Citizen plaintiffs prove an ongoing violation by showing violations continue after the complaint is filed or by demonstrating a continuing likelihood of recurrence in intermittent or sporadic violations.
Following a Supreme Court remand, the Fourth Circuit reviews whether citizen plaintiffs proved an ongoing violation under the Clean Water Act. The court affirms the district court's finding that the plaintiffs made a good faith allegation of ongoing violation sufficient for jurisdiction. However, the court remands the case for further findings on the merits. The court holds that plaintiffs must prove an ongoing violation to prevail, which they may do by showing violations continuing after the complaint was filed or by adducing evidence of a continuing likelihood of recurrence in intermittent or sporadic violations. Intermittent violations remain ongoing until there is no real likelihood of repetition, requiring the district court to assess whether remedial actions eradicated the risk of continued violation.
At page 171 Proving ongoing violations by citizen plaintiffs35 citing cases“adducing evidence from which a reasonable trier of fact could find a continuing likelihood of a recurrence in intermittent or sporadic violations.”
- Courtland Co. v. Union Carbide Corp. (Courtland IV), No. 2:21-cv-00487 (S.D. W. Va. July 1, 2022).UCC’s water-volume argument is unavailing because the Clean Water Act reaches even “intermittent or sporadic violations.” Chesapeake Bay Found., 844 F.2d at 172.
- Courtland Co. v. Union Carbide Corp. (Courtland III), No. 2:21-cv-00101 (S.D. W. Va. July 1, 2022).UCC’s water-volume argument is unavailing because the Clean Water Act reaches even “intermittent or sporadic violations.” Chesapeake Bay Found., 844 F.2d at 172.
- Conservation Law Found., Inc. v. New Hampshire Fish & Game Dep't, 2020 DNH 150 (D.N.H. 2020).published (holding that citizen-plaintiff can prove an ongoing violation “by proving violations that continue on or after the date the complaint is filed)
- Ohio Valley Env't Coalition, Inc. v. Alex Energy, Inc., 34 F. Supp. 3d 632 (S.D. W. Va. 2014).published Gwaltney IV, 844 F.2d at 171-72; see also Alex Energy, 12 F.Supp.3d at 865-66 , 2014 WL 1329919, at *14 ; Fola, 2013 WL 6709957 , at *24.
- Ohio Valley Env't Coalition, Inc. v. Alex Energy, Inc., 12 F. Supp. 3d 844 (S.D. W. Va. 2014).published Gwaltney III, 844 F.2d at 171-72; see also Fola, 2013 WL 6709957 , at *24-25.
- Ohio Valley Env't Coalition, Inc. v. Hobet Mining, LLC, 723 F. Supp. 2d 886 (S.D. W. Va. 2010).published Chvaltney II, 844 F.2d at 171-72.
- Ohio Valley Env't Coalition, Inc. v. Hobet Mining, LLC, 717 F. Supp. 2d 541 (S.D. W. Va. 2010).published Gwaltney II, 844 F.2d at 171-72.
- Adams v. Teck Cominco Alaska, Inc., 414 F. Supp. 2d 925 (D. Alaska 2006).publishedSierra Club v. Union Oil Co., 853 F.2d 667, 671 (9th Cir.1988) (quoting Chesapeake Bay Foundation, Inc. v. Gwaltney of Smithfield, Ltd., 844 F.2d 170, 171-72 (4th Cir.1988)). 32 .
- Am. Canoe Ass'n v. Murphy Farms, Inc., 412 F.3d 536 (4th Cir. 2005).published Chesapeake Bay Foundation, Inc. v. Gwaltney of Smithfield, Ltd., 844 F.2d 170, 171-72 (4th Cir.1988) (“Gwaltney II”).
