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United States v. Edwards

ELR Citation: 18 ELR 20126
Nos. No. 80-1038, 667 F. Supp. 1204/26 ERC 1614/(W.D. Tenn., 07/23/1987)

The court rules that civil penalties under the Federal Water Pollution Control Act (FWPCA) do not survive the death of the violator. The court first holds that it is not inequitable to order defendant landowner to restore illegally destroyed wetlands by filling in drainage ditches and removing culverts and levees while the federal government is planning to create similar ditches, culverts, and levees in the same area, because the government has not obtained the necessary easements to pursue its project. The court also holds that an order mandating the restoration of the wetlands is not prohibited merely because other landowners' property in the area will be affected.

The court next rules that the civil penalty provisions of the FWPCA are penal rather than remedial, and that the penalties assessed, therefore, do not survive the death of the wrongdoer. The wrong being redressed in such actions is against the public rather than against an individual, and the civil penalty will be paid to the government and not to an individual plaintiff. The court notes that decisions holding civil tax penalties to be remedial are not persuasive in contexts other than tax cases, because these cases do not use the three-factor analysis established by a later case. The court does not consider whether the penalty for the FWPCA violation is disproportionate to the harm suffered because the value of wetlands is inherently difficult to assess. The position that civil penalties under the FWPCA are penal is further supported by the Act itself and by its legislative history. FWPCA's civil penalties are not intended to pay the cost of restoring destroyed wetlands; the government may obtain an injunction ordering the defendant to conduct restoration at his own expense. Nor do civil penalties serve to reimburse the government for its expenses in investigation and enforcement, since the government cannot recover attorney fees or court costs, and need not seek other expenses when suing for civil penalties. Moreover, statements made in the context of House and Senate debates on the FWPCA indicate that the main thrust of the Act's civil penalty is deterrence. The Environmental Protection Agency's civil penalty policies also indicate that the civil penalty's purpose is to deter violations.

Counsel for Plaintiff
William D. Evans Jr.
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-4170

Counsel for Defendants
T.J. Emison Jr.
Emison & Emison
116 W. Main St., P.O. Box 13, Alamo TN 38001
(901) 696-5541