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

n\ | FILED [t

10

MAY 2 1997

No. 96-643 CLERK

In THE

Supreme Court of the United States

OCTOBER TERM, 1996

THE STEEL CoMPANY, a/k/a

CHICAGO STEEL AND PICKLING COMPANY,

e Petitioner,

CITIZENS FOR A BETTER ENVIRONMENT,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Seventh Circuit

BRIEF OF AMICUS CURIAE

CLEAN AIR IMPLEMENTATION PROJECT

IN SUPPORT OF PETITIONER

WILLIAM H. LEwiIs, JR.*

MICHAEL A. McCorp

FARLEIGH H. EARHART

1800 M Street, N.W.

Washington, D.C. 20036

(202) 467-7145

Of Counsel:

MORGAN, LEwis & Bockius LLP

1800 M Street, N.W.

Washington, D.C. 20036

(202) 467-7000 * Counsel of Record

WILSON - EPes PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

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TABLE OF CONTENTS

SON IOS ett cnetn nerecntemternmnerrseesnecsmenmmeeneneneeees

SUMMARY OF ARGUMENT ......... 2... een eeeeceeeeee

QE <tecssnestermecneremmnmeceenenemmansananeenes

SECTION 304(a) (1) OF THE CLEAN AIR ACT

SHOULD BE CONSTRUED AS ONLY AUTHOR-

IZING CITIZEN SUITS FOR ONGOING VIOLA-

SR etn aati titahictitiainibinittniitatinanan

A. Under Section 304(a) (1), A Citizen Suit Seek-

ing Civil Penalties May Be Brought Only Where

Injunctive Relief Is Also Necessary To Compel

B. The 60-Day Notice Requirement In Section

304(b) (1) Continues To Provide A Period Dur-

C. Interpreting Section 304(a)(1) To Authorize

Citizen Suits To Recover Civil Penalties For

Violations That Are Not Ongoing Would Violate

The Case Or Controversy Requirement Of Arti-

cle III Of The Constitution ~.................-.......-....

1. A citizen-plaintiff seeking to recover civil

penalties can only satisfy the injury-in-fact

requirement for Article ITI standing where a

2. The payment of civil penalties by a defend-

ant for violations that are not ongoing would

not redress private citizens’ alleged injuries..

FEI ccrcscnsnseczceeninnessemneennertmamsmmninmaeeanempenmneete

ii

TABLE OF AUTHORITIES

CASES: Page

Adair v. Troy State University of Montgomery,

892 F. Supp. 1401 (M.D. Ala. 1995) -................. 18, 14

Allen v. Wright, 468 U.S. 787 (1984) ...................... 22, 24

Atlantic States Legal Found., Inc. v. United Musi-

cal Instruments, Inc., 61 F.8d 478 (6th Cir.

1995) = . 2

Diamond v. Charles, 476 U.S. 54 (1986) -............... 24

Gwaltney v. Chesapeake Bay Found., Inc., 484 U.S.

4D CIGD) cccccencnsee passim

Los Angeles v. Lyons, 461 U.S. 95 (1988) ............... 21

Lujan v. Defenders of Wildlife, 504 U.S. 555

(| SS ee ee .20, 22, 23

Middlesex County Sewerage Auth. v. National Sea

Clammers Ass’n, 458 U.S. 1 (1981) 24

Public Interest Research Group of New Jersey v.

Elf Atochem North America, Inc., 817 F. Supp.

1164 (D. N.J. 1998) =or 15, 23

Public Interest Research Group of New Jersey v.

Yates Industries, Inc., 790 F. Supp. 511 (D. N.J.

SEED nnevncunntaean 15, 23

Satterfield v. J.M. Huber Corp., 888 F. Supp. 1561

8 | 18, 14

Sosna v. Iowa, 419 U.S. 398 (1974) ......................... 22

Valley Forge Christian College v. Americans

United for Separation of Church & State, Inc.,

454 U.S. 464 (1982) viii ooanidedbiniedabtahioe 20

Warth v. Seldin, 422 U.S. 490 (1975) ..-................... 20

DOCKETED CASES:

Clean Air Implementation Project v. EPA, Nos.

Abe Y 8) OS) 3} a 5

CONSTITUTION:

6G, © » eee. 16

U.S. Constitution, art. TTT -.W22..2....2.ceccc ee ceeeeeeeeeee passim

STATUTES AND REGULATIONS:

Clean Air Act, 42 U.S.C. § 7604(a) (1) -................ passim

Clean Air Act, 42 U.S.C. § 7418 - .......................... 15

TABLE OF AUTHORITIES—Continued

Page

Clean Air Act, 42 U.S.C. §7418(a) (1), (a) (3),

(b) (1), (b) (2), (d) (1) (A), and (d)(1)(B)... = 15

Clean Water Act, 33 U.S.C. §§ 1251, et seg. ............ B, 6, 23

Clean Water Act, 33 U.S.C. § 1866 2. passim

Emergency Planning and Community Right-to-

Know Act, 42 U.S.C. § 11046 0. 2

Clean Air Act Amendments of 1990, Pub. L. No.

101-549, 104 Stat. 2899 ee passim

40 C.F.R. § 70.6(a) (8) (iii) (A) ~~... 6

62 Fed. Reg. 8314 (1997) a 5

62 Ped. Reg. 8814, 8818 (1997) 5

MISCELLANEOUS:

136 Cong. Rec. E3677 (daily ed. Nov. 2, 1990)... 12, 13

In THE

Supreme Court of the United States

OcToBER TERM, 1996

No. 96-643

THe STEEL COMPANY, a/k/a

CHICAGO STEEL AND PICKLING COMPANY,

e. Petitioner,

CITIZENS FOR A BETTER ENVIRONMENT,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Seventh Circuit

BRIEF OF AMICUS CURIAE

CLEAN AIR IMPLEMENTATION PROJECT

IN SUPPORT OF PETITIONER

INTERESTS OF AMICUS CURIAE

Pursuant to Rule 37 of the Rules of the Supreme

Court,’ the Amicus Curiae, Clean Air Implementation

Project, files this brief in support of the petitioner, The

Steel Company. The Clean Air Implementation Project

(CAIP) is a nonprofit trade association whose members

represent a broad cross-section of American industry.

