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

In The

Supreme Court of the United States

October Term, 1996

+

THE STEEL COMPANY, a/k/a

CHICAGO STEEL AND PICKLING COMPANY,

Petitioner,

vs.

CITIZENS FOR A BETTER ENVIRONMENT,

Respondent.

S

On Writ Of Certiorari

To The United States Court Of Appeals

For The Seventh Circuit

+

REPLY BRIEF FOR THE PETITIONER

S

SANFORD M. STEIN

Counsel of Record

Leo P. Domsrowski

WILDMAN, Harro.p, ALLEN & Dixon

225 West Wacker Drive

Chicago, IL 60606-1229

(312) 201-2000

Counsel for Petitioner

COCKLE LAW SRIEF PRINTING CO., 225-6964

OR CALL COLLECT (402)

ot

i

TABLE OF CONTENTS

Page

BRD GE FT EUG oc c cet ccccceccecececess ii

SEE oe Pe eee ES ee re Pee 1

I. EPCRA’S “PLAIN LANGUAGE” DOES NOT

AUTHORIZE RESPONDENT’S SUIT FOR PAST

VS £4 60S Onur eWeebene sy Sceqcesecgsecece 1

II. BECAUSE CONGRESS CANNOT LEGISLATE

OUTSIDE THE BOUNDS OF THE CONSTITU-

TION, ARTICLE III BARS RESPONDENT’S SUIT

FOR PAST VIOLATIONS .. 2... .cccscscccccccees 8

A. Respondent Has No Article III Injury Because The

Steel Company Was in Compliance with EPCRA

~~

B. Respondent Cannot Satisfy the Requirement of

EEE, ba'sosae od cqvisemew ats cieceses 13

PPP rrr rrrrrrTT Ti rrr Trine 20

Oe ae ee a a ee ee a ee

TABLE OF AUTHORITIES

Page

Cases

Allen v. Wright, 468 U.S. 737 (1984).............-005. 19

Ardestani v. Immigration and Naturalization Serv.,

. gt RL ) ees Pore ere. Pe eee re 3, 5

Atlantic States Legal Found., Inc. v. United Musical

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

Bennett v. Spear, 117 S. Ct. 1154 (1997)............ 5, 19

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

COR 0:5 vid casdidie 04 cnctin deeds wade evinnedesss cccec 16

Deposit Guar. Nat'l Bank v. Roper, 445 U.S. 326

Ss cuduis bos caG debi hie en 2650400 Ens beens veees 12

Gutierrez de Martinez v. Lamagno, 115 S. Ct. 2227

Sckénntcadke one bones $00 6b0e6C0r0dseeernveveees 5

Gwaltney v. Chesapeake Bay Found., Inc., 484 U.S.

Ss ob 0s £66 00d ecb peseccessesceesinces passim

Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982) .... 17

Immigration and Naturalization Serv. v. Chadha, 462

ey ss cube hskadeiad POUCES OSES SCCCS 19

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

Ee TW RING eens he > oe eee Oa ee 8, 10, 11, 15, 17, 19

Marsh v. Chambers, 463 U.S. 783 (1983)............... 9

People Organized for Welfare and Employment Rights

(P.O.W.E.R.) v. Thompson, 727 F.2d 167 (7th Cir.

As oh iss ead hk SANS hkd Abd Cbg Od 04 S64 bec cees 20

Public Citizen v. United States Dep't of Justice, 491

Che... deviev es dug lsruatssonecegoes 5

Raines v. Byrd, 65 U.S.L.W. 4705 (1997)........... 11, 14

TABLE OF AUTHORITIES - Continued

Page

Regan v. Time, Inc., 468 U.S. 641 (1984)............... 5

Shaw v. Merchants Nat'l Bank, 101 U.S. 892 (1880)..... 5

Sierra Club v. Simkins Indus., Inc., 847 F.2d 1109

TS p7tc05e10468050604500604.0000000400 + 15

Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26

anaes bbads babe deesd do bbs ce dbcdon coos cebor 19

Sosna v. lowa, 419 U.S. 393 (1974)............000055. 11

Sure-Tan, Inc. v. NLRB, 467 U.S. 883 (1984).......... 10

United States ex rel. Truong v. Northrop Corp., 728 F.

Ge Gs Be Gs BO oo hive cc cccbseccvccdcccse 9

Valley Forge Christian College v. Americans United

for Separation of Church and State, Inc., 454 U.S.

hs i. hho Anes 665 0h06060eesonne te 13, 20

Warth v. Seldin, 422 U.S. 490 (1975) ............0555. 10

CONSTITUTIONAL PROVISIONS

ee I SO OO dns ne dace emcee cecucats 10

U.S. Constitution, Art. III, § 2, Cl. 1 ............. passim

STATUTES

Clean Water Act, 33 U.S.C. § 1365.............. 2, 6, 16

Fair Housing Act, 42 U.S.C. § 3613 .................6. 16

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

heb) oGndaetc coeens cogs 6ocnseeeee eébeucee 4

iv

TABLE OF AUTHORITIES — Continued

Clean Air Act, 42 U.S.C. § 7604(a)................

Emergency Planning and Community Right-to-Know

Act, 42 U.S.C. § 11046... 2.2... cece eee eeeees

Leorscative History

S. Rep. No. 101-228, 101st Cong., 2d Sess., reprinted

in 1990 U.S.C.C.A.N. 3385 2.2.66 cece eens

MISCELLANEOUS

Marshall J. Breger, Defending Defenders, 42 Duke L.

