GWALTNEY v. CHESAPEAKE BAY FOUNDATION

Transcript: 

ORAL ARGUMENT OF E. BARRETT PRETTYMAN, JR., ESQ. ON BEHALF OF THE PETITIONER

Chief Justice William H. Rehnquist: Cause Number 86-473, Gwaltney of Smithfield v. Chesapeake Bay Foundation, Inc.--

Mr. Prettyman, you may begin whenever you're ready.

Mr. Prettyman: Mr. Chief Justice, and may it please the Court:

This case is here on certiorari to the 4th Circuit Court of Appeals and it involves the question of whether citizens can sue for purely past violations as opposed to ongoing violations under the Clean Water Act.

Congress has set up a rather interesting dual system of regulating effluent discharges into the nation's waterways.

The states adopt these plans, which are approved by the Administrator of EPA, the states issue permits, which set forth the effluent limitations and standards under which the permit holders can discharge, and then to demonstrate that he is operating within the ambits of his permit, the discharger is required to constantly test the effluents and to fill out DMRs or discharge monitoring reports which are on public file and which anyone can go see.

These DMRs show on their face when the permit holder is operating within the parameters of the permit and they also show on their face if, in fact, the discharger is exceeding those limits.

Thus, citizens groups like Respondent can review these DMRs on the public record and then give sixty day notice if they're going to sue for alleged violations and if the suits are not settled, then you... they can collect $10, 000 a day, which has now been upped to $25,000 a day, except when I say collect, I really mean that that money, of course, goes to the United States and not to them.

They allege in their allegations the permit holder to be in violation.

They usually attach these DMRs to their complaints and as I say, in theory at least, the recovery goes to the United States.

When Gwaltney of Smithfield purchased a meat rendering and packing plant from ITT toward the end of 1981, it found after the purchase that it had inherited some problems, principally with the biological treatment system.

Unidentified Justice: It had no prior knowledge?

Mr. Prettyman: They did have knowledge that ITT had had problems.

They thought the problems had been solved.

They found after they purchased that the problems had not been solved.

These problems involved primarily chlorine, fecal coliform, and total kjeldahl nitrogen or TKN, and it thereafter experienced various excedences and various parameters of its permits.

However, it then installed two new systems and it's undisputed that all of the excedences had, in fact, stopped prior to this suit.

The Court of Appeals so held.

It was so stipulated between the parties and the Respondents even conceded in their question presented before this Court that this case involved only past violations.

First, as to chlorine, I'll touch on these just briefly, as to chlorine, we have found many problems in installing a new automatic chlorinator, but that finally fell into place in October of '82, so that there were no excedences for some twenty months or almost two years prior to the trial in this matter.

With the exception of start-up excedences, which I'll talk about a little bit more later, the same is really true for fecal coliform; that is, that they substantially ended in 1982.

We had more problem with the TKN and had to install largely a new system and there were various fits and starts, including six-month delay by the State Water Control Board itself, but the system was finally approved by the state and it began operation in October of '83 and it was fully on line in December.

So that the only TKN excedences between then and--

Unidentified Justice: Is that a coined word or something?

Mr. Prettyman: --Yes, Your Honor.

It's the alternative to violation because if you use violation, there seems to be some import--

Unidentified Justice: Is it coined for this industry or something?

Mr. Prettyman: --Pardon?

Pardon me?

Unidentified Justice: Was it coined for this statute?

Mr. Prettyman: No, It is my understanding it is regularly used in the industry.

It's not just for this case.

What it means is, Your Honor, that you have exceeded the limits in your permit, but an excedence, of course, could be a permissible upset or could be for other permissible reasons.

Therefore, it's not necessarily a violation.

And as I was saying, the excedences here, as far as TKN is concerned, were the unavoidable start-up excedences before suit.

The District Court held that there is no way to start-up a biological treatment system without violations.

But the important point here, really, to focus on is that the last fecal coliform excedence was four months before suit, TKN was a full month before suit, and, of course, the chlorine was twenty months ago.

So, the case comes to you with the rather pristine question of whether citizens can sue for purely past violations, those which have abated prior to suit.

The Court of Appeals held that they can.

We say that they can't.

The Solicitor General interprets the Act as we do, as to past violations.

We disagree with him only in respect as how he interprets the word "alleged" in the statute and, therefore, with his recommended disposition.

Unidentified Justice: Mr. Prettyman, did the District Court have an alternative holding below that there were continuing violations?

Mr. Prettyman: What it had, Justice O'Connor, was--

Unidentified Justice: I was under the impression that it did, and that that holding was just not reviewed by the Court of Appeals.

Mr. Prettyman: --That alternative holding, which was in a footnote, was that even if you couldn't sue for past violations, that there was a good faith allegation of on-going violations.

I would emphasize in regard to that, first of all, as you point out, the--

Unidentified Justice: So, even if you were right, what, at best, what would happen?

It would be vacated and remanded so that that could be considered?

Mr. Prettyman: --Well, if you reach that question because you don't have to reach it, of course, if you reach that question.

