Arguing for the Defense After Gwaltney
Editors' Summary: In last month's issue, Jeffrey G. Miller analyzed Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., where the United States Supreme Court ruled that plaintiffs in FWPCA §505 citizen suits must make a good faith allegation of ongoing or intermittent violation. Professor Miller suggested that Gwaltney leaves so many important questions unresolved that it constitutes an "invitation to the dance of litigation." This month, we asked practicing attorneys actively involved in citizen suit litigation to give us their views of Gwaltney. The two Dialogues below consider what Gwaltney may mean for citizen-plaintiffs on the one hand, and industry defendants on the other. The authors of the two pieces offer different interpretations of some aspects of the Court's opinion, and recommend arguments and strategies for parties to pursue. The contrast between the two Dialogues foretells some of the issues and arguments that will comprise the "dance" in FWPCA citizen suits.