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

) ow Supreme Court, U.S.

yFitLt®@pD

\ APR 29 1997

No. 96-643 CLERK

IN THE

Supreme Court of the United States

October Term, 1996

rem

THE STEEL COMPANY, a/k/a

CHICAGO STEEL AND PICKLING COMPANY,

Petitioner,

Vv.

CITIZENS FOR A BETTER ENVIRONMENT,

Respondent.

a

On Writ of Certiorari to the

United States Court of Appeals

for the Seventh Circuit

—+>

BRIEF AMICUS CURIAE

OF PACIFIC LEGAL FOUNDATION

IN SUPPORT OF PETITIONER

°

ROBIN L. RIVETT

*M. REED HOPPER

*Counsel of Record

Pacific Legal Foundation

2151 River Plaza Drive,

Suite 305

Sacramento, California 95833

Telephone: (916) 641-8888

Attorneys for Amicus Curiae

Pacific Legal Foundation

s\X

QUESTIONS PRESENTED FOR REVIEW

Whether, in enacting the citizen suit provision of the

Emergency Planning and Community Right-to-Know Act

(EPCRA), 42 U.S.C. § 11046, Congress intended to authorize

citizens to seek penalties for violations that were cured before

the citizen suit was filed, thereby granting EPCRA citizen suit

plaintiffs greater enforcement authority than that granted to

other citizen suit plaintiffs under other federal environmental

Statutes.

ii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW .............

TABLE OF AUTHORITIES ....................... iii

IDENTITY AND INTEREST OF AMICUS CURIAE ... |

STATEMENT OF THE CASE ...... 1... cece eceees 2

SUMMARY OF THE ARGUMENT ................. 3

EEE eC ee eee EET ET 4

I. CONGRESS STRUCK A BALANCE

BETWEEN CITIZEN ENFORCEMENT

AND BURDENING THE FEDERAL

CEC EUEEE SEL Owes sss cccccceses 4

A. The Lower Court Decision Nullifies the

60-Day Notice Provision ................... 6

B. The Lower Court Decision Undercuts the

Government’s Enforcement Discretion ......... 7

C. The Lower Court Decision Encourages

PR GN IS ww cece eees 10

Il. EPCRA DOES NOT AUTHORIZE CITIZEN

SUITS FOR PAST VIOLATIONS .............. 13

i Cinco Se heee bso cccevscccccccce 16

TABLE OF AUTHORITIES

Page

Cases

Atlantic States Legal Foundation v. United

Musical, Inc., 61 F.3d 473 (6th Cir. 1995) _.... 3-4,13-15

Babbitt v. Sweet Home Chapter of Communities for

a Great Oregon, US. _, 1158S. Ct. 2407(1995)... 1

Bennett v. Spear, Supreme Court No. 95-813 ......... l

Douglas County, Oregon v. Babbitt, Supreme Court

EP arb ce WEES cb ncadvccdvebxscces% a

Gwaltney of Smithfield, Ltd. v.

Chesapeake Bay Foundation, Inc.,

484 U.S. 49 (19867) ............ .... 1+4,6-10,14-15

Hallstrom v. Tillamook County, 493 U.S. 20 (1989) .... 1,5

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

ES go Ee eo l

Statutes

a ea eee ie ae 9

ee EL, no wecccccccccesecensesenen 3

I, sc ccc a cic caccduenevedbeds 9

iv

Page

DELEON os cucscvccchecesscncvaseeneucauee l

REED Gececéionecsdewhuweneadacedvesntesebadt i

OIE... ckcdsakuuaweeewaeibucetocks tee 10

Rules and Regulations

Pee GO NS ooo ccc ccc cc cedovecsccces l

SOR ee SD Sale os hea de dea dee Tene ets ae

Miscellaneous

General Accounting Office, EPA’s Toxic Release

Inventory Is Useful but Can Be Improved,

GAO/RCED 91-121 (June, 1991) ................ 11

~\

l

IDENTITY AND INTEREST OF AMICUS CURIAE

Pursuant to Supreme Court Rule 37, Pacific Legal

Foundation (PLF) respectfully submits this brief amicus curiae

in support of petitioner, The Steel Company. Written consent

for amicus participation in this case was granted by counsel for

all parties and lodged with the Clerk of this Court.

Pacific Legal Foundation is a nonprofit, tax-exempt

organization incorporated under the laws of California for the

of a Seliie tp (iteation sestiem

affecting the public interest. PLF has over 20,000 supporters

nationwide. PLF policy is set by a Board of Trustees composed

of concerned citizens, many of whom are attorneys. The Board

of Trustees evaluates the merits of any contemplated legal

action and authorizes such action only when PLF's position has

broad support within the general community. PLF's Board of

Trustees has authorized the filing of a brief amicus curiae in

this matter.

PLF has a long-standing interest in environmental issues

and has participated in numerous cases involving statutory

interpretation of federal environmental laws. For example,

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

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

amicus curiae in this Court in Bennett v. Spear, Supreme Court

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

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

Communities for a Great Oregon, _U.S. _, 115 S. Ct. 2407

(1995); and Hallstrom v. Tillamook County, 493 U.S. 20

(1989).

The Seventh Circuit ruling in this case, authorizing citizen

enforcement of wholly past reporting violations under the

Emergency Planning and Community Right-to-Know Act of

1986 (EPCRA), 42 U.S.C. § 11001, ef seg., conflicts with this

Court’s unanimous decision in Gwaltney of Smithfield, Lid. v.

2

Chesapeake Bay Foundation, Inc., 484 U.S. 49 (1987), and is

contrary to the intent of Congress.

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

citizen suit provision of EPCRA, but also the policy interests

behind such provisions. Whereas this Court held in Gwaltney

that citizen suits (with forward-looking preenforcement notice

requirements) are authorized to support, but not supplant,

government enforcement of environmental laws, the Seventh

Circuit reasoned the main purpose of such citizen suits is to

reward citizen enforcers.

PLF’s public policy perspective and litigation experience

in support of rational environmental protection and economic

rights will provide a necessary viewpoint on the issues

presented in this case.

o——

STATEMENT OF THE CASE

The question presented in this case is whether Congress

intended to authorize citizens, under EPCRA, to seek penalties

for violations that were cured before the citizen suit was filed.

The facts that give rise to this question follow.

The Steel Company (Company) is a minority-owned steel

manufacturer and pickler in Chicago, Illinois. The Company

started in 1971 and employs about 55 people. The Company is

subject to EPCRA which requires, among other things, the

annual submission of chemical inventory and release forms to

federal, state, and local entities pursuant to Sections 312 and

313. On March 16, 1995, Citizens for a Better Environment

(Citizens), an environmental citizen group, sent an EPCRA 60-

day notice of intent to sue to the United States Environmental

Protection Agency (EPA), the state, and the Company alleging

the Company had never filed the requisite forms. Before the

the EPA. EPA chose not to pursue any enforcement action but,

3

notwithstanding the filing, Citizens filed suit in the Northern

District Court of Illinois seeking, among other things, civil

penalties in the amount of $537,500,000 against the Company.

A few days before Citizens filed suit, the Sixth Circuit

held, on facts indistinguishable from this case, that private

citizens could not sue for past EPCRA violations. Aflantic

States Legal Foundation v. United Musical, Inc., 61 F.3d 473

(6th Cir. 1995). Based on the Sixth Circuit’s opinion, the

Company’s motion to dismiss was granted. Citizens appealed,

and on July 23, 1996, the Seventh Circuit reversed.

Although the Seventh Circuit noted the District Court’s

reliance on United Musical was not misplaced, and that United

Musical relied on Gwaltney, the court nevertheless rejected the

Sixth Circuit holding. In Gwaltney, this Court considered the

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

Act, 33 U.S.C. § 1251, ef seqg., and unanimously held the

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

into compliance, thus making a citizen suit unnecessary.

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

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

however, the Seventh Circuit reasoned it is more important to

reward citizen groups financially for their enforcement efforts.

¢—

SUMMARY OF THE ARGUMENT

Congress struck a balance between citizen enforcement

under environmental statutes and burdening the federal courts

with excessive citizens suits. This goal is achieved through the

60-day notice provision which allows the alleged violator to

come into compliance and the government to enforce the law so

as to obviate the need for a citizen suit. The lower court

decision in this case, however, upsets that balance. It nullifies

EPCRA’s 60-day notice provision and undercuts the

government’s enforcement discretion by authorizing citizen

4

suits after the alleged violator has complied and the government

chooses not to seek civil penalties.