I would certainly think you would want to remand to the Court of Appeals for its consideration, but you shouldn't have to reach that question at all because in view of the fact that it is quite clear, both from the facts, the holding and the stipulation, that everything had stopped, had abated prior to the suit, it really didn't make any difference whether the allegations were good faith or not.

Unidentified Justice: Well, unless the trier of fact thought that there was, indeed, a likelihood of some continuing problem, for example, with the TKN-type discharge.

Mr. Prettyman: In that regard, Justice O'Connor, I wonder if I could call your attention to Footnotes, I think they are, 25 and 26 of the District Court's opinion because he very well addressed those particular matters.

25 and 26, where he, in effect, said some question has arisen as to whether these problems would continue, but I regard that as entirely too speculative to find.

He, in effect, holds in these two footnotes that the problem has entirely ceased and I want to point out to you that the Respondents are not here arguing anything about good faith allegations or that these were on-going violations.

What they are here arguing is that they can sue for past violations period.

They posed the suit because--

Unidentified Justice: Mr. Prettyman, can the EPA Administrator bring a civil penalty action for purely past violations?

Mr. Prettyman: --That is an interesting question, and we really don't know the answer to that yet.

The Government said yes, but it's interesting that xx--

Unidentified Justice: The language is the same.

Mr. Prettyman: --No, With great respect, Your Honor, it is not the same.

The language in regard to the Government is in Section 309 or 1319, and the language is quite different.

It is so different that the Government, when it seeks to bring a suit for past penalties, doesn't even rely on this statute.

It relies on the judicial code.

Unidentified Justice: The Government relies on statutes outside because of the similarity of the language perhaps.

Mr. Prettyman: Right.

And the reason they do that is the language is really not clear in this statute itself as to whether... it's a very convoluted statute when it comes to the Government's rights, but certainly even if the... the point I want to make is that even if the Government can sue for past violations, it is quite clear that the language and the rights are very different from those that relate to a citizen and the Solicitor General is very strong on that point, that he does not believe for a moment that a citizen has the same rights as, and comes under the same language as, the Government does.

Unidentified Justice: Mr. Prettyman, the language governing private civil actions doesn't say has violated, but it doesn't say is violating either.

It says is in violation of.

Mr. Prettyman: Yes.

Unidentified Justice: Now, that, it seems to me, means something quite different from is now violating.

If you're caught by radar exceeding the speed limit and a police car pulls along side you after you realized that you've been caught and you've lowered your speed, he doesn't say into your window, you are violating the speed limit, you were violating it five miles back.

He will say, you know, you were in violation of the speed limit.

Mr. Prettyman: That would be very fair, Your Honor, if that's all the further we went, but the fact is that this statute, two things go to that.

First of all, this statute uses the present tense in at least four other places in this same 1365.

Unidentified Justice: But the present tense speaking of a status, the status of being in violation.

Now, what if I think that that status means you violated it in the past and you haven't done anything that seems likely to eliminate that possibility of violation in the future?

What if I considered that to be what in violation of means?

Mr. Prettyman: You may then be engaged in an on-going violation and, in fact, under our definition, you may be able to xx because an on-going xx present non-compliance because of a failure to correct an underlying difficulty, and if you have in fact, violated for several times, you have done nothing about it, and the suit is brought, that may be an on-going violation, may be perfectly proper to sue.

That's not what happened here.

In this suit, what happened was there were a series of excedences and we did something about it.

We put in place with a new systems which were supposed to deal with it.

After the systems were in place, we had unavoidable start-up excedences, which could not be avoided, the District Court so held, they were no more normal, the District Court again held, than you would expect in an ordinary xx the xx end of this, knowing that the situation had abated, knowing that it had been corrected and had come to a close, that Respondent come in and sue.

Unidentified Justice: Is had knowledge clear?

You said that the last violation, the TKN violation was, excedence, if you want xx way was one month before suit was filed.

But at the time suit was filed was it clear that the new equipment you had put in would do the job?

Mr. Prettyman: I don't think there's any question about xx An the District Court ultimately held and the xx pointed out to you and where he said we were xx compliance and also.

Unidentified Justice: I didn't ask whether you were; I asked was it clear at the time that the suit was filed that the new equipment was effective to do the job.

Mr. Prettyman: I think so, and this is the reason that I say so, Your Honor.

First of all, they knew that the new equipment had been put in Secondly, they knew that it had been completed.

They attended a meeting in March of the State Water Control Board at which this was discussed, and the State Water Control Board said, look, we've seen it, it looks to us like you're getting this thing under control.

There's no need for any further action.

Then, there were some unavoidable start-up excedences.

I keep emphasizing that because you cannot start a new plant, much less fix an old plant, without having some of these unavoidable start-up excedences.

Unidentified Justice: But the fact it's unavoidable doesn't get you off the hook.

I mean, the statute doesn't require negligence or wilfulness to make it an excedence.

Mr. Prettyman: Well, let me say two things to that, Your Honor.

First of all, even the unavoidable start-up excedences had ceased prior to suit, but, secondly, even if they had been going on, it may well be that a start-up excedence would be a past violation that, for example, the state could xx after.

But by definition, it cannot be an on-going violation.

