The opinion of the court was delivered by: Brewster, Senior District Judge.
ORDER GRANTING MOTION FOR RECONSIDERATION AND AFFIRMING OPINION
AND ORDER OF NOVEMBER 20, 1998
Defendant Southwest Marine (SWM) brings a motion to reconsider
this Court's Opinion and Order of November 20, 1998.*fn1 That
Order denied SWM's motion in limine seeking to preclude potential
imposition of civil penalties for alleged violations of the Clean
Water Act.*fn2 The Motion
to Reconsider is GRANTED;*fn3 however, the Order of November 20,
1998 is AFFIRMED.
Defendant's motion is an elaboration of the argument put forth
in its original motion. Defendant continues to insist that Steel
Co. v. Citizens for a Better Env't, 523 U.S. 83, 118 S.Ct. 1003,
140 L.Ed.2d 210 (1998), represents a new overarching principle of
constitutional jurisprudence whereby citizen suit plaintiffs
never have standing to seek penalties for violations of an
environmental statute if those penalties are payable to the U.S.
Treasury.*fn4 Defendant's position is without exception, i.e.,
civil penalties are never available to citizen suit plaintiffs,
no matter if the Defendant may be engaged in continuing
violations of the Clean Water Act.
A. Steel Co. Does Not Apply With Continuing Violations
Defendant reads Steel Co. too broadly. Steel Co. involved
the limited situation in which an environmental advocacy group
sought civil penalties — and only civil penalties — for wholly
past violations of the Emergency Planning and Community
Right-to-Know Act of 1986 (EPCRA), 42 U.S.C. § 11046(a)(1).
Steel Co. did not involve allegations of ongoing violations nor
did the facts suggest that there was a likelihood that such
violations might occur in the future. Because Steel Co. did not
address the issue of penalties in the context of ongoing
violations, nor address when civil penalties are requested in
addition to other remedies, Steel Co. did not invalidate all
statutorily-provided civil penalties in citizen suit cases
Defendant asserts that the issue of wholly past violations was
"immaterial," "irrelevant," and "made no difference" to the
Steel Co. analysis. By ignoring the facts of Steel Co.,
Defendant is able to assert that penalties can never serve as a
deterrent, regardless of the status of alleged violations.*fn5
That is not the holding of Steel Co. In Steel Co., in the
absence of a continuing violation or the imminence of a
threatened violation, the request for civil penalties did not
confer standing because plaintiff could only have a "generalized"
interest in imposing civil penalties which would be paid to the
U.S. Treasury and thus any injury suffered would not be
redressed. 118 S.Ct. at 1018.
The instant matter is quite different. Plaintiffs have alleged,
does not dispute, sufficient concrete, particularized, and actual
injuries to confer standing to bring their case. See, e.g.,
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct.
2130, 119 L.Ed.2d 351 (1992). Likewise, Plaintiffs have alleged
continuing violations that contribute to the alleged injuries.
The question then is — will the potential or actual imposition of
civil penalties help remedy Plaintiffs' alleged injuries?
Civil penalties may have a remedial effect if they deter
Defendant's alleged violations. Deterrence comes in two forms —
specific and general. As stated, Steel Co. held that penalties
that only contribute to "generalized deterrence" were
insufficient to satisfy standing's redressability prong. 118
S.Ct. at 1018. Without deciding whether penalties should be
imposed, this Court finds that the possible imposition of
monetary penalties would contribute to specifically deterring
current violations alleged to be harming Plaintiffs. With alleged
continuing violations, because there are alleged current harms,
in contrast to wholly past violations, a court does not have to
engage in an abstract evaluation of whether a defendant may or
may not repeat its illegal conduct and cause future harms. The
alleged malfeasance is immediate and tangible, and the imposition
of civil penalties may help stop it. If there is specific
deterrence of Defendant's conduct, then there is redress on an
equivalent basis to any injunction this Court could issue. The
Court also notes that Plaintiffs have asked this Court to apply a
portion of any penalties imposed to local projects that have a
beneficial impact on San Diego Bay. This Court has taken a
similar step in previous litigation. See United States v. City
of San Diego, 1991 WL 163747, *5 (S.D.Cal. April 18, 1991). The
availability of this alternative strengthens the redressability
aspect of civil penalties in significant measure.
As the redress Plaintiffs seek is related to remedy of a
specific injury, Steel Co.'s concern that the monetary penalty
remedy will only impart "psychic satisfaction," or that the
Plaintiffs will only derive "comfort and joy" from the potential
levy of monetary penalties, is not implicated. 118 S.Ct. at 1019.
