Respondents Brief — Steel Co. v. Citizens for Better Environment

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In THE

Supreme Court of the Anited States

OcToBER TERM, 1996

THE STEEL COMPANY, a/k/a

CHICAGO STEEL AND PICKLING COMPANY,

ot Petitioner,

CITIZENS FOR A BETTER ENVIRONMENT,

™,

Respondent.

TT eee

On Writ of Certiorari to the United States Court of

Appeals for the Seventh Circuit

BRIEF FOR THE RESPONDENT

JAMES D. BRUSSLAN

Counsel of Record

HUNDLEY & BRUSSLAN

14 East Jackson Boulevard

Suite 1320

Chicago, IL 60604

(312) 427-3777

Davip A. STRAUSS

1111 East 60th Street

Chicago, IL 60637

(773) 702-9601

STEFAN A. NOE

CITIZENS FOR A BETTER

a4 ENVIRONMENT

407 South Dearborn Street

Suite 1775

Chicago, IL 60605

(312) 939-1530

Lee —_ —- ——

BEST AVAILABLE COPY

QUESTIONS PRESENTED

The Emergency Planning and Community Right-to-Know Act of

1986 (EPCRA), 42 U.S.C. §§ 11001 et seq., requires large industrial

facilities to file annual reports providing details about their use and

release of toxic chemicals. The questions presented are:

1. Whether EPCRA authorizes a citizen suit against a party who

failed to file the required reports for several years, then filed out-of-

time reports only after receiving notice of the plaintiff’s intent to sue

but before the suit was brought.

2. Whether Article III bars Congress from permitting a citizen suit

in such circumstances by plaintiffs who live near and are affected by

the facility, and who expended resources to obtain independently the

information that should have been supplied in the reports.

I. EPCRA AUTHORIZES A CITIZEN SUIT

AGAINST A DEFENDANT WHO FILES OUT-

OF-TIME REPORTS AFTER RECEIVING THE

NOTICE OF INTENT TO SUE ...........ccssesseesesseeees

A. The Plain Language Of The Citizen Suit

Provision Authorizes This Action ..............

B. Petitioner’s Interpretation Would

Effectively Nullify The Citizen Suit

Provision Of EPCRA. ........cssssssssssscssesesees

Il. ARTICLE Ill DOES NOT BAR CONGRESS

FROM AUTHORIZING THIS CITIZEN SUIT....

A. CBE Suffered Injury In Fact Caused by

Petitioner’s Conduct ................0000+ inibethes

B. CBE’s Suit Satisfies the Requirement of

CROGUITEEY | Sccceccvsvevessieincinstibniiainiadniii

CONC AIUIIN .....ccssrsccsisesscssotncsessesietisnncsesustineseassniieiianMannnn

es ee

Cases:

Adams, qui tam, v. Woods, 6 U.S. 336, 341 (1805) ..........

Allen v. Wright, 468 U.S. 737 (19B4) .0.....cccccccccccccccceeceeens

Atlantic States Legal Foundation v. Com-Tek, 22 BNA

Env’t Rep. (Current Developments) 535 (June 28, 1991)

Atlantic States Legal Foundation, Inc. v. United Musical

Instruments U.S.A., Inc., 61 F. 3d 473 (6th Cir. 1995) ..

Atlantic States Legal Foundation, Inc. v. Whiting Roll-Up

Door Mfg. Corp., 772 F. Supp. 745 (W.D.N.Y. 1991)...

Atlantic States Legal Foundation v. Whiting Roll-Up

Door Mfg. Corp., 38 BNA Env’t Rep. Cases 1426

A 8 a ee ae

Baker v. Carr, 369 U.S. 186 (1962) .......cccccccccceereesereeeeens

Bennett v. Spear, 117 S. Ct. 1154 (1997) .0......cccccccceeevenees

Budinich v. Becton Dickinson & Co., 486 U.S. 196 (1988)

Carey v. Piphus, 435 U.S. 247 (1978) ....cccccccceccecereereneeees

City of Chicago v. Environmental Defense Fund, 511 U.S.

City of Los Angeles v. Lyons, 461 U.S. 95 (1983) ............

City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283

on ecuastuspunonsucecs

Delaware Valley Toxics Coalition v. Kurz-Hastings, 813

F.Supp. 1132 (ED. Pa. 1993) ...........ccccccecseccerseesseeseeseees

Diamond v. Charles, 476 U.S. 54 (1986) ............ccccccccceoons

Don’t Waste Arizona, Inc. v. McLane Foods, Inc., 950 F.

Supp. 972 (D. Ariz. 1996) ..ccccccccscccsscessssescessssessseseeeeeeee

30, 35

13-15, 23

TABLE OF AUTHORITIES-Continued Page

Freeport-McMoRan Inc. v. K N Energy, Inc., 498 U.S. 426

Se ee eae aN

GEG ED crevernzsnsmecnsesescseeranmcsansssseseninliibatienadilinedtiiiiuetisinemes

Grassi v. Ciba-Geigy, Lid., 894 F. 2d 181 (Sth Cir. 1990)

Gwaltney v. Chesapeake Bay Foundation, 484 U.S. 49

ae ee eee Oe ea Ce

Hallstrom v. Tillamook County, 493 U.S. 20 (1989)........... 10, 18, 38

Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982).... 24-26, 28

Honig v. Doe, 484 U.S. 305 (19BB) onc cccccccccccccceececeeeeeeeee 33-34

Hughes Aircraft Co. v. United States ex rel. Schumer, No.

co), ee ae 29

Idaho Sporting Congress v. Computrol, 952 F. Supp. 690

I I ticcennsssccnsiscsittditinnninsiihiaiie ante ied, 6

Per

TRO RGU ccintinictenstisiarntiticssidndtat ME Se 10

Keene Corp. v. United States, 508 U.S. 200, 208 (1993) .. 13

Kramer v. Caribbean Mills, Inc., 394 U.S. 823 (1969) .... 34

Lewis v. Continental Bank Corp., 494 U.S. 472 (1990).... 30

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ........ passim

Marvin v. Trout, 199 U.S. 212 (1905) .......ccccccccccecceeeeeeeeeeee 29

McClure v. Carter, 513 F. Supp. 265 (D. Idaho 1981) ...... 22

McClure v. Reagan, 454 U.S. 1025 (1981) ........cccccccccceceeee 22

Miller v. Perry, 456 F. 2d 63 (4th Cir. 1972) ooo... cccccceee. 34

Mollan v. Torrance, 22 U.S. ‘9 Wheat.’ 537 (1824) .......... 34

Muskrat v. United States, 219 U.S. 346 (1911) ....ccccccccooe.

TABLE OF AUTHORITIES-Continued

Neighbors for a Toxic Free Community v. Vulcan

Materials Co., 1997 U.S. ee ete. $-D-

2617) (D. Colo. April 25, 1997) ooo ccccccccccceecvseeseeeeee

Northeastern Florida Chapter, Associated General

Contractors v. Jacksonville, 508 U.S. 656 (1993) ..........

Pennsylvania v. Delaware Valley Citizen's Council, 478

RR Sana aE ee

a An a i il ee RO li a

Public Interest Research Group of New Jersey, Inc. v.

Windall, 51 F. 3d 1179 (3d Cir. 1995) 00 cceceoees

Samuels v. Mackell, 401 U.S. 66 (1971) oo... ccccccccececoeoeoees

St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 US.

eat aarttntacntinipnsiacinetaisititlinenaeratcaeaasensens

Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S.

TD dictreariiaiisedatistsiitiatiinivedatacialaensinitianiesin onine 27-28, 30, 35

Smith v. Sperling, 354 U.S. 91 (19ST) .....cccccccceeceeveesesoeoee

United States v. Concentrated Phosphate Export Ass'n,

a Se tiircttitthe

United States v. Oregon State Medical Society, 343 U.S.

SED iiercacicenadintesiaistitininnhalalitlesclianenatiiatatshetnetdeaia

United States v. Richardson, 418 U.S. 166 (1974)............

United States v. SCRAP, 415 U.S. 669 (1973) .o..cccccccc00.--.

United States v. W.T. Grant Co., 345 U.S. 629 (1953)......

United States ex rel Marcus v. Hess, 317 U.S. 537 (1943)

United States Parole Comm'n v. Geraghty, 445 U.S. 388

Seek SRI Tsai SE

Valley Forge Christian College v. Americans United for

Separation of Church and State, 454 U.S. 464 (1982) ..

TABLE OF AUTHORITIES-Continued Page

Village of Arlington Heights v. Metropolitan Housing

Development Corp., 429 U.S. 252 (1977) oo-cccccccccocosoooe.. 28

Vitek v. Jones, 445 U.S. 480 (1980) ooo cc cccccccceeseseones 32

Warth v. Seldin, 422 U.S. 490 (1975) oo... cccccccccoces 24-25, 28, 30

Webb v. Board of Ed., 471 U.S. 234 (1985) 0.0... 37

Williams v. Leybold Technologies, Inc., 784 F. Supp. 765

ey certain nantes 6

Constitution, Statutes and Rules:

U.S. Constitution, Artiche TT ...................cccccccsceseseeeeeeoseeeses passim

Clean Air Act, 42 U.S.C. § 7604 ooo cccccccccesessseeeeceeees 17, 37

Clean Water Act, 33 U.S.C. § 1251 ef $69. ....ccccccccecceessesses 13

RL TE ey TD 7, 12, 15

Comprehensive Environmental Response Compensation

and Liability Act, 42 U.S.C. § 9659 ooo ccccceeeeee. 13

Deepwater Port Act, 33 U.S.C. § 1515 (1975) ..o.cccccccccoss-. 13

Emergency Planning and Community Right-to-Know

Act, 42 U.S.C. § 11001 ef Seg. ....cccccccccccecccececccsssessseseces passim

Section 312, 42 U.S.C. § 11022 ooo ceccccccccececcseseseseees passim

Section 313, 42 U.S.C. § 11023 ooo. cccccececccescsseesss passim

Section 325, 42 U.S.C. § 11045 ooo cocccccccceseeeeee. 3, 14

Section 326, 42 U.S.C. § 11046 ooo cccccccccccceeeeeeee. passim

BUSA GI hit 2

Endangered Species Act, 16 U.S.C. § 1640(g) (1973)... 13

Federal Tort Claims Act. See 28 U.S.C. § 2675(a)............ 18

Hazardous Liquid Pipeline Safety Act, 42 U.S.C. § 2041 13

TABLE OF AUTHORITIES-Continued Page

Marine Protection Research & Sanctuaries Act, 33 U.S.C.

§ 1415(g) (1972) siteeedoouses 13

Noise Control Act, 42 U.S.C. § 4911 (1972) .................... 13

Outer Continental Shelf Lands Act, 43 U.S.C. § 1349

SS eee meee. eh Ae Ret) i 13

Resource Conservation and Recovery Act, 42 U.S.C.

Waiiatictsittiitiiintaiata eat 13

Safe Drinking Water Act, 42 U.S.C. § 300j-8 (1974)........ 13

Surface Mining Control & Reclamation Act, 30 U.S.C.

REE TIES Se 13

Toxic Substances Control Act, 15 U.S.C. 2619 (1976) .... 13

Pub.Law 99. 499 (Oct. 17, 1986).......cccccccccecececeseseseseeeeseees 13

A A anincibeddioes 4

62 Fed. Reg. 23834, 23889 (May 1, 1997)... ccc. 20

Legislative materials:

131 Cong. Rec. 34650 (Dec. 5, 1985) ooo. ccccccccccccesesenees 3

H.R. Rep. 253, 99th Cong., Ist Sess. (1985) ........-cccccoes. 3, 25, 37

H. R. Rep. 962, 99th Cong., 2d Sess. 281 (1986) ............ 25

S Rep. No. 101-223, 101st Cong., Sess. 372-75 (1989)... 36

Miscellaneous:

Albert, Standing to Challenge Administrative Action: An

Inadequate Surrogate for Claim for Relief, 83 Yale LJ.