An on-going violation is something where something is going on because of a problem and you are not fixing it, you are not doing anything about it.

This is a situation where we've done everything about it.

We put in a new system.

We spent $265,000 putting it in.

It is now... the crust is starting to form on the lagoon which takes a long time.

That's a problem getting that into shape, and those excedences cannot possibly constitute an on-going violation by their very nature.

They are the tail-end of abatement.

The whole purpose of the statute is abatement.

The statute, you've got to remember, follows directly upon the Clean Air Act, and the Clean Air Act, as you will recall, had only an injunctive provision in it, and it related only to compliance, only to on-going, only to abatement.

The one thing that this statute added to the Clean Air Act was the remedy of penalty, and that, by adding the penalty, what, it seems to me, Congress clearly did was to say we're going to add an extra incentive for you to stop sooner because by saying that you're going to get penalties and not just an injunction, it becomes very much to your advantage to stop at the earliest possible moment during the sixty-day period, for example.

You get your sixty-day notice.

If you can abate in there and stop, you have avoided your penalties and that's what the Act is entirely about.

Unidentified Justice: Well, Mr. Prettyman, what's the test for violation and to get into court in this citizens suit?

You don't really take the position, as I read your brief, that there has to be a violation on the day the suit is filed.

Mr. Prettyman: Correct.

I'm not sure I can define it any better than I did a little while ago, and that is present non-compliance for failure to correct the situation.

Our definition would be that if there... the 5th Circuit pointed this out in Sierra Club v. Shell Oil that you can't just take an excedence here, an excedence there, and kind of bunch them all together and say this is an on-going violation.

What you do is you kind of look behind them and you see is there a reason for this, is it on-going, do you have here somebody who has just turned off the spigot in order to avoid a suit, is it a periodic episodic violator who is just trying to avoid suit.

In other words, the District Court can look at the facts very much as he does in a regular injunction proceeding to determine whether there is a problem which is creating excedences which you have not corrected, you have not done anything about.

If you have not, then it is an on-going violation.

Unidentified Justice: And if there's any question about the efficacy of the so-called correction, is that something that would xx the citizen to sue and litigate about?

Mr. Prettyman: Might well.

Now, for example, let's suppose you have taken some action, but it's the improper action, it's ineffective action, it's not enough action, it won't work, that's something that the court would be entitled to look to to see whether, in fact, there is an on-going problem that you have not properly addressed.

Unidentified Justice: So, possibly, the Plaintiffs below had at least that much of a complaint with regard to the TKN problem.

Mr. Prettyman: With great respect, Justice O'Connor, that just isn't possible in this case because they knew that we had installed a system.

They knew that the system had been approved by the state.

They knew that thereafter the state met and said we think we've got this under control.

They knew--

Unidentified Justice: Mr. Prettyman, didn't the District Court find, I think this is the word they used, that the attempt to correct was lackadaisical and exceedingly unconcerned attitude toward correcting anything, and in the thirty-one months prior to the suit, the plant was in compliance with permit conditions only four months?

Mr. Prettyman: --That, Your Honor, related to the prior period, when we were still wrestling with getting this whole thing into place, and we may well have been in violation, in an on-going violation at that time.

It may be that we could have sued at that time, but he's not referring to the later period where, if you'll see, I think this Joint Appendix 115, in that area, where he says that at the end, which is the period we're talking about, just before they brought suit, these were unavoidable and were anticipated.

As a matter of fact, in all the plans that the state had looked at prior to that, they had always put in a period for excedences after the system went into effect because they knew that even after you put the system into effect, you're going to have a period of excedences that you can't avoid.

Unidentified Justice: Mr. Prettyman?

Mr. Prettyman: Yes, sir.

Unidentified Justice: If they put it in twelve months ahead of time, they wouldn't have had that problem, would they?

Mr. Prettyman: If they had put the new system in before they did, it would have stopped sooner?

Unidentified Justice: Yes.

Mr. Prettyman: There's no question about that, Your Honor, and I'm not--

Unidentified Justice: There would have been no possibility of filing a suit.

Mr. Prettyman: --That's--

Unidentified Justice: But they didn't.

Mr. Prettyman: --Well, I wouldn't say that there's no possibility of filing a suit, depending upon how quickly they did it and what xx but this suit is not about, and even Respondents do not say it is about, whether the penalties were correct, assuming that penalties should be issued because we didn't move quickly enough.

What the suit is about is whether you can get penalties at all for purely past violations as--

Unidentified Justice: Mr. Prettyman, suppose there is an on-going violation under your own definition at the time the suit is filed, but within two or three months, the whole matter is cleared up, now, you would say the suit was proper at the outset, but does it then... should it then be dismissed when there is compliance?

Mr. Prettyman: --If there was jurisdiction at the time that the suit was brought because there was an on-going violation at that time, the District Court got jurisdiction.

Unidentified Justice: Got jurisdiction and the citizens suit was proper at that time.

Mr. Prettyman: Correct.

Unidentified Justice: What happens then when there is compliance?

Mr. Prettyman: Well, first of all, I assume if he was satisfied with the compliance, he would not issue an injunction, but he may well issue penalties.

