1 ELR 20590 | Environmental Law Reporter | copyright © 1971 | All rights reserved

The Soap and Detergent Association v. Offutt

Nos. IP 71-C-301-303; IP 71-C-311 (S.D. Ind. August 31, 1971)

Plaintiffs' motion to enjoin enforcement of Indiana statute making sale of detergents with more than 12 percent phosphate content illegal as of January 1, 1972 and sale of detergents with more than 3 percent phosphate content illegal as of January 1, 1973, and affixing criminal penalties for violation of same while also providing for injunctive relief in case of violation, denied. Federal courts should tred carefully when asked to declare state statute unconstitutional. Prospective enforcement of criminal statute should be enjoined only where statute is unconstitutional on its face. No need to enjoin civil enforcement since any defense to statute available now would be available later. Equal protection argument fails because there is present a rational basis on which the state may single out soap and detergent products. Statute is not unconstitutionally vague. No impediment to interstate commerce is involved because statute would apply to product manufactured in Indiana. State has valid interest in fighting eutrophication of waters, and if this law is ineffectual the remedy lies with the state legislature.

Counsel for Plaintiffs:
Don A. Tabbert
Robert B. Keene
2410 Indiana National Bank Tower
Indianapolis, Ind. 46204
(317) 639-5444

Counsel for State:
Richard C. Johnson Chief Deputy Attorney General
William D. Christen Assistant Attorney General
Wayne R. Cook Deputy Attorney General
219 State House
Indianapolis, Ind. 46204
(317) 633-5512

Counsel for Indiana Division, Izaak Walton League of America Endowment, and Environmental Defense Fund, Inc., Intervenors:
Jonathan L. Birge
Bingham, Summers, Welsh & Spilman
2700 Indiana Tower
One Indiana Square
Indianapolis, Ind. 46204
(317) 635-8900

Opinion delivered from bench

[1 ELR 20590]

Stevens, J.:

Gentlemen, we have conferred very seriously about the case and as I indicated, we have studied the briefs with care. We have done some research of our own and we have tried our best to follow the evidence carefully. One point that has impressed us all is what we regard as the importance of having everyone know our appraisal of the case at this stage as promptly as possible, so that we are going to follow a somewhat unorthodox procedure right now and indicate our collective reaction to what kind of order should be entered, even though there will be some mechanics required to implement the substance of what I say. I should also indicate that although we are in unanimous agreement on the decisions which I willannounce, necessarily I would just comment rather informally on our appraisal of certain aspects of the case and these remarks may have to be subject to certain change in a written opinion formally, something of that character, but ultimately what is being requested is that a three Judge Federal Court enjoin the operation of a Statute enacted by the legislature of Indiana. You are asking us to assume a very serious responsibility in determining that an act taken by a sovereign state through its duly authorized legislature is in conflict with the Constitution of the United States and therefore that on the basis of the judgment of the Judges sitting up here representing the Federal Government, that that Statute may not be enforced, at least for a period of four and one-half months following the ultimate decision of this case. We have decided not to grant the preliminary injunction and the principal reason is that leads us to this conclusion I would say are the following. First, and underlying it all I might say is the basic feeling running through our reaction to the problem and also our reading of certain recent Supreme Court decisions we should go slow in this area unless we are sure this kind of action should be taken. As I say underlying it all is the sovereign state relationship which must be kept in mind at all times, but the most specific points are first, we have considerable concern about the form of the order which we are being asked to enter. We are conscious of the admonition of the Supreme Court in Gunn versus the University Committee Against The War In Vietnam, or some name such as that in 399 U.S., I think page 391, in which the Court admonished three Judge Federal Courts not to enjoin, not to enter vague orders with respect to the operation of State Statutes, and reminding the Court of the importance of compliance with Rule 65 (D) requiring that injunction be specific in terms, making it perfectly clear as to who is to be prevented from doing what. We have difficulty in our own minds on down the road with the nature of the relief that might be appropriate here. With respect to the criminal aspect of the case there is really no evidence of any pending threat of immediate prosecution. Although it is not in point directly because the cases involved prosecutions already underway the series of cases the Court decided beginning with Younger against Harris in 401 U.S. at 37 and the following cases indicate very strongly a Federal Court should not, should hesitate to interfere with the normal criminal processes of the state, and the basis for the criminal prosecution on grounds of vagueness we think would, well, let me state if different. The criminal prosecution could only arise in a specific situation, we think an injunction would only be appropriate if the Statute were invalid on its face, and even though there might be some problem a specific application where a defense could be raised in a particular prosecution we think the teaching of those cases indicates with respect to criminal prosecutions it would probably not be appropriate to enter an injunction even if the other side felt it was warranted.

