Amicus Curiae Brief — Union Oil Co. v. Citizens for a Better Environment-California

-

MOTWN FILED No. 96-747 ,

he cr 8 a aaammaceemaammanea

In THE

Supreme Court of the United States

OCTOBER TERM, 1996

UNION Or, COMPANY OF CALIFORNIA,

. Petitioner,

CITIZENS For A BETTER ENVIRONMENT, et al.,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

MOTION FOR LEAVE TO FILE BRIEF AMICI CURIAE

AND BRIEF AMICI CURIAE OF AMERICAN

AUTOMOBILE MANUFACTURERS ASSOCIATION

AMERICAN FOREST & PAPER ASSOCIATION

AMERICAN PETROLEUM INSTITUTE

BAY AREA LEAGUE OF INDUSTRIAL ASSOCIATIONS

CALIFORNIA COUNCIL FOR ENVIRONMENTAL

AND ECONOMIC BALANCE

CHEMICAL MANUFACTURERS ASSOCIATION

INTEGRATED WASTE SERVICES ASSOCIATION AND

NATIONAL ASSOCIATION OF MANUFACTURERS

IN SUPPORT OF PETITIONER

Scott M. DUBOFF *

JOHN W. HEDERSCHEIT III

WRIGHT & TALISMAN, P.C.

1200 G Street, N.W.

Suite 600

Washington, D.C. 20005-3802

(202) 393-1200

Counsel for Amici Curiae

American Automobile

Manufacturers Association,

* Counsel of Record et al.

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

IN THE

Supreme Court of the United States

OCTOBER TERM, 1996

No. 96-747

UNION O1L COMPANY OF CALIFORNIA,

° Petitioner,

CITIZENS For A BETTER ENVIRONMENT, et al.,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

MOTION FOR LEAVE TO FILE BRIEF AMICI CURIAE

American Automobile Manufacturers Association, 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

certiorari filed by Union Oil Company of California

(“Unocal”). The petition seeks review of the court of

appeals decision in Citizens for a Better Environment-

California v. Union Oil Co. of California, 83 F.3d 1111

(9th Cir. 1996) (reproduced at Pet. App. 1a-17a).

Counsel for the petitioner has consented to the filing of

the above-mentioned brief amici curiae. Counsel for re-

spondents Citizens for a Better Environment-California,

et al., withheld consent.*

1. Amici are organizations representing a broad cross

section of industry in the United States.

* As the reason for withholding consent, respondents’ counsel

stated that respondents would not be able to reply to amici.

Amicus American Automobile Manufacturers Associa-

tion (“AAMA”) is a voluntary nonprofit association of

domestic (United States) companies engaged in the man-

ufacture and sale of motor venicles.s AAMA’s members

operate 276 manufacturing and related facilities, assemble

approximately 80% of all motor vehicles produced in the

United States, and have approximately 700,000 employees

with a total annual payroll of over $35 billion.

Amicus American Forest & Paper Association

(“AF&PA”) is the national association of the forest, pulp,

paper, paperboard, and wood products industry. With ap-

proximately 400 member companies and additional related

associations, AF&PA represents a vital national industry

employing some 1.4 miliion people and having an annual

payroll of approximately $46 billion.

Amicus American Petroleum Institute (“API”) is an

association of over 300 companies involved in all aspects

of the petroleum industry, including exploration, produc-

tion, transportation, refining and marketing. API is a

frequent advocate on important issues of public policy

before courts, legislative bodies and other forums.

Amicus Bay Area League of Industrial Associations

(“BALIA”) is a diverse coalition of San Francisco Bay

area industries established over 35 years ago for the pur-

pose of addressing a broad range of environmenta! topics.

BALIA represents its members’ interests in air and water

quality and solid waste management matters before va-

rious governmental forums.

Another of the amici, the California Council for En-

vironmental and Economic Balance (“CCEEB”), is a

private, non-profit coalition of organized labor and busi-

nesses in California. CCEEB was established in 1973 and

has been an advocate for solutions to achieve California’s

environmental and economic goals.

Amicus Chemical Manufacturers Association (“CMA”)

is a non-profit trade association whose members iepresent

more than 90% of domestic (United States) productive

PR —_

capacity for basic industrial chemicals. CMA regularly

advocates on public policy issues of importance to its

members that arise before courts, legislative forums and

regulatory agencies. The manufacturers of chemicals and

allied products provide over one million jobs in the United

States and account for over 10% of the value of goods

exported from the United States.

