Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc.: Invitation to the Dance of Litigation

Jeffrey G. Miller

Editors' Summary: In December 1987 the Supreme Court held, in Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., that citizens could not obtain civil penalties under § 505 of the Federal Water Pollution Control Act (FWPCA) for violations that occurred wholly in the past. The ruling seemingly resolved a three-way split among the federal circuit courts of appeal on the scope of such citizen suits. But the Court's analysis actually leaves a number of questions unanswered, as the author of this Article observes. His examination of the FWPCA's citizen suit provision and the legislative history leads him to conclude that § 505 is not drafted with the precision that the Court ascribes to it. Moreover, the Court's ruling that a citizen suit can be maintained if there are good-faith allegations of continuing or intermittent violations still leaves open many issues with which trial courts will have to wrestle. The author concludes that far from leading to fewer FWPCA § 505 actions, the Court's ruling may well result in additional litigation.

Mr. Miller is Professor of Law at Pace University School of Law in White Plains, N.Y. He is the co-author with the Environmental Law Institute of Citizen Suits: Private Enforcement of Federal Pollution Control Laws.

[18 ELR 10098]

Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc.,¹ resolving a three-way split among the circuits, holds that § 505 of the Federal Water Pollution Control Act (FWPCA)² does not confer subjectmatter jurisdiction over citizen suits enforcing against wholly past violations of the Act. By any reckoning, Gwaltney must be the citizen suit enforcement case of the decade, if not of the century. It was the first citizen suit to top the million dollar penalty mark, with a district court penalty assessment of $1,285,322.³ It may have been the environmental swan song of retiring Judge Merhige, who made his environmental reputation with the largest penalty ever under the FWPCA, in the James River, Virginia, kepone pollution case against Allied Chemical Corporation.⁴ Although Gwaltney was not the first citizen suit case to reach the Supreme Court,⁵ it was the first to reach the Court on purely citizen suit grounds. Its outcome has been anxiously awaited by both the environmental and the regulated communities. Both anticipated that the Court's opinion would have a major impact on the number and importance of pending and future FWPCA citizen suit cases.

The Court's opinion has been hailed by both environmentalists and industrialists as a 90 percent victory for their respective camps.⁶ Aside from the obvious self-interest of each in shaping public perception of the outcome, there is good reason for this double vision. The opinion is far from clear. In the same paragraph of Justice Marshall's opinion, the Court holds both that FWPCA § 505 "does not permit citizen suits for wholly past violations" and that it "confers jurisdiction over citizen suits [for past violations] when the citizen-plaintiffs make a good-faith allegation of continuous or intermittent violation."⁷ In a partially dissenting opinion, Justice Scalia, joined by Justices O'Conner and Stevens, points out the contradictory nature of these two conclusions.

On the face of it, the opinion appears to give more to the regulated community than it does to the environmentalists. It has removed citizen suits for wholly past violations from the district courts' jurisdiction. Just as important, it has raised but not resolved a whole series of subsidiary questions that will prove grist for defense counsels' mills, promising more and harder-fought resistance to other FWPCA citizen enforcement efforts. Indeed, the opinion encourages defense counsel to use every means to delay trial as long as possible. For if the defendant comes into compliance before trial, the opinion suggests several routes by which it can avoid both trial and penalties.

The Court's view of the relevant legislative history notwithstanding, it does not appear that Congress addressed the question before the Court. Indeed, it may be that if Congress had addressed the question, Congress would have answered it differently. At this point, only congressional action can change the outcome. Such action may occur — after all, Congress recently amended the Resource Conservation and Recovery Act (RCRA) to permit citizen suits for wholly past violations.⁸ If Congress does address the question, it also might be well advised to address other issues and ambiguities in FWPCA § 505 and similar provisions in other environmental statutes.⁹

To put the opinion in context, its application is limited [18 ELR 10099] to FWPCA § 505. The ability to enforce against wholly past violations is relevant only if penalties may be assessed for such violations — no other remedy would be appropriate. Of the environmental citizen suit provisions, only FWPCA § 505 and RCRA § 7002¹⁰ provide for the assessment of such penalties. But as pointed out above, RCRA § 7002 now explicitly authorizes citizen suits for wholly past violations.¹¹

Split in the Circuits

The Fifth Circuit

The first of the troika of cases interpreting § 505's application to wholly past violations was the Fifth Circuit's decision in Hamker v. Diamond Shamrock Chemical Co.¹² The plaintiffs in Hamker alleged damages to their property by an oil spill from a one-time break in defendant's oil pipeline. Plaintiffs piggybacked their state common law claim for damages into federal court on the back of an FWPCA § 505 claim. The Fifth Circuit held there was no subject matter jurisdiction for their claim because the authorization in FWPCA § 505(a)(1) to sue sources "alleged to be in violation" required the allegation of an ongoing violation. The Court found support for its literal reading of the verb tenses in FWPCA § 505 in congressional history evidencing a desire that the section not result in flooding federal courts with pendent state common law claims. It also saw no purpose in the requirement of FWPCA § 505 that citizens give notice to prospective defendants 60 days prior to filing suit, unless the prospective defendants could avoid suit by curing the violation.

