Amicus Curiae Brief — Powell Duffryn Terminals, Inc. v. Public Interest Research Group of New Jersey, Inc.

eH,

> coed No. 90-867

i: ™ In THE

[ § Supreme Court of the United States

+s OcToBER TERM, 1990

POWELL DUFFRYN TERMINALS, INC.,

Vv. Petitioner,

PUBLIC INTEREST RESEARCH GROUP OF NEW JERSEY, INC.,

FRIENDS OF THE EARTH and UNITED STATES

ENVIRONMENTAL PROTECTION AGENCY,

Respondents.

On Petition for Writ of Certiorari to the United States

Court of Appeals for the Third Circuit

MOTION FOR LEAVE TO FILE BRIEF AMICI CURIAE

AND

BRIEF AMICI CURIAE OF

AMERICAN IRON AND STEEL INSTITUTE,

NATIONAL ASSOCIATION OF MANUFACTURERS,

CHEMICAL INDUSTRY COUNCIL OF NEW JERSEY,

AMERICAN CYANAMID COMPANY, BORDEN, INC.

CHEVRON CORPORATION, THE COCA-COLA

COMPANY, DRESSER INDUSTRIES, INC., HERCULES,

INCORPORATED, JERSEY CENTRAL POWER & LIGHT

COMPANY, MONA INDUSTRIES, INC., MURPHY OIL,

USA, INC., PHELPS DODGE CORPORATION, SANDOZ

PHARMACEUTICALS CORPORATION, SMITHFIELD

FOODS, INC., TYSON FOODS, INC., USX CORPORATION,

UNIVERSAL TOOL & STAMPING CO., INC.

and WARD TRANSFORMER CO., INC.

IN SUPPORT OF PETITIONER

Scott M. DUBOFF *

ScoTT W. CLEARWATER

JOANNE M. SCANLON

ANDREAS H. LESKOVSEK

WINSTON & STRAWN

1400 L Street, N.W.

Washington, D.C. 20005-3502

(202) 371-5700

Counsel for Amici Curiae

American Iron and

* Counsel of Record Steel Institute, et al.

gS EE EP =

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

In THE

Supreme Court of the United States

OCTOBER TERM, 1990

No. 90-867

POWELL DUFFRYN TERMINALS, INC.,

Petitioner,

v.

PUBLIC INTEREST RESEARCH GROUP OF NEW JERSEY, INC.,

FRIENDS OF THE EARTH and UNITED STATES

ENVIRONMENTAL PROTECTION AGENCY,

Respondents.

On Petition for Writ of Certiorari to the United States

Court of Appeals for the Third Circuit

MOTION FOR LEAVE TO FILE BRIEF AMICI CURIAE

American Iron and Steel Institute, et al., respectfully

move this Court for leave to file a brief amici curiae in

this case in support of the petition for a writ of certio-

rari filed by Powell Duffryn Terminals, Inc. The peti-

tion seeks review of the court of appeals’ decision in Pub-

lic Interest Research Group of New Jersey, Inc., et al. v.

Powell Duffryn Terminals, Inc., 913 F.2d 64 (3d Cir.

1990) (reproduced as Appendix A to the petition).

Counsel for the petitioner has consented to the filing of

a brief amici curiae by the American Iron and Steel In-

stitute, et al. Counsel for respondents Public Interest

Research Group of New Jersey, Inc., and Friends of the

Earth did not consent.*

* As reasons for withholding consent, respondents’ counsel stated

that the brief amici curiae was not necessary, that respondents

would not be able to reply to amici, and that respondents would not

object to submission of a brief by amici if the Court grants the

petition and hears the case on the merits.

1. Amicus American Iron and Steel Institute (‘AISI’)

is a trade organization of manufacturers, processors and

other producers of iron and steel and related products.

All AISI members are regulated under the Federal Water

Pollution Control Act, 33 U.S.C. §§ 1251-1387 (1988)

(“Clean Water Act” or “the Act’).

Amicus Chemical Industry Council of New Jersey

(“CIC”) is a trade organization composed of 105 chem-

ical and allied product manufacturers with facilities lo-

cated throughout the state of New Jersey. CIC member

companies produce a broad range of materials used in the

agriculture, pharmaceuticals, manufacturing, construc-

tion, mining, textiles, flavors and fragrances, precious

metals and research. Nearly all of CIC’s members are

regulated under the Clean Water Act.

Amicus National Association of Manufacturers of the

United States of America (“NAM”) is a voluntary busi-

ness association of over 13,000 companies and subsidiar-

ies. NAM’s members produce over eighty percent of the

manufactured goods produced in the United States. More

than 158,000 additional businesses are affiliated with

NAM through its Associations Council and National In-

dustrial Council. Thousands of NAM’s members and af-

filiates are regulated under the Clean Water Act.

Amici also include a number of individual companies in

chemical production, oil exploration, production, refining

and marketing, pharmaceuticals, production of steel and

other metal products, tool and heavy equipment manu-

facturing, food products, mining, electrical equipment and

electric utilities. Each of the individual company amici

are subject to regulation under the Clean Water Act.

2. Like petitioner, each of the amici is a holder of (or

is an organization many of whose members hold) one or

more permits issued under the National Pollutant Dis-

charge Elimination System (““NPDES”) established under

section 402 of the Clean Water Act, 33 U.S.C. § 1242.

