Amicus Curiae Brief — ExxonMobil Corporation, et al., Petitioners v. Environment Texas Citizen Lobby, Incorporated, et al.

Supreme Court briefMay 9, 2025

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No. 24-982

In the

Supreme Court of the United States

_______________

EXXONMOBIL CORPORATION, ET AL.,

Petitioners,

ENVIRONMENT TEXAS CITIZEN LOBBY, INC., ET AL.,

Respondents.

_______

On Petition for Writ of Certiorari to the United

States Court of Appeals for the Fifth Circuit

______________

BRIEF OF AMERICAN FREE CHAMBER OF

COMMERCE AND ENERGY FREEDOM FUND,

INC., AS AMICI CURIAE IN SUPPORT OF

PETITIONERS

_______________

WILLIAM P. BARR

TORRIDON LAW PLLC

801 17TH ST NW

SUITE 1100

WASHINGTON DC 20006

MICHAEL B. BUSCHBACHER

JAMES R. CONDE

Counsel of Record

AUSTIN LIPARI

BOYDEN GRAY PLLC

800 CONNECTICUT AVENUE,

SUITE 900

WASHINGTON, DC 20006

(202) 955-0620

jconde@boydengray.com

TABLE OF CONTENTS

INTEREST OF AMICI CURIAE ............................... 1

INTRODUCTION AND SUMMARY OF

ARGUMENT ....................................................... 3

BACKGROUND ......................................................... 6

The Clean Air Act “Citizen-Suit” ................ 6

Steel Co. and Laidlaw ................................. 7

ARGUMENT ............................................................ 10

II.

Laidlaw Is Egregiously Wrong and Unworkable

........................................................................... 11

Laidlaw Conflicts with Precedent, History,

and Tradition ............................................. 13

Laidlaw Abolishes Core Standing

Requirements ............................................ 16

Laidlaw’s Theory of Deterrence Is Wrong or

Speculative ................................................ 18

Laidlaw Raises Grave Article II Concerns ...... 20

The Power To Prosecute Public Fines for

Public Offenses Belongs to the President

Alone .......................................................... 20

The Clean Air Act’s Citizen-Suit Provision

Hands Over Core Prosecutorial Power to

Private Persons ......................................... 22

Laidlaw Undermines Liberty and

Accountability ............................................ 24

CONCLUSION ......................................................... 26

TABLE OF AUTHORITIES

Page(s)

Cases

In re Aiken Cnty.,

725 F.3d 255 (D.C. Cir. 2013) ........................ 21–22

California v. Texas,

593 U.S. 659 (2021) ........................................ 12, 21

Carney v. Adams,

592 U.S. 53 (2020) ................................................ 11

Casillas v. Madison Ave. Assocs., Inc.,

926 F.3d 329 (7th Cir. 2019) .................................. 3

Dep’t of Army v. Blue Fox, Inc.,

525 U.S. 255 (1999) ................................................ 7

Ellis v. Gallatin Steel Co.,

390 F.3d 461 (6th Cir. 2004) ................................ 11

FDA v. All. for Hippocratic Med.,

602 U.S. 367 (2024) .............................................. 12

Friends of Earth, Inc. v. Laidlaw Env’t

Servs. (TOC), Inc.,

149 F.3d 303 (4th Cir. 1998) .................................. 9

Friends of the Earth, Inc. v. Laidlaw

Env’t Servs. (TOC), Inc.,

956 F. Supp. 588 (D.S.C. 1997).............................. 8

iii

Friends of the Earth, Inc. v. Laidlaw

Environmental Services (TOC), Inc.,

528 U.S. 167 (2000) ............ 3–6, 8–9, 13–20, 23, 25

Haaland v. Brackeen,

599 U.S. 255 (2023) .............................................. 16

Heckler v. Chaney,

470 U.S. 821 (1985) .............................................. 22

Hein v. Freedom from Religion Found.,

Inc.,

551 U.S. 587 (2007) ................................................ 4

Lujan v. Defs. of Wildlife,

504 U.S. 560 (1992) .............................................. 12

Morrison v. Olson,

487 U.S. 654 (1988) .......................................... 3, 23

Murthy v. Missouri,

603 U.S. 43 (2024) ................................................ 16

Payne v. Tennessee,

501 U.S. 808 (1991) .............................................. 10

United States, ex rel. Polansky v. Exec.

