Opposition Brief — Lujan v. Sierra Club

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Supreme Court, U.S

FILED

2% SEP 17 1991

(2) EP 17 199

No. 91-169 | OFFICE OF THE Ci

In The

Supreme Court of the United States

October Term, 1991

MANUEL LUJAN, JR., SECRETARY OF THE

INTERIOR, ET AL.,

Petitioners,

SIERRA CLUB, ET AL.,

Respondents.

Petition For A Writ Of Certiorari To The

United States Court Of Appeals For The

Tenth Circuit

BRIEF I? OPPOSITION TO PETITION FOR A

WRIT OF CERTIORARI

ADAM BaBICH

1515 Arapahoe Street

Tower 3, Suite 1100

Denver, Colorado 80202

(303) 820-4497

Counsel for Respondents

Sierra Club and

Colorado Environmental

Coalition

COCKLE LAW BRIEF PRINTING CO., (800) 225-4964

OR CALL COLLECT (402) 342-2831

\ \

QUESTIONS PRESENTED

1. Whether the federal facilities provision of the

Clean Water Act, § 313, 33 U.S.C. § 1323, waives the

sovereign immunity of the United States from assessment

of civil penalties for violation of a permit issued by the

United States Environmental Protection Agency under

authority of the Act.

2. Whether the citizen suit provision of the Clean

Water Act, § 505, 33 U.S.C. § 1365, waives the sovereign

immunity of the United States from assessment of civil

penalties for violation of a permit issued by the United

States Environmental Protection Agency under authority

of the Act.

TABLE OF CONTENTS

Page

SUMMARY OF THE ARGUMENT ...... ‘akhees eae 1

PX el | SPT Perrar rete 3

I. THE TENTH CIRCUIT’S DECISION IS COR-

RECT AND DOES NOT CONFLICT WITH DECI-

SIONS OF OTHER CIRCUITS. ................- 3

Il. THE PETITION SHOULD NOT BE HELD; IT PRE-

SENTS DIFFERENT ISSUES THAN UNITED

STATES DEP’T OF ENERGY v. STATE OF OHIO 4

CE A eck Wad ence ctnsviss¥ocneeesunesuens 7

iii

TABLE OF AUTHORITIES

Page

Cases:

H.]. Inc. v. Northwestern Bell Telephone Co., 492 U.S.

EEE OS 4

McClellan Ecological Seepage Situation v. Weinberger,

Soe = omen. GU! (ED. Cal. 1986) .................. 3

Mitzelfelt v. Dep't of the Air Force, 903 F.2d 1293

eee eines Geese ren esivec.s 6

Parola v. Weinberger, 848 F.2d 956 (9th Cir. 1988)...... 3

Sierra Club v. Lujan, 931 F.2d 1421 (10th Cir. 1991)...3, 5

State of Ohio v. Dep’t of Energy, 904 F.2d 1058 (6th

Cir. 1990), cert. granted, 111 S.Ct. 2256 (1991).. 3, 4, 5

United States Dep’t of Energy v. State of Ohio, Nos.

Ee ~ > ©

STATUTES:

ne meee ane, 2 5.0, & 7616................ 3

Clean Water Act § 313(a), 33 U.S.C. § 1323(a)... 2, 5, 6

Clean Water Act § 402(b), 33 U.S.C. § 1342(b)........ 2

Clean Water Act § 505(a), 33 U.S.C. § 1365(a)...... 5, 6

Resource Conservation and Recovery Act § 6001,

ee cic ka Secure esetecervccssoes 6

Resource Conservation and Recovery Act

ES BE Gv |) Sr 5-6

PLEADING:

Brief for the Petitioner, State of Ohio v. United

States Dep’t of Energy, No. 90-1341 & 90-1517

SE Ge 5

No. 91-169

In The

Supreme Court of the United States

October Term, 1991

MANUEL LUJAN, JR., SECRETARY OF THE

INTERIOR, ET AL.,

Petitioners,

SIERRA CLUB, ET AL.,

Respondents.

Petition For A Writ Of Certiorari To The

United States Court Of Appeals For The

Tenth Circuit

BRIEF IN OPPOSITION TO PETITION FOR A

WRIT OF CERTIORARI

Plaintiffs/respondents Sierra Club and Colorado

Environmental Coalition, by their attorney Adam Babich,

respectfully submit their Brief in Opposition.

