Amicus Curiae Brief — Steel Co. v. Citizens for Better Environment

Supreme Court, U.S.

FILED

(\\) MAY 2. 1897

No. 96-643

CLEPK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1996

THE STEEL COMPANY, a/k/a

CHICAGO STEEL AND PICKLING COMPANY,

Petitioner,

v.

CITIZENS FOR A BETTER ENVIRONMENT,

Respondent.

On Wnit of Certioran to the

United States Court of Appeals

for the Seventh Circuit

BRIEF OF AMICUS CURIAE

THE WASHINGTON LEGAL FOUNDATION

IN SUPPORT OF PETITIONER

Daniel J. Popeo Barry M. Hartman

Paul D. Kamenar Counsel of Record

WASHINGTON LEGAL FOUNDATION Rima Y. Mullins

2009 Massachusetts Ave., NW KIRKPATRICK & LOCKHART, LLP

Washington, D.C. 20036 1800 Massachusetts Ave., NW

(202) 588-0302 Washington, D.C. 20036

(202) 778-9000

Date: May 2, 1997

CASILLAS PRESS — 1717 K STREET NW WASHINGTON DC 20036 — 202-223-1220

oP

TABLE OF CONTENTS

INTERESTS OF AMICUS CURIAE

STATEMENT OF THE CASE

I.

__, PERMIT CITIZEN SUITS FOR WHOLLY PAST

CONGRESS DID NOT INTEND EPCRA TO

REPORTING VIOLATIONS

' ARTICLE Il STANDING TO BRING AN

ACTION FOR WHOLLY PAST VIOLATIONS

A.

. CONSTRUING THE CITIZEN SUIT

PROVISION UNDER EPCRA TO AUTHORIZE

SUITS FOR WHOLLY PAST VIOLATIONS

WOULD CONFLICT WITH FUNDAMENTAL

SEPARATION OF POWERS PRINCIPLES

See a EE ae ™ —— a ee

iii

TABLE OF AUTHORITIES

CASES:

Allen v. Wright, 468 U.S. 737 (1984) ......... 20

Atlantic States Legal Foundation, Inc. v. United

Musical Instruments, U.S.A., Inc.,

61 F.3d 473 (6th Cir. 1995) ........... 4, 10

Buckley v. Valeo, 424 U.S. 1 (1976) .......... 24

Citizens For A Better A Environment v. The Steel

Company, 90 F.3d 1237 (7th Cir. 1996) . . . passim

City of New Orleans v. Dukes,

ee a 10

Confiscation Cases, 74 U.S. (Wallace) 454 (1868) . 27

Consumer Product Safety Comm'n v. GTE

Sylvania, Inc., 447 U.S. 102 (1980) ....... 10

D. Mayhew, Inc. v. Wirtz,

413 F.2d 658 (4th Cir. 1969) ........... 12

Don't Waste Arizona, Inc. v. McLane Foods, Inc.,

950 F. Supp. 972 (D. Ariz. 1997) ........ 21

Gutierrez de Martinez v. Lamagno,

ES 12

i Gwaltney of Smithfield, Lid. v. Chesapeake Bay

Foundation, Inc., 484 U.S. 49 (1987) ... 4,9, 14, 19

Heckler v. Chaney, 470 U.S. 821 (1985) ....... 25

- Hunt v. Washington State Apple Advertising

Com’n, 432 U.S. 333 (1977) ............ 16

International Primate Protection League v. Admin.

of Tulane Educational Fund,

re 14

Lewis Continental Bank v. Lewis,

GOs SOD nn ccc lect 21

Los Angeles v. Lyons, 461 U.S. 95 (1983) ...... 18

Lujan v. Defenders of Wildlife,

Se passim

iV

Lujan v. National Wildlife Federation,

Br Se ee hwo den mescces 2,17

Metropolitan Washington Airports Auth. v. Citizens

For The Abatement of Aircraft Noise, Inc. ,

Fe Se eee 23

Morrison v. Olson, 487 U.S. 654 (1988) ..... 25, 26

National Parks & Conservation Ass'n v. Kleppe,

547 F.2d 673 (D.C. Cir. 1976) .......... 12

Natural Resources Defense Council v. Fina Oil

& Chemical Co. ,

806 F. Supp. 145 (B.D. Tex. 1992) ....... 26

O'Shea v. Littleton, 414 U.S. 488 (1974) ....... 18

Regan v. Time, Inc., 468 U.S. 641(1984)....... 13

Sierra Club v. Chevron U.S.A.,

834 F. 2d 1517 (9th Cir. 1987) .......... 26

Sierra Club v. Morton,

EE eee 15

Simon v. Eastern Kentucky Welfare Rights

Organization, 426 U.S. 26 (1976) ......... 22

United States v. Nixon, 418 U.S. 683 (1974) ..... 25

United States v. O’Brien,

es Dt eecoocuede 9

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

Washington Area Pub. Interest Research Group v.

Pendleton Woolen Mills,

11 F.3d 883 (9th Cir. 1993) ............ 26

Youngstown Sheet & Tube Co. v. Sawyer,

Pe PE Wo WHE See ccescecs 24

CONSTITUTION AND STATUTES

a GR ce ccccctcccscoctes 24, 26

ie GREE Si ccocciccvcesece’ passim

9 Oe SED cc ccccccedsceesé 19

SPR TD cecccccetiectéovic ves 8

a

v

a 8

16 U.S.C. § 1540(g)(IK(C)... 2... ee 8

ok. vice edu ce, 8

_.. 2 SSS eta 8

_. SS SSR See 4,8

RE 5

i RRR 8

ee eu, 8

| SSS ieee 8

IID. wc cc ccc cc cece il

5 ode sere hae oS ole g

UN cc. . ic ccc sc amecee 8

i, SaPeeeeesosesessasn .