Health Res., Inc.,

599 U.S. 419 (2023) .............................................. 23

Ramos v. Louisiana,

590 U.S. 83 (2020) ................................................ 10

Seila Law LLC v. CFPB,

591 U.S. 197 (2020) .............................. 5, 20, 22, 24

Sessions v. Dimaya,

584 U.S. 148 (2018) .................................... 4, 15, 17

Spokeo, Inc. v. Robins,

578 U.S. 330 (2016) ................................................ 6

Steel Co. v. Citizens for a Better Env’t,

523 U.S. 83 (1998) .................. 3, 4, 8, 11–12, 13–14

Thole v. U. S. Bank N.A.,

590 U.S. 538, 548 (2020) .................... 11, 15–16, 18

TransUnion LLC v. Ramirez,

594 U.S. 413 (2021) ........................................ 11–12

Trump v. United States,

603 U.S. 593 (2024) ........................................ 21–22

United States v. DTE Energy Co.,

No. 2:10-cv-13101-BAF-RSF,

2020 WL 10730046

(E.D. Mich. Dec. 3, 2020) ................................. 1, 25

United States v. Heffernan,

43 F.3d 1144 (7th Cir. 1994) ................................ 19

United States v. Texas,

599 U.S. 670 (2023) ........................................ 13–15

Constitutional Provisions

U.S. Const. art. II, § 1, cl. 1....................................... 20

U.S. Const. art. II, § 3 ............................................... 20

U.S. Const. art. III, § 2 .............................................. 11

Statutes

33 U.S.C. § 1365 .......................................................... 7

42 U.S.C. § 6928(g) ...................................................... 7

42 U.S.C. § 6972(a) ...................................................... 7

42 U.S.C. § 7413(b) ...................................................... 7

42 U.S.C. § 7604(a)(1), (a)(3), (f) ................................. 6

42 U.S.C. § 7604(b)(1)(B) ........................................ 6–7

42 U.S.C. § 7604(g)(1).................................................. 7

42 U.S.C. § 9659(a) ...................................................... 7

42 U.S.C. § 11046(a)(1)(A)........................................... 7

42 U.S.C. § 11046(c) .................................................... 7

Other Authorities

40 C.F.R. § 19.4 ........................................................... 7

Attorney Positions and Fellowships in

EPA’s Office of General Counsel,

EPA, https://www.epa.gov/careers/

attorney-positions-and-fellowshipsepas-office-general-counsel-ogc (last

updated Feb. 14, 2025)......................................... 23

Caleb Nelson, Intervention,

106 Va. L. Rev. 271 (2020) ..................................... 7

Constitutionality of the Qui Tam

Provisions of the False Claims

Act, 13 Op. O.L.C. 207 (1989) ................................ 1

John G. Roberts, Jr., Article III Limits

on Statutory Standing,

42 Duke L.J. 1219, 1223 (1993) ............................. 5

Jonathan H. Adler, Stand or Deliver:

Citizen Suits, Standing, and

Environmental Protection ................................ 6, 24

Michael Shellenberger, Maybe They’re

So Quiet About Chinese Solar and

Russian Gas Because They’re So

Heavily Invested In Them, Public

(May 25, 2021),

https://www.public.news/p/maybetheyre-so-quiet-about-chinese ............................. 25

Our Offices and Programs, Earthjustice,

https://earthjustice.org/about/contact

(last visited May 8, 2025) .................................... 23

vii

Richard A. Posner, An Economic Theory

of the Criminal Law,

85 Colum. L. Rev. 1193 (1985)............................. 18

Saikrishna Prakash, The Essential

Meaning of Executive Power,

2003 U. Ill. L. Rev. 701, 735 (2003) ..................... 21

U.S. Env’t Prot. Agency, Clean Air Act:

Stationary Source Civil Penalty

Policy (1991) ......................................................... 18

William Baude & Samuel L. Bray,

Proper Parties, Proper Relief,

137 Harv. L. Rev. 153 (2023) ......................... 12–13

1 William Blackstone, Commentaries on

the Laws of England

(J.B. Lippincott Co., 1893) (1765–69) .................. 21

INTEREST OF AMICI CURIAE 1

Formed in 2022, the American Free Enterprise

Chamber of Commerce (“AmFree”) is an entity organized consistent with section 501(c)(6) of the Internal

Revenue Code that represents hard-working entrepreneurs and businesses across all sectors of the U.S.

economy.

AmFree launched the Center for Legal Action

(“CLA”) to represent these interests in court. CLA is

spearheaded by two-time former U.S. Attorney General Bill Barr. As the chief lawyer for the United

States under two presidents, former Attorney General

Barr knows first-hand the costs of allowing private

persons to seek civil penalties outside of the Attorney

General’s control. See, e.g., United States v. DTE Energy Co., No. 2:10-cv-13101-BAF-RSF, 2020 WL

10730046, at *2–4 (E.D. Mich. Dec. 3, 2020) (approving a side deal with Sierra Club requiring an energy

company to fund electric buses and shut down three

coal plants, over the objection of the United States).

He is the author of a frequently cited Office of Legal

Counsel opinion on the “qui tam” provisions of the

False Claims Act. Constitutionality of the Qui Tam

Provisions of the False Claims Act, 13 Op. O.L.C. 207

(1989). Citizen suits raise similar constitutional questions.

1 Amici curiae provided timely notice of intent to file this brief to

all parties. No party’s counsel authored this brief in whole or in

part, and no person or entity other than amici or their counsel

made a monetary contribution intended to fund its preparation

or submission.

Formed in 2025, Energy Freedom Fund, Inc., is

an entity organized consistent with section 501(c)(4)

of the Internal Revenue Code that advocates for energy freedom policies based on the conviction that

they are essential to human flourishing in general,

and to America’s prosperity and security in particular.

Energy Freedom Fund is the vision of its Founder and

President, Alex Epstein, an author and philosopher

whose writing focuses on the moral dimension of energy policy. His published works include The Moral

Case for Fossil Fuels and Fossil Future. A consistent

theme in his writings and in Energy Freedom Fund’s

work is that liberty and energy freedom are morally

right. As this case demonstrates, citizen suits pose a

serious threat to liberty and the Constitution’s structural safeguards against tyranny, with the assault on

energy freedom serving as the canary in the coal mine.

INTRODUCTION AND

SUMMARY OF ARGUMENT

“[T]his wolf comes as a wolf.” Morrison v. Olson,

487 U.S. 654, 699 (1988) (Scalia, J, dissenting). For

the past 15 years, in litigation spanning four different

presidential administrations, Respondents—private,

non-governmental organizations—have wielded the

prosecutorial power of the United States. They seek to

prosecute ExxonMobil for violations of the Clean Air

Act and impose public fines payable to the Treasury.

That remedy seeks not to prevent an injury to Respondents or their members, but to vindicate the “undifferentiated” interest of the United States in the

prosecution of public offenses and deterrence. Steel

Co. v. Citizens for a Better Env’t, 523 U.S. 83, 106

(1998).