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

have been filed with the Clerk of this Court.

Counsel for a party did not author this brief in whole or in

part. No person or entity, other than the Amicus Curiae, its mem-

bers, or its counsel made a monetary contribution to the preparation

and submission of this brief.

2

The members of CAIP consist of 22 major corporations

in the chemical, petroleum, pharmaceutical, and other

industries. CAIP regularly addresses issues of interest to

its members relating to the development and implementa-

tion of requirements under federal and state clean air

programs. In particular, CAIP has participated on behalf

of its members in major rulemaking proceedings involving

the implementation of the Clean Air Act by the United

States Environmental Protection Agency (EPA) and has

submitted extensive comments in those proceedings.

CAIP also has brought judicial challenges to a number

of final rules promulgated by EPA under the Clean Air

Act.

CAIP adopts and supports petitioner’s argument for

reversal of the decision below on grounds that citizen

suits under section 326 of the Emergency Planning and

Community Right-to-Know Act (EPCRA), 42 U.S.C.

§ 11046 (1994), may not be brought to seek civil penal-

ties for wholly past violations, as the Sixth Circuit held

in Atlantic States Legal Found., Inc. v. United Musical

Instruments, Inc., 61 F.3d 473 (6th Cir. 1995). This

brief is submitted to supplement that argument by bring-

ing to the Court’s attention the fact that the Seventh

Circuit in its opinion in this case misconstrued the citizen

suit provisions of the Clean Air Act.

INTRODUCTION

In reaching its decision in the instant case, the Seventh

Circuit relied in part on Congress’ amendment of the

Clean Air Act citizen suit provision in 1990. The court

of appeals stated that the amendment “permit[ted] citizen

enforcement actions for past violations, yet left the notice

provision intact.” Pet. App. Al3. According to the court

of appeals, the fact that Congress had, in its view, au-

thorized citizen suits under the Clean Air Act for past

violations that had been corrected, but had not altered

the provision requiring that a plaintiff provide 60 days’

i

fe

. Al3.

App

In Gwaltney, this Court relied in part on an essentially

identical 60-day notice provision to conclude that the “to

be in violation” language in the Clean Water Act citizen

suit provision does not encompass past violations that are

not ongoing. The Court concluded that “the purpose of

notice to the alleged violator is to give it an opportunity

to bring itself into complete compliance with the Act”

and that, if citizen suits may target past violations that

ongoing, “the requirement of notice to the alleged

becomes gratuitous.” 484 U.S. at 60.

question addressed in this brief is whether Con-

, in amending section 304(a)(1) of the Clean Air

42 USC. § 7604(a)(1) (1994), intended to au-

8

BH

Be

to take the necessary steps to achieve a state of “ongoing”

compliance. This brief challenges the Seventh Circuit's

construction of the language in section 304(a)(1) estab-

lishing jurisdictional prerequisites for citizen suits, and

explains why Congress only authorized citizen suits for

civil penalties in much more limited circumstances than

would be permissible under that court’s interpretation.

In 1990, Congress amended the citizen suit authoriza-

tion in section 304 of the Clean Air Act in two notable

respects. Most significantly, it provided that, in actions

where citizens are awarded injunctive relief, they also may

4

seek civil penalties payable to the federal government of

up to $25,000 per day of violation. Pub. L. No. 101-549,

104 Stat. 2674, 2682. Previously, citizens could only

bring actions for injunctive relief. In addition, Congress

revised the jurisdictional grounds for citizen suits by

adding language which provides that citizens can bring

actions where “the alleged violation has been repeated.”

Id. at 2683. It retained the authorization in the pre-1990

version of section 304(a)(1) for actions where a source

is alleged “to be in violation.” Congress did not revise

the provision requiring 60 days’ prior notice before citizen

suits can be initiated.

Interpreting the citizen suit authorization only to

permit actions for civil penalties where violations are

ongoing and where injunctive relief is thus necessary is

particularly critical under the Clean Air Act. Many major

sources of air emissions are subject to dozens of different

emission limitations, often set as hourly limits, that apply

to hundreds of different pieces of equipment. Typically,

these emission limitations were established based on use

of a particular control technology. Because EPA and

states did not have sufficient data to establish standards

based on continuous monitoring, they provided in many

instances for the “exclusive” method for making complli-

ance determinations to be through periodic performance

of a “reference test” under specified operating conditions.

Compliance at other times was to be demonstrated by

performing operations and maintenance consistent with

good air pollution control practices. As additional data

have been generated, EPA and state agencies have come

to recognize that properly controlled, well-operated sources

will, from time to time, have emissions that are above the

emission limitations due to normal emissions variability.

In the past, these emission excursions did not constitute

violations.

