

OPINION IN GWALTNEY.............

CEE. SC eNOS Se SSS e eho oe Ch

TABLE OF AUTHORITIES CITED

Cases

Atlantic States Legal Foundation v. United _

Musical, Inc., 61 F.3d 473 (6th Cir. 1995) . . 3,5-9,14

Babbitt v. Sweet Home Chapter of Communities

for a Great Oregon, _U.S. __,

Bae es EE nh wa cast nbc eee ees 1

Bennett v. Spears, Supreme Court No. 95-813 ...... 1

Citizens for a Better Environment v. The Steel

Company, 90 F.3d 1237 (1996) ..... .. 5-6,8-10,13-14

Douglas County, Oregon v. Babbitt,

Supreme Court No. 95-371 ..............4.. l

Gwaltney v. Chesapeake Bay Foundation, Inc.,

ee So!) eee 2-4,7,9-15

Hallstrom v. Tillamook County, 493 U.S. 20 (1989) .. 1

Pacific Legal Foundation v. Andrus, 657 F.2d 829

Suen le GUE aS VW sie Paw Vip h bis Ue coe l

Rules and Regulations

i I ies a aK hc wk 6

Page

Statutes

gh | ep a eee oe 13

ee Ee a Sy ies Fh POE OS ee MOS 3

I EU ods oc ca ebb cee besc ceeds 13

DT Th wen hetas oe viccevedeeeh eect ot s6 13

Ss ss Cre ee Ceee + area ech ee ek 8

Ai tty 2 Pe ee ee eee Oe 1

Miscellaneous

General Accounting Office, EPA’s Toxic Release

Inventory Is Useful But Can Be Improved,

GAO/RCED 91-121 (une, 1991) ........... 5

of an amicus curiae brief in this matter.

PLF has participated in numerous cases involving the

interpretation of federal environmental laws. For example,

PLF was a party of record in Pacific Legal Foundation v.

Andrus, 657 F.2d 829 (6th Cir. 1981). PLF also participated

as amicus curiae in this Court in Bennett v. Spears, Supreme

Court No. 95-813; Douglas County, Oregon v. Babbitt,

Supreme Court No. 95-371; Babbitt v. Sweet Home Chapter

of Communities for a Great Oregon, _U.S. _, 115 S. Ct.

2407 (1995); and Hallstrom v. Tillamook County, 493 U.S.

20 (1989).

The Seventh Circuit ruling in this case, authorizing

citizen enforcement of wholly past reporting violations under

the Emergency Planning and Community Right-to-Know Act

of 1986 (EPCRA), 42 U.S.C. § 11001, ef seg., expressly

2

contradicts a Sixth Circuit ruling on indistinguishable facts.

This ruling also conflicts with the reasoning of this Court's

unanimous decision in Gwaltney v. Chesapeake Bay

Foundation, Inc., 484 U.S. 49 (1987).

At issue in this case is not only the plain meaning of the

citizen suit provision of EPCRA, but also the policy interests

behind such provisions. Whereas the Sixth Circuit adopted

this Court’s reasoning in Gwaliney, that citizen suits (with

reasoned the main purpose of such citizen suits is to reward

citizen enforcers.

The Seventh Circuit ruling in this case creates

unnecessary confusion in the important area f citizen

enforcement of environmental laws. Review by this Court is

necessary, therefore, to avoid confusion and promote the

intent of Congress as expressed in the Emergency Planning

and Community Right-to-Know Act.

in support of rational environmental protection and economic

rights will provide a necessary viewpoint on the issues

presented in this case.

oe

STATEMENT OF THE CASE

The question presented in this case is whether Congress

intended to authorize citizens, under the Emergency Planning

and Community Right-to-Know Act, to seek penalties for

violations that were cured before the citizen suit was filed.

The facts which give rise to this question follow.

3

The Steel Company (Company) is a small, minority-owned

steel manufacturer and pickler in Chicago, Illinois. The

Company started in 1971 and employs about 55 people. The

Company is subject to EPCRA which requires, among other

things, the annual submission of chemical inventory and release

forms to federal, state, and local entities pursuant to

Sections 312 and 313. On March 16, 1995, Citizens for a

Better Environment (CBE), an environmental citizen group,

sent an EPCRA 60-day notice of intent to sue to the United

States Environmental Protection Agency (EPA), the state, and

the Company alleging the Company had never filed the

Company filed the forms with the EPA. EPA chose not to

CBE filed suit in the Northern District Court of Illinois seeking,

A few days before CBE filed suit, the Sixth Circuit held,

on facts indistinguishable from this case, that citizens could not

sue for past EPCRA violations. Allantic States Legal

Foundation v. United Musical, Inc., 61 F.3d 473 (6th Cir.