- Hiebenthal v. Meduri Farms, 242 F. Supp. 2d 885 (D. Or. 2002).published As the Magistrate observed, a plaintiff must be able to allege that the violations are ongoing, pointing either to “violations that continue on or after the date the complaint is filed” or to “evidence from which a reasonable trier of fact…
Show 24 more citing cases
- Ecological Rights Found. v. Pac. Lumber Co., 61 F. Supp. 2d 1042 (N.D. Cal. 1999).publishedUnder Ninth Circuit case law, a plaintiff may establish a violation of the Act “either (1) by proving violations that continue on or after the date the complaint is filed, or (2) by adducing evidence from which a reasonable trier of fact c…
- Frilling v. Honda of Am. Mfg., Inc., 101 F. Supp. 2d 841 (S.D. Ohio 1998).published Second, the plaintiff can adduce evidence “from which a reasonable trier of fact could find a continuing likelihood of recurrence in intermittent or sporadic violations.” Id. at 171-72.
- Prisco v. State of NY, 902 F. Supp. 374 (S.D.N.Y. 1995).publishedUpon remand, the Fourth Circuit further clarified that a good faith allegation of continuous or intermittent violations is made when a citizen plaintiff proves that a violation continued on or after the complaint is filed or “adduces evide…
- Friends of the Earth, Inc. v. Chevron Chem. Co., 900 F. Supp. 67 (E.D. Tex. 1995).published(adopted by the Fifth Circuit in Carr, 931 F.2d at 1062)
- Nat. Resources Def. Council, Inc. v. Texaco Refining & Mktg., Inc., 2 F.3d 493 (3d Cir. 1993).published A continuing likelihood of intermittent or sporadic violations exists until there is "no real likelihood of repetition.” Gwaltney II, 844 F.2d at 172; Union Oil, 853 F.2d at 671 .
- Pub. Interest Rsch. Grp. v. Yates Indus., Inc., 790 F. Supp. 511 (D.N.J. 1991).published“Citizen-plaintiffs may accomplish this [requirement] either (1) by proving violations that continue on or after the date the complaint is filed, or (2) by adducing evidence from which a reasonable trier of fact could fi…”
- Allen Cnty. Citizens for the Env't, Inc. v. BP Oil Co., 762 F. Supp. 733 (N.D. Ohio 1991).published Therefore, like the Fourth Circuit in Gwaltney, the Court holds that the plaintiff must ultimately “prove that violations continued on or after the date the complaint was filed.” Gwaltney, 844 F.2d at 171.
- State Line Fishing & Hunting Club, Inc. v. City of Waskom, 754 F. Supp. 1104 (E.D. Tex. 1991).publishedSierra Club v. Union Oil Company, 853 F.2d 667, 671 (9th Cir.1988); Chesapeake Bay Foundation, Inc. v. Gwaltney of Smithfield, Ltd., 844 F.2d 170, 171-72 (4th Cir.1988).
- Nat. Resources Def. Council, Inc. v. Gould, Inc., 733 F. Supp. 8 (D. Mass. 1990).publishedGwaltney, 844 F.2d at 171-172.
- Chesapeake Bay Found., Inc. v. Gwaltney of Smithfield, Ltd., 890 F.2d 690 (4th Cir. 1989).published“for further findings as to whether, on the merits, plaintiffs proved at trial an ongoing violation”
- Chesapeake Bay Found., Inc. v. Gwaltney of Smithfield, Ltd., 688 F. Supp. 1078 (E.D. Va. 1988).publishedThe Court may find that an ongoing violation has been proved if at trial the plaintiffs either (1) ... “prov[ed] violations that continue[d] on or after the date the complaint was filed, or (2) ... adduc[ed] evidence from which a reasonabl…
- Courtland Co. v. Union Carbide Corp. (Courtland III), No. 2:21-cv-00101 (S.D. W. Va. May 13, 2021).See Chesapeake Bay Found., 844 F.2d at 171-72.
- West Virginia Highlands Conservancy v. Bluestone Coal Corp., No. 1:19-cv-00576 (S.D. W. Va. July 27, 2020).See Gwaltney of Smithfield, 844 F.2d at 172 (4th Cir. 1988).