SAN EY 20

RRR RR 20

| >So S Rea: 2, 4, 20

Cc ccc cue ees 16

42 U.S.C. § 11046(ay(1) .................. 8

42 U.S.C. § 11046(a)(I(A) ... 2.2.2... 5

42 U.S.C. § 11046(a)(1I)(B)G).. =... 5

42 U.S.C. § 11046(a)(1)(B)ii) .. 5

42 U.S.C. § 11046(ay(1I)D) ................ 5

US gw ecu ce. 6

GS go cc ccc cc cece cee g

GD og cc ccc ccc cece. 7

EE 26

OTHER AUTHORITIES:

Cong. Rec. $5282 (1990) ................ il

Signing Statement, P.L. 101-549,

November 19, 1990; Pus. PAPERS 1604 (1990) 12

vi

Abell, Ignoring the Trees for the Forests: How

The Citizen Suit Provision of The Clean

Water Act Violates The Constitution's

Separation of Powers Principle, 81 Va.

L. Rev. 1957, 1982 (1995) .......... 23

B. Cohen and D. Haire, Environmental Citizen

Suits: Standing and the Proper Scope of Relief;

Citizen Suits and Qui Tam Actions: Private

Enforcement of Public Policy, NATIONAL LEGAL

CENTER FOR THE PUBLIC INTEREST (1996) 7, 25, 27

Gatchel, Informational and Procedural Standing After

Lujan v. Defenders of Wildlife, 11 J. Land Use &

eS FO Pr ee Pe 17

Guilds, A Jurisprudence of Doubt: Generalized

Grievances As A Limitation to Federal Court

Access, 74 N. C. L. Rev. 1863 (1996) ...... 20

Scalia, Doctrine of Standing, 17 Suffolk U. L. Rev.

Jf aa eee eee 14, 27

Shalvelson, EPCRA, Citizen Suits and the Sixth’s

Circuit Assault of the Public's Right-To-Know, 2-

Fall Alb. L. Envtl. Outlook 29 (1995) ...... 17

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1996

No. 96-643

The Steel Company, a/k/a

Chicago Steel and Pickling Company,

On Writ of Certiorari

to the United States Court of Appeals

for the Seventh Circuit

BRIEF OF AMICUS CURIAE

THE WASHINGTON LEGAL FOUNDATION

IN SUPPORT OF PETITIONER

INTERESTS OF AMICI CURIAE'

The Washington Legal Foundation ("WLF") is a non-

profit, public interest law and policy center based in

* Pursuant to Supreme Court Rule 37.6, amicus hereby

indicates that no counsel for a party in this case authored this

amicus brief in whole or in part.

a Te

2

Washington, D.C., with supporters nationwide. WLF is

dedicated to supporting the free enterprise system and

promoting the principles of judicial restraint and separation

of powers. To this end, WLF has appeared in this Court

as amicus Curiae On numerous occasions, pafticularly in

environmental cases that raise issues relevant to this case.

See, e.g., Lujan v. Defenders of Wildlife, 504 U.S. 555

(1992); Lujan v. National Wildlife Federation, 497 U.S.

871 (1990).

Written consent to the filing of this brief has been

granted by counsel for all parties, copies of which have

been filed with the Clerk of this Court.

STATEMENT OF THE CASE

In the interests of judicial economy, amicus adopts by

reference the Statement of the Case as presented in the

brief of the Petitioner. In short, this case presents the

Court with the issue of whether the citizen suit provision of

the Emergency Planning and Community Right-to-Know

Act (EPCRA), 42 U.S.C. § 11046, authorizes persons to

file suit against companies for reporting violations that

were cured before the citizen suit was filed, and where

there are no allegations that the violations would likely

occur again. This issue necessarily entails the

constitutional question of whether the plaintiff in this and

similar cases has standing under Article III to invoke the

jurisdiction of federal courts.

SUMMARY OF ARGUMENT

EPCRA does not authorize citizen suits for violations

that have occurred in the past and that have been fully

corrected by the time suit is filed. Rather, a fair reading

3

of the statutory language, this Court’s controlling authority,

violations of EPCRA simply does not have standing under

Article III of the Constitution. First, the citizen plaintiff

t tablist a ’ injury-in-f. t fe fi the

citizen plaintiff under the statute would redress the alleged

informational injury. Indeed, at the time suit is filed for

' ic or wholly past violations, the citi laintiff has

the information which was allegedly wrongfully withheld.

As the citizen plaintiff cannot sue for money damages

under EPCRA, federal courts are without power to fashion

any further remedy.

power. Authorizing citizen suits to exercise such

4

ARGUMENT

I. CONGRESS DID NOT INTEND EPCRA TO

PERMIT CITIZEN SUITS FOR WHOLLY

PAST REPORTING VIOLATIONS

In determining whether the citizen suit provision of

EPCRA, 42 U.S.C. § 11046, allows a citizen plaintiff to

bring suit for wholly historic violations, one must look first

to the language and structure of the statute, and only if the

statute is unclear, to the legislative history of the statutory

provision in question. Amicus submits that a fair reading

of the law demonstrates that Congress did not intend to

permit citizen suits for EPCRA violations that have been

corrected.

In Gwaltney of Smithfield, Lid. v. Chesapeake Bay

Foundation, Inc., 484 U.S. 49 (1987), this Court found

that the citizen suit provision of the Clean Water Act

(CWA), 33 U.S.C. § 1365, did not authorize suits for

wholly historic violations. Remarkably, using what it

described as the same analytical approach to determine the

meaning of a similar citizen suit provision in EPCRA, the

court of appeals below reached the opposite result, holding

that EPCRA does authorize such suits.

In reaching its decision, the Seventh Circuit engaged

in “hypertechnical parsing”? of the language of the relevant

sections of EPCRA in order to distinguish similar language

? Atlantic States Legal Foundation, Inc. v. United Musical

Instruments, U.S.A., Inc., 61 F.3d 473, 476 (6th Cir. 1995)

(rejecting as “hypertechnical parsing” attempts to distinguish

between citizen suit provisions of EPCRA and CWA).