The lower court decision misinterprets the language of

EPCRA and contradicts this Court’s unanimous ruling in

Gwaltney. In that case, this Court held if citizen suits may

target wholly past violations, the notice requirement becomes

gratuitous. This Court also held that the citizen suit is meant to

supplement rather than supplant government action. Contrary

to the intent of Congress, the lower court decision encourages

excessive lawsuits. In the Seventh Circuit, virtually anyone

may bring a retroactive citizen suit under EPCRA, asserting

staggering civil liability--like the $573,500,000 claim filed

against the Steel Company in this case--to force a lucrative

monetary settlement with the plaintiff These after-the-fact

lawsuits provide no environmental benefit but enrich the

plaintiff and encourage opportunistic lawsuits. This form of

legalized extortion could not have been the intent of Congress.

Contrary to the Seventh Circuit in this case, the Sixth

Circuit in United Musical concluded the plain language and

structure of EPCRA leads to the conclusion that citizen

plaintiffs may not bring actions that seek civil penalties for

purely historic violations. The Sixth Circuit is in accord with

Gwaltney and has the better analysis. Contrasting the Sixth and

Seventh Circuit analyses is instructive. This Court should

uphold the policy rationale it expressed in Gwaltney for citizen

suits reverse the ruling below in this case.

ARGUMENT

I

CONGRESS STRUCK A BALANCE

BETWEEN CITIZEN ENFORCEMENT

AND BURDENING THE FEDERAL COURTS

In crafting the citizen suit provision of environmental

laws, Congress sought to “strike a balance between

5

encouraging citizen enforcement of environmental regulations

and avoiding burdening the federal courts with excessive

numbers of citizen suits.” See Hallstrom v. Tillamook County,

493 U.S. at 29 (analyzing the legislative history of the citizen

suit provision of the Clean Air Amendments of 1970, which

served as the precursor to analogous citizen suit provisions in

other environmental laws, including the Clean Water Act, the

Resource Conservation and Recovery Act, and the Emergency

Planning and Community Right-to-Know Act). This Court

stated in Hallstrom:

Requiring citizens to comply with the [60-day]

notice and delay requirements serves this

congressional goal in two ways. First, notice

allows Government agencies to take responsibility

for enforcing environmental regulations, thus

of Smithfield, Ltd. v. Chesapeake Bay Foundation,

Inc., 484 U.S. 49, 60, 108 S.Ct. 376, 98 L.Ed.2d

306 (1987) (“The bar on citizen suits when

governmental enforcement action is under way

suggests that the citizen suit is meant to

supplement rather than to supplant governmental

action”). In many cases, an agency may be able to

compel compliance through administrative action,

thus eliminating the need for any access to the

courts. ... Second, notice gives the alleged violator

“an opportunity to bring itself into complete

compliance with the Act and thus likewise render

unnecessary a citizen suit.” Gwaltney, 484 U.S.

at 60.

Hallstrom, 493 U.S. at 29.

The decision below, allowing citizen suits for purely past

violations, frustrates this congressional policy to avoid

unnecessary litigation and unsettles the balance Congress

sought between encouraging citizen enforcement and avoiding

6

burdening the federal courts with excessive suits. The Seventh

Circuit decision nullifies the purpose of the 60-day notice

provision and interferes with the government’s enforcement

discretion.

A. The Lower Court Decision Nullifies

the 60-Day Notice Provision

In Gwaltney, this Court considered whether the citizen

suit provision in the Clean Water Act (CWA), which is

strikingly similar to the citizen suit provision in EPCRA,

authorized citizen suits for wholly past violations. This Court

determined the Act did not confer such jurisdiction citing,

among other things, the forward-looking language, and the

purpose of the citizen suit provision.

This Court stated one of the most striking indicia of the

prospective orientation of the citizen suit is the pervasive use of

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

example, this Court cited the notice provision of the Clean

Water Act that citizen-plaintiffs must give notice to the alleged

violator, the administrator of the EPA, and the state in which

the violation “occurs.” /d. at 59. This Court’s present tense

interpretation of the word “occurs” stands in stark contrast to

the interpretation given this same word in the notice provision

of EPCRA by the Seventh Circuit. The Circuit Court

minimized the present tense character of the term “occurs” by

suggesting another term “is occurring,” which was also found

in the Clean Water Act, but not in EPCRA, categorically

parsing of the language of the statute, however, is contrary to

a plain reading of the law. The Seventh Circuit’s holding that

the enforcement provisions of EPCRA, including the word

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

consequently, are not limited to a prospective orientation is

wrong. Citizens for a Better Environment v. Steel Company,

90 F.3d 1237, 1244 (Th Cir. 1996) (Citizens).

J

The Seventh Circuit compounded its error in this case by

flatly rejecting this Court’s policy rationale for disallowing

citizen suit actions for wholly past violations.

In Gwaltney, this Court reasoned retroactive citizen suits

would render incomprehensible the CWA notice provision that

requires citizens to give 60-day’s notice of their intent to sue to

the alleged violator as well as to the administrator of the EPA

and the state. Gwaltmey, 484 U.S. at 59. “If the Administrator

or the State commences enforcement action within that 60-day

period, the citizen suit is barred, presumably because

governmental action has rendered it unnecessary.” /d.

According to this Court, it follows logically that “the purpose

of notice to the alleged violator is to give it an opportunity to

bring itself into compliance with the Act and thus likewise

render unnecessary a citizen suit.” /d. at 60. In a unanimous

opinion, this Court stated: “If we assume, as respondents urge,

that citizen suits may target wholly past violations, the

requirement of notice to the alleged violator becomes

gratuitous.” /d.

EPCRA has the same notice requirement as the CWA.

The Seventh Circuit ruling, that citizen suits under EPCRA may

target wholly past violations, makes the requirement of notice

to the alleged violator gratuitous.

B. The Lower Court Decision Undercuts

the Government’s Enforcement Discretion

Aside from making the notice requirement gratuitous,

retroactive citizen suits would create a second and even more

disturbing anomaly. This Court pointed out that the bar on

citizen suits when governmental enforcement action is under

way suggests that the citizen suit is meant to supplement rather

than supplant government action. /d. “Permitting citizen suits

for wholly past violations of the Act could undermine the

supplementary role envisioned for the citizen suit.” Jd. To

illustrate this danger, this Court posed a hypothetical.

8

Suppose the administrator of the EPA identified a violator

and issued a compliance order. /d. “Suppose further that the

Administrator agreed not to assess or otherwise seek civil

penalties on the condition that the violator take some extreme

corrective action, such as to install particularly effective but

expensive machinery, that it otherwise would not be obliged to

take.” Jd. at 60-61. “If citizens could file suit, months or years

later, in order to seek the civil penalties the Administrator chose

to forego, then the Administrator’s discretion to enforce the Act

in the public interest would be curtailed considerably.” Jd.

at 61.

In the decision below, the Seventh Circuit acknowledged

that the Administrator has discretion to determine the level of

civil penalties, if any, assessed in a particular case. That

determination may be based on various factors, including the

seriousness of the violation, the violator’s “attitude,” and other

factors. Citizens, 90 F.3d at 1241. However, the lower court

has failed to realize the significance of this discretion.

The Environmental Protection Agency has determined it

is sometimes in the public interest to forego penalties

altogether. An early statement of EPA policy recognized that

civil penalties may not be appropriate in the unusual situation

where the violator is not negligent. Environmental Protection

Agency Civil Penalty Policy (February 16, 1984) at 24. The

purposes of deterrence and punishment are not fulfilled by

making an innocent violator pay civil penalties or incur

additional attorneys’ fees.

Not all violations of EPCRA’s reporting requirements are

willful. The Seventh Circuit observed in this case that “[mJany

industrial companies subject to the Act remained unaware of its

existence long after it went into effect” in 1986. Citizens,

90 F.3d at 1238. Whether it serves the public interest in a

particular case, such as this case, to pursue penalties should be

left in the hands of the agency tasked with the responsibility to

enforce the Act. That decision should not be left in the hands

9

of special interest plaintiffs who invariably seek to maximize

penalties, as attested by Citizens’ $573,500,000 claim in this

case, without regard for culpability or actual harm to the

environment.

In Gwaltney, this Court concluded that an interpretation

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

citizen suits for past violations, would change the nature of the

citizen’s role from interstitial to potentially intrusive. Jd “We

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

This Court’s policy rationale for limiting the scope of the

citizen suit provision of the CWA applies equally to EPCRA.

EPCRA contains a prohibition on citizen suits when the

government acts; the notice provision of EPCRA contains

forward-looking language; and, the legislative history does not

suggest a contrary congressional intent.

