Amicus Curiae Brief — Magnesium Elektron, Inc. v. Public Interest Research Group of New Jersey, Inc.

No. 92-1516 ? |

IN THE

Supreme Court of the United States

October Term, 1992

MAGNESIUM ELEKTRON, INC.,

Petitioner,

VS.

PUBLIC INTEREST RESEARCH GROUP OF NEW

JERSEY, INC. and FRIENDS OF THE EARTH,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

Courtr OF APPEALS FOR THE THIRD CIRCUIT

MOTION FOR LEAVE TO FILE BRIEF AMICI CURIAE

AND BRIEF AMICI CURIAE OF THE CHEMICAL

INDUSTRY COUNCIL OF NEW JERSEY AND THE

NEW JERSEY STATE CHAMBER OF COMMERCE

IN SUPPORT OF PETITIONER

KENNETH H. Mack

Counsel of Record

STEVEN J. Picco

Picco, MACK, HERBERT, KENNEDY,

JAFFE & YOSKIN

One State Street Square

50 West State Street, Suite 1000

Trenton, New Jersey 08607

(609) 393-2400

Attorneys for Amici Curiae

Chemical Industry Council of

New Jersey and the New Jersey

State Chamber of Commerce

April 14, 19938

No. 92-1516

IN THE

Supreme Court of the United States

October Term, 1992

MAGNESIUM ELEKTRON, INC.,

Petitioner,

VS.

PUBLIC INTEREST RESEARCH GROUP OF NEW

JERSEY, INC. and FRIENDS OF THE EARTH,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

CouURT OF APPEALS FOR THE THIRD CIRCUIT

MOTION FOR LEAVE TO FILE BRIEF AMICI

CURIAE OF THE CHEMICAL INDUSTRY COUNCIL

OF NEW JERSEY AND THE NEW JERSEY

STATE CHAMBER OF COMMERCE IN

SUPPORT OF PETITIONER

The Chemical Industry Council of New Je: sey

(“CIC/NJ"’) and the New Jersey State Chamber of

Commerce (the ‘‘Chamber’’) respectfully move this

Honorable Court for leave to file a brief amici curiae in

this case in support of the Petition for Writ of Certiorari

filed by Petitioner Magnesium Elektron, Inc. The

Petitioner seeks review of the December 15, 1992

decision of the United States Court of Appeals for the

Third Circuit affirming the decision of the United States

District Court, District of New Jersey, dated January 23,

1992, both of which are reproduced in the Appendix of

Petitioner at Al-A32.

Counsel for Petitioner has consented to the filing of a

brief amici curiae by the CIC/NJ and the Chamber, and

the consent letter is reproduced in the Appendix at Al.

Counsel for Respondents Public Interest Research Group

of New Jersey, Inc. and Friends of the Earth did not

consent to the filing of an amici curiae brief.

Amicus CIC/NJ is a trade association comprised of

105 chemical and allied product manufacturers which

have facilities throughout the State of New Jersey.

CIC/NJ’s member companies include bulk and specialty

chemical manufacturers, pharmaceutical companies,

flavor and fragrance manufacturers, as well as

formulators and fabricators. These companies produce a

variety of materials used in agriculture, medicine,

construction, mining, manufacturing, textiles, and in the

cosmetic and food processing industries. The materials

and products are used by industry as well as in the home

and in protection of the environment. Companies

affiliated with CIC/NJ include large operating facilities,

small-scale facilities, research and development centers

and satellite sales offices. There are approximately

2

119,000 people in the State of New Jersey who are

employed in the chemical industry. Its total shipments

are estimated at $20.3 billion annually.

The Chamber serves the business community in the

State of New Jersey by providing a vehicle for political

action and business advocacy through a network of

businesses, local chambers of commerce, and other

community organizations. The Chamber was established

in 1911 and was intended to serve as a liaison between

the public and private sectors and to act as ‘‘the voice of

business”’ in New Jersey. The Chamber currently has

almost 2,000 members and the various chamber

organizations in New Jersey represent over 45,000

businesses. The Chamber supports measures designed to

safeguard the state’s environment that are rooted in

sound science and technology. The Chamber is committed

to presenting New Jersey as a good place in which to

work and to do business. However, the Chamber

recognizes that in order to advocate the advantages of

conducting business in the state, there must be realistic

laws and governmental policies that will encourage

private industry to expand its facilities or relocate to

New Jersey.

Environmental laws and regulations have and will

continue to have a profound impact on the state’s

economy. Thus, environmental issues will remain a

priority of amici. Many environmental laws and

regulations depend on inexact regulatory standards.

Amici believe that regulatory standards should be based

on known health effects, impact on the environment and

common sense.

The fundamental issue raised by the Petition for

Writ in this case is the scope of the constitutional

standing requirements applicable to citizen suit plaintiffs

under section 505 of the Federal Water Pollution Control

3

Act, 33 U.S.C. §1365 (hereinafter the ‘‘Clean Water

Act’). The United States Court of Appeals for the Third

Circuit adopted a reduced 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 a defendant's National Pollution Discharge

Elimination System/New Jersey Pollution Discharge

Elimination System (‘‘NPDES/NJPDES”) permit,

without a demonstration that plaintiff suffered any

injury or that the alleged injury was caused by the

defendant’s conduct.