- Ohio Valley Env't Coalition v. Elk Run Coal Co., 24 F. Supp. 3d 532 (S.D. W. Va. 2014).published(drawing a distinction between making “a good faith allegation of ongoing violation sufficient to maintain jurisdiction” and “prov[ing] [an] allegation of continuous or intermittent violation[ ], as required in order to…)
- Cmty. Ass'n for Restoration of the Env't v. Henry Bosma Dairy, 65 F. Supp. 2d 1129 (E.D. Wash. 1999).published See Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., 484 U.S. 49, 64 , 108 S.Ct. 376 , 98 L.Ed.2d 306 (1987), on remand, 844 F.2d 170 (4th Cir.1988); rev’d in part, 890 F.2d 690 (4th Cir.1989).
- Nick Carr v. Alta Verde Indus., Inc., 931 F.2d 1055 (5th Cir. 1991).publishedOn remand in Gwaltney , however, the Fourth Circuit concluded that the plaintiff must prove at trial an ongoing violation "at the time suit was brought." Gwaltney, 890 F.2d 690, 693 (4th Cir.1989) (“The question is whether, at the time sui…
- Sierra Club v. Union Oil Co. of California, 853 F.2d 667 (9th Cir. 1988).published
- Allen Cnty. Citizens for Env't, Inc. v. BP Oil Co., 966 F.2d 1451 (6th Cir. 1992).unpublished
- Ohio Valley Env't Coalition, Inc. v. Maple Coal Co., 808 F. Supp. 2d 868 (S.D. W. Va. 2011).published
- Ohio Valley Env't Coalition, Inc. v. Coal-Mac, Inc., 775 F. Supp. 2d 900 (S.D. W. Va. 2011).published
- Tamaska v. City of Bluff City, 26 F. App'x 482 (6th Cir. 2002).unpublished
- Friends of Maha'ulepu, Inc. v. Hawai'i Dairy Farms, LLC, 224 F. Supp. 3d 1094 (D. Haw. 2016).published
- Ohio Valley Env't Coalition, Inc. v. Marfork Coal Co., 966 F. Supp. 2d 667 (S.D. W. Va. 2013).published
- Kanawha Forest Coalition v. Keystone West Virginia, LLC, No. 2:22-cv-00367 (S.D. W. Va. Oct. 4, 2023).
At page 172 Determining ongoing nature of intermittent violations for jurisdiction16 citing cases“intermittent or sporadic violations do not cease to be ongoing until the date when there is no real likelihood of repetition.”
- Courtland Co. v. Union Carbide Corp. (Courtland IV), No. 2:21-cv-00487 (S.D. W. Va. July 1, 2022).“intermittent or sporadic violations”
- Courtland Co. v. Union Carbide Corp. (Courtland III), No. 2:21-cv-00101 (S.D. W. Va. July 1, 2022).“intermittent or sporadic violations”
- Potomac Riverkeeper, Inc. v. Nat'l Capital Skeet & Trap Club, Inc., 388 F. Supp. 2d 582 (D. Md. 2005).published See Gwaltney I, 484 U.S. at 64 , 108 S.Ct. 376 ; Gwaltney II, 844 F.2d at 172. *586 Franks has adduced uncontradicted evidence that the Club is unlikely to continue to violate the CWA.
- San Francisco Baykeeper, Inc. v. Moore, 180 F. Supp. 2d 1116 (E.D. Cal. 2001).published(also phrasing the question as “whether the risk of defendant’s continued violation had been completely eradicated when citizen-plaintiffs filed suit)
- Frilling v. Honda of Am. Mfg., Inc., 101 F. Supp. 2d 841 (S.D. Ohio 1998).published Second, the plaintiff can adduce evidence “from which a reasonable trier of fact could find a continuing likelihood of recurrence in intermittent or sporadic violations.” Id. at 171-72.
- Umatilla Waterquality Protect. Ass'n v. Smith Frozen Foods, Inc., 962 F. Supp. 1312 (D. Or. 1997).published In addition, the Ninth Circuit agreed that “ ‘[¡Intermittent or sporadic violations do not cease to be ongoing until the date when there is no real likelihood of repetition.’ ” Id. (quoting Gwaltney II, 844 F.2d at 172) (emphasis added by…
- Nat. Resources Def. Council, Inc. v. Texaco Refining & Mktg., Inc., 2 F.3d 493 (3d Cir. 1993).published “no real likelihood of repetition”
- Connecticut Coastal Fishermen's Ass'n v. Remington Arms Co., 989 F.2d 1305 (2d Cir. 1993).publishedSee Union Oil, 853 F.2d at 670-71 ; Gwaltney, 844 F.2d at 172.