The one-time spill in Hamker did not pose quite the same issue as the more typical case involving violation of an effluent limitation imposed pursuant to a national pollutant discharge elimination system (NPDES) permit.¹³ In such cases, permittees may be in violation of permit conditions for months or even years until they finally install the necessary pollution control equipment or implement appropriate operation and maintenance programs. The Fifth Circuit stuck to its view of FWPCA § 505, however, when later faced with just such a case.¹⁴

The Fourth Circuit

Although Gwaltney came after Hamker, the Fourth Circuit rejected it. Gwaltney began when environmental public interest groups sued to enforce against violations by a meat packing plant of the effluent limitations in its NPDES permit. The violations had persisted for at least three years. Shortly before the suit was filed, but after notice was given of intent to sue, Gwaltney took remedial measures to end the violations, apparently with complete success. The district court held Gwaltney liable.

Thereafter, Gwaltney filed a motion to dismiss for lack of subject matter jurisdiction on the basis that it had been in full compliance when the complaint was filed. The district court denied the motion on two grounds. First, FWPCA § 505 conferred jurisdiction for actions against wholly past violations. Second, the plaintiffs had made a good-faith allegation that Gwaltney was in violation when the complaint was filed. In the end, the court assessed a $1.2 million penalty against Gwaltney, out of a potential maximum of $6.6 million.¹⁵

On appeal from the denial of the motion to dismiss, the Fourth Circuit affirmed on the basis that FWPCA § 505 conferred jurisdiction to enforce against wholly past violations. The court never reached the district court's alternative reasoning that plaintiffs had made a good-faith allegation of violation. It found the language of FWPCA § 505 to be ambiguous. The present tense phrasing of the language "to be in violation" was not dispositive because FWPCA § 309¹⁶ conferred on EPA the authority to enforce against a person it finds "is in violation" and EPA's authority to seek penalties for wholly past violations was beyond question. Although the Fourth Circuit also found the legislative history to be ambiguous, it found support for its position in a statement by Senator Muskie, the principal author and sponsor of the FWPCA, that § 505 authorized suit against a person "alleged to be or to have been, in violation, whether the violation be a continuous one, or an occasional or sporadic one."¹⁷ The Fourth Circuit considered suits for wholly past violations to be consistent with the policy behind citizen suits and that their utility and deterrent value would suffer if they could not be so used. It distinguished Hamker as being a common law damage case not involving NPDES permit violations and, in any event, rejected its reasoning outright.

The First Circuit

The First Circuit was the last circuit to rule on the issue in Pawtuxet Cove Marina, Inc. v. Ciba-Geigy Corp.¹⁸ In that case, Ciba-Geigy had violated its NPDES permit for some time. Prior to commencement of the action, however, it ceased violating altogether. Indeed, it eliminated its discharge by connecting its outfall to a municipal treatment facility. The district court granted Ciba Geigy's motion for summary judgment on that basis.

The First Circuit affirmed, but steered a middle course between Hamker and Gwaltney, while not once referring to the Hamker decision. Although the court observed that the draftsmanship of § 505 "leaves something to be desired,"¹⁹ it could find no ambiguity in the use of the present tense authorization of suit against sources "alleged to be in violation" of the Act. It did acknowledge the impossibility of the burden of proving that a violation existed at the exact moment a complaint was filed.²⁰ To avoid [18 ELR 10100] that result it construed "is in violation" liberally to include continuing or intermittent violations. And it noted that allegation of such violations would be sufficient to allege a present violation in the complaint, drawing on the analogy of good-faith allegations of the amount at issue in diversity jurisdiction cases.²¹

The Supreme Court's Opinion in Gwaltney

The Court basically elaborates on the Fifth Circuit's rationale in Hamker, while adopting the spin of the First Circuit in Pawtuxet Cove Marina. Justice Marshall began the Court's analysis of the issue by reviewing the language of FWPCA § 505. The Court agreed with the Fourth and First Circuits that "§ 505 is not a provision in which Congress' limpid prose puts an end to all dispute."²² But it found the most natural reading of the language was to require a good-faith allegation that the defendant is in either continuous or intermittent violation, with a reasonable likelihood that the violation will recur.²³ It bases its holding on: 1) the pervasive use of the present tense in § 505; 2) consideration of the tense used in other FWPCA sections; 3) the procedural requirements of § 505; and 4) the legislative history of § 505. Finally, the Court rejected a contention that plaintiffs must prove ongoing violations before § 505 jurisdiction attaches. Its ruminations, however, raise more questions than they answer.