Amici are directly interested in this case because the

Court of Appeals’ misinterpretation of constitutional

standing requirements for Clean Water Act citizen suits

greatly expands citizens’ entitlement to bring suit under

the Clean Water Act as well as other environmental

statutes. Moreover, the Court of Appeals’ refusal to

follow the “irreducible constitutional minimum”

requirements for standing as set forth in Lujan v.

Defenders of Wildlife, 112 S. Ct. 2130, 2136 (1992)

subjects amici and its members to protracted litigation

even when there is no injury in fact.

The issues raised by the instant Petition for Writ of

Certiorari directly affect amici and raise important

questions regarding constitutional requirements for

standing. This is true not only because amici and 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 may

impact 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 standards previously applied by

this Court, would not have standing to sue.

4

In the accompanying brief, amici address these

broad issues. Amici do so from the perspective of diverse

organizations and industrial entities whose concerns

regarding the decision below transcend this case. Amici

believe that they can effectively contribute to the Court's

understanding of the broader ramifications of the Court

of Appeals’ decision.

In view of the foregoing, amici the Chemical

Industry Council of New Jersey and the New Jersey

State Chamber of Commerce respectfully request that

they be permitted to file the accompanying brief amici

curiae in support of Petitioner.

Respectfully submitted,

KENNETH H. MACK

Counsel of Record

STEVEN J. PICCco

Picco, MACK, HERBERT, KENNEDY,

JAFFE & YOSKIN

One State Street Square

50 West State Street, Suite 1000

Trenton, New Jersey 08607

(609) 393-2400

Attorneys for Amici Curiae

Chemical Industry Council of

New Jersey and the New Jersey

State Chamber of Commerce

EE

TABLE OF CONTENTS

DPameade OF CAPT IN ES: onan condones cee euves i

TABLE OF AUTHURIELOS once iiaeseeee craves iil

I. STATEMENT OF INTEREST OF AMICI

SiS | ree ey rere eee eee l

Il. REASONS FOR GRANTING THE WRIT... = 5

A. Petitioner’s Writ Of Certiorari Should Be

Granted Because The Third Circuit Failed To

Comply With The Mandates Of The United

States Supreme Court...........cseseee8: 5

B. The Court Of Appeals’ Decision Renders

Businesses Within The Third Circuit's

Jurisdiction Competitively Disadvantaged

And Discourages’ Businesses From

Relocating To The Area .................. 7

1. The Third Circuit’s decision discourages

process innovation................... 8

2. The Third Circuit’s decision discourages

improvements to the environment...... 12

C. This Court Should Grant Petitioner’s Writ Of

Certiorari Because A Standing Doctrine

Without An Injury In Fact Requirement

Undercuts A Working Relationship Between

Business And Government................ 13

1. Businesses need a_ predictable

relationship with government because

they need to know who is setting policy. 15

ini

ITI.

ee

ll.

2. Permitting standing without injury in

fact permits policy to be formed by

persons other than those responsive to

Ga I is. « es ute bes 6 Ws Sa ek a

The Third Circuit’s Environmental Group

Exception To Article III's “Irreducible

Constitutional Minimum’ Threatens The

Longstanding Doctrine Of Associational

a rE rer ere eer err eee

Re Cs oS oxy bale cr ky kk Ak ee as

16

ili.

TABLE OF AUTHORITIES

Cases

Allen v. Wright, 468 U.S. 737 (1984).............. 5

Baker v. Carr, 369 U.S. 186 (1962)................ 5

Flast v. Cohen, 392 U.S. 83 (1968)................ 5

Hunt v. Washington State Apple Advertising

Commission, 432 U.S. 333 (1977) ............... 18

Lujan v. Defenders of Wildlife, 112 S. Ct. 2130

EE eek avs Laue S hae tee eres passim

Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).. 6,11

PIRG v. Powell Duffryn Terminals, Inc., No. 84-340

CRP De. ME TR, TOON. wk vi yo vc wenn eds 17

PIRG v. Powell Duffryn Terminals, Inc., 913 F.2d

64 (3d Cir. 1990), cert. denied, 111 S. Ct. 1018

Ss wa ere eee ee ee 6,7,12,16,17

Sierra Club v. Morton, 405 U.S. 727 (1972)......... 18

Warth v. Seldin, 422 U.S. 490 (1975)............. 5,18

Constitutional Provisions

United States Constitution, Article III, §2,

Rr a eee ROR ee aah Co maen passim

Statutes

Clean Air Act, 42 U.S.C. $7604 .................. 4

Comprehensive Environmental Response,

Compensation and Liability Act, 42 U.S.C.

kb Sia ene tera eee Oe meee ne 4

|

iv.

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

oe Ss, ae nee er ree 3

9B UGC. $1810 oo. o ccc ccccccccccsncousncnenes 9

ee Shes Us oo cc he vsi noes eb achdueeeese eee 3,4,9

Marine Protection, Research and Sanctuaries Act,

Pe BH UIE Sa du eee Geka ekeeNi ose eases 4

Noise Control Act, 42 U.S.C. §4911............... 4

Outer Continental Shelf Lands Act, 43 U.S.C.

ares RAR a earner ieee apa a ara nae Gna 4

Resource Conservation and Recovery Act, 42 U.S.C.

ee re rr ere ses 4

Safe Drinking Water Act, 42 U.S.C. §300j-8 ....... 4

Surface Mining Control and Reclamation Act, 30

i SE whcec ein eh oe eh eae ake ee eeek 4

Toxic Substances Control Act, 15 U.S.C. §2619..... 4

Water Bank Act, Public Law, 91-559 = and

PDS heal ee cy ea ere oe waa eae 13

Miscellaneous

Scalia, The Doctrine of Standing as an Essential

Element of the Separation of Powers, 17 Suffolk

ee Me fe) ee ere eee eer eer 14

Supreme Court Rule 10.1(c).... 0... cc cere cece ee 6

PD CUS TON Bt ie 60 6 his a ne de WSS a ees l

ee

No. 92-1516

Supreme Court of the United States

October Term, 1992

MAGNESIUM ELEKTRON, INC.,

Petitioner,

VS.