TN atin ictietcditecuchdecbieaateectaranathaiccenmann onseeseesen 22

Berger, Standing to Sue in Public Actions, 78 Yale L.J.

ee Stale a a) abet cade elder Se 32

Currie, Misunderstanding Standing, 1981 Sup. Ct. Rev. 41 22

Environmental Protection Agency, 1995 Toxics Release

Inventory Public Data Release (May, 1997) .................. 3

R. Fallon, et al., Hart and Wechsler’s The Federal Courts

and the Federal System (4th ed. 1996) .....................0-.

Fletcher, The Structure of Standing, 98 Yale L.J. 221

General Accounting Office, Toxic Chemicals: EPA's

Toxic Release Inventory Is Useful but Can Be Improved

fs FRPRRMIR AR I...

Hearne, Tracking Toxics: Chemical Use and the Public's

“Right-to- Know,” 38 Environment 4 (1996)..................

Jaffe, Standing to Secure Judicial Review: Public Actions,

74 Harv. L. Rev. 1265 (1961) .........ccccccccccccceceeessececeeeeees

Logan, Standing to Sue: A Proposed Separation of

Powers Analysis, 1984 Wis. L. Rev. 37 ...........cccccceceeeeees

P. Menell and R. Stewart, Environmental Law and Policy

CRB CE, FOGG cittieenenttaminsipibipeddanbmatiienas

Monaghan, Constitutional Adjudication: The Who and

When, 82 Yale L.J. 1363 (1973)............ --eltatalaeathithinnenints

R. Percival et al., Environmental Law and Policy (2d ed.

Pildes & Sunstein, Reinventing the Regulatory State, 62

ee Ra TST RE oe

Sunstein, What's Standing After Lujan?, 91 Mich. L. Rev.

SED - ccssecseecasustonentatneitinsinnsiishecttanintnisabanthaibliadhdtiiindaiiadp imac

COPED cxpcsneruscrseequprastsertoinmantiemntapentneaanatuteratetinteinieae

Winter, The Metaphor of Standing, 40 Stan. L. Rev. 1371

(TEED wccccsecslissitevsnciteinibbescnsniecieitlanaiiiiasalnanaddestia

TABLE OF AUTHORITIES-Continued

Wolf, Fear and Loathing About the Public Right to Know:

The Surprising Success of the Emergency Planning and

1) * elammdhaan 11 J. Land Use & Env.

IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1996

No. 96-643

THE STEEL COMPANY, a/k/a

CHICAGO STEEL AND PICKLING COMPANY,

. Petitioner,

CITIZENS FOR A BETTER ENVIRONMENT,

Respondent,

On Writ of Certiorari to the United States Court of

Appeals for the Seventh Circuit

BRIEF FOR THE RESPONDENT

STATEMENT

A. The Emergency Planning and Community Right-to-Know Act

1. The Emergency Planning and Community Right-to-Know Act

(EPCRA), 42 U.S.C. §§ 11001 et seq., is widely regarded as one of

the nation’s most successful environmental statutes.' Unlike many

environmental statutes, EPCRA does not impose “command-and-

control” obligations on firms in an effort to compel pollution reduc-

tions through technological requirements or uniform emissions limi-

tations. Instead, EPCRA is purely an informational statute. “The

underlying premise of EPCRA is that the public has a right to know

1 See, ¢.g., Hearne, Tracking Toxics: Chemical Use and the Public’s “Right-to-

Know,” 38 Environment 4,4 (1996) (“Industry, government, and community repre-

sentatives alike consider” the central disclosure provision of EPCRA to be “one of

the most successful environmental laws in U.S. history.”); Wolf, Fear and Loathing

About the Public Right to Know: The Surprising Success of the Emergency

Planning and Community Right-to-Know Act, 11 J. Land Use & Env. L. 217

(1996); R. Percival et al., Environmental Law and Policy 650-53 (2d ed. 1996); P.

Menell and R. Stewart, Environmental Law and Policy 424 (2d ed. 1992); Pildes &

Sunstein, Reinventing the Regulatory State, 62 U. Chi. L. Rev. 1, 106 (1995).

Indeed, even petitioner acknowledges that EPCRA has proved effective. Pet. Br. 6.

about the toxic chemicals released by facilities in their communi-

ties.”? EPCRA seeks to achieve its environmental goals not through

regulatory mandates but through the disclosure of polluting activity.’

Section 312 of EPCRA, 42 U.S.C. § 11022, imposes inventory

requirements. Specifically, facilities using threshold amounts of cer-

tain specified toxic chemicals must submit, by March | of each year,

an inventory of those chemicals to the local fire department and to

state and local emergency planning commissions. The report must

identify the chemicals on the site, the amounts used during the previ-

ous year, and the location of the chemicals on the site.

Section 313 of EPCRA, 42 U.S.C. § 11023, principally concerns

releases of toxic chemicals. It provides that manufacturing facilities

using threshold amounts of toxic chemicals must, by July | of each

year, submit a form reporting any releases of those chemicals to the

Administrator of the Environmental Protection Agency (EPA) and to

a designated state official. These reports must include the volume of

chemicals released, how releases in one year compare to the amounts

released in previous years, projections of future releases, and recy-

cling efforts.

All these reports must be made available for inspection by members

of the public, and EPCRA requires local emergency planning agen-

cies to notify members of the public that these reports are available

by “publish[ing] a notice in local newspapers” (42 U.S.C.

§ 11044(b)). Section 313 specifically states that “the release forms

required under this section are intended to provide information” not

only “to Federal, State, and local governments” but to “the public,

including citizens of communities surrounding covered facilities.” 42

U.S.C. § 11023(h). Members of the public use this information to

help formulate local emergency response plans (42 U.S.C. §

11001(c)). In addition, Section 313 requires the Administrator “to

2 General Accounting Office, Toxic Chemicals: EPA's Toxic Release Inventory

Is Useful but Can Be Improved 32 (June 1991) [hereinafter GAO Report].

3 Some have discerned a general trend in environmental regulation away from

command and control regulation and toward laws like EPCRA. See, ¢.g., R.

Percival et al., Environmental Law & Policy 636-54, 825-834; P. Menell and R.

Stewart, Environmental Law and Policy 415-27 .

establish and maintain in a computer data base a national toxic chem-

ical inventory based on data submitted to the Administrator under this

section.” 42 U.S.C. § 11023(j). The Administrator must “make these

data accessible by computer telecommunication and any other means

to any person.” [bid.

The toxic releases inventory has been widely used, and it is credit-

ed with significantly reducing the amount of pollution. See, e.g.,

GAO Report at 23-24. The overall effects of EPCRA have been dra-

matic: Reported releases of toxic chemicals by firms complying with

EPCRA have been reduced nearly 46 percent since 1988.‘

2. The success of EPCRA depends entirely on timely and accurate

reporting, and as with any self-reporting scheme, the rate of compli-

ance is a concern under EPCRA. The Act specifies that “[a]Jny person

* * * who violates any requirement of section [312 or 313] * * * shall

be liable to the United States for a civil penalty in an amount not to

exceed $25,000 for each such violation.” 42 U.S.C. § 11045(c)(1).

But according to some estimates, over 30% of the facilities that

should have submitted reports under EPCRA have not done so, part-

ly because of the limitations of government enforcement efforts.

GAO Report at 49. The EPA, for example, which is the federal

agency charged with enforcement of EPCRA, not only has limited

important envircamental statutes. In response to these concerns,

Congress included a citizen suit provision in EPCRA. See, e.g., 131

Cong. Rec. 34650 (Dec. 5, 1985) (statement of Rep. Glickman) (“In

view of the government’s limited and overburdened enforcement

authority, citizen suits are essential to assure compliance with the

law.”); H.R. Rep. 253, 99th Cong., Ist Sess., pt. 5, at 83 (Nov. 12,

1985).

Section 326 of EPCRA, the citizen suit provision, states that “any

person may commence a civil action on his own behalf against * * *

[aJn owner or operator of a facility for failure to * * * [sjubmit an

4 Environmental Protection Agency, 1995 Toxics Release Inventory Public Data

Release (May, 1997). This document is available at http://www.epa.gov/opptintr/

tri/pdr95/drover01.htm.

inventory form under section [312]” or “for failure to * * * [sjubmit

a toxic chemical release form under section [313].” 42 U.S.C. §

11046 (a)(1)(A)(iii) and (iv). Section 326 provides that, before suing,

a plaintiff must give 60 days’ “notice of the alleged violation to the

Administrator, the State in which the alleged violation occurs, and the

alleged violator” (42 U.S.C. § 11046(d)(1)). No citizen suit may be

brought “if the Administrator has commenced and is diligently pur-

suing an administrative order or civil action to enforce the require-

ment concerned or to impose a civil penalty under this Act with

respect to the violation of the requirement” (42 U.S.C. § 11046(e)).

If the plaintiff prevails in a citizen suit, the court may “enforce the

requirement concerned and * * * impose any civil penalty provided

for violation of that requirement.” 42 U.S.C. § 11046(c). The court

may also award “costs of litigation (including reasonable attorney

and expert witness fees) to the prevailing or the substantially prevail-

ing Party whenever the court determines such an award is appropri-

ate.” 42 U.S.C. § 11046(f).

B. The Proceedings Below

Petitioner operates a manufacturing plant on the Southeast Side of

Chicago, Illinois. As part of its operations, petitioner removes rust

from steel coils, a process called steel pickling. This process involves

the vse of hydrochloric acid, an extremely hazardous toxic chemical.

40 C.F.R. Part 355, App. A & B. Users of hydrochloric acid are sub-

ject to the reporting requirements of Sections 312 and 313 of

EPCRA. Petitioner had on its premises other hazardous substances

covered by Section 312 as well. J.A. 6-7; Pet. App. A7-A8; Pet. Br.

Between 1988 and 1995, petitioner, by its own admission, did not

file the reports required by Sections 312 and 313 of EPCRA. Pet.

App. A8; see J.A. 7-10. During that period, petitioner not only had

toxic chemicals on its premises but released literally tons of such

chemicals into the environment. In one year, for example, it released

130,618 pounds of hydrochloric acid into the air.’

5 See The Steel Company’s Reply Memorandum in Support of Its Motion to

Dismiss, No. 95 C 4534 (N_D. Ill.), filed Oct. 19, 1995, Exh. B.

Respondent Citizens for a Better Environment (CBE) is a not-for-

profit corporation with offices in Illinois, Minnesota, and Wisconsin.

It has approximately 30,000 members, many of whom live in the

Chicago area. J.A. 4. The complaint describes CBE’s membership as

follows (J.A. 5):

Members of CBE reside, own property, engage in recre-

ational activities, breathe the air, and/or use areas near

[petitioner’s]} facility. * * * CBE’s members seek, acquire,

and use data reported by facilities under EPCRA to learn

about toxic chemical releases, the use of hazardous sub-

stances in their communities, to plan emergency prepared-

ness in the event of accidents, and to attempt to reduce the

toxic chemicals in areas in which they live, work, and visit.

On March 16, 1995, CBE gave notice to petitioner and to state and

federal authorities that it believed petitioner had violated Sections

312 and 313 of EPCRA and that it intended to bring suit. J.A. 13-16.

This notice was the product of an investigation of petitioner prompt-

ed by, among other things, a report from a member of the public that

petitioner released “acidic material” through its smokestacks “only at

night.”* After petitioner received CBE’s notice it filed overdue forms

with the appropriate agencies. Pet. App. A8. The EPA did not insti-

tute proceedings against petitioner, and on August 7, 1995, CBE filed

this citizen suit under Section 326 of EPCRA in the United States

District Court for the Northern District of Illinois. CBE sought,

among other things, a declaratory judgment that petitioner had vio-

lated Sections 312 and 313; civil penalties, as provided by Sections

325 and 326; an injunction authorizing CBE to inspect petitioner’s

facility and records to ensure compliance with EPCRA; and an award

of all costs incurred in connection with the investigation and prose-

cution of the case. J.A. 11.