Another of the amici, the Integrated Waste Services

Association (“IWSA”), is a national trade group repre-

senting the waste-to-energy industry. IWSA encourages

the use of waste-to-energy technology as a key component

of community programs to handle solid waste. [WSA’s

member companies represent 65 of the 114 waste-to-energy

facilities nationwide. IWSA member facilities process ap-

proximately 83,000 tons of waste each day and generate

enough energy to meet the electricity needs of more than

one million households.

Finally, amicus National Association of Manufacturers

(“NAM”) is the nation’s oldest and largest broad-based

industrial trade association. Its more than 14,000 mem-

ber companies and subsidiaries, including 10,000 small

manufacturers, employ approximately 85% of all manu-

facturing workers and produce over 80% of the nation’s

manufactured goods. More than 158,000 additional busi-

nesses are affiliated with the NAM through its Associations

Council and National Industrial Council.

2. Each of the amici has many members who, like

petitioner, hold one or more National Pollutant Discharge

Elimination System (“NPDES”) permits issued pursuant

to § 402 of the Clean Water Act (“Act”), 33 U.S.C.

§ 1342. These permits are administered by the U.S. En-

vironmental Protection Agency (“EPA”) and states to

which EPA has delegated such permitting authority.

NPDES permits regulate the discharge of pollutants to

navigable waters of the United States. See Gwaltney of

Smithfield v. Chesapeake Bay Found., Inc., 484 U.S. 49,

52-53 (1987); EPA v. California ex rel. State Water Re-

sources Control Bd., 426 U.S. 200, 203-08 (1976).

While states have primary authority and responsibility to

enforce the Clean Water Act, § 505 of the Act, 33 U.S.C.

§ 1365, also authorizes private enforcement. This case

involves a suit under § 505.

Amici are committed to the goals of the Act. To that

end, and in coordination with state and federal regulatory

authorities, amici’s member companies have spent vast

sums to upgrade and enhance water pollution control tech-

nology at their facilities. Nevertheless, amici’s member

companies have been (or presently are) defendants in en-

forcement suits under § 505 of the Act, or have received

notice, pursuant to § 505(b)(1)(A), that an individual

or organization intends to file such a suit.

3. The fundamental issue raised by Unocal’s petition

is whether § 309(g)(6)(A) of the Act, 33 U.S.C.

§ 1319(g)(6)(A), allows duplicative private enforce-

ment suits to be maintained where the affected state has

already prosecuted a comprehensive administrative en-

forcement action that imposes a sizeable monetary penalty

and other relief. Amici are directly interested in this

case because the court of appeals’ misinterpretation of

§ 309(g)(6)(A) would greatly expand citizens’ authority

to bring private enforcement suits under the Clean Water

Act, and undercut the federalism principles central to the

Act. Because amici’s members are subject to reguiation

under the Clean Water Act and private enforcement ac-

tions under § 505, the issues raised by the instant petition

for a writ of certiorari directly affect amici. The decision

below seriously prejudices amici’s members by expanding

the jurisdiction of the federal courts to NPDES violations

that have been fully and aggressively addressed by state

enforcement agencies.

In the accompanying brief amici address these impor-

tant issues from the perspective of diverse organizations

representing industrial entities whose concerns regarding

the decision below transcend this case. Amici believe that

they can effectively contribute to the Court’s understand-

ing of the broader ramifications of the court of appeals

decision.

In view of the foregoing, amici curiae American Auto-

mobile Manufacturers Association, et al., respectively re-

quest that they be permitted to file the accompanying brief

amici curiae in support of petitioner Union Oil Company

of California.

Respectfully submitted,

Scott M. DUBOoFF *

JOHN W. HEIDERSCHEIT III

WRIGHT & TALISMAN, P.C.

1200 G Street, N.W.

Suite 600

Washington, D.C. 20005-3802

(202) 393-1200

Counsel for Amici Curiae

American Automobile

Manufacturers Association,

* Counsel of Record et al.

TABLE OF CONTENTS

TABLE OF AUTHORITIES ..............--------------c----e-eeeeeeeee

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

REASONS FOR GRANTING THE WRIT

A. Contrary To The Ninth Circuit, The Regional

Board’s Enforcement Process Fully Satisfies

§ 309(g)’s “Comparability” ITN ccvdicinticleons

1. In 1987 Congress Made a Deliberate Policy

Choice To Limit Citizen Suits Where a

State Enforces Administratively ..................

2. The Ninth Circuit’s Decision Conflicts with

Decisions of the First and Eighth Circuits....