Article III courts should never have gone along

with this. “Article III grants federal courts the power

to redress harms that defendants cause plaintiffs, not

a freewheeling power to hold defendants accountable

for legal infractions.” Casillas v. Madison Ave. Assocs., Inc., 926 F.3d 329, 332 (7th Cir. 2019) (Barrett,

J.). Under Article III, this should have been the easy

case, resolved through a motion to dismiss 15 years

ago. Cf. Steel Co., 523 U.S. at 104 (“This case is on appeal from a Rule 12(b) motion to dismiss on the pleadings …”).

But Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167 (2000),

opened the door to freewheeling quasi-criminal prosecutions such as this one. Laidlaw held that the Article

III requirement of redressability is satisfied based

upon the assumed incidental “deterrent power” of imposing a civil penalty payable to the United States for

past violations. Id. at 186–88. While acknowledging

that its assumption had no “scientific basis,” the Court

held that the possibility of deterrence would establish

redressability to seek public fines in the “ordinary

case.” Id. at 186–87.

Laidlaw must be laid to rest. Laidlaw’s theory of

redressability through the incidental effects of a fine

upon deterrence is egregiously wrong. After all, advisory opinions by this Court, too, may have a deterrent

effect. Laidlaw’s reasoning effectively abolishes core

standing requirements for “citizen-suit” cases. Courts

have not been able to establish limits on Laidlaw’s

theory of deterrence in its “idealized ordinary case.”

Cf. Sessions v. Dimaya, 584 U.S. 148, 158 (2018). As a

result, redressability has simply fallen by the wayside, making Laidlaw a singular exception to this

Court’s “triad of injury in fact, causation, and redressability,” which “constitutes the core of Article III’s

case-or-controversy requirement.” Steel Co., 523 U.S.

at 103–04. Redressability is not merely relaxed for

plaintiffs in these cases, but assumed at the very outset. Pet.31–32. Indeed, under the Fifth Circuit’s approach, Laidlaw also eliminates any need to trace

fines to a specific violation that harms the plaintiff.

The oddity of that constitutional exception to ordinary

standing rules justifies overruling Laidlaw’s holding

of redressability. Laidlaw should not become another

“Flast v. Cohen exception” to standing. Hein v. Freedom from Religion Found., Inc., 551 U.S. 587, 608

(2007).

But Laidlaw’s harms go far beyond this. By

throwing open the courthouse door, Laidlaw enlists

courts in an unconstitutional encroachment upon Article II. “Separation of powers is a zero-sum game. If

one branch unconstitutionally aggrandizes itself, it is

at the expense of one of the other branches.” John G.

Roberts, Jr., Article III Limits on Statutory Standing,

42 Duke L.J. 1219, 1223 (1993).

This case powerfully illustrates the point. Respondents here are exercising “enforcement authority” that “includes the power to seek daunting monetary penalties against private parties on behalf of the

United States in federal court,” “a quintessentially executive power.” Seila Law LLC v. CFPB, 591 U.S. 197,

219 (2020). Allowing “any person” to carry out that

core prosecutorial function raises “fundamental [Article II] questions.” Laidlaw, 528 U.S. at 197 (Kennedy,

J., concurring). Nobody elected Respondents, no official appointed them, and they have taken no oath of

allegiance. Nor are they in any way accountable to the

President or to the Attorney General. And yet, for 15

years, Respondents have exercised the core executive

power to prosecute. Allowing private groups to exercise executive power without “meaningful public control” has grave consequences for the liberty and accountability the constitution’s structure protects. See

id. at 209.

Overruling Laidlaw is not just the right thing to

do; it is the modest thing, too. “A standing decision

simply means that Congress cannot enlist the federal

courts in its enterprise.” Roberts, supra, at 1229. The

Court should take up this case as an “ideal vehicle” to

reconsider Laidlaw. Pet.App.288a–89a n.3 (Oldham,

J.).

BACKGROUND

A. The Clean Air Act “Citizen-Suit”

Persons suffering special harm have long been

authorized to sue in equity to abate public nuisances.

Spokeo, Inc. v. Robins, 578 U.S. 330, 345 (2016)

(Thomas, J., concurring). By and large, “citizen-suit”

provisions build upon that tradition. “Most environmental citizen-suit provisions only provide for injunctive relief and legal costs, (including attorneys’ fees)

for successful plaintiffs” because “the relief is aimed

at remedying the permit violation or other illegal action.” Jonathan H. Adler, Stand or Deliver: Citizen

Suits, Standing, and Environmental Protection, 12

Duke Env’t L. & Pol’y F. 39, 47 (2001).

The Clean Air Act is different. The Clean Air Act

is one of very few statutes authorizing private persons

to prosecute public offenses by seeking not injunctions, nor even damages, but civil penalties payable to

the Treasury, even when the executive branch decides

that punishment is unwarranted.

Subject to a 60-day notice requirement, “any person” may “commence a civil action on his own behalf

… against any person … who is alleged to have violated … or to be in violation of” numerous Clean Air

Act requirements, including conditions in onerous Title V permits. 42 U.S.C. § 7604(a)(1), (a)(3), (f). Private

parties may not bring an enforcement action if the

United States or a State “has commenced and is diligently prosecuting a civil action.” Id. § 7604(b)(1)(B).

Courts must thus examine current prosecutions for

“diligence”—a “constitutionally bizarre” arrangement. Laidlaw, 528 U.S. at 210 (Scalia, J., dissenting).

But regardless, private parties “may intervene as a

matter of right” when the United States or a State

files a civil lawsuit. 42 U.S.C. § 7604(b)(1)(B). As intervenors, private groups exercise the same rights as

the United States, so they are co-equal prosecutors.