These permits are administered by the U.S. Environ-

mental Protection Agency (“EPA”) and regulate the dis-

charge of pollutants to navigable waters of the United

States. This system of permits is the result of the 1972

amendments to the Act, which required the establishment

on an industry-by-industry basis of generally applicable

effluent limitations that restrict the types, quantities and

concentrations of pollutants that may be discharged.

These effluent limitations are enforced through individual

NPDES permits. See Gwaltney of Smithfield v. Chesa-

peake Bay Foundation, Inc., 484 U.S. 49, 52-53 (1987) ;

EPA v. California ex rel. State Water Resources Control

Board, 426 U.S. 200, 203-08 (1976). Section 505 of the

Clean Water Act, 33 U.S.C. § 1365, authorizes NPDES

permit enforcement in private enforcement actions. This

case invoives a suit under section 505.

Amici are committed to the goals of the Clean Water

Act. To that end and in coordination with state and fed-

eral regulatory authorities, amici (or member companies)

have spent vast sums to upgrade and enhance water pollu-

tion control at their facilities. Nevertheless, amici (or

member companies) have been (or presently are) defend-

ants in enforcement suits under section 505 of the Clean

Water Act, or have received notice, pursuant to section

505(b) (1) (A), that an individual or organization intends

to file such a suit.

3. The fundamental issue raised by the petition in this

case is the scope of the constitutional standing require-

ments applicable to citizen plaintiffs under section 505 of

the Clean Water Act. The court of appeals adopted a

new standard for standing in Clean Water Act cases that

allows a section 505 plaintiff to establish standing based

solely on a showing of a violation of defendant’s NPDES

permit, without a demonstration that plaintiff’s alleged

injury was caused by the defendant’s conduct.

Amici are directly interested in this case because the

court of appeals’ misinterpretation of constitutional stand-

ing requirements for Clean Water Act citizen suits would

greatly expand citizens’ entitlement to bring suit under

the Clean Water Act, as well as other environmental stat-

utes. In fact, the expansion of traditional constitutional

standing requirements in environmental suits was the

predicate given by Judge Aldisert for his concurriug opin-

ion below. See 913 F.2d at 84.

The issue raised by the instant petition for a writ of

certiorari directly affects amici and raises important is-

sues regarding constitutional requirements for standing.

This is true not only because amici (or their members)

are subject to regulation under the Clean Water Act and

private enforcement actions under section 505, but also

because the court of appeals’ decision implicates similar

enforcement suits under a number of other environmental

statutes. The decision below seriously prejudices amici

by announcing a standard of broad applicability that

would permit litigation by persons who, under the stand-

ards previously applied by this Court, would not have

standing to sue.

In the accompanying brief amici address these broad

issues. Amici do so from the perspective of diverse or-

ganizations and industrial entities whose concerns regard-

ing the decision below transcend this case. Amici believe

that they can effectively contribute to the Court’s under-

standing of the broader ramifications of the court of ap-

peals’ decision.

In view of the foregoing, amici American Iron and

Steel Institute, et al., respectfully request that they be

permitted to file the accompanying brief amici curiae in

support of petitioner Powell Duffryn Terminals.

Respectfully submitted,

Scott M. DUBoFF *

Scotr W. CLEARWATER

JOANNE M. SCANLON

ANDREAS H. LESKOVSEK

WINSTON & STRAWN

1400 L Street, N.W.

Washington, D.C. 20005-3502

Counsel for Amici Curiae

American Iron and

* Counsel of Record Steel Institute, et al.

TABLE OF CONTENTS

TABLE OF AUTHORITIES ............................-.--.---------

STATEMENT OF INTEREST OF AMICI ...................

REASONS FOR GRANTING THE WRIT .....................

A. The Third Circuit Changes This Court’s Sub-

stantial Likelihood Standard For Causation

Into A Mechanical Test That Makes The Ab-

senca,Of Evidence Of Causation Irrelevant To

RI arlene URR ipter SGEs ipe mte PEP AEB A PCO

B. The Issues Raised By The Court Of Appeals’

Rule For Standing In Clean Water Act Cases

Are Important And Recurring And Transcend

The Clean Water Act ..................-------2..2....00.-..-..---

CEFR NIT cites decennial chgnhalaticialltaio

(i)

10

14

ii

TABLE OF AUTHORITIES

Cases:

Allen v. Wright, 468 U.S. 737 (1984) -......00.00..

Atlantic States Legal Foundation v. Universal

Tool & Stamping Co., 735 F. Supp. 1401 (N.D.

BR: Te wth hidden alchiinh hakiinticeachancininatainds

Chesapeake Bay Foundation v. Bethlehem Steel,

608 F. Supp. 440 (D. Md. 1985) —........

Chesapeake Bay Foundation v. Gwaltney of

Smithfield, Ltd., 611 F. Supp. 1542 (D. Va.

1985), aff'd 791 F.2d 304 (4th Cir. 1986), rev'd

es I itil ical iretcitnctcintninericitivimnnn

Community for Creative Non-Violence v. Pierce,

814 F.2d 663 (D.C. Cir. 1987) ............000000.......

Duke Power Co. v. Carolina Environmental Study

Group, Inc., 488 U.S. 59 (1978) -.....-.0.00

EPA v. California ex rel. State Water Resources

Control Board, 426 U.S. 200 (1976) -.........0......