B. The Ninth Circuit Sanctions Collateral Attack

On State Enforcement, Thereby Jeopardizing

The Primary Role Of The States In Enforce-

SRE EEE SEE Goren sees c escape rennet eo einrpernteins

CONCLUSION ..........--2-----s0ccssceceseeeessersneecesensnesessnecsensensensenes

(i)

10

11

14

ii

TABLE OF AUTHORITIES

CASES Page

Arkansas Wildlife Fed’n v. Bekaert Corp., 791

F. Supp. 769 (W.D. Ark. 1992) ........................... 11

Arkansas Wildlife Fed’n v. ICI Americas, Inc.,

29 F.3d 376 (8th Cir. 1994), cert. denied, 115

BC BR re ik Since teak 2, 11, 13

Atlantic States Legal Found., Inc. v. Tyson Foods,

Inc., 682 F. Supp. 1186 (N.D. Ala. 1988), rev’d

on other grounds, 897 F.2d 1128 (11th Cir.

DIE isssnciee-sesagpec ind seaccins navceeineebc tis entcotbiatintnpdaicusins 11

Connecticut Coastal Fishermen’s Ass’n v. Reming-

ton Arms Co., Inc., TT7 F. Supp. 173 (D. Conn.

1991), aff'd in rel. part, rev'd in part on other

grounds, 989 F.2d 1305 (2d Cir. 1993) -............. 12

EPA v. California ex rel. State Water Resources

Control Board, 426 U.S. 200 (1976) ........00000..... 5,11

EPA v. City of Green Forest, 921 F.2d 1394 (8th

Sh. SRRGRER aN erie Bs neatse larch PRE Re 12

Friends of the Earth v. Consolidated Rail Corp.,

(RA € gt: Ee a. eae ome 7

Gwaltney of Smithfield v. Chesapeake Bay Foun-

dation, 464 U.S. 49 (1987) ...........................: 6, 11-12, 18

North & S. Rivers Watershed Ass’n v. Town of

Scituate, 755 F. Supp. 484 (D. Mass. 1991),

aff'd, 949 F.2d 552 (ist Cir. 1991) .........0..0000..... 11

North & S. Rivers Watershed Ass’n v. Town of

Scituate, 949 F.2d 552 (1st Cir. 1991) ............. 2,11, 12

Saboe v. Oregon, 819 F. Supp. 914 (D. Or. 1993).. 12

FEDERAL STATUTES

33 U.S.C.

OP GRRE NO al eke Nea PR MRS EERO 14

0” SES ea ahaa ry 11

PO SE RET RARE AE AES AAO Oe 11

Oe Ea I rice neta yrierhchatietiniiannianetvenpiaishenlinsbetcas 8

EN, |S ete nelaiae Be ume tna an ee ON OPE TES 2

|” SEERA a aot werenes meta acme TRE Sige 5

8 SSAC Hersch katy Can tre eo 2

8

iii

TABLE OF AUTHORITIES—Continued

STATE STATUTES Page

Cal. Water Code

NE i 6 ko acapciacseliesnkaeiccndlaacoiiuamnclinsieebebabesiinbenpelbiies 9,10

I ihe ieageachealaag a aaia/iceiecapneninssmnsasbiineinneed 13

Si a seossatbiiin steso itd edeotdcah abererenibgailiinseectiaeioeesied ince 13

RII <1 lssdaonsiuscascpsaiucadiccemanbianeclioseetolieNeomiansatnweabebpaeien 9,10

OTHER SOURCES

a re I CRUE RD iisieieniteieccttrererinccesemviceriens 6, 12

183 Cong. Rec. S733 (daily ed. Jan. 14, 1987)........ 8

William H. Rehnquist, Seen in a Glass Darkly:

The Future of the Federal Courts, 1993 Wis. L.

NG IE eiscirac dete es gece ccreiecaenccies Sach aclcnaierwbnaais 13

In THE

Supreme Court of the United States

OCTOBER TERM, 1996

No. 96-747

UNION Ort COMPANY OF CALIFORNIA,

Ma Petitioner,

CITIZENS For A BETTER ENVIRONMENT, et al.,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

BRIEF AMICI CURIAE OF AMERICAN

AUTOMOBILE MANUFACTURERS ASSOCIATION

AMERICAN FOREST & PAPER ASSOCIATION

AMERICAN PETROLEUM INSTITUTE

BAY AREA LEAGUE OF INDUSTRIAL ASSOCIATIONS

CALIFORNIA COUNCIL FOR ENVIRONMENTAL

AND ECONOMIC BALANCE

CHEMICAL MANUFACTURERS ASSOCIATION

INTEGRATED WASTE SERVICES ASSOCIATION AND

NATIONAL ASSOCIATION OF MANUFACTURERS

IN SUPPORT OF PETITIONER

This brief amici curiae of American Automobile Man-

ufacturers Association, et al., is submitted in support of a

petition for a writ of certiorari filed by Union Oil Com-

pany of California (“Unocal”). The petition seeks re-

view of the judgment and opinion of the United States

Court of Appeals for the Ninth Circuit in Citizens for a

Better Environment-California v. Union Oil Co. of Cali-

fornia, 83 F.3d 1111 (9th Cir. 1996) (reproduced at

Pet. App. la-17a).