BD, TE CIRGED cv cccccccccccctesedcccoesesccosess

Brief of the United States as Amicus Curiae, Simkins

Indus, Inc. v. Sierra Club, 491 U.S. 904 (1989)...

Brief of the United States as Amicus Curiae Support-

ing Affirmance, Gwaltney, 484 U.S. 49 (1987)....

General Accounting Office, EPA's Toxic Release

Inventory Is Useful but Can Be Improved, (June

1991) GAO/RCED 91-121... ..... 6... cc cee ceeee

Memorandum to Attorney General Richard Thorn-

burgh from William P. Barr, July 18, 1989,

reprinted in Citizen Suits and Qui Tam Actions:

Private Enforcement of Public Policy, at 161-197

(National Legal Center for the Public Interest,

We have shown in our opening brief (Pet. Br. 14-34) that,

based on EPCRA’s language, EPCRA's place in federal environ-

! By claiming throughout its brief that The Stee] Company “ignored”

EPCRA, Br. 7-10, 19-20, 26, respondent attempts to cast petitioner as a

“bad actor” out to flout our nation’s environmental laws. Respondent has

Improved, at 51-52 (June 1991) GAO/RCED 91-121. The Steel Company,

a smal) manufacturing company, was unaware of EPCRA’s requirements

when it received respondent's notice of intent to sue.

2

The district court shall have jurisdiction in [citizen suits]

to enforce the requirement concerned and to impose any

civil penalty provided for violation of that requirement.

42 U.S.C. § 11046(c) (emphasis added). In Gwaltney v. Chesa-

peake Bay Found., Inc., 484 U.S. 49 (1987), found virtually

identical language in the CWA (“to enforce such an effluent

standard . . . and to apply any appropriate civil penalties,” 33

U.S.C. § 1365(a)(2)) compelling in holding that Congress did not

intend to authorize citizen suits for past CWA violations:

[CWA’s citizen suit provision] does not authorize civil

penalties separately from injunctive relief; rather, the

two forms of relief are referenced to in the same subsec-

tion, even in the same sentence. . . . A comparison of

[the relevant CWA sections] thus supports rather than

refutes our conclusion that citizens, unlike the Adminis-

trator, may seek civil penalties only in a suit to enjoin or

otherwise abate an ongoing violation.

Id. at 58-59 (emphasis added). By using the same provisions in

EPCRA and the CWA, Congress demonstrated it simply did not

intend to provide citizens with the same enforcement authority as

the government.

B.1. Respondent argues that because Congress used the

“alleged to be in violation” language when it enacted CERCLA’s

citizen suit provision, while using the “failure to” formulation in

EPCRA, this Court should infer a major sea change behind Con-

gress’s intentions for citizen enforcement. Br. 13, citing City of

Chicago v. Environmental Defense Fund, 511 U.S. 328, 338

(1994), for the proposition that CERCLA and EPCRA should be

read as a single statute. First, CERCLA and EPCRA are not

different sections of the same statute, but different statutes with

different goals and requirements. It is therefore not surprising that

Congress used different language in each and in neither used

Second, the Seventh Circuit’s and respondent’s idea that Con-

gress used “under” as a shorthand method to incorporate all the

substantive requirements of Sections 312 and 313 and subject them

to citizen enforcement on the same level as government enforce-

ment authority is highly doubtful. See Pet. App. All, Br. 10-12.

3

“The word ‘under’ has many dictionary definitions and must draw

its meaning from its context.” Ardestani v. Immigration and Natu-

ralization Serv., 502 U.S. 129, 135 (1991). One meaning of

“under” is “by reason of the authority of.” Jd. Another is “required

by.” Webster's Third New Int'l Dictionary 2487 (1993). Seen in this

light, especially in the context of Gwaltney and Congress's charac-

terization of citizen suits as injunctive measures, the proper infe.

ence is that Congress did not intend to authorize citizen

enforcement for all the substantive requirements of Sections 312

and 313, but rather intended citizens to sue for a failure to file

forms “under,” i.e., “required by,” those sections if the failure is

not cured by the time the citizen files suit. See also Atlantic States

Legal Found., Inc. v. United Musical Instruments, Inc., 61 F.3d

473, 475 (6th Cir. 1995).

Respondent attempts to counter this inference by arguing that

if the sections’ filing deadlines are not incorporated by the use of

the word “under,” then, under the same analysis, “filing blank

forms, or forms containing information that the owner knew to be

inaccurate” would likewise bar an EPCRA citizen suit. Br. 11-12.

The error of respondent’s argument was explained by this Court in

Gwaltney: the language and legislative history of citizen suit

provisions indicate that there must be an ongoing violation when

the citizen complaint is filed. Should a party file blank forms or

statute (and thereby also invite a government enforcement action),

the citizen can allege an ongoing violation and invoke federal court

jurisdiction. For example, if a party subject to the CWA filed either

blank or inaccurate Discharge Monitoring Reports after receiving a

citizen’s notice in an attempt to avoid a citizen suit, the citizen

could allege, if not cured before the notice period expired, an

ongoing violation. In enacting EPCRA, Congress made no excep-

tions to its model and thus did not intend to have EPCRA operate

differently from the CWA or other citizen suit provisions.

2. Even respondent acknowledges the harshness of allowing

citizens to exhume old and since corrected EPCRA violations and

file suit, and suggests the Court need not reach the question of

whether EPCRA allows such suits. Br. 16. Respondent distin-

guishes its action from any such “exhumation” by contrasting the

notice and venue provisions and discerns a bright line by which

4

Congress meant to permit EPCRA citizen suits if the violation is

continuing when notice is sent, but otherwise apparently intended

to bar a citizen suit if the violation was corrected prior to notice.