On February 24, 1997, EPA promulgated a rule that

revises federal regulations to provide that such reference

tests shall no longer be the exclusive method for proving

5

violations of emission limitations. Credible Evidence Re-

visions: Final Rule, 62 Fed. Reg. 8314 (1997). Under

that rule, EPA provides that emissions information not

gathered under the same conditions as reference tests can

be used to prove violations in federal and state enforce-

ment actions and in citizen suits under section 304 of the

Clean Air Act. This rule was adopted without analyzing

the compliance implications for the thousands of standards

it affects. For a large number of standards, the implica-

tions will be that regulated facilities—despite the installa-

tion of required control technology coupled with good

Operations and maintenance—will not be able to show

compliance, as determined under this new rule, 100% of

the time. Performance that constituted compliance in the

past will now be potentially subject to enforcement as

noncompliance. For these reasons, numerous industry

trade associations and individual companies have filed

more than 80 petitions for review with the U.S. Court

of Appeals for the District of Columbia Circuit chal-

lenging either the final rule itself or the revisions the

rule makes to the compliance determination provisions for

numerous federal standards. Clean Air Implementation

Project v. EPA, Nos. 97-1117 et al. (D.C. Cir.).

In adopting this new rule, EPA recognized that the

rule has the potential to result in unavoidable emission

excursions now becoming the target of enforcement ac-

tions. As a consequence, EPA discussed at length the

enforcement policies it will pursue in the preamble to the

final rule. Specifically, EPA pointed out that it will “exer-

cise prosecutorial discretion” in circumstances that will

routinely arise with respect to many limitations at facili-

ties that are well controlled and operated. 62 Fed. Reg.

at 8318. Without such prosecutorial discretion, many

sources would, and in many cases still will, face the

Hobson’s choice of curtailing plant operations or installing

expensive controls that achieve little or no environmental

benefit.

The practical implications of this rule for citizen suit

litigation are enormous. Now, citizen groups will likely

6

argue that they should be able to recover civil penalties

for random, but in the aggregate significant in number,

emission excursions—even though facilities have taken

every action envisioned at the time applicable standards

were set. Despite EPA’s stated intention to exercise

“prosecutorial discretion,” citizen groups are not bound

to follow the Agency’s enforcement policies. Under the

Clean Water Act, citizen suits have often been successfully

brought—even after the Gwaltney decision—in situations

where the facility was taking the steps to control its efflu-

ent discharges that EPA and state agencies believed

appropriate. The nature and extent of air emission con-

trol requirements will make this a much more pervasive

problem under the Clean Air Act. The numbers of indi-

vidual emission points subject to limitations on air emis-

sions at a single facility are commonly orders of magnitude

greater under the Clean Air Act than the outfalls regu-

lated under the Clean Water Act. As a consequence, the

potential for frivolous or disruptive citizen group actions

where EPA and states intend to exercise prosecutorial

discretion is staggering.

While the interpretation of the Clean Air Act’s citizen

suit provision is not before this Court, the Seventh Circuit's

matter-of-fact reference to its conclusion that the Clean

Air Act authorizes actions for past violations is merely

the prelude to the federal court litigation that will ensue

in response to the expected avalanche of citizen suits.

Initiation of such litigation will be a simple matter once

industrial facilities, beginning in the next few years,

are required under EPA’s regulations to file semiannual

monitoring reports. 40 C.F.R. § 70.6(a)(3) (iii) (A)

(1996). This expectation is based upon experience under

the Clean Water Act where the submission of similar

reports also triggered the filing of vast numbers of citizen

suits.

This Court’s decision in this case will, like Gwaltney,

be a key precedent for courts in interpreting the Clean

7

Air Act. However, as explained below, the Gwaltney

decision has been misapplied in many citizen suits. The

message from the Court’s opinion seemed clearly to be

that citizen suits for civil penalties are permissible only

where a real noncompliance problem exists. But district

courts have interpreted the Court’s references to the per-

missibility of citizen suits where there are “intermittent”

violations as authorizing citizen suits for civil penalties

where injunctive relief is neither required nor granted, be-

cause no need exists for the facility to take corrective

action.

Accordingly, unless this Court makes clear that citizens

suits may only be brought where violations are “ongoing”

and that the test for determining whether they are on-

going is that injunctive relief must be necessary to compel

the facility to come into compliance, it is likely that

some federal courts will interpret section 304 of the

Clean Air Act to permit citizen suits for civil penalties

where a noncompliance problem does not exist. As we

further argue in this brief, if courts decide to interpret

section 304 to allow such actions, citizen groups cannot

satisfy the prerequisites for Article III standing and thus

those actions should be found impermissible under the

Constitution.

Even if this Court’s decision prescribes very narrow

criteria that make clear that citizen suits for civil penalties

may only be brought where injunctive relief is necessary

to require correction of a real ongoing noncompliance

problem, the citizen suit authorization under the Clean

Air Act will still likely be abused in many circumstances.

As the foregoing indicates, EPA and states will routinely

choose to exercise prosecutorial discretion with respect to

numerous emission limitations at vast numbers of facili-

ties throughout the country in order to implement the

Clean Air Act in a manner that will not be grossly unfair

to American industry. Not being bound by such govern-

ment decisions, citizen groups will be able to wield the

$25,000 per day penalty enforcement weapon under the

Clean Air Act in a manner that will routinely conflict

with the Executive’s exercise of its prosecutorial discre-

tion.* Rather than face risks of massive penalties for

inconsequential excursions that may be construed to be

violations, facilities will often conclude they should opt

to avoid this risk and agree to pay penalties in amounts

that are lesser, but nonetheless significant.

With narrowly drawn criteria, this Court’s decision

could significantly reduce the potential for misapplication

and abuse of the Clean Air Act’s authorization for citizens

to seek civil penalties—both in federal court litigation

and settlements with citizen groups. Absent such clear

direction, the likelihood exists that there will be a signifi-

cant encroachment on the prosecutorial discretion of the

Executive. For this reason, it is likely that a petitioner

in a future case will call upon this Court to find the Clean

Air Act citizen suit authorization unconstitutional as a

violation of separation of powers.