PUBLIC INTEREST RESEARCH GROUP OF NEW

JERSEY, INC. and FRIENDS OF THE EARTH,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

CouURT OF APPEALS FOR THE THIRD CIRCUIT

BRIEF AMICI CURIAE OF THE CHEMICAL

INDUSTRY COUNCIL OF NEW JERSEY AND THE

NEW JERSEY STATE CHAMBER OF COMMERCE

IN SUPPORT OF PETITIONER

Amici curiae, the Chemical Industry Council of New

Jersey (““CIC/NJ"’) and the New Jersey State Chamber of

Commerce (the “‘Chamber’’), support the Petition for

Certiorari of Magnesium Elektron, Inc., and respectfully

request this Honorable Court to issue a writ of certiorari.

Amici believe that the Third Circuit’s decision in this

case, which affirmed the decision of the United States

District Court for the District of New Jersey without a

written opinion, incorrectly interprets and applies the

requirements for standing embodied in Article III, §2,

Clause 1 of the United States Constitution. Amici

further believe that the lower court opinion ignores this

Court's decisions which define the appropriate standards

for standing in environmental cases. In other words, the

Third Circuit substantially reduced the ‘‘irreducible

constitutional minimum” of standing articulated in

Lujan v. Defenders of Wildlife, 112 S. Ct. 2130, 2136

(1992).

Counsel for Petitioner has consented to the filing of

this brief. See Appendix p. Al. Respondents have not

consented and, therefore, amici have submitted this brief

with a Motion for Leave to File a Brief Amici Curiae

pursuant to Supreme Court Rule 37.2.

I. STATEMENT OF INTEREST OF

AMICI CURIAE

Amicus the CIC/NJ is a trade association comprised

of 105 chemical and allied product manufacturers which

have facilities throughout the State of New Jersey.

CIC/NJ's member companies include bulk and specialty

chemical manufacturers, pharmaceutical companies,

flavor and fragrance manufacturers, as well as

formulators and fabricators. These companies produce a

variety of materials used in agriculture, medicine,

construction, mining, manufacturing, textiles, and in the

cosmetic and food processing industries. The materials

and products are used by industry as well as in the home

and in protection of the environment. Companies

affiliated with CIC/NJ include large operating facilities,

2

small-scale facilities, research and development centers

and satellite sales offices. There are approximately

119,000 people in the State of New Jersey who are

employed in the chemical industry. Its total shipments

are estimated at $20.3 billion annually.

Amicus the Chamber of Commerce serves the

business community in the State of New Jersey by

providing a vehicle for political action and business

advocacy through a network of businesses, local

chambers of commerce, and other community

organizations. The Chamber was established in 1911 and

was intended to serve as a liaison between the public and

private sectors and to act as ‘“‘the voice of business’”’ in

New Jersey. The Chamber currently has almost 2,000

members and the various chamber organizations in New

Jersey represent over 45,000 businesses. The Chamber

supports measures designed to safeguard the state’s

environment that are rooted in sound science and

technology. The Chamber is committed to presenting

New Jersey as a good place in which to work and to do

business. However, the Chamber recognizes that in order

to advocate the advantages of conducting business in the

state, there must be realistic laws and governmental

policies that will encourage private industry to expand

its facilities or relocate to New Jersey.

Environmental laws and regulations have and will

continue to have a profound impact on the state's

economy. Thus, environmental issues will remain a

priority of amici. Many environmental laws and

regulations depend on inexact regulatory standards.

Amici believe that regulatory standards should be based

on known health effects, impact on the environment and

common sense.

The issues raised by Magnesium Elektron, Inc.’s

Petition for Writ of Certiorari are of serious concern and

consequence to amici because, like Petitioner, many of

their member companies and affiliates are regulated

3

under the Federal Water Pollution Control Act, 33

U.S.C. §§1251-1387 (hereinafter the ‘‘Clean Water Act’’).

The fundamental issue raised by the Petition concerns

the requisites for a plaintiffs’ standing to bring a

citizens’ suit pursuant to section 505 of the Clean Water

Act, 33 U.S.C. §1365. The United States Court of

Appeals for the Third Circuit affirmed a standard which

does not require section 505 plaintiffs to establish injury

in fact or causation in order to have standing. That is, a

plaintiff need show only that there was a discharge

permit violation which caused or contributed to some

general concern about pollution. As a result, the Third

Circuit’s standard for citizen suit standing violates the

principles embodied in Article III of the Constitution,

and is inconsistent with this Court’s well-established

requirements for standing. The Court of Appeals’

decision significantly broadens the scope of standing in

Clear Water Act cases and subjects environmentally

inoffensive companies to increased litigation and massive

liability for permit violations which do not and can not

cause any real harm to plaintiffs or to the environment.