Had Congress tended to so carefully circumscribe citizen

enforcement, as respondent suggests, one would expect a clear

indication to support the demarcation respondent sees. Addi-

tionally, far from helping respondent, its bright-line approach

wholly undermines its principal argument, made here and below,

that a party who fails to file EPCRA reports by March | and July |

of each year is subject to citizen enforcement with no exceptions.

For, according to respondent, EPCRA’s “plain language” provides

that once the reporting deadlines are missed, a party remains

subject to citizen enforcement even if the failure to file is cured.

Respondent's main argument thus calls for interpreting EPCRA to

reach all past violations, no matter how small or remote, something

very different from Congress’s purpose in authorizing citizen

enforcement.

3. In our opening brief, we survey the evolution of environ-

mental citizen suits and show that Congress used the citizen suit

provision it created in 1970 as a model for all other environmental

citizen suits. We also point out that when Congress wants citizens

to be able to sue for violations existing at the time notice is sent or

for violations cured prior to notice, it does so unambiguously in

two ways: Congress either authorizes citizens 1) to sue imme-

diately upon providing notice, see, e.g., 42 U.S.C. § 6972(b)(1)(A)

(for hazardous waste violations); or 2) to sue for past violations

even if cured prior to notice, 42 U.S.C. § 7604(a)(1) (citizen may

sue a party “alleged to have violated” a requirement).? Pet. Br.

14-20. Respondent urges this Court to ignore these clear indica-

tions that Congress knows how to structure a citizen suit provision

so that the notice period does not operate as an opportunity to cure

and, instead, to read the ambiguous “failure to submit under” like

these clear formulations in other statutes, an unsupportable inter-

pretation. Respondent’s concern that reversal of the Seventh Circuit

will curtail EPCRA citizen suits thus is a matter to be addressed to

2 In our opening brief, we point out the constitutional problems with

the CAA formulation. Pet. Br. 41 n. 18.

5

Congress, for Congress, if it sees fit, can structure the notice period

so that it cannot bar a citizen suit.

Had Congress wanted EPCRA’s citizen suit provision to oper-

ate differeetly from its model, it no doubt would have so indicated

either in the statute or legislative history. The Court should not

assume that Congress meant to institute a substantive change

without explanation. See Ardestani, 502 U.S. at 136-37; see also

Shaw v. Merchants Nat'l Bank, 101 U.S. 892, 894 (1880) (“No

statute is to be construed as altering the common law further than

its words import.”)

Respondent also seeks support for its expansive reading in this

Court’s recent interpretation of the Endangered Species Act's citi-

zen suit provision. Br. 13-15, citing Bennett v. Spear, 117 S. Ct.

1154 (1997). Noting that the Court commented on the “remarkable

breadth” of the ESA’s “any person” formulation, respondent

stretches the Court’s holding to conclude that EPCRA’s “any

person” should somehow allow suits for past violations. Br. 15.

The Court was addressing, however, whether Congress’s use of

“any person” eliminated prudential standing barriers to suits by

ranchers and irrigation districts — non-traditional ESA plaintiffs -

an issue that lends no support to respondent's position.

Moreover, as explained below, interpreting EPCRA to allow

citizen suits for past violations would create serious constitutional

problems and thus violate this Court’s well-established rule that a

statute should be construed to avoid constitutional questions “when

it is fairly possible to do so.” Gutierrez de Martinez v. Lamagno,

115 S. Ct. 2227, 2237 (1995) (O’Connor, J., concurring). This

canon of statutory construction “reflects a judicial presumption

concerning the intent of the draftsmen of the language in question.”

Regan v. Time, Inc., 468 U.S. 641, 697- (1984) (Stevens, J.,

concurring in part and dissenting in part). Rather than presuming

that “Congress, which also has sworn to protect the Constitution,

would intend to err on the side of” legislating within the bounds of

the Constitution, id., respondent would have this Court find that

Congress intended to draft EPCRA to find citizen jurisdiction over

past violations and thereby repudiate Article III's standing require-

ments. See also Public Citizen v. United States Dep't of Justice,

491 U.S. 440, 466 (1989) (“[W]e are loath to conclude that

Congress intended to press ahead into dangerous constitutional

6

thickets in the absence of firm evidence that it courted those

perils.”)°

C.1. Respondent is mistaken that we argue the “only reason

for a notice requirement is to permit a violator to come into

compliance.” Br. 17. In fact, we devote seven pages to the principle

that the notice provision has two purposes: to prompt either volun-

tary compliance or government enforcement, thus obviating the

need for citizen suits. Pet. Br. 14-20.4 Respondent is thus correct

that in amending the CAA to permit suits for past violations, yet

provision “to have other purposes besides allowing potential defen-

dants to cease their violations.” Br. 17 (again acknowledging the

Court’s Gwaltney holding that the notice period operates as an

opportunity to cure). The other purpose is to allow EPA an

opportunity to decide if it wishes to exercise its enforcement

Respondent claims the notice period is also intended to serve

a third purpose: to allow for settlement discussions. Br. 18. Faced

with a suit to which there is no defense, however — diligent

bent on “punishment” — a party finds itself in something far

different from an arms’ length negotiation. Faced with potentially

ruinous penalties and a large attorney’s fee award, a business

3 Respondent refuses to acknowledge this principle and thus how

statutory construction is intertwined with constitutional standing: Congress

is simply presumed to legislate within constitutional bounds. With this

principle in mind, it is hardly surprising that, although EPCRA’s “any

person” formulation lacks the explicit Article III limitation Congress used

in defining “any citizen” under the CWA (a person “having an interest

which is or may be adversely affected,” 33 U.S.C. § 1365(g)), Congress

gave no indication it thought it may be departing from its customary citizen

suit model to test the limits of its constitutional authority.