Petitioner moved to dismiss the complaint on the ground that “CBE

cannot sue it for failure to file timely EPCRA reports in the past, but

only may sue to force [petitioner] actually to complete and submit

6 See Plaintiff's Memorandum in Opposition to “Motion to Dismiss,” No. 95 C

4534 (N.D. Ill.), filed Oct. 5, 1995, Exh. 1 (Affidavit of Stefan A. Noe).

any EPCRA reports from 1988 to 1995 that it may have failed to file.”

Pet. App. A21. The district court agreed with petitioner and dismissed

the complaint. Pet. App. Al7-A26. The district court acknowledged

that numerous decisions of lower courts had rejected petitioner's

interpretation of EPCRA. Pet. App. A21-22, citing Atlantic States

Legal Foundation, Inc. v. Whiting Roll-Up Door Mfg. Corp., 772 F.

Supp. 745, 751-53 (W.D.N.Y. 1991); Williams v. Leybold

Technologies, Inc., 784 F. Supp. 765, 768 (N.D. Cal. 1992); Delaware

Valley Toxics Coalition v. Kurz-Hastings, 813 F.Supp. 1132, 1141

(E.D. Pa. 1993). See also Don’t Waste Arizona, Inc. v. McLane Foods,

Inc., 950 F. Supp. 972 (D. Ariz. 1996); Idaho Sporting Congress v.

Computrol, 952 F. Supp. 690 (D. Id. 1996); Neighbors for a Toxic

Free Community v. Vulcan Materials Co., 1997 U.S. Dist. LEXIS

7025 (No. 95-D-2617) (D. Colo. April 25, 1997). But the district

court chose instead to rely on the single lower court decision that had

accepted petitioner’s interpretation, Atlantic States Legal Foundation,

Inc. v. United Musical Instruments U.S.A., Inc., 61 F. 3d 473 (6th Cir.

1995).

The court of appeals reversed. Pet. App. Al-A15. The court relied

on the plain language of Section 326, the citizen suit provision of

EPCRA. Section 326 provides that a citizen suit may be brought “for

failure to * * * [c]omplete and submit an inventory form under sec-

tion [312]” and “for failure to * * * [c]omplete and submit a toxic

chemical release form under section [313].” The court explained that

“(t]he most natural reading of ‘under’ a section is ‘in accordance with

the requirements of’ that section.” Pet. App. All. While petitioner

had, by the time suit was brought, belatedly filed the forms, petition-

er had failed to file the forms by the deadlines specified in Sections

312 and 313; the court of appeals accordingly concluded that peti-

tioner was guilty of a “failure to [c]omplete and submit” forms

“under” those provisions within the meaning of the citizen suit pro-

vision.

The court of appeals also relied on the contrast between the citizen

suit provision of EPCRA and the citizen suit provision of the Clean

Water Act, 33 U.S.C. § 1251 et seq., which was interpreted by this

Court in Gwaltney v. Chesapeake Bay Foundation, 484 U.S. 49

(1987). The Clean Water Act provides that a citizen suit can be

brought only against a person “alleged to be in violation of” the Act.

33 U.S.C. § 1365(a)(1). Accordingly, this Court ruled that a com-

plaint could not be brought under the citizen suit provision unless it

alleged a “continuous or intermittent violation” (484 U.S. at 64); a

party who had violated the Clean Water Act, but who came into com-

pliance before the suit was brought, could not be “alleged to be in

violation” and would accordingly not be subject to a citizen suit. By

contrast, the court of appeals explained, EPCRA did not require that

a citizen suit allege a defendant “to be in violation”; it required only

a “failure” to file “under” the statute. Pet. App. A9-A12. The court of

appeals accordingly concluded that EPCRA reached a defendant who

filed delinquent reports in response to the notice to sue, but before the

complaint was filed.

SUMMARY OF ARGUMENT

L.A. 1. The plain language of the citizen suit provision of EPCRA

authorizes CBE’s suit. EPCRA authorizes a citizen suit against an

owner or operator of a facility for “failure to * * * [clomplete and

submit an inventory form under section [312]” and for “failure to * * *

{c]omplete and submit a toxic chemical release form under section

(313.]” Petitioner is guilty of a “failure to do” these things. A form

has not been “complete[d] and submit[ted] * * * under” a statutory

provision when the individual submitting the form ignored the dead-

lines that the provision specifies—any more than a form could be said

to have been submitted “under” Section 312 or 313 if it provided

inaccurate data or disregarded some other requirement of that section.

In fact, the deadlines specified in those provisions are among the

most essential requirements in EPCRA. Information supplied years

out of time is nearly worthless to the individuals and agencies to

whom Congress wanted EPCRA data to be provided—tocal fire

departments and emergency planning officials, and citizens who are

concerned about environmental hazards in their neighborhoods.

2. This Court’s decision in Gwaltney v. Chesapeake Bay

Foundation, Inc., 484 U.S. 49 (1987), on which petitioner relies heav-

ily, in fact reinforces the conclusion that EPCRA authorizes CBE’s

citizen suit. Gwaltney disallowed a citizen suit under the Clean Water

Act in circumstances parallel to those present here. But the Court in

Gwaltney relied on the language of the Clean Water Act, which per-

mits a citizen suit only against a person “who is alleged to be in vio-

lation” of an effluent standard. In EPCRA, Congress did not require

a citizen plaintiff to allege that the defendant was “in violation” of the

statute. Since every other environmental statute with a citizen suit

provision contains the “alleged to be in violation” limitation,

Congress’s decision not to impose such a limit on EPCRA citizen

suits cannot be attributed to inadvertence.

B. In fact, Congress had good reason to choose different language

when it drafted the citizen suit provision of EPCRA: petitioner’s

interpretation would effectively nullify the citizen suit provision of

EPCRA. Because EPCRA is an informational statute, a firm will sel-

dom find it difficult to come into compliance with EPCRA within 60

days after receiving notice of a citizen’s intent to sue. Gwaltney left a

substantial role for citizen enforcement of the Clean Water Act: a firm

that is in violation of an anti-pollution requirement might have to

modify its manufacturing processes or install new equipment, costly

tasks that will often take more than 60 days. But a firm that has been

ignoring Sections 312 and 313 of EPCRA—or, for example, a firm

that does rot update its forms and inaccurately reports the same infor-

mation year after year—will almost always be able to file delinquent,

corrected forms within 60 days of receiving notice of intent to sue.

Under petitioner’s interpretation of EPCRA, such a firm would then

be immune from citizen enforcement. Congress could not have

intended to permit the elaborate citizen suit provision of EPCRA to

be set completely at naught in this way.

Il. Article II] does not bar CBE’s citizen suit. This suit is, as we

have shown, authorized by an Act of Congress. It is a suit against a

private party, not against an executive official, and therefore does not

present separation of powers problems involving judicial supervision

of the executive. There is no question that CBE and its members were

injured in fact, and that the injury was inflicted by petitioner. And in

numerous ways, the relief CBE seeks will redress its and its members

injuries. The Court has consistently recognized that Congress may

authorize qui tam actions seeking, as this suit does, the payment of a

fine to the Treasury; CBE has an even stronger claim to standing than

the typical qui tam plaintiff, because CBE was undoubtedly injured

in fact.

A. As a result of petitioner’s conduct, CBE and its members suf-

fered injury in fact in several forms. First, petitioner denied them the

information that EPCRA gives them a right to receive. In this respect,

CBE and its members are not just asserting an interest they share with

the general public. CBE’s members live and work near petitioner’s

facility, and EPCRA is particularly designed to ensure that individu-

als living near facilities that use and release toxic chemicals have

accurate and timely information.

In addition, because petitioner did not comply with EPCRA, CBE

had to expend its own resources to uncover information about peti-

tioner to supply to members of the community. Finally, Congress

expected that firms that complied with EPCRA would be likely to

pollute less, and petitioner’s conduct bears out Congress’s judgment:

petitioner's reported releases of hydrochloric acid dropped dramati-

cally after it began filing EPCRA reports. The additional environ-

du; .ag the time it was ignoring EPCRA, is further injury in fact.

B. CBE’s suit also satisfies the requirement of “redressability.”

There would be no conceivable issue about redressability in this case

had petitioner not begun complying with EPCRA when it received

CBE’s notice of intent to sue. But it is well established that “‘a defen-

dant’s voluntary cessation of a challenged practice does not deprive a

federal court of its power to determine the legality of the practice.”

Northeastern Florida Chapter, Associated General Contractors v.

Jacksonville, 508 U.S. 656, 662 (1993) (citation omitted). That prin-

ciple is usually applied when the voluntary cessation occurs after suit

is brought. Nothing in Article III, however, prohibits Congress from

applying the same principle in a case like this, when the voluntary

cessation was a response to the notice of intent to sue, and when

Congress had compelling reasons not to permit the citizen enforce-

ment scheme to be nullified ir this way.

In addition, the relief CBE seeks redresses its injury by punishing

petitioner for wrongful conduct and by deterring future wrongful

conduct by petitioner. In particular, Congress was entitled to con-

clude that petitioner would be less likely to violate EPCRA in the

future—thus inflicting further injury on CBE and its members—if

compensation for some of the injury petitioner inflicted on CBE and

its members. The award of litigation costs will include compensation

to CBE for the costs of the investigation it was forced to undertake to

learn about petitioner’s use of toxic chemicals. The possibility of a

settlement, through a Supplemental Environmental Project, can rem-

edy some of the environmental injury petitioner inflicted on CBE

members.

ARGUMENT

I. EPCRA AUTHORIZES A CITIZEN SUIT AGAINST A

DEFENDANT WHO FILES OUT-OF-TIME

REPORTS AFTER RECEIVING THE NOTICE OF

INTENT TO SUE

A. The Plain Language Of The Citizen Suit Provision

Authorizes This Action.

1. The interpretation of the citizen suit provision of EPCRA must,

of course, “begin * * * with an examination of the language of the

statute.” Ingalls Shipbuilding Inc. v. Director, OWCP, 117 S. Ct. 796,

801 (1997); see, e.g., Hallstrom v. Tillamook County, 493 U.S. 20, 25

(1989). Section 326 of EPCRA authorizes a citizen to bring suit

against “[a}]n owner or operator of a facility for failure to do” certain

specified things. Among those things are “failure to * * * [c]omplete

and submit an inventory form under section [312]” and “failure to *

* * [c]omplete and submit a toxic chemical release form under sec-

tion [313.]” 42 U.S.C. § 11046(a)(1)(A)(iii) and (iv).

Petitioner is guilty of a “failure to do” these things. Of course, peti-

tioner filed out-of-time forms for previous years, after it had received

notice of CBE’s intention to sue. But this did not constitute “com-

plet[ing] and submit([ting the forms] under” Sections 312 and 313.

The ordinary meaning of “under” a legal provision is “in accordance

with” that provision,’ and a form cannot be said to have been “com-

plete{d] and submit[ted] * * * under” a statutory provision when the

individual submitting the form ignored the deadlines that the provi-

7 See, e.g., Webster's Encyclopedic Dictionary, Unabridged Edition (1989),

which defines “under” as “14. in accordance with: under the provisions of law.”

sion specifies—any more than a form could be said to have been sub-

mitted “under” Section 312 or 313 if it disregarded some other

requirement of that section. As the court of appeals explained, this

use of “under” is “simply a way to incorporate the requirements of

the referenced section without listing them all over again.” Pet. App.

All.

Section 312 provides that “[t}he inventory form * * * shall be sub-

mitted on or before March 1, 1988, and annually thereafter on March

1, and shall contain data with respect to the preceding calendar year.”

