Petition for Writ of Certiorari — Friends of Earth v. Laidlaw Environmental Services

Supreme Co

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No. 2 NOV 9 1996

DERE OE HHE C1 Fag

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1998

FRIENDS OF THE EARTH, et al.,

Petitioners,

V.

LAIDLAW ENVIRONMENTAL SERVICES (TOC), INC.,

Respondent.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Fourth Circuit

PETITION FOR A WRIT OF CERTIORARI

Bruce J. Terris* James S. Chandler, Jr.

Carolyn Smith Pravlik SOUTH CAROLINA

Kathleen L. Millian ENVIRONMENTAL LAW

TERRIS, PRAVLIK & PROJECT

MILLIAN, LLP P.O. Box 279

1121 12th Street, N.W. Pawleys Island, S.C. 29585

Washington, D.C. 20005 (843) 527-0078

(202) 682-2100

*Counsel of Record Counsel for Petitioners

i

QUESTIONS PRESENTED

l. Whether a citizen suit seeking civil penalties

under Section 505 of the Clean Water Act is constitutionally

moot under Stee/ Co. v. Citizens for Better Environment, 118

S. Ct. 1003 (1998), due to lack of redressability, where

plaintiffs had standing at the time of the complaint and have

shown continuing injury-in-fact but have not obtained

injunctive relief.

2. Whether a citizen suit seeking civil penalties

under Section 505 of the Clean Water Act is constitutionally

moot under Stee/ Co., due to lack of redressability, when the

district court has rendered a declaratory judgment as to

liability and the issue of liability was contested.

3. Whether plaintiffs could not be awarded

attorneys’ fees or litigation costs because the case was

dismissed for mootness, even if the litigation was responsible

for bringing the defendant into compliance with the Clean

Water Act.

ii

PARTIES TO THE PROCEEDING

The plaintiffs are Friends of the Earth, Citizens Local

Environmental Action Network, Inc. ("CLEAN"), and the

Sierra Club. The defendant was Laidlaw Environmental

Services (TOC), Inc., now Safety-Kleen (Roebuck), Inc.

TABLE OF CONTENTS

APPENDIX

JUDGMENT AND DECISIONS BELOW ....

STATUES INVOLVED ................

SUPPLEMENTAL BRIEF FOR THE U.S. AS

AMICUS CURIAE IN COURT.OF APPEALS .. .

REPLY BRIEF FOR PETITIONER IN

GWALTNEY OF SMITHFIELD, LTD. vy.

CHESAPEAKE BAY FOUNDATION .......

iv

TABLE OF AUTHORITIES

Cases

American Council for the Blind of Colorado,

Inc. v. Romer, 992 F.2d 249 (10th Cir. 1993),

certiorari denied, 510 U.S. 864 (1993) ....----- 24

Atlantic States Legal Foundation, Inc. v. Pan

American Tanning Corp., 993 F.2d 1017

(2d Cir. 1993)... ee eee ee tree een eeeee 13

Atlantic States Legal Foundation, Inc. v. Stroh

Die Casting Co., 116 F.3d 814 (7th Cir. 1997),

certiorari denied, 118 S. Ct. 442 (1997) .....--- 13

Atlantic States Legal Foundation, Inc. v. Tyson

Foods, Inc., 897 F.2d 1128 (11th Cir. 1990) ..... 13

Baumgartner v. Harrisburg Housing Authority, 21 F.3d

541, (3d Cir. 1994) 2... eee ees 24

Cardinal Chemical Co. v. Morton International, Inc.,

508 U.S. 83 (1993)... 1. eee eee eee ees 18

Carr v. Alta Verde Industries, Inc., 931 F.2d 1055

(Sth Cir. 1991)... ee eee eee eee eee eees 13

Chesapeake Bay Foundation, Inc. v. Gwaltney of

Smithfield, Ltd., 890 F.2d 690

(4th Cir. 1989) 2... 2 eee eee ees 8,11, 17

Citizens Against Tax Waste v. Westerville City School,

985 F.2d 255 (6th Cir. 1993) 6. ee ee ee eee eee 24

Comfort Lake Ass'n, Inc. v. Dresel Contracting, Inc.,

138 F.3d 351 (8th Cir. 1998) .....-----ss 13, 24

Craig v. Gregg County, Texas, 988 F.2d 18

(Sth Cir. 1993) 2... ee eee eee eee ees 24

Dubois v. U.S. Dep't of Agriculture, D.N.H.,

ber 30, 1998, 1990 U.S. Dist.

oc. Ot), Se 11, 27

Farrar v. Hobby, 506 U.S. 103 (1992) ..... 21, 24, 25

Seen ee

Vv

Friends of the Earth v. Laidlaw Environmental j

(TOC), Inc., 149 F.3d 303 (4th Cir. 1998) . ms _

Friends of the Earth v. Laidlaw Environmental Services

(TOC), Inc., 890 F. Supp. 470 (D.S.C. 1995) ... |

Friends of the Earth v. Laidlaw Environmental Services

(TOC), Inc., 956 F. Supp. 588 (D.S.C. 1997) .. Passim

Gwaltney of Smithfield, Ltd. v. Chesapeake Bay

Foundation, Inc., 484 U.S. 49 (1987) i

. S. 49 (1987) ...... Passim

Hanrahan v. Hampton, 446 U.S. 754 (1979) ...... 23

Hewitt v. Helms, 482 U.S. 755 0 22

LaRouche v. Kezer, 20 F.3d 68 (2d Cir. 1994) —

Little Rock School District v. Pulaski C.

Special School District, 17 F.34 260”

(8th Cir. 1994) ................... 24

Lundon v. Meehan, 980 F.2d 1450 (D.C. Cir. 1992). 25

Maduka v. Meissner, 114 F.3d 1240 (D.C. Cir. 1997) 24

Maher v. Gagne, 448 U.S. 122 (1980)... ... 23

Natural Resources Defense Council, Inc. v. T. xaco ie

Refining and Manufacturing, Inc., 2 F.3d 493

ae 13, 26

Paris v. U.S. Department of Housing and Urban

Development, 988 F.2d 236 (Ist Cir. 1993) .... 24

Pawtuxent Cove Marina, Inc. v. Ciba-Geigy Corp,

807 F.2d 1089 (Ist Cir. 1986) .......... —

Pembroke v. Wood County, Texas, 981F24d225.

(Sth Cir. 1993) .................. 24

Powell v. McCormick, 395 U.S. 486 (1969) ....__. 15

Preseault v. Interstate Commerce Commission.

