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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1998
- **Citation:** 523 U.S. 83

## Text

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

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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..

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0026%3A14. Public record. Not legal advice.