Use of the Present Tense

The Court correctly notes that the use of the present tense is pervasive in FWPCA § 505 and in most citizen suit provisions of other environmental statutes.²⁴ Butthis does not necessarily demonstrate congressional intent that the provision be forward-looking and prospective in application as the Court concludes. Rather, it merely reflects the fact that FWPCA § 505 and other similar provisions were copied almost verbatim from § 304 of the Clean Air Act (CAA).²⁵ CAA § 304 did not and still does not authorize the assessment of civil penalties in citizen suit cases. Indeed, CAA § 113,²⁶ the primary government enforcement provision of the CAA, originally did not authorize the assessment of civil penalties in EPA enforcement cases. Thus, it is a bit much to read the use of the present tense in CAA § 304 as evidence of a grand congressional design for prospective application. Its use of the present tense merely follows from the only relief afforded by CAA § 304: injunctive relief. But in the FWPCA, Congress authorized the assessment of civil penalties both in EPA cases, § 309, and in citizen suit cases, § 505. Its continued use of the present tense in § 505 probably does not so much indicate a desire for prospective application, as it evidences an unthinking copying of CAA § 304 where penalties simply were not an issue.

Consideration of Other FWPCA Sections

Both the Fourth Circuit and the Supreme Court seemed willing to assume that FWPCA § 505 grants EPA authority to pursue civil penalties against wholly past violations.²⁷ This enabled the environmentalists to argue that they should be able to do so as well under § 505, because §§ 309 and 505 both use the present tense in a similar fashion. Indeed, § 309(a) authorizes EPA enforcement action against a person that it finds "is in violation." If the "is in violation" language is not fatal to suits for wholly past violations under § 309(a), why should it be for similar suits under § 505? The argument is even more plausible because § 505(a) authorizes courts to assess appropriate civil penalties under § 309(d), literally incorporating § 309(d) into § 505.

The Court's answer to this argument is that § 309(a), using the "is in violation" language, only authorizes EPA to issue compliance orders and seek injunctive relief, both wholly prospective actions. Section 309(d), however, authorizes assessment of civil penalties against any person "who violates" the Act. This is an entirely freestanding subsection, having no relation to § 309(a).²⁸ There is no freestanding penalty subsection in § 505, as there is in § 309. Section 505 merely authorizes courts to assess civil penalties in those cases where there is subject matter jurisdiction for citizen suits.

Although the Court's answer is plausible, it leaves EPA vulnerable to attacks on its authority in the FWPCA where verb tenses can make a difference and where no such clever technical cure exists. In FWPCA § 308,²⁹ for instance, EPA is authorized to enter, inspect, and require production of records to determine if a person "is in violation of the Act." Can inspections be resisted as to records where present compliance is not an issue? Does EPA's requirement that compliance monitoring records be kept for three years³⁰ exceed its statutory authority? Was Congress' intent in using the present tense to raise these barriers to effective regulation?

Procedural Requirements of § 505

The Court argues that allowing citizen suits for wholly past violations would be inconsistent with the procedural conditions precedent to the commencement of citizen suits: the requirements of 60-days' prior notice and the absence of government enforcement.

Sixty-Day Notice: The Court asserts that citizen suits for wholly past violations would render "incomprehensible" § 505's requirement that citizens give prospective government enforcers and defendants "60 days notice of [18 ELR 10101] their intent to sue."³¹ This follows from the purpose the Court perceives for requiring 60-days' notice to violators: to allow them to avoid suit by complying within the notice period. Based on this purpose the Court concludes that requiring such notice for wholly past violations would be gratuitous because they could not be cured within the notice period.

This argument falls of its own weight. If the purpose of the notice to violators is to allow them to avoid suit by compliance within the notice period, then it is gratuitous in other situations. Where the violations can be cured only by installation of pollution control equipment requiring major construction, compliance in 60 days will normally be impossible. Indeed, compliance within that period by cessation of activity will often be unacceptable, too, especially where the offender is a municipal sewage treatment plant.

The major problem with this argument is the Court's perception that the only reason to require notice to the violator is to allow it to escape suit by compliance within the notice period. The Court cites nothing to suggest this was Congress' purpose for the requirement. Indeed, there is no such suggestion in the legislative history.³² Moreover, the requirement serves other legitimate purposes, even where the violations are wholly past. One is to enable the prospective defendant to convince citizen enforcers that no violation has occurred or that no action against it is justified. Another is to allow theviolator to engage the citizens in negotiation to settle the case without requiring extensive recourse to judicial process.