Gwaltney of Smithfield v. Chesapeake Bay Foun-

dation, Inc., 484 U.S. 49 (1987) .....00000 nn.

Lujan v. National Wildlife Federation, et al., 110

E- S . &: —_ PRRs ee

Marathon Oil v. EPA, 830 F.2d 1346 (5th Cir.

IED cicscehssnnnsnscealschocehichatsiethiibeicdisbdetletieindiitea ied choniicbtients

Natural Resources Defense Council v. Outboard

Marine Corp., 692 F. Supp. 801 (N.D. Ill.

BOE Siiiossicessdssictsnthncieiantipcabeiibinl ah aneiactihaapadaedaactillcmclcsiiasieieais

Natural Resources Defense Council v. Zeller, 688

ok Bi Ee 0 Se

NJPIRG v. American Cyanamid, Civil No. 83-

2068 (JWB) (D.N.J. November 6, 1985) ...........

NJPIRG v. Jersey Central Power and Light Co.,

642 F. Supp. 103 (D.N.J. 1986) .............0000000.......

NJPIRG v. Tenneco Polymers, Inc., 602 F. Supp.

BRIE ene ak Pn

Northern Securities Co. v. United States, 193

5 Ge gt RNS eR i AE RS RL eit aa

NYPIRG v. Limco M, 37. Corp., 697 F. Supp. 608

ECCT SINE sitinkiccdiasndiciscicentmaccaistccntbinatichcomenaben kei

Oklahoma, et al. v. EPA, 908 F.2d 595 (10th Cir.

SITTIN sicctsitasscitcssncinsnctnsnScinilcehdiaiccteil aiceeieiipangihadansiomea emitted

6, 11

iii

TABLE OF AUTHORITIES—Continued

Page

Public Interest Research Group of New Jersey,

Inc., et al. v. Powell Duffryn Terminals, Inc.,

913 F.2d 64 (3d Cir. 1990) 200000... passim

Sierra Club v. Copolymer, Inc., Docket 84-407-B

(M.D. La. November 15, 1984) 0000000000000. 11

Sierra Club v. Kerr-McGee, 23 ERC 1685 (W.D.

I cl eumenn 11

Sierra Club v. Union Oil Co. of California, 22

ERC 1842 (N.D. Cal. 1985) ................ 6, 11

Simkins Industries, Inc. v. Sierra Club, 847 F.2d

1109 (4th Cir. 1988), cert. denied 109 S. Ct.

Na cctailulieiidikinamanen 10

SPIRG v. Anchor Thread Co., 22 ERC 1150

RA ae ae a 11

SPIRG v. AT&T Bell Laboratories, 617 F. Supp.

I I a acaencteiehininmemeticnmntinnennannenn 11

SPIRG v. Georgia-Pacific Corp., 615 F. Supp. 1419

i cemnntinienes 6, 11

SPiRG v. P.D. Oil & Chemical Storage, Inc., 627

ry BI, Re Cec I a vcncennneicncererren ers 5

United States v. Ward, 448 U.S. 242 (1980)........ 11

Valley Forge Christian College v. Americans

United for Separation of Church and State,

eR een ere 4,8

U.S. Constitution:

EEL oe ON aa a NEE ES To Po 2, 4, 12

Statutes:

Price-Anderson Act, 71 Stat. 576 (codified as

amended in scattered sections of 42 U.S.C! 7

i i 13

Federal Water Pollution Control Act, 33 U.S.C.

EET aCe a aN aera ESR 2

I as elenneemicenniabenieee 2

no puelnneidinneaiaideniaabalen 11

a passim

TT RT ae ERIC aC ine 2

42 U.S.C. § 6972 ................ oacacaneeetae pauiiasitaedsatitdbanaeat 13

42 U.S.C. § 7604 .................... echinacea tinaieiniiaiatiias 13

iv

TABLE OF AUTHORITIES—Continued

42 U.S.C. § 9659 ne.

42 U.S.C. § 11046 WWW...

The Clean Air Act Amendments of 1990, Pub. L.

I ikaiitianinnrintinntnananeinsien

The Water Quality Act of 1987, Pub. L. 100-4, 106

Stat. 7 (February 4, 1987)

Regulations:

40 C.F.R. § 122.41 (1) (4) -........

40 C.F.R. Part 408 _..................

Legislative Materials:

S. Rep. No. 50, 99th Cong., Ist Sess. 28 (1985) ....

S. Rep. No. 228, 101st Cong., ist Sess. 373

GERD stemettinenemnrrserranns

Miscellaneous:

Brief of Appellees-Cross-Appellants, 3d Cir. Nos.

89-5831, 89-5851, 89-5861 (January 10, 1990) ..

Memorandum from Messrs. R. Weiner, et al., to

Executive Comm., New York Public Interest Re-

search Group, Inc. (July 15, 1986) (Re: Clean

Water Act Citizens Suits)

12

In THE

Siywenw Crurt of > Wuited States

OCTOBER TERM, 1990

No. 90-867

POWELL DUFFRYN TERMINALS, INC.,

¥ Petitioner,

PUBLIC INTEREST RESEARCH GROUP OF NEW JERSEY, INC.,

FRIENDS OF THE EARTH and UNITED STATES

ENVIRONMENTAL PROTECTION AGENCY,

Respondents.