y

The court of appeals decision concerns a private en-

forcement action (“citizen suit”) under §505 of the

Clean Water Act (“Act” or “CWA”), 33 U.S.C. § 1365,

and, in particular, interpretation of § 309(g) (6) (A) of the

Act, 33 U.S.C. § 1319(g)(6)(A).*. The Ninth Circuit’s

decision would allow a private enforcement action to be

maintained despite the fact that the affected state has pre-

viously undertaken a comprehensive administrative en-

forcement action resulting in a settlement that imposes a

very sizable monetary sanction or penalty. The decision

directly conflicts with the decisions of two other circuits,

Arkansas Wildlife Federation v. ICI Americas, Inc., 29

‘F.3d 376 (8th Cir. 1994), cert. denied, 115 S. Ct. 1094

(1995), and North & South Rivers Watershed Associa-

tion, Inc. v. Town of Scituate, 949 F.2d 552 (lst Cir.

1991). In addition, the Ninth Circuit’s decision directly

contravenes Congress’ intent—as well as Supreme Court

precedent—that individual states are to have the primary

role in enforcing the Clean Water Act. The court of ap-

peals decision severely undermines the role intended for

state administrative enforcement, including jeopardizing

1 The relevant portion of § 309(g) provides as follows:

(6) Effect of order

(A) Limitation on actions under other sections

Action taken by the Administrator or the Secretary,

as the case may be, under this subsection shall not

affect or limit the Administrator’s or Secretary’s au-

thority to enforce any provision of this chapter; ex-

cept that any violation—

(ii) for which the Administrator, the Secretary, or

the State has issued a final order not subject to fur-

ther judicial review and the violator has paid a pen-

alty assessed under this subsection, or such compar-

able State law, as the case may be,

shall not be the subject of a civil penalty action under

subsection (d) of this section or section 1821(b) of this

title or section 1365 of this title.

3

the opportunity to achieve administrative settlements,

while at the same time increasing the likelihood of costly,

duplicative and protracted district court litigation. Given

the recurring nature of these issues, it is of considerable

importance that this Court resolve the conflict among the

circuits regarding the respective roles for state enforce-

ment and citizen suits.

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 Citizens for a Better

Environment, et al. (“CBE”) have not consented, and

amici have simultaneously filed a motion for leave to file

this brief.

STATEMENT OF INTEREST OF AMICI

Amici consist of voluntary business associations repre-

senting a broad spectrum of industry in the United States.

Amicus American Automobile Manufacturers Associa-

tion (“AAMA”) is a voluntary nonprofit association of

domestic (United States) companies engaged in the man-

ufacture and sale of motor vehicles. AAMA’s members

operate 276 manufacturing and related facilities, assemble

approximately 80% of all motor vehicles produced in the

United States and have approximately 700,000 employees

with an annual payroll of over $35 billion.

Amicus American Forest & Paper Association

(“AF&PA”) is the national trade association of the forest,

pulp, paper, paperboard, and wood products industry.

AF&PA represents approximately 400 member companies

and related trade associations (whose memberships are in

the thousands) which grow, harvest, and process wood

and wood fiber; manufacture pulp, paper, and paperboard

products from both virgin and recycled fiber; and produce

solid wood products. Additionally, AF&PA represents a

vital national industry which accounts for over 8% of the

United States’ total manufacturing output. Employing

4

some 1.4 million people, this industry ranks among the

top ten manufacturing employers in 46 states, with an

annual payroll of approximately $46 billion.

Amicus American Petroleum Institute (“API”) is a

trade association whose membership includes over 300

companies involved in all aspects of the petroleum indus-

try, including exploration, production, transportation, re-

fining and marketing. API is a frequent advocate on

important issues of public policy before courts, legislative

bodies and other forums.

Amicus Bay Area League of Industrial Associations

(“BALIA”) is a diverse coalition of San Francisco Bay

area industries established over 35 years ago for the

purpose of addressing a broad range of environmental

topics. BALIA represents its members’ interests in air

and water quality and solid waste management matters

before various governmental forums.

Another of the amici, the California Council for En-

vironmental and Economic Balance (“CCEEB”), is a

private, non-profit coalition of organized labor and busi-

nesses in California. CCEEB was established in 1973 and

has been an advocate for solutions to achieve California’s

environmental and economic goals.