1995). The Company filed a motion to dismiss based on the

Sixth Circuit’s opinion, which was granted. CBE appealed, and

on July 23, 1996, the Seventh Circuit reversed.

Although the Seventh Circuit noted the District Court’s

reliance on United Musical was not misplaced, and that United

Musical relied on Gwaltney, the Court nevertheless rejected the

Sixth Circuit holding. In Gwaltney, this Court considered the

60-day notice provision for citizen suits under the Clean Water

Act, 33 U.S.C. § 1251, et seg., and unanimously held the

purpose of the provision is to allow the alleged violator to come

into compliance, thus making a citizen suit unnecessary.

According to this Court, the power to sue for penalties based on

past violations rested solely with the government. In this case,

however, the Seventh Circuit reasoned it is more important to

unanimous cpinion of this Court in Gwaltney in which this

5

THIS COURT SHOULD GRANT THE WRIT OF

CERTIORARI TO RESOLVE A CONFLICT

BETWEEN THE SIXTH AND SEVENTH CIRCUITS

ON THE SCOPE OF THE CITIZEN SUIT

PROVISION OF EPCRA

There can be no doubt that a real conflict exists between

the Sixth and Seventh Circuits as to the scope of the citizen

suit provision of EPCRA. The Seventh Circuit expressly

stated, “we disagree with the Sixth Circuit’s interpretation of

the citizen enforcement provisions of EPCRA in Atlantic

States Legal Foundation, Inc. v. United Musical Instruments

U.S.A.” Poy Mp eetinge gt ro ype

Company, 90 F.3d 1237, 1242 n.1 (1996) (Citizens). In

United Musical, the Sixth Circuit held, “the plain language

and structure of EPCRA lead us to conclude that citizen

plaintiffs may not bring actions that seek civil penalties for

purely historic violations.” United Musical, 61 F.3d at 478.

This conflict is untenazble and should be resolved.

Under Sections 312 and 313 of EPCRA, civil penalties

can amount to $25,000 per violation. Each day is a separate

violation. Citizens, 90 F.3d at 1241. Nevertheless, as the

Seventh Circuit observed in this case, “[mJany industrial

companies subject to the Act remained unaware of its

existence long after it went into effect” in 1986. Jd. at 1238.

The EPA estimated that of the approximately 30,000

facilities required to submit Section 313 forms, over one-

third had not. General Accounting Office, EPA’s Toxic

6

EPCRA Sections 311 and 312 potentially affect 866,285

facilities. 60 Fed. Reg. 35201. For those facilities that are

still unaware of EPCRA, the potential liability is immense.

Indeed, CBE alleges the Company in this case was out of

compliance for approximately eight years. The Company’s

potential liability under a retroactive citizen suit in the

Seventh Circuit is, therefore, close to $73,000,000, whereas

in the Sixth Circuit the Company would have no citizen suit

liability (although in either jurisdiction the federal

government may pursue its own enforcement actions for

historical violations).

This level of disparate treatment under the law has

significant ramifications for the economic competitiveness of

companies and is based solely on the federal circuit in which

they happen to be located. This Court should review the

Seventh Circuit decision in light of United Musical and

provide a consistent interpretation of EPCRA. To that end,

an analysis of the Circuits’ conflicting viewpoints is

instructive.

A. On Facts Indistinguishable from This Case,

the Sixth Circuit Held Citizens May Not

Sue for Wholly Past Violations of EPCRA

In United Musical, the Atlantic States Legal Foundation

sent United Musical Instruments a notice of intent to sue for

that company’s failure to submit the chemical release

reporting forms required by Section 313 of EPCRA. Within

the 60-day notice period, the company submitted the forms,

and the foundation sued the company in federal District

Court for the past violation. (The Seventh Circuit held these

facts are indistinguishable from the present case. Citizens,

90 F.3d at 1242.) The District Court dismissed the case as

time-barred. On appeal, the Sixth Circuit upheld the dis-

missal because EPCRA does not allow citizen suits for past

'

Another decisive factor in the court’s determination was

this Court’s discussion in the Gwaltney opinion concerning

stated the EPA might, for example, deem it in the public

interest to forego civil penalties in a particular case for some

concession from the violator and that allowing citizen suits

years later for the same violation would curtail considerably

such discretion and change the citizen’s role from interstitial

to potentially intrusive. Jd. at 61. This Court concluded

that Congress could not have intended such a result. Jd.

Contrary to the Sixth Circuit’s ruling in United Musical,

that EPCRA does not allow citizen suits for past violations,

the Seventh Circuit in this case considered the same citizen

suit provision of EPCRA and came to the opposite

conclusion.

B. The Seventh Circuit Decision Contradicts

the Sixth Circuit Decision in Every Particular

The Seventh Circuit in this case also looked first to the

language of the statute. But, contrary to the Sixth Circuit

finding in United Musical, the Seventh Circuit found the

citizen suit provision of EPCRA does look to the past.