See Caleb Nelson, Intervention, 106 Va. L. Rev. 271,

273–74 (2020).

Private plaintiffs or intervenors, as the case may

be, may then seek enormous civil penalties—over

$120,000 per day of violation under the Clean Air

Act—on top of attorneys’ fees and costs. 42 U.S.C.

§ 7413(b); 40 C.F.R. § 19.4. Unlike relators in qui tam

actions, however, citizen plaintiffs are assigned no

portion of the penalty award: by law, the penalties

must be deposited in a “special fund in the United

States Treasury.” 42 U.S.C. § 7604(g)(1). The penalty

is thus public money. See Dep’t of Army v. Blue Fox,

Inc., 525 U.S. 255, 264 (1999).

Very few federal laws share these features, and

all are of 1970s or later vintage. The Clean Water Act

has a similar, well-known citizen-suit provision. 33

U.S.C. § 1365. So do the Emergency Planning and

Community Right-To-Know Act of 1986 (“EPCRA”),

the 1976 Resource Conservation and Recovery Act

(“RCRA”), and the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”).

42 U.S.C. §§ 6972(a), 6928(g), 9659(a), 11046(a)(1)(A),

(c). These federal laws raise unique constitutional

questions.

B. Steel Co. and Laidlaw

Before Laidlaw, there was Steel Co. In Steel Co.,

a citizen-group plaintiff sued a steelmaker for failing

to comply with its disclosure obligations under

EPCRA, seeking, as relevant here, civil fines payable

to the Treasury. Steel Co., 523 U.S. at 87–88. During

the 60-day notice period, however, the steelmaker updated its EPCRA filings to comply with the law. Id.

This Court held that the plaintiffs failed to establish “redressability.” Id. at 105. Addressing the request for civil penalties specifically, the Court explained:

These penalties–the only damages authorized

by EPCRA—are payable to the United States

Treasury. In requesting them, therefore,

respondent seeks not remediation of its own

injury … but vindication of the rule of law—

the “undifferentiated public interest” in

faithful execution of EPCRA. This does not

suffice.…

Id. at 106–07. The Court then explained that the possibility that “punishment will deter the risk of future

harm” wasn’t enough for standing, and warned that

holding otherwise would conflict with precedent and

“make the redressability requirement vanish.” Id. at

107 (citing Linda R.S. v. Richard D., 410 U.S. 614

(1973); Simon v. E. Ky. Welfare Rts. Org., 426 U.S. 26,

96 (1976)).

Two terms later, however, this Court departed

from Steel Co. In Laidlaw, a hazardous waste incinerator was violating its discharge permits under the

Clean Water Act at the time of suit. 528 U.S. at 175–

76. Before final judgment, the incinerator finally managed to comply. The district court nevertheless imposed civil penalties. Friends of the Earth, Inc. v.

Laidlaw Env’t Servs. (TOC), Inc., 956 F. Supp. 588,

610–12 (D.S.C. 1997). Applying Steel Co., however,

the court of appeals held that the case was moot.

Friends of Earth, Inc. v. Laidlaw Env’t Servs. (TOC),

Inc., 149 F.3d 303, 306–07 (4th Cir. 1998).

This Court reversed. Laidlaw, 528 U.S. at 195.

Addressing initial standing, the Court asserted that

“penalties may serve, as an alternative to an injunction, to deter future violations and thereby redress the

injuries that prompted a citizen suitor to commence

litigation.” Id. at 174. The Court claimed that would

be true “in the ordinary case,” and in the case before

it. Id. at 186–87. The Court further limited Steel Co.

to its facts, noting that in Steel Co. “there was no allegation in the complaint of any continuing or imminent

violation.” Id. at 187.

Justice Scalia, joined by Justice Thomas, dissented. He argued that the Court’s redressability

holding was inconsistent with Steel Co., “has no precedent in our jurisprudence,” and “has grave implications for democratic governance.” Id. at 202 (Scalia, J.,

dissenting).

ARGUMENT

“Stare decisis is not an inexorable command.”

Payne v. Tennessee, 501 U.S. 808, 828 (1991). “This is

particularly true in constitutional cases, because in

such cases correction through legislative action is

practically impossible.” Id. (quotation marks omitted).

Overruling precedent, to be sure, requires a “special justification” and more than “garden-variety error.” Ramos v. Louisiana, 590 U.S. 83, 121 (2020) (Kavanaugh, J., concurring in part). But all of the factors

this Court has identified justify overruling Laidlaw’s

redressability holding.

First, Laidlaw is “egregiously wrong as a matter

of law.” Id. at 122. Laidlaw cannot be reconciled with

this Court’s precedent in general, and Steel Co. in particular. Relatedly, Laidlaw has “significant negative

jurisprudential [and] real-world consequences.” Id.

For one, Laidlaw’s theory of redressability is unworkable: judges are not equipped to determine the “vanishing point” of deterrence under Laidlaw, so they

have simply given up on redressability altogether.

And by disconnecting the remedy from the harm,

Laidlaw has invited federal courts to nullify not just

redressability, but traceability too, as this litigation

shows.

Second, Laidlaw raises grave questions under

Article II. These harms are more than theoretical: enlisting Article III courts in proceedings brought by private prosecutors outside of the President’s control

poses real-world threats to liberty, and by extension,

to human flourishing and the common good.

Overruling Laidlaw would upset no reliance interests. Id. The citizen-plaintiffs bringing these suits

seek to vindicate public rights; they have no property

in public money going to the Treasury. Pet.32.