SUMMARY OF THE ARGUMENT

This case is not appropriate for certiorari review. The

Tenth Circuit’s decision does not conflict with that of

another United States court of appeals. Nor does it con-

flict with a decision of a state court of last resort. More-

over, the decision below is consistent with and compelled

by the plain language of the Clean Water Act. That Act

explicitly waives sovereign immunity from any “process

and sanctions respecting the control and abatement of

water pollution” with the limitation that “the United

States shall be liable only for those civil penalties arising

under Federal law... . ” Clean Water Act § 313(a), 33

U.S.C. § 1323(a).

The petition should not be held pending this Court’s

decision in United States Dep't of Energy v. State of Ohio,

Nos. 90-1341 & 90-1517, because this case does not pre-

sent the same issues as the Ohio case. The Ohio case

involves violation of a permit issued by the State of Ohio

under authority of state law. Pursuant to an approval by

the United States Environmental Protection Agency

(EPA), Ohio implements its state law in lieu of the federal

Clean Water Act program. See Clean Water Act § 402(b),

33 U.S.C. § 1342(b). Thus, the Ohio case turns largely on

the issue of whether penalties under an EPA-approved

state law are “civil penalties arising under Federal law”

within the meaning of Clean Water Act § 313(a), 33 U.S.C.

§ 1323(a). In contrast, this case involves Petitioners’ viola-

tion of a permit issued directly by EPA.

ARGUMENT

I. THE TENTH CIRCUIT’S DECISION IS CORRECT

AND DOES NOT CONFLICT WITH DECISIONS

OF OTHER CIRCUITS.

Respondents cannot improve on the clarity or force

of the Tenth Circuit’s explanation of the plain language of

the Clean Water Act in the decision set forth as Appendix

A to the Petition. Sierra Club v. Lujan, 931 F.2d 1421 (10th

Cir. 1991). Rather than repeating the arguments here,

Respondents simply note that the opinion demonstrates

that the Tenth Circuit’s ruling was compelled by plain,

unambiguous statutory language, logic and common

sense.

As the Tenth Circuit notes and Petitioners do not

dispute, the only contrary opinion is that of the district

court in McClellan Ecological Seepage Situation v. Wein-

berger, 655 F. Supp. 601 (E.D. Cal. 1986). Moreover, a

subsequent Ninth Circuit opinion calls the McClellan

decision into question. Specifically, in Parola v. Weinberger,

848 F.2d 956, 962 n.3 (9th Cir. 1988), the Ninth Circuit

ruled that language in Clean Air Act § 118, 42 U.S.C.

§ 7418 - which is substantially identical to language at

issue here - shows that Congress “knows how to select

language to waive sovereign immunity to criminal penal-

ties and civil damages, if it so intends.” In State of Ohio v.

Dep't of Energy, 904 F.2d 1058, 1060 (6th Cir. 1990), cert.

granted, 111 S.Ct. 2256 (1991), both the majority and the

dissent agreed that the Clean Water Act waives immunity

from civil penalties arising under federal law. The dissent

stated:

Analysis of [33 U.S.C.] section 1323(a) . . . leads

to the inescapable conclusion that Congress has

waived sovereign immunity in the Clean Water

Act for all civil penalties arising under federal,

but not state, law.

904 F.2d at 1067 (Guy, J. dissenting). There is no contrary

holding by a state court of last resort.

Because of the lack of conflict in the circuits and the

clarity of the statutory provisions at issue, the Tenth

Circuit’s ruling is not appropriate for certiorari review.

Petitioners’ concern about the “potentially large mone-

tary judgment,” Petition at 6, should be addressed to

Congress. Cf. H.J. Inc, v. Northwestern Bell Telephone Co.,

492 U.S. 229, 249 (1989) (rewriting statutes “is a job for

Congress, if it is so inclined, and not for this Covrt.”)

Il. THE PETITION SHOULD NOT BE HELD; IT PRE-

SENTS DIFFERENT ISSUES THAN UNITED

STATES DEP’T OF ENERGY v. STATE OF OHIO.