Indeed, if the notice requirement is read literally, suit may be authorized only for past violations. Notice is required of "the alleged violation." The only violation that a citizen can give notice of is one that has occurred. By the time the notice period has passed, and a complaint is filed, that violation will have occurred quite some time previously. This implies that suit is contemplated for a wholly past violation.

Commencement and Prosecution of Government Enforcement Action: The Court notes that § 505(b)(1)(b) bars citizen suits where EPA or a state has commenced an action "to require compliance."³³ The Court apparently believes this supports its decision because government enforcement against wholly past violations could not be "to require compliance." Of course, it could just as well be argued that government enforcement against past violations does not bar citizen suit against them at all, because such enforcement is not "to require compliance." This provision is a bit of a quagmire either way. That Congress did not use "to require compliance" advisedly here is clear, because the subsection bars citizen suits where either civil or criminal enforcement "to require compliance" has been commenced. Criminal prosecution, of course, is never brought to require compliance. Moreover, the section authorizes citizen intervention in either federal civil or criminal actions to require compliance. Citizen intervention in criminal prosecutions, of course, is without precedent. There could be no better example that § 505 is not drafted with the precision the Court attributes to it.

Legislative History

The Court discusses legislative history to establish that Congress intended citizen enforcement: 1) to supplement rather than to supplant government enforcement; and 2) to be prospective and forward-looking.

Supplement Rather Than Supplant: The Court argues that allowing citizen suits for wholly past violations would "undermine the supplementary role" Congress intended for citizen suits.³⁴ It deduces that citizen enforcement is to supplement government enforcement rather than to supplant it from the bar on citizen suits where government enforcement action has been commenced. It cites legislative history to the effect that Congress envisioned most enforcement to be accomplished by government, not citizens. So far, so good. But the Court then argues that allowing citizen suits for wholly past violations could "undermine the supplemental role" of citizen enforcement, thus undercutting government discretion not to enforce, and changing the role of citizen enforcement from "interstitial to potentially intrusive."³⁵ The Court's fear is that if citizens were allowed to sue for wholly past violations, they might sue a discharger that agreed to cure its violations by means more protective than required by law, while the government had agreed not to sue to encourage the environmentally superior cure.³⁶

The Court could not have considered this part of its opinion to any great extent. The concept that citizen enforcement "supplements" rather than "supplants" government enforcement mixes the specific case with the general case and draws distinctions not apparent on the face of § 505 and not convincingly supported by the Court's arguments. The combination of requiring citizens to notify government of violations and barring citizen suits if government takes enforcement action quite clearly is intended to allow citizens to goad government to assume its enforcement responsibilities and if government does assume them, to allow it to proceed with a minimum of interference. Perhaps in this case citizen enforcement is supplementary. But what if a citizen gives notice and government does nothing? When the citizen enforces, does the citizen enforcement supplement or supplant government enforcement? What if the government ceases to enforce altogether, as it almost did for a time in the Gorsuch years? Does widespread citizen enforcement then supplement or supplant? If it supplants in such circumstances, is that not really just what Congress intended?

If, as the Court feared, citizens can sue to enforce against a violation when the government has made a considered decision not to enforce, how is the government's exercise of its enforcement discretion affected one iota? The government is not asked to and does not have to enforce. To be sure, the facility is left in an embarrassing position, but one that it could have avoided and probably still can avoid. It could have insisted that its agreement with the government be embodied in a consent decree and lodged for entry by the court. This would have precluded a subsequent citizen suit. Even later, it can probably avoid significant penalty by persuading the government to testify on [18 ELR 10102] its behalf. If enforcement is truly inappropriate, the court will take that into account in fashioning a remedy.

The Court's argument has nothing to do with citizen enforcement against wholly past violations. It is more a litany against citizen enforcement generally. The bar against citizen suits when the government takes enforcement action works no differently whether wholly past or continuous violations are at issue. The answer to the question of whether a citizen suit supplements or supplants government enforcement (whatever the difference is) is not different whether the suit is against wholly past or continuous violations. Indeed, in the example used by the Court, the same interference, if any, with the government's decision not to enforce would result from citizen enforcement prior to or after the time the violator finally comes into compliance.

The Court is right in that citizen enforcement can supplant governmental enforcement, but only if government enforcement is wanting. Citizen enforcement can occur when government thinks no enforcement is warranted or that enforcement is not in the public interest. Citizen enforcement can be intrusive. Ask any citizen suit defendant. But these observations have nothing to do with the issue of whether there is jurisdiction for citizens to sue for wholly past violations. They are true whether the violations subject to citizen suit are wholly past or continuing.