The Third Circuit’s decision will also adversely affect

amici’s members in that it will discourage new

businesses from relocating to the area within the Third

Circuit’s jurisdiction and will impede the growth of

industry and business already in the area. This decision

makes the environmental permitting process more

complex and will operate as a disincentive to engage in

innovative activities which may have unpredictable but

innocuous results. Moreover, the decision puts companies

within the jurisdiction of the Third Circuit at a

competitive disadvantage with companies located in

other circuits as well as in the international economy. In

addition, it will interfere with the flexibility and

discretion in the relationship between business and

government by inserting into the regulatory process an

unlimited number of private regulators who are not

4

responsible to the electorate. These unelected legislators

will effect public policy based on personal interests

rather than the public good.

The lower courts’ decisions seriously prejudice amici

and their members. Amici are not just concerned about

the impact of the Third Circuit’s decision on the doctrine

of individual standing. As business organizations that

from time to time advocate the interests of their

members, CIC/NJ and the Chamber are also concerned

about what these less stringent requirements mean for

“associational” standing. Because of the symbiotic

relationship between individual and _ associational

standing, any reduction in standing requirements for

individual members necessarily makes it easier for an

association to file suit on their behalf. By substituting

mere permit violations for demonstrations of injury in

fact, the Third Circuit has substantially reduced the

showing an individual must make in order to file a

citizen suit under the Clean Water Act. Amici find this

reduction in Article III's “irreducible constitutional

minimum ”’ particularly disturbing because the exception

from Article III’s strict standing requirements the Third

Circuit appears to have created for environmental

groups is an exception neither the Third Circuit nor

Congress has any authority to create. The fact that

citizen suit provisions can be found in nearly every

environmental statute serves only to compound amici’s

concern.' Amici therefore request this Honorable Court

to grant the Petition for Writ of Certiorari.

' See, e.g., Clean Air Act, 42 U.S.C. §7604 (Supp. 1991); Clean Water Act,

33 U.S.C. §1365 (1988); Comprehensive Environmental Response,

Compensation and Liability Act, 42 U.S.C. $9659 (1988); Endangered

Species Act, 16 U.S.C. §1540(g) (1988); Marine Protection, Research

and Sanctuaries Act, 33 U.S.C. §1415(g) (1988); Noise Control Act, 42

U.S.C. §4911 (1988); Outer Continental Shelf Lands Act, 43 U.S.C.

§1349 (1988); Resource Conservation and Recovery Act, 42 U.S.C.

§6972 (1988); Safe Drinking Water Act, 42 U.S.C. §300j-8 (1988);

Surface Mining Control and Reclamation Act, 30 U.S.C. $1270 (1988);

Toxic Substances Control Act, i5 U.S.C. §2619 (1988).

5

II. REASONS FOR GRANTING THE WRIT

Standing and the other justiciability requirements

derive from the “case’’ or ‘‘controversy’’ limitation

contained in Article III of the United States

Constitution. This requirement limits federal judicial

power to questions presented in an adversary context,

capable of judicial resolution. Flast v. Cohen, 392 U.S.

83, 101 (1968). That ‘‘justiciability’’ requirement is

essential to the separation of powers which is a hallmark

of our form of government. As this Court has said, case

or controversy doctrines are ‘founded in concern about

the proper—and properly limited—role of the courts in a

democratic society.’’ Allen v. Wright, 468 U.S. 737, 750

(1984) (quoting Warth v. Seldin, 422 U.S. 490, 498

(1975)).

This Court has stated that the ‘Article III doctrine

that requires a litigant to have ‘standing’ to invoke the

power of a federal court is perhaps the most important of

these doctrines.’’ Allen v. Wright, 468 U.S. at 750.

Standing generally requires that a plaintiff have a

sufficient stake in the outcome of the suit. Baker v. Carr,

369 U.S. 186, 204 (1962). The standing doctrine is well-

established and is a combination of constitutional

requirements and prudential considerations.

A. Petitioner's Writ Of Certiorari Should Be

Granted Because The Third Circuit Failed To Comply

With The Mandates Of The United States Supreme

Court.

This Court recently reaffirmed the traditional

constitutional standing requirements in Lujan ov.

Defenders of Wildlife, 112 S. Ct. 2130, 2136 (1992), where

it stated:

[The irreducible constitutional minimum of standing

contains three elements: First, the plaintiff must

have suffered an ‘injury in fact’—an invasion of a

legally-protected interest which is (a) concrete and

6

particularized, and (b) ‘actual and imminent, not

‘‘conjectural”’ or ‘‘hypothetical.’’ ’ Second, there must

be a causal connection between the injury and the

conduct complained of—the injury has to be ‘fairly

... tracefable] to the challenged action of the

defendant, and not ... thle] result [of] the

independent action of some third party not before

the court.’ Third, it must be ‘likely,’ as opposed to

merely ‘speculative, that the injury will be

‘redressed by a favorable decision.’

(Citations omitted.) In direct contravention of these

principles, the Court of Appeals’ decision in this case

eliminates these “irreducible constitutional minimum”

requirements by allowing Respondents to maintain this

action despite the fact that they have suffered no

cognizable injury traceable to the permit excursions.

Further, the test for causation articulated by the Third

Circuit in PIRG v. Powell Duffryn Terminals, Inc., 913

F.2d 64 (3d Cir. 1990), cert. denied, 111 S. Ct. 1018

(1991), adopted by the district court and affirmed by the

Court of Appeals is a meaningless, attenuated standard

which abrogates the redressibility aspect of standing.

