484 U.S. 49 (1987), 86-473, Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc.

Docket Nº:No. 86-473
Citation:484 U.S. 49, 108 S.Ct. 376, 98 L.Ed.2d 306, 56 U.S.L.W. 4017
Party Name:Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc.
Case Date:December 01, 1987
Court:United States Supreme Court

Page 49

484 U.S. 49 (1987)

108 S.Ct. 376, 98 L.Ed.2d 306, 56 U.S.L.W. 4017

Gwaltney of Smithfield, Ltd.


Chesapeake Bay Foundation, Inc.

No. 86-473

United States Supreme Court

Dec. 1, 1987

Argued October 5, 1987




Section 505(a) of the Clean Water Act authorizes private citizens to commence a civil action for injunctive relief and/or the imposition of civil penalties in federal district court against any person "alleged to be in violation" of the conditions of a National Pollutant Discharge Elimination System (NPDES) permit. Between 1981 and 1984, petitioner repeatedly violated the conditions of its NPDES permit by exceeding authorized effluent limitations. However, due to the installation of new equipment, petitioner's last reported violation occurred in May, 1984. Nevertheless, in June, 1984, having given notice of their intent to sue to petitioner to the Environmental Protection Agency (EPA) and to state authorities, as required by § 505(b) of the Act, respondents filed a § 505 (a) suit alleging that petitioner "has violated . . . [and] will continue to violate its NPDES permit." The District Court denied petitioner's motion for dismissal of the action for want of subject matter jurisdiction under the Act, rejecting the contention that § 505(a)'s "alleged to be in violation" language requires that the defendant be violating the Act at the time of suit, and holding, in the alternative that respondents satisfied § 505(a)'s jurisdictional requirements because their complaint alleged in good faith that petitioner was continuing to violate its permit at the time the suit was filed. The Court of Appeals affirmed, agreeing with the District Court that § 505(a) authorizes suits on the basis of wholly past violations, and finding it unnecessary to rule on the District Court's alternative holding.


1. Section 505(a) does not confer federal jurisdiction over citizen suits for wholly past violations. Pp. 56-63.

(a) Although § 505(a)'s "to be in violation" language is not without ambiguity, the most natural reading of that language is a requirement that citizen plaintiffs allege a state of either continuous or intermittent violation -- that is, a reasonable likelihood that a past polluter will continue to pollute in the future. The contention that Congress' failure to choose statutory language that looked to the past is simply the result of a "careless accident" is unpersuasive, since the citizen suit provisions of several other environmental statutes that authorize only prospective relief

Page 50

use language identical to § 505(a)'s, while other statutory provisions demonstrate that Congress knows how to avoid prospective implications by using language that explicitly targets wholly past violations. Also untenable is the argument that, since the EPA compliance order provisions in § 309(a) of the Act use language parallel to the § 505(a) "to be in violation" phrase, since § 309(a) is incorporated by reference into the EPA civil enforcement provisions of [108 S.Ct. 378] § 309(b), and since the EPA may bring enforcement actions to recover civil penalties for wholly past violations, citizens, too, may maintain such actions. Section 309 authorizes equitable relief and the imposition of civil penalties in separate and distinct provisions, including § 309(d), which provides for civil penalties but does not contain language parallel to § 505(a)'s. In contrast, § 505(a)'s reference to civil penalties and injunctive relief in the same sentence suggests a connection between the two remedies, and supports the conclusion that citizens may seek civil penalties only in a suit brought to enjoin or otherwise abate an ongoing violation. Pp. 56-59.

(b) The language and structure of the rest of § 505's citizen suit provisions make plain that the harm sought to be addressed by such a suit lies in the present or future, rather than the past, particularly in light of the pervasive and undeviating use of the present tense throughout § 505. Any other conclusion would render gratuitous § 505(b)'s notice provision, the purpose of which is to give the alleged violator an opportunity to bring itself into complete compliance with the Act, and thus make a citizen suit unnecessary. Moreover, § 505(b)(1)(B)'s bar on citizen suits once a governmental enforcement action is under way suggests that the citizen suit is meant to supplement, not supplant, governmental action, which supplemental role could be undermined if citizen suits for wholly past violations were permitted, since such a suit might intrude upon governmental discretion to enforce the Act in the public interest. Pp. 59-61.

(c) The Act's legislative history indicates that § 505 suits were intended to abate pollution and to enjoin continuous or intermittent violations, not to remedy wholly past violations. Pp. 61-63.