+ Respondent itself concedes that one purpose of the notice provision

is to provide an opportunity to come into compliance. Br. 17 (notice period

has other purposes “besides enabling a violator to come into compliance.”

(emphasis added)). Legislative history cited by amici reinforces the notion

that Congress intended citizens “to provide a prod,” which is what

respondent's notice accomplished here. Br. of NRDC et al. 22.

7

invariably finds itself compelled to yield to the citizen group's

demands.

Respondent also suggests the notice period might allow a

prospective defendant to inform the would-be citizen plaintiff a suit

would be baseless, thus avoiding litigation. Br. 18. Such a scenario

begs the question of how the citizen could have sent such a notice

in good faith if a suit would be baseless, a notion Congress could

not have had in mind when it created the notice provision. Respon-

dent’s citation to the Federal Tort Claims Act, Br. 18, is also

unavailing as that Act involves claims for personal or property

injury — something far different from allegations of environmental

violations — where the government obviously could not come into

“compliance” after receiving notice of a claim.

2. And what should the main goal of a citizen suit be, and

thus of a citizen group, but to prompt compliance? Respondent,

however, asserts that if the Seventh Circuit is reversed, citizen

groups will “lose much of their incentive, and financial ability” to

seek EPCRA compliance. Br. 20. “Because nearly all defendants

will come into compliance once they receive notice,” respondent

laments, EPCRA litigation will be curtailed. /d.

Thus, on its face, respondent’s desire that businesses comply

with EPCRA so that information is available to the public appears

to be a poorly disguised plea to obtain attorneys’ fees. For if

EPCRA’s goals are so important to it, should respondent not be

satisfied when a party quickly comes into compliance upon receiv-

ing an EPCRA notice? And with its 30,000 members and over

180,000 contributors, J.A. 4, should respondent not gladly consider

its costs of investigation money well-spent, because its efforts

prompted compliance, reserving costly litigation as a last resort?>

5 Respondent states that citizens “seldom have complete access to

information” about a facility’s chemical use and emissions (Br. 18), and

implies the citizen's burden in identifying EPCRA violators is a heavy one.

But, as today's sources of information are numerous and extensive and

provide citizens with a wealth of data on industrial facilities, a citizen's

costs of investigation cannot be significant. A host of precise

environmental reporting requirements under numerous environmental

statutes other than EPCRA requires facilities to submit permit applications,

Far from being “of little or no use,” Br. 12, filed reports provide

valuable information to local emergency planning agencies and the

public, information that would not be available had the facility

remained unaware of EPCRA’s requirements.

Il. BECAUSE CONGRESS CANNOT LEGISLATE OUT-

SIDE THE BOUNDS OF THE CONSTITUTION,

ARTICLE III BARS RESPONDENT’S SUIT FOR

PAST VIOLATIONS

Respondent opens its standing section by stating The

Steel Company’s “argument on this point gives no hint of how

far-reaching its claim is,” asserting its suit is “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.”

Br. 22. Despite respondent’s intimation that The Steel Com-

pany’s challenge to its standing is somehow remarkable, one

would think it settled that Congress cannot expand constitu-

tional standing. This Court applied that bedrock principle in

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

while acknowledging that Congress may, of course, create

“legal rights, the invasion of which creates standing,” id. at

578, the Court simply objected to Congress’s eliminating the

Article III injury requirement.

Respondent does not suggest the Court abandon Article

III standing requirements altogether, but in arguing that this

Court should allow its suit for past violations to continue, it

asks this Court to engage in extraordinary judicial activism

and reject its well-established line of Article III standing

cases and apply mootness principles instead. It offers this

novel approach because it cannot escape Article III’s require-

ments that: 1) a citizen’s alleged injury be ongoing when suit

inventories, air emissions inventories, underground storage tank records,

and numerous other documents. All of this information is available through

Freedom of Information requests. Much of it is also available on computer

databases.

9

is filed; and 2) its requested relief redress the alleged injury

in some personal fashion.

A. Respondent Has No Article III Injury Because

The Steel Company Was in Compliance with

EPCRA When Respondent Filed Its Complaint

l.a. In an effort to give its standing argument historical

underpinnings, respondent suggests that this Court “has con-

sistently acknowledged the constitutionality of informer’s

actions, or qui tam actions. . . . This long-standing and

consistent endorsement of the qui tam action is especially

significant because” this Court has said Article III require-

ments “draw their content from tradition and common under-

standing[s].” Br. 29, citing Allen v. Wright, 468 U.S. 737, 751

(1984). And since qui tam actions have been with us since the

First Congress, and before that for hundreds of years in

England, respondent contends that its “standing follows a

fortiori from the qui tam cases.” Br. 29-30.

In reality, this Court has never squarely addressed the

constitutionality of qui tam statutes. See, e.g., United States

ex rel. Truong v. Northrop Corp., 728 F. Supp. 615, 618 (C.D.