- Connecticut Coastal Fishermen's Ass'n v. Remington Arms Co., 989 F.2d 1305 (2d Cir. 1993).publishedSee Union Oil, 853 F.2d at 670-71 ; Gwaltney, 844 F.2d at 172. 24 We are persuaded that the Coastal Fishermen's Clean Water Act suit fails because neither the original complaint filed in April, nor its amendment in October 1987, alleges an…
- State Line Fishing & Hunting Club, Inc. v. City of Waskom, 754 F. Supp. 1104 (E.D. Tex. 1991).publishedSierra Club v. Union Oil Company, 853 F.2d 667, 671 (9th Cir.1988); Chesapeake Bay Foundation, Inc. v. Gwaltney of Smithfield, Ltd., 844 F.2d 170, 171-72 (4th Cir.1988).
Show 5 more citing cases
- West Virginia Highlands Conservancy v. Bluestone Coal Corp., No. 1:19-cv-00576 (S.D. W. Va. July 27, 2020).See Gwaltney of Smithfield, 844 F.2d at 172 (4th Cir. 1988).
- Atl. States Legal Found., Inc. v. Tyson Foods, Inc., 897 F.2d 1128 (11th Cir. 1990).published(important question for district court to consider is whether the risk of defendant's continued violation had been completely eradicated when citizen-plaintiffs filed suit)
- Ctr. for Biological Diversity v. Swift Beef Co., No. 1:19-cv-01464 (D. Colo. June 2, 2020).See also [#27 at 21 (“Violations are wholly past if risk of a recurring violation ‘has been completely eradicated when citizen-plaintiff filed suit.’”) (quoting Chesapeake Bay, 844 F.2d at 172)].
- Nat. Resources Def. Council San Diego Baykeeper v. Sw. Marine, Inc., 236 F.3d 985 (9th Cir. 2000).published
- Adams v. Teck Cominco Alaska, Inc., 396 F. Supp. 2d 1095 (D. Alaska 2005).published
Other citing cases
- Moss v. Sal Lapio, Inc., 467 F. Supp. 3d 259 (E.D. Pa. 2020).published
- Am. Canoe Ass'n v. Murphy Farms, Inc., 326 F.3d 505 (4th Cir. 2003).published
- Atl. States Legal Found., Inc. v. Pan Am. Tanning Corp., 993 F.2d 1017 (2d Cir. 1993).published
- Sierra Club v. Simkins Indus., Inc., 847 F.2d 1109 (4th Cir. 1988).published
- Comite Pro Rescate De La Salud v. Puerto Rico Aqueduct & Sewer Auth., 693 F. Supp. 1324 (D.P.R. 1988).published
- Pennenvironment v. PPG Indus., Inc., 127 F. Supp. 3d 336 (W.D. Pa. 2015).published
- PennEnvironment v. PPG Indus., Inc., 964 F. Supp. 2d 429 (W.D. Pa. 2013).published
- Puerto Rico Campers' Ass'n v. Puerto Rico Aqueduct & Sewer Auth., 219 F. Supp. 2d 201 (D.P.R. 2002).published
- Tobyhanna Conservation Ass'n v. Country Place Waste Treatment Facility, 769 F. Supp. 739 (M.D. Pa. 1991).published
v.
