484 U. S. 49
December 1, 1987
The Clean Water Act allowed for private citizens to initiate civil suits against anyone “alleged to be in violation” of the Act. One company was sued in such an action, but all of the polluting had ceased before the suit was filed. Because the company was no longer polluting, they argued that they could not “be in violation” of the Act, and the suit should be dismissed.
Unanimously, the Supreme Court agreed that the Act did not cover suits for past pollution. Justice Marshall carefully parsed the statute’s language. Although apparently ambiguous, close textual analysis revealed that the private citizen suits were assumed to be forward rather than retrospective looking. What’s more, excluding past pollution from lawsuit was both in line with legislative history, and the law’s purpose of having private suits supplement rather than replace government action. Nonetheless, instead of dismissing the suit, Marshall remanded. Because only allegation of violation was required by the statute, he felt the case could still go to trial if the allegation had been made in good faith.
Scalia, joined by Stevens and O’Connor, objected to this final holding. A simple allegation was not enough for a case to go forward. At least some hard evidence of actual violation would need to be adduced, else anyone could go around coming up with baseless allegations. Even so, Scalia still concurred in the remand. While the company had not polluted for a few weeks prior to the suit’s genesis, to get it dismissed, they would have to demonstrate that they had taken affirmative steps to not pollute anymore. “A good or lucky day is not a state of compliance.” I’m glad for the unanimous portion of the case, but I’m sad Scalia lost on the reason for the remand. Frivolous lawsuits must be discouraged, and requiring hard evidence to back up allegations is a good start.