Cal. 1989). Additionally, that qui tam statutes have been in

existence since the founding of our country “is not indepen-

dent evidence of their constitutionality.” Jd. Many acts of the

early Congresses would be held unconstitutional if they came

before the Court today. See, e.g., Marsh v. Chambers, 463

U.S. 783, 814 n. 30 (1983) (Brennan, J., dissenting) (caution-

ing reliance on historical arguments and referring, among

others, to law of First Congress requiring public whipping of

persons convicted of certain crimes). While this Court may

one day use qui tam’s historical pedigree as a factor in finding

such actions constitutional, history cannot save respondent’s

action. Because the history of the qui tam and, especially, of

the environmental citizen suit, do not support its action,

respondent is left with no choice but to ask this Court to

rewrite its law of constitutional standing.

In addition to this Court never having addressed the

issue, respondent’s confidence in the constitutionality of the

10

qui tam action is far from universally shared. For example,

the Department of Justice’s Office of Legal Counsel has

argued the qui tam provisions of the False Claims Act are

unconstitutional. Memorandum to Attorney General Richard

Thornburgh from William P. Barr, July 18, 1989, reprinted in

Citizen Suits and Qui Tam Actions: Private Enforcement of

Public Policy, at 161-197 (National Legal Center for the

Public Interest, 1996). The OLC found little evidence of

historical acceptance of qui tam actions:

A fair reading of the history of qui tam in the

United States reveals it as a transitory and aberra-

tional device that never gained a secure foothold

within our constitutional structure because of its

fundamental incompatibility with that structure.

Id. at 167. Far from lending support to respondent’s standing

argument, qui tam’s “common understandings” indicate any-

thing but a solid line of tradition, and, as shown below,

respondent has a far inferior “warrant [for] invocation of

federal-court jurisdiction,” Warth v. Seldin, 422 U.S. 490, 498

(1975), than the constitutionally suspect qui tam plaintiff.

b. Respondent also contends its suit is far removed

from any effort “to transfer from the President to the courts

the Chief Executive’s most important Constitutional [sic]

duty, to ‘take Care that the Laws be faithfully executed,’ Art.

II, § 3.” Br. 23, citing Defenders, 504 U.S. at 577. The

blending of Article II, Article III and separation-of-powers

concerns are no less relevant here than in Defenders. See 504

U.S. at 576-78. By seeking penalties for alleged wholly past

violations, for which it has no Article III standing, respondent

is asking this Court to transfer to it the Executive’s discretion

to seek penalties for those violations. Respondent cannot,

therefore, be acting on its own behalf, but instead on behalf of

the government and the public at large. See Sure-Tan, Inc. v.

NLRB, 467 U.S. 883, 897 (1984) (private parties have no

judicially cognizable interest in procuring the enforcement of

law by an administrative agency).

In Gwaltney, the United States recognized this troubling

prospect:

—— —$ag eae ——

11

Indeed, if Congress were to give private citizens

untrammeled authority to seek penalties for wholly

past violations — oblivious to Article III’s require-

ment that a litigant have a personal stake in the

controversy — it would intrude upon the Executive's

responsibility to “take Care that the Laws be faith-

fully executed” (U.S. Const. Art. II, § 3) and the

prosecutorial discretion inherent therein.

Brief of the United States as Amicus Curiae Supporting Affir-

mance at 21 n. 34, Gwaltney, 484 U.S. 49 (1987).© Here,

respondent, with the United States’ support, asks that the

courts be authorized “with the permission of Congress, ‘to

assume a position of authority over the governmental acts of

another and co-equal department,’ and to become ‘virtually

continuing monitors of the wisdom and soundness of Execu-

tive action.’ ” Defenders, 504 U.S. at 577 (citations omitted).

The question of who exercises enforcement discretion would

be transferred from the executive branch to the federal courts.

2. Although respondent agrees that whether subject

matter jurisdiction exists “depends on the state of things at

the time of the action brought,” Gwaltney, 484 U.S. at 69

(Scalia, J., concurring) (quoting Mollan v. Torrance, 9 Wheat.

537, 539, 6 L. Ed. 154 (1824)), it initially questions whether

this is a constitutional principle or one of statutory construc-

tion. Br. 34. By so doing, respondent ignores this Court’s

holdings that the case or controversy requirement demands

that a plaintiff’s injury be continuing at the time suit is filed.

See Sosna v. lowa, 419 U.S. 393, 402 (1974).? Because

Congress cannot alter Articie III’s requirements, see, e.g.,

Raines v. Byrd, 65 U.S.L.W. 4705, 4708 n. 3 (1997) (“It is

settled that Congress cannot erase Article III’s standing

requirements by statutorily granting the right to sue to a

© Although the United States squarely addressed this issue ten years

ago, it is conspicuously silent on the issue here.

7 Later in the same paragraph, however, respondent acknowledges

“Article [II requires that a case be ‘an actual case or controversy’ at the

time of its decision, not just ‘when suit was filed.’ ” Br. 34, citing Honig v.

Doe, 484 U.S. 305, 317 (1988).

12

plaintiff who would not otherwise have standing.”), the “rele-

vant analogy” cannot be to “Congress’s power to prevent

efforts to circumvent jurisdictional requirements,” Br. 34, but

must be to Article III itself.

Respondent attempts to sidestep this Court’s jurispru-

dence on Article III injury by concluding “It is beyond

serious dispute” that The Steel Company’s alleged omissions

satisfy the “injury in fact” element of the standing test. Br.

23. Nonetheless, respondent conspicuously makes no attempt

to, and cannot, dispute that no injury existed at the time it

filed its complaint. Pet. Br. 36. Instead, respondent refers

solely to events that occurred prior to filing in an attempt to

establish an injury and is forced to admit that any alleged

injury was wholly past and noncontinuing: respondent

“alleg[ed] a wrong in the past,” The Steel Company allegedly

“inflicted injury on CBE.” Br. 23 (emphasis added).* Even

respondent concedes that EPCRA is best i to mean

that a violation ceases when a late report is filed. Bh, 14 & n.

