United States v. Packaging Corp. of America

No. G81-289 CA7 (W.D. Mich. June 18, 1982)

The court rules that § 113 of the Clean Air Act authorizes the United States to bring an enforcement action in its own name at the request of the Environmental Protection Agency (EPA). The court first holds that § 113(b) of the Act does not vest sole authority to bring such actions in the Administrator of EPA. Although that section identifies only the Administrator, the broad purposes revealed in the Clean Air Act and its legislative history require that an expanded meaning be given to the statutory language. The court also rules that the United States has standing to bring this action.Standing is conferred by the inherent right of government to go to court to ensure the exercise of its power to protect the general welfare and by the fact that EPA requested it to file suit. Defendant will not be prejudiced by the United States bringing the action in its own name because EPA is directly involved in the suit and will be bound by the judgment of the court.

[The pleadings in this case are summarized at ELR PEND. LIT. 65717 — Ed.]

Counsel for Plaintiff
Thomas J. Gezon, Ass't U.S. Attorney
399 Fed. Bldg., Grand Rapids MI 49503
(616) 456-2404

E. Gail Suchman
Office of Regional Counsel
Environmental Protection Agency, Region V, 230 S. Dearborn St., Chicago IL 60604
(312) 886-6675

Counsel for Defendant
Thomas J. Mulder
Varnum, Riddering, Wierengo & Christenson
800 Mutual Home Bldg., Pearl at Monroe, Grand Rapids MI 49503
(616) 459-4186

Lee E. Larson
Squire, Sanders & Dempsey
1800 Union Commerce Bldg., Cleveland OH 44115
(216) 687-8500

[13 ELR 20200]

Gibson, J.:

Opinion

This action was initiated by the United States of America pursuant to § 113(b) of the Clean Air Act, 42 U.S.C. § 7413(b), seeking civil penalties against the defendant for violations of the Michigan State Implementation Plan at its Filer City, Michigan facility.¹ Defendant Packaging Corporation of America (PCA) has moved to dismiss the action pursuant to Rule 12(b)(6), FED. R. CIV. P., on the grounds that the United States has no standing to commence this action.

PCA bases its motion on the language of § 113(b) which states, in relevant part:

The Administrator shall, in the case of any person which is the owner or operator of a major stationary source, and may, in the case of any other person, commence a civil action for a permanent or temporary injunction, or to assess and recover a civil penalty . . ., or both . . . .

42 U.S.C. § 7413(b) (emphasis added). It is PCA's contention that this language vests sole authority to bring suit under § 113(b) in the Administrator of the EPA. The Government argues that such a suit may also be brought by the United States.

In order to reach a decision on this motion, two questions must be answered. First, does § 113 vest sole authority to bring suit in the Administrator? Second, if this is answered in the negative, does the United States have standing to bring suit under § 113(b)?

PCA argues that the language of § 113(b) is clear and unambiguous — designating the Administrator, and no other persons, as the proper party to bring suit. In other words, PCA relies upon the maxim of statutory construction expressio unius est exclusio alterius.² This approach was adopted by the Court in United States v. Associated Elec. Co-Op., 503 F. Supp. 92 [11 ELR 20240] (E.D. Mo. 1980), in granting a motion to dismiss a suit brought under § 113(b) by the United States.³

This maxim, however, is not to be automatically applied; it has recognized limits of applicability. This maxim loses its persuasive force where its application would construe a statute against well established rules of common law or invade public policy. [13 ELR 20201] These qualifications recognize that if Congress were to desire such substantial shifts in the law, it would say so expressly. In addition,

Where an expanded interpretation will accomplish beneficial results, serve the purpose for which the statute was enacted . . . or is the established custom, usage, or practice, the maxim will be disregarded and an expanded meaning given.

C. SANDS, SUTHERLAND STATUTORY CONSTRUCTION § 47.25 (4th ed. 1973) (citations omitted). The Court's inquiry, therefore, must go beyond the statutory language to determine whether an "expanded meaning" is appropriate.