It is a well-established principle that this Court is

the ultimate and final arbiter of the Constitution.

Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).

Although divergence in views among the circuit courts is

useful to help this Court focus on the precise issues at

stake, once this Court has spoken and established the

legal principle to be applied, circuit courts are not free to

ignore them. This proposition is emphasized by Supreme

Court Rule 10.1(c), which establishes as a standard for

certiorari the failure to follow an applicable decision of

this Court. Circuit courts may find new fact situations

which justify a departure from a decision by this Court,

or they may find distinguishable facts. But in either

case, circuit courts are—and should be—required to

account for and explain what they did and why they did

it.

7

The Third Circuit’s actions are not justified under

the circumstances of the case. The district court clearly

found standing based on principles that this Court has

found inappropriate. The Third Circuit was obligated to

either reverse or explain any circumstances which, in its

view, justified deviation from this Court’s edict.

B. The Court Of Appeals’ Decision Renders

Businesses Within The Third Circuit’s Jurisdiction

Competitively Disadvantaged And _ Discourages

Businesses From Relocating To The Area.

Judge Aldisert, in his concurring opinion in PIRG uv.

Powell Duffryn, expressed a concern that citizen suit

plaintiffs in Clean Water Act cases can sue simply

because there is a permit violation:

By enacting the Federal Water Pollution Control

Act (“FWPCA’’), especially the provisions that

authorize any ‘person or persons having an interest

which is or may be adversely affected’ to bring a

suit ‘against any person ... who is alleged to be in

violation of [a discharge permit],’ Congress has

expressed its enthusiastic support for the cleansing

of our nation’s waterways. My concern is that this

enthusiasm has led environmental organizations and

citizen/plaintiffs to mistakenly believe they have

standing to sue any time a discharge permit is

violated.

913 F.2d at 84 (citations omitted) (emphasis added).

The Court of Appeals’ decision in this case

effectively allows citizen suit plaintiffs to sue whenever

there is a permit violation. The failure of the Third

Circuit to acknowledge this Court’s ultimate role in

establishing legal principle is of great practical

significance to amici. For example, relaxing standing

requirements in a single circuit can have serious negative

consequences on amici’s ability to compete. The Third

Circuit’s refusal to comply with this Court’s rulings

8

causes amici’s members to suffer disadvantages unique

to the geographical location within the _ circuit’s

jurisdiction. The action by the Third Circuit has created

an uneven competitive “playing field’? among amici

located in the Third Circuit and amici’s national

competitors in other circuits that do follow this Court’s

mandates. Further, this decision discourages process

innovation and responsible environmental conduct in a

global context, which also disadvantages amici

competitively.

1. The Third Circuit’s decision discourages process

innovation.

The Third Circuit’s decision will discourage

businesses such as amici’s member companies from

developing innovative technology because it is often

difficult to predict precisely what discharge parameters

will be necessary when applying for a NPDES/NJPDES

permit. Because of the nature of innovations, “‘technical’’

but otherwise harmless discharge permit violations are

bound to occur. Under the Third Circuit’s ruling,

technical permit excursions will subject companies to

extensive liability regardless of whether the violations

are intentional or cause harm to plaintiffs or the

environment.

Further, the Third Circuit’s decision will make the

environmental permitting process more complicated and

costly since companies will be forced to determine with

absolute certainty what permit parameters should be in

order to avoid extended litigation in circumstances where

accuracy is impossible. Businesses within the Third

Circuit will also be prejudiced in that they are potentially

subject to massive penalties of up to $25,000 a day

under the Clean Water Act for such technical violations.

9

33 U.S.C. §1319(d). Prevailing parties are also entitled to

attorneys’ fees under the Act. 33 U.S.C. 1365(d).’

New Jersey is at the forefront of research and

development in pharmaceutical, robotics,

telecommunications and biotechnology. Therefore, amici

believe there must be a regulatory climate that creates

incentives to build and maintain a skilled technical work

force and expand existing research and development

facilities as well as establish new ones. However, the

Third Circuit’s ruling is inconsistent with those

objectives and will actually have the opposite effect of

discouraging any new and innovative processes which

puts companies at a competitive disadvantage both

nationally and internationally.

The Third Circuit’s ruling will discourage businesses

from relocating to areas within its jurisdiction. This will

adversely effect the overall economy of the region.

Moreover, many companies have already left New

Jersey, taking thousands of jobs out of state. This is

exacerbated by the fact that the permitting process is

more difficult than it would be in another location where

companies’ survival is not threatened by enormous

penalties as a result of technical permit excursions.

Companies must now take into consideration the fact

that they cannot necessarily avoid being subjected to

enormous liability because, even if they are able to

predict process discharge parameters with relative

certainty, it is not always possible to predict natural

occurrences. This is precisely what happened to

Petitioner. Petitioner could not predict, for example, that

the temperature would be higher than is normal for

‘ 33 U.S.C. §1365(d) states in pertinent part:

The court, in issuing any final order in any action brought

pursuant to this section, may award costs of litigation

(including reasonable attorney and expert witness fees) to any

prevailing or substantially prevailing party, whenever the court

determines such award is appropriate.

10

certain periods of the year and that, therefore,

temperature excursions would result. Moreover,

Petitioner could not predict that geese would inhabit its

storage ponds and cause increased levels of total organic

carbon (““TOC’’).

