ELR Citation: ELR 20294
No(s). 83-2040 (D.N.J. Jan 21, 1985)

In a preliminary ruling in a Federal Water Pollution Control Act (FWPCA) §505 citizen suit, the court rules that plaintiffs may seek penalties for past violations, that neither a state statute of limitations nor laches bars the suit, and the §505 is constitutional. The court reiterates a prior ruling in the case, 14 ELR 20228, that §505 applies to past violations. Both the plain meaning of the statute and its legislative history support this view; canons of statutory construction and case law do not argue otherwise. The court next declines to apply a state two-year statute of limitations to the case, because the period is so short as to be inconsistent with the purposes of the FWPCA. Also, the court finds no undue prejudice to the defendant that might justify invoking laches.

Finally, the court rules that §505 is constitutional. It is no violation of separation of powers for Congress to assign enforcement powers to citizens. The citizen enforcement scheme may at times hinder agency action, or involve the judiciary in enforcement, but these are not constitutional flaws. The section is not standardless delegation of power, despite the lack of specific guidance on the size of penalties that the court can assess and the lack of a statute of limitations. The court also summarily rejects defendants' constitutional arguments regarding standard, proximate cause, and protection of interests.

[Related decisions appear at 14 ELR 20228 and 15 ELR 20297.]

Counsel for Plaintiffs
Bruce J. Terris, Carolyn A. Smith
Terris & Sunderland
1121 12th St., NW, Washington DC 20005
(202) 682-2100

Michael Gordon
Gordon & Gordon
80 Main St., West Orange NJ 07052
(201) 736-0094

Counsel for Defendant
Robert F. Blomquist, Kenneth D. Roth
Davis, Reberkenny & Abramowitz, P.A.
499 Cooper Landing Rd, Cherry Hill NJ 08002
(609) 677-6000

Counsel for Amicus Curiae
Jeffrey P. Minear
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-1442