5

used in the CWA. EPCRA authorizes suits against a

company “for failure to" file certain reports, 42 U.S.C. §

11046(a)(1)(A), whereas the CWA and a number of other

environmental laws authorize suits against companies

alleged “to be in violation” of the respective substantive

statutes. See, e.g., 33 U.S.C. § 1365(a)(1).

Amicus submits that the lower court failed to

appreciate a key difference between the CWA and EPCRA.

CWA and similar statutes require that action be taken every

day to assure compliance with their substantive

requirements. Because compliance is required daily,

violations may be ongoing and continuous. EPCRA, on the

other hand, is a purely a reporting statute requiring the

filing of certain forms once a year. Once the forms have

been filed, whether a day, month, or year late, the

company ceases to "fail" to file the required reports.

Amicus further notes that the same "for failure to"

language which the lower court concluded authorizes

citizen suits for wholly past violations against companies

is also used to permit suits against the EPA Administrator,

a State Governor, or a State emergency response

commission for their failure to company with certain duties

under EPCRA. For example, the EPA Administrator can

be sued by a citizen for failing to “publish inventory

forms" within a certain period of time, 42 U.S.C.

§11046(a)(1)(B)(i), or for failing to respond to a petition to

add or delete a chemical to its inventory list within 180

days. 42 U.S.C. §11046(a)(1)(B)(ii). Likewise, a State

Governor or State emergency response commission can be

sued for failure to provide certain information to a

requester within 120 days after the request. 42 U.S.C.

§11046(a)(1)(D).

6

Surely, Congress did not intend that citizen plaintiffs

be permitted to sue the EPA Administrator or State

Governor after those officials carried out their duties

simply because they were tardy in doing so. Rather,

Congress provided in EPCRA that the district courts would

have jurisdiction “to enforce the requirement concerned"

that companies have failed to comply with, and to order the

Administrator "to perform the act or duty concerned." 42

U.S.C. § 11046(c). This remedial language suggests that

Congress intended citizen suits to enjoin current or ongoing

violations, rather than to waste scarce judicial resources

issuing meaningless declaratory judgments that past

violations have occurred but have been corrected.

Indeed, the Seventh Circuit’s zeal to find that EPCRA

permits suits for wholly past violations led it to conclude

that the word “occurs,” as used in EPCRA,” is not “cast in

the present tense.” Citizens For A Better A Environment v.

The Steel Company, 90 F.3d 1237, 1244 (7th Cir. 1996).

Yet even the Respondent concedes that, except for

EPCRA and the Clean Air Act (which will be discussed

infra), all the other major environmental statutes require

that a plaintiff “must allege an ongoing violating" of those

statutes. Opp. Cert. at 3. If this is true, it seems odd that

Congress would provide for fewer opportunities for citizen

suits in those substantive environmental laws. As one

commentator aptly put it:

* See 42 U.S.C. § 11046(d)(1) (copy of 60-day notice by

plaintiff is to be given to the State in which "the alleged violation

occurs").

7

[I]t should be noted that violators of the. . . CWA,

unlike EPCRA violators, do not wholly undo the

effects of their past violations simply by coming into

present compliance. Accordingly, if Congress did not

deem nonrecurring violations of these substantive

health protections to warrant citizen suits, it is difficult

to understand why it would have treated nonrecurring

violations of a reporting statute more harshly. By the

same token, the argument of diminished deterrence

fails to demonstrate why Congress would depart from

the structure of its major environmental statutes to seek

greater deterrence of reporting violations than

substantive violations.

B. Cohen and D. Haire, Environmental Citizen Suits:

Standing and the Proper Scope of Relief: Citizen Suits and

Qui Tam Actions: Private Enforcement of Public Policy,

NATIONAL LEGAL CENTER FOR THE PUBLIC INTEREST 49

(July 1996) (hereinafter cited as "Cohen and Haire").

Amicus will not repeat the other compelling Statutory

construction arguments made by Petitioner in this case.

Amicus does wish to point out, however, two statutory

provisions common to all citizen suit provisions. Those

provisions compel, as a constitutional matter, that if there

is any doubt about whether EPCRA authorizes citizen suits

for wholly past violations, those doubts should be resolved

against finding such authorization.

First, each of the major environmental laws authorizing

citizen suits specifically limits such actions to those filed by

a citizen “on his own behalf.”* As further explained

below, a suit filed for wholly past violations that have been

corrected, necessarily is brought on the public's behalf,

since there is no injunctive relief that could be granted to

benefit the individual. At the heart of the exercise of the

Executive's power under Article II is the power to enforce

laws on behalf of the public. By expressly providing that

citizen suits may be brought only on the citizen’s own

behalf, Congress recognized the important Article I

constitutional interest that must be preserved, and

concomitantly, the limits on its power to infringe on that

protected interest.

Second, each of the noted statutes specifically

precludes such actions unless and until the party being sued

is given 60-day notice of such suit.’ In Gwaltney, this

Court found that the requirement of 60-day netice prior to

initiating a citizen suit was enacted to allow compliance

with the CWA and render such a suit unnecessary, and is

* See EPCRA, 42 U.S.C. §11046(a)(1); CWA, 33 U.S.C.

§1365(a); Clean Air Act (CAA), 42 U.S.C. §7604(a); Surface

Mining Control and Reclamation Act (SMCRA), 30 U.S.C.

§1270(a); Comprehensive Environmental Response,

Compensation, and Liability Act (CERCLA), 42 U.S.C.

§9659(a); Solid Waste Disposal Act (SDWA), 42 U.S.C.

§6972(a); Toxic Substances Control Act (TSCA), 15 U.S.C.

§2619(a); and Endangered Species Act (ESA), 16 U.S.C.

§1540(g).

> Virtually identical 60-day notice requirements exist under

EPCRA, 42 U.S.C. §11046(d); CAA, 42 U.S.C. §7604(b);

CERCLA, 42 U.S.C. §9659(d)(1); SMCRA, 30 U.S.C.