Laidlaw Is

Unworkable

Egregiously

Wrong

and

Article III of the U.S. Constitution limits the jurisdiction of federal courts to “Cases” and “Controversies.” U.S. Const. art. III, § 2. This Court has “always

taken this to mean cases and controversies of the sort

traditionally amenable to, and resolved by, the judicial process.” Steel Co., 523 U.S. at 102. A core component is standing. Under Article III, a “plaintiff cannot

establish standing by asserting an abstract general

interest common to all members of the public, no matter how sincere or deeply committed a plaintiff is to

vindicating that general interest on behalf of the public.” Carney v. Adams, 592 U.S. 53, 59 (2020) (cleaned

up).

Citizen suits, by definition, are suits to vindicate

a duty to the public, as opposed to their private rights.

Citizen-plaintiffs “seek relief not on their own behalf

but on behalf of society as a whole.” Ellis v. Gallatin

Steel Co., 390 F.3d 461, 477 (6th Cir. 2004) (Sutton,

J.); see also TransUnion LLC v. Ramirez, 594 U.S.

413, 427–428 & n.1 (2021); see also id. at 446–47

(Thomas, J., dissenting) (same). At least for these private attorney general suits, courts have long required

“more than just a legal violation”: the plaintiff must

show a harm distinct from the public’s that is redressable by the judgment. Id. at 451 (Thomas, J. dissenting); see also Thole v. U. S. Bank N.A., 590 U.S. 538,

548 (2020) (Thomas, J., concurring). Indeed, following

“decades of precedent,” this Court has held that a concrete harm is mandatory in all cases. TransUnion

LLC, 594 U.S. at 429–30 & n.3.

The Court has distilled the “irreducible” elements

of standing into a three-part test. Lujan v. Defs. of

Wildlife, 504 U.S. 560 (1992). To establish standing,

“a plaintiff must show (i) that he suffered an injury in

fact that is concrete, particularized, and actual or imminent; (ii) that the injury was likely caused by the

defendant; and (iii) that the injury would likely be redressed by judicial relief.” TransUnion LLC, 594 U.S.

at 423. “[T]he party invoking federal jurisdiction

bears the burden of establishing its existence.” Steel

Co., 523 U.S. at 103–04. These elements often overlap:

most obviously, causation and redressability are

linked. FDA v. All. for Hippocratic Med., 602 U.S. 367,

380–81 (2024).

The last element, redressability is about judgments and remedies. It asks, essentially, “whether a

plaintiff ‘personally would benefit in a tangible way

from the court’s intervention.’” Steel Co., 523 U.S. at

103 n.5 (quoting Warth v. Seldin, 422 U.S. 490, 508

(1975)). The relevant “intervention” is the judgment.

Requiring that the court’s judgment “redress the individual plaintiffs’ injuries” ensures that a federal court

doesn’t enter “an advisory opinion.” California v.

Texas, 593 U.S. 659, 672–73 (2021). “Remedies are”

thus “critical to the proper exercise of the judicial

power.” William Baude & Samuel L. Bray, Proper Parties, Proper Relief, 137 Harv. L. Rev. 153, 158 (2023).

“Indeed, it would be no exaggeration to say that one of

the most important reasons that plaintiffs must

demonstrate their injury in the first place is so that

they can demonstrate that they are seeking the proper

relief to redress it.” Id.

By coupling a private prospective harm with a

public retrospective remedy, Laidlaw conflicts with

these core principles.

A. Laidlaw Conflicts with Precedent,

History, and Tradition

Until Laidlaw, there was no “precedent, history,

or tradition of courts” finding standing based upon the

plaintiff’s interest in the incidental future deterrent

effect of imposing a public fine—an abstract interest

shared by the sovereign. United States v. Texas, 599

U.S. 670, 677 (2023). Laidlaw’s holding thus had “no

precedent in [the Court’s] jurisprudence.” Laidlaw,

528 U.S. at 202 (Scalia, J., dissenting).

Worse, Laidlaw departed from precedent. In

Steel Co., this Court rejected the same theory. It

wasn’t enough that “punishment will deter the risk of

future harm.” Steel Co., 523 U.S. at 107. “Obviously,

such a principle would make the redressability requirement vanish,” and make its precedent “inexplicable.” Id. “Relief that does not remedy the injury suffered cannot bootstrap a plaintiff into federal court;

that is the very essence of the redressability requirement.” Id.

Laidlaw purported to distinguish Steel Co., saying it does not apply when plaintiffs “seek penalties

for violations that are ongoing at the time of the complaint and that could continue into the future if undeterred.” Laidlaw, 528 U.S. at 188. But no such caveat

appears in Steel Co. Nor should it. Whether violations

are “ongoing at the time” or likely to recur has nothing

to do with whether public fines afford a cognizable

remedy to plaintiffs that aren’t entitled to a single dollar.

What Steel Co. did say was that “a continuing violation or the imminence of a future violation” could

justify injunctive relief tailored to a plaintiff’s risk of

future injury. 523 U.S. at 108. But Steel Co. unequivocally rejected standing based upon Laidlaw’s theory

that “punishment will deter the risk of future harm.”

Id. at 107. For good reason. Unlike an injunction, that

remedy has no roots in “the traditional business of Anglo-American courts”: providing “relief specifically tailored to the plaintiff’s injury, and not any sort of relief

that has some incidental benefit to the plaintiff.”

Laidlaw, 528 U.S. at 204 (Scalia, J., dissenting).

Laidlaw’s theory, as the dissent noted, is also hard to

square with other precedents of this Court, including

with Linda R.S, id. at 203–05, or even with the basic

prohibition against issuing advisory opinions: after

all, an advisory opinion from this Court will also deter

conduct.

Laidlaw has only become more of an outlier since

it was decided.