SUMMARY OF ARGUMENT

As amended in 1990, section 304(a)(1) of the Clean

Air Act authorizes citizens to bring actions to seek in-

junctive relief “and . . . appropriate civil penalties” pay-

able to the federal government. Such actions may only

be brought where the emissions source is “alleged to be

in violation” or where “the alleged violation has been

repeated.” When read in conjunction with Congress’

dictate that citizens’ actions for civil penalties are per-

missible only where injunctive relief is necessary, it is

clear that Congress’ jurisdictional prerequisites, including

the authorization of actions for “repeated” violations,

necessitate that violations be “ongoing.” Otherwise, no

2 The huge amounts of civil penalties which citizen groups can

seek from industrial facilities are well illustrated by this case,

where the plaintiff sought penalty amounts of more than $537

million based on The Steel Company’s alleged failure—promptly

corrected upon notification—to file two different forms required

_by EPCRA.

9

need exists for granting injunctive relief to correct a

noncompliance problem, the necessary condition prece-

dent to awarding civil penalties.

Thus, under the most reasonable reading of the juris-

dictional criteria in section 304(a)(1), citizen suits for

civil penalties may be brought in much more limited

circumstances than the Seventh Circuit’s opinion indicates.

Congress’ retention of the “alleged to be in violation”

criterion can best be read, as Justice Scalia explained in

his concurring opinion in Gwaltney, to authorize actions

where the source clearly is not in a “state” of compliance,

and thus citizens can properly seek injunctive relief. The

“repeated” violation criterion also must be read to permit

citizen suits only where injunctive relief is required. Here

again, a showing of “ongoing” noncompliance, albeit of

a slightly different nature, is required. To meet that test,

the violation must not only have occurred repeatedly,

there must be a virtual certainty that the same violation

will recur in the future. But the essential prerequisite is

that injunctive relief is required to compel ongoing

compliance.

The interpretation of section 304(a)(1) as only au-

thorizing citizen suits based on violations that are ongoing

is also supported by Congress’ choice of language in simul-

taneously amending the provisions addressing EPA’s en-

forcement authority. In those provisions, Congress clearly

authorized EPA, in contrast to its authorization for suits

brought by private citizens, to pursue judicial or admin-

istrative enforcement actions whether or not the viola-

tions in question are “ongoing.”

The language of section 304(a)(1) should additionally

be construed narrowly in order to avoid interference with

EPA’s enforcement authority and prosecutorial discretion.

As this Court stated in Gwaltney, citizen suits are intended

to “supplement” rather than to “supplant” EPA’s enforce-

ment efforts. 484 U.S. at 60. Construing section 304

10

(a)(1) to authorize citizen suits for civil penalties based

on violations that are not ongoing would greatly interfere

with EPA’s exercise of prosecutorial discretion.

Contrary to the Seventh Circuit’s conclusion, the fact

that Congress in 1990 amended the language of section

304(a)(1), but chose not to alter the language of the 60-

day notice provision in section 304(b), does not mean

that Congress intended to authorize the filing of citizen

suits based on violations that are not ongoing. Indeed, pre-

cisely the opposite is true. Congress’ decision not to alter

the notice provision further supports reading the language

in section 304(a)(1), including that added in 1990, as

authorizing citizen suits based on past violations only

where injunctive relief is required to compel ongoing

compliance. Notice to the alleged violator will provide it

the opportunity to take any necessary corrective action

within the 60-day notice period and thereby make filing

a civil action unnecessary.

The section 304(a)(1) jurisdictional prerequisites

should be interpreted not to encompass violations that are

not ongoing for a separate, compelling reason. Such a

reading would violate the “case or controversy” require-

ment of Article III. To invoke federal court jurisdiction,

a plaintiff must satisfy the three-part test for Article III

standing established by this Court. However, a citizen-

plaintiff seeking the recovery of civil penalties based on

violations that are not ongoing cannot meet either the

“injury-in-fact” or “redressability” prongs of that test.

Such a citizen-plaintiff will not be able to demonstrate

that it is suffering from a continuing “concrete and per-

sonalized” injury and that any alleged injury to it can be

redressed by a defendant’s payment of civil penalties to

the federal government. For these reasons, section 304

(a)(1) must be given the narrow interpretation deline-

ated in this brief.

il

ARGUMENT

SECTION 304(a)(1) OF THE CLEAN AIR ACT SHOULD

BE CONSTRUED AS ONLY AUTHORIZING CITIZEN

SUITS FOR ONGOING VIOLATIONS.

A. Under Section 304(a)(1), A Citizen Suit Seeking Civil

Penalties May Be Brought Only Where Injunctive

Relief Is Also Necessary To Compel The Facility To

Come Into Compliance With Applicable Emission

Requirements.

As this Court stated in Gwaltney, “[i]t is well settled

that ‘the starting point for interpreting a statute is the

language of the statute itself.’” Jd. at 56 (quoting Con-

sumer Products Safety Comm’n v. GTE Sylvania, Inc.,

447 U.S. 102, 108 (1980)). Section 304(a)(1) of the

Clean Air Act, as amended, provides in relevant part that

a person may commence a civil action on his or her own

behalf

against any person . . . who is alleged to have violated

(if there is evidence that the alleged violation has

been repeated) or to be in violation of (A) an emis-

sion standard or limitation under this chapter or (B)

an order issued by the Administrator or a State with

respect to such a standard or limitation... .

In the Clean Air Act Amendments of 1990, Congress

added the phrase—‘“to have violated (if there is evidence

that the alleged violation has been repeated)”—to the

prior version of section 304(a)(1). Pub. L. No. 101-549,

104 Stat. 2683. The pre-1990 version of section 304

(a)(1) stated that a citizen suit could be brought under

that provision where a person “is alleged to be in viola-

tion.” That language was essentially identical to the lan-

guage of section 505(a) of the Clean Water Act, the

corresponding citizen suit provision of that statute.