§1270(b)(1); SWDA, 42 U.S.C. §6972(0); ESA, 16 U.S.C.

§$1540(g)(1)(C).

9

further evidence that the Congress enacting this provision

did not intend that it be used to bring an action for wholly

past violations. The Court reasoned that:

it follows logically that the purpose of notice to

the alleged violator is to give it an opportunity to

bring itself into complete compliance with the Act

and thus likewise render unnecessary a citizen

suit. If we assume, as respondents urge, that

citizen suits may target wholly past violations, the

requirement of notice to the alleged violator

becomes gratuitous.

Gwaltney, 484 U.S. at 60.

Instead of following the straightforward and direct

analytical approach of this Court in Gwaltney, the lower

court embarked on a wholly inappropriate examination of

the legislative history of the CAA, enacted years after

EPCRA, by a different Congress. Specifically, in 1990,

Congress amended the CAA to expressly allow for citizen

suits for violations of that law that began in the past, but

only “if there is evidence that the alleged violation has

been repeated.” 42 U.S.C. §7604(a)(1)(3). Remarkably,

the Seventh Circuit interpreted this amendment of an

unrelated statute to allow for suits in the case of

intermittent violations as a repudiation of this Court’s

reasoning in Gwaltney and support for the holding that

EPCRA authorizes suit for wholly historical violations.

Citizens For A Better Environment, 90 F.3d at 1244.

Courts should and do have reservations about the use

of legislative history as a means of determining

Congressional intent. See United States v. O’Brien, 391

U.S. 367, 383-384, reh’g denied, 393 U.S. 900 (1968)

10

(“inquiries into congressional motives or purposes are a

hazardous matter... What motivates one legislator to

make a speech about a statute is not necessarily what

motivates scores of others to enact it...”). “The

judiciary may not sit as a superlegislature to judge the

wisdom or desirability of legislative policy

determinations . . .” City of New Orleans v. Dukes, 427

U.S. 297, 303 (1976).

It is particularly hazardous to rely on the inaction of

Congress in an attempt to discern legislative intent. Instead

of relying on the intent of the enacting Congress, the lower

court impermissibly focused on a subsequent Congress’

intent. See Consumer Product Safety Comm’n v. GTE

Sylvania, Inc., 447 U.S. 102, 117 (1980) (“the views of a

subsequent Congress form a hazardous basis for inferring

the intent of an earlier one.”). Inferring from the inaction

of Congress in failing to amend the notice provision of the

CAA in 1990 that Congress thereby intended EPCRA’s

citizen suit provision to apply to wholly historic violations

flies in the face of well-settled jurisprudence of statutory

interpretation, not to mention common sense.

Not only does this interpretation impute to the enacting

Congress the presumed intent of a subsequent one, it infers

this intent from the inaction of Congress in amending a

wholly different statute. Congress reasonably may have

intended the CAA, a statute which imposes ongoing daily

(and even hourly) obligations to limit certain air emissions,

to allow suits for certain intermittent and recurring

violations. EPCRA imposes a once-a-year obligation to file

certain forms. As the court in Atlantic States Legal

Foundation, Inc. v. United Musical Instruments, U.S.A.,

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

a

[O}ne can argue with at least equal force that by

amending the Clean Air Act, but failing also to

amend EPCRA, Congress intended to limit

EPCRA’s citizen suit provisions to violations

existing at the time the suit is filed. ... We

discern nothing in the legislative history [of

EPCRA] that indicates that Congress intended to

allow citizens to sue [for past violations).

Id. at 477. Amicus submits that for this reason alone, the

legislative history of CAA, gleaned from events that took

place in Congress in 1990, is irrelevant to the

determination of legislative history of EPCRA which was

enacted in 196.

To compound its error, the court of appeals got the

legislative history of the CAA wrong. Congress and the

Executive were justifiably concerned about the possible

unconstitutionality of the proposed 1990 CAA amendments,

and that these concerns were dealt with by requiring that

the citizen plaintiff show in a suit under the CAA, at

minimum, that the alleged violation “has been repeated”

rather than constitute a wholly historic violation. 42

U.S.C. § 7604(a)(1).

In a letter to the Senate, then Attorney General Richard

Thornburgh expressed the Executive Branch’s concern that

a provision allowing citizen suits for wholly past violations

would “raise important questions under Article [I and

Article III of the Constitution.” Cong. Rec. $5282 (1990).

One Senator pointed out that “the citizen plaintiff lacks

constitutional standing to sue for a past violation which

presents no prospect of present or future harm.” Jd. at

6440-41 (1990). In signing the 1990 CAA amendments

into law, President Bush reiterated those concerns:

12

[T}here are certain aspects of the bill’s enforcement

provisions that raise constitutional questions. I note

that in providing for citizen suits for civil penalties, the

Congress has codified the Supreme Court's

interpretation of such provisions in the Gwaltney case.

As the Constitution requires, litigants must show, at

minimum, intermittent, rather than purely past

violations of the statute in order to bring suit. This

requirement respects the constitutional limitations on

the judicial power and avoids an intrusion into the law-

enforcement responsibilities of the executive branch.

Signing Statement, P.L. 101-549, November 19, 1990:

PUB. PAPERS 1604 (1990) (emphasis added).°

Construing EPCRA to allow suits for wholly historic

violations creates constitutional issues under both Article II

and Article III, as further explained below, and violates the

well-established rule that a statute should be construed in

order to avoid constitutional questions. See Gutierrez de

Martinez v. Lamagno, 115 S. Ct. 2227, 2237 (1995) (“we

ordinarily should construe statutes to avoid serious

constitutional questions”). Rather than presuming that

“Congress, which also has swom to protect the

Constitution, would intend to err on the side of

* Statements made in Presidential Signing Statements are

relevant to ascertaining legislative intent. See D. Mayhew, Inc.

v. Wirtz, 413 F.2d 658 (4th Cir. 1969) (relying on President

Truman’s signing statement, as well as congressional statements,

in interpreting the Portal-to-Portal Act); National Parks &

Conservation Ass'n v. Kleppe, 547 F.2d 673, 678 n.16 (D.C.

