Natural Resources Defense Council et al v. Ameren Energy Resources Company LLC et al

Filing 144

ORDER & OPINION entered by Judge Joe Billy McDade on 7/18/2017. The Court finds that Defendants are not entitled to a jury trial on the determination of civil penalties. Thus, Defendants' demand for a jury trial on this issue is stricken. See full Order & Opinion attached. (RK, ilcd)

E-FILED

Tuesday, 18 July, 2017 02:10:14 PM
Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
PEORIA DIVISION
NATURAL RESOURCES DEFENSE
COUNSEL, RESPIRATORY HEALTH
ASSOCIATION, and SIERRA CLUB,
INC.,

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Plaintiffs,
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v.
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ILLINOIS POWER RESOURCES, LLC, )
and ILLINOIS POWER RESOURCES
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GENERATING, LCC,
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Case No. 13-CV-1181

Defendants.

ORDER & OPINION
The matter before the Court is Defendants’ demand for the determination of
civil penalties through a trial by jury (Doc. 91). For the reasons explained below, this
Court finds that Defendants are not entitled to a jury trial for the determination of
civil penalties and therefore, the Court strikes Defendants’ jury demand.
BACKGROUND1
On July 30, 2015, Plaintiffs filed a Second Amended Complaint against
Defendants for violations under the Clean Air Act and equivalent Illinois law. (Doc.
88). On August 17, 2015, Defendants filed an Answer and demanded a “trial by jury
on all issues so triable.” (Doc. 91). On March 2, 2017, this Court directed the parties

For simplicity, the facts presented are limited to those pertinent to the
determination of Defendants’ jury demand. For a complete factual background, see
this Court’s Order and Opinion from August 23, 2016 on the Parties’ Motions for
Summary Judgment. (See Doc. 124).
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to file supplemental briefing as to whether the determination of civil penalties is an
issue triable by jury. On March 17, 2017, both Plaintiffs and Defendants concurrently
filed their briefs on this issue. (Docs. 136; 137). On March 24, 2017, both Plaintiffs
and Defendants filed their reply briefs. (Docs. 140; 141). Therefore, the matter is
fully briefed and ready for determination.
LEGAL STANDARDS
The Clean Air Act (“CAA”) provides that any citizen may bring suit on their
own behalf under the Act. The CAA citizen-suit provisions state, in relevant part,
that:
“The district courts shall have jurisdiction, without regard to the amount
in controversy or the citizenship of the parties, to enforce such an
emission standard or limitation, or such an order, or to order the
Administrator to perform such act or duty, as the case may be, and to
apply any appropriate civil penalties (except for actions under paragraph
(2)).”
42 U.S.C. § 7604(a) (emphasis added).
Furthermore, the CAA provides factors for the Court to consider when
determining a penalty assessment under the Act. That provision states:
“In determining the amount of any penalty to be assessed under this
section or section 7604(a) of this title, the Administrator or the court, as
appropriate, shall take into consideration (in addition to such other
factors as justice may require) the size of the business, the economic
impact of the penalty on the business, the violator's full compliance
history and good faith efforts to comply, the duration of the violation as
established by any credible evidence (including evidence other than the
applicable test method), payment by the violator of penalties previously
assessed for the same violation, the economic benefit of noncompliance,
and the seriousness of the violation.”
42 U.S.C. § 7413(e)(1) (emphasis added).
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DISCUSSION
Defendants are not entitled to a jury determination of the civil penalties;
therefore, Defendants’ demand for a jury trial on the remedies is stricken. Both
parties concede that the Court determines the amount of any civil penalty. (Doc. 140
at 1). However, Defendants argue that they are entitled to have a “jury decide the
facts on which any civil penalty is based.” (Doc. 140 at 1).
The Court finds that the Defendants are not entitled to have a jury decide the
facts upon which the judge will use to determine the civil penalties for several
reasons. First, the plain language of the CAA does not provide for a jury right to
determine that facts upon which the civil penalties are decided. Second, the United
States Supreme Court has held that the determination of civil penalties is not a
fundamental element of the jury trial. Third, several United States Courts of Appeals,
including the Seventh Circuit, have stated that the district courts determine the facts
upon which the civil penalties are based.
First, the plain language of the CAA does not provide a jury right to the
determination of the facts upon which the civil penalties are decided. Rather, the
CAA provides that it is the duty of the district court to determine the civil penalties
in an environmental enforcement action under the CAA. See 42 U.S.C. § 7604(a).
The CAA additionally provides that it is the duty of the district court to weigh certain
factors that are provided by statute, along with such other factors as justice may
require, when determining the amount of civil penalties to be assessed under the Act.
See 42 U.S.C. § 7413(e)(1). Nowhere within the relevant sections of the CAA does the
language provide that it is the function of a jury to determine appropriate civil