The lower court rejected this Court’s policy

considerations based on an amendment to an act other than

EPCRA. The Seventh Circuit held the reasoning of this Court

is no longer as compelling as it was when Gwaltney was

decided because, since then, Congress amended the Clean Air

Act, to permit citizen enforcement actions for past violations,

yet left the notice provision intact. Citizens, 90 F.3d at 1244.

The Seventh Circuit apparently believes that when Congress

amended the Clean Air Act to explicitly allow citizen suits for

past violations any statute with a similar notice provision, like

EPCRA, had been implicitly altered as well. Other

relief, include the Clean Water Act, the Resource Conservation

and Recovery Act, 42 U.S.C. § 6901, et seq., and the Toxic

Substances Control Act, 15 U.S.C. § 2601, ef seg. Gwaltney,

484 U.S. at 57. The implication that these acts have also been

changed by amendment of the Clean Air Act is unreasonable.

A more reasonable implication is that Congress consciously

chose to maintain the rule of Gwaltney for the Clean Water Act

10

and EPCRA. All the amendment of the Clean Air Act shows is

that Congress knows how explicitly to authorize citizen suits

for wholly past violations, in particular situations, when it

intends to do so. See id. Congress never explicitly authorized

such citizen suits in EPCRA.

C. The Lower Court Decision

Encourages Excessive Citizen Suits

In place of, and totally contrary to, the policy rationale

applied by this Court in Gwaltney, the Seventh Circuit

suggested a rationale that seeks foremost to reward citizen

enforcers financially. The Seventh Circuit held EPCRA creates

a structure that encourages private citizens to invest the

resources necessary to uncover violations of the Act by

allowing courts to award the costs of enforcement to

substantially prevailing parties. Citizens, 90 F.3d at 1244. If

citizen suits could be fully prevented, the court argues, by

completing and submitting forms, however late, citizens would

have no real incentive to incur the costs of learning about

EPCRA, investigating suspected violators, and analyzing

information. /d. Put simply, the court stated, if citizens can’t

sue, they can’t recover the costs of their efforts. Jd. “Private

enforcement of the reporting requirements would undoubtedly

drop off.” Jd. at 1245.

This rationale overlooks the very real probability that, in

cases involving “reporting requirements,” the cost of

determining who the violators are may be little more than the

cost of a Freedom of Information Act request to the EPA. Most

of the “reward” to the plaintiff from the citizen suit is likely to

reflect the totally unnecessary costs of the litigation.

The Seventh Circuit also overlooks that EPCRA, like the

CWA, contains a provision that bars citizen suits when the

government chooses to enforce the Act. 42 U.S.C. § 11046(e).

If the government exercises its enforcement discretion, citizens

cannot bring a suit and recover their costs anyway. Therefore,

11

limiting citizen suits to prospective relief leaves citizens no

worse off than if the government chooses to act, and the

government has discretion to act in all cases. To achieve, in all

cases, the ends suggested by the Seventh Circuit--to reward

citizens for their enforcement efforts--EPCRA would have to be

read to authorize a citizen suit every time a citizen sends a

notice of intent to sue, even if the government pursues a

discretionary enforcement action. Clearly, Congress did not

intend such a result.

The Seventh Circuit laments that if citizen suits are not

allowed for wholly past violations under EPCRA, citizen suits

could only proceed when a violator receives notice of intent to

sue and still fails to comply. Citizens, 90 F.3d at 1244. That is

correct. To avoid unnecessary lawsuits, that is precisely what

Congress intended.

Under Sectioris 312 and 313 of EPCRA, civil penalties

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

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

previously noted, the Seventh Circuit observed in this case,

“[mJany industrial companies subject to the Act remained

unaware of its existence long after it went into effect” in 1986.

Id. at 1238. The EPA estimated that of the approximately

30,000 facilities required to submit Section 313 forms, over

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

Release Inventory Is Useful but Can Be Improved,

at 49 GAO/RCED 91-121 (June, 1991). Additionally,

according to an EPA report sent to the Office of

EPCRA Sections 311 and 312 potentially affect 866,285

facilities. 60 Fed. Reg. 35,201. For those facilities that are still

unaware of EPCRA, the potential liability is immense. Indeed,

Citizens allege the Company in this case was out of compliance

for approximately eight years and is liable for penalties of

$537,500,000. Complaint at 23, 30.

EE a Te ee ee Neer a eRe

12

The allure of tens of thousands of potential defendants

with such huge potential liability is irresistible to opportunistic

plaintiffs. Plaintiffs, such as Citizens in this case, can and do

use the threat of a lawsuit to coerce lucrative settlements from

alleged violators--settlements that benefit the plaintiffs.

Citizens are quite proud of this fact and readily admit that those

companies that don’t settle with them will be “punished” with

a lawsuit.

In the event that CBE is unable to settle the matter,

it files court actions seeking penalties to be paid to

the United States Treasury to punish non-

complying companies and other companies from

ignoring EPCRA.

Opening Brief for Plaintiff-Appellant, Citizens for a Better

Environment, in the United States Court of Appeals for the

Seventh Circuit at 9-10 (emphasis added).

Citizens have found a court-endorsed means of exploiting

a lucrative new market in citizen suits. The threat of a lawsuit

to “punish non-complying companies” with exorbitant penalties

is a great incentive to “settlement” with plaintiffs, wherein the

plaintiffs, and not the government, receive money from the

defendant to ward off a lawsuit. Moreover, under the lower

court decision, plaintiffs need not have even precipitated

compliance of a delinquent business to use the threat of a

lawsuit to extort money and operational concessions from the

business. Plaintiffs need only become aware of a late filing of

13

already been cured) but serve only to burden the federal courts

with excessive citizen suits, punish regulated parties, and

Congress tried to achieve through the citizen suit in the first

place.

II

EPCRA DOES NOT AUTHORIZE

CITIZEN SUITS FOR PAST VIOLATIONS

Contrary to the Seventh Circuit in this case, in United

Musical the Sixth Circuit held, “the plain language and

structure of EPCRA lead us to conclude that citizen plaintiffs

may not bring actions that seek civil penalties for purely

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

Seventh Circuit in this case expressly rejected the Sixth Circuit

analysis. Citizens, 90 F.3d at 1242 n.1. However, the Seventh

Circuit ruling is not supported by the plain meaning of the Act,

the legislative history, or the policy objectives of such citizen

suits. The Sixth Circuit has the better analysis. Contrasting

these differing opinions is instructive.

In United Musical, the Atlantic States Legal Foundation

sent United Musical Instruments a notice of intent to sue for

that company’s failure to submit the chemical release reporting

forms required by Section 313 of EPCRA. Within the 60-day

notice period, the company submitted the forms. Yet, the

foundation sued the company in federal District Court for the

that have been cured by the date the action commences. United

Musical, 61 F.3d at 475.

To reach this conclusion, the court looked first at the

language of the statute and found Congress could have phrased

its requirements in language that looked to the past but it did

not choose this readily available option. Jd at 477. Ra .er, the

14

court determined the most natural reading of the citizen suit

purely historical violations. /d. The court then looked at the

legislative history of EPCRA and determined there is nothing

indicating Congress intended to allow citizens to sue for past

violations. /d.

Another decisive factor in the court’s determination was

this Court’s discussion in the Gwaltney opinion concerning the

role of citizen suits in the Clean Water Act. The court noted

that EPCRA, like the Clean Water Act, prohibits citizen suits

once EPA has commenced an enforcement action. In

Gwaltney, this Court stated the bar on citizen suits when

government enforcement action is under way suggests citizens

suits are meant to supplement rather than supplant

governmental action and that Congress could not have intended

a contrary result. Gwaltney, 484 U.S. at 60.

But, contrary to the Sixth Circuit finding in United

Musical, the Seventh Circuit found the citizen suit provision of

EPCRA does look to the past. However, where the Sixth

citizen suits for historical violations, the Seventh Circuit was

For example, the Seventh Circuit noted EPCRA authorizes

citizens to sue “for failure to” comply with the statute. The

court then maintained this ambiguous reference “can indicate

a failure past or present.” Citizens, 90 F.3d at 1243. The

Seventh Circuit also noted that notice of intent to sue must be

given to the EPA, the alleged violator, and “‘the State in which

the alleged violation occurs.”” Jd. at 1244. Although the term

“occurs” in the notice provision clearly connotes something

contains no language to indicate that citizens must allege an

ongoing violation. /d

15

Aside from its strained reading of the statutory language,

the Seventh Circuit cites nothing in the legislative history of

EPCRA to justify its conclusion that EPCRA authorizes citizen

suits for past violations. Rather, the court infers Congress

intended to allow such suits when it amended the Clean Air

Act. Citizens, 90 F.3d at 1244.