494 U.S.1(1990)................. : 16

$14 $2 v. State Board of Education, 21 F.3449_

Steel Co. v. Citizens for Better Environment, 1 18 ares. e

S.Ct. 1003 (1998) ................... Passim

Student Public Interest Research Group of

New Jersey v. AT&T Bell Laboratories, 842 F.2d

vi

1436, 1448-1449 (3d Cir. 1988) .............. 29

Tull v. United States, 481 U.S. 412 (1987) —_.. .... .. . . 15

United States v. Concentrated Phosphate Export

Ass'n, 393 U.S. 199 (1968) ww ww ee eee ees 10, 18

United States v. Munsingwear, 340 U.S. 36 (1950) ...9

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

Se eceevbevecuneeseeennes ees 7, 10, 12, 18

Weinberger v. Romero-Barcelo, 456 U.S. 305 (1982) . 15

W.G. ex rel. D.G. v. Senatore, 18 F.3d 60

- lo 3 aa cee ae owed ee hee 25

Zinn by Blankenship v. Shalala, 35 F.3d 273

Pre rr TT TT eT TTT er rey 24

Statutes

I a sh es Oe ee heed |

ha se ie a ads wen chines |

i i ee i eee ie wee ke 2, 22

i Cet ie tee ed ie eee hw ae 2

0 Ee 2

I. tis. 6ude eeeew enna debe ee 2

ole eet re es wees slats 2

PR ane i éeedewennktesde de suncaees 2

i so ids cid eh hn eae alee Passim

a ee i eer 2

ee er ee 2

Legislative Material

A Legislative History of the Water Quality Act

of 1987, 100th Cong., 2d Sess., Sen. Print

PEPE SUED Geeeeeeceotsdoenevcscesen 22

S. Rep. No. 50, 90th Cong., Ist Sess. 28

“AS yanae mn iors, Scene ene Se 15, 22

Vii

S. Rep. No. 228, 101st Cong., Ist Sess. 373

(1989)

tee Ay es Ta

PETITION FOR A WRIT OF CERTIORARI

Plaintiffs petition for a writ of certiorari to review the

judgment of the United States Court of Appeals for the

Fourth Circuit.

OPINIONS BELOW

The opinion of the court of appeals was published at

149 F.3d 303 (4th Cir. 1998) and is reprinted in the

Appendix ("App.") at la. The standing decision of the

district court was unpublished. The preclusion decision of

the district court was published at 890 F. Supp. 470 (D.S.C.

1995). The relief decision of the district court was published

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

JURISDICTION

The judgment of the court of appeals was entered on

July 16, 1998 (App. 3a). The jurisdiction of this Court is

invoked under 28 U.S.C. 1254(1). 28 U.S.C. 2403(a) applies

to this action. The court of appeals did not certify this action

pursuant to 28 U.S.C. 2403(a).

On October 7, 1998, plaintiffs were granted an

extension of time to file their petition for a writ of certiorari.

2

STATUTES INVOLVED

The relevant sections of the Federal Water Pollution

Control Act, 33 U.S.C. 1365(a), 1365(d), 1365(g), and

1319(d) are set forth in the Appendix at 10a.

STATUTORY BACKGROUND

Section 301(a) of the Clean Water Act, 33 U.S.C.

1311(a), states:

Except as in compliance with this section and

sections 302, 306, 307, 318, 402 and 404 of

this act, the discharge of any pollutant by any

person shall be unlawful.

"The Act makes unlawful the discharge of any pollutant into

navigable waters except as authorized by specific sections of

the Act." Gwaltney of Smithfield, Ltd. v. Chesapeake Bay

Foundation, Inc. 484 U.S. 49, 52 (1987). The Act provides

for the issuance of discharge permits. 33 U.S.C. 1341-1345.

Compliance with a permit issued pursuant to one of the

permit programs established by the Act is deemed compliance

with Section 301 of the Act and allows discharges which

would otherwise be unlawful. See 33 U.S.C. 1342(k),

1344(p). | Conversely, noncompliance with a permit

constitutes noncompliance with Section 301 and is a violation

of the Act.

Section 402(a) of the Act, 33 U.S.C. 1342(a),

provides for the issuance of Natural Pollutant Discharge

Elimination System ("NPDES") permits to allow the

discharge of wastewater. The Act requires each NPDES

permit to: (a) include discharge limitations; (b) require the

permittee to be in compliance with the discharge limitations

3

in the permit; and (c) require the permittee to monitor its

discharges as the United States Environmental Agency

("EPA") requires and report the results accurately to EPA and

the state in its discharge monitoring reports ("DMR’s"). 33

U.S.C. 1342.

Section 505(a) of the Act, 33 U.S.C. 1365(a) (App.

10a), allows any "citizen" to bring suit to enforce any

limitation in an NPDES permit. That section specifically

authorizes the courts to issue injunctive relief and impose

civil penalties. Section 505(g), 33 U.S.C. 1365(g) (App.

lla), defines citizen as "a person or persons having an

interest which is or may be adversely affected."

STATEMENT OF THE CASE

Defendant Laidlaw operates a hazardous waste

incinerator. 956 F. Supp. at 593. As part of its operation,

Laidlaw discharges wastewater into the North Tyger River

pursuant to the NPDES permit issued by the South Carolina

Department of Health and Environmental Control ("DHEC").

Ibid. The applicable permit limited the discharge of specified

pollutants, including mercury, lead, nickel, arsenic, cadmium,

chromium and zinc. /bid. It also required Laidlaw to monitor

its discharge and report the level of pollutants discharged to

EPA and DHEC. /bid. From January 1986 through January

1995, Laidlaw violated its permit limitation for mercury 489

times. 956 F. Supp. at 613-621. Laidlaw also violated its

non-mercury metals discharge limitations and its pH

limitation 439 times. J.A. 380-392. In addition, it violated

the monitoring requirements of its permit 420 times and the

reporting requirements 503 times. 956 F. Supp. at 610.

Laidlaw’s discharge violations were due to an

inadequate treatment system and its failure to control

4

adequately its mercury feed rate, i.e., the amount of mercury

in the waste fed into the incinerator. 890 F. Supp. at 478.

Laidlaw gradually added treatment equipment from 1987 to

1991. Jd. at 482. The Lancy system, installed in 1991,

corrected most of Laidlaw’s non-mercury metals violations.

Id. at 483. However, Laidlaw’s mercury violations increased

in early 1992. Laidlaw violated its mercury limitation 103

times from January 1992 through May 1992, the period

immediately prior to the filing of the complaint in this case,

including violations as much as 13 times over its permit

limitation. Jd. at 619-621. The increase in violations is

explained by Laidlaw’s failure to control its mercury feed

rate, which it knew was needed to achieve compliance after

the installation of the Lancy system. J.A. 598; Def. Exs.

105, 144; Pl. Ex. 143; Pl. Ex. 126, figure 1; Stipulation of

December 11, 1996, Appendix 1, pp. 16-19.

In July 1992, a month after plaintiffs filed suit,

Laidlaw reduced its mercury feed rate and installed new

carbon adsorption equipment. 890 F. Supp. at 483; Pl. Ex.

126, figure 1; Pl. Ex. 143. In January 1993, Laidlaw

installed equipment that aided the performance of the carbon

filters in removing mercury. 890 F. Supp. at 483. As a

result, the number and severity of its mercury violations

dropp i. 956 F. Supp. at 621. Nonetheless, Laidlaw

violated the mercury discharge limitations in its permit 13

times after the complaint was filed. Jbid.

Plaintiffs, Friends of the Earth, CLEAN and the Sierra

Club, brought this action on June 12, 1992, under the citizen

suit provision of the Clean Water Act, Section 505, 33

U.S.C. 1365 (App. 10a), to enforce the terms and conditions

of Laidlaw’s permit. Laidlaw moved to dismiss Friends of

the Earth, but not the other plaintiffs, for lack of standing on

the ground that its members had not suffered injury-in-fact.

|

5

On June 30, 1993, the district court denied the motion. J.A.

13.

Laidlaw subsequently moved to dismiss under Section

505(b)(1)(B) of the Act, 33 U.S.C. 1365(b)(1)(B), on the

ground that the suit was precluded because the State had

brought an action in state court against Laidlaw three days

before plaintiffs’ action was filed. 890 F. Supp. at 474. The

complaint in the state case had been drafted and filed by

Laidlaw’s counsel and the filing fee was paid by Laidlaw.

