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Natural Resources Defense Council v. Southwest Marine, Inc.

ELR Citation: 29 ELR 21189
Nos. No. 96-CV-1492-B(AJB), 39 F. Supp. 2d 1235/48 ERC 1398/(S.D. Cal., 01/28/1999) aff'd

The court holds that environmental groups may seek civil penalties based on allegations of a shipyard's continuing Federal Water Pollution Control Act violations that contribute to specific injuries. The court first holds that Steel Co. v. Citizens for a Better Environment, 118 S. Ct. 1003, 28 ELR 20434 (1998) did not invalidate all statutorily provided civil penalties in citizen suits without exception. Steel Co. did not address the issue of penalties in the context of ongoing violations, nor did it address when civil penalties are requested in addition to other remedies. The court next holds that the groups have alleged sufficient concrete, particularized, and actual injuries to confer standing to bring their case. Likewise, the court holds that the groups have alleged continuing violations that contribute to the alleged injuries. The court then holds that the potential or actual imposition of civil penalties may help remedy the groups' alleged injuries. The alleged malfeasance is immediate and tangible, and the imposition of civil penalties may help stop it.

In addition, the court holds that civil penalties are available irrespective of a grant of injunctive relief. If a plaintiff has Article III standing to seek at least one remedy, that plaintiff has standing to seek other available remedies even if a court would conclude that the same plaintiff would not have standing with respect to an additional remedy otherwise insufficient. The shipyard failed to cite a single case in which a claim for damages in the presence of ongoing violations has been subjected to a separate standing analysis. Moreover, the court's conclusion is buttressed by the wide swath of case law holding that civil penalties are available to a plaintiff even if the issue of injunctive relief becomes moot. And if a plaintiff is able to demonstrate an injury sufficient to meet the standards of Article III, a court should not deliberately undermine the ability to redress those injuries by denying the availability of certain remedies.

[Prior decisions in this litigation are published at 27 ELR 20564 and 29 ELR 20273.]

Counsel for Plaintiffs
Charles S. Crandall
Milberg, Weiss, Bershad, Hynes & Lerach
1800 One American Plaza
600 W. Broadway, San Diego CA 92101
(619) 231-1058

Counsel for Defendant
Steven McDonald
Luce, Forward, Hamilton & Seripps
600 W. Broadway, Ste. 2600. San Diego CA 92101
(619) 236-1414