42 U.S.C. § 11022(a)(1). Petitioner filed no such forms on March |

of 1988 through 1995. Section 313 specifies that “a toxic chemical

release form * * * shall be submitted * * * on or before July 1, 1988,

and annually thereafter on July | and shall contain date reflecting

releases during the preceding calendar year.” 42 U.S.C. § 11023 (a).

Petitioner filed no such forms on July | of 1988 through 1994. Forms

submitted years after those deadlines cannot be said to have been

filed “under” Sections 312 and 313.

No one would deny that petitioner had “fail[ed] to * * * [cjomplete

and submit an inventory form under section ([312]” or Section 313 if

petitioner had filed forms that omitted the information required by

those sections, such as the identity and quantity of the chemicals. But

none fn sient cipeaindite toate Gen Giitnentdhinn | ao

deadlines specified in Section 312 and 313 and the other require-

ments of those sections. That is why petitioner—whose brief devotes

conspicuously little attention to the plain language of Section 326—

cannot suggest any plausible explanation of why an untimely filing

would not be a “failure to complete and submit” a form “under”

Sections 312 and 313.

Petitioner asserts that “[t}]he reference to complete and submit

forms ‘under’ Sections 312 and 313 is simply that—a reference to

Section 312’s inventory form and Section 313’s Form R—not a

wholesale incorporation of those sections’ requirements.” Pet. Br. 31-

32. But petitioner surely does not deny that filing blank forms, or

forms containing information that the owner knew to be inaccurate,

would constitute a “failure to complete and submit forms under”

Sections 312 and 313. And petitioner does not explain why the

requirements of accuracy are “incorporated” but the deadlines speci-

fied in Sections 312 and 313 are not.

In fact, the deadlines specified in those provisions are among the

most essential requirements in EPCRA. The information required by.

EPCRA is far less valuable when it is disclosed belatedly, especially

years after it was required. That is apparent from the fact that

Congress required annual disclosures. Congress would not have done

so if outdated information was as useful as current information.

In addition, EPCRA’s specific purposes are served only if informa-

tion is kept current. For example, forms required under Section 312,

specifying the amounts and locations of hazardous chemicals, are

filed with the local fire department and local emergency planning

agencies. Those officials obviously need current information to plan

how to control fires or releases of hazardous chemicals. A form filed

years late is of little or no use to them. The same is true for citizens

living or raising children in the neighborhood of a facility that uses

toxic chemicals, or persons considering whether to buy property in

such a neighborhood. In all of those instances, the information

required by EPCRA is far less valuable—and may well be altogether

useless—if it is disclosed years late. There is, accordingly, no basis

whatever, in either the language or the logic of EPCRA, for conclud-

ing that a failure to comply with the deadlines specified by Sections

312 and 313 is not actionable in a citizen suit.

2.a. Petitioner relies heavily on this Court’s decision in Gwaltney v.

Chesapeake Bay Foundation, Inc., 484 U.S. 49 (1987). Gwaltney

held that the citizen suit provision of the Clean Water Act did not

authorize a suit against a firm that was in violation of a permit con-

dition when it received notice of intent to sue, but that came into com-

pliance before suit was brought. Gwaltney, however, far from .1p-

porting petitioner, powerfully reinforces the conclusion that EPCRA

authorizes this action. That is because the citizen suit provision of the

Clean Water Act is phrased differently from EPCRA’s, and the dif-

ference is crucial.

The Clean Water Act authorizes an citizen suit “against any person

* * * who is alleged to be in violation of” an effluent standard. 33

U.S.C. § 1365(a) (emphasis added). The Court explained in Gwaltney

that “(t]he most natural reading of ‘to be in violation’ is a requirement

that citizen-plaintiffs allege a state of either continuous or intermit-

tent violation—that is, a reasonable likelihood that a past polluter will

continue to pollute in the future.” 484 U.S. at 57.

Had Congress wanted to limit citizen suits under EPCRA in the

way petitioner advocates, Congress could simply have borrowed the

phrase “alleged to be in violation” from the Clean Water Act. Bvi

there is overwhelming evidence that Congress deliverately chcse

not to use that phrase in EPCRA. Every other citizen suit provision in

an environmental statute at the time of EPCRA used the phrase

“alleged to be in violation.”* As the Court explained in its most recent

decision dealing with a citizen suit provision, the language in a

statute must be “compared with the language Congress ordinarily

uses.” Bennett v. Spear, 117 S. Ct. 1154, 1162 (1997). In EPCRA,

Congress used different language from what it used in every other cit-

izen suit provision.

In fact, the citizen suit provision of the Comprehensive

Environmental Response Compensation and Liability Act (CER-

CLA), 42 U.S.C. § 9659, is limited by the “alleged to be in violation”

formulation—and the CERCLA citizen suit provision was enacted as

part of the same public law as EPCRA. Pub. Law 99-499 (Oct. 17,

1986). “*[I}t is generally presumed that Congress acts intentionally

and purposely’ when it ‘includes particular language in one section of

a statute but omits it in another.’” City of Chicago v. Environmental

Defense Fund, 511 U.S. 328, 338 (1994), quoting Keene Corp. v.

United States, 508 U.S. 200, 208 (1993) (brackets in original).

8 See Clean Water Act, 33 U.S.C. § 1365 (1972); Marine Protection Research &

Sanctuaries Act, 33 U.S.C. § 1415(g) (1972); Noise Control Act, 42 U.S.C. § 4911

(1972); Endangered Species Act, 16 U.S.C. § 1640(g) (1973); Safe Drinking Water _

Act, 42 U.S.C. § 300j-8 (1974); Deepwater Port Act, 33 U.S.C. § 1515 (1979);

Resource Conservation and Recovery Act (RCRA), 42 U.S.C. § 6972(a)(1 XA) (as

amended 1984); Toxic Substances Control Act, 15 U.S.C. § 2619 (1976); Surface

Mining Control & Reclamation Act, 30 U.S.C. § 1270 (1977); Outer Continental

Shelf Lands Act, 43 U.S.C. § 1349 (1978); Comprehensive Environmental

Response Compensation and Liability Act, 42 U.S.C. § 9659 (1986); Hazardous

Liquid Pipeline Safety Act, 42 U.S.C. § 2014. RCRA contains an additional citizen

suit provision that does not use the term “alleged to be in violation,” but that pro-

vision, also, focuses on ongoing harm. See 42 U.S.C. § 6972(a)(1\B).

Against this background, the obvious inference is that Congress

used the distinctive language of the citizen suit provision of EPCRA

because it wanted to do something different in EPCRA: Congress’s

decision to deviate, in EPCRA, from “the language it ordinarily uses”

in citizen suit provisions (Bennett, 117 S. Ct. at 1162) establishes that

Congress did not want to require citizens suing under EPCRA to

“allege[ the defendant] to be in violation” of the Act at the time of the

suit. In Gwaltney, the Court emphasized that the phrase “‘alleged to

be in violation’ [i]s a statutory term of art rather than a mere stylistic

infelicity” (484 U.S. at 62). Congress’s decision not to use that “term

of art” also should not be viewed as a mere stylistic variation.

Petitioner, again, has no plausible explanation for Congress’s deci-

sion to use the phrase “failure to * * * [c]omplete and submit [forms]

under” Sections 312 and 313 instead of the customary “alleged to be

in violation.” Petitioner’s only suggestion appears to be that because

Sections 312 and 313 require only the filing of documents, the use of

the term “violation” would somehow be inapposite. See Pet. Br. 31.

But this argument, implausible on its face, is contradicted by the text

of EPCRA itself. The provisions of EPCRA specifying civil penalties

refer to a failure to comply with Section 312 or 313 as a “violation.”

42 U.S.C. § 11045(c)(1). Moreover, those provisions show that

Congress’s understanding in EPCRA, too, was that a “violation” of a

reporting requirement “continues” until the report is filed out of time,

at which point the “violation” ceases. See 42 U.S.C. § 11045(c)(3).’

The phrase “to be in violation” would, therefore, have had a clear

meaning under EPCRA—the very meaning that petitioner wishes to

impute to the citizen suit provision. Congress, however, chose not to

use that phrase.

9 Under these provisions, a failure to submit a required report under Section 312

or 313 renders a person liable for a civil penalty of up to $25,000 “for each viola-

tion,” and “[eJach day a violation * * * continues shall, for [these] purposes * * *

constitute a separate violation.” 42 U.S.C. § 11045(c)(1), (3). Thus the term “vio-

lation” under EPCRA denotes a state of affairs that can be brought to an end by fil-

ing an out-of-time report.

b. In other ways, as well, the logic of Gwalmey not only is inap-

plicable to EPCRA but helps show that EPCRA authorizes CBE’s

suit in this case. The Court in Gwaltney remarked on the “undeviat-

ing” and “pervasive use of the present tense” in the citizen suit pro-

vision of the Clean Water Act—usage that, the Court believed, further

suggested that citizen suits were limited to unlawful conduct that was

ongoing at the time suit was filed. 484 U.S. at 59. Section 326 of

EPCRA stands in sharp contrast. The term “failure,” of course, is not

taken most naturally to refer to ongoing action but to action in the

past. Also, the venue provision for citizen suits under EPCRA,

Section 326(c), provides that citizen suits “shall be brought in the dis-

trict court for the district in which the alleged violauon occurred.” 42

U.S.C. § 11046(c) (emphasis added). This, of course, suggests that

citizen suits may be brought for violations that were completed by the

time the suit was filed.

Similarly, Gwalmey found “most telling” the definition of a citizen

authorized to bring suit under the Clean Water Act: “‘a person...

having an interest which is or may be adversely affected’ by the

defendant’s violations of the Act.” 484 U.S. at 59, quoting 33 U.S.C.

§ 1365 (g). The Court reasoned that this limitation on the class of

individuals authorized to sue revealed that Congress intended to

allow citizen suits only against ongoing violations. Under the citizen

suit provision of EPCRA, by contrast, “any person may commence a

civil action” (42 U.S.C. § 11046(a)(1) (emphasis added)). This Court

has recently commented on the “remarkable breadth” of the “any per-

son” formulation, contrasting it explicitly to “the language Congress

ordinarily uses” in citizen suit provisions. Bennett v. Spear, 117 S. Ct.

1154. 1162 (1997). These aspects of EPCRA are further evidence that

the approach taken in Gwalimey, when applied to EPCRA, leads not

to the result petitioner suggests but to the conclusion that CBE’s suit

should be allowed.

There are other differences, as well, between the Clean Water Act

citizen suit provision considered in Gwaltney and Section 326 of

EPCRA. The legislative history of the Clean Water Act contained

numerous statements suggesting that the citizen suit provision was

intended only to abate or prevent pollution. See 484 U.S. at 61-63.

The legislative history of EPCRA contains nothing comparable. In

addition, the Court in Gwaltney was concerned that citizen suits

under the Clean Water Act might interfere with EPA efforts to settle

an administrative enforcement proceeding. See 484 U.S. at 60-61.

But under EPCRA, EPA's initiation of administrative enforcement

proceedings bars a citizen from filing suit. 42 U.S.C § 11046(e).

There is, to be sure, one conspicuous use of the present tense in

Section 326. But far from aiding petitioner, it wholly undermines one

of petitioner’s principal arguments. The notice provision of Section

326 requires that the citizen plaintiff give notice to, among others,

“the State in which the alleged violation occurs” (42 U.S.C. §

1 1046(d)(1) (emphasis added)). This is in direct contrast to the venue

provision, according to which citizen suits “shall be brought in the

district court for the district in which the alleged violation oucurred.”

42 U.S.C. § 11046(c) (emphasis added). The most reasonable infer-

ence from this contrast is that the violation must be ongoing at the

time notice is given—but need not be ongoing at the time suit is

brought. That is, of course, precisely the situation here.

Petitioner raises the spectre that citizen plaintiffs will “exhume past

violations” by “search[ing] old government records to determine

which companies filed late EPCRA reports and then su[ing.]” Pet. Br.

