Chesapeake Bay Foundation v. Bethlehem Steel Corp.

• Decision Date: 30 January 1987
• Docket Number: Civ. No. Y-84-1620.
• Citation: 652 F. Supp. 620
• Parties: CHESAPEAKE BAY FOUNDATION, INC. and Natural Resources Defense Council, Inc. v. BETHLEHEM STEEL CORPORATION
• Court: U.S. District Court — District of Maryland

652 F. Supp. 620

CHESAPEAKE BAY FOUNDATION, INC. and Natural Resources Defense Council, Inc. v. BETHLEHEM STEEL CORPORATION

Civ. No. Y-84-1620.

United States District Court, D. Maryland.

January 30, 1987.

COPYRIGHT MATERIAL OMITTED

James Thornton, New York City, and Scott Burns, Annapolis, Md., for plaintiffs.

Benjamin Rosenberg, G. Stewart Webb, Jr., and Jack L. Harvey, Baltimore, Md., for defendant.

MEMORANDUM

JOSEPH H. YOUNG, District Judge.

The Chesapeake Bay Foundation (CBF) and the Natural Resources Defense Counsel (NRDC) filed suit against Bethlehem Steel Corporation for alleged violations of the Federal Water Pollution Control Act, 33 U.S.C. § 1251 et seq. (Clean Water Act), specifically Sections 301 and 402 of the Act, 33 U.S.C. §§ 1311, 1342. Plaintiffs claim that defendant has not complied with the waste water discharge limits contained in its National Pollutant Discharge Elimination System ("NPDES") permit. They seek injunctive relief and the imposition of civil penalties against defendant at the rate of $10,000 per day of each violation. This Court granted plaintiffs' motion for summary judgment as to defendant's liability for nearly all the incidents of noncompliance listed in the original complaint which occurred within the five-year period preceding April 24, 1984,¹ and reserved the issue of remedies for a later date. Chesapeake Bay Found., et al. v. Bethlehem Steel Corp., 608 F.Supp. 440, 453 (D.Md.1985).

Plaintiffs subsequently amended their complaint on June 5, 1986, to allege hundreds of violations newly disclosed during discovery, and moved for summary judgment as to defendant's liability for the violations alleged in the amended complaint. Defendant responded with a motion to dismiss the amended complaint, asserting that the citizen suit provision of the Clean Water Act should be struck down because it violates the constitutional principle of separation of powers. This Court will first address defendant's motion to dismiss, and then resolve plaintiffs' motion for summary judgment. No hearing is necessary, Local Rule 6.

I. MOTION TO DISMISS THE AMENDED COMPLAINT

Plaintiffs brought this action under the citizen suit provision of the Clean Water Act, 33 U.S.C. § 1365, which provides in pertinent part:

Except as provided in subsection (b) of this section, any citizen may commence a civil action on his own behalf—

(1) against any person ... who is alleged to be in violation of ... an effluent standard or limitation under this chapter....

* * * * * *

The district courts shall have jurisdiction, without regard to the amount in controversy or the citizenship of the parties, to enforce such an effluent standard or limitation, ... and to apply any appropriate civil penalties under section 1319(d) of this title.

For purposes of standing, a citizen is a "person or persons having an interest which is or may be adversely affected." 33 U.S.C. § 1365(g). This Court previously ruled that both CBF and NRDC have standing under this section. Chesapeake Bay Found., et al. v. Bethlehem Steel Corp., supra, 608 F.Supp. at 446.

Defendant argues that the citizen suit provision violates the separation of powers principle by granting to private persons powers that are exclusively vested in the Executive Branch. Article II of the United States Constitution charges the President with responsibility for enforcing federal law. Defendant asserts that certain "core" executive functions may be performed only by Officers of the United States who are nominated by the President and confirmed by the Senate pursuant to the Appointments Clause of Article II, and argues that instituting a lawsuit to enforce federal law qualifies as such a core function. Thus, because the citizen suit provision allows persons who are not Officers of the United States to enforce the Clean Water Act through private litigation, defendant contends the provision contravenes the separation of powers.

This reasoning is fundamentally flawed. First, defendant bases its argument on two Supreme Court cases which address separation of powers vis-a-vis Congress and the Executive, not private persons and the Executive. Second, defendant ignores the principal that Congress creates statutory rights and obligations, and it determines who may enforce them and in what manner.