Congress also made one additional significant change to

the citizen suit authorization. It amended section 304

12

(a)(1) to authorize district courts to award citizens

injunctive relief “and to apply any appropriate civil penal-

ties.” The pre-1990 statute only provided for injunctive

relief to be granted.

In Gwaltney, this Court construed the phrase “is al-

leged to be in violation” contained in section 505(a) of

the Clean Water Act and held that the citizen-plaintiff

must allege (and ultimately prove) the existence of an

“ongoing violation.” 484 U.S. at 67. In his concurring

opinion, Justice Scalia explained that “the phrase ‘to be

in violation’ . . . suggests a state rather than an act—

the opposite of a state of compliance.” Elaborating on

the majority opinion, he stated that a defendant in a state

of violation would remain in violation until it corrected

the problem even if it had a “good or lucky day” on

which it did not violate the standard in question. /d. at 69.

Congress’ decision to amend section 304(a)(1) appar-

ently indicates that, for purposes of the Clean Air Act,

Congress believed that the authority to bring citizen suits

should extend in prescribed circumstances to cover non-

compliance in addition to the situations where compliance

only occurs on the “good or lucky day.” However, the

additional language chosen by Congress should nonethe-

less be interpreted only to authorize the filing of citizen

suits to recover civil penalties for past violations that

are ongoing, i.e., violations which are virtually certain to

recur and require injunctive relief to compel compliance.*

8 The statements in the legislative history concerning the lan-

guage added to section 304(a)(1) generally do not shed much

light on Congress’ precise intent in amending the provision. How-

ever, Rep. Fields, one of the House-Senate conferees, did attempt

to provide an explanation regarding what situations would fall

under the new language:

Citizen suits are generally inappropriate for past violations.

The conferees narrowed the House provision which required

only an allegation of repeated or continuous past violations.

The conferees agreed that citizens should be required to pre-

13

Perhaps the most significant aspect of the language

added to section 304(a)(1) by the 1990 amendments is

that Congress made clear that citizens may only bring

actions for civil penalties where injunctive relief must be

awarded to compel compliance. In amending the citizen

suit authorization, Congress added the phrase “and to

apply any appropriate civil penalties . . .” to the sentence

in the pre-1990 law authorizing district courts to award

injunctive relief. Pub. L. No. 101-549, 104 Stat. 2682.

Congress’ use of the conjunction “and” demonstrates that

jurisdiction to impose civil penalties is limited to circum-

stances where injunctive relief is necessary. A court may,

however, assess civil penalties only where it deems this

additional relief to be “appropriate.”

Another significant aspect of the language added to

section 304(a)(1) by the 1990 amendments is that

Congress made clear that a past violation by itself would

not be sufficient to provide the basis for a citizen

suit. Although Congress inserted the words “to have

violated,” Congress immediately qualified those words with

the following parenthetical phrase: “(if there is evidence

that the alleged violation has been repeated).” As this

Court ruled in Gwaltney, the fact that Congress chose

not to phrase a citizen suit provision using language that

looked solely to the past is entitled to substantial weight

in determining whether Congress intended to authorize

citizen suits based on violations that are not ongoing.‘

484 U.S. at 57.

sent competent evidence of past violations and that the evi-

dence demonstrate repeated violations. ... The evidence must

demonstrate that the past violations were frequent, that the

alleged violator habitually ignored applicable requirements and

that the agency did not adequately enforce the law.

136 Cong. Rec. E3677 (daily ed. Nov. 2, 1990).

* Only a few district courts have thus far addressed the issue of

how section 304(a) (1) should be interpreted. The court in Satter-

field v. J.M.-Huber Corp., 888 F. Supp. 1561, 1565 (N.D. Ga.

14

Based on the statutory language and the Clean Air

Act’s overall enforcement scheme, the most reasonable

reading of section 304(a)(1), as amended,

suits can be brought based on past violations only under

a very narrow set of circumstances. language added

to section 304(a)(1) requires that a past violation be a

?

For a violation to be “repeated,” it must involve the

same limitation and the same piece of equipment within

the facility." In other words, Congress intended that sec-

tended to encourage and enforce compliance with environmental

a " Other district courts have construed section 304(a) (1)

differently. E.g., Adair v. Troy State Univ. of Montgomery, 89”

F. Supp. 1401 (M.D. Ala. 1996).

5 The American Heritage Dictionary (2d Coll. ed.) (1985).

15

tion 304(a)(1) authorize actions where a specific viola-

tion has occurred frequently or as part of a pattern and

where, despite the frequency or pattern of this same viola-

tion, the facility has not taken action to correct the specific

cause of the violation. Accordingly, in such a situation,

there is a virtual certainty that the violation will recur in

the future and necessary corrective action will not be

taken unless injunctive relief is granted in either an EPA

or citizen enforcement action.

The importance of Congress’ choice of words in section

304(a)(1) is further highlighted by the language that

Congress simultaneously added in 1990 to the corre-

sponding provisions in section 113 of the Act governing

enforcement actions brought by EPA. In prescribing

EPA’s authority to bring judicial or administrative actions

to recover civil penalties, Congress consistently used the

phrases “has violated or is in violation of” or “has vio-

lated and is violating” without providing any qualification

concerning whether a particular violation had been re-

peated." The decision to use broad, unqualified language

in describing EPA’s enforcement authority further shows

violations. We note that this situation is typically different from

that of a facility being regulated under the Clean Water Act, where

all effluents are usually discharged from one outfall or a small

number of outfalls and specific requirements do not apply to indi-

vidual pieces of equipment within the plant. Nevertheless, under

the Clean Water Act, the Gwaltney decision has been interpreted

by some district courts as authorizing actions for civil penalties

where the so-called “ongoing” violation was based upon violations

of different limits with different causes, not the same limit and the

same causes. See, ¢.g., Public Interest Research Group of New

Jersey v. Elf Atochem North America, Inc., 817 F. Supp. 1164,

1173-76 (D. N.J. 1998); Public Interest Research Group of New

Jersey v. Yates Industries, Inc., 790 F. Supp. 511, 514-16 (D. NJ.