47. Of course, that is not what this case involves, and the Court need

not reach the question whether EPCRA permits such citizen svits.

But in any event, the contrast in tenses between the venue and notice

provisions provides a firm basis for distinguishing this suit from any

such “exhumation.” And nothing in EPCRA suggests that a firm that

files overdue forms only in response to the notice of intent to sue can

thereby gain immunity from a citizen action.

3. Petitioner places its greatest emphasis on the fact that Section

326 contains a notice requirement. See Pet. Br. 14-20. Petitioner

relies on the Court’s conclusion in Gwaltmey that the notice provision

of the Clean Water Act was intended to provide polluters an opportu-

nity to come into “complete compliance” with that Act and thereby

“render unnecessary a civil suit.” 484 U.S. at 60. In the context of a

statute like the Clean Water Act, which authorizes citizen suits on!y

against defendants “alleged to be in violation,” this is undoubtediy

one purpose to which the notice period might be put.

—_—

Petitioner’s argument, however, presupposes that this is the only

purpose of the notice period. Congress’s actions in amending anoth-

er citizen suit provision—that found in the Clean Air Act, 42 U.S.C.

§ 7604—<demonstrate that this presupposition is false. At the time of

Gwaltey, the Clean Air Act authorized citizen suits only against per-

sons “alleged to be in violation” (42 U.S.C. § 7604(a) (1982)). In

1990, Congress added a provision allowing citizen suits in certain cir-

cumstances against any person “who is alleged to have violated” the

Act. 42 U.S.C. § 7604(a)(1),(3). This made it clear that citizen suits

could be brought even for violations that had entirely ceased by the

time of the suit.

When Congress made this change, however, it did not remove the

notice requirement. See 42 U.S.C. § 7604(b). If petitioner’s argument

were correct—that the only reason for a notice requirement is to per-

mit a violator to come into compliance and avoid being sued—the

notice requirement of the amended Clean Air Act would have been

pointless. Congress obviously did not regard it as such. This estab-

lishes that the notice period must have other purposes besides allow-

ing potential defendants to cease their violations.

Petitioner asserts (Pet. Br. 20) that Congress would have amended

EPCRA, just as it amended the Clean Air Act, if it wished Gwaltney

not to apply to EPCRA. But of course Congress had no reason to

believe that EPCRA needed to be amended. The language of EPCRA

was, as we have explained, entirely different from the language that

the Court construed in Gwaltney. In addition, until the Sixth Circuit’s

decision in Atlantic States Legal Foundation, Inc. v. United Musical

Instruments U.S.A., Inc., supra, an unbroken series of lower court

decisions construed EPCRA to permit citizen suits against defendants

who ceased their violations only in response to the notice of intent to

sue. See page 6, supra. Congress’s decision to leave EPCRA

unchanged therefore suggests, if anything, that it considered

Gwaltmey inapplicable to EPCRA. And its decision to amend the

Clean Air Act, while leaving the notice period intact, demonstrates

that the notice period serves other purposes besides enabling a viola-

tor to come into compliance.

That conclusion about the notice period is evident in any event. As

this Court noted not only in Gwaltney, 484 U.S. at 59, but again in

Hallstrom v. Tillamook County, 493 U.S. 20, 29 (1989), one other

purpose of the notice period is to allow the EPA to determine whether

it wishes to bring an enforcement proceeding against the alleged vio-

lator, thereby barring a citizen suit. The notice period of EPCRA con-

tinues to serve this purpose under the approach taken by the court of

appeals in this case.

More fundamentally, however, the notice period in citizen suit pro-

visions serves the purpose that notice periods serve generally—they

allow for a dispute to be settled before litigation begins. For example,

Congress has provided for notice to be given to the prospective defen-

dant even in cases in which only damages will be sought, such as

under the Federal Tort Claims Act. See 28 U.S.C. § 2675(a). The pur-

pose of that notice provision cannot possibly be to allow the defen-

dant to come into compliance; it is obviously to allow for a settle-

ment. The same purpose is served by the notice requirement of

EPCRA.

A notice requirement is a particularly efficient way to serve this

purpose in a statutory scheme like EPCRA, where the potential

defendant has accurate and complete information about the existence

of a violation of the law, and the plaintiff's information is very likely

to be fragmentary. Ordinary citizens seldom have complete access to

information about the use and storage, or even the relexss, of toxic

substances at a private industrial plant. Citizen suits under EPCRA

are very likely, as a result, to be based on inferences and extrapola-

tions from publicly available data. The notice period enables the

potential EPCRA defendant to provide additional information that

might show that those inferences and extrapolations are incorrect, or

that for some other reason a suit should not be brought. All of this can

be done before suit is filed.and positions begin to harden. Petitioner's

principal argument, therefore—that the existence of a notice provi-

sion shows that EPCRA must bar suits like CBE’s —is not plausible.

B. Petitioner’s Interpretation Would Effectively

Nullify The Citizen Suit Provision Of EPCRA.

Congress had good reason to choose different language when it

enacted the citizen suit provision of EPCRA. Gwaltney’s interpreta-

tion of the citizen suit provision of the Clean Water Act still leaves a

substantial role for citizen enforcement. But the interpretation of

EPCRA for which petitioner contends would effectively nullify

Section 326. Petitioner asserts that citizen suit provisions in the vari-

ous environmental statutes “resemble each other almost completely”

(Pet. Br. 14) and that Section 326 of EPCRA should be interpreted in

accordance with this supposed “customary citizen suit model.” Pet.

Br. 12. As we have shown, the language of the Section 326 directly

contradicts this assertion. But beyond that, EPCRA is unlike other

environmental statutes because it is strictly an informational statute.

This fundamentally alters the way citizen suits function, and it

explains why Congress used different language in EPCRA.

1. Because EPCRA is an informational statute, it is relatively easy

for a firm to come into compliance with EPCRA on short notice.

Compliance with EPCRA requires, so to speak, only paperwork—not

(as often in the case of a statute like the Clean Water Act) the reengi-

neering of manufacturing processes or the installation of new equip-

ment. A firm that has been ignoring Sections 312 and 313 of EPCRA

will almost always be able to submit all delinquent forms within 60

days after it receives notice of intent to sue. Under petitioner’s inter-

pretation of EPCRA, such a firm will then be immune from a citizen

suit.

If petitioner prevails, therefore, the citizen suit provision of EPCRA

will be effectively nullified in all but rare cases. Firms that receive

notice from a potential citizen plaintiff will simply, as a matter of

course, file the past-due forms within 60 days. This is especially so

because, contrary to petitioner’s suggestions, the filing

requirements of EPCRA are not particularly onerous; much of the

information must already be gathered by firms for other purposes."

See Pet. App. A4.

One might suppose that, if firms do come into compliance in this

way, the purposes of EPCRA will have been achieved, and without

litigation. But that is not so. EPCRA can be successful only if the

information on file is accurate and up to date. Out-of-time filings,

prompted only by the theat of litigation, will not serve EPCRA’s pur-

poses.

Moreover, it is difficult and time-consuming for citizens and citizen

groups to try to identify private firms that are using toxic chemicals.

Since citizen plaintiffs can recover fees only if they prevail in litiga-

tion, petitioner’s interpretation of Section 326, if it were to prevail,

would cause citizen groups to lose much of their incentive, and their

financial ability, to engage in the investigations needed to identify

firms that are ignoring their reporting obligations under EPCRA.

No doubt some level of investigation by citizen groups will contin-

ue, but it will be much reduced. Because nearly all defendants will

come into compliance once they receive notice, citizen suits under

Section 326 will become virtually unknown. In view of the impor-

tance Congress attached to citizen enforcement—and the well-known

problems of enforcement that always plague self-reporting schemes,

and that appear to afflict EPCRA as well—it is extremely unlikely

that Congress intended these results. Congress’s choice of distinctive

language in Section 326, can, therefore, only be seen as authoriz-

ing—for this distinctive, informational statute—citizen suits for over-

due reporting violations.

The contrast with statutes such as the Clean Water Act again illus-

trates why the distinctive language of the EPCRA citizen suit provi-

10 Petitioner's claims about how burdensome compliance with EPCRA is (Pet.

Br. 42-43) are refuted by EPA's most recent Federal Register notice on the subject.

See 62 Fed. Reg. 23834, 23889 (May 1,1997) (forms required under Section 313

require an estimated average of 74 hours per report in the first year and 52.1 hours

per report in subsequent years); See also Pet. App. A4 (Section 312 reports range

in annual fixed costs from $43.50 to $146.81)

sion is so significant. Complying with the Clean Water Act will often

involve substantial expense, and extensive changes in plant and

equipment. This is especially so because, under Gwaltney, a defen-

dant who has committed a violation can escape a citizen suit only by

“demonstrat[ing] that it is ‘absolutely clear that the allegedly wrong-

ful behavior could not reasonably be expected to recur.” 484 U.S. at

66 (citation and emphasis omitted). It will be often be difficult for a

firm that is “in violation” to meet that burden within sixty days.

Moreover, if a firm does come fully into compliance, it will often

be reasonable to expect that—having already made the investment in

modified processes or new equipment—the firm may not resume pol-

luting once the threat of a citizen suit abates. By contrast, on peti-

tioner’s view of EPCRA, nothing in the citizen suit provisions pre-

vents a defendant from filing past-due reports when it receives a

notice of intent to sue, then simply ignoring EPCRA until it receives

another such notice.

2. This aspect of EPCRA also further confirms the artificiality of

petitioner’s suggestion (Pet. Br. 31-32) that the deadlines specified in

Sections 312 and 313 are different from the other requirements of

those sections, so that a citizen suit can be brought only for a viola-

tion of the other requirements, not for a violation of the deadlines. If

petitioner’s interpretation of EPCRA were to prevail, firms could file

forms, before the statutory deadlines, with any information they

chose to supply. They could, for example, simply not update their

forms from year to year—planning to update the forms if and when a

potential citizen plaintiff discovered the violation and gave notice of

intent to sue. So long as they filed corrected forms before suit was

brought, they would be guilty of only an out-of-time filing and, under

petitioner's approach, they could not be named in a citizen suit. In

this way, a firm could use the loophole petitioner seeks to create—an

immunity from citizen enforcement, sv long as the firm comes “into

compliance” within sixty days after its wrongdoing is discovered—to

disregard any aspect of EPCRA’s reporting requirements.

It is, of course, no answer to say that the government is available to

enforce EPCRA against firms that engage in such actions. One thing

that is clear—not only from the legislative history of EPCRA (see

page 3, supra) but from the very existence of Section 326—is that

Congress did not intend to rely entirely on government enforcement.

It envisioned an important role for citizen suits. As we have

explained, such a role is consistent with Gwaltney. But Congress

could not have intended the carefuily-designed citizen suit provision

of EPCRA to be set at naught by firms that take the simple expedient

of filing once their violatior.. 2° EPCRA are discovered.

Il. ARTICLE Ill DOES NOT BAR CONGRESS

FROM AUTHORIZING THIS CITIZEN SUIT

Although petitioner did not challenge CBE’s standing in the court

of appeals, petitioner now asserts that Article II] bars this citizen suit,

even if EPCRA authorizes it, because CBE lacks standing. Pet. Br.

34-41. Petitioner’s cursory argument on this point gives no hint of

how far-reaching its claim is, and of how much this case differs from

any other in which this Court has found that the plaintiff lacked

standing. To begin with, CBE’s suit is, as we have shown, authorized

by an Act of Congress, and it is extremely rare for this Court to rule

that Congress has exceeded the bounds of Article III."

1] Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992), is arguably the only case

in which this Court has done so. See R. Fallon, et al., Hart and Wechsler’s The

Federal Courts and the Federal System 169-70 (4th ed. 1996). In Muskrat v. United

States, 219 U.S. 346 (1911), the Court invalidated an Act of Congress on Article III

grounds, but the Court's concerns appear to have been that the Act authorized the

issuance of an advisory opinion and that the defendant had no stake in the case. See

id. at 361. In McClure v. Reagan, 454 U.S. 1025 (1981), the Court summarily

affirmed, without opinion, a district court decision denying standing to a member

of Congress to challenge a judicial appointment. A special Act of Congress had

purported to grant standing in those circumstances. See McClure v. Carter, 513 F.

Supp. 265 (D. Idaho 1981).

In fact, there is a broad consensus in the academic literature that the question of

standing should be viewed as identical to the question whether a statute or consti-

tutional provision creates in the plaintiff a right to bring suit. See, ¢.g.. Albert,

Standing to Challenge Administrative Action: An Inadequate Surrogate for Claim

for Relief, 83 Yale LJ. 425, 451-55 (1974), Currie, Misunderstanding Standing.

1981 Sup. Ct. Rev. 41; Logan, Standing to Sue: A Proposed Separation of Powers

Analysis, 1984 Wis. L. Rev. 37; Fletcher, The Structure of Standing, 98 Yale LJ.

221 (1988); id. at 223 n. 18 (collecting authorities).

Perhaps more important, this is a suit against a private party, not

against a government official or government agency. It therefore

involves no effort “to transfer from the President to the courts the

Chief Executive's most important Constitutional duty, to ‘take Care

that the Laws be faithfully executed,’ Art. II, § 3.” Lujan v. Defenders

of Wildlife, 504 U.S. 555, 577 (1992). The separation of powers is the

“single basic idea” on which “the law of Art. III standing is built”

(Allen v. Wright, 468 U.S. 737, 752 (1924)). This case—a lawsuit

between two private parties, alleging a wrong in the past, and seeking

primarily the payment of money— is manifestly a form of litigation

that “is ‘consistent with the separation of powers and * * * tradition-

ally thought to be capable of resolution through the judicial process.’”

Allen v. Wright, 468 U.S. at 752, quoting Flast v. Cohen, 392 U.S. 83,

97 (1968).

“To satisfy the ‘case’ or ‘controversy’ requirement of Article III,

* * * a plaintiff must, generally speaking, demonstrate that he has

suffered ‘injury in fact,’ that the injury is ‘fairly traceable’ to the

actions of the defendant, and that the injury will likely be redressed

by a favorable decision.” Bennett v. Spear, 117 S. Ct. at 1163, citing

Defenders of Wildlife, 504 U.S. at 560-61. It is beyond serious dispute

that petitioner’s admitted failure to comply with EPCRA inflicted

injury on CBE, thus satisfying the “injury in fact” and “fairly trace-

able” elements of the standing inquiry. The requirement of “redress-

ability,” to the extent it applies in a suit of this kind, is satisfied in

numerous ways: the award of civil penalties will punish petitioner for

the injury it inflicted on CBE and its members and deter future injury

to CBE and its members; and the award of litigation costs will com-

pensate CBE for the cost of discovering information that would have

A. CBE Suffered Injury In Fact Caused by Petitioner’s Conduct

1. EPCRA’s title itself identifies the injury inflicted by petitioner's

conduct. EPCRA is intended to enforce a “right to know,” that is, a

right to information. By failing to file the required forms, petitioner

deprived CBE and its members of information to which CBE was

entitled. Under EPCRA, the information on Section 312 and 313

forms is made available to the public, and the public is notified of its

availability. 42 U.S.C. §§ 11022(e), 11023(h). The information from

Section 313 forms is compiled in a computer database readily avail-

able to members of the public. See 42 U.S.C. § 11023(j). Had peti-

tioner complied with EPCRA, both CBE and its members would have

had access to information about petitioner’s use and release of toxic

chemicals. Because of petitioner’s wrongdoing, they did not have

access to that information.

There is no question that “injury to a statutorily created right to

truthful * * * information” can constitute “injury in fact.” Havens

Realty Corp. v. Coleman, 455 U.S. 363, 373-74 (1982). See, e.g.,

Public Citizen v. Department of Justice, 491 U.S. 440, 449 (1989).

But the injury inflicted on CBE and its members is even more “dis-

tinct and palpable” (Warth v. Seldin, 422 U.S. 490, 501 (1975)) than

that. This is a case in which Congress has, with specificity, “iden-

tif[ied] the injury it seeks to vindicate and relate[{d] the injury to the

class of persons entitled to bring suit.” Defenders of Wildlife, 504

U.S. at 580 (Kennedy, J., concurring).

That is because EPCRA is concerned not just with the public dis-

semination of information, but with making information available to

a specific group: individuals who live and work near the facilities that

use and release toxic chemicals. EPCRA was enacted partly in

response to the accidental release of toxic chemicals in Bhopal, India,

in which over 2,000 people were killed and countless injured in the

surrounding area, and to a similar but less devastating release of toxic

chemicals in Institute, West Virginia. See Pet. App. A2. Congress well

chemicals are most in need of the information that EPCRA compels

the users of toxic substances to disclose, so that they can prepare for

emergencies—a principal focus of EPCRA—and attempt to work

with the industrial users of toxic substances to mitigate or eliminate

the hazards.

This is explicit in the language of the statue itself: Section 313, one

of the provisions that petitioner violated, states that “the release

forms required under this section are intended to provide informa-

tion” not only “to Federal, State, and local governments” but to “the

public, including citizens of communities surrounding covered facil-

ities.” 42 U.S.C. § 11023(h). It is reinforced by the legislative histo-

ry of EPCRA. See, e.g., H. R. Rep. 962, 99th Cong., 2d Sess. 281,

299 (1986) (Conference Report) (“[EPCRA] establish{es] programs

to provide the public with important information on the hazardous

chemicals in their communities. * * * The information collected

under [Section 313] is intended to inform the general public and the

communities surrounding covered facilities about release of toxic

chemicals”); H.R. Rep. 253, 99th Cong., 2d Sess. pt 1 at 59 (1985)

(“The purpose of EPCRA is to provide the public with important

information on hazardous chemicals in their communities.”).

CBE’s complaint specifically alleged that CBE members “reside,

Own property, engage in recreational activities, breathe the air, and/or

use areas near [petitioner’s] facility.” J.A. 5. The complaint also states

that CBE’s members “seek, acquire, and use data reported by facili-

ties under EPCRA to learn about toxic chemical releases, the use of

hazardous substances in their communities, to plan emergency pre-

paredness in the event of accidents, and to attempt to reduce the toxic

chemicals in areas in which they live, work, and visit.” J.A. 5. Thus

CBE and its members “ha[ve] suffered injury in precisely the form

the statute was intended to guard against” (Havens Realty Corp., 455

U.S. at 373): they are within a narrow, geographically-defined class

of individuals to whom Congress gave a right to information about

facilities like petitioner’s—facilities in the immediate

area. The existence of injury in fact is, therefore, beyond serious

question in this case.

2. While the denial of information is sufficient to establish injury in

fact to both CBE and its members, petitioner also injured CBE in its

organizational capacity (see, ¢.g., Warth, 422 U.S. at 511). Because

petitioner failed to comply with EPCRA, CBE had to conduct an

independent investigation to discover information about the chemi-

cals used at petitioner’s plant. As we have noted, CBE conducted

such an investigation, based partly on a report from a member of the

public to the effect that petitioner was releasing “acidic material”

from its smokestacks at night. Instead of being able to obtain the

CBE had to examine a variety of other sources to try to discover evi-

dence about the kinds of chemicals that petitioner was storing and

releasing.'"? The additional costs that CBE incurred in conducting that

petitioner to disclose—were a “drain on the organization’s resources”

that, as the Court has held, constitutes a further injury in fact to the

organization. Havens Realty Corp., 455 U.S. at 379.

As the complaint alleges, CBE and its members systematically

gather information on facilities in their neighborhood that use toxic

chemicals and make that information available to people living near-

by. CBE prepares, for example, a Guide to Southeast Chicago's

Major Polluting Industries, which is “designed to help southeast

Chicago residents better understand the magnitude of the toxics

threat with which they are living on a daily basis and to provide them

with the information and some tools they can use to begin working

proactively to reduce that threat.” Jd. at 1.” The listing of each firm

specifies in detail the amounts and toxicity of the chemicals stored

and released by each firm. The guide is compiled from forms filed

under EPCRA. Petitioner’s facility would have been described in the

most recent issue of the guide, and the information that Congress

sought to make available to the surrounding neighborhood would

EPCRA, as we have said, was intended in large part to make read-

ily available to individuals and groups precisely the kind of informa-

tion CBE includes in its guide. But because petitioner ignored

EPCRA’s requirements, CBE had to expend its own resources to con-

duct a much more expensive independent investigation, which culmi-

nated in its discovery that petitioner used and released toxic chemi-

cals. This expenditure—precisely one of the things EPCRA sought to

avoid—is additional injury in fact.

12 See Plaintiff's Memorandum in Opposition to “Motion to Dismiss,” No. 95

C 4534 (N_D. II1.), filed Oct. 5, 1995, Exh. 1 (Affidavit of Stefan A. Noe).

13 | copy of this document has been lodged with the Clerk of the Court and

served on counsel for petitioner.

3. Finally, there is reason to believe that petitioner’s failure to file

reports under EPCRA was also responsible for greater pollution in

the environment near its plant. One principal purpose of EPCRA was

to induce firms that used toxic chemicals to learn about their own

practices; another was to expose those firms to public opinion.

Congress expected that the result would be less use of toxic chemi-

cals and less pollution, and the history of EPCRA has dramatically

borne out Congress’s judgment. See page 3, supra.

In fact, petitioner itself sharply reduced its releases of toxic chem-

icals after it began filing EPCRA reports. From 1988 to 1993, when

petitioner was not filing its annual Section 313 reports, its hydrochlo-

ric acid air releases increased almost every year. For 1993, petitioner

reported air emissions of 124,787 pounds of hydrochloric acid. For

1995—after this suit was brought—petitioner reported emissions of

only 27,560 pounds. This makes it much more than “speculation”

(Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 44

(1976)) to say that compliance with EPCRA during the period from

1988 to 1995 would have affected petitioner in the way that Congress

envisioned, and in the way that so many other firms were affected:

petitioner would have reduced its releases of toxic chemicals. The

additional toxic chemicals to which CBE and its members were

exposed, as a result of petitioner’s noncompliance, is another injury

in fact that petitioner inflicted on CBE.

B. CBE’s Suit Satisfies the Requirement of Redressability

For these reasons, it is beyond serious dispute that CBE was injured

in fact. Even petitioner does not dispute that CBE’s injury is “fairly

traceable” to petitioner’s failure to submit forms under EPCRA,

rather than the actions of some third party. The only remaining issue

is whether CBE’s injuries are “redressable” by the relief that CBE

seeks.

14 The 1988-93 figures are reported in The Steel Company’s Reply

Memorandum in Support of Its Motion to Dismiss, No. 95 C 4534 (N.D. Ill.), filed

Oct. 19, 1995, Exh. B. The 1995 figure is contained in the Form R for that year that

petitioner filed with the EPA. We have lodged a copy of that document with the

Court and served it on petitioner.

1. a. The requirement of redressability has been developed and

applied by this Court primarily in cases in which a plaintiff has

sought an injunction against a government official or agency. See,

e.g., Lujan v. Defenders of Wildlife, 504 U.S. 555, 568-71 (1992)

(plurality opinion); Allen, 468 U.S. at 757-61; Valley Forge Christian

College v. Americans United for Separation of Church and State, 454

U.S. 464, 472-76 (1982); Simon, 426 U.S. at 39-46. In such cases,

this requirement serves a vital purpose: it ensures that courts will

interfere with executive officials’ performance of their duties only

when such interference is necessary to prevent continued injury to the

plaintiff. Otherwise, a plaintiff who suffered some form of injury in

fact could, by asserting a connection between that injury and some

government policy, use litigation as a way to enlist the judicial branch

in supervising the legality of the actions of executive officials—a role

far different from that contemplated by Article III. See Valley Forge

Christian College, 454 U.S. at 473, quoting United States v. SCRAP.