Defendant relies upon Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976), and Bowsher v. Synar, ___ U.S. ___, 106 S.Ct. 3181, 92 L.Ed.2d 583 (1986), as support for its theory. Buckley v. Valeo involved, inter alia, a constitutional challenge to the composition of the Federal Election Commission. The Commission was established to administer and enforce the Federal Election Campaign Act. That act imbued the Commission with investigatory, rulemaking, and enforcement powers. Two ex officio members of the Commission were members of Congress, four Commission members were appointed by Congress, and the remaining two were appointed by the President. Because four of the six voting members were appointed by and beholden to Congress, the Supreme Court ruled that certain provisions of the Act violated the separation of powers doctrine:

We hold that these provisions of the Act, vesting in the Commission primary responsibility for conducting civil litigation in the courts of the United States for vindicating public rights, violate Art. II, § 2, cl. 2, of the Constitution. Such functions may be discharged only by persons who are "Officers of the United States" within the language of that section.

Buckley v. Valeo, 424 U.S. at 140, 96 S.Ct. at 692.

Throughout its opinion, the Supreme Court stressed the fact that the separation of powers doctrine prohibited one branch from intruding into the sphere of another. "The Legislative Branch may not exercise executive authority by retaining the power to appoint those who will execute its laws." 424 U.S. at 119, 96 S.Ct. at 681. "The Framers regarded the checks and balances that they had built into the tripartite Federal Government as a self-executing safeguard against the encroachment or aggrandizement of one branch at the expense of the other." Id. at 122, 96 S.Ct. at 684. The Supreme Court struck down certain provisions of the Federal Election Campaign Act because the provisions allowed Congress to exercise executive authority by appointing persons who would enforce the laws. Congress may not "vest in itself ... the authority to appoint officers of the United States when the Appointments Clause by clear implication prohibits it from doing so." Id. at 135, 96 S.Ct. at 690.

Thus Buckley v. Valeo concerned Congress aggrandizing itself at the expense of the Executive Branch. The opinion does not stand for the proposition, as defendant would have this Court believe, that private persons may not enforce any federal laws simply because they are not Officers of the United States appointed in accordance with Article II of the Constitution.

Similarly, Bowsher v. Synar, ___ U.S. ___, 106 S.Ct. 3181, 92 L.Ed.2d 583 (1986), does not support defendant's argument. There, the Supreme Court struck down a provision of the Gramm-Rudman-Hollings Act which provided that the Comptroller General would exercise necessary budget reductions:

By placing the responsibility for execution of the Balanced Budget and Emergency Deficit Control Act in the hands of an officer who is subject to removal only by itself, Congress in effect has retained control over the execution of the Act and has intruded into the executive function. The Constitution does not permit such intrusion.

106 S.Ct. at 3192. Executive powers may not be entrusted to an officer who is subservient to or may be controlled by Congress, as was the Comptroller General. Private litigants, however, are hardly controlled by Congress. Consequently, the Synar decision lends no support to defendant's argument.²

To bolster its argument that only the Executive Branch has the power to bring suit to enforce federal law, defendant notes that the decision whether or not to bring a criminal enforcement action is within the sole discretion of the prosecuting attorney. While this may be true, it is irrelevant to the instant case. Plaintiffs CBF and NRDC have never contended that private persons may bring criminal actions. Morever, the doctrine of prosecutorial discretion cautions courts against interfering with the executive decision concerning criminal prosecution — again, a situation concerning the appropriate balance of power between coordinate branches of government.

Defendant also contends that citizen suits interfere with the Executive Branch's enforcement of the Clean Water Act. It argues that these suits force the Environmental Protection Agency or a state "to either participate in a citizens' suit or cede the government's interest in enforcement against that defendant to the citizens." (Defendant's Memorandum at 8.) In order to address this point, it is necessary to outline the statutory structure of the citizen suit provision.

Section 505 of the Clean Water Act, 33 U.S.C. § 1365, provides that no citizen suit may be commenced:

(A) prior to sixty days after the plaintiff has given notice of the alleged violation (i) to the Administrator of EPA, (ii) to the State in which the alleged violation occurs, and (iii) to any alleged violator of the standard, limitation, or order, or

(B) if the Administrator or State has commenced and is diligently prosecuting a civil or criminal action in a court of the United States, or a State to require compliance with the standard, limitation, or order, but in any such action in a court of the United States any citizen may intervene as a matter of right.

The EPA Administrator, if not a party to a suit, may also intervene as a matter of right.

If a citizen brings suit and the Administrator chooses not to intervene, EPA does not simply "cede its interest in enforcement" as defendant contends. Rather, EPA looks to citizen suits to supplement enforcement because the EPA...