In United States v. Texas, for example, Texas

lacked standing to challenge a federal nonenforcement policy that conflicted with the federal government’s statutory duty to take certain aliens into custody, even though Texas incurred monetary costs due

to underenforcement. 599 U.S. at 674. Texas’s interest

in the federal government’s immigration “arrest policies” wasn’t “cognizable.” Id. at 681–82. A plaintiff,

the Court reasoned, doesn’t have an interest in the

prosecution of another. As the Court understood it,

that was the teaching of Linda R.S. But see Laidlaw,

528 U.S. at 188 n.4.

If plaintiffs lack a cognizable interest in the government filling its prisons with illegal aliens, then

how do they have a cognizable interest in the government filling its coffers with public fines? They don’t.

Linda R.S. “applies no less to prosecution for civil penalties payable to the State than to prosecution for

criminal penalties owing to the State.” Laidlaw, 528

U.S. at 204 (Scalia, J., dissenting). “Ours,” after all,

“is a world filled with more and more civil laws bearing more and more extravagant punishments.” Dimaya, 584 U.S. at 184 (Gorsuch, J., concurring in part

and concurring in the judgment). There is no “civil”

exception to Article III.

The concurring opinion in Texas focused on “redressability,” but the reasoning also undercuts

Laidlaw. Texas, 599 U.S. at 690 (Gorsuch, J., concurring in the judgment). As the concurring Justices saw

it, “[a] judicial decree rendering the Guidelines a nullity does nothing to … require federal officials to

change how they exercise that discretion in the Guidelines’ absence.” Id. at 691. Federal courts don’t “measure redressability by asking whether a court’s legal

reasoning may inspire or shame others into acting differently.” Id. Under Laidlaw, however, courts must

assume that penalties will inspire shame or fear, even

though paying a fine doesn’t prevent facilities from violating the law in the future.

Thole is also instructive. The plaintiffs in Thole

were pension plan beneficiaries bringing suit to vindicate violations of ERISA’s duties, but the plaintiffs

had a defined benefit plan entitling them to money regardless and had received every penny owed. Thole,

590 U.S. at 541. Unlike qui tam relators, the plaintiffs

were assigned no interest in prosecuting the action.

Id. at 543–44. They thus lacked a cognizable injury

that could be redressed by the suit. Id. at 541. Would

Thole turn out differently if the plaintiffs alleged they

were “concerned” by the fiduciary’s mismanagement,

losing sleep, and thus prevented from going fly fishing

and living out their best life? Cf. Laidlaw, 528 U.S. at

181–83.

Other cases are directionally consistent, enforcing the redressability requirement. In Haaland v.

Brackeen, a declaratory judgment’s “possible, indirect

benefit in a future lawsuit” was not enough to show

redressability. 599 U.S. 255, 294 (2023). Under

Laidlaw, however, the possible, indirect effect of a fine

is good enough, even though a judgment awarding

fines doesn’t bind ExxonMobil to avoid emissions in

the future. In Murthy v. Missouri, the Court also held

that “the plaintiffs have a redressability problem.”

603 U.S. 43, 73 (2024). Although social media platforms adopted moderation policies in response to the

government’s pressure, an injunction against government officials would not prevent private censorship,

as the “platforms remain[ed] free to enforce, or not to

enforce, those policies—even those tainted by initial

governmental coercion.” Id. The same is true here.

ExxonMobil will remain free to do nothing after paying a fine. Nothing in an award of civil penalties will

require otherwise.

B. Laidlaw Abolishes Core Standing

Requirements

By matching private forward-looking harm to a

public retroactive remedy, Laidlaw also guts standing, for at least two reasons.

First, Laidlaw’s reasoning abolishes redressability for citizen plaintiffs. Laidlaw, to be sure, said “that

there may be a point at which the deterrent effect of a

claim for civil penalties becomes so insubstantial or so

remote that it cannot support citizen standing,” but

acknowledged that this “vanishing point is not easy to

ascertain.” 528 U.S. at 186. The Court, however,

claimed that this “does not detract from the deterrent

power of such penalties in the ordinary case.” Id.

Twenty-five years after Laidlaw, no court has

found a “vanishing point.” Laidlaw’s “idealized ordinary case,” it seems, has no limits. Cf. Dimaya, 584

U.S. at 158. Indeed, how could a “vanishing point” be

identified? “A survey? Expert evidence? Google? Gut

instinct?” Id. at 158. No one knows. Courts applying

Laidlaw have therefore simply assumed redressability. See Pet.App.67a–68a.

Second, by matching a private future harm with

a retrospective public punishment, Laidlaw may abolish traceability, too. According to several judges of the

Fifth Circuit, Laidlaw eliminates the plaintiff’s need

to trace past harms back to particular regulatory violations to seek fines. Pet.App.12a–25a (Davis, J., concurring). Laidlaw thus allows the plaintiff’ risk of

harm, alone, to “become a lever that will move the

world.” Laidlaw, 528 U.S. at 205 (Scalia, J., dissenting).

This litigation proves the point. Because Respondents’ interest in the fines under Laidlaw is, in

theory, purely preventive, or so the argument goes,

they didn’t have to trace the fines to any harm caused

by any of the violations. That holding “essentially

eliminates traceability,” and licenses standing in

gross. Pet.App.123a (Jones, J., dissenting). The result

is not just wrong: it is “preposterous.” Laidlaw, 528

U.S. at 204 (Scalia, J., dissenting). “There is no [citizen-suit] exception to Article III.” Thole, 590 U.S. at

547.

C. Laidlaw’s Theory of Deterrence Is Wrong

or Speculative

“[F]ines have no preventive effect.” Richard A.

Posner, An Economic Theory of the Criminal Law, 85

Colum. L. Rev. 1193, 1216 (1985). Yet, in Laidlaw, the

Court assumed, without a “scientific basis,” that fines

would prevent violations “in the ordinary case.”