Prospective Enforcement: The Court quotes a series of congressional statements that § 505 was to be used to "abate" or "halt" or "obtain an injunction" against pollution.³⁷ These statements merely allude to the injunctive remedy in § 505. They do not determine when actions may be maintained for penalties. Proponents of citizen suits for wholly past violations have often pointed to a statement by Senator Muskie that "a citizen has a right under section 505 to bring an action for an appropriate remedy in the case of any person who is alleged to be, or to have been in violation."³⁸ The Court rightly points out that this partial quotation is taken out of context. In context, the entire statement makes clear that § 505 suits can be maintained against past violations, where the violations are continuous, occasional, or sporadic.

The Court held earlier this term that Congress intended § 309(d) civil penalties to provide for deterrence, retribution, and restitution,³⁹ not for abatement. This indicates the reasons Congress incorporated § 309(d) penalties into § 505. Section 505, therefore, should be interpreted to serve these purposes. The Court did not consider this. Indeed, the result of the Court's decision and its rationale is to decrease the deterrence, retribution, and restitution values of civil penalties in § 505. As they relate to civil penalties, these values are consequences of past actions. Under the Court's interpretation, however, penalties are consequences only of past actions that continue through trial. As such, they may encourage abatement prior to trial, but they do not serve the purposes intended by Congress.

The legislative history simply does not speak to citizen actions for penalties or to whether suits may be brought for wholly past violations. To conclude that it evidences legislative intent that penalties be prospective and forward-looking as the Court does, is reading too much into comments that refer to the injunctive aspects of citizen suits.

Remand for Further Consideration

After holding that § 505 does not confer subject matter jurisdiction for wholly past violations, but does where there are good-faith allegations of continuous or intermittent violations, the Court remanded the case to the Fourth Circuit for further consideration. It then offered guidance on the effect of its ruling that raises more questions than it answers⁴⁰ and from which three justices dissent.

The Court first addressed petitioner's contention that citizens must prove continuous violations before jurisdiction attaches. The Court rejected this summarily, pointing out that at the commencement of a § 505 suit citizens need only allege a defendant is in violation, not prove it. If the allegations are patently untrue, the defendant may be able to prevail on summary judgment. If they are made in bad faith, sanctions may be available under Rule 11 of the Federal Rules of Civil Procedure. If the defendant comes into compliance during the course of the proceedings, it may be able to avoid trial by proving that the violation charged is moot, although it bears a heavy burden to demonstrate the violations cannot reasonably be expected to recur.

The Partial Dissent

Justice Scalia wrote a spirited dissent on these issues. In the end, however, there is less to his differences with the Court than meets the eye. Indeed, even Scalia admits that the positions espoused by the Court and the partial dissenters would not differ greatly in application and would lead to the same results in Gwaltney on remand.⁴¹ The dissent agrees with the majority that a good-faith allegation of a continuous or intermittent violation is enough to invoke subject matter jurisdiction to commence an action.⁴² But it argues that something more is needed to maintain the suit as it proceeds if jurisdictional facts are challenged. What this means beyond the summary judgment stage already addressed by the Court is not clear. However, the dissent would have the court of appeals on remand determine whether Gwaltney was actually in violation when the complaint was filed, not simply whether the allegations were made in good faith.

The partial dissent finally points out that without a violation on the date of the complaint, no injury to the citizens exists to support standing.⁴³ The Court alluded to this issue, but slid by it to a discussion of mootness.⁴⁴ The partial dissent argues that the Court's rationale defining subject matter jurisdiction under § 505 is anomalous because on the same facts plaintiffs may have no standing. Thus, if a continuous violation in fact ends just before a complaint is filed, no injury may exist to support standing, but there still may be sufficient reasons to believe violations will continue [18 ELR 10103] to make a good-faith allegation of continuing violation to support subject matter jurisdiction. But there is no anomaly here. Subject matter jurisdiction and standing are different requirements involving different legal tests. In this case, the ultimate factual inquiry critical to both questions happens to be the same, creating an apparent anomaly.