Id. at 479. The complaint was filed at the request of Laidlaw

for the purpose of barring plaintiffs’ suit. Jd. at 478. The

district court denied the motion after a seven-day evidentiary

hearing on the ground that the state action had not been

diligently prosecuted for a number of reasons, but primarily

because the $100,000 penalty did not remove the economic

benefit enjoyed by Laidlaw as the result of its delayed

compliance. Jd. at 489-491, 497-499.

On June 27, 1995, the district court denied plaintiffs’

motion for summary judgment for Laidlaw’s violations. J.A.

23. On that same date, the district court granted Laidlaw’s

motion for summary judgment on all of its non-mercury

discharge violations based on this Court’s decision in

Gwaltney, since none of the other permit limitations had been

violated subsequent to the filing of the complaint. 956 F.

Supp. at 592.

On July 31, 1995, the district court began a three-day

trial on liability and relief. 956 F. Supp at 592. At the

conclusion of the testimony, the district court reserved

decision until a decision was issued in a state administrative

proceeding involving a challenge to a change in the mercury

limitation in Laidlaw’s permit. Jbid. As a result, the district

court did not issue its decision until January 22, 1997.

6

The district court found that Laidlaw had violated the

mercury limitations in its permit 489 times, including 13

times after the complaint in this case was filed. 956 F. Supp.

at 600, 621. The court also found that Laidlaw had violated

the monitoring requirements in its permit 420 times and the

reporting requirements 503 times, including 13 monitoring

and 10 reporting violations after the complaint was filed. /d.

at 600-601. The court found that Laidlaw had enjoyed an

economic benefit of $1,092,581 from its violation of its

permit. /d. at 606. However, the court concluded that a

penalty of $405,800 was an adequate deterrent, when

considered with the attorneys’ fees award that Laidlaw would

be required to pay to plaintiffs and Laidlaw’s own litigation

expenses. /d. at 610-611. The district court denied

plaintiffs’ request for injunctive relief because Laidlaw had

achieved substantial compliance with its permit. /d. at 611.

Both sides appealed the district court’s decisions.

Laidlaw appealed, inter alia, on the ground that Friends of

the Earth lacked standing because of its alleged failure to

show injury-in-fact. The day before oral argument in the

court of appeals, on March 4, 1998, this Court decided Stee/

Co. v. Citizens for a Better Environment, 118 S. Ct. 1003

(1998). On March 10, 1998, plaintiffs filed a motion asking

the court of appeals for the opportunity to submit a brief

showing that the decision in Stee/ Co. had no application.

Laidlaw responded that Stee/ Co. "is largely irrelevant to the

standing issue before this Court." Defendant-Appellee’s

Opposition to Plaintiffs’ Motion for Leave to File an

Additional Brief, March 18, 1998, p. 1. On April 7, 1998,

the court of appeals granted plaintiffs’ motion and directed

the parties to brief the applicability of Steel Co.

In addition to the parties, the United States filed a

brief as amicus curiae, arguing that Steel Co. did not apply

eer alas pe

~~ —-

7

since that decision addressed standing at the time the case

was filed as opposed to mootness later in the litigation.

Supplemental Brief for the United States as Amicus Curiae in

Support of Plaintiffs-Appellants, Friends of the Earth, Inc v.

Laidlaw Environmental Services (TOC), Inc., 4th Cir., Nos.

97-1246 and 97-1261, pp. 8-9 (App. 28a). The United States

further contended that post-complaint compliance and the

absence of injunctive relief do not render a request for civil

penalties moot, unless the "defendant has carried its heavy

burden of demonstrating that violations cannot reasonably be

expected to recur * * *." /d., p. 9 (App. 29a). The United

States explained: "Where a defendant has a direct financial

incentive to resume conduct that is illegal, cessation of illegal

activity -- even if accompanied by a substantial period of

compliance during the lawsuit -- is unlikely to be sufficient

to make ‘absolutely clear’ that there is *no reasonable

expectation that the wrong will be repeated. See Gwaltney,

484 U.S. at 66-67; see also W.T. Grant Co., 345 U.S. at 632-

33 * * *." Id, p. 10 (App. 29a-30a).

The court of appeals vacated and remanded with

instructions to dismiss on the ground that the case was moot

based on this Court’s decision in Steel Co. App. 8a-9a. In

doing so, it ignored the distinction between initial standing

and mootness and applied the standing analysis in Steel Co.

to the issue whether a case has become moot. It assumed

"without deciding that Plaintiffs had standing to initiate this

action and have proven a continuous injury in fact." App.

7a, n. 3. It reasoned that "[b]ecause Plaintiffs have not

appealed the denial of declaratory and injunctive relief, the

only potential relief that may be available to redress their

claimed injuries is the civil penalty imposed upon Laidlaw"

and "[{sluch penalties * * * cannot redress any injury suffered

by a citizen plaintiff." App. 7a.

8

REASONS FOR GRANTING THE PETITION

l. The court of appeals’ decision is directly

inconsistent with this Court’s decision in Gwaltney. The

court of appeals assumed that plaintiffs’ members had

suffered injury-in-fact and that the injury was continuing at

the time the complaint was filed. App. 7a, n. 3. Nevertheless

it decided that plaintiffs had not satisfied the redressability

requirement for standing and that therefore plaintiffs’ request

for civil penalties was moot solely on the ground that the

district court had not granted declaratory or injunctive relief

and the denial of such relief had not been appealed. This

application of the Steel Co. standing analysis to a post-

complaint mootness issue puts the decision below in direct

conflict with this Court’s decision in Gwaltney, where,

despite facts nearly identical to those here, this Court

concluded that the case was not moot.”

In Gwaltney, as in this case, the district court had not

issued injunctive relief and the plaintiffs had not appealed the

issue to the court of appeals. Chesapeake Bay Foundation,

Inc. v. Gwaltney of Smithfield, Ltd., 890 F.2d 690, 692 (4th

Cir. 1989). Consequently, by the time the case reached this

Court, there was no possibility that injunctive relief would

issue and the sole remaining claim was for civil penalties.

This fact was specifically pointed out by petitioner in this

Court. Gwaltney of Smithfield, Ltd. v. Chesapeake Bay

Foundation, No. 86-473, Oct. Term 1987, Reply Br. for

Petitioner, p. 16 (App. 40a). See 484 U.S. at 66. Moreover,

1/The only difference between Gwaltney and the present case

is, as we will discuss below (p. 17), that Laidlaw’s violations

continued after the complaint was filed whereas, in Gwaltney,

the last violation was a month before the filing of the

complaint. 484 U.S. at 53-54.

9

the petitioner in Gwaltney made the identical redressability

argument that the court of appeals adopted in the present

case. /bid.

Nonetheless, this Court specifically held that the

piaintiffs had constitutional standing under Article III to

impose civil penalties despite the fact that injunctive relief

was no longer being sought. 484 U.S. at 64-66. The Court

further made clear that the case was not moot, despite the

fact that the possibility of injunctive relief had been

eliminated from the case. In response to petitioner's

mootness argument, which specifically raised the issue of

redressability, this Court discussed the applicability of

mootness to citizen suits generally under the Clean Water

Act. 484 U.S. at 66-67. See Gwaltney of Smithfield, Ltd. v.

