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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386019_1296%3A3

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1993
- **Citation:** 508 U.S. 946

## Text

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

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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

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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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386019_1296%3A3. Public record. Not legal advice.