On Petition for Writ of Certiorari to the United States

Court of Appeals for the Third Circuit

BRIEF AMICI CURIAE OF

AMERICAN IRON AND STEEL INSTITUTE,

NATIONAL ASSOCIATION OF MANUFACTURERS,

CHEMICAL INDUSTRY COUNCIL OF NEW JERSEY,

AMERICAN CYANAM’) COMPANY, BORDEN, INC,

CHEVRON CORPORATION, THE COCA-COLA

COMPANY, DRESSER INDUSTRIES, INC. HERCULES,

INCORPORATED, JERSEY CENTRAL POWER & LIGHT

COMPANY, MONA INDUSTRIES, INC.. MURPHY OIL,

USA, INC., PHELPS DODGE CORPORATION, SANDOZ

PHARMACEUTICALS CORPORATION, SMITHFIELD

FOODS, INC. TYSON FOODS, INC., USX CORPORATION,

UNIVERSAL TOOL & STAMPING CO, INC.

and WARD TRANSFORMER CO., INC.

IN SUPPORT OF PETITIONER

This brief amici curiae is submitted in support of peti-

tioner Powell Duffryn Terminals, Inc. Amici believe that

the decision below of the court of appeals, Public Interest

2

Research Group of New Jersey, Inc., et al. v. Powell

Duffryn Terminals, Inc., 913 F.2d 64 (8d Cir. 1990)

(reproduced as Appendix A to the petition), incorrectly

interprets the requirements for standing under Article

III of the Constitution and disregards the decisions of this

Court that identify the requirements for constitutional

standing.

The petitioner has consented to the filing of this brief

and petitioner’s letter of consent has been filed with the

Clerk of the Court. Respondents Public Interest Research

Group of New Jersey, Inc., and Friends of the Earth

(“NJPIRG”) have not consented, and amici have simul-

taneously filed a motion for leave to file this brief.

' STATEMENT OF INTEREST OF AMICI

Amici consist of several voluntary business associations

and individual companies representing a broad spectrum

of industry in the United States.

Amicus American Iron and Steel Institute (“AISI”) is

a trade organization composed of manufacturers, proc-

essors and other producers of iron and steel and related

products. Virtually every member of AISI is subject to

regulation under the Federal Water Pollution Control

Act, 33 U.S.C. §§ 1251-1387 (1988) (“Clean Water Act”

or “the Act”). Many AISI members have been defen-

1 The 1972 amendments to the Clean Water Act establish a permit

system, the National Pollutant Discharge Elimination System

(“NPDES”), that regulates the discharge of pollutants to navigable

waters of the United States. These permits contain effluent limi-

tations restricting the types, quantities and concentrations of

pollutants that may be discharged. The permit system is ad-

ministered by the U.S. Environmental Protection Agency (“EPA’’).

See § 402 of the Act, 42 U.S.C. § 1342; see also Gwaltney of Smith-

field v. Chesapeake Bay Foundation, Inc., 484 U.S. 49, 52-53 (1987);

EPA v. California ex rel. State Water Resources Control Board,

426 U.S. 200, 203-08 (1976). Section 308 of the Act, 33 U.S.C.

§ 1318, requires an NPDES permit holder to self-monitor com-

pliance with NPDES permit requirernents. Monitoring reports

3

dants in a citizen suit, like the instant case, under sec-

tion 505 of the Clean Water Act. AISI presents the

views of its members on issues of law and public policy

which are of concern to them.

Amicus Chemical Industry Council of New Jersey

(“CIC”) is a trade organization representing 105 chem-

ical and allied product manufacturers with facilities lo-

cated throughout the state of New Jersey. CIC member

companies produce a variety of materials which are used

in the agricultural, pharmaceutical, manufacturing, con-

struction, mining, textile, flavor and fragrance, precious

metals and research industries. CIC serves as a spokes-

person for its members on important issues of local, state

and federal policy. Nearly all of CIC’s members are reg-

ulated under the Clean Water Act and many have been

defendants in citizen suits under section 505 of the Act.

Amicus National Association of Manufacturers of the

United States of America (“NAM”) is a voluntary busi-

ness association of over 13,000 companies and subsidi-

aries, employing eighty-five percent of all manufacturing

workers in the United States and producing over eighty

percent of the nation’s manufactured goods. More than

158,000 additional businesses are affiliated with NAM

through its Associations Council and National Industrial

Council. Thousands of NAM members and affiliates are

regulated under the Clean Water Act and many have been

defendants in citizen suits under section 505. Like AISI

and CIC, NAM presents the view of its members on is-

sues of law and public policy that concern them.

are submitted to the appropriate regional office of the EPA and

state environmental agencies, who use these reports in evaluating

compliance and determining whether enforcement action is neces-

sary. In addition, these monitoring reports are available to the

public. 40 C.F.R. § 122.41(1) (4) (1990). NPDES enforcement by

private parties (sometimes referred to as “citizen suits”) is au-

thorized by § 505 of the Act, 33 U.S.C. § 1365. This case arises

under § 505.

4

Amici also include a number of individual companies

in chemical production, oil exploration, production, refin-

ing and marketing, pharmaceuticals, production of steel

and other metal products, tool and heavy equipment

manufacturing, food products, mining, electrical equip-

ment and electric utilities. Each of the individual com-

pany amici are subject to regulation under the Clean

Water Act and has been (or currently is) a defendant

in a citizen suit under section 505, or received notice, pur-

suant to section 505(b) (1) (A), that an environmental

organization intends to file such a suit.