This case illustrates, perhaps better than most, that

enthusiasm to protect the environment is still far ahead

of an understanding of the environment and _ its

complexity. It also illustrates that rules made with the

best of intentions must be flexible enough to allow for

subsequent knowledge and that insistence on the pre-

eminence of the rules can have a negative environmental

impact as well as a negative impact on business.

In this case, the excursions at issue—organic carbon

from migrating Canadian geese, thermal impact from the

sun, and momentary salt excursions—are all testimony

to nature’s unpredictability notwithstanding the best

efforts of man. Both the TOC from the geese and the

“thermal load’’ from the sun were unrelated to plant

manufacturing processes and would have occurred in an

equivalent wetland settling had the plant not been

involved.

Similarly, the salt excursions and_ reporting

anomalies all were caused by the unpredictability of

nature. The salt excursions were due to the inability to

predict the variability of a 30 square mile drainage area

often days after the discharge event; the reporting

violations related to the inability to precisely predict

when excursions occurred. The excursions and violations

were not substantial. Indeed, it was stipulated between

the parties that the salt excursions had no environmental

impact based on a Limnology Study of the receiving

waterway. The reporting violations were a_ technical

matter that never deprived the regulators of the

information they required.

il

All of these violations illustrate two essential points.

First, the ecosystem is complex, well beyond man’s

ability to accurately predict. Second, that prosecutorial

discretion on behalf of the regulators is essential for

businesses to exist in this environment. In a highly

competitive international business climate, innovation in

terms of both process and environmental improvenient is

essential to survival. Allowing unaffected and unharmed

individuals to sue for exceedingly large sums of money

undercuts any relationship between government and

business that otherwise encourages innovation.

It is clear from the numerous disclosures made to the

New Jersey Department of Environmental Protection

and Energy (‘“NJDEPE”’) by the Petitioner concerning

the nature of the excursions, that the NJDEPE had

elected not to prosecute Petitioner for the technical

violations until recently when a_ public relations

campaign initiated by Respondents caused the NJDEPE

to take an enforcement role. Nonetheless, the NJDEPE’s

enforcement actions were tempered by the “reality” of

these excursions—finding them to be ‘unintentional’

and imposing a limited civil penalty.

As this Court has said, the primary role of the

judiciary is to protect individual rights:

The province of the court is, solely, to decide on the

rights of individuals, not to enquire how the

executive, or executive officers, perform duties in

which they have a discretion.

Marbury v. Madison, 5 U.S. at 170. This conclusion was,

in amici’s view, reached for two reasons: the essential

separation of powers, and the fact that courts are often

ill-equipped to make the complex policy choices which

the executive must make and for which it is ultimately

responsible to the electorate. Permitting standing

without “injury in fact’’ as the Third Circuit has done in

this case thrusts the Courts into the role of executive

12

policy making and threatens, as this case illustrates, to

substantially disadvantage amici’s national and

international competitive positions.

Further, there is no cost/benefit relationship for

businesses as a result of citizen suits where there is no

real injury stemming from permit excursions. Businesses

may be more inclined to locate to the area if citizen suit

litigation produced some corresponding environmental

benefit. However, under the Third Circuit’s standard

which does not include injury in fact or redressibility

requirements, business and industry are faced with the

burden of increased litigation and massive penalties

without any improvement to the environment. Therefore,

requiring citizen suit plaintiffs in the Third Circuit to

establish an injury in fact makes good business sense

and good environmental sense.

2. The Third Circuit’s decision discourages

improvements to the environment.

Tragically, citizen suit plaintiffs who seek redress

without injury generally are not concerned about harm to

the environment. Often, such plaintiffs have a less than

meritorious ulterior motive. As Judge Aldisert noted in

Powell Duffryn, these plaintiffs create the lawsuit then

look for plaintiffs:

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.’

Powell Duffryn, 913 F.2d at 84. The reason is that injury

to the environment is not the driving force behind the

litigation. Instead, it is the generation of visibility for

the organization, the competition for dwindling sources

of revenue, and the ability to get legal fees for their law

firms. When injury in fact and redressibility are deleted

from the requirements for standing, these other motives

predominate and tragically, as this case _ illustrates,

concern for the environment comes in last, if at all.

13

There is a clear national policy promulgated by the

Departinent of Agriculture to encourage the development

of wetland habitats for migratory water fowl. See, e.g.,

Water Bank Act, Public Law, 91-559 and 96-182.

Petitioner's effluent storage ponds are—albeit

inadvertently—now serving that very purpose. In

addition, they are doing it in a way that avoids nuisance

to the public, without any showing of harm to anyone.

Respondents seek to have this habitat destroyed by

arguing that Petitioner should have netted or roofed the

effluent storage ponds, or used high volume noise

devices to scare the geese away. Is that really in the

public interest or that of the environment? Nonetheless,

it is how Respondents are trying to make their case for

civil penalties and legal fees and the court is being asked

to make policy choices that should be the province of the

executive.

In fact, Alcan Aluminum Corporation, which is an

affiliate of Petitioner, developed novel wetland treatment

areas at its Oswego, New York plant and at its Logan,

Kentucky operation. The Oswego facility developed a

nature trail in the wetlands area that is the biological

processing area for its oil emulsion. The Oswego facility

would be a similar source of TOC from migratory water

fowl and such projects would be discouraged by suits

such as these despite the environmental benefits.