1991).

‘For example, this language was included in subsections

113(a@) (1), (a) (8), (b) (1), (b) (2), (d) (1) (A), and (d)(1)(B) of

the Act (codified at 42 U.S.C. §7413(a)(1), (b) (1), (b) (2),

(d) (1) (A), amd (d) (1) (B)). See Pub. L. No. 101-549, 104 Stat.

2672, 2678, and 2677.

16

that Congress did not intend that citizens could bring

suit regarding violations that are not ongoing. }

The reading of section 304(a)(1) set forth above is

also consistent with the principle that the citizen suit provi-

sion must be interpreted to avoid intruding on the cn-

forcement authority and prosecutorial discretion of EPA.

In Gwaltney, the Court pointed out that the proper role

of citizen suits is to supplement, rather than supplant,

governmental enforcement measures. It stated that per-

mitting citizen suits for past violations that are not on-

going “could undermine the supplementary role envisioned

for the citizen suit.” 484 U.S. at 60. The Court further

discussed an example of the problems which would be

created by interpreting citizen suit provisions to authorize

8 Even when construed narrowly, the citizen suit provisions of

vate citizens to prosecute for civil penalties appears to

volute the separation of powers mandate of the Constittion.

Because this case presents the issue of whether citizens have

standing to bring actions for civil penalties based on past violations

that are not ongoing, we do not brief the question of whether the

Constitution’s separation of powers is also violated. A ruling that

citizen-plaintiffs may not recover under EPCRA for such violations

or that they lack Article III standing to bring such actions would

make it unnecessary to address the separation of powers issue,

which was not raised in the lower courts. As forecast in the Intro-

duction, the encroachment on the Executive’s prosecutorial discre-

tion under the Clean Air Act, however, will likely be so great that

this Court will be asked at a future time to find that it violates the

separation of powers under the Constitution—even if courts prop-

erly construe that statute’s citizen suit authorization very narrowly.

17

civil penalty actions for such past violations. In that

hypothetical example, EPA exercised its prosecutorial

discretion to agree not to seek civil penalties on the

condition that the alleged violator take extraordinary

corrective measures that it would otherwise not be re-

quired to take. As the Court explained, “[iJf citizens

could file suit, months or years later, in order to seek the

civil penalties that the Administrator chose to forego,

then the Administrator’s discretion to enforce the Act

in the public interest would be curtailed considerably.”

Id. at 61. The teaching of this portion of the Gwaltney

decision is that citizen suit provisions must be read, when-

ever possible, to avoid such “potentially intrusive” results.

As discussed in the Introduction, the exercise of prose-

cutorial discretion under the Clean Air Act will be vastly

more ‘™rertant than under any other environmental

statute. . PA has recognized that exercising such discre-

tion will be a routine part of its enforcement of numerous

requirements applicable to large numbers of emission

units at regulated facilities. Under the plain language of

the statute, only where a noncompliance concern exists

that justifies injunctive relief to achieve compliance are

citizen suits permissible, whether under the “alleged to

be in violation” or under the alleged “repeated violation”

jurisdictional requirements. This interpretation should

reduce the otherwise disruptive impacts on EPA’s author-

ity to enforce the Clean Air Act's requirements.

Finally, section 304(a)(1) should be read as not

authorizing citizen suits for the recovery of civil penalties

based on past violations that are not ongoing because the

provision otherwise would clearly run afoul of Article III

standing requirements. As we discuss under Point C,

infra, a citizen may bring suit only if it can satisfy the

injury-in-fact and redressability requirements for icle

III standing. Allowing citizens to bring suit to recover

civil penalties for past violations that are not ongoing

would be inconsistent with these fundamental jurisdic-

tional prerequisites.

18

B. The 60-Day Notice Requirement In Section 304(b)(1)

Continues To Provide A Period During Which Past

Violations Can Be Cured.

This Court’s decision in Gwaltney relied in part on the

conclusion that construing section 505 of the Clean

Water Act to allow citizen suits for past violations that

are not ongoing “would render incomprehensible § 505’s

notice provision, which requires citizens to give 60 days’

notice of their intent to sue to the alleged violator as

well as to the Administrator and the State.” 484 U.S.

at 59. The Court explained that the purpose of the

60-day notice requirement is to give the alleged violator

an opportunity to bring itself into compliance and thereby

preclude the need for citizens to file suit. The Court

pointed out that the notice requirement would become

“gratuitous” if a citizen suit could be based on violations

which necessarily cannot be remedied within the 60-day

period because they are not ongoing violations. /d. at 60.

Based in part on this role of the 60-day notice provision,

the Court concluded that section 505 of the Clean Water

Act should be read as only authorizing the filing of

citizen suits based on ongoing violations.

In the instant case, the Seventh Circuit stated that this

aspect of the Gwaltney decision had been made less com-

pelling by Congress’ action in amending section 304(a)(1)

of the Clean Air Act in 1990 to add the phrase “to

have violated (if there is evidence that the violation has

been repeated).” Pet. App. Al3. The Seventh Circuit

believed it significant that Congress amended section

304(a)(1) but left intact the 60-day notice requirement

in section 304(b)(1), which is essentially identical to

the notice requirement in the Clean Water Act. In the

Seventh Circuit’s view, the amendment to section 304

(a)(1) authorized the filing of citizen suits based on

past violations that are not ongoing. Therefore, accord-

ing to that court, the existence of such a 60-day notice

requirement in a citizen suit provision can no longer be

19

used as evidence that Congress intended that citizen suits

be based solely on ongoing violations. /d.