However, where the Sixth Circuit required explicit

congressional language allowing citizen suits for historical

violations, the Seventh Circuit was satisfied with something

much less.

For example, the Seventh Circuit noted EPCRA

authorizes citizens to sue “for failure to” comply with the

“can indicate a failure past or present.” Citizens, 90 F.3d

at 1243. The Seventh Circuit also noted that for citizen suits

notice of intent to sue must be given to the EPA, the alleged

violator, and “the State in which the alleged violation

occurs.” Jd. at 1244. Although the term “occurs” in the

notice provision clearly connotes something ongoing, the

Seventh Circuit unabashedly maintained, “[nJowhere does

EPCRA contain the ‘is occurring’ language of the CWA

[Clean Water Act] to indicate that citizens must allege an

ongoing violation.” Jd.

Aside from its strained reading of the statutory language,

the Seventh Circuit cites nothing in the legislative history to

justify its conclusion that EPCRA authorizes citizen suits for

past violations. Rather, the court infers Congress intended

to allow such suits when it amended the Clean Air Act.

42 U.S.C. § 7401, et seq. In 1990, Congress amended the

Clean Air Act to allow citizen enforcement actions for

9

According to the Seventh Circuit, the rationale behind

Gwaltney, that the existence of a 60-day notice provision

allows violators to come into compliance and that allowing

citizens to sue after violations ceased would defeat the

purpose of the notice provision and undercut the EPA’s

enforcement discretion, becomes less compelling when

considered in light of this amendment to the Clean Air Act.

Id. But the Sixth Circuit had a response to that argument.

In United Musical, the court acknowledged this

argument has a certain logic but determined it is unpersuasive

since one can argue with equal force that by amending the

to limit EPCRA’s citizen suit provision to violations existing

at the time the suit is filed. United Musical, 61 F.3d at 477.

In fact, the Sixth Circuit concluded in the absence of explicit

congressional language mandating such a result-as in the

amended Clean Air Act--the court must reject the argument.

Id.

Finally, the Seventh Circuit considered the purpose of

interpreted to reward citizens for their enforcement efforts.

Citizens, 90 F.3d at 1244. According to the court, allowing

Id. However, this view runs counter to that adopted by the

Sixth Circuit in United Musical and this Court in Gwaltney

that citizen suit provisions, like the provision in this case, are

intended to only supplement, but not replace, the enforce-

ment efforts of the government.

The scope of citizen suit actions in our environmental

Statutes is an important question of law. The split in the

Circuits occasioned by the Seventh Circuit decision in this

case is the very type of conflict that demands resolution by

this Court. It causes confusion and results in contradictory

eee

10

enforcement of the law. Commercial businesses operate in

numerous jurisdictions and are subject to a myriad of

complex, often onerous, regulatory programs that hinder or

stymie economic production. These entities should not be

subject to uncertain or inconsistent application of federal law.

For these reasons, this Court should grant the writ of

THIS COURT SHOULD GRANT THE WRIT OF

CERTIORARI TO RESOLVE THE CONFLICT

BETWEEN THE SEVENTH CIRCUIT’S DECISION

AND THIS COURT’S OPINION IN GWALTNEY

In Gwaltney, this Court had to consider whether the

Clean Water Act (CWA) conferred jurisdiction over citizen

suits for wholly past violations. This Court determined the

Act did not confer such jurisdiction citing, among other

things, the forward-looking language, and the purpose of the

citizen suit provision.

This Court stated one of the most striking indicia of the

prospective orientation of the citizen suit is the pervasive use

of the present tense. Gwaltney, 484 U.S. at 59. By way of

example, this Court cited the notice provision of the Clean

Water Act that citizen-plaintiffs must give notice to the

alleged violator, the administrator of the EPA, and the state

in which the violation “occurs.”- Jd at 59. This

interpretation of the word “occurs” as present tense stands

in stark contrast to the interpretation given this same word

in the notice provision of EPCRA by the Seventh Circuit.

Contrary to a plain reading of the statute, the Seventh Circuit

held the enforcement provisions of EPCRA, including the

word “occurs,” are not likewise cast in the present tense.

Citizens, 90 F.3d at 1244.

But this Court did not stop there. Rather, it noted a

contrary view would create a second and even more

disturbing anomaly. This Court pointed out that the bar on

citizen suits when governmental enforcement action is under

way suggests that the citizen suit is meant to supplement

rather than supplant government action. Jd. “Permitting

citizen suits for wholly past violations of the Act could

undermine the supplementary role envisioned for the citizen

suit.” Jd. To illustrate this danger, this Court posed a

hypothetical.