Indeed, the frustration apparent in the partial dissent's opinion⁴⁵ stems from the fact that in this case an ultimate factual inquiry on the defendant's liability at trial — the truth of the violation alleged as of the filing of the complaint (which could be the only violation alleged or only one of many) — is also a factual inquiry relevant to subject matter jurisdiction and standing. Thus, it is a factual inquiry that may have to await full discovery (since defendant will normally have all the relevant evidence) and trial. Of course, as the Court pointed out, if after discovery there is no factual dispute concerning defendant's argument that it was in compliance on the critical date, defendant should prevail on a motion for summary judgment. If the case has proceeded to trial, the trial court may be able to fashion the proceedings to address this issue first, avoiding trial on other issues if defendant prevails. In any event, there is nothing exotic about the situation as the partial dissenters suggest. It occurs whenever there is a coincidence between the factual inquiry necessary to ultimate liability and jurisdiction or standing. The $10,000 damage required to support diversity jurisdiction⁴⁶ is an excellent example of another such situation, one with which courts deal comfortably on a routine basis. The analogy was clear to the First Circuit,⁴⁷ and was alluded to by the Fourth Circuit;⁴⁸ why it was not seized upon by the Supreme Court is a mystery.

Dangling Issues

While there is room to debate the Court's holding on the allegations necessary to support subject matter jurisdiction, at least that issue is laid to rest. Unfortunately, the Court's resolution of this issue raises new matters to be dealt with by trial courts. What is the likelihood of the continuance or recurrence of a past violation? Was there a sufficient likelihood of continuance or recurrence on the date the complaint was filed to support a good-faith allegation of continuance or recurrence? What are intermittent violations? Presumably they are violations that are not continuous, but are recurrent and result from the same cause. But how much time can pass between them before they lose their "intermittent" character? A day? A week? A month? A year? Five years? It is significant that the continuous and intermittent concept appears to be drawn from Senator Muskie's quoted statement.⁴⁹ But Senator Muskie said § 505 authorized suit "whether the violation be a continuous one, or an occasional or sporadic one." The Court's use of "intermittent" appears to require a closer temporal link than the Senator's "occasional" or "sporadic." But how much closer?

Worse, the Court's holding raises a host of new issues that will have to be addressed in many cases where violations cease somewhere before or during the proceeding. The 5-3 split of the justices on how to resolve some of these issues is indicative of the fertile fields that were created by litigators to plow in FWPCA citizen suit cases. Indeed, the Court has provided a great incentive for defense counsel to raise every issue and use any means available to delay trial as long as possible. If trial can be delayed long enough for the defendant to come into compliance, it can escape from the suit and avoid any penalty.

Once a defendant can prove that it is no longer in violation, it can end the litigation either because: 1) the case is moot (in the Court's view); 2) subject matter jurisdiction ceases to exist (in the partial dissenters' view); or 3) standing ceases to exist (in the partial dissenters' view but not addressed by the Court). But the defendant's facts must be uncontested to do so before trial by motions for summary judgment. Is there a difference whether compliance was achieved before the complaint was filed or during the proceedings? The only practical difference between the two is that a cause of action might survive for penalties if compliance occurred after the complaint was filed. This appears unlikely, however. Under the Court's view, § 505 is prospective and forward-looking, and penalties are subordinate to injunctive relief. Once the need for injunctive ruling is moot, presumably the appropriateness of penalties disappears as well. Of course, the partial dissenters' rationale is cleaner and neater in this regard; once the defendant complies, the plaintiff's standing to maintain the suit and the court's jurisdiction to hear it no longer exist. Moreover, the heavy burden that defendants must bear to establish mootness may keep plaintiffs' claims for penalties alive up to the trial stage.

At this point a host of subsidiary questions arise. If plaintiff alleges violations from more than one outfall and the defendant can establish compliance from one or more (but not all) outfalls, do the plaintiff's claims for penalties from the now-complying outfalls survive? Presumably not. The claims for violation at each outfall are separate and distinct, and rely on different operative facts. Indeed, each outfall could be subject to a different permit. Therefore when an outfall comes into compliance (regardless of the status of other outfalls), the claims regarding the now-complying outfall either become moot, subject matter jurisdiction to maintain them disappears, or standing to maintain them no longer exists.

If plaintiff alleges violations of separate effluent limitations for particular pollutants from the same outfall and the defendant can establish compliance for one or more (but not all) of those effluent limitations, do the plaintiff's claims for penalties concerning effluent limitations with which defendant is now in compliance survive? Presumably not, if the effluent limitations now being violated and now being complied with depend on different pollution control systems or different parts of the same system. In Gwaltney, for instance, the most substantial violations involved effluent limitations for fecal coliform, chlorine, and total Kjeldahl nitrogen.⁵⁰ Improvements in the chlorination system ultimately eliminated further fecal coliform and [18 ELR 10104] chlorine violations. Improvements in the main wastewater treatment system ultimately eliminated further nitrogen violations. If only the main wastewater treatment system had been upgraded and only the nitrogen violations ceased, the nitrogen violations would have become moot (or standing or subject matter jurisdiction to maintain an action against them would cease) because the underlying reason for them had been eliminated. On the other hand, if only the chlorination system had been upgraded and only one of the fecal coliform or chlorine violations ceased, none of the violations would be mooted, because the upgraded system would not be sufficient to accomplish all its objectives. Its ultimate viability may therefore be questioned.