Cir. 1976) (considering signing statement in determining the

possible breadth of the trade secrets exception under the

Freedom of Information Act).

13

fundamental constitutional liberties when its legislation

implicates those liberties,” Regan v. Time, Inc., 468 U.S.

641, 697 (1984), the lower court and the Respondent would

have this Court presume that Congress intended to draft

EPCRA in such a way so as to create serious constitutional

issues.

Accordingly, amicus submits that Congress did not

companies, or against the EPA for that matter, for wholly

historic reporting or other violations that were cured before

suit was filed.

Il. CITIZEN PLAINTIFFS DO NOT HAVE

ARTICLE II STANDING TO BRING AN

ACTION FOR WHOLLY PAST VIOLATIONS

OF EPCRA

Even if Congress did intend EPCRA to authorize

citizen suits for wholly past violations, Article III of the

The doctrine of standing serves to identify those

disputes which are appropriately resolved through the

judicial process. A threshold issue in every federal case is

whether the plaintiff has made out a justiciable case or

controversy within the meaning of Article III of the

Constitution of the United States. See Warth v. Seldin, 422

U.S. 490 (1975). The party invoking federal jurisdiction

has the burden of establishing Article II standing. See

Lujan v. Defenders of Wildlife, 504 U.S. 505, 559 (1992).

Amicus submits that even if Congress intended to authorize

citizen suits for wholly historic violations of EPCRA, the

citizen plaintiff would not have standing under Article III.

14

The concept of standing does not refer simply to the

party's capacity to appear in court; rather, standing is

gauged by the specific common-law, statutory or

constitutional claims the party presents. See International

Primate Protection League v. Admin. of Tulane Educational

Fund, 500 U.S. 72 (1991). Although some of the elements

of standing are prudential, the “core component of standing

is an essential and unchanging part of the case-or-

controversy requirement of Article III.” Defenders of

Wildlife, 504 U.S. at 560. The irreducible constitutional

standing requirements consist of three elements: injury in

fact, causation and redressibility. Id at 560.

This Court has explicitly stated that Article III does not

recognize a “congressional conferral upon all persons of an

abstract, self contained, non-instrumental ‘right’ to have the

Executive observe the procedures required by law.” Id. at

573. See also Warth, 422 U.S. at 501 (although Congress

may grant an express right of action to persons who

otherwise would be barred by prudential standing rules, it

cannot eliminate the Article II] standing requirements);

Scalia, Doctrine of Standing, 17 Suffolk U. L. Rev. 881,

885 (1983) (Article III core standing requirements create a

constitutional minimum which cannot be eliminated by

Congress).

In Gwaltney, while this Court found that the citizen

suit provision of CWA did not allow suits for wholly past

violations, it remanded the case to the lower courts to

determine whether the plaintiff's complaint “contained a

good-faith allegations of ongoing violation” by the

company. 484 U.S. at 64. In sharp contrast, CBE did not

even allege any ongoing or continuing violations by the

company. See Pet. A25. Accordingly, CBE lacks standing

to bring this case.

1S

. Wholly Past Violations of EPCRA Cannot

Create An Injury In Fact

The first element which a plaintiff must establish to

show Article III standing is that it has suffered an injury-in-

fact. “Injury-in-fact” has been defined by this Court to

mean “an invasion of a legally protected interest which is

(a) concrete and particularized and (b) actual or imminent,

not conjectural or hypothetical." Defenders Of Wildlife,

504 U.S. at 560 (citations and quotations omitted).

Furthermore, this Court has held that a mere interest in a

problem, no matter how long-standing or sincere, is not

sufficient by itself to establish an injury-in-fact. See Sierra

Club v. Morton, 405 U.S. 727, 739 (1972). As this Court

explained:

[Te requirement that a party seeking review

must allege facts showing that he is himself

adversely affected does not insulate executive

action from judicial review, nor does it prevent

any public interests from being protected through

the judicial process. It does serve as at least a

rough attempt to put the decision as to whether

review will be sought in the hands of those who

have a direct stake in the outcome.

Id. at 740.

Although Congress may grant an express right of

action to persons who would otherwise be barred by

prudential standing rules, “Article [I’s requirement

remains: the plaintiff still must allege a distinct and

palpable injury to himself, even if it is an injury shared by

a large class of other possible litigants.” Warth, 422 U.S.

16

at 501.’ Thus, EPCRA’s provision that “any person” may

commence a civil suit for failure to file the required reports

is not sufficient to satisfy the requirement of injury-in fact

under Article III. See 42 U.S.C. § 11046(a); Defenders of

Wildlife, 504 U.S. at 563 (“[bJut the ‘injury in fact’ test

requires more than an injury to a cognizable interest. It

requires that the party seeking review be himself among the

injured”).

" Amicus submits that the language in EP/RA which

provides that a “person” may sue for violations “on his own

behalf," is clear evidence of Congress’ intent to limit standing or

the scope of a private right of action under EPCRA. In its

complaint, CBE alleges that it is suing on “behalf of both itself

and its members." CBE Complaint 46, J.A. 4 (emphasis

added). EPCRA, however, expressly authorizes a person,

including an entity, to bring a suit only on his or its own behalf

and not on behalf of third parties or the government, such as a

qui tam lawsuit. See discussion, supra, at 7-8.

With respect to the prudential aspect of standing, it is true

that this Court has permitted third parties or organizations to

raise representational standing where their members could have

shown Article III standing in their own right. See, e.g., Hunt v.