415 U.S. 669, 687 (1973)."

This, however, is not a suit that “seek[s] a restructuring of the appa-

ratus established by the Executive Branch to fulfill its legal duties”

(Allen, 468 U.S. at 761); rather, it is “a case brought * * * to enforce

specific legal obligations where violation works a direct harm.” Ibid.

In such cases, the Court has omitted any mention of redressability in

Stating the requirements of Article III and has required only what is

plainly present here: “the plaintiff must show that he personally has

suffered some actual or threatened injury as a result of the putatively

illegal conduct of the defendant.” Gladstone, Realtors v. Village of

Bellwood, 441 U.S. 91, 99 (1979); see, e.g., Havens Realty Corp.,

455 U.S. at 372. See also Village of Arlington Heights v. Metropolitan

Housing Development Corp., 429 U.S. 252, 261 (1977); Warth, 422

U.S. at 501. The reason is that in such cases, there is no danger that

the litigation seeks to give courts a general authority to police the

legality of the actions of executive officials, since such officials are

15 That is why often “the ‘redressability’ analysis is identical to the ‘fairly trace-

able’ analysis.” Allen, 468 U.S. at 759 n. 24.

not parties to the case, and no danger of undue interference with the

activities of private parties—so long as the plaintiff can show, as CBE

can here, that the defendant against whom it seeks relief is the party

who actually injured it, and that the relief sought is authorized by

Congress.

b. Perhaps for this reason, the Court has consistently acknowledged

the constitutionality of informer’s actions, or qui tam actions, in

which a private person sues another private person, seeking to com-

pel the payment of a fine to the government plus a bounty of some

sort—generally a percentage of the government’s recovery—to the

plaintiff. The bounty cannot be said to “redress” the plaintiff's injury;

it is simply a reward for bringing suit. Indeed in the typical qui tam

action, the plaintiff need not show any injury to himse!f at al’, beyond

the injury he suffers as an undifferentiated member of the public. Cf.

United States v. Richardson, 418 U.S. 166 (1974). Nevertheless,

“*[s]tatutes providing for actions by a common informer, who him-

self had no interest whatever in the controversy other than that given

by statute, had been in existence for hundreds of years in England,

and in this country ever since the foundation of our Government.’”

United States ex rel Marcus v. Hess, 317 U.S. 537, 541 n.4 (1943),

quoting AZarvin v. Trout, 199 U.S. 212, 225 (1905).

As early as 1805, Chief Justice Marshall remarked that “[a]lmost

every fine * * * under a penal statute, may be recovered by a [private]

action of debt as well as by information [filed by the government.]”

Adams, qui tam, v. Woods, 6 U.S. 336, 341 (1805). And as recently as

1992, the Court went out of its way to avoid drawing into question

such “case[s] in which Congress has created a concrete private inter-

est in the outcome of a suit against a private party for the

Government’s benefit, by providing a cash bounty for the victorious

plaintiff.” Defenders of Wildlife, 504 U.S. at 573. See also Hughes

Aircraft Co. v. United States ex rel. Schumer, No. 95-1340 (June 16,

1997). This long-standing and consistent endorsement of the qui tam

action is especially significant because, as the Court has said, the

requirements of Article I" are “not susceptible of precise definition”

(Allen v. Wright, 468 U.S. at 751): to a large degree, they draw their

content from tradition and “common understanding[s].” Defenders of

Wildlife, 504 U.S. at 560.

CBE’s standing follows a fortiori from the qui tam cases. As in

those cases, the principal “redress” CBE seeks is a payment to the

federal treasury. But CBE, unlike the typical qui tam plaintiff, can

show a distinct and concrete injury to itself and its members, and it

can show that the defendant inflicted that injury. It therefore has a far

greater “warrant [for] invocation of federal court jurisdiction”

(Warth, 422 U.S. at 498) than the qui tam plaintiff does.

The only difference between a citizen suit like CBE’s and a tradi-

tional qui tam action—other than CBE’s injury in fact, which makes

this a far more appropriate form of litigation under Article II]—is the

kind of incentive Congress used to motivate plaintiffs to sue. In a cit-

izen suit under EPCRA, a victorious plaintiff can recover the “costs

of litigation” (42 U.S.C. § 11046(f)); the typical qui tam plaintiff

receives a percentage of the government’s recovery. But there is no

basis for reading into Article [II a limitation on the judgments

Congress may make about the appropriate incentive scheme.

An award of the “costs of litigation” under EPCRA is made to the

plaintiff, not to the attorney. The award is contingent upon the plain-

tiff’s prevailing. The fact that the plaintiff recovers the costs of liti-

gation if he prevails, but not if he loses, is surely enough to give the

plaintiff “‘a personal stake in the outcome of the controversy’” (Flast

v. Cohen, 392 U.S. 83, 101 (1968), quoting Baker v. Carr, 369 U.S.

186, 204 (1962)), and thereby “‘assure that concrete adverseness

which sharpens the presentation of issues upon which the court * * *

depends.” Simon, 426 U.S. at 38 & n. 16, quoting Baker, 369 U.S.

204.'"* EPCRA provides for “litigation costs,” not just attorney’s fees,

so the citizen plaintiff himself will be compensated for resources

spent on the litigation. Of course, the citizen plaintiff may not show

a net financial gain, but that is true of any victorious civil plaintiff

16 Petitioner relies on Lewis v. Continental Bank Corp., 494 U.S. 472, 480

(1990), and Diamond v. Charles, 476 U.S. 54, 70-71 (1986), for the proposition that

“awarding attorney's fees does not constitute sufficient interest in a case for Article

III purposes.” Pet. Br. 38. But neither case states such a sweeping, and implausible,

proposition, and neither is apposite here. In Lewis, the case became moot during the

course of litigation, and there was no longer a live dispute between the parties on

the merits; the Court held that the interest in fees was insufficient to establish a con

who finds that the amount of the judgment he has recovered (includ-

ing the bounty, in a qui tam action) is equal to or less than the costs

of litigation.

In fact, the differences between litigation costs and a percentage

bounty suggest, if anything, that an award of litigation costs is a more

rational way to provide an incentive for private parties to sue. That is

because the payment is calibrated to the amount of time and effort

that were expended in enforcing the law. A bounty might provide an

inadequate incentive to bring a particularly complex suit, and might

provide a windfall in an easy case. By contrast, the citizen suit pro-

vision of EPCRA, if properly administered, will always protect a vic-

torious plaintiff from having to bear the litigation costs of enforcing

the law and obtaining a payment into the federal treasury. The rela-

tive irrationality of a bounty, compared to a fee award, is no doubt

why Congress has, in recent times, increasingly (although not exclu-

sively) enacted citizen suit provisions, providing for the award of

fees, instead of qui tam actions.

It is, in any case, difficult to see why the desirability of different

incentive schemes should make a difference for Article III purposes.

That is a choice that should be left to Congress. It would be pointless

to conclude that Section 326 is unconstitutional as written, but would

tinuing Article III] case or controversy. Here, of course, ere is a continuing live

dispute on the merits between the parties in this case: CBE claims that, among

other things, petitioner is liable for civil penalties, and petitioner disagrees.

Diamond involved facts utterly unlike those present here. In Diamond, a party

intervened in a lower court to defend the constitutionality of a state statute; the

lower court invalidated the statute and awarded fees against the intervenor. When

the state declined to seek review in this Court, the Court held that the intervenor

had no cognizable interest, sufficient to satisfy Article III, in defending the consti-

tutionality of the state law. In those circumstances, the intervenor’s interest in hav-

ing the award of fees vacated was not sufficient to satisfy Article II]. See 476 U.S.

at 70. CBE, unlike the intervenor in Diamond, is not relying on the provision for

attorney fees incurred in prosecuting (or defending) the lawsuit to establish injury

in fact; CBE has amply shown injury in fact from several other sources. Moreover,

while the intervenor in Diamond had no cognizable interest in the merits of the

case—he had no more authority to defend the constitutionality of the state statute

than any member of the general public did—an Act of Congress grants CBE a right

to pursue civil penalties against petitioner.

become constitutional if Congress provided, instead of litigation

costs, a bounty—even a relatively smal! bounty of a kind that would

be almost certain not to cover the costs of litigation. Indeed it would

be highly paradoxical to conclude that a citizen suit like CBE’s,

where the plaintiff can show injury in fact inflicted by this defendant,

is barred by Article III, even though a qui tam action brought by a

“stranger’—an individual who can show no injury in fact—is

allowed to proceed, just because Congress chose to award litigation

costs instead of an arbitrary percentage bounty.”

2. Petitioner’s contentions about “redressability” should be rejected

for another reason as well. A redressability issue arises in this case, if

at all, only because petitioner filed its delinquent forms in response to

CBE’s notice of intent to sue, thus making injunctive relief unneces-

sary. Had petitioner not ceased its unlawful conduct in this way, no

one would deny that CBE’s suit satisfied the requirements of Article

III. Under a well-established line of cases, “‘a defendant’s voluntary

cessation of a challenged practice does not deprive a federal court of

its power to determine the legality of the practice.’” Northeastern

Florida Chapter, Associated General Contractors v. Jacksonville, 508

U.S. 656, 662 (1993), quoting City of Mesquite v. Aladdin’s Castle,

Inc., 455 U.S. 283, 289 (1982).

These cases, of course, usually involve litigation that has already

begun. In such circumstances, the defendant’s voluntary cessation of

the unlawful practice does not render a case moot unless it is

“absolutely clear” that “‘the allegedly wrongful behavior could not

reasonably be expected to recur.” Vitek v. Jones, 445 U.S. 480, 487

(1980), quoting Phosphate Export Ass'n, 393 U.S. at 203. In particu-

lar, the federal courts do not lack power to adjudicate such cases even

if, as here, the defendant’s cessation of wrongdoing has “ma({dje

17 There is substantial historical material, which the Court has not yet had occa-

sion to address, supporting the power of Congress to authorize suits in circum-

stances where standing would otherwise be lacking. These materials are canvassed

in Berger, Standing to Sue in Public Actions, 78 Yale LJ. 816 (1969); Jaffe,

Standing to Secure Judicial Review: Public Actions, 74 Harv. L. Rev. 1265, 1269-

82 (1961); Winter, The Metaphor of Standing, 40 Stan. L. Rev. 1371, 1394-1425

(1988); Sunstein, What's Standing After Lujan?, 91 Mich. L. Rev. 163, 168-179

(1992).

injunctive relief unnecessary.” United States v. Concentrated

Phosphate Export Ass'n, 393 U.S. 199, 203-04 (1968). See, e.g.,

United States v. W.T. Grant Co., 345 U.S. 629, 632-33, 635-36

(1953).

Here Congress has, for compelling practical reasons, applied this

voluntary cessation principle to conduct taken by the defendant in

response to the notice of intent to sue, rather than in response to the

filing of the complaint. There is no reason to doubt that Congress has

the power to do this. Indeed, the Court’s seminal case on the volun-

tary cessation rule anticipates this situation: “‘It is the duty of the

courts to beware of efforts to defeat injunctive relief by protestations

of repentance and reform especially when abandonment seems timed

to anticipate suit, and there is probability of resumption.’” United

States v. W.T. Grant Co., 345 U.S. 629, 633 (1953), quoting United

States v. Oregon State Medical Society, 343 U.S. 326, 333 (1952)

(emphasis added).

It of course does not follow that there should be a general judge-

made “voluntary cessation” exception to standing doctrine, parallel to

that for mootness. But by the same token, Article III should not be

construed to bar Congress from applying a “voluntary cessation”

principle to permit standing. Both standing and mootness are Article

III doctrines (see, e.g., Honig v. Doe, 484 U.S. 305, 317 (1988)), so

the voluntary cessation principle developed in the mootness cases

must, of necessity, be consistent with Article III." Here, moreover,

Congress had excellent reasons to afford a right to sue: as we have

explained, otherwise Congress could not provide a 60-day notice

period, which serves many useful purposes, without enabling firms

like petitioner effectively to nullify citizen enforcement.