Can penalties be assessed for violations of an expired permit? Suit is authorized against persons in violation of "an effluent violation." That term is defined, among other things, as a permit or permit term that "is in effect." Reading the use of the present tense as controlling, suit appears to be authorized only for violation of an existing permit. What if that permit expires during the course of the proceedings? Does the case then become moot or do standing or subject matter jurisdiction disappear? Does it matter whether the present permit contains the same condition as the expired permit? What if the expired permit continues in force under 5 U.S.C. § 558(c)?⁵¹

Summary and Comment

Use of the present tense in FWPCA § 505 reflects more an unconsidered incorporation of the language of CAA § 304 than a conscious choice to restrict the scope of § 505. Section 505 provides for civil penalties under § 309(d), while CAA § 304 does not authorize penalties. Congress provided civil penalties for deterrence, retribution, and restitution, not for abatement. The former three purposes are backward-looking, while abatement is forward-looking. In consideration of Congress' authorization of civil penalties in § 505, it is more likely than not that Congress intended to enable citizens to sue for wholly past violations. Moreover, strict construction of the tenses used in other sections of the FWPCA creates problems for effective enforcement of the Act, while effective enforcement was one of Congress' chief intentions. Neither the structure nor the legislative history of § 505 sheds much light on the question.

As the Court views it, there are four general cases that describe when enforcement actions can be taken. They are where violations: 1) occurred wholly in the past; 2) cease completely prior to trial; 3) continue through trial and all relate to a presently effective permit; and 4) continue through trial and relate to both a presently effective permit and to an expired permit period.

In the first and second cases, only government can sue and obtain civil penalties. Although citizens can initiate suit in the second case, they cannot ultimately maintain it. In the third case, both government and citizens may initiate suit and obtain penalties for all violations. In the last case, both government and citizens may initiate suit, but only government may obtain penalties for all violations; citizens may obtain their assessment only for violations of the existing permit.

There are three practical effects of this scheme. First, it will reward defendants for taking dilatory tactics that prolong litigation until they comply. Second, it will encourage government to file suits that duplicate citizen suits (or intervene in and possibly expand the scope of citizen suits) to obtain the assessment of civil penalties where citizen-plaintiffs cannot. Lastly, it will lessen the values of deterrence, retribution, and restitution of civil penalties authorized by § 505. The first two consequences are assaults on judicial economy, and could hardly have been intended by a Congress that structured § 505 to avoid burdening the courts with a flood of litigation. The last consequence is hardly consonant with the purposes the Court earlier found to be served by the civil penalty provision of § 309, which Congress incorporated by reference into § 505. Indeed, when viewed from this perspective, the resulting scheme is more complex than rational. There is no evidence that Congress intended it or, indeed, that the Court even considered it.

A myriad of questions abound in the wake of Gwaltney, some of rather general applicability, others peculiar to particular cases. Gwaltney will result in fewer FWPCA § 505 cases being filed. But it can only increase the legal issues, motions filed, and appeals taken in those cases that are filed. Like Congress with the 1986 amendments to the Comprehensive Environmental Response, Compensation, and Liability Act,⁵² the Court, in its more modest way, has been kind to litigating attorneys.

1. 484 U.S. __, 108 S. Ct. 376, 18 ELR 20142 (Dec. 1, 1987).

2. 33 U.S.C. § 1365.

3. Chesapeake Bay Foundation, Inc. v. Gwaltney of Smithfield, Ltd., 611 F. Supp. 1542, 15 ELR 20663 (E.D. Va. 1985), aff'd, 791 F.2d 304, 16 ELR 20636 (4th Cir. 1986), rev'd sub nom. Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., 108 S. Ct. 376, 18 ELR 20142 (U.S. Dec. 1, 1987).

4. The fine against Allied Chemical Corporation for improper manufacturing and disposal practices came to $8 million. See the discussion of this case in HARRISON, ENVIRONMENTAL LAW AUDITING HANDBOOK, ch. 2 (1984). See generally McAllister, Trying Times, Trying Cases, ABA J., Jan. 1, 1988, at 48 (discussion of Judge Merhige).

5. E.g., Middlesex County Sewerage Authority v. National Sea Clammers Association, 453 U.S. 1, 11 ELR 20684 (1981).

6. Taylor, Citizens' Suits in Pollution Cases are Limited, New York Times, Dec. 2, 1987, at A24.

7. 18 ELR at 20146.