The Seventh Circuit wrongly interpreted the import

of Congress’ revision of section 304. There are at least

two reasons why Congress did not need to alter the 60-day

notice provision ix section 304(b).

First, the 60-day notice provision continues to provide

an opportunity for defendants who are alleged “to be in

violation” to cure the violation. This is the case even

though Congress added language to section 304(a) (1)

authorizing citizen suits under additional circumstances.

It ms unremarkable that Congress left the notice provision

intact.

Second, Congress did not change the 60-day notice

provision because it, in fact, did not intend to authorize

the filing of citizen suits based on past violations that are

not ongoing. This further supports the proffered inter-

pretation of “repeated violation.” As shown above, the

most reasonable reading of amended section 304(a) (1)

is that Congress intended that a past vioaltion can pro-

vide the basis for a citizen suit only if it has been re-

peated under circumstances where there is a virtual cer-

tainty that the same violation will recur in the future

unless the problem causing the violation is corrected.

Under this interpretation, the notice requirement gives

the alleged violator the opportunity to correct the non-

compliance problem within 60 days and to show that

injunctive relief is not necessary to bring the source into

compliance. In short, this interpretation of the statute

avoids making the notice requirement “incomprehensible”

in accordance with Gwaltney and demonstrates that Con-

gress’ amendment of section 304(a)(1) in 1990 is con-

sistent with its decision to leave the notice requirement

unchanged.

20

C. Interpreting Section 304(a)(1) To Authorize Citizen

Suits To Recover Civil Penalties For Violations

That Are Not Ongoing Would Violate The Case

Or Controversy Requirement Of Article III Of The

Constitution.

Standing is a “threshold question in every federal case,”

for it determines “whether the litigant is entitled to have

the court decide the merits of the dispute or of particular

issues.” Warth v. Seldin, 422 U.S. 490, 498 (1975). This

Court has made clear that the “core component of standing

is an essential and unchanging part of the case-or-contro-

versy requirement of Article III.” Lujan v. Defenders of

Wildlife, 504 U.S. 555, 560 (1992). In order to establish

Article III standing, a would-be plaintiff must make the

following three-part showing: (1) that it or its members

have personally “suffered some actual or threatened injury

as a result of the putatively illegal conduct of the defend-

ant,” (2) that the injury “fairly can be traced to the

challenged action,” and (3) that the injury is “likely to

be redressed by a favorable decision.” Valley Forge

Christian College v. Americans United for Separation of

Church & State, Inc., 454 U.S. 464, 472 (1982) (cita-

tions omitted).

Section 304(a)(1) of the Clean Air Act must be

interpreted in the narrow fashion reviewed above to com-

port with Article III standing requirements. As this Court

reiterated in Gwaltney, a plaintiff bringing an action under

a federal citizen suit provision must satisfy the Article III

standing prerequisites.° 484 U.S. at 65-67. As we show

below, interpreting section 304(a)(1) as authorizing citi-

zens to bring suit to recover civil penalties for violations

®In Gwaltney, both Justice Marshall, writing for the majority,

and Justice Scalia, writing the concurring opinion, recognized that

Article III standing must be established by a citizen-plaintiff.

Their only disagreement in this regard concerned the timing under

which a citizen-plaintiff would actually be required to offer proof

to support its allegations of harm and redressability.

21

that do not necessitate injunctive relief would run afoul

of the Article III “case or controversy” requirement.”

1. A citizen-plaintiff seeking to recover civil penalties

can only satisfy the injury-in-fact requirement for

Article III standing where a real noncompliance

problem exists.

Under Article III, a plaintiff must allege that it has

Personally been harmed in an identifiable manner and

that it continues to be adversely affected at the time of

filing the lawsuit. Los Angeles v. Lyons, 461 U.S. 95

101-03 (1983). To establish the requisite injury-in-fact,

the plaintiff must have suffered an invasion of a legally

ayy ——. which is “concrete and personalized”

as well as “ac or imminent.” D

504 U.S. at 560 (citations omitted). scsi ia

A citizen attempting to rely on violations that are not

Ongoing to bring suit under section 304(a)(1) cannot

properly allege that there are “present adverse effects”

from the violations which constitute the “concrete and

personalized” harm required to establish Article III stand-

ing. Absent a real noncompliance problem, there are no

©The United States agreed with this ti micus

curiae brief in the Gwaltney case: paras tect

A citizen plaintiff who alleges that he is adversely affected by

a company’s ongoing violation of its discharge permit and

requests an injunction requiring compliance can satisfactorily

demonstrate, at least at the pleading stage, both personal

injury and redressability.

Brief of the United States as Amicus Curiae Supporting Affirm-

ance at 21, n.34. However, the government maintained that a

citizen plaintiff would lack Article III standing to seek civil penal-

ties for violations that are not such ongoing violations. The gov-

ernment stated that, if Congress “—oblivious to Article III’s re-

apa? ieee che dine ae © Ge enter

versy—” were ve citizens authority to

penalties Sor vielnttens that are net ongoing, “it weald toteahe ee

the Executive’s responsibility to ‘take Care that the Laws be faith-

fully executed’ U.S. Const. Art. III, §3) and the prosecu

cretion inherent therein.” Jd. (citation omitted). en oe

22

ts on a citizen. To demonstrate the necessary

ar ne the citizen-plaintiff must show an ongoing

violation and noncompliance requiring injunctive relief to

compel compliance. Otherwise, it does not have standing

to seek civil penalties.