In 1990, Congress amended the Clean Air Act to allow

notice provision intact. According to the Seventh Circuit, the

rationale behind Gwaltney--that allowing citizens to sue after

violations ceased would defeat the purpose of the notice

provision and undercut the EPA’s enforcement discretion--

becomes less compelling when considered in light of this

amendment to the Clean Air Act. /d But the Sixth Circuit had

a response to that argument.

In United Musical, the court acknowledged this argument

has a certain logic but determined it is unpersuasive since one

can argue with equal force that by amending the Clean Air Act,

but not amending EPCRA, Congress intended to limit

EPCRA’s citizen suit provision to violations existing at the

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

the Sixth Circuit correctly concluded that in the absence of

explicit congressional language mandating such a result--as in

Id.

Finally, the Seventh Circuit considered the purpose of the

interpreted to reward citizens for their enforcement efforts.

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

purpose. /d However, nothing in either the act or the

legislative history suggests the purpose of the EPCRA citizen

suit provision is to reward or otherwise finance opportunistic

legal challenges. The Seventh Circuit’s view of the purpose of

citizen suits is contrary to good public policy and runs counter

16

to the view adopted by this Court in Gwaltney that citizen suit

provisions, like the provision in this case, are intended to only

supplement, but not replace, the enforcement efforts of the

government.

Oe

CONCLUSION

The Seventh Circuit ruling is not supported by the plain

meaning of the Act, the legislative history, or the policy

objectives of such citizen suits. The lower court decision

serves only to encourage citizen litigation for profit--a form of

legalized extortion. That was never the intent of Congress.

Rather, a plain reading of EPCRA and similar environmental

statutes suggests the purpose of citizen suits is to assist, not

replace, discretionary government enforcement. This Court

should overturn the decision below

DATED: April, 1997

Respectfully submitted,

ROBIN L. RIVETT

*M. REED HOPPER

*Counsel of Record

Pacific Legal Foundation

2151 River Plaza Drive,

Suite 305

Sacramento, California 95833

Telephone: (916) 641-8888

Attorneys for Amicus Curiae

Pacific Legal Foundation

AMICUS CURIAE

BRIEF

rh) Supreme Court, us.

I / FILED

; MAY 2 1997

No. 96-643

IN THE CLERK |

Supreme Court Of Che United States

OCTOBER TERM, 1996

THE STEEL COMPANY, A/K/A CHICAGO STEEL AND

PICKLING COMPANY,

Petitioner,

Vv.

CITIZENS FOR A BETTER ENVIRONMENT, ET AL.,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Seventh Circuit

Brief Amici Curiae of American Iron & Steel Institute,

American Petroleum Institute, California Council for

Environmental and Economic Balance, Chamber of

Commerce of the United States, Edison Electric Institute,

Kitchen Cabinet Manufacturers Association,

Michigan Manufacturers Association and

The Society of the Plastics Industries

In Support of the Petitioner

Scott M. DuBoff *

John W. Heiderscheit III

WRIGHT & TALISMAN, P.C.

1200 G Street, N.W.

Washington, D.C. 20005

(202) 393-1200

Counsel for Amici Curiae

* Counsel of Record

(Additional Counsel Listed on Inside Cover)

Balmar Legal Publishing Services, Washington, D.C. (202)682-9800

J WV

pr \

Thomas M. Sneeringer

American Iron & Steel Institute

1101 17th Street, N.W., 13th Floor

Washington, DC 20036-4700

Counsel for American Iron & Steel Institute

Valerie J. Ughetta |

American Petroleum Institute

1220 L Street, N.W.

Washington, DC 20005-4070

Counsel for American Petroleum Institute

Robin S. Conrad

National Chamber Litigation Center, Inc.

1615 H Street, N. W.

Washington, DC 20062

Counsel for Chamber of Commerce of the United States

Barbara Hinden

Edison Electric Institute

701 Pennsylvania Avenue, N.W.

Washington, DC 20004-2696

Counsel for Edison Electric Institute

Arthur L. Herold

Webster, Chamberlain & Bean

1747 Pennsylvania Avenue, N.W., Suite 1000

Washington, DC 20006

Counsel for Kitchen Cabinet Manufacturers Association

J. Walker Henry

Clark Hill P.L.C.

500 Woodward Avenue, Suite 3500

Detroit, Michigan 48226-3435 f

Counsel for Michigan Manufacturers Association

Sheila A. Millar :

Keller and Heckman

1001 G Street, N.W., Suite 500 West

Washington, DC 20001

Counsel for The Society of the Plastics Industries

TABLE OF CONTENTS

TABLE OF AUTHORITIES .........2.0:c-cscscscscssesesesesessseserevees ii

STATEMENT OF INTEREST OF AMIC1........................ 3

INTRODUCTION AND SUMMARY OF

EE ee 5

EEE 7

I. CONSISTENT WITH THIS COURT’S

RECOGNITION OF THE LIMITS CON-

GRESS INTENDED FOR’ ENVIRON-

MENTAL ENFORCEMENT BY CITI-

ZENS, EPCRA’S PLAIN LANGUAGE

MAKES CLEAR THAT FEDERAL

COURTS LACK JURISDICTION OVER

CITIZEN SUITS FOR WHOLLY PAST

a 7

A. EPCRA’s Plain Language Dictates

That Citizens May Not Sue For Wholly

ee 7

B. Section 326 Of EPCRA Was Based On

The Same Citizen Suit Template That

This Court Ruled In Gwaltney Does

Not Authorize Citizen Suits For

Wholly Past Violations ...................ccc0000e00 10

Il. EVEN INTERPRETED IN LIGHT OF EX-

TRINSIC AIDS, THE SEVENTH CIR-

CUIT’S RULING THAT FEDERAL

COURTS HAVE JURISDICTION OVER

PRIVATE CITIZENS’ CLAIMS OF

WHOLLY PAST VIOLATIONS DOES

NOT WITHSTAND SCRUTINY.........:c0c00s0000000 11

il

Ill. THE SEVENTH CIRCUIT’S DECISION

WOULD CONFER STANDING TO SUE

IN CIRCUMSTANCES WHERE ARTICLE

- sh —_—_--_——- —- -

ili

TABLE OF AUTHORITIES

CASES PAGES

Archestani v. 1.N.S., 502 U.S. 129 (1991)........cccccecceseseeseneeeeees 9

Arizonans For Official English v. Arizona,

a NT 16

Atlantic States Legal Found. Inc. v. United Musical

Instruments U.S.A., Inc.,

CT passim

Allantic States Legal Found., Inc. v. Whiting Roll-Up

Door Mfg. Corp., 772 F. Supp. 745

Vo ES 9

Bennett v. Spear, 65 U.S.L.W. 4201 (U.S. Mar. 19,

en ee 8, 15

Chevron, U.S.A. v. Natural Resources Defense Council,

Se ee Be Ge rccccasitllinsecescnercensnsnssnstarnenimcannesenssaneesen 7,8

Citizens for a Better Env’t. v. The Steel Co..,

Fe Fe le Lo See passim

Diamond v. Charles, 476 U.S. 54 (1986) ..........c.cccceceseeeerenees 16

Gwaliney of Smithfield, Lid. v. Chesapeake Bay

Founds., Inc. 484 U.S. 49 (1987)......ccccccccececceceeseneeeeee passim

Hallstrom v. Tillamook County, 493 U.S. 20

GEE crercnctutennsnaithinmnanienuitiaeiimninieneaiesianiasss 2, 11, 13-14, 15

Isbrandtsen Co. v. Johnson, 343 U.S. 779 (1952) ......c.c.s-0ee-0e: 7

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)............ 16

Marbury v. Madison, 5 U.S. (Cranch) 137 (1803) ................ 17

St. Louis Fuel & Supply Co. v. F.E.R.C.,

NE 9

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

DEBD. GR, BED G) osccecccscsscsencosscsnscessnsssensnsssessosensasessesesesssessees 12

iV

Water Quality Ass’n Employees’ Benefit Corp. v.