Laidlaw, 528 U.S. at 186–87. That was wrong, or at

least, speculative.

The threat of civil penalties may deter pollution,

but only when the expected cost of the fine exceeds the

cost of abating the pollution in question. In other

words, deterrence is likely only when a firm expects a

penalty will “remove any significant economic benefit

resulting from noncompliance.” U.S. Env’t Prot.

Agency, Clean Air Act: Stationary Source Civil Penalty Policy 4 (1991). In many cases, however, a firm

may reasonably expect that the cost of fines will be

less than the cost of abating its emissions. Judges

don’t always “remove” the entire benefit of past noncompliance. For a reason: perfect compliance with regulatory law is not always possible, nor desirable.

Judges, for example, also weigh the seriousness of the

harm when imposing penalties. When the harms of

non-compliance are trivial, as here, Pet.10, the firm’s

expected penalty is unlikely to be high enough to deter

future regulatory violations. That is a good thing too,

as deterring those violations would do more harm

than good. Laidlaw’s assumption that civil penalties

will deter “in the ordinary case” is thus an empirical

question, not one that can be casually assumed from

the bench. Laidlaw, 528 U.S. at 186.

Laidlaw also failed to distinguish between general deterrence and specific deterrence. “‘General’ deterrence means deterrence of others besides the offender; ‘specific’ deterrence means deterring this offender from repeating his offense.” United States v.

Heffernan, 43 F.3d 1144, 1149 (7th Cir. 1994) (Posner,

C.J.). General deterrence is irrelevant to standing: the

plaintiff must show that the fine will deter the defendant from repeating the harmful offense. Or, as Justice

Scalia put it, “[t]he deterrence on which the plaintiffs

must rely for standing in the present case is the marginal increase in Laidlaw’s fear of future penalties

that will be achieved by adding federal penalties for

Laidlaw’s past conduct.” 528 U.S. at 205–209 (Scalia,

J., dissenting).

Laidlaw provided no support for such an effect.

The Court relied only on a folksy intuition that “a defendant once hit in its pocketbook will surely think

twice before polluting again.” Id. at 186 (majority op.)

(emphasis added). That assumes that sophisticated

firms such as ExxonMobil behave irrationally, operating through a kind of recency bias. Once fined, ExxonMobil will finally “think twice,” reform, and respond

to incentives. More likely, ExxonMobil concluded all

along that abating the largely harmless and hard-toavoid emissions at issue here would exceed the expected cost of the fine. Otherwise, ExxonMobil would

have fully complied before or during the 60-day time

window to avoid this suit. Therefore, “once hit in its

pocketbook,” ExxonMobil will likely continue behaving in the same way, because it makes economic sense

to do so. Laidlaw’s intuition is thus “speculative” as a

matter of law and fact. Id. at 205–209 (Scalia, J., dissenting).

II. Laidlaw Raises Grave Article II Concerns

Laidlaw’s conflict with precedent, inconsistency

with history and tradition, odd exceptions to standing,

and its improvised and unscientific assumption of deterrence, are good enough reasons to overrule it. But

on top of that, by opening the courthouse door,

Laidlaw raises grave Article II concerns.

A. The Power To Prosecute Public Fines for

Public Offenses Belongs to the President

Alone

The Constitution’s Vesting Clause provides that

“[t]he executive Power shall be vested in a President

of the United States of America.” U.S. Const. art. II,

§ 1, cl. 1. The Vesting Clause makes clear that “[t]he

entire ‘executive Power’ belongs to the President

alone.” Seila Law, 591 U.S. at 213. Article II in turn

assigns to the President the power to “take Care that

the Laws be faithfully executed.” U.S. Const. art. II,

§ 3. Although the President may rely upon subordinate officers, “[t]hese lesser officers must remain accountable to the President, whose authority they

wield.” Seila Law, 591 U.S. at 213. Statutes that vest

executive power outside of the President’s control are

“acts of usurpation,” and “deserve to be treated as

such.” The Federalist No. 33 (Alexander Hamilton).

The “executive Power,” as understood in 1789 and

today, includes the core law enforcement power to

prosecute all public offenses, whether civil or criminal. The king, Blackstone recognized, is the “proper

person to prosecute for all public offences and

breaches of the peace.” 1 William Blackstone, Commentaries on the Laws of England *268 (J.B. Lippincott Co., 1893) (1765–69). During the colonial era

and under the Articles of Confederation, it was also

understood that the “executive authority’s essential

function consisted of law enforcement[.]” Saikrishna

Prakash, The Essential Meaning of Executive Power,

2003 U. Ill. L. Rev. 701, 735 (2003).

Early historical practice confirms the point.

“[D]uring the Washington administration, prominent

officials across all three branches recognized the president’s role as chief law enforcement executive.” Id. at

800. Indeed, Washington personally “ordered his federal prosecutors to cease prosecutions, and to commence them.” Id. at 802 (footnotes omitted). Thus,

while Congress could allow district attorneys to “prosecute potential lawbreakers,” the “president is the

chief of these law enforcement executives.” Id. at 737.

Consistent with original understanding, the Supreme Court has recognized that “[u]nder Article II,

the Executive Branch possesses authority to decide

‘how to prioritize and how aggressively to pursue legal

actions against defendants who violate the law.’”

Texas, 599 U.S. at 678–79. “The President may decline

to prosecute … because of the President’s own constitutional concerns about a law or because of policy objections to the law, among other reasons.” In re Aiken

Cnty., 725 F.3d 255, 263 (D.C. Cir. 2013) (Kavanaugh,

J.). Indeed, the Take Care Clause makes the President’s authority over enforcement actions “conclusive

and preclusive,” meaning that Congress is “disable[d]”

from “acting upon the subject.” Trump v. United

States, 603 U.S. 593, 607, 620 (2024) (quotation omitted).