Petitioners ask this Court to hold the Petition, and

thus, delay final resolution of this litigation, pending a

decision in United States Dep’t of Energy v, State of Ohio,

Nos. 90-1341 & 90-1517. It is probable, however, that a

decision in Ohio will not control this case.

In its opinion below, the Tenth Circuit carefully dis-

tinguished this case from Ohio, noting:

Unlike the permit in the case at bar, which the

EPA issued under authority of 33 U.S.C. § 1342,

the State of Ohio permit was issued by the state

under Ohio’s statutory scheme.

Sierra Club v. Lujan, 931 F.2d 1421, 1426 (10th Cir. 1991),

Petition, Appendix A, at 1la. This difference is important

because the Clean Water Act limits its waiver to, inter alia,

“civil penalties arising under Federal law. .. . ” Clean

Water Act § 313(a), 33 U.S.C. § 1323(a). It is doubtful that

this Court will reach in Ohio the question of sovereign

immunity from penalties for violation of EPA-issued per-

mits.

Petitioners state: “In Ohio, the State sought civil pen-

alties under the CWA itself, as well as under the civil

penalties provision of the state water pollution control

scheme.” Petition at 4-5. Petitioners are referring to an

issue that the Sixth Circuit did net address in Ohio:

whether penalties may be recovered for a state-issued

permit under Clean Water Act § 505(a), 33 U.S.C.

§ 1365(a) - the Clean Water Act’s citizen suit provision.

Even if this Court chooses in Ohio to decide this issue, the

Court’s ruling would not necessarily control the instant

case — involving an EPA-issued permit. There is no EPA-

issued permit at issue in Ohio.

Petitioners note that the Sixth Circuit, in Ohio,

decided an issue “related” to the Tenth Circuit’s ruling

that the Clean Water Act’s citizen suit provision, § 505(a),

33 U.S.C. § 1365(a), waives sovereign immunity. Petition

at 6. The Ohio court’s ruling, however, was under the

citizen suit provision of the Resource Conservation and

} Elsewhere, the federal government has acknowledged

“The [Sixth Circuit] court of appeals did not reach this

issue....” Brief for the Petitioner, State of Ohio v. United States

Dep't of Energy, No. 90-1341 & 90-1517 (U.S., filed July 25, 1991)

at 31, n. 25.

Recovery Act (RCRA), § 7002(a), 42 U.S.C. § 6972(a).

Petition at 6. This Court’s resolution of the RCRA issue in

Ohio will not necessarily control the instant case.

In the context of sovereign immunity, the citizen suit

provisions of RCRA and the Clean Water Act must be

analyzed against the backdrop of the general waivers of

sovereign immunity found in RCRA § 6001, 42 U.S.C.

§ 6961, and in Clean Water Act § 313(a), 33 U.S.C.

§ 1323(a). It is beyond dispute that these general waivers

differ significantly. See Mitzelfelt v. Dep’t of the Air Force,

903 F.2d 1293, 1295-96 (10th Cir. 1990). Specifically, unlike

Clean Water Act § 313(a), 33 U.S.C. § 1323(a), RCRA

§ 6001 does not explicitly waive immunity for “sanc-

tions.” 42 U.S.C. § 6961.

Because the Tenth Circuit found a general waiver of

sovereign immunity for violations of federally-issued

permits in Clean Water Act § 313(a), the additional

waiver in the Act’s citizen suit provision [§ 505(a)] is

cumulative of, and confirmed by, the Act’s general waiver

[§ 313(a)]. Accordingly, even if Clean Water Act § 505(a)

did not clearly waive sovereign immunity in and of itself

(which it does), courts could still use § 505(a) to apply, in

the context of citizen suits involving federally-issued per-

mits, the general waiver of Clean Water Act § 313(a).

Because RCRA’s general waiver, RCRA § 6001, 42

U.S.C. § 6961, is different from that of the Clean Water

Act, a decision about whether RCRA’s citizen suit provi-

sion waives sovereign immunity - like a decision about

Clean Water Act state-issued permits - probably would

not control the instant case, which in any event was

decided correctly.

CONCLUSION

The petition for a writ of certiorari should be denied

and should not be held.

Respectfully Submitted,

ADAM BABICH