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Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found.

ELR Citation: 18 ELR 20142
Nos. No. 86-473, 484 U.S. 49/26 ERC 1857/(U.S., 12/01/1987) Vacated & remanded

The Court rules that citizens may not bring suit under Federal Water Pollution Control Act (FWPCA) §505 for wholly past violations, but may bring suit if they make a good-faith allegation of continuous or intermittent violations. The most natural reading of FWPCA §505's provision allowing citizen suits against persons alleged "to be in violation" of an FWPCA requirement is that citizen-plaintiffs must allege a state of either continuous or intermittent violation. The Court compares the FWPCA's language to identical language in several other statutes providing prospective relief only, including the Clean Air Act, the Toxic Substances Control Act, and the Resource Conservation and Recovery Act prior to its 1984 amendments making citizen suits for past violations explicitly available. The Court also compares FWPCA §505 to FWPCA §309, which also uses the phrase "is in violation" and which permits the Environmental Protection Agency to recover civil penalties for wholly past violations. In §309, however, civil penalties are authorized in a different subsection from the subsection that uses the phrase "is in violation," but in §505 civil penalties are authorized together with injunctive relief in a single provision using the phrase. Moreover, the present tense is pervasively used throughout the citizen suit provisions of §505. The purpose of the 60-day notice provision is to give the alleged violator an opportunity to bring itself into compliance and render a citizen suit unnecessary; if citizen suits were permitted for wholly past violations this provision would be gratuitous. Moreover, citizen suits are meant to supplement rather than to supplant government enforcement. If suits for wholly past violations were permitted, the government's discretion to forgo civil penalties in return for exceptionally strong remedial measures by the violator would be undermined, since citizens could later seek civil penalties for the violations despite the agreement between the government and the violator.

Turning to the FWPCA's legislative history, the Court observes that §505 was frequently characterized as a provision for abatement or injunctive relief, and the section was explicitly patterned after Clean Air Act §304, which provides for injunctive relief only. "Alleged to be in violation" is thus a statutory term of art. The Court notes that although Senator Muskie at one point in the legislative history notes that suits may be brought against those alleged "to have been" in violation, the Court concludes that in context the senator was referring to intermittent violators.

Although FWPCA §505 is thus not available for wholly past violations, the Court rules that it does confer jurisdiction over citizen suits when the citizen-plaintiffs make a good-faith allegation of continuous or intermittent violation. The Court notes §505 merely requires that the defendant be "alleged to be" in violation. Defendants are adequately protected from baseless suits by Rule 11 of the Federal Rules of Civil Procedure, which requires pleadings to be based on a good-faith belief that they are well-grounded, after reasonable inquiry by the plaintiff's attorney. Moreover, the need for constitutional standing is satisfied by allegations of ongoing injury, though the allegations may be challenged by defendants in motions for summary judgment, and the citizen-plaintiffs must ultimately prove the allegation of ongoing injury in order to prevail. The case would generally not be mooted by the defendant's compliance with the FWPCA during the course of the litigation, since the defendant would have to demonstrate that it is absolutely clear that the violation could not reasonably be expected to recur. The Court remands the case for a determination whether the citizen-plaintiffs' complaint contained a good-faith allegation of ongoing violations.

A separate opinion by Justice Scalia, joined by two other Justices, concurs in the opinion for the most part but would change the requirement for a good-faith allegation of ongoing violation to a requirement for an actual violation, or uncured readiness to violate again, on the date the suit was commenced.

[Previous opinions in this case appear at 15 ELR 20663 and 16 ELR 20636. Pleadings and briefs are digested at ELR PEND. LIT. 65837 and 65962.]

Counsel for Petitioner
Patrick M. Raher
Hogan & Hartson
815 Connecticut Ave. NW, Washington DC 20006
(202) 331-4500

Counsel for Respondent
James Thornton
Natural Resources Defense Council, Inc.
122 E. 42nd St., New York NY 10168
(212) 949-0049