Amicus Chemical Manufacturers Association (“CMA”)

is a non-profit trade association whose members represent

more than 90% of domestic (United States) productive

capacity for basic industrial chemicals. CMA regularly

advocates on public policy issues of importance to its

members that arise before courts, legislative forums and

regulatory agencies. The manufacturers of chemicals and

allied products provide over one million jobs in the United

States and account for over 10% of the value of goods

exported from the United States.

Amicus Integrated Waste Services Association

(“IWSA”) is a national trade group representing the

|

5

waste-to-energy industry. IWSA encourages the use of

waste-to-energy technology as a key component of com-

munity programs to handle solid waste. IWSA’s member

companies represent 65 of the 114 waste-to-energy facil-

ities nationwide. IWSA member facilities process approx-

imately 83,000 tons of waste each day and generate

| enough energy to meet the electricity needs of more than

) one million households.

~~"

Amicus National Association of Manufacturers

(“NAM”) is the nation’s oldest and largest broad-based

industrial trade association. Its more than 14,000 mem-

ber companies and subsidiaries, including 10,000 small

manufacturers, employ approximately 85% of all manu-

facturing workers and produce over 80% of the nation’s

manufactured goods. More than 158,000 additional busi-

nesses are affiliated with the NAM through its Associations

Council and National Industrial Council.

Amici have a substantial interest in the issues raised

by the petition in this case. The Ninth Circuit’s decision

will subject Clean Water Act permittees to duplicative

enforcement—federal court actions on the heels of state

administrative enforcement—for precisely the same con-

duct.” While amici’s members have invested billions of

dollars in water pollution control, no system can guarantee

perfect compliance and amici’s members are at times

subject to enforcement actions by state and federal regu-

* The 1972 amendments to the Clean Water Act established the

National Pollutant Discharge Elimination System (“NPDES”).

The NPDES program is based on a system of permits that regulate

the discharge of pollutants into navigable waters of the United

States. The permit system is administered by the U.S. Environ-

mental Protection Agency (“EPA”) and the various states, includ-

ing California, to which administration of the permit program has

been delegated. See § 402 of the Act, 33 U.S.C. § 1842; see also

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

426 U.S. 200, 205-08 (1976). At this time there are 39 states with

delegated authority to administer the NPDES program and more

than 75,000 NPDES permits in effect. http ://www.epa.gov :80.

6

lators. But as a consequence of the Ninth Circuit’s deci-

sion, NPDES permittees who settle enforcement actions

with state agencies will nevertheless be subject to citizen

suits—and additional penalties—for the very same matters.

This is true even if these permittees make continuing

good faith efforts to achieve compliance with permit

requirements and pay administrative penalties as part of

the resolution of enforcement proceedings.

The Ninth Circuit’s decision will significantly erode

the incentive for defendants to settle state administrative

actions by offering significant environmental improvements

and the payment of substantial penalties where a duplica-

tive citizen suit looms on the horizon. These issues, which

underlie the petition for a writ of certiorari, are important

and recurring questions in the administration of the Clean

Water Act and merit review by this Court.

REASONS FOR GRANTING THE WRIT

Unocal’s petition addresses the fundamental issue of

the respective roles in CWA enforcement that Congress

intended for states and citizen plaintiffs. The question

presented is whether Congress intended that citizen plain-

tiffs could bring an enforcement action under the Clean

Water Act where a prior state administrative action has

resulted in a substantial monetary penalty, the develop-

ment of new control technology and strict adherence to

compliance schedules. The Ninth Circuit’s decision is

contrary to this Court’s conclusion in Gwaltney of Smith-

field, Ltd. v. Chesapeake Bay Foundation, Inc., 484 U.S.

49 (1987), that citizen suits,

are proper only “if the Federal, State, and local

agencies fail to exercise their enforcement responsi-

bility.”

Id. at 60 (emphasis added) (quoting S. Rep. No. 92-414,

at 64 (1971)). The Ninth Circuit allows an entirely

duplicative citizen suit to proceed in federal court despite

ee ee

7

the fact that the identical issues have been thoroughly

| addressed in a prior administrative enforcement proceed-

ing before the California Regional Water Quality Control

Board (“Regional Board”) under a state enforcement

code that is “comparable” to the provisions of the CWA

governing EPA’s administrative enforcement. The Ninth

Circuit disregards these factors and, as a consequence,

undermines federalism and a principal theme of the CWA

—the primary authority and responsibility of the states

in enforcement of the Clean Water Act.