The President’s enforcement discretion is not limited to proceedings labeled “criminal”: “the Executive

may decline to seek civil penalties or sanctions (including penalties or sanctions in administrative proceedings) on behalf of the Federal Government in the

same way. Because they are to some extent analogous

to criminal prosecution decisions and stem from similar Article II roots, such civil enforcement decisions

brought by the Federal Government are presumptively an exclusive Executive power.” In re Aiken

Cnty., 725 F.3d at 264 n.9; see also Heckler v. Chaney,

470 U.S. 821, 831 (1985) (“[A]n agency’s decision not

to prosecute or enforce, whether through civil or criminal process, is a decision generally committed to an

agency’s absolute discretion.”).

B. The Clean Air Act’s Citizen-Suit Provision

Hands Over Core Prosecutorial Power to

Private Persons

The Clean Air Act hands over enormous law enforcement power to private groups outside of the President’s control. Such “enforcement authority” that “includes the power to seek daunting monetary penalties

against private parties on behalf of the United States

in federal court,” is “a quintessentially executive

power.” Seila Law, 591 U.S. at 219. In essence, the

Clean Air Act’s citizen-suit provision thus transforms

the President’s core constitutional domain into a public commons. That violates Article II’s Vesting and

Take Care Clauses. Seila Law, 591 U.S. at 215;

Trump, 603 U.S. at 620.

Qui tam does not excuse this constitutional evasion. “There are substantial arguments that the qui

tam device is inconsistent with Article II and that private relators may not represent the interests of the

United States in litigation,” even though the United

States retains significant oversight authority over private relator suits. United States, ex rel. Polansky v.

Exec. Health Res., Inc., 599 U.S. 419, 442 (2023)

(cleaned up) (Kavanaugh, J., concurring); id. at 449

(Thomas, J. dissenting). But no such check exists

here. The Clean Air Act’s unique innovation therefore

does not inhabit the same “constitutional twilight

zone” as qui tam claims; it is far more troubling. Id. at

449 (Thomas, J., dissenting).

At least the independent counsel could be fired

for “good cause.” Morrison, 487 U.S. at 691. Groups

such as Respondents, by contrast, are unaccountable

“self-appointed mini-EPA[s].” Laidlaw, 528 U.S. at

209 (Scalia, J., dissenting). 2 The Court should not

sanction this private usurpation of the President’s authority to vindicate public wrongs through public

fines.

2 Not so mini. Earthjustice, which often represents Respondent

Sierra Club, for example, has at least 200 attorneys, more than

EPA’s Office of General Counsel. Our Offices and Programs,

Earthjustice, https://earthjustice.org/about/contact (last visited

May 8, 2025); Attorney Positions and Fellowships in EPA’s Office

of General Counsel (OGC), EPA, https://www.epa.gov/careers/attorney-positions-and-fellowships-epas-office-general-counsel-ogc

(last updated Feb. 14, 2025).

C. Laidlaw Undermines Liberty and

Accountability

By opening the courthouse door, Laidlaw invites

grave Article II questions, and concomitant serious

harms. The Framers vested all executive power in a

President for a reason. Vesting executive power in a

single President would ensure “the protection of the

community against foreign attacks,” “the steady administration of the laws,” “the protection of property,”

and “the security of liberty.” Seila Law, 591 U.S. at

223–24 (quoting The Federalist No. 70 (Alexander

Hamilton)). Allowing private groups to exercise executive power undermines all of these constitutional

ends.

“Tens of thousands of facilities are subject to federal environmental regulations nationwide. On any

given day, a substantial portion of these facilities violates the technical requirements imposed by environmental regulations.” Adler, supra, at 43. Punishing all

regulatory violations is suboptimal. Indeed, in many

cases, prosecuting regulatory violations may have “no

tangible environmental benefit.” Id. at 50.

The President and his subordinates, in such

cases, may decide to underenforce the law by refraining from seeking penalties when doing so doesn’t

serve the public interest, thus protecting private liberty and property from unnecessary interference. Allowing a single President (or his subordinates) to

make those discretionary enforcement judgments ensures the steady administration of the laws. And it

protects the country against influence by foreign adversaries.

Allowing citizen-plaintiffs to second-guess these

executive non-enforcement judgments undercuts

these ends. Factions such as Respondents will pursue

enforcement actions tailored to their constituencies

(including donors that may have a financial interest

in industry competitors) rather than the voting public.

Unsurprisingly, they often use public fines as leverage

to seek “settlements requiring the defendant to support environmental projects of the plaintiffs’ choosing,” converting public fines to private gain. Laidlaw,

528 U.S. at 210 (Scalia, J., dissenting) (citing Michael

S. Greve, The Private Enforcement of Environmental

Law, 65 Tulane L. Rev. 339, 355–59 (1990)). In some

cases, these deals may be struck over the opposition of

the United States. See, e.g., DTE Energy, 2020 WL

10730046, at *2. Last, allowing private groups to act

as prosecutors exposes Americans to foreign attack.

Foreign adversaries may influence, infiltrate, or manipulate private groups to target U.S. energy infrastructure and manufacturing capacity, and thus to

weaken the United States. Cf. Michael Shellenberger,

Maybe They’re So Quiet About Chinese Solar and Russian Gas Because They’re So Heavily Invested In

Them, Public (May 25, 2021), https://www.public.news/p/maybe-theyre-so-quiet-about-chinese. Private citizen suits for penalties heighten the consequences of that risk.

CONCLUSION

The petition for certiorari should be granted.

Respectfully submitted,