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California v. Department of the Navy

ELR Citation: 16 ELR 20618
Nos. No. C-85-3830-MHP, 631 F. Supp. 584/24 ERC 1177/(N.D. Cal., 04/02/1986)

The court rules that states may not bring citizen suits under §505(a) of the Federal Water Pollution Control Act (FWPCA) or FWPCA §309(d) actions for civil penalties. The court first holds that it lacks jurisdiction under FWPCA §505(a) over a suit brought by California seeking civil penalties for defendant's alleged violations of its national pollutant discharge elimination system permit. Although §505(g) defines citizen as a "person," which is defined in §502(5) to include states, the court concludes that Congress did not intend to authorize states to bring FWPCA citizen suits. The language of §505(b)(1)(B), which would require a state bringing a citizen suit to show it was not diligently pursuing its remedies under the state program, and of §505(b)(1)(A), which would require a state to provide itself with 60 days' notice, suggests that Congress did not foresee that states would be bringing citizen suits. Further, the express authorization in §505(h) for a governor to bring an action against the EPA Administrator over interestate pollution would be superfluous if states could bring suit under §505(a). Allowing states to bring citizen suits is also inconsistent with the overall FWPCA enforcement scheme. The legislative history nowhere mentions the possibility of states bringing citizen suits, but instead reveals that Congress intended the citizen suit remedy to be an alternative when state and federal enforcement fails. The legislative history also suggests that in defining citizens under §505(a) to include persons, Congress may have had in mind the definition of "person" under §1 of title 1 of the United States Code, which does not include states, rather than the definition in §502(5).

The court next holds that it lacks jurisdiction to hear California's suit under FWPCA §309(d), which authorizes suits for civil penalties. While §309(d) does not expressly indicate who is authorized to seek the penalties, the court concludes from its examination of §309(d) as a whole that only the EPA Administrator is so authorized. The creation of liability for civil penalties under §309(d) does not create a right for the state to enforce the liability. This provision does not create a federal cause of action in the states, but merely authorizes a specific form of relief. The court refuses to imply such a cause of action in a statute where Congress has demonstrated that it knows how to provide a federal cause of action when it so desires.

Counsel for Plaintiff
Roderick Walston, Attorney General; Eileen Zanger
Department of Justice, 1515 K St., Suite 511, Sacramento, CA 95814
(916) 324-5437

Counsel for Defendant
Scott E. Slaughter
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-3170