Unidentified Justice: For what?

Mr. Prettyman: For the period up until the time that they stopped.

Unidentified Justice: Why could he... well, why should he be able to issue penalties for violations prior to the filing of the suit?

Mr. Prettyman: Because, Your Honor, at the time the suit was filed, there was jurisdiction and the reason that there was jurisdiction was that this statute required an on-going violation at the time suit was filed and in your hypothetical, there was an on-going violation.

Unidentified Justice: So, you essentially agreed with the Government in that regard?

Mr. Prettyman: Absolutely.

The Government and we are very close on our interpretation of that, and perhaps I ought to turn then to one difference between us and the Government before I come back to other matters.

Unidentified Justice: Mr. Prettyman, I take it your answer to one of Justice White's questions, however, is, or is it, that under those circumstances, the District Court should dismiss the complaint?

Mr. Prettyman: No.

Unidentified Justice: Jurisdiction and then there was compliance, what happens to the lawsuit?

Mr. Prettyman: No.

What I would say under those circumstances is that he should not issue an injunction if he's satisfied that there is true compliance and abatement, but that he may well decide to issue penalties because he had jurisdiction at the time that the suit was brought.

Now, I want to say just one thing before I get to this business of allegations.

I just want to point out to you that, really, this statute makes no sense if you're going to treat it as going to past violations.

Let me just give you two brief examples.

The citizen would be giving notice of something that's already abated.

All the courts that have looked at this agree that one of the purposes of giving sixty-day notice to the permit holder is to allow him to get himself into shape and to abate, to get rid of the problem.

Here you have a situation where somebody is suing for penalties five years old, maybe fifteen years old, because we don't know what the statute of limitations is.

There is none in the statute.

So, you're suing for fifteen years old and you're giving the man sixty days notice for what?

It doesn't make any sense.

The only thing that makes sense is that you're giving him sixty days notice of an on-going violation.

One other example.

The citizen couldn't sue for past violations when the Administrator is already suing for on-going violations.

I realize this is a little difficult, but if you will look at the language in 1365, you will see that what it says is that when the Administrator is actively prosecuting a suit for compliance, the citizen can't come in and sue.

Now, the only way that makes any sense at all is if they're both trying to sue for the same thing; that is, the citizen is trying to sue for an on-going violation, and the Government is suing for an on-going violation.

If you have the citizen stopped from suing for past violations because the Government is suing for present or the Government is not suing for present and they are both suing at the time, same time, for past, it doesn't... the statute doesn't hang together.

It makes no sense.

But let me move then to the one point of difference between us and the Solicitor General, and that is this business of the allegation.

He puts a great deal of stress on the word "alleged", and he feels that a good faith allegation of on-going violation gets the citizens past the jurisdictional requirements of an on-going violation.

Now, I want to emphasize, as we've already pointed out, that the Court of Appeals never passed on this, and that even the District Court said that the good faith allegation related only to TKN and, Justice O'Connor, TKN was the smaller part, as you know, of the award.

A million dollars was for chlorination, which stopped twenty months before.

But even as to TKN, that's very confusing because the Government concedes that once you make an allegation and we contest it under 12(b)(1), the Court can go behind it, and all we're saying is here you xx allege all you want to that something is on-going but if, in fact, we challenge you, you have the burden of proving that it's true.

This is true in any kind of a suit.

It's true in a suit where I file a suit against you on diversity grounds in Pennsylvania and I attach all of your prior reports to show you were there and you file a motion dismissing saying I'm sorry I moved into your state of Maryland since my last report.

Unidentified Justice: Isn't the Government's position that it should apply something like Rule 11 of good faith belief?

Mr. Prettyman: Yes, but look what that does, Your Honor.

Someone who files a group of DMRs just as someone who files your last ten quarterly reports would, in good faith, believe that we are in the midst of an on-going violation or that you are located in Pennsylvania.

But if that is attacked and, in fact, you have moved from Pennsylvania into Maryland and if, in fact, our violations have come to a halt prior to suit, they have been abated, they have been cleaned up and stopped, which is the purpose of the Act, then all we're saying is that you can't go ahead with a suit where a mere allegation gets you to trial.

If the allegation is wrong, it doesn't make any difference what your good faith is, it is wrong.

I see I don't have much time left, and if I could, I'd like to save just a few moments for rebuttal.

Thank you.

Chief Justice William H. Rehnquist: Very well, Mr. Prettyman.

We'll hear now from you, Mr. Claiborne.

ORAL ARGUMENT OF LOUIS F. CLAIBORNE ON BEHALF OF RESPONDENT

Mr. Claiborne: Mr. Chief Justice, and may it please the Court:

It may be useful to begin by indicating the degree to which both the District Court and the Court of Appeals did deal with the question of whether there was a risk of repetition of the violations which it had noticed for the past.

I simply want to draw the Court's attention to two footnotes, both reproduced in the Appendix to the Petition.

The first one is from the District Court Opinion and appears on page 38(a).

