Clean Water Act does not preclude punitive damages under common law
Clean Water Act does not preclude punitive damages under common law

Howard A. Learner [counsel for the Environmental Amici, Environmental Law & Policy Center]: "Sixteen environmental and Alaskan conservation organizations, represented by public interest attorneys from the Environmental Law & Policy Center, filed an amicus curiae brief before the U.S. Supreme Court in the Exxon (Valdez) Shipping case focused on the important issue of whether the federal Clean Water Act should be held to preempt maritime law remedies for damages to private property and other economic damages caused by oil spills.

Allowing such preemption would create an unwarranted gap in the framework of federal and state statutes and federal and state common law governing clean water protection. The Clean Water Act is designed to "restore and maintain" the integrity of our nation's waters. It should not shield a private company from part of its liability for damages arising from an environmental disaster for which it is responsible. The environmental amici are seeking to protect the public's interests in the integrity and effectiveness of the nation's integrated system of environmental statutes and common law remedies to preserve our natural resources and achieve cleaner waters.

The Clean Water Act (CWA), state statutes and common law rights and remedies together provide a complementary and robust legal structure for cleaning up our nation's waters. Exxon's argument before the Court that the CWA "leaves no room" for maritime law punitive damages remedies would create a gap in this structure even though Congress stated no such intent.

The CWA's text and the legislative history indicate that Congress intended the Act to supplement private remedies by enhancing the federal government's ability to deter and clean up oil and other water pollution, not to displace shipowners' existing obligations and incentives to keep clean water clean. Moreover, Congress' silence in the statute cannot be deemed to imply preemption, especially when the CWA includes savings clauses that explicitly preserve private remedies for damages to property and allow any person, under common law, "to seek any other relief. . . ." There is a legal presumption favoring the retention of common law remedies where Congress has not directly spoken.

Punitive damages awards for economic losses of private parties do not inherently conflict with the administration of the CWA, nor frustrate any purpose of the federal remedial scheme. Exxon has not overcome the presumption that when Congress passes legislation, it intends to retain common law remedies. United States v. Texas, 507 U.S. 529, 534 (1993). This case is much like Silkwood v. Kerr-McGee in which the Court held that state-imposed punitive damages for the release of plutonium from a nuclear power plant were available despite the extensive federal regulatory framework governing nuclear safety. 464 U.S. 238 (1984).

Effective environmental protection depends on the interwoven fabric of federal statutory and regulatory standards, state statutory and regulatory standards, and federal and state common law remedies. Federal environmental laws often work in combination with, and leave room for, pre-existing private remedies, and they should be interpreted to preserve common law remedies unless Congress has directly spoken to displace them. Under Exxon's theory, Congress would be compelled to write even more detailed and lengthier statutes lest a gap be implied even when a savings clause is specifically enacted.

Exxon's conduct in this case – leaving a relapsed alcoholic in command of a supertanker – resulted in an environmental disaster and widespread property damage. Accepting Exxon's overreaching preemption argument in this case could lead to the ironic and unfortunate result of the federal Clean Water Act being used as a shield against, rather than a sword to help achieve, cleaner water. Exxon's expansive preemption theory fails to account for the CWA's savings clauses, and it is contrary to the presumptions against preemption and in favor of the retention of existing common law remedies. Exxon's argument, if accepted, would weaken environmental protections, threaten principles of federalism, and undermine Congress' efforts to protect the nation's waters."

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