The following article provides insights for facility managers and others managing an industrial stormwater program who may need to leverage the victory of Gwaltney Foods factory to defend themselves in a time when citizen suits are at an all-time high.
The 1987 decision issued in Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation set the scene for a tactic used by facilities defending themselves against the tar pit that is inevitable litigation. The case involved discharges into the Pagan River by Gwaltney Foods, a meat-packing company from Virginia. The initial award of $1.3 million ordered by the judge was the largest penalty ever imposed in a citizen enforcement case under the FWPCA (Clean Water Act) before the case was appealed to the U.S. Supreme Court.
In its opinion, the Supreme Court explained that Congress intended citizen suits to play an “interstitial”, rather than “intrusive” role and were appropriate only where federal and state authorities have declined to exercise their enforcement power. Essentially, the Supreme Court ruled that plaintiffs in Clean Water Act §505 citizen suits must make a good faith allegation of ongoing or intermittent violation and citizen suits will be barred if another agency is already pursuing a civil claim.
This holding had the effect of curtailing the ability for environmental coalitions to sue polluters for past violations. At the time, the defense felt it was a “90%” victory because the decision meant that the precedent set by the Court would give industrialists a measure of practical protection against citizen suits for violations that have ended before the suits are filed. Under Gwaltney, a defendant seeking a dismissal on mootness grounds faces a heavier burden where it must be “absolutely clear that the wrongful behavior would not reasonably be expected to recur”.
In the thirty years since Gwaltney, the court’s ruling has joined a line of defenses against citizen suits that include challenging the plaintiff’s standing to maintain the suit, whether the plaintiff has met all the statutory requirements for notice, and most frequently, whether violations are actually “on-going”. In fact, as a result of Gwaltney the Clean Air Act was amended in 1990 to allow citizen suits for wholly past permit violations. The premise behind the case law that emerged from Gwaltney is that a business owner or facility manager can avoid being sued if they cure alleged conduct during the 60-day intent to sue period and take remedial measures to prevent future violations.
Under what circumstances should it be used and when?
The Gwaltney principle or “mootness” defense is most practical when a violating facility can provide evidence that it has ceased its operations to such an extent that there is no “reasonable likelihood” that it may continue to pollute in the future. Using Gwaltney may be more successful in conjunction with proof that a 60-day notice of intent is deficient as to a particular violation as long as it was later remedied after the complaint was filed. It is also most effective when the 60-day notice of intent or even the Complaint filed is overly vague with the intent to conduct further discovery for additional violations. Therefore, the potential success of this defense is reflected in the importance of a quick response to any 60-day notice of intent. (Learn more about how Mapistry keeps you in compliance.)
In a very recent case, Upstate Forever v. Kinder Morgan Energy Partners LP, Plaintiff Upstate Forever appealed the district court ruling on the basis that it erred in determining that the continuing addition of pollutants to ‘navigable waters’ was not an ongoing violation of the Clean Water Act because the pipeline had been repaired. Upstate Forever argued that the discharge of a pollutant constituted a violation of the Clean Water Act even if it did not stem directly from a point source into the water. Kinder Morgan countered that the district court did not err because the alleged seepage violation ceased once the pipeline was removed.
As in Gwaltney, The Court of Appeal considered the issue of “ongoing violation” but alternatively ruled in favor of the plaintiff environmental group holding that the district court had jurisdiction (ability to hear over and rule on the case) and that Upstate Forever had brought forth a valid citizen suit where the discharge from pollutants was demonstrably continuous. However, Upstate Forever was not an ideal demonstration of the Gwaltney defense because there was not enough evidence put forward by the facility to demonstrate a substantial amount of time after incorporating measures to avoid future violations.
An example of a successful outcome using the Gwaltney defense was seen in Connecticut Coastal Fishermen’s Ass’n v. Remington Arms Co., Inc. The environmental group ‘Fishermen’s Assn’ brought suit against a shooting club for illegal discharge of lead and steel. The court, in that case, took into consideration the fact that the shooting club had closed its ranges before the action was initiated, and the plaintiffs failed to present valid evidence showing the club would resume operations in the future.
Apart from ceasing the alleged conduct, another approach in using the Gwaltney defense is seeking an NPDES permit or the successful modification of an existing NPDES permit. In Massachusetts Public Interest Research Group v. ICI Americas Inc., 777 F. Supp. 1032, 1034-1035, the post-complaint adoption of a new or revised NPDES permit imposing relaxed standards mooted a complaint not only for new penalties but also injunctive relief.
In Massachusetts PIRG v. ICI, plaintiff public interest group filed a CWA citizen suit against a defendant corporation on the grounds that it violated both substance and flow limits for discharged water. Plaintiff added additional violations of both permits to the complaint while the corporation asserted that the issuance of a superseding permit invalidated the plaintiff’s claims with respect to the original permit. The court sided with the corporation, holding that the flow violations under the original permit were invalid arguments because the allegedly wrongful behavior could not recur as it was allowed under the superseding permit. The court ultimately dismissed the public interest group’s claims related to the flow violations.
When is it less useful? Where is Gwaltney limited?
The effect of the Gwaltney principle or “mootness” defense (available when there is no reasonable likelihood of violations recurring) extends to most environmental statutes such as the Clean Air Act and Clean Water Act. However, this principle is more limited under the Resource Conservation and Recovery Act (RCRA). An RCRA-related citizen suit defendant will not be absolved from liability even if there is a determination that the violations or conduct will not recur because of the higher “imminent and substantial endangerment” provision contained within the act.
Even with Gwaltney, a large number of cases have held that a post-complaint corrective action will invalidate a claim for injunctive relief. Consequently, a citizen-plaintiff could still be awarded penalties for any violation which was concurrent with the timing of the complaint, even if the violation was addressed prior to judgment. See Atlantic States Legal Foundation, Inc. v. Tyson Foods Inc., 897 F.2d 1128, 1135 (11th Cir. 1990) in which case “the mooting of injunctive relief does not moot the request for civil penalties as long as such penalties were rightfully sought at the time the suit was filed.”
Pending the ultimate confirmation hearing of the most recent Supreme Court nominee, environmental law could see a narrowing in scope for years to come. According to Sarah Bell of Farella, Braun & Martel, a more conservative court may likely reject the idea of “indirect discharges where the Clean Water Act regulates point source discharges that reach navigable water via groundwater”.
Overall, a distinctly conservative SCOTUS could significantly alter the interpretation of Clean Water Act and other indirect discharge cases, making it harder for plaintiffs to prevail in citizen suits (potentially granting more deference to Gwaltney-type defenses), while generally chipping away at other environmental standards and precedents established in previous Court opinions.