The risk of allowing citizens to take on the mantle of purely
public prosecutors without consideration of their own injuries is
likewise not at issue. Plaintiffs' interest in conforming
Defendant's conduct to the dictates of the Clean Water Act is not
an "undifferentiated" interest in enforcing the rule of law, but
instead in stopping behavior they allege is causing it legally
Defendant argues that Steel Co.'s language stating that
injunctive relief would remedy harms caused by ongoing violations
implies by negative inference that civil penalties are precluded
even with ongoing violations.*fn7 118 S.Ct. at 1019.
First, the Court is hesitant to read too much of a negative
inference from this language, especially considering the Court's
decision in Gwaltney of Smithfield, Ltd. v. Chesapeake Bay
Found., 484 U.S. 49, 108 S.Ct. 376, 98 L.Ed.2d 306 (1987), that
civil penalties are available for ongoing violations. The absence
of any suggestion in Steel Co. that Gwaltney is no longer
good law is instructive. Second, such a negative inference flies
in the face of established jurisprudence holding that monetary
penalties do have a deterrent effect. See, e.g., Bennett v.
Spear, 520 U.S. 154, 117 S.Ct. 1154, 1163-64, 137 L.Ed.2d 281
(1997); Department of Revenue of Mont. v. Kurth Ranch,
511 U.S. 767, 114 S.Ct. 1937, 128 L.Ed.2d 767 (1994) ("Criminal fines,
civil penalties, civil forfeitures, and taxes all share certain
features: They generate government revenues, impose fiscal
burdens on individuals and deter certain behavior.") (emphasis
added); Hudson v. United States, 522 U.S. 93, 118 S.Ct. 488,
494, 139 L.Ed.2d 450 (1997); City of Los Angeles v. Lyons,
461 U.S. 95, 112-113, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983) (implying
that compensatory damages may deter future illegal conduct).
Likewise, Congress, by including provision for civil penalties in
citizen suits implicitly determined that civil penalties have a
deterrent effect.*fn8 See, e.g., S.Rep. No. 228, 101st Cong.,
1st Sess. 373 (1989), reprinted in 1990 U.S.C.C.A.N. 3386, 3756
("[A]ssessment of civil penalties for violations . . . [is]
necessary for deterrence, restitution, and retribution" under the
Clean Air Act with citizen suits.); Tull v. United States,
481 U.S. 412, 422-23, 107 S.Ct. 1831, 95 L.Ed.2d 365 (1987) ("[A
court] may also seek to deter future violations by basing the
penalty on [a violation's] economic impact. Subsection 1319(d)'s
authorization of punishment to further retribution and deterrence
clearly evidences that this subsection reflects more than a
concern to provide equitable relief."); Weinberger v.
Romero-Barcelo, 456 U.S. 305, 314, 102 S.Ct. 1798, 72 L.Ed.2d 91
(1982) ("An injunction is not the only means of ensuring
compliance [with the Clean Water Act]. The FWCPA . . . provides
for fines and criminal penalties."). Most corporations facing the
possibility of $25,000-per-day fines would rethink the activities
that are alleged to be harming an individual.
Likewise, Defendant's argument that Steel Co. can be read
consistently with Gwaltney, and still preclude all citizen suit
claims for civil penalties is in error. In Gwaltney, the
plaintiff's complaint alleged ongoing violations of the Clean
Water Act, but these alleged violations had apparently ceased by
the time the case reached the Supreme Court. Despite this
knowledge, the Court remanded the case for a determination of
remedy, barring only a consideration of civil penalties for
wholly past violations. As such, Gwaltney's implicit holding is
that civil penalties are available when continuing violations are
alleged at the time of the filing of the complaint.*fn9 See,
e.g., Jim Heckler, EPCRA Citizen Suits After Steel Co. v.
Citizens for a Better Environment, 28 Envtl.L.Rep.
10306 (1998).*fn10 Steel Co. does not upset this facet of
Gwaltney, despite Steel Co.'s discussion of Gwaltney in
relation to the concept of statutory standing.*fn11
Defendant replies that it is the not the generalized or
specific nature of the deterrence at issue, but who is the
recipient of the damages sought, that precludes imposition of
civil penalties. Defendant reads Steel Co. as meaning that
since an interest in monies paid to the U.S. Treasury can never
remedy an injury, one never has standing to assert a claim for
damages. Defendant is properly focused on the injury, but, for
the above stated reasons, i.e. because civil penalties can remedy
Plaintiffs' asserted injuries by deterring ...