Amici are vitally interested in the issues raised by the

petition in this case. In the decision below the court of

appeals established a standard for standing in Clean

Water Act citizens suits. 913 F.2d at 72. The standard

is described as one for environmental cases generally. Jd.

at 84, 89 (Aldisert, J., concurring). The decision of the

court of appeals disregards decisions of this Court that

identify the requisite elements of standing and, as a con-

sequence, violates Article III of the Constitution. The im-

portance of the instant petition transcends the Clean

Water Act and presents issues of vital importance to a

number of federal environmental laws.

REASONS FOR GRANTING THE WRIT

Article III of the Constitution limits federal judicial

power to cases and controversies. To meet that limitation

a plaintiff must demonstrate that it has standing to sue.

Specifically, to establish standing to sue litigants must

show that they have sustained an injury that is fairly

traceable to the defendant’s unlawful conduct, that is,

“ ‘injury in fact’ resulting from the action which they

seek to have the court adjudicate.” Valley Forge Chris-

tian College v. Americans United for Separation of

Church and State, Inc., 454 U.S. 464, 472-73 (1982). In

addition to those requirements for injury in fact and cau-

sation, the plaintiff must also show that the injury is

likely to be redressed by a favorable decision. Jd.

5

In the decision below the court of appeals ruled that

the plaintiffs had standing to sue. In so ruling the court

of appeals announced a new standard for satisfying the

causation aspect of standing in Clean Water Act cases.

913 F.2d at 72. Under this new standard the causation

requirement is satisfied if a pollutant discharged by the

defendant in excess of an NPDES permit limit causes or

contributes to the “kinds of injuries” alleged by the plain-

tiff. Jd. This standard is a significant relaxation of the

causation requirement for standing. Jd. at 84, 89 (con-

curring opinion). Influenced by a desire to affirm the dis-

trict court’s imposition of a civil penalty, see id. at 84-85,

the court of appeals established a precedent that has far

reaching implications for expanding standing under the

Clean Water Act and other environmental statutes. See

also id. at 83 (expressing serious concern that decision

“will not survive careful Supreme Court review’’) .?

A. The Third Circuit Changes This Court’s Substantial

Likelihood Standard For Causation Into A Mechanical

Test That Makes The Absence Of Evidence Of Causa-

tion Irrelevant To Standing

The decision below by the district court on liability

ruled that a citizen suit plaintiff satisfies the causation

aspect of standing merely by showing a violation of an

NPDES permit. Student Public Interest Research Group

2 Although this new standard for causation was accepted by one

member of the Third Circuit panel “only on the most questionable

of grounds” and “for purposes of this case,” 913 F.2d at 83-84, the

decision below announced « broad rule that significantly changes

the requirements for satisfying the causation aspect of standing

in Clean Water Act cases. But see Northern Securities Co. v. United

States, 193 U.S. 197, 400-01 (1904) (Holmes, J., dissenting) :

Great cases like hard cases make bad law. For great cases

are called great, not by reason of their real importance in

shaping the law of the future, but because of some accident of

immediate overwhelming interest which appeals to the feelings

and distorts the judgment. These immediate interests exercise

a kind of hydraulic pressure which makes what previously was

clear seem doubtful, and before which even well settled prin-

ciples of law will bend.

6

of New Jersey, et al. v. P.D. Oil & Chemical Storage, Inc.,

627 F. Supp. 1074, 1083 (D.N.J. 1986). A number of dis-

trict court decisions in Clean Water Act section 505 cases

reach the same conclusion. See e.g., Atlantic States Legal

Foundation v. Universal Tool & Stamping Co., 735 F.

Supp. 1401, 1412 (N.D. Ind. 1990) (causation is pre-

sumed if plaintiff shows that defendant violated its

NPDES permit) ; NRDC v. Outboard Marine Corp., 692

F. Supp. 801, 807-08 (N.D. Ill. 1988) (causation is shown

by proof of defendant’s NPDES permit violations; if more

were required the “causation standard would compel a

stricter showing for standing than for liability under

the Act”); Student Public Interest Research Group of

New Jersey v. Georgia-Pacific Corp., 615 F. Supp. 1419,

1424 (D.N.J. 1985) (defendant would have the court ap-

ply a stricter test for standing than for liability itself) .*

While seeming to disagree with the rationale of these dis-

trict court decisions, including the decision of the district

court below that a permit exceedance alone is sufficient

to satisfy causation, the court of appeals adopted a very

similar approach.

Specifically, the court of appeals cited Duke Power Co.

v. Carolina Environmental Study Group, Inc., 438 U.S.

59, 75 n.20 (1978), for the proposition that to satisfy

the causation aspect of standing “plaintiffs need only

show that there is a ‘substantial likelihood’ that defend-

ant’s conduct caused plaintiffs’ harm.” 913 F.2d at 72.

The court then announced for Clean Water Act cases a

three-part test for causation: (1) a pollutant discharge

in excess of an NPDES permit limit (2) to a waterway

in which the plaintiffs have an interest that is or may be

adversely affected and (3) that pollutant causes or con-

tributes to “the kinds of injuries” alleged by the plain-

3 See also Sierra Club v. Union Oil Co. of California, 22 ERC

1342, 1344 (N.D. Cal. 1985) (“contrary to defendants’ contention,

it is not incumbent on plaintiff to demonstrate that its relevant

members specifically and causally suffered injury from defendants’

alleged violations’’).