GWALTNEY OF SMITHFIELD, LTD., United States of America, Amicus Curiae, Atlantic States Legal Foundation, Connecticut Fund for the Environment, Friends of the Earth, Sierra Club, and Student Public Interest Research Group of New Jersey, Amici Curiae
We again consider this case on remand from the Supreme Court's decision in[*171] Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., — U.S. —, 108 S.Ct. 376, 98 L.Ed.2d 306 (1987). In Gwaltney, the Supreme Court held that § 505(a) of the Clean Water Act, 33 U.S.C. § 1365(a), does not confer federal jurisdiction over citizen suits for wholly past violations, but does permit such suits when there is a pattern of intermittent violations, even if there is no violation at the moment suit is filed. Upon due consideration of the supplemental memoranda filed by the parties, we remand to the district court for further findings on whether citizen-plaintiffs have proved an ongoing violation within the meaning of the Supreme Court’s decision. We do not think that the deci-sional process would be aided by further oral argument.
I.
The Súpleme Court’s decision in Gwalt-ney resolved a conflict in the Circuit Courts of Appeals, see 108 S.Ct. at 380-81, by vacating our judgment in Chesapeake Bay Foundation, Inc. v. Gwaltney of Smithfield, Ltd., 791 F.2d 304, 308 n. 9 (4 Cir.1986) (holding that § 505 applies to a citizen-plaintiff claim of wholly past violations). The Supreme Court held that citizen-plaintiff suits under § 505 could not be based on wholly past violations, but carefully distinguished an allegation of a wholly past violation from allegations of intermittent or sporadic violations. The Court noted legislative history in support of the proposition that
an intermittent polluter — one who violates permit limitations one month of every three — is just as much “in violation” of the Act as a continuous violator.
The Supreme Court remanded in light of its holding that “§ 505 confers jurisdiction over citizen suits when citizen-plaintiffs make a good faith allegation of continuous or intermittent violation_” 108 S.Ct. at 385. As the Supreme Court observed (id.), we perceived “a very sound argument” that plaintiff’s allegations of continuing violations were made in good faith, but expressly declined to rule on the district court’s finding of a sufficient good faith allegation. 791 F.2d at 308 n. 9. We must now review the district court’s finding that citizen-plaintiffs made a good faith allegation of ongoing violation sufficient to maintain jurisdiction.
We also think that we are confronted with an additional issue on remand. Consistent with the language of the majority opinion, we must also review the district court’s decision for a determination of whether citizen-plaintiffs have proved their allegation of continuous or intermittent violations, as required in order to prevail. See 108 S.Ct. at 386.[1]
II.
The district court did find a good faith allegation of ongoing violation sufficient to avoid threshhold jurisdictional challenges. We now hold that the district court’s finding that the allegations were made in good faith, see 611 F.Supp. 1542,1549 n. 8, is not clearly erroneous.
III.
We remand to the district court for further findings as to whether, on the merits, plaintiffs proved at trial an ongoing violation. Citizen-plaintiffs may accomplish this either (1) by proving violations that continue on or after the date the complaint is filed, or (2) by adducing evidence from which a reasonable trier of fact could find[*172] a continuing likelihood of a recurrence in intermittent or sporadic violations. Intermittent or sporadic violations do not cease to be ongoing until the date when there is no real likelihood of repetition. While the district court did make subsidiary findings pertinent to this issue, see, e.g., 611 F.Supp. at 1549 n. 8, 1566 (Appendix A), it did not make a direct finding as to whether citizen-plaintiffs proved the existence of intermittent or sporadic violations constituting an ongoing violation.
Consistent with the guidance of the Supreme Court majority and concurring opinions, the district court may wish to consider whether remedial actions were taken to cure violations, the ex ante probability that such remedial measures would be effective, and any other evidence presented during the proceedings that bears on whether the risk of defendant’s continued violation had been completely eradicated when citizen-plaintiffs filed suit.
REMANDED.
The Supreme Court Justices who concurred in parts of the majority opinion and the judgment suggest that because the majority views subject matter jurisdiction to be met by good-faith allegations, the majority implies that a "plaintiff can never be called on to prove that jurisdictional allegation.” 108 S.Ct. at 386-87. We think that the majority does expressly require that a citizen-plaintiff prove the existence of an ongoing violation (continuous or intermittent) in order to prevail. 108 S.Ct. at 386. The majority and the Justices concurring separately differ as to when this proof would be required, with the concurrence requiring proof of an ongoing violation as a threshold jurisdictional matter.