18 cf. Defenders of Wildlife, 504 U.S. at 570 n.4 (plurality opinion) (emphasis

added) (A “defendant * * * can dispel jurisdiction by conceding the merits (and

presumably thereby suffering a judgment)”).

19 See United States Parole Comm'n v. Geraghty, 445 U.S. 388, 397 (1980),

quoting Monaghan, Constitutional Adjudication: The Who and When, 82 Yale L.J.

1363, 1384 (1973) (“[Mootness is] the doctrine of standing set in a time frame. The

requisite personal interest that must exist at the commencement of the litigation

(standing) must continue through its existence (mootness).”).

This conclusion is not in tension with the principle of Mollan v.

Torrance, 22 U.S. (9 Wheat.) 537, 539 (1824), that “jurisdiction * * *

depends upon the state of things at the time of the action brought, and

* * * after vesting, it cannot be ousted by subsequent events.” See,

e.g., Freeport-McMoRan Inc. v. K N Energy, Inc., 498 U.S. 426, 428

(1991); St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 US.

283, 289-90 (1938); Smith v. Sperling, 354 U.S. 91, 93 n. 1 (1957).

Of course, that principle refers only to the “ouster” of federal juris-

diction, not to its creation, and therefore has no direct application to

the issue presented here. Perhaps more important, the Court has never

suggested that the principle of Mollan v. Torrance is a constitutional

principle, as opposed to a principle of statutory construction. Indeed

it cannot be a constitutional principle, because mootness provides a

clear example of “jurisdiction * * * ousted by subsequent events.”

See Honig, 484 U.S. at 317 (Article II requires that a case be “an

actual case or controversy” at the time of its decision, not just “when

suit was filed”).

The relevant analogy, therefore, is not to the principle of Mollan v.

Torrance but to Congress’s power to prevent efforts to circumvent

jurisdictional requirements. See, e.g., 28 U.S.C. 1359; Kramer v.

Caribbean Mills, Inc., 394 U.S. 823 (1969). Although Congress has

not yet done so, there seems little doubt that Congress could, for

example, prevent parties from defeating diversity jurisdiction by

assigning a claim to a non-diverse individual in anticipation of litiga-

tion. See Gentle v. Lamb-Weston, Inc. 302 F. Supp. 161 (D. Me.

1969); Grassi v. Ciba-Geigy, Lid., 894 F. 2d 181 (Sth Cir. 1990);

Miller v. Perry, 456 F. 2d 63 (4th Cir. 1972). Here, similarly,

Congress has prevented petitioner from defeating federal jurisdiction

by actions taken in response to the notice of intent to sue.

3. The relief that CBE seeks also redresses the injury it suffered in

a straightforward way: by punishing the party who inflicted the

injury, and by preventing and deterring that party from inflicting any

future injury on CBE and its members. Petitioner asserts that CBE is

seeking to exercise “prosecutorial authority” (Pet. Br. 39). But CBE

is not seeking to enforce the law against a wrongdoer chosen from the

population at large; it is seeking to punish a party whose illegal con-

duct directly injured CBE, and who, if it breaks the law again in the

future, will injure CBE again.”

a. The notion that a victim redresses a wrong and vindicates its

own rights by punishing the wrongdoer—even if the victim does not

materially profit from doing so—is as ancient and fundamental a

notion of “redress” as can be found. This Court has, for example,

specifically approved and awardé®@f nominal damages “not to exceed

one dollar” to plaintiffs who suffer a violation of their rights but no

compensable injury. Carey v. Piphus, 435 U.S. 247, 267 (1978). The

purpose of such an award is to “vindicate[]” the plaintiff's rights and

to ensure that “the law recognizes the importance to organized soci-

ety that those rights be scrupulously observed” (id. at 266). CBE,

which has suffered injury, has the same interest in obtaining the vin-

dication of its own rights. And the request for civil penalties, as well

as for other forms of relief, assures that there will be far more “‘con-

crete adverseness’” between the parties here than there is in a suit

where only nominal damages is at stake. Simon, 426 U.S. at 38 n. 16,

quoting Baker, 369 U.S. at 204.

b. In addition, Congress determined that the imposition of civil

of EPCRA. As we have shown, petitioner’s violations of EPCRA

injured CBE and its members in precisely the way the statute is

intended to prevent. Petitioner continues to conduct operations sub-

ject to EPCRA in the neighborhood where CBE’s members live and

work. If petitioner violates EPCRA in the future, those violations will

again directly harm CBE and its members. By deterring such viola-

tions, the civil penalties will redress future harm to CBE in the same

way that an injunction would.

Deterrence in this case rests on the common sense notion that a

wrongdoer who has paid a penalty is more likely to stay within the

law, in the future, than a wrongdoer who has escaped punishment. It

20 In this respect, this case is wholly unlike City of Los Angeles v. Lyons, 461

U.S. 95 (1983); here, if petitioner again violates the law, there is not just a “real and

immediate theat of injury” to CBE and its members (id. at 103) but a virtual cer-

tainty.

is entirely reasonable for Congress to make this judgment the basis

for the EPCRA citizen suit provision. Congress should be permitted

“to define injuries and articulate chains of causation that will give rise

to a case or controversy where none existed before” (Defenders of

Wildlife, 504 U.S. at 580 (Kennedy, J., concurring)). A determination

that petitioner will be less likely to injure its neighbors in the future

if it is subject to civil penalties today is precisely the “chain of cau-

sation” that Congress has “articulate[d]’” here.

Indeed, Congress has made this judgment in connection not just

with EPCRA but with the amendments to the citizen suit provision of

the Clean Air Act, which permits citizen suits against parties who

came into compliance before suit was brought: “The assessment of

civil penalties for violations of the Act is necessary for deterrence,

restitution, and retribution.” S. Rep. No. 101-223, 101st Cong., 2d

Sess. 372-75 (1989) This does not amount to saying that Congress

could simply authorize any person to enforce the law against any

wrongdoer: CBE will be the victim if petitioner violates the law

again. By imposing penalties on petitioner, CBE is seeking to avert

future injury to itself, and Congress reasonably concluded that such

penalties will be an effective deterrent.

c. Finally, in this case CBE sought not just civil penalties and liti-

gation costs but declaratory and injunctive relief against petitioner.

See J.A. 11. The declaratory judgment will foreclose petitioner from

engaging in unlawful conduct in the future. Cf. Samuels v. Mackell,.

401 U.S. 66 (1971). The injunction, which would entitle CBE to

inspect petitioner's facility and records, will directly deter future vio-

As we have said, under well-established principles, such a request

for prospective relief cannot be defeated just because petitioner has,

under theat of litigation, desisted for now from its unlawful conduct.

“[P}redictable ‘protestations of repentance and reform’” (Gwaltney,

484 US. at 67, quoting Oregon State Medical Society, 343 U.S. at

333) do not bar equitable relief unless the “defendant [can] demon-

strate that it is ‘absolutely clear that the allegedly wrongful behavior

could not reasonably be expected to recur’” (Gwaltney, 484 U.S. at

66, quoting Phosphate Export Assn, 393 U.S. at 203)—a showing

that petitioner cannot possibly make here.

4. The relief that CBE seeks also compensates CBE for the injury

petitioner inflicted on it, in two important respects.

a. The award of litigation costs, in addition to providing CBE with

a stake in the action analogous to the qui tam plantiff’s bounty, also

redresses an important element of CBE’s injury. Because EPCRA is

an informational statute, the award of litigation costs under EPCRA

does not function in the way such an award generally does. The Court

has said that “[a}s a general matter,” a claim for litigation costs “is not

part of the merits of the action” because it “does not remedy the

injury giving rise to the action” (Budinich v. Becton Dickinson & Co.,

486 U.S. 196, 200 (1988)). But that is not the case here; here, an

award of litigation costs will compensate CBE, in part, for the injury

that petitioner’s unlawful conduct inflicted on it. The award of litiga-

tion costs is therefore not “wholly unrelated to the subject matter of

the litigation” (Diamond v. Charles, 476 U.S. 54, 70 (1986)).

Petitioner’s wrongful conduct kept from CBE information that CBE

was entitled to receive, and as a result CBE had expend its own

resources to conduct a more expensive independent investigation,

piecing together from other public sources of information that should

have been readily available under EPCRA. CBE’s independent inves-

tigation served the very purpose of EPCRA—“to provide the public

* * * with important information on the hazardous chemicals in their

communities.” H.R. Rep. 253, pt. 1 at 59.

If CBE prevails in this action, the costs of that investigation will be

recoverable under the litigation costs provision of EPCRA. See

Public Interest Research Group of New Jersey, Inc. v. Windall, 51 F.

3d 1179, 1189 (3d Cir. 1995). As this Court explained, in interpreting

the litigation costs provision of the Clean Air Act, 42 U.S.C.

7604(d)—a provision indistinguishable, for these purposes, from the

EPCRA litigation costs provision—fees should be awarded for work

that is “‘useful and of a type ordinarily necessary’ to secure the final

result obtained from the litigation.” Pennsylvania v. Delaware Valley

Citizen's Council, 478 U.S. 546, 561 (1986), quoting Webb v. Board

of Ed., 471 U.S. 234, 243-44 (1985). The resources CBE expended in

its investigation of petitioner were not only “useful” and “ordinarily

necessary” but indispensable; without that investigation CBE would

have had no basis to issue its notice of intent to sue, which was of

course a jurisdictional prerequisite to this action (see Hallstrom, 493

U.S. at 31).

If, therefore, CBE prevails in this litigation, it will receive a sum of

money that will compensate it for a significant part of the injury that

petitioner inflicted on it. This is a straightforward form of “redress,”

plainly adequate to satisfy Article III.

b. In addition, citizen suits under EPCRA and other environmental

statutes, like other litigation, often do not proceed to judgment but are

settled. Under well-established EPA guidelines, those settlkements—

so-called Supplemental Environmental Projects (SEPs)—can provide

benefits to the individuals injured by the defendant's violation of

EPCRA. See Environmental Protection Agency, Interim Revised

Supplemental Environmental Projects Policy, 60 Fed. Reg. 24856

(May 10, 1995). Many lower courts have approved SEPs as part of

EPCRA. See, e.g., Atlantic States Legal Foundation v. Whuing Roll-

Up Door Mfg. Corp., 38 BNA Env’t Rep. Cases 1426, 1428

(W.D.N.Y. 1994); Atlantic States Legal Foundation v. Com-Tek, 22

BNA Env’t Rep. (Current Developments) 535 (June 28, 1991).

A SEP that resolved an EPCRA suit might, for example, provide

for the defendant to take steps to reduce its use or improve its han-

dling of toxic substances—the sort of steps the defendant might have

been compelled to take, by public pressure, if it had made the disclo-

sures required by EPCRA. Like any settlement, a SEP might not

compensation; it only requires that the prospect of redress be “likely”

and not purely “speculative.” The prevalence of SEPs, and their

recognition by the EPA, establish the availability of this form of

redress and therefore satisfy Article III.

CONCLUSION

The judgment of the court of appeals should be affirmed.

Respectfully submitted.

June 23, 1997

JAMES D. BRUSSLAN

Counsel of Record

HUNDLEY & BRUSSLAN

14 East Jackson Boulevard

Suite 1320

Chicago, IL 60604

(312) 427-3777

David A. STRAUSS

1111 East 60th Street

Chicago, IL 60637

(773) 702-9601

STEFAN A. NOE

CITIZENS FOR A BETTER

ENVIRONMENT

407 South Dearborn Street

Suite 1775

Chicago, IL 60605

(312) 939-1530

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.