7

tiffs. Jd. Further explaining the term “kinds of injuries,”

the court of appeals said that if the defendant exceeded

its permit limit for a pollutant and that pollutant is pres-

ent in the waterway, causation is established. 913 F.2d at

73 & n.10.

The court of appeals reasoning is incorrect. The Third

Circuit turns the “substantial likelihood” standard that

this Court applied in Duke Power into a mechanical, lit-

mus paper test for standing. Duke Power’s “substantial

likelihood” standard is a factual, case-specific standard

rather than the generic, formulistic determination sug-

gested by the court of appeals.

The underlying issue in Duke Power was the constitu-

tionality of the Price-Anderson Act, 71 Stat. 576 (codi-

fied as amended in scattered sections of 42 U.S.C.), which

limits liability in the event of a nuclear power plant acci-

dent. The plaintiffs were two organizations and 40 indi-

viduals, and their standing to sue was challenged. The

plaintiffs asserted various kinds of injuries that they

would sustain as a result of the operation of nuclear

power plants under construction in close proximity to

where the individual plaintiffs lived. The plaintiffs main-

tained that those injuries were causally related to the

Price-Anderson Act: there was a substantial likelihood

that without the protection of Price-Anderson the con-

struction of the nuclear plants that plaintiffs viewed as

threatening would not proceed. See 438 U.S. at 72-75.

As applied by the Court in Duke Power, the “substan-

tial likelihood” standard is based on case-specific evidence

showing a causal connection between the challenged ac-

tion and the plaintiffs’ injury. See id. at 75-77.4 This

reflects the fact that application of the standards that

govern standing is not a mechanical exercise. Allen v.

4 See also Community for Creative Non-Violence v. Pierce, 814

F.2d 663, 669 (D.C. Cir. 1987) (the facts must show that the

challenged action is at least a substantial factor influencing the

injury complained of).

8

Wright, 468 U.S. 737, 751 (1984). Although determining

standing in a particular case may be facilitated by rules

developed in prior cases,

[t]ypically, however, the standing inquiry requires

careful judicial examination of a complaint’s allega-

tions to ascertain whether the particular plaintiff

is entitled to an adjudication of the particular claims

asserted. Is the injury too abstract, or otherwise not

appropriate, to be considered judicially cognizable?

Is the line of causation between the illegal conduct

and injury too attenuated? Is the prospect of ob-

taining relief from the injury as a result of a favor-

able ruling too speculative?

Id. at 752 (emphasis supplied). Moreover, the principles

that govern standing to sue do not vary with the circum-

stances of a given case. Valley Forge Christian College,

454 U.S. at 484 (“[WlJe know of no principled basis on

which to create a hierarchy of constitutional values or a

complementary ‘sliding scale’ of standing which might

permit respondents to invoke the judicial power of the

United States”). The court of appeals’ decision cannot be

reconciled with these principles.

In Lujan v. National Wildlife Federation, et al., 110

S. Ct. 3177 (1990), this Court required a nexus between

the location of the injury and the conduct or activity caus-

ing the injury. In contrast, here the court of appeals rea-

soned that any plaintiff establishes standing based on an

interest in a given waterway that may be affected by the

type of pollutant that the defendant discharged to that

waterway in excess of a corresponding NPDES permit

limit. Under the court of appeals’ new rule for standing

in Clean Water Act cases it does not matter how far re-

moved the injury and the challenged conduct may be from

each other in distance and time.’ Those factors, which

5 But see Oklahoma et al. v. EPA, 908 F.2d 595, 607 (10th Cir.

1990) (downstream impact of a particular pollution source will be-

come so attenuated as to be non-detectable).

9

are the essence of causation in the context of this case,

are irrelevant to the court of appeals’ new rule.

As justification for relaxation of the requirements for

standing the Third Circuit implies that evidence of causa-

tion would be difficult to obtain because of the large num-

ber of parties discharging to an affected waterway. See

913 F.2d at 72 n.8. That suggestion parallels NJPIRG’s

argument below. See Brief of Appellees-Cross-Appellants

at 12 n.8, 3d Cir. Nos. 89-5831, 89-5851, 89-5861 (Jan-

uary 10, 1990) (suggesting the impossibility of identify-

ing the injury resulting from an individual discharge).

That is a false issue. Far from being impossible, pollu-

tant tracing with computer modeling has become routine.*®

In fact, petitioner submitted such modeling evidence at

the trial in this case. This evidence, which was unre-

butted, showed that there was not a causal relationship

between petitioner’s discharge and respondents’ injury.

Petition for Writ of Certiorari at 5 n.38 (No. 90-867).

Concluding, however, that requirements for standing may

be relaxed in Clean Water Act cases, the courts below

did not address that evidence.

In sum, the court of appeals’ new rule for standing in

Clean Water Act cases contradicts the standards for con-

stitutional standing previously applied by this Court. The

consequence is to transform the federal courts into a ve-

hicle for the vindication of the value interests of con-

cerned bystanders, Allen v. Wright, 468 U.S. at 756.