On the civil side the only remedy I find in the Statute is the Attorney General of the State may institute civil proceedings to enforce in the event the Stream Pollution Control Board finds that to be appropriate, I don't have the exact procedure in mind, but it would seem unlikely there would need to be an injunction against the commencement of a civil suit in which the detergent manufacturers could raise all the defenses they seek to assert here, so we have doubt about the nature of the threat of immediate harm. Finally, with respect to the alternative of some form of declaratory judgment, we think we run into the problem of the vagueness of the order that was involved in the Gunn case, plus the fact such an order would probably not be appealable to the United States Supreme Court because it does not come within the Section 1243 definition granting or denying injunction. So, generally speaking we hve serious problems about the relief. Secondly, as is pointed out in the motion submitted by the Attorney General there is serious question about the extent of irreparable injury insofar as it is asserted as a basis for a preliminary injunction. It is contingent, as I understand the testimony on two facts. One, the manufacturers maintaining their decision that they would abandon the use of the non-phosphate product rather than disposing of it through some source and they may well do that although that amounts to just abandoning two or three million dollars worth of product, I think it was in the case of one company, but beyond that it is also contingent upon the manufacturers ultimately prevailing in the lawsuit. So, this brings us to the crux really of the, what we have talked about and that is the probability of success on the merits. And as to that it is our view that the Plaintiffs have not sustained their burden of persuading us that they are likely to be successful on the merits. With respect to, they make their basic claims, first of all they claim in substance that the Statute here is beyond the police power of the State and in violation of the due process clause of the Furteenth Amendment as a matter of what it might cause substantive due process.

For that proposition they rely on cases in which Mr. Justice Holmes dissented and we think Mr. Justice Holmes' dissents more accurately state the present law than the majority opinions in either the Lochner case, Lochner versus New York or the Weaver case involving, we think as a matter of law, the claims based on the substantive due process claims which is related to beyond the police power claim is insufficient, and that portion of the complaint would be dismissed. With respect to the equal protection clause claim they are based, which is basically you shouldn't do a part of a job unless you can do the whole job. We think also we could cite cases, this is insufficient as a matter of law, but the discrimination involved in not abandoning all phosphates on the one hand, or at least put in a, I think it's fuel oils, fuels to contain detergents, we think in the case of the Plaintiffs we do not find sufficient allegations of an absence of a rational basis for singling out phosphate or detergents containing phosphate.

So, we also have concluded as a matter of law that the claim, the complaints insofar as they are predicated on the equal protection clause [1 ELR 20591] are insufficient as a matter of law.

We also think the charge of vagueness which primarily relates to the term, quote "phosphate" end quote, and also the term "sell" is insufficient as a matter of law. We do not find I must acknowledge, they have perhaps been influenced to a certain extent by the fact many of the witnesses and many of counsel and even many of the Judges seem to have any difficulty understanding the term when it was used, so that we do not think the Statute is sufficiently vague to be held unconstitutional on its face which we think is the result which would be required if that portion of the complaints were to be held sufficient.

The commerce problem is a different matter. On that we are of the view that the complaints are sufficient on their face, but our appraisal of the evidence and we assume although this is subject to correction later, is the evidence does not persuade us that the Plaintiffs will succeed at trial on the merits and I will give you our thinking on that. First of all we don't find any problem of pre-emption, the parties all seem to agree that the Federal Government has not pre-empted the filed and excluded this subject matter from the field of proper state regulation. Secondly, we think that an inquiry that must be made at the outset is the necessity for uniformity in the particular industry involved. The cases which seem to go the farthest in sustaining an objection to a State Statute on commerce grounds are those involving interstate carrier such as in the Ellis case, or the Steamship in the Detroit smoke case, or the Illinois bus case, mud flaps or mud guard case and we think it certainly is true where you have a carrier who necessarily goes from state to state carrying the goods of third parties there is a higher interest in uniformity throughout the nation, but with respect to a commercial enterprise such as manufacturer of detergents there is not the same national interest in uniformity throughout the country. It seems to us as we read the cases that have been cited in the briefs that when you get in the area such as milk business and milk cases and fishery cases those cases seem to hold the State Statute invalid only if there is some discrimination against the out of State producers, putting in all in a nutshell. This situation, as we appraise the evidence, Indiana has not treated the Plaintiff manufacturers any differently than it would treat a detergent manufacturer located somewhere within the State of Indiana. The impact of the Statute, insofar as the evidence discloses, seems to be on the people of Indiana primarily who will be deprived of what may well be a very desirable product, phosphate detergents, and who may have to pay more because of the added cost of these large companies will have to incur to distribute in Indiana, but that is a cost and sacrifice the people of Indiana will have to suffer. We do not find in the evidence any significant showing of adverse impact on out of State consumers or on out of State manufacturers, except of course, there may be additional cost on Defendants. We don't think the economies of scale which are involved to a certain extent here really rise to the dignity of a constitutionally protected right.