Chesapeake Bay Foundation, No. 86-473, Oct. Term 1987,

Reply Br. for Petitioner, pp. 15-18 (App. 39a-43a). The

Court did not find that the case was moot since, in the

paragraph immediately following the discussion of mootness,

it stated that it was remanding the case for a determination

whether the complaint’s allegation of continuing violations

was made in good faith. 484 U.S. 67. If the absence of

injunctive relief ipso facto rendered the case moot, there

would have been no possible purpose to a remand.

Even if this Court had not specifically discussed the

applicability of the mootness doctrine to citizen suits under

the Clean Water Act in Gwaltney, it would have still been

clear that the Court necessarily rejected the mootness

argument of the petitioners in that case. This Court

emphasized in Stee! Co. that it is the practice of this Court to

determine jurisdictional issues before dealing with the merits.

118 S. Ct. at 1012-1013. This rule applies just as much to

mootness as to standing. As the Court stated in United States

v. Munsingwear, 340 U.S. 36, 39 (1950):

10

The established practice of this Court in

dealing with a civil case from a court in the

federal system which has become moot on its

way here or pending our decision on the

merits is to reverse or vacate the judgment

below and remain vith a direction to dismiss.

It would therefore have been inconsistent with Article III of

the Constitution and this Court’s "established practice" for the

Court to have ignored in Gwaltney a substantial jurisdictional

issue that had been specifically raised before it.

This Court’s refusal to dismiss Gwaltney on the

ground of mootness because no injunctive relief had issued

is consistent with the difference in the standards for issuing

injunctions and dismissing on the ground of mootness.

Injunctive relief requires plaintiffs to prove the likelihood of

irreparable harm. As we will see below (pp. 17-19),

mootness requires proof by defendants to a virtual certainty

that the risk of harm has ceased. Thus, there are numerous

intermediate situations where neither injunctive relief nor

dismissal based on mootness is proper. See, e.g., United

States v. Concentrated Phosphate Export Ass'n, 393 U.S.

199, 203 (1968)(even though the defendant on remand might

be able to show that injunctive relief was inappropriate, the

case was not moot); United States v. W.T. Grant Co., 345

U.S. 629, 635-636 (1953) ("We conclude that, although the

actions were not moot, no abuse of discretion has been

demonstrated in the trial court’s refusal to award injunctive

relief").

The court of appeals in the instant case did not

discuss or address Gwaltney, despite its direct relevance to

1]

the court of appeals’ mootness determination.”

Instead, it based its decision on Steel Co. However, Steel

Co. clearly did not overrule Gwaltney. This Court explicitly

stated in Stee/ Co. that "Article III] standing was * * * found

[in Gwaltney]." 118 S. Ct. at 1011. Moreover, the Court

relied in Steel Co. on the holding in Gwaltney in its detailed

discussion of the requirement that courts must determine

standing as a threshold matter before considering other issues

in the case. /d. at 1009-1016.

Steel Co. involved the issue of standing, whereas

Gwaltney involved mootness. Steel Co. involved a situation

2/Plaintiffs relied heavily on Gwaltney throughout their brief

on the Steel Co. issue in the court below. See Second

Supplemental Brief for Appellants, April 24, 1998. In

response, the court of appeals did not even mention

Gwaltney, except to reject it with a "but see" citation on the

separate attorneys’ fee issue. See pp. 20-22 below. Plaintiffs

submit that this was not an oversight; Gwaltney simply

cannot be squared with the court of appeals’ holding.

Indeed, a district court has held that the decision of

the court of appeals in the present case implicitly overturned

the court of appeals’ prior decision in Chesapeake Bay

Foundation, Inc. v. Gwaltney of Smithfield, Ltd., supra, 890

F.2d at 696-697, which held that "the mooting of a claim for

injunctive relief does not moot a claim for CWA civil

penalties" (emphasis in original). Dubois v. U.S. Dep't of

Agriculture, D.N.H., September 30, 1998, 1990 U.S. Dist.

LEXIS 15198, * 12, n. 4. The district court did not note,

however, that the court of appeals in the present case

— overturned this Court’s decision in Gwaltney as

well.

12

where the complaint contained no allegation of a continuing

violation as this Court emphasized repeatedly. 118 S. Ct. at -

1008, 1011, 1019. In Gwaltney, the complaint alleged

continuing violation. 484 U.S. at 54.

This Court in Steel Co. emphasized the difference

between standing and mootness (118 S. Ct. at 1019-1020):

The United States, as amicus curiae,

argues that the injunctive relief does constitute

remediation because "there is a presumption of

future injury when this defendant has

voluntarily ceased its illegal activity in

response to litigation," even if that occurs

before a complaint is filed. * * * The

“presumption” the Government refers to has

been applied to refute the assertion of

mootness by a defendant who, when sued in a

complaint that alleges present or threatened

injury, ceases the complained-of activity. See

e.g., United States v. W.T. Grant Co., 345

U.S. 629 (1953). It is an immense and

unacceptable stretch to call the presumption

into service as a substitute for the allegation of

present or threatened injury upon which initial

standing must be based.

Thus, Steel Co. carefully distinguished between initial

standing and mootness. /d. at 1020.

The facts in the case are like those in Gwaltney, not

Steel Co., except that here there were post-complaint

violations. The complaint here alleged continuing violations.

The court of appeals here assumed standing and continuing

violations at the time the complaint was filed. App. 7a, n. 3.

13

The issue here is therefore not standing as in Stee/ Co. but

mootness as in Gwaltney. The issue is whether plaintiffs’

request for civil penalties became moot on appeal because no

injunctive relief had issued. Thus, the decision of the court

of appeals below is not supported by Steel Co. and is directly

inconsistent with Gwaltney.

2. Six courts of appeals have held that claims for

penalties in citizen suits under the Clean Water Act are not

moot even through claims for injunctive relief were no longer

viable because the defendants had brought themselves into

compliance with the Act. Comfort Lake Ass'n, Inc. v. Dresel

Contracting, Inc., 138 F.3d 351, 356 (8th Cir. 1998); Atlantic

States Legal Foundation, Inc. v. Stroh Die Casting Co., 116

F.3d 814, 820 (7th Cir. 1997), certiorari denied, 118 S. Ct.

442 (1997); Natural Resources Defense Council, Inc. v.

Texaco Refining and Manufacturing, Inc., 2 F.3d 493, 503-

504 (3d Cir. 1993); Atlantic States Legal Foundation, Inc. v.

Pan American Tanning Corp., 993 F.2d 1017, 1020-1021 (2d

Cir. 1993); Atlantic States Legal Foundation, Inc. v. Tyson

Foods, Inc., 897 F.2d 1128, 1135-1136 (11th Cir. 1990);

Pawtuxent Cove Marina, Inc. v. Ciba-Geigy Corp., 807 F.2d

1089, 1094 (1st Cir. 1986), certiorari denied, 484 U.S. 975

(1987). See also Carr v. Alta Verde Industries, Inc., 931

F.2d 1055, 1065, n. 9 (Sth Cir. 1991)(dictum). The decision

of the court of appeals in this case is directly inconsistent

with these decisions.

These cases are directly supported by the holding of

this Court in Powell v. McCormick, 395 U.S. 486, 498-499

(1969). There, the Court held that a case is not moot where,

as here, a monetary remedy is “hotly contested." /d. at 498.