Washington State Apple Advertising Com’n, 432 U.S. 333

(1977). While Congress is free to eliminate ail prudential

barriers to standing by providing for citizen suits without

qualification (save, of course, for limits under Article III),

Congress is also free to keep or place one or more such

prudential barriers in the law, and Congress has done so here.

Accordingly, allegations in CBE’s complaint with respect to

alleged injuries suffered by its members cannot properly form a

basis for a suit under EPCRA. While neither CBE nor its

members suffer Article III injury-in-fact in this case, CBE can

sue under EPCRA, if at all, only on its own behalf.

17

EPCRA has two primary purposes: (1) to compile

accurate, reliable information on the presence and release

of toxic chemicals and to make that information available

on a localized level and (2) to use the reported

state and local response groups. Citizens For A Better

Environment, 90 F.3d at 1239. At least one

commentator has noted that under EPCRA, a citizen

plaintiff must show an “informational injury” in order to

establish an Article [II injury-in-fact. See Shalvelson,

EPCRA, Citizen Suits and the Sixth’s Circuit Assault of

the Public’s Right-To-Know, 2-Fall Alb. L. Envtl.

Outlook 29, 33 (1995).

This Court has never explicitly recognized the

sufficiency of informational standing for Article II

purposes. In Lujan v. National Wildlife Federation, 497

U.S. 871, 883 (1990), this Court noted that mere adverse

effects as a result of lack of information would not be

sufficient to create standing; rather the plaintiff must be

able to show a particularized injury suffered as a result

of the lack of information. Id. See also Gatchel,

Informational and Procedural Standing After Lujan v.

Defenders of Wildlife, 11 3. Land Use & Envtl. L. 75,

86 (1995) (“Informational standing is granted only to

groups that can show “specific facts” which prove that

they normally use the information.”). This limitation is

consistent with the traditional standing requirement that

a plaintiff show a concrete injury to its specific interests.*

Where, as in the instant case, the plaintiff alleged

wholly past violations of EPCRA and is seeking only a

declaratory judgment, the imposition of civil penalties

payable to the U.S. Treasury, and attorneys’ fees,

informational injury cannot form the basis of an Article

III injury-in-fact. Any “injury” suffered due to lack of

information as a result of a defendant’s wholly historic

failure to file reports required by EPCRA is a past injury

that has been corrected.

It is well-established that past injuries are not

sufficient to satisfy the injury-in-fact requirement of

Article III in the absence of a claim for money damages.

See Los Angeles y. Lyons, 461 U.S. 95 (1983) (in

dismissing Lyons’ claim for injunctive relief, the Court

found that Lyons could not establish that he would suffer

the same injury again and, therefore, was no more

entitled to injunctive relief than any other citizen);

* CBE’s Complaint merely alleges that The Steel Company,

in filing late EPCRA reports, “has deprived citizens, including

members of CBE, of information. . .” Complaint, q 1; J.A. at

2. CBE also alleges that the past failure of The Steel Company

to file the reports under EPCRA “defeated the purposes of

EPCRA, which are to inform people, annually and in a timely

manner, about the presence of hazardous chemicals, to assist in

local emergency planning and response, and to aid in the

development of appropriate regulations, guidelines and

standards” Complaint, ¢ 20; J.A. at 8. These “injuries” appear

to be generalized injuries suffered by all the residents of the

Chicago area, which would not satisfy the traditional injury-in-

fact requirement.

19

O'Shea v. Littleton, 414 U.S. 488, 496 (1974) (past

wrongs are probative of whether there is a real and

immediate threat of repeated injury, however, plaintiffs

have standing only when their injuries are real and

immediate enough to show an existing controversy).

EPCRA does not authorize a citizen plaintiff to seek

money damages for any economic losses suffered by the

lack of the information. Therefore, under this Court’s

teaching, absent a showing of a real and immediate threat

of future violations, a citizen plaintiff cannot satisfy the

requirement of injury-in-fact under Article II merely by

alleging wholly past violations of EPCRA. See Gwaltney

of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc.,

484 U.S. 49, 70 (Scalia, J., concurring in part and

concurring in the judgment) (“If it is undisputed the

defendant was in a state of compliance when this suit was

filed, the plaintiff would have been suffering no remediable

injury in fact that could support suit.”).° Indeed, even the

majority in Gwaltney opined that allegations of historically

recurring violations could be rendered moot if there "is no

reasonable expectation that the wrong will be repeated."

Id. at 66.

* CBE attempts to distinguish this case from one in which

the failure to file was corrected prior to the receipt of notice

from a citizen plaintiff. Opp. Cert. at 13-14. This distinction

is irrelevant. First, for Article III purposes, whether an injury

constitutes a “past” violation does not depend on the length of

time between the alleged injury and the filing of suit. Second,

the Question Presented upon which the Court granted review did

not make a distinction between pre- and post-notice late filers.

Finally, the court of appeals rationale permitting suits for past

violations would appear to apply to all late filings, regardless of

whether notice was first provided.

20

In the final analysis, the filing of the EPCRA reports

in this case, however late, moots any controversy in the

same way, for example, that the delayed release of agency

documents to a requester under the Freedom of Information

Act would moot any subsequently filed lawsuit complaining

that the agency’s response was untimely because it did not

occur within the 10-day period as required by FOIA. See

5 U.S.C. § 552(a)(6)(A)(i). Indeed, EPCRA, unlike

FOIA, does not even require that the information be

provided to CBE or any individual who requests the

information; rather, EPCRA requires that the forms be

filed with certain government agencies, 42 U.S.C. §§

11022(a), 11023(a). None of these agencies have sued The

Steel Company, presumably because the company promptly

complied with EPCRA after it first learned of EPCRA’s

requirements from the 60-day notice, and continues to

comply today.

B. A_ Citizen Plaintiff Cannot Establish

Redressibility For Wholly Past Violations

Of EPCRA

in addition to establishing injury-in-fact, in order to

have Article III standing a citizen plaintiff must satisfy the

redressibility prong of standing, or, in other words, “it

must be likely, as opposed to merely speculative, that the

injury will be redressed by a favorable decision.”

