April 12, 2018

Did Justice Scalia support the “continuing violation” theory?

By Damien M. Schiff Senior Attorney

An important tool that the government and environmental groups use to sue landowners for alleged and long-ago discharges of pollution under the Clean Water Act is the so-called “continuing violation” doctrine. As its name implies, the doctrine teaches that, under certain circumstances, a wrongful act that is not remedied continues in time to be wrongful, i.e., a violation of law. Continuing wrongfulness can be critical to avoiding a statute of limitations defense. For example, violations of the Clean Water Act are subject to a five-year statute of limitations. Thus, if one is alleged to have violated the Act in 2005, and suit is not brought until 2018, then the case must be dismissed as time-barred. But, under the continuing violation theory, an un-remedied alleged illegality in 2005 is considered to persist to the present, allowing suit to be brought years after the alleged wrongful act. Exacerbating the prejudice to defendants is the fact that a “continuing violation” also increases the number of days of violation, and thus augments liability for civil penalties.

Such an extravagant conception of government’s enforcement authority is not something likely to be associated with the late U.S. Supreme Court Justice Antonin Scalia, who often was skeptical of broad assertions of government power. I was therefore quite surprised to read a Justice Scalia concurrence being used to support the “continuing violation” theory. In Benham v. Ozark Materials River Rock, LLC, a private citizen challenged a sand and gravel company’s construction of a road. The plaintiff contended that the company’s road construction had resulted in the filling of more than 0.5 acres of wetlands in and around a jurisdictional water. The district court ruled for the plaintiff on the basis of a continuing violation (because the road remained in the wetlands), and the Tenth Circuit affirmed. With respect to the issue of continuing violation, the Tenth Circuit quoted approvingly a Fourth Circuit decision for the proposition that, “[u]ntil a pollutant, such as fill material, that has been placed in a wetland is removed, its presence constitutes a continuing violation.” The Tenth Circuit then dropped the following footnote:

Language from Justice Scalia’s concurrence in Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., 484 U.S. 49, 108 S.Ct. 376, 98 L.Ed.2d 306 (1987), supports such a ruling: “When a company has violated an effluent standard or limitation, it remains … ‘in violation’ of that standard or limitation so long as it has not put in place remedial measures that clearly eliminate the cause of the violation.” 484 U.S. at 69, 108 S.Ct. 376 (Scalia, J., concurring).

Gwaltney concerned an environmental group’s citizen suit that sought civil penalties for a meat-packing plant’s repeated but wholly past violations of its Clean Water Act permit. The Supreme Court ruled that civil penalties can be recovered in a Clean Water Act citizen suit only “to enjoin or otherwise abate an ongoing violation.” But the Court also held that the “ongoing violation” requirement is satisfied merely by “a good-faith allegation of ongoing violation” in the complaint.

Justice Scalia concurred in part. He agreed with the majority that a Clean Water Act citizen suit cannot be directed toward wholly past violations. But he disagreed that an “ongoing violation” can be established merely by alleging an ongoing violation, without adducing at some point proof of the ongoing violation. The Tenth Circuit in Benham quoted that part of Justice Scalia’s opinion addressing what, in his view, would constitute “an ongoing violation.”  Specifically, an ongoing or continuing violation occurs if the discharger has not clearly eliminated the cause of the violation.

That is a nuance that the Tenth Circuit missed. The cause of the violation of the Clean Water Act is the point source that adds pollutants to regulated waters. Hence, if the point source were removed or otherwise capped (a remedy not at issue in Gwaltney, as that likely would have required the plant’s shut-down), then the cause of any violation would necessarily be remedied. In Benham, the point sources presumably were the construction equipment used to build the road. By the time of suit, the mining company was no longer building the road, and thus the cause of the alleged unpermitted wetland fill had been entirely addressed. Now, it is true, as the Tenth Circuit observed, that the fill material—i.e., the pollutant—remained in the wetlands. But that has nothing to do with whether the cause of those pollutants being in the wetlands also remained. Indeed, there is no suggestion in Gwaltney, either in the majority or the partial concurrence, that the meat packing plant would have continued to be violation of the Clean Water Act until it had recovered the pollutants illegally discharged into the Chesapeake Bay. By the same reasoning, the mining company in Benham should not have been deemed to be in continuing violation of the Clean Water Act simply because the allegedly illegal road that it had constructed was still in place. At least, that would have been Justice Scalia’s view, pace the Tenth Circuit.*

*Another problem with the “continuing violation” theory is that it collapses the wrongful act with that act’s consequences. In other areas of the law (takings, for example) the government is always swift to note that continuing economic harm from a prior taking of private property is not relevant to the statute of limitations—what matters instead is when the alleged wrongful act occurred that ultimately is responsible for the ongoing economic harm. By the same reasoning, what should matter for Clean Water Act liability is when the wrongful act-discharge occurred, not whether the harm from that act (e.g., the persistence of unpermitted pollutants in regulated waters) persists.

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