This Court said that an outstanding issue of monetary relief

was itself sufficient to supply the constitutional requirement

of a case or controversy, even though the primary remedy

14

sought in the case, injunctive relief, was no longer needed.

Thus, this Court, like the six court of appeals, separated the

issue of mootness for civil penalties from mootness for

injunctive relief.

As noted above, this Court discussed in Gwaltney the

applicability of the mootness doctrine to citizen suits under

the Clean Water Act. However, in doing so, it did not

indicate that it was dealing with civil penalties. All of the

cases cited related to injunctive relief. Thus, there was no

suggestion that claims for civil penalties based on violations

over which the federal courts had jurisdiction could be barred

retroactively based on mootness.

3. The court below concluded that civil penalties

could not support redressability on the ground that this Court

in Steel Co. had found that “any civil penalties imposed

would be payable to the United States Treasury and not to

the plaintiff and therefore that the penalties would not benefit

the plaintiff." App. 8a. This holding was based on this

Court’s statement in Steel Co., that the plaintiff's claim for

civil penalties did not satisfy the redressability requirement

for standing because (118 S. Ct. at 1018-1019):

By the mere bringing of his suit, every

plaintiff demonstrates his belief that a

favorable judgment will make him happier.

But although a suitor may derive great

comfort and joy from the fact that the United

States Treasury is not cheated, that a

wrongdoer gets his just deserts, or that the

nation’s laws are faithfully enforced, that

psychic satisfaction is not an acceptable

Article III remedy because it does not redress

any cognizable Article III injury. (emphasis

15

in original)

However, that statement was made by the Court in

determining the initial standing of the plaintiff. The Court

sharply distinguished in Steel Co. the situation where the

plaintiff has not alleged a continuing violation from the

situation where a continuing violation has been alleged and

the violation and injury-in-fact continued after the filing of

the complaint. 118 S. Ct. at 1019, 1020.

The interpretation by the court of appeals of this

Court’s holding in Steel Co. would make that decision

directly inconsistent with this Court’s decisions in Tull v.

United States, 481 U.S. 412, 422-423 (1987), and Weinberger

v. Romero-Barcelo, 456 U.S. 305, 314 (1982). In

Weinberger v. Romero-Barcelo, this Court, in a similar

citizen suit under the Clean Water Act, stated that "[a]n

injunction is not the only means of ensuring compliance" and

then cited penalties. 456 U.S. at 314. Here, the court of

appeals entirely ignored the fact that civil penalties, like

injunctive relief, redress harm to the plaintiff by deterring

continued and future violation of the statute. This Court in

Tull and Romero-Barcelo explicitly noted the deterrent effect

of civil penalties imposed under the Clean Water Act on

future violations. Congress likewise has specifically

conciuded, in discussing civil penalties under the Water Act,

that citizen suits "have deterred violators and achieved

significant compliance gains." S. Rep. No. 50, 90th Cong.,

Ist Sess. 28 (1985). See also S. Rep. No. 228, 101st Cong.,

Ist Sess. 373 (1989) "[t]he assessment of civil penalties for

violations of the [Clean Air] Act [is] necessary for

16

deterrence, restitution and retribution").2 Thus, where

violations are alleged in the complaint and are in fact

continuing after the suit has been filed, civil penalties

effectively bring violators into compliance and induce them

to continue to comply. Therefore, civil penalties, according

to both this Court and Congress, provide redress for the harm

to the plaintiffs.

Even, if contrary to our argument above, this Court’s

decision in Gwaltney did not determine that the case was not

moot, it surely determined that civil penalties could redress

violations that continued subsequent to the filing of the

complaint. Since, as we have noted (p. 8), civil penalties

were the sole relief left in the case and this Court upheld

plaintiffs’ standing, it necessarily held that civil penalties can

provide redressability for the defendant’s continuing

violations.

Here, the district court made clear that, in denying

injunctive relief, it was not finding that violations of the

permit would not occur in the future. It specifically stated

that "a defendant in substantial compliance with its NPDES

permit is not required to show that there is no chance of a

future permit violation in order to defeat a request for

injunctive relief." 956 F. Supp. at 611. It further stated that

"[t]aken together, this court believes the above penalty,

potential fee awards, and Laidlaw’s own direct and indirect

litigation expenses provide adequate deterrence under the

circumstances of this case." /bid. Thus, the district court

specifically found that the penalty it imposed would be a

deterrent to possible future violations.

3/Congress’ determination as to the effect of civil penalties

is entitled to substantial deference. See, e.g., Preseault v.

Interstate Commerce Commission, 494 U.S. 1, 17 (1990).

17

4. Even if the court of appeals had not assumed

continuing injury but had decided that no continuing injury

existed, its decision to dismiss this case ‘would still have been

directly inconsistent with this Court’s decision in Gwaltney.

In Gwaltney, the defendant’s last violation had occurred a

month before the complaint was filed and 3 and 1/2 years

before this Court issued its decision. 484 U.S. at 53-54.

Nevertheless, as noted above, this Court did not dismiss, but

instead remanded the case to determine whether the allegation

of continuing violations in the complaint was made in good

faith. Jd. at 67. Subsequently, on remand, the Court of

Appeals for the Fourth Circuit affirmed the district court’s

holding that the plaintiff had proved a continuing violation at

the time of the complaint, even though there had been -no

violations for 5 and 1/2 years. Chesapeake Bay Foundation,

Inc. v. Gwaltney of Smithfield, Ltd., supra, 890 F.2d at 695.

In comparison, Laidlaw’s last violation occurred in

January 1995. 956 F. Supp. at 621. Thirty-six of Laidlaw’s

violations occurred after the complaint was filed. Jd. at 600-

601. There were numerous violations for 4 months and

sporadic violations for 2 and 1/2 years after the complaint

was filed. /d. at 621. Thus, if, as this Court necessarily

found, the plaintiffs in Gwaltney were suffering continuing

injury, based on pre-complaint violations sufficient to prevent

mootness, a fortiori, so were plaintiffs in the present case.

5. This Court’s decisions in Gwaltney and Steel

Co. explain why plaintiffs in Gwaltney and in this case have

suffered continuing injury. In Gwaltney, this Court set forth

the following strict limitation on the applicability of the

mootness doctrine in terminating cases as to which the

federal courts had jurisdiction when the suit was brought (484

U.S. at 66):

18

Long-standing principles of mootness * * *

prevent the maintenance of suit when "there is

no reasonable expectation that the wrong will

be repeated." United States v. W.T. Grant

Co., 345 U.S. 629, 633 (1953) * * *. In

seeking to have a case dismissed as moot,

however, the defendant’s burden "is a heavy

one." 345 U.S. at 633. The defendant must

demonstrate that it is "absolutely clear that the

allegedly wrongful behavior could not be

reasonably expected to recur." United States

v. Phosphate Export Ass'n, Inc., 393 U.S. 199,

203 (1968) (emphasis added [by this Court in

Gwaltney}).

As we have seen above (p. 12), this Court in Stee/ Co.

made clear the difference between the strict limitations of the

mootness doctrine and the standing principles that apply to

the initiation of a case. Citing United States v. W.T. Grant

Co., just as in Gwaltney, the Court approved the

government’s contention that there is a presumption "of

{future} injury when the defendant has voluntarily ceased its

illegal activity in response to litigation." 118 S. Ct. at 1019.