Defenders of Wildlife, 504 U.S. at 560. (citations omitted)

(quotations omitted). The requirement of redressibility

discourages advisory opinions and restrains courts from

deciding cases when a favorable outcome will not operate

to make the petitioning party whole. See Guilds, A

Jurisprudence of Doubt: Generalized Grievances As A

Limitation to Federal Court Access, 74 N. C. L. Rev.

1863, 1875 (1996). A favorable judgment must redress the

21

injured plaintiff even while serving a general public goal.

See Allen v. Wright, 468 U.S. 737, 758 (1984).

Assuming, arguendo, that a citizen plaintiff who brings

suit for wholly historical violations of EPCRA can, at

most, claim a temporary informational injury, EPCRA

provides no remedies that would redress that injury.

Citizens may seek injunctive and declaratory relief and civil

penalties that are payable only to the U.S. Treasury. 42

U.S.C. § 11046. The court also has discretion to award

costs and fees to the prevailing party in a proper case. /d.

Yet none of these possible prospective “reliefs” will

remove the harm allegedly suffered by the citizen plaintiff

due to the untimely filing, and which has already been

cured. See Warth, 422 U.S. at 505 (Article III requires

that the prospective relief will remove the harm alleged by

the plaintiffs).

As this Court stated in Defenders of Wildlife, such

generalized grievances do not satisfy Article II:

We have consistently held that a plaintiff raising only

a generally available grievance about

government—claiming only harm to his and every

citizen’s interest in proper application of the

constitution and laws, and seeking relief that no more

directly and tangibly benefits him that it does the

public at large—does not state an Article III case or

controversy.

Defenders of Wildlife, 504 U.S. at 573-74. (emphasis

added).

A few district courts have found redressibility for

wholly past violations of EPCRA based on the deterrent

22

effect of the civil penalties or the possibility of enjoining

the reporting company from violating the statute in the

future, as well as the award of attorneys’ fees and costs.

See, ¢.g., Don’t Waste Arizona, Inc. v. McLane Foods,

Inc., 950 F. Supp. 972 (D. Ariz. 1997). These cases are

clearly at odds with this Court’s precedents. This Court

has held, for example, that the possibility of an award of

attorneys’ fees is not sufficient to satisfy Article Il

standing. See Lewis Continental Bank v. Lewis, 494 U.S.

472 (1990) (interest in attorneys’ fees under civil rights

statutes is insufficient to create Article III case or

controversy where none exists on the merits of the

underlying claim).

Furthermore, the possible deterrent effect of civil

penalties or an injunction against future violations is too

speculative to satisfy the redressibility requirement as

articulated by this Court. In Simon v. Eastern Kentucky

Welfare Rights Organization, 426 U.S. 26 (1976), this

Court considered the standing of indigents who challenged

the designation of certain hospitals as “charities” for tax

purposes. In finding that the plaintiffs had failed to

establish standing, the Court stated:

The complaint only alleged that petitioners, by the

adoption of Revenue Ruling 69-545, had

“encouraged” hospitals to deny services to

indigents. The implicit corollary of this allegation

is that a grant of respondents’ requested relief . .

. would “discourage” hospitals from denying their

services to respondents. But it does not follow

from the allegation and its corollary that the denial

of access to hospital services in fact results from

petitioners’ new Ruling, or that a court-ordered

return by petitioners to their previous policy would

23

result in these respondents’ receiving the hospital

Services they desire.

Id. at 42, 43. (emphasis added). Likewise, the possible

deterrent effect of the imposition of civil penalties is wholly

speculative, particularly when the citizen plaintiff has made

no allegations -- and in this case, could not make any

allegation -- that a recurring violation is likely. In short,

when a citizen plaintiff brings suit for wholly past

violations of EPCRA, no action by the court can remove

the harm allegedly suffered by the plaintiff.'° See also

Abell, Ignoring the Trees for the Forests: How The Citizen

Suit Provision of The Clean Water Act Violates The

Constitution’s Separation of Powers Principle, 81 Va. L.

Rev. 1957, 1982 (1995)(arguing that the possible deterrent

effect of civil penalties and injunctions imposed as a result

of a citizen suit under the Clean Water Act does not satisfy

the redressibility requirement of Article III, as defined by

this Court).

° Claims for past violations of EPCRA also are barred by

the related doctrine of mootness, as any violation is cured prior

to the filing of suit. See Warth, 422 U.S. at 499 n.10 (standing

question bears a close affinity to that of mootness, i.e., whether

the occasion for judicial intervention persists). A case is moot

and not justiciable when the issues presented are no longer “live”

or when the parties no longer have a legally cognizable interest

in the outcome. As noted, supra at 19, this Court in Gwaltney

noted that even allegations of ongoing violations can be mooted;

a fortiori, claims only of wholly past violations that have been

corrected are clearly moot.

24

Il. CONSTRUING THE CITIZEN SUIT

PROVISION UNDER EPCRA TO

AUTHORIZE SUITS FOR WHOLLY

PAST VIOLATIONS WOULD CONFLICT

WITH FUNDAMENTAL SEPARATION

OF POWERS PRINCIPLES

The Constitution allocates governing power among the

three branches of government to “protect the liberty and

security of the governed.” Metropolitan Washington

Airports Auth. v. Citizens For The Abatement of Aircraft

Noise, Inc., 501 U.S. 252, 273 (1991). “The

Constitutional’s central mechanism of separation of powers

depends largely upon a common understanding of what

activities are appropriate to legislatures, to executives, and

to courts.” Defenders of Wildlife, 504 U.S. at 559. Under

this framework, Congress is given the responsibility to

create laws, and the President cannot perform these

primary legislative functions. See Youngstown Sheet &

Tube Co. v. Sawyer, 343 U.S. 579 (1952). Conversely,

the President is given the responsibility to enforce the laws

or appoint agents charged with the enforcement of laws,

and Congress cannot perform or usurp these primary

executive functions. See Buckley v. Valeo, 424 U.S. 1,

123-24 (1976).

