Puget Sound Air Pollution Control Agency v. United States Veterans Administration Hospital

No. 59-73C3 (W.D. Wash. June 25, 1973)

The Clean Air Act does not create a right in a municipal air pollution control agency to assess civil penalties and attorney's fees against a federal facility for violation of local emission regulations, nor does it constitute a consent by the United States to be sued for injunctive relief against such violations. Even if the Act did authorize injunctive relief, plaintiff's allegations of fact in this case are insufficient to state a claim under the established principles of equity.

Counsel for Plaintiff
Keith McGoffin
Burkey, Marsico, Rovai & McGoffin
818 Yakima Avenue
Tacoma, Washington, D.C. 98405

Counsel for Defendant
Bruce D. Carter Asst. U.S. Attorney
1012 U.S. Courthouse
Seattle, Washington, D.C. 98104

Thomas C. Lee
Department of Justice
Washington, D.C. 20530

[4 ELR 20010]

Goodwin, J.

THE ABOVE MATTER having come on for hearing on the defendant's Motion to Dismiss before the Honorable William N. Goodwin on June 15, 1973, and the defendant being represented by Bruce D. Carter, Assistant United States Attorney, and the plaintiff being represented by Keith D. McGoffin, and the Court having reviewed the memoranda on file and having heard the arguments of counsel, and being fully advised in the premises, to wit:

1. This is an action brought by a municipal air pollution authority established under the laws of the State of Washington against a United States Veterans Administration Hospital. The action purports to be brought under the laws of the State of Washington, and is for recovery of a "civil penalty" of $50.00 for each of two alleged violations of the plaintiff's regulations occurring in December, 1972, for recovery of $500 for damages to the environment and the inhabitants of the area, for injunctive relief pursuant to Chapter 70.94.425 of the Washington statute, and for $2500 "reasonable attorney's fees."

2. The only Federal statute relied upon by the plaintiff as a basis for this Court's jurisdiction of this suit is the Clean Air Act, 42 U.S.C. § 1857 et seq. However, nothing in that statute creates a right in a municipal corporation or any other party to assess "civil penalties" against the United States, its officers, agencies or instrumentalities. Nor can any consent to be sued for "damages to the environment and the inhabitants" be implied against the United States from any provision of the Clean Air Act, including Sections 118, 42 U.S.C. § 1857f, and 304, 42 U.S.C. § 1857h-2.

3. Section 304(e) of the Clean Air Act, 42 U.S.C. § 1857h-2(e), which plaintiff invokes in aid of its claim for injunctive relief, does not constitute a consent to be sued by the United States, but is merely a clause preserving any previously existing statutory or common law rights, and therefore does not support the bringing of an action for an injunction against the United States or Federal facilities. Even if Section 304(a), 42 U.S.C. § 1857h-2(a), is construed to authorize suits for injunctive relief against Federal facilities in violation of local air emissions regulations, plaintiff's allegations of fact are insufficient to state a claim for injunctive relief under any of the equitable principles typically applied to appraise the sufficiency of such claims.

4. Furthermore, plaintiff has not even complied with the jurisdictional requirement in Section 304(b), 42 U.S.C. § 1857h-2(b), of notification to the Federal agencies of the intention to bring an action at least 60 days prior to the commencement of any suit authorized by Section 304. Now, therefore,

IT IS HEREBY ORDERED that the defendant's Motion to Dismiss in the above-entitled cause is hereby granted, and the plaintiff's Complaint is hereby dismissed with prejudice.