Since plaintiffs here alleged future violations and defendant’s

violations in fact continued after the complaint was filed, the

presumption of future injury referred to by the United States,

and recognized by the Court in both Gwaltney and Steel Co.,

applies. See also Cardinal Chemical Co. v. Morton

International, Inc., 508 U.S. 83, 98 (1993) ("If a party to an

appeal suggests that the controversy has, since the rendering

of judgment below, become moot, that party bears the burden

of coming forward with the subsequent events that have

produced that alleged result"). The decision of the court of

appeals below ignores the distinction between standing and

mootness.

19

There is no evidence in the present case that makes it

"absolutely clear that the allegedly wrongful behavior could

not be reasonably expected to recur." On the contrary, a

substantial part of Laidlaw’s remedy for its violations

involved its decision to reduce the mercury content of the

waste it fed into its incinerator. 890 F. Supp. at 478, 483;

J.A. 124. Laidlaw had reduced the mercury content in the

past and subsequently increased it. J.A. 598; Pl. Ex. 131-

132; Def. Exs. 105, 144. Laidlaw could easily change its

practice again at any time in the future.

6. This Court held in Stee/ Co. that a declaratory

judgment as to liability does not support the redressability

requirement of standing where the issue of liability was not

contested (118 S. Ct. at 1018):

There being no controversy over whether

petitioner failed to file reports, or over

whether such a failure constitutes a violation,

the declaratory judgment is not only worthless

to respondent, it is seemingly worthless to all

the world.

Here, plaintiffs sought a declaratory judgment as to

liability. J.A. 8. Laidlaw’s answer denied all of allegations

in plaintiffs’ amended complaint that Laidlaw had violated

the discharge, monitoring and reporting requirements of its

permit. Amended Complaint, para. 27; Answer, para. 26.

When plaintiffs moved for partial summary judgment on all

of Laidlaw’s violations, Laidlaw opposed summary judgment

on its mercury discharge violations on the ground that the

permit was erroneous. Defendant’s Response in Opposition

to Plaintiffs’ Motion for Partial Summary Judgment, June 7,

1995, p. 3. Laidlaw argued that "most of the alleged

monitoring violations are incorrect" (ibid.) and that most of

20

the reporting violations likewise did not occur (id., p. 5). At

trial, Laidlaw continued to dispute the monitoring and

reporting violations. Tr., 7/31/95, p. 11. After trial, while

it no longer disputed the discharge violations, Laidlaw

continued to dispute most of the monitoring and reporting

violations. Defendant’s Proposed Findings of Fact and

Conclusions of Law, October 13, 1995, pp. 12-15. Thus,

defendant did not concede its mercury discharge violations

until three years after the start of the litigation and never

conceded its monitoring and reporting violations.

Contrary to the conclusion of the court of appeals, the

district court did effectively issue a declaratory judgment. It

determined that Laidlaw was liable for 489 discharge, 420

monitoring, and 503 reporting violations. 956 F. Supp. at

610, 613-621. This determination was far from worthless; it

determined that defendant had engaged in repeated, flagrant

and long-standing violation of federal law. Thus, the

decision of the court of appeals is in conflict with Steel Co.

even if Steel Co. fully applies to cases where the plaintiffs

have standing and the issue involves mootness because of the

defendant’s subsequent compliance.

7. In Gwaltney, this Court stated (484 U.S. at 67,

n. 6):

Under the Act, plaintiffs are also protected

from the suddenly repentant defendant by the

authority of the district courts to award

litigation costs "whenever the court determines

such award is appropriate." 33 U.S.C. §

1365(d). The legislative history of this

provision states explicitly that the award of

costs" should extend to plaintiffs in action

21

which result in successful abatement but do

not reach a verdict. For instance, if as a result

of a citizen proceeding and believe a verdict is

issued, a defendant abated a violation, the

court may award litigation expenses borne by

the plaintiff in prosecuting such actions." S.

Rep. No. 92-414, p. 81 (1971), 2 Leg. Hist.

1499.

The court of appeals’ decision that plaintiffs are not

entitled to attorneys’ fees is directly inconsistent with this

dictum, other decisions of this Court and decisions of nine

other circuits.

The court of appeals held that "Plaintiffs’ failure to

obtain relief on the merits of their claims precludes any

recovery of attorneys’ fees or other litigation costs because

such an award is available only to a ‘prevailing or

substantially prevailing party.’ 33 U.S.C.A. §1365(d) * * *."

App. 9a, n. 5. The court of appeals relied on this Court’s

decision in Farrar v. Hobby, 506 U.S. 103 (1992), and an

earlier decision of its own, S-/ & S-2 v. State Board of

Education, 21 F.3d 49 (1994)(en banc), in which it had held

that plaintiffs who had obtained a judgment that was

subsequently vacated because of mootness were not

prevailing parties. App. 9a, n. 5.

The court of appeals implicitly, but clearly, admitted

that its decision on attorneys’ fees was inconsistent with this

Court’s dictum in Gwaltney. It did so by prefacing its

citation to Gwaltney with "But see." App. 9a, n. 5. Such a

citation of an opinion of this Court by a court of appeals is,

to say the least, unusual. The court of appeals’ only

explanation for doing so was to note that this Court discussed

the prior language of Section 505(d) of the Act, rather than

22

the language of the 1987 amendment to Section 505(d),

which had been passed shortly before this Court’s opinion.

Thus, the court of appeals decided to ignore this Court’s

dictum in Gwaltney because it believed that the dictum was

erroneous.

This Court’s dictum in Gwaltney was not erroneous.

The legislative history of the 1987 amendment to Section

505(d) shows that the change in the language of Section

505(d) was intended merely to clarify Congress’ intent that

citizen plaintiffs not receive attorneys’ fee awards when the

plaintiffs had lost the litigation. S. Rep. No. 50, 99th Cong.,

Ist Sess. 33 (1985); S. Rep. No. 233, 98th Cong., Ist Sess.

24-25 (1983); A Legislative History of the Water Quality

Act of 1987, 100th Cong., 2d Sess., Sen. Print 144 (Nov.

1988), vol. 2, pp. 1311-1312 (remarks of Senator Chafee, the

sponsor of the legislation).* The Senate reports specifically

state that the plaintiff may prevail as the result of settlement

rather than through a court order. It equally follows that a

citizen prevails through the defendant bringing itself into

compliance with the statute.

In addition to this Court’s dictum in Gwaltney, the

decision below conflicts with other decisions of this Court.

In Hewitt v. Helms, 482 U.S. 755, 760-761 (1987), this Court

stated:

It is settled law, of course, that relief need not

4/Congress’ compiled legislative history of the 1987

amendments includes Senate Report 50 and Senate Report

233. See A Legislative History of the Water Quality Act of

1987 (Public Law 100-4) Including Public Law 97-440;

Public Law 97-117; Public Law 96-483; and Public Law 96-

148, pp. 1420-1545, 2195-2216 (November 1988).

23

be judicially decreed in order to justify a fee

award under § 1988. A lawsuit sometimes

produces voluntary action by the defendant

that affords the plaintiff all or some of the

relief he sought through a judgment - e.g., *

* * a change in conduct that redresses the

plaintiff's grievances. When that occurs, the

plaintiff is deemed to have prevailed despite

the absence of a formal judgment in his favor.

The Court went on to say that "in a declaratory judgment

action: if the defendant, under pressure of the lawsuit, alters

his conduct (or threatened conduct) towards the plaintiff that

was the basis for the suit, the plaintiff will have prevailed.