C. This Court Should Grant Petitioner's Writ Of

Certiorari Because A Standing Doctrine Without An

Injury In Fact Requirement Undercuts A Working

Relationship Between Business And Government.

In Lujan v. Defenders of Wildlife, 112 S. Ct. 2130

(1992), this Court reaffirmed the principle that the core

of the constitutional standing requirement is injury in

fact. The standing requirement is a limitation upon the

congressional ability to confer standing, not upon the

courts, since the courts do not have such authority.

14

Justice Scalia has argued that this is the ‘‘premise’’ upon

which our system operates. See Scalia, The Doctrine of

Standing as an Essential Element of the Separation of

Powers, 17 Suffolk U.L. Rev. 881 (1983).

It is amici’s contention that government agencies

rather than citizen suit plaintiffs provide the appropriate

mechanism to make the policy choices necessary for the

administration of sophisticated environmental laws and

regulations. This is well illustrated by the facts in this

case, where standards initially set with the best of

intentions have through time become irrelevant in

certain respects. As technology develops at an even

greater pace, the regulator and the regulated must

develop even greater flexibility. The adversarial system

by its nature, and the courts by training and limitations

in scientific expertise, are simply unable to respond to

changes with the rapidity required. Moreover, allowing

courts to become formulators of public policy removes

the policy formulation from accountability to the

electorate.

Does this mean that under certain circumstances

laws may be unenforced or underenforced? The answer is

yes, as Justice Scalia noted:

The ability to lose or misdirect laws can be said to

be one of the prime engines of social change, and the

prohibition against such carelessness is (believe it or

not) profoundly conservative. Sunday blue laws, for

example, were widely unenforced long before they

were widely repealed—and had the first not been

possible the second might never have occurred.

Id. at 897. Prosecutorial discretion is _ especially

important when, as here, technical permit violations

cause no harm.

15

1. Businesses need a predictable relationship with

government because they need to know who is setting

policy.

The injury in fact standard is a needed restriction on

who may sue since it dramatically reduces the universe

of potential plaintiffs to a factually distinct group of

potential litigants. Moreover, where there is injury in

fact, there may be redressibility. Absent these limits,

businesses are exposed to an unlimited pool of potential

plaintiffs whose injuries, if they exist at all, are unrelated

to businesses’ actions. The net result, is to undercut

businesses’ relationship with government.

Government agencies charged with enforcing the

laws often have long-term contact with those portions of

the private sector. Through this mechanism, mutual

expectations are developed and understood so the

regulator's behavior corresponds to the _ regulated’s

expectations. As referenced with respect to Sunday blue

laws, failure of the executive to enforce certain elements

of a statute has the normal and expected consequence of

encouraging the conduct. Where, as in this case, the

failure to enforce the regulations is supported by data

explaining that the excursions were anomalies and

harmed no one, the normal consequence would be for the

regulated to develop a level of confidence that this

problem is not a priority requiring attention and will be

addressed through the permit renewal process.

Lawsuits like this one shatter that process. The

flexibility in the enforcement process is eliminated, and a

virtual universe of potential plaintiffs must be viewed as

being in equivalent policy formulating positions which

undercuts prosecutorial discretion.

16

2. Permitting standing without injury in fact

permits policy to be formed by persons other than those

responsive to the electorate.

The standard of injury in fact permits individual

redressibility when one is injured. It protects the

minority’s rights when the majority decides forbearance

is in its interests. However, permitting a party to sue

when uninjured undercuts the fundamental notion of

majority rule by permitting an uninjured minority to

impose its will on a majority disinclined to act. Such

results not only stand the notion of majority rule on its

head, it also raises the specter that minority rule has

always had at its root—a potential that the real objective

of the minority is not the overall interests of the group

but the individual interests of the minority. This case

and Powell Duffryn both illustrate the abuse to which a

minority rule doctrine can lead.

If the majority has chosen not to act in its own

interest and an uninjured minority chooses to act, the

obvious question is ‘‘why?’’ It certainly cannot have the

majority interest at heart, nor can it be credibly argued

that the minority and the courts can better choose what

is in the best interests of the majority. The simple reason

is that the minority is acting in its own interests and

those interests may well be at cross-purposes with the

interests of the majority. This case represents that fact

and portends for amici and their members a potential

deluge of litigation the real objective of which is legal

fees, not the environment or redress of injury.

Both Powell Duffryn and this case illustrate the

plaintiffs’ strong desire to use the system to generate

legal fees. In this case, for example, Respondents

requested attorneys’ fees and expenses in excess of

$41,000 pertaining only to the interlocutory appeal to the

Third Circuit. The Third Circuit reduced that amount by

50% after Petitioners filed a response arguing that

Respondents’ fee request was excessive and

17

unreasonable. Respondents subsequently requested a

panel rehearing of their application for attorneys’ fees

and expenses which was denied.

In Powell Duffryn, the same plaintiffs were

represented by the same law firm and_ requested

attorneys’ fees and expenses in the amount of

$503,501.72. In support of their fee application, PIRG

submitted a 72 page brief, and subsequently filed a 115

page reply brief with a motion to submit an over-length

brief. As the United States District Court for the

District of New Jersey said, ‘‘[t]}hese submissions amply

demonstrate, to put it charitably, the unbridled

exuberance with which PIRG prosecutes their many

actions."’ PIRG v. Powell Duffryn, No. 84-340 (D.N.J.