A. Contrary To The Ninth Circuit, The Regional Board’s

Enforcement Process Fully Satisfies § 309(g)’s “Com-

parability” Standard

The Ninth Circuit concluded that the Regional Board’s

enforcement action against Unocal did not proceed under

a “comparable State Law” within the meaning of § 309( g)

(6) (A) (iii) of the Clean Water Act. That conclusion is

based on the erroneous premise that the CWA requires

the Regional Board to proceed under enforcement pro-

visions that are identical to the CWA provisions govern-

ing EPA’s administrative enforcement under § 309(g).

1. In 1987 Congress Made a Deliberate Policy Choice

To Limit Citizen Suits Where a State Enforces

Administratively

The purpose of § 309( g)(6)(A) is to avoid duplicative

enforcement actions by citizen plaintiffs where there has

already been diligent administrative enforcement by either

the affected state or the federal government. Prior to the

1987 amendments to the CWA only a state or federal

judicial enforcement actin could bar a duplicative citizen

suit for the same alleged NPDES violations? The 1987

3 See Friends of the Earth v. Consolidated Rail Corp., 768 F.2d

57 (2d Cir. 1985). Prior to the 1987 amendments that added

§ 309(g), the CWA’s only provision for barring a duplicative citi-

8

amendments expanded the limitation on citizen suits to

include state and federal administrative enforcement. The

amendments established that state administrative enforce-

ment actions would thereafter preclude duplicative citizen

suits, provided that the state’s administrative enforcement

procedures are comparable to the CWA’s procedures for

EPA administrative enforcement, e.g., public participa-

tion, the availability of monetary penalties, and oppor-

tunity for judicial review.* It bears emphasis that the

plain meaning of the term “comparable” in the statute

is that a state’s administrative enforcement procedures are

“similar” or “analogous”’—but not necessarily identical—

to the section 309(g) procedures that apply to admin-

istrative enforcement by EPA.’ Clearly, Congress did

not intend to impose a litmus test or exalt form over

substance.

The Ninth Circuit, however, ignored the direction of

Congress in the 1987 amendments and disregarded the

plain language of the statute. Nowhere does the court

explain why the Regional Board’s administrative enforce-

ment procedures in this case were not comparable to the

administrative enforcement procedures that apply to EPA

under § 309(g). To the contrary, the procedures fol-

zen suit was set forth in § 505(b) (1) (B), 33 U.S.C. § 1865 (b) (1)

(B), which precludes a citizen suit if at the time of the suit an

enforcement action in state or federal court is being diligently

prosecuted by the affected state or EPA. The 1987 amendments

that added § 309(g) also made a conforming amendment to § 505(a)

to clarify that citizen suits would thereafter be precluded both by

judicial enforcement (§505(b)(1)(B)) and administrative en-

forcement (§ 309(g) (6) (A)).

4 The 1987 amendments added administrative penalty provisions

to EPA’s CWA administrative enforcement authority, which had

previously been limited to issuance of compliance orders. See, e.g.,

33 U.S.C. § 1819(g) (1)-(5).

5 See 183 Cong. Rec. S733 (daily ed. Jan. 14, 1987) (comments

of Sen. Chafee that a state’s administrative procedures must be

“similar” or “analogous” to those in § 309(g)).

9

lowed by the Regional Board were quite similar or analo-

gous to those set forth in CWA § 309(g). The Ninth

Circuit suggested that the provision relied on in this case

by the Regional Board, § 13301 of the California Water

Code, provides “no guarantee that the public will be given

the requisite opportunity to participate or that the penalty

assessed is of the proper magnitude.” Pet. App. 12a. That

position is baseless. The Regional Board, acting pursuant

to § 13301 and related authority, provided abundant pub-

lic notice and opportunity to comment, held two public

hearings (CBE actively participated in both), and im-

posed a very substantial monetary sanction—a penalty—

of $2,000,000 ($780,000 of which was paid by Unocal).

See Pet. at 4-5.

The Ninth Circuit concluded that Unocal’s $780,000

payment did not qualify as an enforcement penalty under

§ 309(g)(6)(A) (ili), suggesting that the “fairest char-

acterization of the payment at issue is that it was, indeed,

a settlement made to avoid an enforcement action by the

Regional Board” and accordingly, was “not paid [as] a

penalty.” Pet. App. 9a (emphasis added). The Regional

Board’s proceeding against Unocal was an enforcement

action, however, and was recognized as such by both the

Regional Board and EPA. Excerpts of Record (“ER”)

158, 253. The Regional Board and EPA also recognized

that the $2,000,000 payment was a penalty. ER 140,

line 5; ER 253-54; ER 371, lines 8-15.