United States, 795 F.2d 1303 (7th Cir. 1986)............c0000e0 8

FEDERAL STATUTES

Clean Air Act

Qu EE 13

§ 304(a)(1), 42 U.S.C. § 7604 (8)(1) .......cccccccceesersenreennennes 12

Clean Water Act § 505, 33 U.S.C. § 1365 ..........ccccccccseeeseereenes 6

ye 9

Emergency Planning and Community Right-To-Know Act,

OB SER, GB GLE 6 Be ccscnnsnecsssssessnnssnenssnsencsssecenstssnsiesees 2

§ SIDAa), 42 U.S.C. § UIGZA) ..20.ccccecccccceccsccscesecesnsscceee 7,8

(LS 2

© SESE, GB WEE. GE RTIORD ccccescccsncssscsvssssesssseqessessesse 7,8

OU passim

§ 326(b)(1), 42 U.S.C. § 11046(0)(1) ..........ccccccceereeeseenenes 10

§ SAGE), 42 U.S.C. § LIDGE LG) ..ncccccccceccsccccccceccsccesecssnsecess 14

§ 326(d)(1), 42 U.S.C. § 11046(d)(1) ..........ccccceeceeseees 10, 11

§ SAECe), 42 U.S.C. § 1BDEGLS) nnccerccccccccccccccseccsccscvecsssncees 11

MISCELLANEOUS

Daily Environmental Reporter (BNA) (Apr. 23, 1997) .......... 2

M.J. Walker & J.D. Jacobs, EPCRA Citizens Suits: An

Evolving Opus with a Discordant Note, The Journal

of Environmental Law & Practice

Ge TI, TRU i escncssesnseesemneseemmamemeseemne 17

EPA, FY 1995 Enforcement and Compliance Assurance

Accomplishments Report (1996). ..........ssssseeeereneeneeeees 18

No. 96-643

IN THE

Supreme Court Of Che United States

OCTOBER TERM, 1996

THE STEEL COMPANY, A/K/A CHICAGO STEFL AND

PICKLING COMPANY,

Petitioner,

Vv.

CITIZENS FoR A BETTER ENVIRONMENT, ET AL.,

Respondents.

Or Writ of Certiorari to the United States

Court of Appeals for the Seventh Circuit

Brief Amici Curiae of American Iron & Steel Institute,

American Petroleum Institute, California Council for

Environmental and Economic Balance, Chamber of

Commerce of the United States, Edison Electric Institute,

Kitchen Cabinet Manufacturers Association,

Michigan Manufacturers Association and

The Society of the Plastics Industries

In Support of the Petitioner

This brief amici curiae of the American Iron & Steel In-

Stitute, et al., is submitted in support of Petitioner The Steel

Company. Like Petitioner, amici submit that the opinion of

the United States Court of Appeals for the Seventh Circuit in

Citizens for a Better Environment v. The Steel Co., 90 F.3d

1237 (7th Cir. 1996) (reproduced at Pet. App. 1a-17a) is erro-

neous and should be reversed.

2

The court of appeals’ decision concerns the reporting

provisions of sections 312 and 313 of the Emergency Plan-

ning and Community Right-To-Know Act (“EPCRA”), 42

U.S.C. §§ 11022 and 11023, and raises the question of

whether a private enforcement action (“citizen suit”) under

section 326 of EPCRA, 42 U.S.C. § 11046, is authorized

against a defendant who, as all in this case agree, filed the re-

ports required under sections 312 and 313 prior to com-

mencement of the underlying citizen suit by the Respondents,

Citizens for a Better Environment, et al. (“CBE”). The Sev-

enth Circuit’s decision allows a federal court to hear an EP-

CRA citizen suit under section 326 even where the defendant

completely cured the alleged violation -- failure to covplete

and file certain environmental reporting forms -- prior to the

initiation of suit. That decision contravenes Congress’s intent

that the statutorily-required pre-suit notice under EPCRA (and

similar environmental statutes) would allow alleged violators

to cure such violations without the need for recourse to the

courts. The Seventh Circuit’s interpretation of EPCRA sec-

tion 326 not only conflicts with the Sixth Circuit’s decision in

Atlantic States Legal Foundation, Inc. v. United Musical In-

struments, U.S.A., Inc., 61 F.3d 473 (6th Cir. 1996), but also

with this Court’s decisions in Gwaltney of Smithfield, Lid. v.

Chesapeake Bay Foundation, Inc., 484 U.S. 49 (1987), and

Hallstrom v. Tillamook County, 493 U.S. 20 (1989). The lat-

ter cases involved the citizen suit provisions of the Clean

Water Act and Resource Conservation and Recovery Act, re-

spectively. This Court’s rulings in each case are clearly at

odds with the Seventh Circuit’s interpretation of the directly

analogous provisions of section 326 of EPCRA. »

Y On April 27, 1997 President Clinton announced that EPA will fi-

nalize expansion of EPCRA section 313 reporting to thousands of new

facilities in seven additional industrial sectors, which will encompass

many small businesses. Daily Environmental Reporter (BNA) (Apr. 23,

1997) at AA-1. EPA intends to extend EPCRA reporting requirements to

other industrial categories in the future. The citizen suit provisions at is-

——

3

STATEMENT OF INTEREST OF AMICI

Pursuant to Rule 36 of the Rules of the Supreme Court.

amici American Iron & Steel Institute, American Petroleum In-

stitute, California Council for Environmental and Economic

Balance, Chamber of Commerce of the United States, Edison

Electric Institute, Kitchen Cabinet Manufacturers Association,

Michigan Manufacturers Association and The Society of the

Plastics Industries (collectively, “industry amici”), file this brief

in support of Petitioner The Steel Company. Amici, representing

a broad spectrum of industry in the United States, support Peti-

tioner’s position seeking reversal of the decision below on the

grounds that citizen suits under EPCRA may not be brought to

impose civil penalties for wholly past violations. This brief is

submitted to supplement Petitioner’s arg: nent by providing ad-

ditional perspective on the consequences of applying the deci-

sion below to the broader industrial community.

Amicus American Iron & Steel Institute (“AISI”) is a trade

organization representing North American manufacturers,

processors and other producers of iron and steel and related

products. Virtually every domestic member of AISI is subject

to regulation under EPCRA and parallel state laws. AISI’s 50

member companies represent approximately 70% of steel pro-

duction in the United States. AISI represents the views of its

members before courts and regulatory agencies on issues of

law and public policy that are of significant concern to them.

Amicus American Petroleum Institute (“API”) is a trade

association whose membership includes over 300 companies

involved in all aspects of the petroleum industry, including

exploration, production, transportation, refining and market-

ing. Many API members are regulated under EPCRA. API is

sue here will, accordingly, affect an increasing number of business enti-

ties, many outside the large manufacturing sectors.

2 Letters confirming that the Petitioner and Respondents consent to

the filing of this brief have been filed with the Clerk of the Court.

4

an advocate on important issues of public policy before

courts, legislative bodies, regulatory agencies and other fo-

rums.

Amicus California Council for Environmental and Eco-

nomic Balance (“CCEEB”) is a private, non-profit coalition of

organized labor and businesses in California. CCEEB was

established in 1973 and has been an advocate before legisla-

tive and regulatory forums for solutions to achieve Califor-

nia’s environmental and economic goals.

Amicus Chamber of Commerce of the United States (the

“Chamber”) is the world’s largest business federation. The

Chamber represents an underlying membership of more than

three million businesses and organizations of every size, sec-

tor and region. Ninety-six percent of the Chamber’s members

are businesses with less than 100 employees. The Chamber

regularly advocates the interests of its members in court on

environmental issues of national concern to the business

community.

Amicus Edison Electric Institute (“EET”) is the associa-

tion of investor-owned electric utilities in the United States

and their industry associates worldwide. EEI’s U.S. members

serve 99% of all customers served by the investor-owned

segment of the electric utility industry. They generate about

78% of all the electricity generated by electric utilities, and

service 76% of all ultimate customers in the Nation. EEI

members are regulated under EPCRA. EEI is a frequent advo-

cate on behalf of its members’ interests in connection with

important issues of law and policy that arise before courts,

legislative bodies and regulatory agencies.

Amicus Kitchen Cabinet Manufacturers Association

(“KCMA”) is a voluntary non-profit trade association

founded in 1955. Currently, KCMA represents over 350

members who manufacture kitchen cabinets and bath vanities,

countertops and other decorative laminate products, or supply

goods and services to such manufacturers. Fifty-five percent

5

of KCMA members report annual sales under $5 million and

75% report sales under $10 million (annual industry sales are

estimated at over $5.5 billion). _KCMA conducts research

and educational programs, and represents its members’ inter-

ests in important judicial, legislative and regulatory matters.

