WARRENTON, OREGON—NELC recently won a groundbreaking ruling in a Clean Water Act enforcement suit against Pacific Seafood Group, the largest vertically integrated seafood company on the West Coast. In September, U.S. District Court Judge Ancer L. Haggerty issued an order rejecting Pacific Seafood's request that the court dismiss the suit in deference to the company's negotiations with the Oregon Department of Environmental Quality (DEQ). The court's ruling effectively thwarted a larger scheme by corporate lobbyists to gut the Clean Water Act's public participation provisions in Oregon, and brought Pacific Seafood one step closer to a final reckoning for its environmental misdeeds.

NELC filed the lawsuit in June 2002 on behalf of the Oregon State Public Interest Research Group (OSPIRG) and two local residents, who had grown concerned about Pacific Seafood's years of illegal wastewater discharges at its Warrenton processing plant. Each day, the plant discharges thousands of gallons of high-strength wastewater containing the remains of fish, crab, and shrimp carcasses into the Skipanon River, a tributary of the Columbia River. For years, the company has violated various discharge limits imposed by its Clean Water Act permit, and even now operates a portion of its plant with no permit at all. The plant's wastewater discharges can harm wild fish and other aquatic life by reducing dissolved oxygen, limiting light penetration, and releasing oils that can clog gills. The discharges also cause a frothy sheen to form on the river's surface and create a palpable stench, which tends to discourage recreation on the affected parts of the river.

Despite these longstanding harms, DEQ - the Oregon state agency with primary enforcement responsibility under the Act - took no concrete steps to issue a penalty against Pacific Seafood until after NELC got involved. Up to that point, DEQ had only issued a series of form letters notifying Pacific Seafood that violations had been documented and that the case might be referred for later enforcement. Not surprisingly, the violations continued.

In a motion filed in June 2004, Pacific Seafood argued that these limited enforcement steps taken by DEQ justified the dismissal of the suit. Pacific Seafood relied upon an Oregon law, unique among those of all 50 states, purporting to back-date the commencement of any state enforcement action to the day that the first such warning letter was ever issued, so long as a penalty was eventually assessed at some later date. This peculiar provision had been added to the Oregon statute books at the behest of powerful business interests, who knew that the Clean Water Act prohibits citizen-filed enforcement lawsuits only if they are commenced after EPA or the state takes certain formal enforcement actions.

The Clean Water Act is structured in this way to encourage the filing of timely enforcement actions -- if not by the government, then by affected citizens. By allowing DEQ to effectively reset the date when an enforcement action officially begins, these lobbyists hoped that citizen enforcement efforts could be snuffed out even after they were already underway. "It was essentially an attempted end-run around the public participation features of the Clean Water Act," said NELC attorney Stephanie Matheny.

This case provided a textbook example of the lobbyists' strategy in action. In the years prior to NELC's lawsuit, Pacific Seafood had been successful in persuading DEQ not to impose any penalty on the company for its many violations of the Clean Water Act. However, shortly after NELC lawyers provided notice to Pacific Seafood of their intention to file suit, the company wrote to DEQ asking for a penalty (albeit a small one), and requesting that the Oregon backdating law be invoked.

"Like many state agencies across the country," notes NELC Litigation Director Charles Caldart, "DEQ issues warning letters to polluters all the time without necessarily doing any follow-up enforcement. If a law such as Oregon's were to be given its intended effect, private citizens and environmental group would be unlikely to file enforcement suits against polluters who had already received a warning letter, since the polluter could always kill the suit by requesting state enforcement action - no matter how inadequate - months or even years later."

Fortunately, the judge rejected Pacific Seafood's argument, reaffirming the right of citizens to sue under the Clean Water Act when a state environmental agency does not fully enforce the law. Describing Pacific Seafood's position as "without merit," the court ruled that the Oregon law could not operate to deny citizens their legally-entitled day in court.

"This is a huge victory," said NELC attorney Joseph Mann. "A contrary ruling would have severely limited future Clean Water Act citizen suits in Oregon, and likely would have encouraged other states to adopt similar legislation."

In late fall, NELC filed a motion seeking a finding of liability against Pacific Seafood for hundreds of violations of the Clean Water Act. A decision on that motion is expected early in 2005.