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penalties for violations of the CAA. Additionally, nowhere in § 7413(e)(1) does the
language of the CAA provide that it is the function of a jury to determine the
applicable facts the district court should use when determining the civil penalties.
The Defendants’ argument that the facts for the district court’s determination of civil
penalties must be decided by a jury is not supported by the text of the CAA.
Secondly, the Supreme Court has found that the determination of civil
penalties is not an essential function of a jury trial. See Tull v. United States, 481
U.S. 412 (1987)2. In Tull, the Supreme Court held that “a determination of a civil
penalty is not an essential function of a jury trial, and that the Seventh Amendment
does not require a jury trial for that purpose in a civil action.” Id. at 427. The
Supreme Court further found that:
“Congress' assignment of the determination of the amount of civil
penalties to trial judges therefore does not infringe on the constitutional
right to a jury trial. Since Congress itself may fix the civil penalties, it
may delegate that determination to trial judges. In this case, highly
discretionary calculations that take into account multiple factors are
necessary in order to set civil penalties under the Clean Water Act.
These are the kinds of calculations traditionally performed by judges.”
Id. at 426-27.

In Tull, the Supreme Court interpreted the Clean Water Act (“CWA”). The parties
agree that the CAA is virtually identical to the Clean Water Act and courts have
treated each statute’s civil penalties provisions in a similar manner when engaging
in interpretation. Cf. 42 U.S.C. § 7413(e)(1) with 33 U.S.C. § 1319(d); see also Pound
v. Airosol Co., 498 F.3d 1089, 1094 n.2 (10th Cir. 2007) (“The penalty provisions of
the CAA and the Clean Water Act (CWA) are virtually identical; thus, CWA cases are
instructive in analyzing issues arising from the CAA”); United States v. Dell’Aquilla,
150 F.3d 329, 338 n.9 (3d Cir. 1998) (“[T]he Clean Water Act and the Clean Air Act
are in pari materia, and courts often rely upon interpretations of the Clean Water Act
to assist with an analysis under the Clean Air Act.”) (citations omitted).

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Additionally, the Supreme Court found from the legislative history that it was
Congress’s intent that trial judges perform “highly discretionary calculations” to
determine appropriate civil penalties. Id. at 425.3 Therefore, the Court found that
the parties were not entitled to a jury trial on the determination of the civil penalties.
Defendants attempt to overcome the holding in Tull by citing Feltner v.
Columbia Pictures Television, Inc., 523 U.S. 340 (1998). Defendants argue that
Feltner characterized Tull as dicta. (Doc. 136 at 3-4). Furthermore, Defendants
argue that the Supreme Court distinguished Feltner by finding that “[i]n Tull . . . [the
Supreme Court was] presented with no evidence that juries historically had
determined the amount of civil penalties to be paid to the Government.” (Doc. 136 at
3-4) (citing Feltner at 355)).
Their argument is unpersuasive. Feltner is distinguishable from Tull because
the Supreme Court found that the determination of liability and damages had
historically belonged to the jury on the issue of copyright infringement under the

The legislative history of the CAA also demonstrates that Congress intended for the
CAA’s penalty assessment to operate in a similar manner as the Clean Water Act.
The CAA's penalty assessment criteria "[is] intended to be applied in the same
manner under this Act as the similar criteria that were added to the Clean Water Act
in 1987. '' See Chafee-Baucus Statement of Senate Managers, 136 Cong. Rec. S16,952
(daily ed. Oct. 27, 1990); see also Clean Air Act Amendments (Part 3): Hearings before
the Subcomm. on Health and the Env’t. of the Comm. on Energy and Commerce, 101st
Cong. No. 101-116, 867 (1990) (Bush Admin. Report) (“This clarifies existing law by
providing a specific list of factors to be considered in assessing penalties. The list is
identical to the factors used by the court under other environmental statutes”); Id. at
874 (“Section 609(a) & (c) amends CAA Section 304 to authorize courts to assess civil
penalties in citizen suits, as in the Clean Water Act. . . These amendments are
necessary to make citizen suits a more useful enforcement tool and to conform the
CAA to other major environmental statutes.”).
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Copyright Act. Id. at 347-55. However, as explained in Tull, there is no such evidence
that juries had historically determined civil penalties.
Furthermore, Feltner does not support the proposition that the jury determines
the facts on which the district court will rely when determining the amount of civil
penalties. The holding in Tull is most closely analogous to this issue and the Supreme
Court did not overrule it in Feltner, nor can its holding overcome it. Therefore, the
Supreme Court’s holding in Tull is controlling here.
Defendants also argue the position that it is the function of a jury to decide the
facts upon which the Court will determine the civil penalties by citing to Markman v.
Westview Instruments, Inc., 517 U.S. 370 (1996). Defendants assert that Markman
supports their argument that further findings of fact must be done by the jury for the
Court’s consideration when determining the amount of civil penalties. (Doc. 136 at
4-5).
Contrary to the Defendants’ assertion, the Court finds that Markman, as
applied with Tull, requires the Court to reach the opposite conclusion. The Supreme
Court stated in Markman that the determination of whether a particular issue is for
the jury to decide "must depend on whether the jury must shoulder this responsibility
as necessary to preserve the 'substance of the common-law right of trial by jury.'"
Markman at 377 (citing Tull at 426) (emphasis in original). The particular issue here
is whether there is a common-law jury trial right to determine civil penalties. The
Supreme Court has clearly answered that question in Tull by holding that there is no
common-law right to a jury trial on the determination of civil penalties. Tull at 427.