Disregarding these facts, the Ninth Circuit emphasized

instead that § 13301 of the California Water Code, unlike

§ 13385 of the Code, does not expressly authorize the

assessment of administrative penalties. The court further

suggested that the result of the Regional Board’s reliance

on § 13301 was to provide Unocal with “significant advan-

tages” because the “significant level of scrutiny” that is

applied to administrative penalties under § 13385 was

avoided. Pet. App. 8a. Contrary to the Circuit’s implica-

10

tion, however, neither CBE nor any other participant in

the Regional Board’s enforcement proceeding suggested

that the Board’s reliance on § 13301 rather than § 13385

had reduced or otherwise impaired the level of scrutiny

associated with the Regional Board’s assessment of the

$2,000,000 penalty. The penalty paid by Unocal (and

the other refiners) was very carefully scrutinized by the

Regional Board, EPA, the respondents, and other mem-

bers of the public, including two public hearings in which

respondents fully participated. ER 113-52; ER 253-54;

ER 371, lines 8-15. Indeed, the portion of the $2,000,000

penalty that Unocal itself paid ($780,000) was five times

the maximum administrative penalty available under the

comparable Clean Water Act provision.

2. The Ninth Circuit’s Decision Conflicts with Deci-

sions of the First and Eighth Circuits

The Ninth Circuit’s conclusion that § 13301 of the

California Water Code is not “comparable” to § 309(g)

of the Clean Water Act conflicts with each of the two other

court of appeals decisions that have interpreted that pro-

vision. The federal courts interpreting § 309(g)(6) (A)

recognize that the Clean Water Act’s “comparability” re-

quirement is satisfied where the state’s enforcement proce-

dures are similar to federal enforcement procedure:

The common thread running through these cases is a

finding that the overall regulatory scheme affords

significant citizen participation, even if the state

law does not contain precisely the same public notice

and comment provisions as those found in the federal

CWA... . [T]he comparability requirement may be

satisfied so long as the state law contains comparable

penalty provisions which the state is authorized to

enforce, has the same overall enforcement goals as

the federal CWA, provides interested citizens a mean-

ingful opportunity to participate at significant stages

of the decision-making process, and adequately safe-

guards their legitimate substantive interests.

~

1]

Arkansas Wildlife, 29 F.3d at 381. Thus, “while not

identical,” state administrative enforcement procedures

must be “sufficiently similar” to federal procedures to

satisfy § 309(g)(6)(A)’s comparability standard.* These

decisions emphasize “the comparability of the overall

State regulatory scheme rather than the individual section

of state law,” Arkansas Wildlife Fed’n v. Bekaert Corp.,

791 F. Supp. 769, 774-75 (W.D. Ark. 1992), which is

satisfied where “the overall scheme of the two acts [the

CWA and the parallel state law] is aimed at correcting the

same violations, thereby achieving the same goals.” North

& S. Rivers, 949 F.2d at 556. In sum, the Ninth Circuit’s

decision is inconsistent with these principles and creates

a split of authority on an important issue with significant

consequences for amici and others.

B. The Ninth Circuit Sanctions Collateral Attack On

State Enforcement, Thereby Jeopardizing The Pri-

mary Role Of The States In Enforcement Of The Act

As this Court has long recognized, a principal con-

gressional policy underlying the Clean Water Act is “ ‘to

recognize, preserve, and protect the primary responsibili-

ties and rights of States to prevent, reduce, and eliminate

pollution.”” EPA v. California ex rel. State Water Re-

sources Control Board, 426 U.S. 200, 207-08 (quoting

§ 101(b) of the Act, 33 U.S.C. § 1251(b)). As this

Court and other courts have recognized, the legislative

history and implementation of the Act repeatedly empha-

size Congress’ intent that states have preeminent responsi-

bility for the Act’s enforcement. Gwaltney, 484 U.S. at

®* North & S. Rivers Watershed Ass’n v. Town of Scituate, 755

F. Supp. 484, 486 (D. Mass. 1991), aff'd, 949 F.2d 552 (1st Cir.

1991) ; see also Atlantic States Legal Found., Inc. v. Tyson Foods,

Inc., 682 F. Supp. 1886, 1188 (N.D. Ala. 1988) (providing that a

“a state administrative action under a similar state law is clearly

sufficient, such action being under a state law comparable to sub-

section (g) of § 1319”), rev’d on other grounds, 897 F.2d 1128

(11th Cir. 1990).