April 23, 1991). The court also recognized that plaintiffs’

firm has a “reputation for professionally prosecuting

environmental cases on a wholly contingent basis ...”’

Id. The district court decreased the amount requested by

almost 50%, stating that many categories were excessive

and unreasonable.

As time has progressed, companies are becoming

more and more sensitive to their environmental

responsibilities. A large part of amici’s efforts are

devoted to environmental activities. As a consequence,

companies are active in ways that are dramatically

reducing activities that cause injury. Nonetheless, the

more sophisticated the measuring techniques, the greater

the attempts to match discharge limits to the variability

of nature, the more complex production systems and the

greater the change occurring because of the need to

innovate, the more likely that anomalous types of

excursions will occur. With the disappearance of the

‘bad polluter’, law firms such as Respondents’, which

are economically dependent on the existence of the ‘‘bad

polluter’, have a greater incentive to bring lawsuits

for the potential revenues. The levels of the fee

requests in this case and Powell Duffryn illustrate the

economic reality behind this litigation. Without injury in

18

fact as a_ restraint, amici are concerned _ that

environmental litigation of this sort driven by fee awards

alone—‘‘bring the suit find the plaintiff’ in Judge

Aldisert’s terms—will become the order of the day. It

will disrupt businesses’ relationship with government

and subvert the notion of majority rule.

D. The Third Circuit’s Environmental Group

Exception To Article III’s ‘‘Irreducible Constitutional

Minimum” Threatens The Longstanding Doctrine Of

Associational Standing.

This Court has long held that the doctrine of

associational standing is premised, among other things,

on the ability of individual members of the association to

independently demonstrate that they have standing in

their own right. More than twenty years ago, the Court

held that ‘“‘[iJt is clear that an organization whose

members are injured may represent those members in a

proceeding for judicial review.’’ Sierra Club v. Morton,

405 U.S. 727, 739 (1972). Three years later, in Warth v.

Seldin, 422 U.S. 490, 511 (1975), the Court reaffirmed

that ‘“[e]ven in the absence of injury to itself, an

association may have standing solely as_ the

representative of its members.”’ In doing so, the Court

stated certain conditions an association must satisfy in

order to proceed with a lawsuit on behalf of its members.

Id. In Hunt v. Washington State Apple Advertising

Commission, 432 U.S. 333, 343 (1977), the Court

reiterated those conditions, as ‘prerequisites’ to

‘associational standing, ’’ in the form of the following

test:

[A]n association has standing to bring suit on behalf

of its members when: (a) its members would

otherwise have standing to sue in their own right;

(b) the interests it seeks to protect are germane to

the organization's purpose; and (c) neither the claim

asserted, nor the relief requested, requires the

participation of individual members in the lawsuit.

srr I A RO aaa

19

The rationale for associational standing is that the

association acts merely as an extension of its individual

members who have standing to sue in their own right.

The relationship between the association and _ iis

membership requires a demonstration of individual

standing before an association can assert its members’

rights. As a result of this symbiotic relationship, any

reduction in standing requirements for individual

members necessarily makes it easier for the association

to advocate on their behalf.

The Third Circuit’s refusal to scrutinze individual

allegations for immediate or threatened injury in fact

substantially reduces the showing an individual must

make in order to file a citizen suit under the Clean Water

Act. This effectively creates an environmental group

exception to Article III’s rigorous standing requirements

that gives groups like PIRG and FOE—which have no

standing in their own right—an unconstitutional free ride

to bring a citizen suit. Mere allegations of permit

violations without any accompanying showing of actual

harm cannot substitute for the demonstration of

individualized injury required by this Court.

The Third Circuit’s creation of an environmental

group exception to Article III is supported neither by

the Congress—which has no authority to enable persons

who have not suffered a concrete harm to file suit in

federal court—nor the Constitution, which demands

compliance with Article III from all plaintiffs regardless

of whether they are seeking individual or associational

standing.

20

III. CONCLUSION

For all of the foregoing reasons, amici respectfully

urge this Court to grant the Petition for Writ of

Certiorari.

Respectfully submitted,

KENNETH H. MACK

Counsel of Record

STEVEN J. Picco

Picco, MAcK, HERBERT, KENNEDY,

JAFFE & YOSKIN

One State Street Square

50 West State Street, Suite 1000

Trenton, New Jersey 08607

(609) 393-2400

Attorneys for Amici Curiae

Chemical Industry Council of

New Jersey and the New Jersey

State Chamber of Commerce

Al

APPENDIX

\

ALCAN ALUMINUM CORPORATION ty

ALCAN °°

100 Erieview Cleveland, Ohio 44114-1878

Mailing Address P.O. Box 6977, Cleveland, Ohio 44101-1977

Telephone: 216/523-6800

Direct Dial No. (216) 523-6918

Direct Fax No. (216) 523-6999

April 2, 1993

Kenneth H. Mack, Esquire

Picco, Mack, Herbert, Kennedy,

Jaffe & Yoskin

One State Street Square

50 West State Street, Suite 1080

Trenton, New Jersey 08607

Re: PIRG v. MEI

Dear Mr. Mack:

This letter will confirm that counsel for Petitioner,

Magnesium Elektron, Inc., consents to the filing of a

brief amici curiae by the Chemical Industry Council of

New Jersey and the New Jersey Chamber of Commerce.

Very truly yours,

/si LAWRENCE A. SALIBRA, II

Lawrence A. Salibra, II

Senior Counsel