That is the proper equivalent of a judicial judgment which

would produce the same effect * * *" (emphasis in original).

Id. at 761.7

In Maher v. Gagne, 448 U.S. 122, 129 (1980), in

holding that a settlement was adequate to confer prevailing

party status, the Court quoted a Senate report that stated that

"for purposes of the award of counsel fees, parties may be

considered to have prevailed when they vindicate rights * *

* without formally obtaining relief." See S. Rep. No. 1011,

94th Cong., 2d Sess. 5 (1976). Accord Hanrahan vy.

Hampton, 446 U.S. 754, 756-757 (1979). See also H. Rep.

No. 1558, 94th Cong., 2d Sess. 7 (1976) ("Similarly, after a

complaint is filed a defendant might voluntarily cease the

5/The plaintiff in Hewitt was denied fees because the changes

in prison policies would not benefit him since he was no

longer in custody. 482 U.S. at 763. However, here, since

plaintiffs’ members continue to use the affected waters, they

— from defendant’s compliance with the Clean Water

24

unlawful practice. A court might still award fees even

though it might conclude, as a matter of equity that no

formal relief, such as an injunction, is needed”).

Moreover, the position of the Court of Appeals for the

Fourth Circuit in the decision below and S-/] & S-2 v. State

Board of Education is inconsistent with the decisions of nine

other Circuits which have been decided subsequent to this

Court’s decision in Farrar. Comfort Lake Ass'n, Inc. v.

Dresel Contracting, Inc., supra, 138 F.3d at 357-358;

Maduka v. Meissner, 114 F.3d 1240, 1241 (D.C. Cir. 1997);

Zinn by Blankenship v. Shalala, 35 F.3d 273, 274-276 (7th

Cir. 1994); Baumgartner v. Harrisburg Housing Authority, 21

F.3d 541, 546-550 (3d Cir. 1994); LaRouche v. Kezer, 20

F.3d 68, 71, n. 4 (2d Cir. 1994); Little Rock School District

v. Pulaski County Special School District, 17 F.3d 260, 263

and n. 2 (8th Cir. 1994); American Council for the Blind of

Colorado, Inc. v. Romer, 992 F.2d 249, 250 (10th Cir. 1993),

certiorari denied, 510 U.S. 864 (1993); Craig v. Gregg

County, Texas, 988 F.2d 18, 20-21 (Sth Cir. 1993); Paris v.

U.S. Department of Housing and Urban Development, 988

F.2d 236, 240-241 (list Cir. 1993); Pembroke v. Wood

County, Texas, 981 F.2d 225, 231, n. 27 (Sth Cir. 1993),

certiorari denied, 508 U.S. 973 (1993); Citizens Against Tax

Waste v. Westerville City School, 985 F.2d 255, 257-258 (6th

Cir. 1993). These decisions hold that, even if the plaintiff

has not obtained relief from the court, it is entitled to

attorneys’ fees if it has in fact obtained a significant part of

the relief requested and the litigation was a catalytic or

substantial factor in obtaining that relief.”

6/However, the courts of appeals have held that plaintiffs are

not entitled to attorneys’ fees, even if they have obtained

relief because of the litigation, if the court lacked jurisdiction

25

The decisions of the nine other Circuits are fully

consistent with this Court’s decision in Farrar. In Farrar,

the Court stated that "to qualify as a prevailing party, a civil

rights plaintiff must obtain at least some relief on the merits

of his claim." 506 U.S. at 111. However, the Court went on

to say (ibid.):

Whatever relief the plaintiff secures must

directly benefit him at the time of the

judgment or settlement. Otherwise the

judgment or settlement cannot be said to

“affec(t] the behavior of the defendant toward

the plaintiff." Only under these circumstances

can civil rights litigation effect "the material

alteration of the legal relationship of the

parties" and thereby transform the plaintiff

into a prevailing party. (citations omitted)

This is a case which was properly brought. As the

district court held and the court of appeals assumed, the

district court had jurisdiction when the case was filed.

Plaintiffs obtained relief by bringing Laidlaw into

compliance. In other words, as a result of the suit, Laidlaw

took the actions the suit was designed to effectuate. The fact

that the relief plaintiffs obtained was vacated is irrelevant,

since the vacation of the judgment occurred precisely because

the suit had been successful in obtaining Laidlaw’s

compliance with the statute.

from the start of the litigation. E.g., Lundon v. Meehan, 980

F.2d 1450, 1461-1462 (D.C. Cir. 1992); W.G. ex rel. D.G. v.

Senatore, 18 F.3d 60, 64 (2d Cir. 1994). Since the court

below assumed that plaintiffs had standing to initiate this

action (App. 7a, n. 3), these cases are inapplicable.

26

8. The decision of the court of appeals below is

of devastating consequence to citizen suits under the Clean

Water Act and other environmental statutes.

The determination that any suit must be dismissed as

moot simply because no injunctive relief issued would allow

defendants to win virtually any citizen suit by delaying the

determination as to injunctive relief long enough to allow it

to bring itself sufficiently into compliance so that irreparable

injury to the plaintiffs could no longer be shown. As this

case well illustrates, such issues as notice, standing,

preclusion and numerous other possible defenses can be used

to delay injunctive relief, even when violations are continuing

to occur, because the plaintiff's success is not yet sufficiently

clear to support an injunction. As this case also

unfortunately illustrates, resolution of liability and relief in

the district courts in Clean Water Act and other

environmental cases often takes many years.”

The decision of the court below will only encourage

defendants to take every possible step to delay resolution of

injunctive relief. The Court of Appeals for the Third Circuit

has stated (Natural Resources Defense Council, Inc. v.

Texaco Refining and Manufacturing, Inc., supra, 2 F.3d at

503-504):

A citizen suit would lose much of its

effectiveness if a defendant could avoid

7/Piaintiffs’ counsel in this litigation has a similar case

pending in the District Court for the District of New Jersey

which was filed in May 1989, and which is awaiting decision

concerning the civil penalty to be imposed after a trial in

February 1997. PIRG v. Hercules, Inc., D.N.J., Civil No. 89-

2291.

27

paying any penalties by post-complaint

compliance. If penalty claims could be

mooted, polluters would be encouraged to

"delay litigation as long as possible, knowing

that they will thereby escape liability even for

post-complaint violations, so long as violations

have ceased at the time the suit comes to

trial." Moreover, whether or not damage

claims are mooted would depend on the

vagaries of when the district court happens to

set the case for trial. We cannot embrace a

rule that would weaken the deterrent effect of

the Act by diminishing incentives for citizens

to sue and encourage dilatory tactics by

defendants. (footnotes and citations omitted)*®

Even more important, however, the decision of the

court of appeals is almost certain to lead environmental

groups to cease bringing citizen suits. It makes little sense

for citizen groups to seek to enforce the Clean Water Act and

other environmental laws when, after years of litigation, a

company that has repeatedly violated the statute for a long

period of time avoids any penalty for its violations. This

case unfortunately illustrates the problem all too well. After

six years of litigation, and, we emphasize, successful

8/A recent decision of the District Court for the District of

New Hampshire has recently gone even further by holding,

in reliance on the decision of the court of appeals in the

present case, that, even where injunctive relief has been

granted, the mootness doctrine bars a citizen suit under the

Clean Water Act for civil penalties once the violations have

ceased because the injunction assures that violations are not

likely to recur. Dubois v. U.S. Dep't of Agriculture, supra,

* 12-14.