Even if a citizen-plaintiff could show that it was in-

j in the t from a particular violation, that will

arog Bn hat the citizen-plaintiff has standing to bring

an action. The injury to the plaintiff must exist at the

time the complaint is filed and must continue until disposi-

tion of the case. Sosna v. lowa, 419 U.S. 393, 402

(1974). As this Court has stated, “ “past exposure to

illegal conduct does not in itself show a present case or

controversy regarding injunctive relief . . . if unaccom-

panied by any continuing, present adverse effects.

Lyons, 461 U.S. at 102 (quoting O'Shea v. Littleton,

414 US. 488, 495-96 (1974)).

To invoke the jurisdiction of the federal courts, a plain-

tiff must “stand to profit in some personal interest. Allen

v. Wright, 468 U.S. 737, 766 (1984) (citation omitted ).

A citizen-plaintiff relying on violations that are not on-

going cannot personally profit from its lawsuit. As this

Court made clear in Defenders of Wildlife, a citizen's

generalized grievances concerning enforcement of the laws

do not satisfy the injury-in-fact test under Article III.

504 US. at 573-74.

It is importan t to bring to this Court’s attention the

fact that many courts have interpreted and applied the

Gwaltney decision in ways that are inconsistent with the

language and reasoning of the Court’s opinion and that

improperly allow citizens to recover civil penalties for

violations that are not ongoing. For example, some judges

have ruled that, for purposes of the jurisdictional determi-

nation under section 505(a) of the Clean Water Act, a

good-faith allegation that there is an ongoing violation of

one pollutant parameter in a facility’s permit is sufficient

to establish jurisdiction over past violations of other

23

parameters regulated by the permit. Public Interest Re-

search Group of New Jersey v. Elf Atochem North Amer-

ica, Inc., 817 F. Supp. 1164, 1173-76 (D. N.J. 1993);

Public Interest Research Group of New Jersey v. Yates

Industries, Inc., 790 F. Supp. 511, 514-16 (D. N.J.

1991).

This so-called “permit-based” approach ignores the fact

that an alleged violation of one permit limit may well be

totally unrelated to past violations of other, distinct per-

mit limits and that those past violations may have already

been cured. Accordingly, it directly conflicts with

Gwaltney’s holding that citizen suits are to address only

those ongoing violations where injunctive relief is re-

quired.” In light of the much greater number of potential

sources of violations under the Clean Air Act at a large

facility, this problem will be much more acute under that

Statute than under the Clean Water Act. By ruling that

actions for civil penalties are only permissible for viola-

tions for which injunctive relief is necessary to compel

compliance, this Court will diminish the likelihood that

citizen suits will commonly be allowed where there are not

real “ongoing” violations.

2. The payment of civil penalties by a defendant for

violations that are not ongoing would not redress

private citizens’ alleged injuries.

To satisfy Article III, a plaintiff must show not only

that it has suffered an injury but also that “it must be

‘likely,’ as opposed to merely ‘speculative’ that the injury

will be ‘redressed by a favorable decision.’ ” Defenders of

Wildlife, 504 U.S. at 561 (quoting Simon v. Eastern

Kentucky Welfare Rights Org., 426 U.S. 38, 43 (1976)).

A citizen-plaintiff seeking to recover civil penalties based

) As discussed previously, courts have improperly interpreted the

Gwaltney opinion’s reference to “intermittent” violations as autho-

rizing actions for civil penalties where there is no ongoing violation

of the same requirement and injunctive relief is thus not necessary.

24

on past violations that are not ongoing could not satisfy

the redressability prong of the three-part standing test.

The principal relief which would be requested in such

an action—an order directing the defendant to pay civil

penalties to the government—would not redress any injury

suffered by the plaintiff. To establish standing, a plaintiff

“must stand to profit in some personal interest.” Allen v.

Wright, 468 U.S. at 766 (citation omitted). The payment

of penalty amounts to the government would not benefit

the citizen-plaintiff in any personal way which could be

differentiated from the benefit to the public at large.

Certainly, the payment cannot be said to redress any

concrete injury to the citizen-plaintiff.

Moreover, there is no other element of such a citizen

suit that would redress any concrete injury allegedly suf-

fered by a citizen-plaintiff. It is well-established that the

redressability requirement of Article III cannot be satisfied

by an interest in general deterrence or law enforcement,

no matter how keenly held. Diamond v. Charles, 476

U.S. 54, 64-65 (1986). Money damages may not be

awarded to the plaintiff in a citizen suit. See Middlesex

County Sewerage Auth. v. National Sea Clammers Ass'n,

453 U.S. 1, 17-18 (1981). Recovery of attorneys’ fees

and litigation costs cannot satisfy the redressability test.

Diamond v. Charles, 476 U.S. at 70-71. In short, a

citizen-plaintiff seeking to recover civil penalties based

on past violations that are not ongoing will not be able

to meet the redressability test required by Article II.

25

CONCLUSION

For the foregoing reasons, Amicus Curiae Clean Air

Implementation Project urges that the Court reverse the

decision below. In addition, CAIP requests that the Court

make clear that citizen suits may only be brought where

there is an Ongoing violation and that the test for deter-

mining whether an ongoing violation exists is that injunc-

tive relief must _be necessary to compel compliance with

applicable requirements. Otherwise, the private citizen

pie not have standing under Article III to bring the

on.

Respectfully submitted,

WILLIAM H. LEwis, Jr.*

MICHAEL A. McCorp

FARLEIGH H. EARHART

1800 M Street, N.W.

Guus ane D.C. 20036

467-71

Of Counsel: ' ”

MORGAN, LEwIs & Bock1us LLP

1800 M Street, N.W.

Washington, D.C. 200386

(202) 467-7000 * Counsel of Record

May 2, 1997