It's Footnote 8, and there one finds the District Court's holding, alternative holding, that at the time the complaint was filed, there was sufficient ground to believe in good faith that the problem had not been cured.

What is more, the Court itself indicates--

Unidentified Justice: Is that in Footnote 8, on page 38(a)?

Mr. Claiborne: --Yes, Your Honor.

The problem of determining whether a violation is continuing is highlighted.

Well, in this case, skipping a bit, with the history of violations, its TKN violations, in the winter time, Gwaltney had just experienced another winter of repeated violations, despite the change it had implemented in its waste water treatment system.

At the time of trial in December 1984, now that's six months after the complaint was filed, one of Gwaltney's own witnesses expressed doubt as to whether Gwaltney would meet its TKN violations... limitations.

It was not until Gwaltney had experienced a full winter, the following winter, after the trial, without problems that it could make its motion to dismiss based on its present compliance with a secure belief that it was, indeed, in compliance.

Now, the Court of Appeals, and here I refer the Court to page 7(a) of the Appendix and Footnote 9, looking at the second paragraph of that footnote, and the second sentence of that paragraph, the Court of Appeals says

"a very sound argument can be made that Plaintiff's allegation of continuing violations were made in good faith despite the fact that Gwaltney had not actually violated the Act since May 15th, 1984. "

Unidentified Justice: Well, Mr. Claiborne, what about the Footnotes 25 and 26 that Mr. Prettyman referred to in the District Court Opinion, which basically say the District Court believes that to conclude there were continuing violations would be too speculative on the present record?

Mr. Claiborne: I think those, Justice O'Connor, those two statements can be reconciled.

What the Court is saying is that at the time of filing and at the time of trial, there was ground to fear that there would be repetition of the excedences, so called; that is to say, violations in winter time.

By the time this opinion is written in June of 1985, the Court, having experienced a winter without violations, is now saying we don't have ground to fear for the future any longer.

They are different times we are talking about.

Unidentified Justice: You don't think the District Court Opinion reflects the situation as of the conclusion of the trial?

Mr. Claiborne: I do, Your Honor.

Unidentified Justice: And that these footnotes indicate that the Court found that too speculative to find an on-going violation at that time?

Mr. Claiborne: That is exactly... Justice O'Connor, I may have mis-spoken.

What I meant to indicate was that the Court found that in June of 1984, when the complaint was filed, and in December of 1984, when the trial was held, there was still ground to fear that the system, the new system, would not handle the problem during the winter.

When this opinion is written and that is what the ultimate footnotes are addressing now, judgment being entered, it would be speculative to suppose that... the winter having gone by without incident, it would be speculative to suppose that there would be problems for the future.

Unidentified Justice: Once the trial was over, how does the Court know what's happened between the time the record is closed and he writes the opinion?

Mr. Claiborne: I don't know, Your Honor, I, frankly, don't know whether the Court was made aware of the absence of violations between December and June.

Unidentified Justice: Well, I would suppose that he was reflecting in these footnotes what was true at the termination of the trial.

Mr. Claiborne: Well, I'm attempting to tax the District Judge with--

Unidentified Justice: That would be the normal... wouldn't that be the normal assumption?

Mr. Claiborne: --Well, Your Honor,--

Unidentified Justice: That he'd be writing his opinion based on the record that was made.

Mr. Claiborne: --the footnote to which I have referred, Footnote 8, very clearly indicates that not only in the Court's view, but in view of the expert for the Defendant there is ground to fear that the problem had not been solved as of the date of trial in December 1984.

Unidentified Justice: Well, why shouldn't the rule be for this jurisdictional argument or the citizen bringing suit, at the time of filing the suit, which in a lot of courts will be an awful long time before the trial.

Mr. Claiborne: Your Honor, xx is only a preamble to xx is Your Honor has indicated, xx is perhaps a little logic in focusing on the state of mind of the Plaintiff and the grounds for objective belief at the time of filing as opposed to the time of judgment, and, yet, my learned friend, seem to indicate that he would condone the assessment of penalties entirely for the past provided that at the time of filing there were an on-going violation, even though it had been demonstrated that the problem was cured before judgment was entered.

Now, that, to us, highlights the reason why it is not sensible to focus on the notion of on-going violation at all, whether at the time the suit is filed or at the time when judgment is entered, and it is for that reason that we cannot embrace either the 1st Circuit's decision or the Government's brief here, albeit they might resolve this case favorably to us, because it seems to us that the logic must be that if it matters whether there's an on-going violation, the time when that matters is when penalties are being assessed, not when the suit is being filed.

Unidentified Justice: So, you want us to take the case as it comes to us and decide whether the Court of Appeals is right or wrong?

Mr. Claiborne: Indeed.

Unidentified Justice: On its theory?

Mr. Claiborne: On its theory.

Unidentified Justice: On your construction of the statute, what do you make of the purpose of the sixty-day notice provision, which your opponent says doesn't make sense unless it's given opportunity to abate?

Mr. Claiborne: I'm grateful to the Chief Justice for having focused my attention on that question.

Legislative history as to the reason why that sixty-day provision was inserted never mentions one reason being to afford the violator an opportunity to get off the hook.