8. 42 U.S.C. § 6972(a)(1)(B), ELR STAT. RCRA 033. The section was amended in 1981 to explicitly authorize enforcement against past and present violations.

9. See J. MILLER AND ENVIRONMENTAL LAW INSTITUTE, CITIZEN SUITS: PRIVATE ENFORCEMENT OF FEDERAL POLLUTION CONTROL LAWS, ch. 11 (1987) [hereinafter CITIZEN SUITS].

10. 42 U.S.C. § 6972, ELR STAT. RCRA 033.

11. See supra note 8.

12. 756 F.2d 392, 15 ELR 20385 (1985). Actually, there was an earlier Seventh Circuit case that was quite similar to Hamker in facts and holding, City of Evansville v. Kentucky Liquid Recycling, Inc., 604 F.2d 1008, 9 ELR 20679 (7th Cir. 1979), cert. denied, 444 U.S. 1025 (1980). Evansville was not mentioned by the Court in the Gwaltney opinion and for some reason is often forgotten in describing different approaches to the wholly past violation issue.

13. FWPCA § 402, 33 U.S.C. § 1342.

14. Sierra Club v. Shell Oil Co., 817 F.2d 1169, 17 ELR 20767 (5th Cir. 1987).

15. 611 F. Supp. at 1565, 15 ELR at 20673.

16. 33 U.S.C. § 1319.

17. 118 CONG. REC. 33700 (1972), reprinted in ENVIRONMENTAL POLICY DIVISION, CONG. RESEARCH SERVICE, LIBRARY OF CONGRESS, 1 A LEGISLATIVE HISTORY OF THE WATER POLLUTION CONTROL ACT AMENDMENTS OF 1972, at 179 (1973).

18. 807 F.2d 1089, 17 ELR 20374 (1st Cir. 1986).

19. Id. at 1092, 17 ELR at 20376.

20. Id.

21. Id. at 1093, 17 ELR at 20376.

22. 18 ELR at 20144.

23. Id.

24. Id. In a footnote, the Court points to the 1984 amendments to RCRA § 7002 explicitly authorizing citizen suits against wholly past violations. 18 ELR at 20144 n.2. It contends that this is evidence that Congress knows how to authorize suit against such violations when it so desires. The force of this argument is severely undercut, however, by a later footnote in which the Court observed that the conclusions of a later Congress "are hardly probative of the intent" of an earlier Congress. Id. at 20146 n.4. The notes, both citing the same two pieces of legislation, appear to take different views of the relevance of the latter to interpreting the former. Query whether the same clerk wrote both notes.

25. 42 U.S.C. § 7604.

26. 42 U.S.C. § 7413, ELR STAT. 42216.

27. See 791 F.2d at 309, 16 ELR at 20638; 18 ELR at 20144.

28. Indeed, the Court explicitly held this recently in Tull v. United States, 481 U.S. __, 107 S. Ct. 831, 17 ELR 20667 (1987), where it considered the issue at some length, albeit in a somewhat different context.

29. 33 U.S. § 1318.

30. 40 C.F.R. § 122.41(j).

31. 18 ELR at 20145. Actually, FWPCA § 505(b)(1)(A) requires citizens to give notice of the violations, not of their intent to sue.

32. CITIZEN SUITS, supra note 9, at § 6.1.

33. 18 ELR at 20145 n.3.

34. 18 ELR at 20145.

35. Id.

36. Id.

37. Id.

38. 18 ELR at 20146 (quoting Sen. Muskie, supra note 17).

39. Tull v. United States, 481 U.S. __, 107 S. Ct. 831, 17 ELR 20667 (1987).

40. 18 ELR at 20146-47.

41. Id. at 20147-48.

42. The dissent, however, would avoid the semantic problem of the meaning of "in violation" by equating it with a "state of violation," which would exist until sufficient steps had been taken to cure the violation and the success of those steps had been observed.

43. 18 ELR at 20148.

44. Id. at 20146.

45. I can think of no other context in which, in order to carry a lawsuit to judgment, allegations are necessary but proof of those allegations (if they are contested) is not.

Id. at 20147.

46. 28 U.S.C. § 1332.

47. Pawtuxet Cove Marina, 807 F.2d at 1093, 17 ELR at 20376.

48. Gwaltney, 711 F.2d at 308 n.9, 16 ELR at 20638 n.9.

49. See supra note 17.

50. 18 ELR at 20143.

51. The Administrative Procedure Act provides that when a timely application is made to renew a permit and is not acted upon, the terms of the original permit are extended as a matter of law. See 40 C.F.R. § 122.6.

52. Pub. L. No. 99-499, 100 Stat. 1613, ELR STAT. 44001 (1986).