2. Section 505 confers citizen suit jurisdiction on federal district courts when plaintiffs make a good faith allegation of continuous or intermittent violation. It is not necessary that plaintiffs prove their allegations of ongoing noncompliance before jurisdiction attaches, since the statute does not require that a defendant "be in violation" at the commencement of suit, but only that the defendant be "alleged to be in violation." The good faith requirement of Federal Rule of Civil Procedure 11 will adequately protect defendants from frivolous allegations. Moreover, allegations of injury are sufficient under this Court's standing cases to invoke the jurisdiction of a court, and the Constitution does not require that the plaintiff offer proof of the allegations as a threshold matter. Furthermore, longstanding mootness doctrine will protect the defendant

Page 51

from the continuation of suits after the plaintiff's allegations of ongoing violations become false because the defendant has begun to comply with the Act. Since the Court of Appeals declined to decide whether respondents' complaint contained a good faith allegation of ongoing violation by petitioner, the case must be remanded for consideration of this question. Pp. 64-67.

791 F.2d 304, vacated and remanded.

MARSHALL, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and BRENNAN, WHITE, and BLACKMUN, JJ., joined, and in Parts I and II of which STEVENS, O'CONNOR, and SCALIA, JJ., joined. SCALIA, J., filed an opinion concurring in part and concurring in the judgment, in which STEVENS and O'CONNOR, JJ., joined, post at p. 67.

Page 52

MARSHALL, J., lead opinion

JUSTICE MARSHALL delivered the opinion of the Court.

In this case, we must decide whether § 505(a) of the Clean Water Act, also known as the Federal Water Pollution Control Act, 33 U.S.C. § 1365(a), confers federal jurisdiction over citizen suits for wholly past violations.


The Clean Water Act (Act), 86 Stat. 816, 33 U.S.C. § 1251 et seq. (1982 ed. and Supp. III), was enacted in 1972 "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." § 1251(a). In order to achieve these goals, § 301(a) of the Act makes unlawful the discharge of any pollutant into navigable waters except as authorized by specified sections of the Act. 33 U.S.C. § 1311(a).

One of these specified sections is § 402, which establishes the National Pollutant Discharge Elimination System (NPDES). 33 U.S.C. § 1342. Pursuant to § 402(a), the Administrator of the Environmental Protection Agency (EPA) may issue permits authorizing the discharge of pollutants in accordance with specified conditions. § 1342(a). Pursuant to § 402(b), each State may establish and administer its own permit program if the program conforms to federal guidelines and is approved by the Administrator. § 1342(b). The Act calls for the Administrator to suspend the issuance of federal permits as to waters subject to an approved state program. § 1342(c)(1).

The holder of a federal NPDES permit is subject to enforcement action by the Administrator for failure to comply

Page 53

with the conditions of the permit. The Administrator's enforcement arsenal includes administrative, civil, and criminal sanctions. § 1319. The holder of a state NPDES permit is subject to both federal and state enforcement action for failure to comply. §§ 1319, 1342(b)(7). In the absence of federal or state enforcement, private citizens may commence civil actions against any person "alleged to be in violation of" the conditions of either a federal or state NPDES permit. § 1365(a)(1). If the citizen prevails in such an action, the court may order injunctive relief and/or impose civil penalties payable to the United States Treasury. § 1365(a).

The Commonwealth of Virginia established a federally approved state NPDES program administered by the Virginia State Water Control Board (Board). Va.Code § 62.1-44.2 et seq. (1950). In 1974, the Board issued a NPDES permit to ITT-Gwaltney authorizing the discharge of seven pollutants from the company's meatpacking plant on the Pagan River in Smithfield, Virginia. The permit, which was reissued in 1979 and modified in 1980, established effluent limitations, monitoring requirements, and other conditions of discharge. In 1981, petitioner Gwaltney of Smithfield acquired the assets of ITT-Gwaltney and assumed obligations under the permit.

Between 1981 and 1984, petitioner repeatedly violated the conditions of the permit by exceeding effluent limitations on five of the seven pollutants covered. These violations are chronicled in the Discharge Monitoring Reports that the permit required petitioner to maintain. See 9 Record, Exh. 10. The most substantial of the violations concerned the pollutants fecal coliform, chlorine, and total Kjeldahl nitrogen (TKN). Between October 27, 1981, and August 30, 1984, petitioner violated its TKN limitation 87 times, its chlorine limitation 34 times, and its fecal coliform...

To continue reading