Suppose the administrator of the EPA identified a

violator and issued a compliance order. Jd. “Suppose

12

further that the Administrator agreed not to assess or other-

wise seek civil penalties on the condition that the violator

take some extreme corrective action, such as to install

particularly effective but expensive machinery, that it

otherwise would not be obliged to take.” Jd. at 61. “If

citizens could file suit, months or years later, in order to

seek the civil penalties the Administrator chose to forego,

then the Administrator’s discretion to enforce the Act in the

public interest would be curtailed considerably.” Jd. “The

same might be said of the discretion of state enforcement

authorities.” Jd. This Court concluded an interpretation of

the scope of the citizen suit provision of the Act, allowing

citizen suits for past violations, would change the nature of

the citizen’s role from interstitial to potentially intrusive. Jd.

“We cannot agree that Congress intended such a result.” /d.

Clearly, Congress did not intend such a result under the

Clean Water Act or the Emergency Planning and Community

Right-to-Know Act. This Court’s policy rationale for

limiting the scope of the citizen suit provision of the CWA

applies equally to EPCRA: EPCRA contains a prohibition

on citizen suits when the government acts; the notice

provision of EPCRA contains forward-looking language; and

the legislative history does not suggest a contrary con-

gressional intent. Nevertheless, the Seventh Circuit flatly

rejected this Court’s reasoning in Gwaltney.

The sole basis for the court’s rejection of this Court's

policy considerations was an amendment to an act other than

EPCRA. The Seventh Circuit held the reasoning of this

Court is no longer as compelling as it was when Gwaltney

was decided because, since then, Congress amended the

Clean Air Act, to permit citizen enforcement actions for past

violations, yet left the notice provision intact. Citizens,

90 F.3d at 1244. The Seventh Circuit apparently believes

that when Congress amended the Clean Air Act to explicitly

allow citizen suits for past violations any statute with a

Have these acts also been changed by amendment of the

Air . —- @

analyzing information. /d. Put simply, the court stated, if

citizens can’t sue, they can’t recover the costs of their

efforts. Jd. “Private enforcement of the reporting

requirements would undoubtedly drop off.” Jd. at 1245.

What the Seventh Circuit overlooks, however, is that

EPCRA, like the CWA, contains a provision that bars citizen

suits when the government chooses to enforce the Act.

42 U.S.C. § 11046(e). If the government exercises its

enforcement discretion, citizens cannot bring a suit and

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to prospective relief leaves citizens no worse off than if the

government chooses to act, and the government has

discretion to act in all cases. To achieve, in all cases, the

ends suggested by the Seventh Circuit--to reward citizens for

their enforcement efforts--EPCRA would have to be read to

authorize a citizen suit every time a citizen sends a notice of

intent to sue, even if the government pursues a discretionary

enforcement action. Clearly, Congress did not intend such

a result.

The Seventh Circuit laments thai if citizen suits are not

allowed for wholly past violations under EPCRA, citizen

suits could only proceed when a violator receives notice of

intent to sue and still fails to comply. Citizens, 90 F.3d

at 1244. That is correct and that is precisely what Congress

intended. The Seventh Circuit has forgotten the paramount

objective of citizen suits is to encourage compliance and

assist, not replace, government law enforcement. That is the

theme pervading this Court’s ruling in Gwaltney. However,

the Seventh Circuit would convert that objective to a form of

vigilante justice by encouraging citizen lawsuits that cannot

further environmental protection but serve only to tax judicial

resources, punish regulated parties, and reward citizen-

plaintiffs in bounty hunter fashion.

The Seventh Circuit decision flatly contradicts this

Court’s reasoning in Gwaltney that if citizen suits may target

wholly past violations, the forward-looking requirement of

notice to the alleged violator becomes gratuitous. This

conflict creates confusion about the purpose and scope of the

citizen suit provision of EPCRA and other environmental

laws. This Court should grant the writ of certiorari to rectify

this confusion.

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CONCLUSION

The Seventh Circuit’s decision is in conflict with the

Sixth Circuit’s decision in United Musical and inconsistent

with the unanimous opinion of this Court in Gwaltney.

These conflicts place regulated entities in an untenable

position by subjecting them to uncertain liability and

inconsistent enforcement under EPCRA. To ensure an even-

handed application of the law and avoid confusion over the

scope of citizen suit provisions in environmental statutes, this

Court should grant the writ of certiorari and review and

overturn the Seventh Circuit decision.

DATED: November, 1996.

Respectfully submitted,

ROBIN L. RIVETT

*M. REED HOPPER

*Counsel of Record

Pacific Legal Foundation

2151 River Plaza Drive,

Suite 305

Sacramento, California 95833

Telephone: (916) 641-8888

Attorneys for Amicus Curiae

Pacific Legal Foundation