Amicus Michigan Manufacturers Association (“MMA”)

is a business association of private Michigan employers,

studying matters of general interest to its members, promoting

their interests and the interests of all Michigan employers and

the general public in the proper administration of laws relating

to its members, and otherwise promoting the general business

and economic welfare of Michigan. MMA’s more than four

thousand members employ 90% of the industrial work force

in Michigan -- over one million people. An important aspect

of MMA’s activities is representing its members as amici cu-

riae in a broad range of matters before the courts.

Amicus The Society of the Plastics Industries, Inc.

(“SPI”), is a trade association of nearly 2,000 members repre-

senting all segments of the plastics industry in the United

States. SPI’s business units and committees are composed of

plastics processors, raw material suppliers, machinery manu-

facturers, moldmakers and other industry-related entities.

Founded in 1937, SPI serves as the voice of the plastics in-

dustry before each level of government in matters of concern

to SPI members.

INTRODUCTION AND SUMMARY OF ARGUMENT

In Gwaltney, this Court ruled that citizen suits may not

be maintained for wholly past violations of the Clean Water

Act (“CWA”). But the Seventh Circuit concluded that the

language of EPCRA’s citizen suit provision is distinguishable

from the CWA and the reasoning underlying Gwaltney “is no

longer as compelling as it was when Gwaliney was decided.”

90 F.3d at 1244; see also id. at 1242. Industry amici disagree

on both points. In ruling that EPCRA section 326 authorizes

citizen suits for wholly past violations, the Seventh Circuit

6

suggested that EPCRA’s citizen suit provision “does not point

clearly to the present tense as its counterpart [CWA § 505, 33

U.S.C. § 1365] does in the Clean Water Act.” Jd. at 1243.

Therefore, according to the court of appeals, section 326 of

EPCRA is not limited to ongoing noncompliance. Jd. The

court reasoned that the mandatory pre-suit notice provision in

section 326 was not intended to allow the would-be defendant

to cure the alleged noncompliance and thus render a citizen

suit unnecessary. If the converse were true it would, accord-

ing to the Seventh Circuit, “render the citizen enforcement

provision [of EPCRA] virtually meaningless” because

y “citizens would have no real incentive to incur the costs of

learning about EPCRA, investigating suspected violators, and

analyzing information. Put simply, if citizens can’t sue, they

can’t recover the costs of their efforts.” Jd. at 1244.

The Seventh Circuit’s holding that federal courts may

hear EPCRA citizen suits even though compliance has been

achieved prior to and without the necessity of a suit is flawed

in three principal respects. First, the decision erroneously

considered extrinsic evidence in interpreting EPCRA’s citizen

suit provision. EPCRA clearly provides that wholly past vio-

lations are not actionable, thus rendering the use of extrinsic

evidence both unnecessary and improper. Second, even if the

Seventh Circuit had been correct in resorting to extrinsic aids

to construe EPCRA’s citizen suit provision, the court misap-

plied those aids and failed to recognize that in crafting EP-

CRA’s citizen suit provision, Congress used the template that

underlies essentially all environmental citizen suits, and

which this Court has held does not authorize citizen suits for

wholly past violations. Finally, assuming that EPCRA could

nevertheless be construed to allow private suits for wholly

past violations, such an interpretation would fail to satisfy the

7

“irreducible minimum” requirement for standing to sue under

Article III of the Constitution. ”

ARGUMENT

I. CONSISTENT WITH THIS COURT’S RECOGNI-

TION OF THE LIMITS CONGRESS INTENDED

FOR ENVIRONMENTAL ENFORCEMENT BY

CITIZENS, EPCRA’S PLAIN LANGUAGE MAKES

CLEAR THAT FEDERAL COURTS LACK JURIS-

DICTION OVER CITIZEN SUITS FOR WHOLLY

PAST VIOLATIONS

A. EPCRA’s Plain Language Dictates That Citizens

May Not Sue For Wholly Past Violations

This is a straightforward statutory interpretation case.

Atlantic States v. United Musical Instruments, 61 F.3d 473.

That is because the plain language of section 326 of EPCRA

authorizes citizen suits only “for failure to . . . [c]jomplete and

submit an inventory form under Section 11022(a) [EPCRA

§ 312(a)] [and] . . . a toxic chemical release form under Sec-

tion 11023(a) [EPCRA § 313(a)].” Here, as of the date the

underlying suit was filed, The Steel Company had “completed

and submitted” all necessary forms. The Seventh Circuit,

therefore, should have affirmed the district court’s decision in

favor of Petitioner, without resort to extrinsic aids. Chevron

U.S.A., Inc. v. Netural Resources Defense Council, Inc., 467

U.S. 837 (1984); Isbrandtsen Co., Inc. v. Johnson, 343 U.S.

779 (1952)\(court bound to give effect to expressed intent of

legislature).

More specifically, section 326 of EPCRA provides that

“any person” may commence a civil action on his own behalf

against “[a}]n owner or operator of a facility for failure to do

» Affirming the Seventh Circuit would expose thousands of small

businesses to costly litigation and legal expense despite good-faith efforts

to comply and prompt action to correct previous noncompliance.

8

any of the following,” including the failure to “complete and

submit” the forms described in sections 312(a) and 313(a) of

EPCRA. But here there is no allegation that Petitioner failed to

“complete and submit” either of the required forms prior to

commencement of CBE’s suit. Accordingly, the district court

had correctly ruled in this case -- in accordance with this

Court’s Chevron decision -- that under the plain language of

the statute the court had no jurisdiction to hear CBE’s suit.

Nevertheless, to buttress its contrary interpretation, the

Seventh Circuit noted that section 326 authorizes a citizen suit

for failure to complete and submit the required forms “under”

sections 312(a) and 313(a). The court concluded that this use

of the term “under” was a shorthand by which Congress in-

tended to incorporate the timing provisions of sections 312(a)

and 313(a) into the “complete and submit” provision of sec-

tion 326, thereby expanding citizen suit jurisdiction to include

cases where compliance had been achieved prior to suit but not

in conformity with those timing provisions. See 90 F.3d at

1243.

As recognized by the Sixth Circuit in Atlantic States v.

United Musical Instruments, the preceding interpretation of the

word “under” is very strained. See 61 F.3d at 475. Indeed, it

would have required the insertion of only a single word --

“timely,” after the word “submit” in section 326 -- to have

stated clearly the intention inferred by the Seventh Circuit. The

legislature’s failure to insert that single word suggests that the

word was not intended to be there and, thus, that Congress did

not intend that EPCRA citizen suits would be brought where

the subject reports had already been filed prior to such a suit.

Water Quality Ass’n Employees’ Benefit Corp. v. United

States, 795 F.2d 1303 (7th Cir. 1986); cf., Bennett v. Spear, 65

U.S.L.W. 4201, 4204 (U.S. Mar. 19, 1997) (Court must take

the term “any person” at “face value” in interpreting Endan-

gered Species Act citizen suit provision).

ae

9

Moreover, the notion that Congress used such a shorthand

method to make all of the substantive requirements of EPCRA

compliance enforceable by citizens on the same basis as the

federal government is highly suspect. Contrary to the Seventh

Circuit’s reasoning, it is well-understood that “under” simply

means “by reason of the authority of.” See Archestani v. I.N.S.,

502 U.S. 129, 135 (1991). It is precisely for such reasons that

“attribution of significance” to the term “under” in the Equal

Access to Justice Act struck the District of Columbia Circuit as

merely “wishful thinking.” St. Louis Fuel & Supply Co., Inc. v.

F.E.R.C., 890 F.2d 446, 450 (D.C. Cir. 1989).

Finally, the Seventh Circuit’s assertion, 90 F.3d at 1243,

that the district court’s plain language interpretation “would

render gratuitous the compliance dates for initial submissions

which Congress placed” in the statute is simply wrong. The

Seventh Circuit borrowed this notion, apparently without con-

sideration, from Atlantic States Legal Foundation, Inc. v.

Whiting Roll-Up Door Manufacturing Corp., 772 F. Supp. 745,

750 (W.D.N.Y. 1991). Although apparently not considered by

the Seventh Circuit, a regulated entity such as Petitioner that

misses an EPCRA filing deadline faces the specter of a poten-

tial government enforcement action long after a belated filing is

made. * Thus, the suggestion that the plain meaning interpre-

tation would render compliance with EPCRA’s filing dates

“gratuitous” simply disregards the practical realities that govern

here.

In short, the plain language of the EPCRA citizen suit pro-

vision establishes that Congress intended to limit such suits to

cases of ongoing failures to “complete and file” the requisite

reports. There was no failure to “complete and file” in this case,

© Although its applicability to EPCRA has not been specifically ad-

dressed, see Atlantic States v. United Musical Instrument, 61 F.3d at 475

n.4, a five-year statute of limitations generally applies to federal actions

for assessment of civil penalties. See 28 U.S.C. § 2462.