That is no where suggested in the legislative history as a reason for the notice.

The reason for the notice is to allow the Government, indeed, both Governments, federal and state governments, to take this opportunity to decide whether they wish to enforce the Act and thereby preempt the citizen's suit, and that is--

Unidentified Justice: But the notice doesn't just go to the Government; it's notice both to the Government and to the violator.

What's the reason for the notice to the violator?

Mr. Claiborne: --I suppose, Justice Scalia, that there are two reasons for the notice going to the violator.

The first is that when a violator or an alleged violator is being reported to the authorities as such, as violating the Act, it seems only fair to give him notice of that, not so that he can get off the hook for the past violations, but perhaps so that he will more quickly come into compliance and afford himself an opportunity to be liable for fewer penalties for a shorter time.

It does have that effect of goading the violator into ceasing more quickly, not in order to be totally absolved for the past, but to shorten the period for which he will owe penalties.

If, indeed, penalties are appropriate and we do not maintain that penalties are always appropriate no matter how isolated the violation, no matter how old it may be, no matter how quickly it was corrected, those are matters which the District Court in its discretion may determine at the penalty phase it had no bearing on the jurisdiction of the Court to entertain the case--

Unidentified Justice: Well, Mr. Claiborne,--

Mr. Claiborne: --and ever bearing on the--

Unidentified Justice: --I'm troubled by suppose we have a situation of two or three isolated violations, five years before the suit is filed, and the citizen files the suit seeking only civil penalties for those prior violations.

Now, you want us to hold that that kind of a suit is perfectly permitted and that the Court has jurisdiction, right?

Mr. Claiborne: --I would say, Justice O'Connor, there may be a question about whether five years is beyond--

Unidentified Justice: Well, there's no statute of limitations.

Mr. Claiborne: --Well, that's not entirely clear.

There is a suggestion that the statute--

Unidentified Justice: Well, let's not go off on that.

Let's assume there is none.

Mr. Claiborne: --It so happens the statute of limitations would be applicable as a five-year one which is the only reason I mentioned it.

But let's say it's four years ago and otherwise the matters are as Your Honor suggested, that is a case in which we would say there is jurisdiction in the District Court to entertain the citizen complaint.

Unidentified Justice: Well, now, the penalties go only to the Government, is that right?

Mr. Claiborne: That is so.

Unidentified Justice: And how does the citizen have standing in a constitutional sense to come in and get those?

Mr. Claiborne: Well, let me say, first, that the question of standing had not been taken to this Court.

Unidentified Justice: Well, I know, but doesn't that form an interpretation of the statute?

Mr. Claiborne: Well, it may be that because the standing in strict sense is jurisdictional, it's before this Court in any event, and I'm not trying to avoid the question; I'm just giving a preparatory explanation.

In our view, standing in the citizen complainant, and he must be under the statute not any citizen but one who is aggrieved by the pollution which occurs, that means, and as is true in this case, that a member or more members of the organization must live on or near the affected water and be injured by its pollution, either in his commercial or recreational activities there.

That shows that he has injury in fact.

Now, it is perfectly true that the assessment of penalties will not immediately and directly redress that injury, but it will have a substantially beneficial effect on his interest in that river in the following three ways: first, the threat of the imposition of such penalties is likely as the EPA policy on penalties is at pains to indicate to deter him from violating in the first place.

But even after he has violated, if he has been assessed substantial penalties, it is an assurance that he will not return to his old ways.

Even in circumstances where injunction would not have been necessary, the assessment of penalties against him does obviously deter him from doing it again.

Unidentified Justice: Well, it seems to me--

Mr. Claiborne: But, thirdly,--

Unidentified Justice: --that really is stretching any traditional notice of standing.

Mr. Claiborne: --Your Honor, I think not.

It has a very particular effect on the particular river and the particular injury that this individual Plaintiff is concerned about, and the third way in which it relieves his concern is that it deters not merely that same violator but others on the same river or river system who would otherwise feel free to pollute the river until enjoined.

Unidentified Justice: On that analysis, you would say that Congress would have the power to confer standing upon any citizen to prosecute violations of crimes within his community, right?

Congress could pass a law saying the United States Attorney shall no longer be the sole person who can prosecute crimes, but any person in the community in which a crime occurred may bring a prosecution?

Mr. Claiborne: Justice Scalia, there are, I assume, independent reasons not related to standing why an individual ought not be permitted to prosecute criminally.

So far as the answer on standing, I suppose the answer must be yes, that prosecuting for crimes and prosecuting for penalties would serve the interest and protect the values in that river to the same degree, but--

Unidentified Justice: But I thought your answer to Justice O'Connor's question was that you had to be affected by the particular pollution in question before you could sue as a citizen and, therefore, it seems to me your answer to Justice Scalia ought to be the logical counterpart would be to allow victims to bring a prosecution for crime but not just anyone in the community.

Mr. Claiborne: --Well, I suppose that Justice Scalia was really asking me, and I shouldn't be making such assumptions, whether this same citizen who lives on or near the river would have equal standing to bring a criminal prosecution as he does in my submission to bring an action for civil penalties, and put that way, my answer is yes, he's got equal standing, but the privilege of prosecution is one that, for other constitutional reasons, not standing, are not available to the ordinary citizen.

