U.S. v. Texaco, Inc.

Nos. 79 C 3000; 79 C 3110 (409 N.E.2d 299, 16 ERC 1142) (N.D. Ill. January 15, 1980)

In a case combining an enforcement action by the United States against Texaco, Inc., and a related declaratory judgment action by Texaco and several other oil companies against the Environmental Protection Agency (EPA), the court holds that the United States may bring a Clean Air Act § 113 enforcement action without the participation of the EPA Administrator and that the United States is not an indispensible party in an action for review of agency activity under § 703 of the Administrative Procedure Act (APA). The court concludes that although § 113 of the Clean Air Act provides that the Administrator may bring an action to enforce the Act, it does not specify that the Administrator is the only one who may do so. The court notes that the legislative history does not imply that Congress intended to restrict enforcement of the Act and, in fact, suggests it intended to expand it. The court also accepts the oil companies' argument that they may choose their defendants under § 703 of the APA and holds accordingly that the United States is not an indispensible party, noting that the government did not show it would be prejudiced by this action.

Counsel for Plaintiffs
Thomas P. Sullivan, U.S. Attorney
Everett McKinley Dirksen Bldg., 219 S. Dearborn St., Room 1500 South, Chicago, IL 60604
(312) 353-5300

Counsel for Defendants
Jeffrey C. Fort
Martin, Craig, Chester & Sonnerschein
115 South La Salle St., Chicago, IL 60603
(312) 368-9700

[15 ELR 20933]

Crowley, J.:

Opinion

The United States brought this action, 79 C 3000, against Texaco seeking injunctive relief to prohibit Texaco from operating its gasoline loading racks in violation of the Illinois State Implementation Plan and for civil penalties for violation of the Clean Air Act, 42 U.S.C. § 7401 et seq. Jurisdiction is asserted pursuant to 28 U.S.C. § 1345 and 42 U.S.C. § 7413(b).

Texaco, along with three other oil companies, Conoco, Inc., Shell Oil Company and Union Oil Company of California, then brought a related action, 79 C 3110, against the United states Environmental Protection Agency (EPA), the United States EPA Administrator (Administrator), the Director of the Enforcement Division and the Administrator of the Regional EPA. Jurisdiction is alleged under 28 U.S.C. § 1331; 28 U.S.C. § 1337; 28 U.S.C. §§ 551-559 and §§ 701-706, the Administrative Procedure Act, 28 U.S.C. §§ 2201-2202, the Declaratory Judgment Act; and 42 U.S.C. [15 ELR 20934] §§ 7401-7463, the Clean Air Act. The oil companies request declaratory judgment that they are operating in compliance with Rule 205(b)(1) of the Illinois Pollution Control Board Regulations and preliminary and permanent injunctions prohibiting any enforcement action against plaintiffs' Illinois loading terminals. The government responded with an answer, a counterclaim and a motion to substitute the United States for the EPA Administrator.The oil companies moved then to drop the United States as defendant and restore the defendants originally named in the complaint. The government has not opposed either motion and has not filed memoranda in either case. For reasons stated below, Texaco's motion is denied and the oil companies' motion is granted.

The sole issue in United states v. Texaco is whether only the Administrator may bring section 113¹ actions or whether the United States is also a proper plaintiff. Texaco claims that section 113 of the Clean Air Act expressly provides that only the Administrator may bring an enforcement action. It alleges that while other sections of the Act² provide for enforcement by the United States, there is no such provision in section 113. Asserting that Congress intended the Administrator to have sole control over section 113 actions, Texaco contends that when a statute designates the proper plaintiff, no other person may bring suit.³ Finally, Texaco reasons that the Clean Air Act contemplates that the Administrator will have a substantial role in any enforcement action and argues that if the United States is allowed to bring this action, the Attorney General will have complete control of the litigation.