9. Respondent simply cannot point to any alleged injury

existing at the time it filed its complaint, and it is thus clear

beyond dispute that when The Steel Company filed its forms

in May 1995, three months before respondent filed its com-

plaint, respondent lost any Article III foundation on which it

could base its suit. See also Deposit Guar. Nat'l Bank vy.

Roper, 445 U.S. 326, 346-47 (1980) (Powell, J., dissenting)

® Although irrelevant to its standing argument, respondent is

mistaken that it was unable to include The Steel Company's emissions in

its most recent Guide to Southeast Chicago's Major Polluting Industries.

Br. 26. Respondent received The Steel Company’s EPCRA forms both

during settlement discussions in May 1995 before CBE filed its complaint,

and again during the litigation in October 1995, well before it finalized its

Guide. (Although the Guide is not dated, the inside cover states the cover

photo was taken on April 26, 1996.) Besides, the very title implies that the

facilities included are guilty of some wrong. The Steel Company operates

pursuant to lawfully issued permits and regulations, and thus under legal

authority. If the other facilities in the Guide operate the same way, perhaps

it should be renamed Guide to Southeast Chicago's Major Environmentally

Compliant Industries.

13

(this Court has routinely held that “a tender of full relief

remedies a plaintiff's injury and eliminates his stake in the

outcome.”)®

Perhaps realizing the consequences of its not being able

to allege an ongoing injury, respondent concludes there must

be a “continuing live dispute on the merits” merely because

the parties disagree as to whether The Steel Company is liable

for civil penalties. Br. 30 n. 16. The requirements of Article

III are not satisfied, however, because a party asks a court to

declare its legal rights. Valley Forge Christian College v.

Americans United for Separation of Church and State, 454

U.S. 464, 471 (1982). Once The Steel Company filed its

forms, there ceased to be any continuing dispute between the

parties. Respondent cannot compel a court to decide a hypo-

thetical case (how much in penalties The Steel Company

should pay to the U.S. Treasury) just to secure its attorneys’

fees.

-—B. Respondent Cannot Satisfy the Requirement of

Redressability

l.a. Respondent's redressability argument is extraordin-

ary; it urges this Court to abandon its Article III standing

doctrine and replace it with one of mootness. Respondent

finds support for its argument in this Court’s holdings that “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.” Br. 32, citing Northeastern Florida

Chapter, Associated Gen. Contractors v. Jacksonville, 508

% Respondent even claims that it still would have been injured had

The Steel Company filed its forms prior to May 1995. Br. 37 (respondent

had to conduct “a more expensive” investigation because of the non-

filings). Respondent claims further injury because any alleged non-

compliance resulted in exposure to “additional toxic chemicals.” Br. 27.

Here respondent attempts to convert a reporting statute into one like

RCRA, CAA, or CWA, which are intended to protect the public from

actual harm.

14

U.S. 656, 662 (1993). Respondent does first admit the volun-

tary cessation principle involves litigation that has already

begun and acknowledges it does not follow that there should

be a judge-made “voluntary cessation” principle to permit

standing. Br. 32-33. But it then offers the novel argument that

since standing and mootness are both Article III doctrines,

“by the same token, Article III should not be construed to bar

Congress from applying a ‘voluntary cessation’ principle to

permit standing.” Br. 33.

Respondent's argument is entirely without precedent. Of

necessity, respondent chooses to ignore that it must first cross

the Article III threshold by showing standing before it can

ever argue that The Steel Company cannot establish moot-

ness. By reversing the constitutional order, respondent sug-

gests there is an opportunity for Congress to circumvent

Article III's standing requirements, because, according to

respondent, Article III doctrines — standing, mootness, and

ripeness — merge into one since they all “must, of necessity,

be consistent with Article III.” Br. 33. But it is beyond

dispute that mootness addresses whether the discontinuation

of a violation after suit is filed requires a dismissal, and has

nothing to do with pre-complaint actions or omissions. See,

e.g., Gwaltney, 484 U.S. at 66-67. It is also beyond dispute

that Congress cannot alter Article III's requirements. Raines,

65 U.S.L.W. at 4708 n. 3.

Application of the voluntary cessation doctrine might

make some sense in the traditional mootness context (if

respondent had standing) if there was a danger The Steel

Company would not file its future EPCRA forms once the

litigation was dismissed. But there is no such danger. The

Steel Company did not file earlier because it was unaware of

EPCRA, not because it chose to “ignore” EPCRA, as respon-

dent would have this Court believe. According to respon-

dent’s analysis, if it is “reasonable to expect” that a facility

which comes into compliance with the CWA by investing in

new equipment will not resume violating the Act “once the

threat of a citizen suit abates,” Br. 21, then why is it also not

reasonable to expect that a company, once it becomes aware

of EPCRA and invests the time and money needed to comply

15

with EPCRA’s complex requirements, will continue to comply

with EPCRA once a citizen suit is dismissed? Moreover, if it

is “relatively easy to come into compliance with EPCRA on

short notice,” Br. 19, why does respondent repeatedly assert

that The Steel Company pay penalties so that it will be

deterred from “future wrongful conduct?” Br. 9, 35-36.'°

Indeed, respondent’s main purpose behind its action for past

violations appears to be its desire that The Steel Company be

“punished,” Br. 23, 34-35, compliance having been relegated

to a distant purpose.

b. Another of respondent's main contentions is that

Congress determined Article III's redressability requirement

would be satisfied by the imposition of penalties for past

EPCRA violations. Br. 35-36. While Congress may have “the

power to define injuries and articulate chains of causation that

will give rise to a case or controversy where none existed

before,” Defenders, 504 U.S. at 580 (Kennedy, J., concur-

ring), Congress was silent as to any possible deterrent effect

of imposing penalties for past EPCRA violations. Respondent

admits as much as it cites no such congressional articulation

regarding EPCRA, and, instead, cites CAA legislative history.