10

and the district court, accordingly, correctly concluded that it

lacked jurisdiction.

B. Section 326 Of EPCRA Was Based On The Same

Citizen Suit Template That This Court Ruled In

Gwaltney Does Not Authorize Citizen Suits For

Wholly Past Violations

EPCRA is a public disclosure statute and contains no sub-

stantive pollution control requirements. The Seventh Circuit

would nevertheless interpret EPCRA as conferring greater citi-

zen enforcement authority than is available under the substantive

environmental statutes.

The Seventh Circuit disregarded the fact that EPCRA’s

language is remarkably similar to the citizen suit provisions of

the CWA and other environmental laws. Although the Seventh

Circuit identified minuscule differences between the citizen suit

provisions of EPCRA and the CWA, those differences are in-

significant (and certainly do not suggest, as assumed by the Sev-

enth Circuit, that Congress intended that citizen plaintiffs would

have greater enforcement authority under an information shar-

ing statute than under the substantive environmental laws). For

example, the Seventh Circuit noted that EPCRA’s venue provi-

sion, section 326 (b)(1), uses the past tense of “occur” (i.e., citi-

zen suits “shall be brought in the district court for the district in

which the violation occurred” (emphasis added)). This is not a

meaningful distinction because it is invariably true that some

violation will have “occurred” in advance of a citizen suit -- oth-

erwise the complaint could not have been filed (also, the dis-

tinction relates only to venue and not to the scope of jurisdic-

tion). Although overlooked by the Seventh Circuit, a far more

significant point is the use of the present tense in the EPCRA

citizen suit provision’s requirement for pre-suit notification to

“the State in which the alleged violation occurs.” § 326(d)(1)

(emphasis added). This use of the present tense clearly signals a

11

legislative intent that EPCRA citizen suits would address ongo-

ing iolati y

In this connection it is particularly important to note that in

crafting section 326, Congress relied on its well-defined envi-

ronmental citizen suit template. See Hallstrom v. Tillamook

County, 493 U.S. at 23 n.1. Conforming to the pattern of the

CWA and other environmental statutes, section 326 requires no-

tice to the federal government, the affected state and the alleged

violator at least sixty days in advance of filing suit. Just as is the

case under those other environmental statutes, EPCRA prohibits

citizen suits where the government has already addressed the

noncompliance in question. Furthermore, and again like other

environmental laws, EPCRA authorizes federal courts to take

jurisdiction without regard to such matters as the amount in

controversy or diversity of citizenship. Put another way, EP-

CRA’s citizen suit provision is directly analogous to the citizen

suit proviSions of the CWA and other environmental statutes,

and should be so interpreted. While those statutes give the fed-

eral government authority to seek enforcement for wholly past

violations, they do not give that authority to private plaintiffs

and neither, therefore, does EPCRA.

Il. EVEN INTERPRETED IN LIGHT OF EXTRINSIC

AIDS, THE SEVENTH CIRCUIT’S RULING THAT

FEDERAL COURTS HAVE JURISDICTION OVER

PRIVATE CITIZENS’ CLAIMS OF WHOLLY

PAST VIOLATIONS DOES NOT WITHSTAND

SCRUTINY

As already discussed, this is a “plain language” case; re-

sort to extrinsic aids is, therefore, unnecessary (and should not

fave been relied on by the Seventh Circuit). Nevertheless,

» The Seventh Circuit erroneously suggests that this use of “occurs”

in section 326(d\1) is not “cast in the present tense.” 90 F.3d at 1244.

This error is fundamental and further undermines the court of appeals’

“plain meaning” analysis.

12

approaching the case on the same basis as the court of ap-

peals, neither the Clean Air Act (“CAA”) Amendments of

1990, EPCRA’s legislative history, nor the policy goals

served by EPCRA'’s citizen suit provision -- all of which were

relied on by the Seventh Circuit -- produces a result different

from the plain meaning interpretation of section 326 of EP-

CRA.

To begin, confronted with this Court’s decision in

Gwaltney that a citizen suit under the CWA cannot be brought

with respect to wholly past violations, the Seventh Circuit en-

gaged in an erroneous argument that Gwaltney “is no longer

as compelling.” 90 F.3d at 1244. The Seventh Circuit’s

premise for that position is the CAA Amendments of 1990,

pursuant to which citizen suit enforcement authority is de-

fined to include certain violations of a “repeated” nature.

With that premise, the court reasoned that Congress intended

that all wholly past violations, under ail environmental stat-

utes, would be subject to citizen suit enforcement. 90 F.3d at

1244. While the CAA Amendments of 1990 make certain

“repeated” violations actionable in a citizen suit under CAA

section 304(a)(1), © the Seventh Circuit was certainly incor-

rect in suggesting that Congress’s action in amending the

CAA invalidates this Court’s Gwaltney decision or applies

retroactively to EPCRA, an entirely separate statute enacted

four years prior to the 1990 CAA amendments.

In this connection it should be noted that the same theory

relied on by the Seventh Circuit had been presented earlier to

the Sixth Circuit in Atlantic States v. United Musical Instru-

ments, and was flatly rejected by that court. The Sixth Circuit

explained that such reasoning

© This matter is unclear, as indicated by recent district court decisions.

For example, a district court in Georgia concluded that Congress did not

intend wholly past violations to be redressable when it amended CAA

section 304(a\(1) to allow suits for “repeated” violations. Satterfield v.

J.M. Huber Corp., 888 F. Supp. 1561 (N.D. Ga. 1994).

13

... iS umpersuasive since one can argue with at least

equal force that by amending the Clean Air Act, but

failing also to amend EPCRA, Congress intended to

limit EPCRA’s citizen suit provision to violations

existing at the time suit is filed. Allowing citizen

suits for past violations would render superfluous

EPCRA’s requirement of sixty-days’ notice to the

alleged violator. In the absence of explicit congres-

sional language mandating such a result -- as in the

amended Clean Air Act -- we must reject

[plaintiff's] argument.

61 F. 3d at 477. In short, the CAA Amendments of 1990 are

simply irrelevant to the issue before this Court. ”

In contrast to the Seventh Circuit’s misplaced reliance on

extrinsic aids, there is abundant evidence that Congress in-

cluded the mandatory sixty-day pre-suit notice period in EP-

CRA fc: the precise purpose of providing regulated entities

with an »pportunity to come into compliance, thus rendering a

citizen suit unnecessary. As this Court explained in Gwalt-

ney:

It follows logically 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

thus likewise render unnecessary a citizen suit. If

we assume, as respondents urge, that citizen suits

may target wholly past violations, the requirement

of notice to the alleged violator becomes gratuitous.

484 U.S. at 60. “Any other conclusion would render incom-

prehensible [the statute’s] notice provision.” Jd. at 59. Ac-

? Industry amici agree with Petitioner that, to the extent Congress at-

tempted to make wholly past violations actionable in citizen suits under

CAA section 304, such action would conflict with Article III's limitations

on standing to sue. See, e.g., Gwaltney, 484 U.S. at 70-71 (Scalia, J., con-

curring in part and concurring in judgment).

14

cord Hallstrom v. Tillamook County, 493 U.S. at 29 (purpose

of citizen suit notice provision is to provide alleged violator

with opportunity to bring itself into compliance and render a

citizen suit unnecessary, thus striking a balance between en-

couraging citizen enforcement and avoiding burdening the

federal courts with excessive citizen suits). The reasoning of

the Seventh Circuit cannot be squared with this Court’s

precedents. ©

Industry amici also note that the Seventh Circuit further

reveals its misunderstanding of the purpose of citizen suits

when the court states that there would be no incentive to in-

vestigate noncompliance with EPCRA if a suit could be cut

off by belated compliance and citizens “can’t recover [their]

costs,” i.e., costs of suit and attorney fees. 90 F.3d at 1244.

Had Congress intended that citizens should have such addi-

tional incentives as an inducement to investigate potential

noncompliance, it could have added “bounty hunter” provi-

sions to EPCRA (as it has in other statutes). Moreover, al-

though overlooked by the Seventh Circuit, EPCRA section

326, like other citizen suit provisions, expressly precludes a_

would-be citizen plaintiff's opportunity to recover pre-suit

srasliiins anien Ea Rieder eens

ernment steps in and files an enforcement action during the

mandatory pre-suit notice period. In sum, the Seventh Cir-

cuit’s suggestion that only by allowing EPCRA citizen suits

\

® The Seventh Circuit speculates that Congress intended the notice re-

quired by section 326(d) of EPCRA to “givje] an alleged violator a chance

to correct the citizen’s information.” 90 F.3d at 1244. It would be strange

indeed if Congress had had such a limited purpose in mind given that EP-

CRA’s notice provision is essentially the same as the citizen suit notice

provisions of the numerous other environmental statutes. Under those

other statutes one of the principal purposes of the pre-suit notice require-

ment is to provide an opportunity to cure the alleged violations.