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Therefore, the jury does not need to shoulder the fact-finding determination because
there is no common-law jury trial right for determining civil penalties.
Third, the United States Court of Appeals for the Seventh Circuit, as well as
other circuits, have consistently held that under the CAA, it is within the discretion
of the district court to determine civil penalties.
While the United States Court of Appeals for the Seventh Circuit has not
explicitly addressed this issue, it has implicitly held that district courts are the
appropriate fact finders by holding that a “[district court’s] findings of fact in support
of a [§ 7413] penalty are reviewed for clear error.” See Sierra Club v. Khanjee Holding
(US) Inc., 655 F.3d 699, 707 (7th Cir. 2011) (citing Pound v. Airosol Co., Inc., 498 F.3d
1089, 1094 (10th Cir. 2007)). Courts in several other circuits have also held that it is
within the discretion of the district court to engage in fact-finding to determine civil
penalties. See Pound, 498 F.3d at 1094 (“We will uphold a district court's findings of
fact in support of a CAA penalty unless the findings are clearly erroneous.”); Env't
Tex. Citizen Lobby, Inc. v. ExxonMobil Corp., 824 F.3d 507, 525 (5th Cir. 2016)
(“[U]nderlying factual findings are reviewed only for clear error.”); see also United
States v. Smithfield Foods, Inc., 191 F.3d 516, 526 (4th Cir. 1999) (applying the “clear
error” standard of review for fact-finding by the district court in a Clean Water Act
penalty assessment); Catskill Mts. Chapter of Trout Unlimited, Inc. v. N.Y.C., 451
F.3d 77, 87 (2d Cir. 2006) (applying the “clear error” standard of review for factfinding by the district court in a Clean Water Act penalty assessment).

These

holdings clearly instruct that it is for this Court to not only determine the amount of

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civil penalties, but also to determine the relevant facts it is required to consider under
§ 7413(e)(1) and what weight it will give the listed factors.
The Court’s determination of facts for the civil penalties is appropriate for
several additional reasons.

First, fact-finding and application of those facts to

determine appropriate civil penalties is not an unusual task for this Court to perform.
“These are the kinds of calculations traditionally performed by judges.” Tull, 481
U.S. at 427. Second, determination of the facts by the jury would impose on the
“highly discretionary” calculations given to the Court when weighing the factors
listed in 42 U.S.C. § 7413(e)(1). If a jury were to determine the facts that the Court
may consider when determining civil penalties, it would either go too far into the
Court’s delegated authority or would not go far enough, which would render the jury’s
fact-finding useless. It becomes a near-impossible task to assign questions of fact to
a jury that would not intrude into the Court’s discretion when weighing the listed
factors, in addition to “such other factors as justice may require.” Finally, Congress
necessarily delegated this fact-finding authority to the Court through the CAA by not
affirmatively giving it to the jury in the text of the statute. If it was Congress’s intent
for the jury to decide the facts the Court may consider when weighing the factors
listed, it would have specifically given a jury that role within the text of the CAA.
However, it is clear this was not Congress’s intent when it delegated authority to the
Court to weigh the listed factors.
Therefore, the Defendants’ argument that a jury must determine the facts that
the district court may consider when determining civil penalties is unsupported and
this Court is not persuaded by Defendants’ argument.

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CONCLUSION
For these reasons, the Court finds that Defendants are not entitled to a jury
trial on the determination of civil penalties. Thus, Defendants’ demand for a jury
trial on this issue is stricken. IT IS SO ORDERED.
Entered this _18th__ day of July, 2017.
s/ Joe B. McDade
JOE BILLY McDADE
United States Senior District Judge

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