8 See e.g., Oklahoma v. EPA, 908 F.2d at 607 (noting that com-

puter modeling can predict the extent of a discharger’s impact on

water quality standards); Marathon Oil v. EPA, 830 F.2d 1346,

1348-49 (5th Cir. 1987) (EPA used computer modeling programs

to analyze a discharger’s impact on water quality standards) ; NRDC

v. Zeller, 688 F.2d 706, 714 (11th Cir. 1982) (upholding the validity

of an inter-agency agreement requiring the use of modeling to

analyze water quality impact),

10

B. The Issues Raised By The Court Of Appeals’ Rule For

Standing In Clean Water Act Cases Are Important

And Recurring And Transcend The Clean Water Act

The court of appeals’ new rule for standing in Clean

Water Act cases has considerable importance for Clean

Water Act litigation and litigation under a number of

other environmental laws. See 913 F.2d at 84, 89 (sug-

gesting that relaxed standard for standing applies to en-

vironmental cases generally) (concurring opinion).

1. Issues concerning the causation aspect of standing

are recurring and prevalent in Clean Water Act citizen

suit litigation. In connection with the previous reauthor-

ization of the Clean Water Act,’ the Senate Committee

on Environment and Public Works noted that citizen suits

under section 505 had become a substantial portion of

Clean Water Act enforcement litigation.* That continues

to be the case. EPA has in the past maintained a log

identifying notices of intent to file suit under section 505.

EPA resumed similar recordkeeping during April, 1990,

and EPA’s Office of Enforcement and Compliance Monit-

oring estimates that approximately 120 notices of intent

to sue under section 505 were received during the months

of April-November, 1990.° The standing-causation issue

underlying the court of appeals’ decision is a recurring

issue in these cases, and a frequent subject of reported

(and unreported) district court and court of appeals de-

cisions under section 505.'°

™The Water Quality Act of 1987, Pub. L. 100-4, 100 Stat. 7,

(February 4, 1987).

8S. Rep. No. 50, 99th Cong., Ist Sess. 28 (1985).

® Telephone interview with Krista Dobby, EPA Office of Enforce-

ment and Compliance Monitoring, Enforcement Division, Washing-

ton, D.C. (December 20, 1990).

10 The issue of whether § 505 plaintiffs have satisfied the causa-

tion element of standing has been litigated in a large number of

cases. See Simkins Industries, Inc. v. Sierra Club, 847 F.2d 1109

(4th Cir. 1988), cert. denied 109 S. Ct. 3185 (1989); Atlantic

States Legal Foundation v. Universal Tool & Stamping Co., 735

11

The decision below will serve as a stimulus for in-

creased litigation under section 505. As of December 12,

1990, 84,391 NPDES permits had been issued under the

Clean Water Act.'' As noted earlier (see n.1), a viola-

tion of an NPDES permit’s effluent limitations is reported

by the permit holder both to EPA and the appropriate

state environmental protection agency and made publicly

available. These self-monitoring reports are treated as

admissions and are generally sufficient to establish a vio-

lation of the Act. See United States v. Ward, 448 U.S.

242 (1980). As a result, the plaintiff’s case is largely

made by the defendant, and a section 505 suit may be

brought with relative ease. In addition, plaintiffs have

considerable incentive to bring these suits because of the

opportunity to direct monetary relief resulting from the

suits to environmental organizations and section 505(d)’s

provision for recovery of attorneys’ fees and expenses."

F. Supp. 1401 (N.D. Ind. 1990); NRDC v. Outboard Marine Corp.,

692 F. Supp. 801 (N.D. Ill. 1988) ; NJPIRG v Jersey Central Power

and Light Co., 642 F. Supp. 103, 106-07 (D.N.J. 1986); NJPIRG v.

American Cyanamid, Civil No. 83-2068 (JWB) (D.N.J. November

6, 1985) (transcript of hearing, at 12-13); Sierra Club v. Kerr-

McGee, 23 ERC 1685, 1687-88 (W.D. La. 1985); SPIRG v. AT&T

Bell Laboratories, 617 F. Supp. 1190, 1200 (D.N.J. 1985); SPIRG

v. Georgia-Pacific Corp., 615 F. Supp. 1419, 1423-24 (D.N.J. 1985) ;

Chesapeake Bay Foundation v. Gwaltney of Smithfield, Ltd., 611 F.

Supp. 1542, 1546-47 (D.Va. 1985), aff'd, 791 F.2d 304 (4th Cir.

1986), rev’d, 484 U.S. 49 (1987); Chesapeake Bay Foundation v.

Bethlehem Steel, 608 F. Supp. 440, 446 (D.Md. 1985); NJPIRG v.

Tenneco Polymers, Inc., 602 F. Supp. 1394, 1397 (D.N.J. 1985) ;

Sierra Club v. Union Oil of California Co., 22 ERC 1342, 1344

(N.D. Cal. 1985); Sierra Club v. Copolymer, Inc., Docket 84-407-B

(M.D. La. November 15, 1984) (Transcript of oral argument) ;

SPIRG v. Anchor Thread Co., 22 ERC 1150, 1152-53 (D.N.J. 1984).

11 Telephone interview with Kim Ogden, EPA Office of Water

Enforcement and Permits, Permits Division, Washington, D.C.

(Dec. 27, 1990) (number derived from internal EPA permit com-

pliance statistics).

12 A civil penalty of up to $25,000 per day of violation may be

imposed in a $505 suit. See 33 U.S.C. §13865(a); see also id.

§ 1319(d). In many § 505 cases a significant portion of the mone-

12

The court of appeals’ decision is a stimulus to increase

section 505 suits by eliminating the requirement for evi-

dence indicating that injury in fact is fairly traceable.