Br. 36.'' While penalties assessed for a violation continuing

after a citizen suit is filed may satisfy Article III's

redressability requirement in a mootness context, see Sierra

Club v. Simkins Indus., Inc., 847 F.2d 1109 (4th Cir. 1988),

'© Respondent also misreads EPA's estimate regarding Section 313

reporting burdens by failing to include the estimated hours required for

“rule familiarization” and “compliance determination,” two essential tasks

in filing EPCRA forms. Br. 20 n. 10. The correct estimate is therefore not

74 hours per report in the first year as claimed by respondent, but 124.5

hours as shown in our opening brief. Pet. Br. 42.

'! The history stems from Congress’s amendment providing for

penalties in CAA citizen suits to conform the CAA to RCRA, CWA and

other environmental statutes. Contrary to respondent's suggestion,

however, Congress did not discuss whether penalties for past violations

would satisfy Article III's redressability requirement. S. Rep. No. 101-228,

101st Cong., 2d Sess. 373, reprinted in 1990 U.S.C.C_A.N. 3385, 3756.

16

they cannot redress a plaintiff's injuries where there is no

c. Respondent also attempts to create an injury and

redressability for itself by arguing that, as in qui tam actions,

Congress provided an appropriate “incentive” to sue in the

form of “costs of litigation.” Br. 30-31.'? But an EPCRA case

is no different from any other; a plaintiff simply will incur

some costs in determining whether it has a valid claim.

Nothing in EPCRA or this Court’s jurisprudence indicates

that incurring pre-filing investigation costs and fees estab-

lishes an Article III injury where the plaintiff otherwise has

no Article III case.

This Court has routinely held that a claim for costs and

fees “is not part of the merits of the action” because it “does

not remedy the injury giving rise to the action.” See Budinich

v. Becton Dickinson & Co., 486 U.S. 196, 200 (1988).

Respondent's attempts to distinguish this Court's cases on the

issue are unavailing, Br. 30 n. 16, 37, because, under its

analysis, an award of litigation costs and fees is never

“wholly unrelated to the subject matter of the litigation.” In

essence, by claiming the first dollar of costs or fees it

incurred established its injury, respondent wishes to eliminate

the first prong of the Article III standing test. Under any fee-

shifting statute, “any person,” as respondent would have it,

need establish only causation and redressability, having been

relieved of the constitutional injury requirement.

For example, the Fair Housing Act, in part an informa-

tional statute like EPCRA, authorizes “any aggrieved person”

to sue and also recover attorney's fees and costs. 42 U.S.C.

§ 3613(a)(1)(A), (c)(2). Under respondent’s analysis, even if

an injury had been fully remedied, a would-be plaintiff could

12 Respondent also attempts to accord EPCRA some special

significance in that, under EPCRA, an award of litigation costs “is made to

the plaintiff, not to the attorney.” Br. 30. This makes EPCRA no different

from any other fee-shifting statute, including all environmental citizen suit

which award fees to the prevailing “party,” see, ¢.g., 33 U.S.C.

§ 1365(d), 42 U.S.C. § 3613(c)X2), yet another example of how Congress

used its model in enacting EPCRA.

17

still establish an injury because he had incurred pre-filing

investigation costs, which, according to respondent, are

related to the subject matter of the litigation for purposes of

Article III. Br. 37. It makes no difference to respondent if the

injury sued on was wholly in the past, respondent’s “revised”

Article III no longer requiring the traditional injury. But see

Havens Realty Corp. v. Coleman, 455 U.S. 363, 381 (1982)

(plaintiffs alleged a “continuing pattern” of unlawful racial

steering and were able to establish standing).

Perhaps realizing that, since it could not allege an ongo-

ing injury, it in turn has no Article III case, respondent pleads

“[iJt would be pointless to conclude that Section 326 is

unconstitutional as written, but would become constitutional

if Congress provided” a bounty. Br. 31-32. While not address-

ing whether the qui tam is constitutional, this Court recently

acknowledged the differences in establishing Article III

standing in environmental citizen suits and qui tam actions.

Defenders, 504 U.S. at 572-73 (an environmental citizen suit

“is not the unusual case in which Congress has created a

concrete private interest in the outcome of a suit against a

private party for the government's benefit, by providing a

cash bounty for the victorious plaintiff.”)'? Respondent is not

a qui tam plaintiff, and has no Article III injury.

2. Only ten years ago, the United States argued an

environmental citizen suit plaintiff who alleges past viola-

tions cannot establish standing:

A citizen plaintiff who alleges that he is adversely

affected by a company’s ongoing violation of its

discharge permit and requests an injunction requir-

ing compliance can satisfactorily demonstrate, at

least at the pleading stage, both personal injury and

redressability. However, a citizen who brings suit

simply to obtain a judicial assessment of civil pen-

alties for nonrecurring past violations would fail to

13 Apperentiy, pleiatifis in Defenders did act consider respondent's

argument worth mentioning and did not attempt to establish injury via

ESA's fee-shifting provision.