12

60.’ In contrast, citizen suits are intended to “supplement

rather than to supplant” government enforcement, and

“are proper only ‘if the Federal, State, and local agencies

fail to exercise their enforcement responsibility.” Gwalt-

ney, 484 U.S. at 60.°

The Ninth Circuit’s decision, however, expands the

role of federal court citizen suits at the expense of state

authority. Allowing vigorous state administrative enforce-

ment actions that assess substantial penalties to be sub-

ordinated and confined to an inconsequential role will

seriously undermine state enforcement of the Clean Water

Act. As a consequence, settlement of administrative en-

forcement actions will lack finality and may have little,

if any, significance, regardless of procedures for public

participation and judicial review, authority to impose

stringent penalties and corrective measures, or the severity

of the sanctions imposed. This can only result in discour-

aging out-of-court settlements between NPDES permittees

and state agencies since the “incentive to settle would be

greatly diminished if subsequent citizen suits were al-

lowed.” Connecticut Coastal Fishermen’s Ass'n, 777 F.

Supp. at 186.°

In the truest sense, the Ninth Circuit decision validates

a collateral attack on the Regional Board’s enforcement

7 See also Connecticut Coastal Fishermen’s Ass’n v. Remington

Arms Co., 777 F. Supp. 173, 177-78 (D. Conn. 1991), aff’d in rel.

part & rev’d in part on other grounds, 989 F.2d 1305 (2d Cir.

1993); EPA v. City of Green Forest, 921 F.2d 1394, 1403-05 (8th

Cir. 1990).

§ Quoting S. Rep. No. 92-414, at 64 (1971) (emphasis added) ;

see also Gwaltney, 484 U.S. at 53 (“fi]n the absence of federal or

state enforcement, private citizens may commence civil actions”

under § 505).

® See also Saboe v. Oregon, 819 F. Supp. 914, 918 (D. Or. 1993)

(a violator will not cooperate with the administrative enforcement

process absent “assurance that the same violation would not be the

subject of a citizens suit in federal court at some later time’’).

13

discretion and the diligently prosecuted enforcement action

against Unocal. CBE actively participated in the Regional

Board’s enforcement proceeding, ER 43-60; ER 113-52;

ER 153-59; ER 253-55, and advocated that larger penalty

payments be imposed, ER 137-38. CBE could have

sought further administrative review by the California

Water Resources Control Board and judicial review in

the California courts. See Cal. Water Code §§ 13320,

13330. Instead, CBE made a conscious decision to ignore

these comprehensive state remedies. CBE’s choice is

strikingly similar to the circumstances in the Arkansas

Wildlife case, in which the Eighth Circuit concluded

“AWF could have intervened in the administrative process

but instead chose to collaterally attack the enforcement

action through this federal lawsuit. We have no reason

to believe that AWF would have been denied meaningful

participation .. . .” 29 F.3d at 382. The same holds

true for CBE.

Finally, by allowing CBE to maintain another duplica-

tive enforcement action the Ninth Circuit disregards this

Court’s admonition in Gwaltney, 484 U.S. at 60-61, that

states have primary authority and discretion to enforce

the Act.*® In short, the federal court suit at issue here,

which is entirely duplicative of the State of California’s

diligent administrative enforcement action against Unocal

and others, should have been dismissed. Simply stated:

10 See also William H. Rehnquist, Seen in a Glass Darkly: The

Future of the Federal Courts, 1993 Wis. L. Rev. 1, 5-8 (1993):

Federal courts were intended to complement state court sys-

tems, not supplant them.

. . - In determining the proper allocation of jurisdiction be-

tween state and federal courts, we need to view our federal

and state systems as one resource to be used as wisely and

efficiently as we can. By eliminating duplicative effort, unnec-

essary friction and inefficient allocations of jurisdiction, state

and federal systems can contribute to each other’s well being

and the entire system can gain.

14

[T]he goal of all actions brought under the Clean

Water Act is “to restore and maintain the chemical,

physical, and biological integrity of the nation’s

waters.” 33 U.S.C. § 1251(a). Duplicative actions

aimed at exacting financial penalties in the name of

environmental protection at a time when remedial

measures are well underway do not further this goal.

They are, in fact, impediments to environmental

remedy efforts.

North & S. Rivers, 949 F.2d at 556. That is the case

here as wel!l—duplicative citizen suits like CBE’s will

thwart the goals of the Clean Water Act.

CONCLUSION

For the foregoing reasons, amici urge the Court to

grant the petition for a writ of certiorari.

Respectfully submitted,

Scott M. DUBoFF *

JOHN W. HEIDERSCHEIT III

WRIGHT & TALISMAN, P.C.

1200 G Street, N.W.

Suite 600

Washington, D.C. 20005-3802

(202) 393-1200

Counsel for Amici Curiae

American Automobile

Manufacturers Association,

* Counsel of Record et al.