Unidentified Justice: You never got to your third reason, the third way that a citizen... that this person is affected.

Mr. Claiborne: Justice White, the third way is in deterring others--

Unidentified Justice: I see.

Mr. Claiborne: --on the same river who would otherwise feel sanguine about polluting the river, and I must say that we are talking here about the imposition of civil penalties, not a marginal peripheral unimportant sanction.

It is, as the EPA policy has made clear, probably the most important sanction in government enforcement.

One would suppose that when the citizen is given the privilege of standing in for the Government, provided he has standing or personal interest in the matter, he ought to have as much as possible the same weapons.

Now, he cannot issue administrative orders.

He cannot institute criminal prosecutions, but when it comes to civil actions, one would expect him to be able to obtain like relief and this relief, the imposition of penalties, is the most important instrument because, otherwise, a polluter has every incentive to delay compliance and to profit by his advantage over complying competitors and to delay the expenditures.

Unidentified Justice: Are attorneys' fees available in these suits?

Mr. Claiborne: They're available in both directions, Your Honor.

Congress was well aware that there might be a tendency to abuse the citizens supervision, so it provided and the legislative history notes it that attorneys' fees are available to the Plaintiff, but they're available against him if he files frivolous, vexatious or harassing litigation, and that, of course, is a deterrent to the frivolous plaintiff who--

Unidentified Justice: Mr. Claiborne, what is the status of the civil plaintiff who's a property owner along the river who says his property was damaged by the pollution?

Does he have any remedy?

Mr. Claiborne: --Under this Court's holding that there is no action for damages in federal law, he would not be able to invoke either the Clean Water Act or the Federal Common Law in order to make himself whole, but he would be free to invoke state damage remedies.

Unidentified Justice: Isn't that sort of anomalous?

Mr. Claiborne: It would be state law to obtain damages.

Unidentified Justice: Isn't it sort of anomalous that there's no federal remedy for the direct injury, but there's standing to sue on behalf of the Government for penalties?

Mr. Claiborne: Well, it isn't--

Unidentified Justice: Not really on behalf of, but--

Mr. Claiborne: --It would be extraordinary if the solution to the standing problem were to have a Treetom action, which the Court has more than once indicated presents no constitutional problem, which Congress only last year reaffirmed and widened with respect to the False Claims Act, thereby if we had a Treetom action in which the informer had a pecuniary interest because he got a share of the assessment and, yet, he would widen the class of potential plaintiffs to include any citizen, as is true under the False Claims Act, now that simply cannot be a way one solves a constitutional standing problem and, yet, it would seem to be, if this Court were to hold that there is such a problem, a simple remedy for Congress at the next session.

Now, I want to... I am making a very disconnected argument, but I want to stress that Congress did not use language in this statute with all the precision that one might have hoped for.

There is loose language.

There is misuse of language.

That is easily demonstrated by anyone who reads the Act.

It seems to us that the Court ought to prefer to tax Congress with loose language, a lapse of tense perhaps, not clearly but perhaps, even somewhat illiterate sentences here and there, rather than to attribute to Congress a scheme which is downright nonsense.

It is downright nonsense to say there shall be penalties assessable in citizen suits.

As to that, there can be no question.

The statute says so.

It certainly works.

And then to say oh, but, that means only in those rare cases, because they must be rare, in which despite having been notified sixty days before, the polluter is so perverse and so improvident as to continue his evil ways until the day of filing or perhaps the day of judgment, maybe that's the Government's position, I'm not sure, because otherwise he is excused from all penalties and the Court has no power to impose them.

One thing or the other.

It is conceivable to hesitate to give the power to assess penalties going to the Treasury for private payment.

One can understand that, but once you do give a plaintiff that power, you don't take it all back from him and make it available only in that rare case that it will almost never occur; that is the case where the polluter is so perverse and so improvident as to continue his violation long enough to give the Court jurisdiction to enter these awards.

That simply cannot have been the intent of Congress.

The... it was mentioned that Section 505(1)(b), this is reproduced in Petitioner's brief at page 3, refers to an action to require compliance and that is an action to require compliance by a citizen which would be barred if the Government had previously filed.

And the suggestion is that an action for penalties is not an action to require compliance; therefore, Congress is telling us here that it never intended to authorize an action for penalties.

Now, we know it did.

So, we're a bit at a loss, but the other thing to be noticed about this provision is that it doesn't use language quite so fastidiously.

The words are that the Federal or State Governments, the citizens suits will not lie if the Federal or State Governments has commenced and is diligently prosecuting a civil or criminal action in a court of the United States to require compliance with the standard of limitations and so forth.

Let me say a criminal action is not, strictly speaking, an action to require compliance any more than an action to collect penalties.

What is proved here is simply that Congress was not punctilious in its use of language, not that it meant that there was no action by the citizen to secure an assessment of penalties.

Indeed, the Congress, in 1985-86 and '87, made quite clear that it understood itself some years earlier to have authorized citizens suits in respect of wholly past violations and to the assessment of penalties without an injunction in those circumstances.