18

meet Article III's requirements; the mere assess-

ment of civil penalties, which are payable only to

the Treasury, would not redress in any meaningful

sense the citizen’s alleged injuries.

Brief of the United States as Amicus Curiae at 21 n. 34,

Gwaltney, 484 U.S. 49. In this case, the United States retreats

from that position and now argues that even if a citizen

plaintiff does not allege an ongoing violation, this Court

should find the speculative possibility of future injury suffi-

cient to support Article III standing. U.S. Br. 26-30 & n. 10.

The United States disputes that its position on Article III

has changed. U.S. Br. 26 n. 10. In attempting to show consis-

tency of its arguments, the United States cites a case, shortly

after Gwaltney was decided, in which it was asked by this

Court to address whether, in a CWA citizen suit, a court's

imposing penalties for violations that continued after a com-

plaint was filed abridged Article III’s redressability require-

ment. Brief of the United States as Amicus Curiae at 7-14,

Simkins Indus., Inc. v. Sierra Club, 491 U.S. 904 (1989). In

Simkins, the plaintiff “alleged in good faith and proved a

continuing violation within the meaning of Gwaltney.” Id. at

7. Discussing redressability in a mootness context, the United

States argued an imposition of penalties for violations exis-

ting when the complaint was filed, although cured prior to

entry of judgment, did not violate Article III. More important

to this case, despite how it now portrays its views on stand-

ing, the United States reiterated its Gwaltney position that

Article II] requires a citizen plaintiff to allege an ongoing

violation; if there is no continuing violation, obtaining a

judicial assessment of penalties cannot redress a citizen's

alleged injuries. Jd. at 13 n. 14.

In this case, however, the United States reverses course

and asks the Court to erase the line that traditionally has

separated pre- and post-complaint injuries and instead find

that Article III’s redressability requirement would be satisfied

by a judicial assessment of penalties for wholly past viola-

tions. It essentially argues the mootness principles it asserted

in Simkins are no different from the standing criteria it

defended in Gwaltney. But the two are not the same, and the

19

United States’ unprecedented position would require the

Court to equate standing and mootness, two very different

Article III doctrines.

The weakness of its argument is seen in its sole ground

for distinguishing Gwaltney from this case: “the violation at

issue cannot be said to be a nonrecurring one.” U.S. Br. 26 n.

10. But its argument is disingenuous: one, respondent did not

allege an ongoing violation as the Gwaltney plaintiff would.

Two, as the United States uses the word here, Gwaltney would

involve “recurring” violations because the plaintiff there

alleged years of non-compliance with the CWA, and not a

single instance, as the United States suggests. Gwaltney, 484

U.S. at 53 (between 1981 and 1984, defendant violated its

permit over 150 times).'* Mootness simply does not apply

here, and respondent's and the United States’ arguments have

no constitutional grounding.

3. Finally, while a scarcity of government resources

may be a legitimate justification for authorizing citizen suits

for past violations as a policy matter, Br. 3, U.S. Br. 21, it is

insufficient to confer Article III standing on respondent. This

Court has emphasized this point on numerous occasions. In

'4 In asking this Court to affirm the Seventh Circuit, and, in effect,

eliminate the injury and redressability requirements in the standing context,

the United States also invites the unwelcome consequences of undermining

the doctrines of ripeness and mootness. If there is no injury requirement, a

case is always ripe and never moot. See Marshall J. Breger, Defending

Defenders, 42 Duke L. J. 1202, 1208 (1993). Nothing would prevent courts

from entertaining collusive suits and issuing advisory opinions. /d.

Congress could also enact statutes authorizing “any person” to sue and

thereby overrule this Court’s decisions regarding taxpayer standing and

First Amendment challenges. /d. at 1208-09. The United States’ position

on standing here is a radical departure from its arguments in Simon v.

Eastern Ky. Welfare Rights Org., 426 U.S. 26 (1976), Allen, Defenders and

others in which it argued against expanding Article III standing. It is also

passing strange that the United States argued that the plaintiffs in Spear did

not have Article III standing where there clearly was a continuing harm,

but have no difficulty finding standing here where the alleged harm is

wholly past.

20

Immigration and Naturalization Serv. v. Chadha, 462 U.S.

919, 945 (1983), this Court explained that “policy arguments

supporting even useful ‘political inventions’ are subject to the

demands of the Constitution which defines powers and, with

respect to this subject, sets out just how those powers are to

be exercised.” See also Valley Forge, 454 U.S. at 484 (“To the

extent the Court of Appeals relied on a view of standing under

which the Art. III burdens diminish as the ‘importance’ of the

claim on the merits increases, we reject that notion.”). Indeed,

“If passionate commitment plus money for litigating were all

that were necessary to open the doors of the federal courts,

those courts, already overburdened with litigation of every

description, might be overwhelmed.” People Organized for

Welfare and Employment Rights (P.O.W.E.R.) v. Thompson,

727 F.2d 167, 172 (7th Cir. 1984).

CONCLUSION

For the reasons stated above and in our opening brief, the

judgment of the Seventh Circuit Court of Appeals should be

reversed, and the District Court's dismissal of CBE’s com-

plaint should be reinstated and affirmed.

Respectfully submitted,

Sanrorp M. Stem

Counsel of Record

Leo P. Domsrowski

Witpman, Harroip, Aten & Dixon

225 West Wacker Drive

Chicago, IL 60606-1229

(312) 201-2000

Counsel for Petitioner

July 25, 1997