In its complaint the United States alleges that the action was brought at the request of the EPA. Texaco avers that while this procedure was proper under the 1967 Clean Air Act, it is no longer proper after the 1970 amendments which transferred the functions originally vested in the Secretary of Health, Education and Welfare to the Administrator. Texaco reaches this conclusion because the 1967 Act authorized the Secretary to bring actions "on behalf of the United States" while the 1970 amendments provide that the Administrator bring actions in his own name.

The legislative history of the 1970 amendments to the Clean Air Act does not specifically address the questions raised here.However, section 113 does not state that the Administrator has the exclusive authority to enforce the Act and Texaco has cited no cases adopting this interpretation. Nothing in the legislative history implies that Congress intended to restrict enforcement. Indeed, "[t]he purpose of the [amendments to the Clean Air Act] is to speed up, expand, and intensify the war against air pollution." H.R. Rep. No. 91-1146, 91st Cong., 2d Sess., reprinted in 1970 U.S. Cong. & Ad. News 5356.

The United States has an inherent concern for the proper implementation of its pollution programs and, thus, has a "nonstatutory right" to maintain an enforcement action whenever its programs and policies are jeopardized. This right of the United States to bring suit to enforce its policies and programs despite the absence of immediate pecuniary interest or a specific grant of authority has long been recognized. United States v. Arlington County, Commonwealth of Virginia, 326 F.2d 929 (4th Cir. 1964); 14 J. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 3651 at 133-34 (1976). Moreover, the United States has successfully maintained an action for section 113 violations under 28 U.S.C. § 1345. United States v. Interlake, Inc., 429 F. Supp. 193 [7 ELR 20494] (N.D. Ill. 1977). The interests of the United States and the EPA are identical; both seek the control of pollution. The complaint indicates that the Administrator and the Attorney General are both involved in this litigation. Thus, there can be no prejudice to Texaco in permitting the United States to maintain this suit.

The next consideration is whether the EPA and the Administrator may be sued directly or whether the United States is the proper defendant in a suit brought pursuant to the Clean Air Act. Plaintiffs argue that under the Administrative Procedure Act, 4 U.S.C. § 703, they may choose their defendants and need not name the United States. Section 703 provides that ". . . action for judicial review may be brought against the United States, the agency by its official title, or the appropriate officer." It is clear from the language of section 703 that the United States is not an indispensible party in an action for review of agency action. Plaintiff's position that they may determine the proper defendants has been considered by this Court and adopted. Ford v. United States Department of Housing and Urban Development, 450 F. Supp. 559 (N.D. Ill. 1978). See also McEachern v. United States, 321 F.2d 31 (4th Cir. 1963). This view is further supported by the fact that the government has not attempted to show that it will be prejudiced by granting plaintiffs' motion.

Accordingly, Texaco's motion to substitute the EPA Administrator for the United States as plaintiff in 79 C 3000 is denied. The motion to drop the United States as defendant and substitute the defendants originally named in 79 C 3110 is granted.

1. Section 113 of the Clean Air Act, in pertinent part provides:

. . . the Administrator . . . may bring a civil action in accordance with subsection (b).

* * *

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 . . .

* * *

The Administrator may commence a civil action for recovery of any noncompliance penalty . . .

2. Section 204 of the Clean Air Act, in pertinent part provides:

Actions to restrain such violations shall be brought by and in the name of the United States . . .

Section 303 of the Clean Air Act, in pertinent part, provides:

. . . upon receipt of evidence that a pollution source or combination of sources . . . is presenting an imminent and substantial endangerment to the health of persons, and that appropriate State or local authorities have not acted to abate such sources, may bring suit on behalf of the United States.

3. In support of this contention Texaco cites Boeing Airplane Company v. Perry, 322 F.2d 589 (10th Cir.), cert. den. 375 U.S. 984 (1963). The Kansas statute involved in Boeing Airplane Company expressly provided that only the administrator of an estate could bring a wrongful death action. This case has no application here, because although Section 113 states that the Administrator "shall . . . commence a civil action" it does not designate the Administrator as the only party who may bring a section 113 enforcement action.