As Justice Scalia explained in Defenders of Wildlife:

Vindicating the public interest (including the

public interest in Government observance of the

Constitution and laws) is the function of Congress

and the Chief Executive. . . To permit Congress

to convert the undifferentiated public interest in

executive officers’ compliance with the law into an

“individual right” vindicable in the courts is to

25

permit Congress 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."

Id. at 576, 577. While amicus recognizes that the Article

II issue is not directly before the Court, the constitutional

issue should nevertheless inform this Court’s judgment with

respect to the proper interpretation of EPCRA’s citizen suit

provision.

Allowing actions for wholly past violations under the

citizen suit provision in EPCRA would constitute an

unconstitutional usurpation of executive powers by

Congress. The prosecution of cases to enforce public

rights is, and always has been, a primary executive

function. See United States v. Nixon, 418 U.S. 683, 693

(1974) ("the Executive has exclusive authority and absolute

discretion to decide whether to prosecute a case").

Therefore, transfer of the law enforcement power from the

Executive to another entity is an unconstitutional invasion

of the executive’s primary constitutional function. See

Heckler v. Chaney, 470 U.S. 821, 831-32 (1985) (the

power not to prosecute or enforce laws is an integral part

of the executive’s constitutional duty to “take Care that the

Laws be faithfully executed”). Congress may not pass a

citizen suit provision that withdraws power from a co-equal

branch and assign that power to a private citizen without a

26

personal stake in the controversy."’

The grant of prosecutorial power to private citizens

solely to vindicate public rights under EPCRA undermines

the Executive’s authority by transferring a unique

prosecutorial function from the Executive branch to a

private citizen. In Morrison v. Olson, 487 U.S. 654

(1988), this Court set forth the test for determining whether

a delegation of prosecutorial power violated the separation

of powers doctrine. In making the determination, the

Court considered three areas of control by the Executive:

the initiation of the action, the scope of the action, and the

termination of the action. Jd. at 650-1, 691-96.

The authorization of citizen suits for wholly past

violations, such as the one brought by CBE, fails to satisfy

the Morrison test. The Executive has very little authority

to control the initiation of the suit. Although EPCRA

provides that a citizen may not bring suit if EPA takes

action within the 60-day notice period, this control is

largely illusory. See 42 U.S.C. § 11046(e). Action by

EPA bars the citizen suit only if the government has

“commenced and is diligently pursuing an administrative

order or civil action.” Jd. Similar provisions containing

“diligently prosecuting” preclusions have been interpreted

"' “The exercise of significant authority pursuant to the laws

of the United States, including ‘conducting civil litigation in the

courts of the United States for vindicating public rights,’... may

be carried out only by “Officers of the United States,”...

appointed in conformity with the Appointments Clause of the

Constitution.” Cohen and Haire, supra, at 31 (footnotes

omitted). As previously discussed, this limitation is recognized

in EPCRA, by expressly limiting citizen suits to those brought

on the citizen’s “own behalf.”

27

very narrowly to exclude informal settlements and

administrative solutions. See Sierra Club v. Chevron

U.S.A., 834 F. 2d 1517 (9th Cir. 1987); Washington Area

Pub. Interest Research Group v. Pendleton Woolen Mills,

11 F.3d 883 (9th Cir. 1993) (EPA compliance order cannot

preclude suit); Natural Resources Defense Council v. Fina

Oil & Chemical Co., 806 F. Supp. 145, 146 (B.D. Tex.

1992) (compliance order does not bar citizen suit; to bar

citizen suit, there must be a court action).

Particularly in the context of wholly historical

violations of EPCRA, EPA may determine that an informal

resolution will best serve the government’s interest in

power of the Executive to enforce the law for the public

good is eviscerated by the citizen suit provision if it were

sed to prosecute wholly past violations.

There is an additional potential Article II concern that

the Court should consider. Not only does a citizen suit for

wholly past violations constitute an improper exercise of a

unique Executive Branch function, but to the extent that the

suit seeks civil penalties that are payable only to the United

State Treasury, it may violate the Appointments Clause of

Article II. Recoupment of civil penalties for the Treasury

is a power that may be exercised only by an officer of the

United States. See Confiscation Cases, 74 U.S.(Wallace)

454, 458-59 (1868). As one commentator noted, "This

principle, which flows from the public nature of the relief

itself, would bar private actions for civil penalties, even if

it could be established beyond question that those penalties

indirectly benefited the citizen-plaintiff.". Cohen and

Haire, supra, at 31.

28

Significantly, the main argument which has been

advanced to preclude citizen suits from violating separation

of powers principles is that the Article III requirement of

standing insures that the citizen plaintiff has a real and

concrete interest in the action and that the governmental

interest is merely incidental. As discussed at length above,

this argument is unavailable when the citizen plaintiff

attempts to bring a claim for wholly historical violations.

See also Scalia, 17 Suffolk U. L. Rev. at 897-98 (the

of standing and separation of powers is “the requirement of

distinctive injury not shared by the entire body politic.”)

(emphasis in the original). As noted, supra, at 7-8, this

fundamental principle is embodied by the limitation on

citizen suits to those filed on the citizen’s "own behalf."

CONCLUSION

For the foregoing reasons, this Court should reverse

the judgment of the court of appeals, and reinstate the

district court’s judgment dismissing the action against The

Steel Company.

Respectfully submitted,

Daniel J. Popeo Barry M. Hartman

Paul D. Kamenar (Counsel of Record)

Washington Legal Rima Y. Mullins

Foundation Kirkpatrick & Lockhart, LLP

2009 Massachusetts Ave. NW ‘1800 Massachusetts Ave., NW.

Washington, D.C. 20036 Washington, D.C. 20036

(202) 588-0302 (202) 778-9000

Date: May 2, 1997