15

for wholly past violations will there be an incentive for such

citizen suits is invalid. ®

Ill. THE SEVENTH CIRCUIT’S DECISION WOULD

CONFER STANDING TO SUE IN CIRCUM-

STANCES WHERE ARTICLE III DOES NOT

Finally, and independent of the preceding points, indus-

try amici join The Steel Company’s argument that CBE lacks

standing under Article III of the Constitution to have its EP-

CRA suit heard. Amici write separately (and briefly) on Arti-

cle III standing due to the importance of this issue.

A. The issue of standing “involves both constitutional

limitations on federal-court jurisdiction and prudential limita-

tions on its exercise.” Bennett, 65 U.S.L.W. at 4203. To sat-

isfy the “case or controversy” requirement of Article III,

which is the “irreducible constitutional minimum” for stand-

ing, a plaintiff must demonstrate that it has suffered “injury in

fact,” that the injury is “fairly traceable” to the actions of the

defendant, and that the injury will likely be redressed by a fa-

vorable decision. /d. This test is not satisfied where the

plaintiff seeks redress for wholly past violations. Under the

view implicit in the Seventh Circuit’s opinion, Respondent

CBE is deemed to have a personal stake in the litigation suffi-

® Amici also note that the Seventh Circuit’s erroneous rationale would

apply equally to the Clean Wate: Act, and has therefore necessarilv been

refuted by Gwaltney.

In addition, contrary to the courts of appeals, EPCRA’s legislative

history does not support the view that wholly past violations were in-

tended to be subject to citizen suits. The legislative history of EPCRA is

sparse and nowhere suggests that Congress intended to depart from its

standard approach of building into environmental citizen suit provisions a

“cure period” following notice of intent to sue. Indeed, as this Court em-

phasized in Hallstrom, EPCRA’s citizen suit provision is typical of a

number of other federal environmental laws, see 493 U.S. at 23 & n.1, and

the substantial departure envisioned by the Seventh Circuit would cer-

tainly have been accompanied by an explanation.

16

cient to satisfy Article II] simply because a federal court could

impose civil penalties payable to the United States or declare

that in the past The Steel Company had not been in compliance

with EPCRA. This view contradicts Supreme Court precedent

and exposes industry amici to a wave of litigation from citizens

seeking to vindicate a generalized interest in environmental

matters.

In seeking civil penalties but not injunctive relief (because

there is nothing to enjoin), CBE acted not on its own behalf but

rather on behalf of a broader public interest. Because it is un-

disputed that The Steel Company was in compliance before

CBE’s suit was filed, CBE’s sole interest in the outcome of this

case is to have the federal government punish The Steel Com-

pany for delayed compliance. Under the rulings of this Court,

however, such an interest is insufficient to confer standing.

That is because an interest shared generally with the public at

large in the proper implementation of or adherence to public

laws is not the “concrete and particularized” injury that is the

-predicate for Article III standing. See Arizonans For Official

English v. Arizona, 117 S. Ct. 1055, 1067 (1997), (quoting

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)).

Moreover, this Court has consistently held that a prospective

award of attorney fees does not confer Article III standing

where the plaintiff alleges only wholly past violations. Dia-

mond v. Charles, 476 U.S. 54, 70-71 (1986) (standing requires

injury with nexus to substantive character of the statute at is-

See also Gwaltney, 484 U.S. at 70-71 (Scalia, J., concurring in part

and concurring in the judgment) (“If it is undisputed that the defendant

was in a state of compliance when this suit was filed, the plaintiffs would

have been suffering no remediable injury in fact that could support suit”

and “there cannot possibly be standing to sue”). In this connection, it

should also be noted that the United States has previously argued before

this Court that Article III standing is absent where a citizen plaintiff’s suit

is based on wholly past violations. See Brief of the United States as Ami-

cus Curiae Supporting Affirmance, Case No. 86-473, Gwaltney of Smith-

field, Lid. v. Chesapeake Bay Foundation, Inc., at n. 34.

17

sue; Claim for fee award insufficiently related to Illinois law

regulating abortion).

Limited, therefore, to seeking punishment of The Steel

Company through penalty payments to the government, Re-

spondents’ suit does not seek redress for concrete, particular-

ized injury to CBE, but rather vindication of an interest shared

equally by the public at large. Article III, however, excludes

vindication of such generalized interests from the purview of

the federal courts. Put another way, the generalized interest

that CBE seeks to advance is identical to the “undifferentiated

public interest” and is not one that federal courts were intended

to hear. Marbury v. Madison, 5 U.S. (Cranch) 137 (1803). If

such generalized concerns could be the premise for federal

court jurisdiction the litigation burden would be overwhelming

and the effect on the rights of the public deleterious.

B. Although the Seventh Circuit did not examine the Ar-

ticle III flaw in CBE’s case, its assumption, discussed supra,

that absent the recovery of attorneys fees citizen groups will

not investigate potential EPCRA noncompliance, suggests that

the Seventh Circuit projects a role for environmental citizen

suits that is fundamentally different from that recognized in

previous decisions of this Court. The Seventh Circuit (and

certain district courts) envision citizen suits as private actions

and focus on the need to provide a reward for investigating

wrongdoing. Of course, when the recovery of fees is the focus,

the matter is in essence a private concern and the standing issue

is less problematic. Industry amici acknowledge that had Con-

gress premised EPCRA’s citizen suit provision (or, for that

1 Lawyers at the U.S. Environmental Protection Agency have noted

the ease with which EPCRA citizen suits in particular can be filed and

prosecuted, calling such cases “a rewarding and lucrative practice area 1or

private attorneys general.” M.J. Walker & J.D. Jacobs, “EPCRA Citizens

Suits: An Evolving Opus with a Discordant Note,” The Journal of Envi-

ronmental Law & Practice (Jan/Feb. 1997) at 20.

18

matter, other citizen suit provisions) on a private bounty

mechanism, there could be honest debate about whether wholly

past violations would be sufficient for Article III standing. But

Congress intended achieving compliance with public law as the

first priority of citizen suits, and collection of attorneys fees is

secondary. Congress assumed that citizens would investigate

environmental wrongs for the benefit of the public, not merely

to collect fees. With this relationship properly understood, a

serious argument that wholly past violations are sufficient to

support Article III standing cannot be maintained.

As a consequence of the Seventh Circuit’s ruling, EPCRA

enforcement authority will be shared equally by EPA and citi-

zen groups. This is not what Congress intended.” In Gwalt-

ney, the Court noted that where EPA had issued a compliance

order and agreed to undertake “some extreme corrective ac-

tion” a citizen should not be allowed to sue months or years

later to seek the penalties that EPA chose to forego. 484 U.S.

at 61. With the Seventh Circuit’s decision in place, private

plaintiffs would have license to sue even where EPCRA viola-

tions were cured prior to the suit and had been subject to EPA

enforcement. /d. But as this Court emphasized in Gwaltney,

that “interpretation of the scope of the citizen suit would

change the nature of the citizens’ role from interstitial to po-

tentially intrusive.” Jd. This is not the direction in which the

federal courts should take EPCRA.

® It should be noted that EPA’s enforcement of EPCRA has been dili-

gent. More than 200 administrative enforcement actions were concluded

in 1995. EPA, FY 1995 Enforcement and Compliance Assurance Accom-

plishments Report (1996). EPA Region V declined to file an enforcement

action against Petitioner in this matter, obviously viewing the situation as

a very small company’s relatively minor violation that was promptly

cured. But Region V has been far from lax in enforcing EPCRA; as of

March 3, 1997, it had filed 86 separate complaints for EPCRA reporting

violations, resulting in 71 settlements and the imposition of $3.5 million

in total fines. The federal government’s EPCRA cop is on the beat.

19

CONCLUSION

For the foregoing reasons, amici urge the Court to re-

verse the judgment of the court of appeals.

Respectfully submitted,

Scott M. DuBoff*

John W. Heiderscheit, II]

WRIGHT & TALISMAN, P.C.

1200 G Street, N.W.

Suite 600

Washington, D.C. 20005-3802

(202) 393-1200

Counsel for Amici Curiae

*Counsel of Record