Now, certainly, the State of Indiana has a valid interest in minimizing discharges into its lakes, streams and rivers. Proper interest in minimizing eutrophication, it may well be, and we are not prepared to express any ultimate conclusion on this, it may well be all of the witnesses the Plaintiffs have tendered are correct in their judgment this is a futile effort. Perhaps it will do no good, but basically what is being asked of this Court is to say the Indiana Legislature has no right to try this and see whether or not the experiment will work. We think this is something a Federal Court shall not do to a state, because, after all, if the clothing is not clean, if the underwear doesn't survive after it has been washed eight or ten times, the people who will suffer an adverse effect are the citizens of Indiana who have a proper remedy in the State Legislature. We believe that is the place where the decision should be made. We should not be asked to speak for the millions of housewives, and so forth, and so on, who are going to have to suffer the consequences. In other words, to put it more directly, if the people of Indiana prefer to wear gray shirts and have a little hardness distilled on their glasses, so forth and so on, as a price for obtaining cleaner water, or for obtaining a chance of having lesser phosphate content which in turn may produce or may not produce, we don't know, lesser amounts of algae, that is a choice which we feel the people of Indiana should make through the Indiana Legislature.

Now, so that we feel then the way we should pursue from here is that Defendant should prepare findings of facts and conclusions of law and submit them to the Plaintiffs, who will then have an opportunity to object to them. We do not think it would be appropriate to have an order entered today which would be in appealable form, because we believe such an order should be supported by findings and conclusions, and you should have an opportunity to go through the normal procedure before they are formally entered. We would propose to dismiss the portions of the complaint I have identified. As we read the Florida Landgrowers case, we think we must proceed with care with respect to the record pertaining to the Interstate Commerce claim. I think the Plaintiffs may well have additional evidence they may or may not wish to consider. I think we also have a picture of the evidence, but we would hope they would try to reduce it to written form and submit it in stipulated form, if they could, and we would urge the Defendants to be most cooperative in putting it in proper form, because if it can't be done we will, of course, have to have further proceedings, but we would hope it would not be necessary to do so.

Also, to make the record clear, I don't have the exhibit numbers in front of me, but the tendered exhibits with respect to which we reserved ruling, we will admit those, so they may be made a part of the record involving the newspaper article. And, finally, with respect to the status of the Soap Detergent Association, I think their complaint with the exception of the commerce issue would fall with what I've already said, that we think the complaint is defective because we do not think the Association has proper standing to maintain this action. Partly, authority for that would be in Toome against Whitsell, South Carolina Fisheries case, which is almost directly in point, and plus the fact we think on the facts as they seem to emerge from the record here, there is some question as to whether the position of the various members of the Association really are the same and would cast doubt on the standing of the Association, so we also propose to dismiss the complaint of the Association.

We would propose, and we will be glad to hear from counsel, it is not — the reporter of course will need time to write the transcript up, but 15 days after the transcript becomes available that the Defendants should submit the findings and conclusions to the Plaintiffs, and we would hope they could have their objections on file within 10 days after that. If that presents a problem, don't hesitate to advise us. I should say one other thing I had intended to say at the outset. I would really like to express the panel's gratitude and admiration to counsel for handling a difficult and complicated matter in an extremely competent and courteous professional way, every lawyer here.

So, that will be our ruling.

1 ELR 20590 | Environmental Law Reporter | copyright © 1971 | All rights reserved