See 913 F.2d at 88 (concurring opinion). Simply put,

by dispensing with the need for evidence of causation,

the court of appeals’ decision significantly broadens the

universe of potential plaintiffs under section 505, with

attendant increases in section 505 litigation in the future,

all of which is contrary to the requirements for standing

under Article ITI."

tary relief has gone to environmental organizations. One environ-

mental organization has noted that

[t]hese citizen suit provisions could be utilized by NYPIRG

[New York Public Interest Research Group, Inc.] to punish

polliters, gain publicity, steer a significant amount of money

to worthwhile environmental projects, and conceivably, to bring

in money to NYPIRG in the form of legal fees to attorneys and

scientific “experts.”

Memorandum from Messrs. R. Weiner, et al., to Executive Comm.,

NYPIRG (July 19, 1986) (Re: Clean Water Act Citizens Suits).

See also 913 F.2d at 84 (concurring opinion) (“I see PIRG and

FOE in the position of the old-time vaudeville performer’s ad in

Variety: ‘Have tux, will travel.” PIRG and FOE advertised: ‘Have

case, need live-bodied members/plaintiffs’ ”’).

18 An example further demonstrates this point. Approximately

327 NPDES permittees, which includes industrial facilities and

publicly-owned treatment works (“POTWs”), discharge wastewater

to the Hudson River between Albany and New York City. Telephone

interview with Francis Zagorski, Environmental Engineer, New

York State Department of Environmental Conservation, Division

of Water, Albany, New York (December 27, 1990). In addition,

the POTWs (107 of these permittees are POTWs) will typically

serve a considerable number of indirect industrial dischargers (in-

direct dischargers are also subject to suit under § 505). See NYPIRG

v. Limco Mfg. Corp., 697 F. Supp. 608, 609 (E.D.N.Y. 1987). Under

the Third Circuit’s reasoning a plaintiff who is offended by an oily

or greasy sheen on the Hudson River in New York City could chose

to sue any one of a great number of upstream dischargers who may

have violated a permit limit for oil and grease (oil and grease is a

commonly regulated pollutant under EPA’s industry effluent stand-

ards). See e.g., 40 C.F.R. Parts 408, 417, 428, 425, 482, 433, 463,

464, 468 and 471. This is true no matter how geographically re-

13

2. The Third Circuit’s relaxation of constitutional

standing requirements in this case has implications far

beyond Clean Water Act citizen suits. Like section 505

of the Clean Water Act, a number of other environmental

statutes also authorize private enforcement. This includes

section 304 of the Clean Air Act, 42 U.S.C. § 7604 (as

amended by section 707 of the Clean Air Act Amendments

of 1990, Pub. L. 101-549) ; section 310 of the Comprehen-

sive Environmental Response, Compensation and Liability

Act, 42 U.S.C. § 9659; section 326 of the Emergency Plan-

ning and Community Right-To-Know Act, 42 U.S.C.

§ 11046; section 7002 of the Resource Conservation and

Recovery Act, 42 U.S.C. § 6972; and section 20 of the

Toxic Substances Control Act, 15 U.S.C. § 2619(a) (1).

Each of these provisions authorizes “any person” to com-

mence a civil action against an alleged violator of the un-

derlying environmental statute. The Third Circuit’s re-

laxation of constitutional standing requirements for Clean

Water Act citizen suits could be applied to a broad range

of similar actions brought under other 2nvironmental stat-

utes, permitting plaintiffs to file suit based solely on gen-

eralized notions of harm, without proof of causation.

Section 304 of the Clean Air Act »xemplifies this con-

cern. This statute has recently been amended to authorize

civil penalty relief in citizen suit enforcement. See Pub.

L. 101-549, § 707(a)."* Under the court of appeals’ rea-

soning an individual located perhaps hundreds of miles

from a source of air emissions would have standing to

maintain a suit under section 304 if the air emissions

source exceeded its permit limit for a given pollutant

mote the permittee is from the injury complained of and despite

the absence of evidence that the injury is causally linked to the

discharger.

14 Title V of Pub. L. 101-549 establishes a permitting program

that will apply to many sources of air pollutants. The new permit

program is modeled after the Clean Water Act’s NPDES permit

program. See S. Rep. No. 228, 101st Cong., Ist Sess. 373 (1989).

14

which also happens to be the same type of pollutant that

affects ambient air quality in the plaintiff’s locality. See

913 F.2d at 72. It would not matter that the presence of

the pollutant of concern in the plaintiff’s locality was not

causally related to the defendant’s actions, That is the

necessary result of the Third Circuit’s reasoning.

In sum, the decision below establishes a rule for stand-

ing in Clean Water Act cases that is at odds with the

standards previously applied by this Court in resolving

issues of constitutional standing. The court of appeals’

decision will transcend the Clean Water Act and improp-

erly increase litigation under a number of environmental

statutes.

CONCLUSION

For the foregoing reasons, amici urge the Court to

grant the petition for a writ of certiorari,

Respectfully submitted,

Scott M. DUBOFF *

Scott W. CLEARWATER

JOANNE M. SCANLON

ANDREAS H, LESKOVSEK

WINSTON & STRAWN

1400 L Street, N.W.

Washington, D.C. 20005-3502

Counsel for Amici Curiae

American Iron and

* Counsel of Record Steel Institute, et al.

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