I draw the--

Unidentified Justice: --Mr. Claiborne, that section may bring the realization of the question I asked you because it permits the citizen to intervene as a matter of right in the criminal action apparently.

Mr. Claiborne: --Again, Justice Scalia, I wonder whether they really meant it.

I think that is rather a lapse.

We do not claim that right.

The Section 309(d) was added in 1987.

It had been prepared in 1985 and 1986, the provision, for quite independent reasons, was vetoed by the President, and, so, was not enacted in its final form until 1987.

Its purpose, so far as we're concerned, was to add to the Clean Water Act an ability for the Administrator to assess penalties administratively.

He had already issued cease and desist orders administratively, but he could not assess penalties in this way.

Having given the Administrator that authority and we are clear on both sides that this authority relates solely to past events, solely to past violations, which attract the civil penalties, Congress went on to say that a citizens suit would lie in respect of the same violations only if notified or filed before the Administrator acted.

Now, according to the Petitioner, that was unnecessary to say because there could be no citizen suit notified or filed in respect to purely past violations.

Here is Congress indicating that it understood otherwise.

I may say that the Petitioner himself obviously understood otherwise during the eleven months before the filing of the motion to dismiss on this ground and when it took the trouble to seek amendment of the summary judgment that had been entered in August 1984, to absolve itself in respect of the violations that had occurred before it acquired the property, what was the point of that, except that it feared that penalties would be assessed in respect of those old violations.

It was only eleven months later that, and only when the 5th Circuit handed down its Hamford decision that anybody for the first time focused on the present tense in 505 and said, oh, this qualifies, the entire statute, we had it wrong, no penalties can be assessed in a citizen suit, except only, when for reasons not easy to understand, when they are, in effect, combined with an injunction.

The one time you don't need penalties because the injunction serves the purpose and its violation will, of course, attract civil and criminal contempt penalties of its own.

For these reasons, we pledge affirmance of the judgment of the Court of Appeals.

Chief Justice William H. Rehnquist: Thank you, Mr. Claiborne.

Mr. Prettyman, you have two xx--

ORAL ARGUMENT OF E. BARRETT PRETTYMAN JR., ESQ. ON BEHALF OF PETITIONER -- REBUTTAL

Mr. Prettyman: Just a few very quick point, Your Honor.

I would urge that you read the end of Footnote 9 which my good friend for the Respondent xx did not get to, and call your attention to the first part of it.

We filed a motion to dismiss almost a year after the last violation, which clearly alerted the District Court Judge that there had been no violations during the course of that year when he ruled he was fully familiar with that.

I have to go outside of the record to make the following statement, and that is that there have been none for now four years, and I say that with equanimity because I am sure my Respondents won't dispute it.

There was one hurricane upset, but other than that.

The problem with the Article 3 is that I think it may be directed to your question, Justice Scalia, to perhaps the wrong point.

The real problem with Article 3 is redressability; that is, when all of the penalties go to the Government and you don't have an injunction going to the underlying fact, you have an injury that is not redressed by any remedy and that xx the Article 3.

xx the Court to be very careful here if it's going to open the flood gates to these past suits because you know you're not only going to have these federal suits for going back we don't know how many years, maybe fifteen, but we're going to have many state claims, you're going to be trying state claims in federal courts going back fifteen years, which is going to be attached to these federal claims, which is going to cause great hazard to the federal courts.

Thank you very much.

Chief Justice William H. Rehnquist: Thank you, Mr. Prettyman.

The case is submitted.

Transcript: 

Argument of Speaker

Mr. Speaker: The opinion of the court in No. 86-473, Gwaltney of Smithfield versus Chesapeake Bay Foundation will be announced by Justice Marshall.

Argument of Justice Marshall

Mr. Marshall: This case is here on certiorari to the United States Court of Appeals for the Fourth Circuit.

Here, the Clean Water Act provides that states may grant permits authorizing the discharge of set levels of certain pollutants under certain conditions.

After receiving a permit from the State of Virginia, petitioner repeatedly violated the conditions of the permit by exceeding effluent limitations.

The respondents filed suit against that.

The petitioner moved to dismiss the respondent's suit for lack of subject-matter jurisdiction, arguing that the alleged violations occurred wholly in the past and that Section 505 of the Act which authorizes citizen suits does not grant jurisdiction over suits attacking such violation.

The District Court held that Section 505 permits Federal Courts to exercise subject-matter jurisdiction over suits for wholly past violations.

The Court of Appeals affirmed on the ground that those violations are encompassed by Section 505 and that they could pass on the District Court's alternative holding.

In the opinion filed with the Clerk today, we conclude that Section 505 does confer jurisdiction over citizen suits where the citizen plaintiffs make a good faith allegation of continuous or intermittent violation.

We, therefore vacate the judgment of the Court of Appeals for the Fourth Circuit and remand the change for consideration of the good faith allegation issue.

Justice Scalia has filed an opinion concurring in part and concurring in the judgment in which Justice Stevens and Justice O'Connor have joined.