The stated purposes of the subchapter of the Clean Air Act in question are, inter alia:

(1) to protect and enhance the quality of the Nation's Air Resources so as to promote the public health and welfare and the productive capacity of its population;

(2) to initiate and accelerate a national research and development program to achieve the prevention and control of air pollution . . . .

42 U.S.C. § 7401(b). In addition, the legislative history to the 1970 amendments to the Clean Air Act states explicitly that "[t]he purpose of the legislation . . . is to speed up, expand, and intensify the war against air pollution in the United States with a view to assuring that the air we breathe throughout the Nation is wholesome once again." H.R. REP. NO. 1146, 91st Cong., 2d Sess. (1970), reprinted in 1970 U.S. CODE CONG. & AD. NEWS 5356.

In light of the purpose of this subchapter and the legislative intent behind the 1970 amendments to the Clean Air Act, it is clear that the maxim expressio unius est exclusio alterius should be disregarded and an expanded meaning given to § 113(b).

Our inquiry does not end here, however. It is still necessary to determine whether the United States has standing to bring this cause of action. This Court holds that the United States does have standing.

That the United States has a "non-statutory right" to maintain enforcement actions in certain circumstances is clear. In In re Debs, 158 U.S. 564 (1895), the Supreme Court held that the United States has standing even in the absence of express statutory authorization to seek an injunction in order to prevent a threatened obstruction of the carrying of mail and of interstate commerce generally. This standing was based on the Government's propriety interest in the mail.

The Court then went on to state:

We do not care to place our decision upon this ground alone. Every government, intrusted by the very terms of its being with powers and duties to be exercised and discharged for the general welfare, has a right to apply to its own courts for any proper assistance in the exercise of the one and the discharge of the other, and it is no sufficient answer to its appeal to one of those courts that it has no pecuniary interest in the matter. The obligations which it is under to promote the interest of all and to prevent the wrongdoing of one, resulting in injury to the general welfare, is often of itself sufficient to give it a standing in court.

Id. at 584.

In light of Debs, and the stated purposes of this subchapter, supra, the United States has sufficient interest in enforcing the Michigan SIP to bring suit, at the request of the EPA pursuant to § 305(a) of the Act, 42 U.S.C. § 7605(a) in its own name.⁴

PCA will not be prejudiced by the United States bringing this action in its own name. First, pursuant to § 305(a), the Administrator requested that this action be brought by the United States for the EPA. Therefore, the United States and the EPA are both directly involved in this litigation. Second, any judgment which is binding on the United States is also binding on its subordinate agencies, including the EPA. See Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381, 403 (1940). Accordingly, defendant PCA's motion to dismiss the complaint for failure to state a claim upon which relief can be granted is denied.

IT IS SO ORDERED.

Order

In accordance with the attached Opinion dated June 18, 1982, IT IS HEREBY ORDERED that defendant's motion to dismiss the complaint for failure to state a claim upon which relief can be granted is denied.

IT IS SO ORDERED.

1. Jurisdiction is asserted under 28 U.S.C. § 1345 which grants original jurisdiction to the district courts in "all civil actions, suits or proceedings commenced by the United States . . . ."

2. "That which is expressed puts an end to that which is implied."

3. "From beginning to end . . . this section grants to the Administrator of the EPA the sole authority for enforcing an SIP when the state has not done so. Not a word therein purports to authorize an action other than by the Administrator." 503 F. Supp. at 93-94 (emphasis in original).

Boeing Airplane Co. v. Perry, 322 F.2d 589 (10th Cir. 1963), cited by PCA in support of this proposition, is inapposite. There, the statute in question expressly stated that only a certain class of persons had the legal right to bring suit. 322 F.2d at 591.

4. This Court does not find it necessary to reach the question of whether the United States could bring suit under § 113(b) without a request by the Administrator, or contrary to the Administrator's wishes. But cf. United States v. Associated Elec. Co-Op., 503 F. Supp. at 95.