28

litigation which led the defendant to cease its violations and

required it to pay a substantial penalty, the case has been

dismissed without any penalty being imposed for Laidlaw’s

hundreds of violations.”

The further determination of the court of appeals that,

contrary to the law in other circuits, plaintiffs are not entitled

to attorneys’ fees, would virtually assure that few citizen suits

will be brought. As again this case illustrates, enforcement

suits under the Clean Water Act and other environmental

statutes are major, complex litigation requiring substantial

resources. The expert witness’ fees of citizen-plaintiffs

customarily are at least tens of thousands of dollars. The

attorneys’ fees would be hundreds of thousands of dollars or

more if citizen-plaintiffs could compensate their attorneys.

Since citizen-plaintiffs rarely have such resources, most

citizen enforcement suits are brought on the basis of the

attorneys being compensated solely by court awards if the

suits are successful. Extremely few lawyers will be willing

to bear large costs in the form of expert witness’ fees and

their own uncompensated time only to find that their suit has

led the defendant to comply with the statute and therefore,

for this very reason, the case must be dismissed without any

award of attorneys’ fees or expenses.

In passing the provision of the Clean Water Act

providing for the payment of the attorneys’ fees and expert

9/Laidlaw did pay a penalty of $100,000 to the State. 890 F.

Supp. at 479. The district court found that the state suit did

not preclude this action largely because of the clear

inadequacy of this penalty. 890 F. Supp. at 490-498.

However, in the overwhelming majority of cases, no penalty

will be paid if the case is dismissed as moot because the

defendant has finally come into compliance.

29

witness fees of successful plaintiffs, Congress intended to

induce attorneys to be willing to bring these cases. Student

Public Interest Research Group of New Jersey v. AT&T Bell

Laboratories, 842 F.2d 1436, 1448-1449 (3d Cir. 1988).

Congress did this by providing for compensation at market

rates so that attorneys handling these cases would be

compensated, when the litigation was successful, to the same

degree as when they did other legal work. See ibid. The

decision of the Court below deeply undermines this

inducement. It means that even when the litigation is fully

successful, it will often result in no compensation to the

plaintiff's attorneys. Such a result is not only obviously

unfair but directly contrary to Congress’ intent.

Finally, the decision of the court of appeals on the

attorneys’ fees issue will affect the willingness of lawyers to

bring not only citizen suits under environmental statutes but

suits under civil rights statutes and other statutes where

Congress has provided for fee-shifting.

CONCLUSION

It is respectfully submitted that the petition for a writ

of certiorari should be granted.

Respectfully submitted,

Bruce J. Terris

Carolyn Smith Pravlik

Kathleen L. Millian

James S. Chandler, Jr.

Counsel for Petitioners

APPENDIX

la

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

FRIENDS OF THE EARTH,

INCORPORATED; CITIZENS LOCAL

ENVIRONMENTAL ACTION NETWORK,

INCORPORATED, SIERRA CLUB,

Plaintiffs-Appellees,

Vv.

LAIDLAW ENVIRONMENTAL SERVICES

(TOC), INCORPORATED,

Defendant-Appellant.

SOUTH CAROLINA CHAMBER OF

COMMERCE; ENVIRONMENTAL

MANAGEMENT ASSOCIATION OF SOUTH

CAROLINA; SOUTH CAROLINA

MANUFACTURERS ALLIANCE;

CALIFORNIA PUBLIC INTEREST

RESEARCH GROUP; FLORIDA PUBLIC

INTEREST RESEARCH GROUP; ILLINOIS

PUBLIC INTEREST RESEARCH GROUP;

MASSACHUSETTS PUBLIC INTEREST

RESEARCH GROUP; PUBLIC INTEREST

RESEARCH GROUP IN MICHIGAN;

PUBLIC INTEREST RESEARCH GROUP OF

NEW JERSEY; OHIO PUBLIC INTEREST

RESEARCH GROUP; OREGON STATE

PUBLIC INTEREST RESEARCH GROUP;

WASHINGTON PUBLIC INTEREST

RESEARCH GROUP, UNITED STATES OF

AMERICA; SOUTH CAROLINA

DEPARTMENT OF HEALTH AND

ENVIRONMENTAL CONTROL,

No. 97-1246

Amici Curiae.

lll tlt a a a ee

Pee eS ape i #

. ae ide Loess ideas deaths A

ge ey, de ld te GPE sD ow’ *

2a

FRIENDS OF THE EARTH,

INCORPORATED; CITIZENS LOCAL

ENVIRONMENTAL ACTION NETWORK,

INCORPORATED; SIERRA CLUB,

Plaintiffs-Appellees,

Vv.

LAIDLAW ENVIRONMENTAL SERVICES

(TOC), INCORPORATED,

Defendant-Appellant.

SOUTH CAROLINA CHAMBER OF

COMMERCE; ENVIRONMENTAL

MANAGEMENT ASSOCIATION OF SOUTH

CAROLINA; SOUTH CAROLINA

MANUFACTURERS ALLIANCE;

CALIFORNIA PUBLIC INTEREST

RESEARCH GROUP; FLORIDA PUBLIC

INTEREST RESEARCH GROUP; ILLINOIS

PUBLIC INTEREST RESEARCH GROUP;

MASSACHUSETTS PUBLIC INTEREST

RESEARCH GROUP; PUBLIC INTEREST

RESEARCH GROUP IN MICHIGAN;

PUBLIC INTEREST RESEARCH GROUP OF

NEW JERSEY; OHIO PUBLIC INTEREST

RESEARCH GROUP; OREGON STATE

PUBLIC INTEREST RESEARCH GROUP;

WASHINGTON PUBLIC INTEREST

RESEARCH GROUP; UNITED STATES OF

AMERICA; SOUTH CAROLINA

DEPARTMENT OF HEALTH AND

ENVIRONMENTAL CONTROL,

Amici Curiae.

eee ee ee i i OS aw wr Sr

Appeals from the United States District Court

for the District of South Carolina at Columbia.

Joseph F. Anderson, Jr., District Judge.

(CA-92-1697-3-17)

3a

Argued: March 5, 1998

Decided: July 16, 1998

Before WILKINS and HAMILTON, Circuit Judges, and

BROADWATER, United States District Judge for the

Northern District of West Virginia, sitting by designation.

Vacated and remanded by published opinion. Judge

Wilkins wrote the opinion, in which Judge Hamilton and

Judge Broadwater joined.

COUNSEL

ARGUED: Bruce J. Terris, TERRIS, PRAVLIK &

WAGNER, Washington, D.C., for Appellants. Donald Alan

Cockrill, OGLETREE, DEAKINS, NASH, SMOAK &

STEWART, P.C., Greenville, South Carolina, for Appellee.

ON BRIEF: Carolyn Smith Pravlik, TERRIS, PRAVLIK &

WAGNER, Washington, D.C.; James S. Chandler, Jr.,

SOUTH CAROLINA ENVIRONMENTAL LAW PROJECT,

Pawleys Island, South Carolina, for Appellants. Kristofer K.

Strasser, Jack D. Todd, OGLETREE, DEAKINS, NASH,

SMOAK & STEWART, P.C., Greenville, South Carolina for

Appellee. Deborah Ann Hottel, MCNAIR LAW FIRM, P.A.,

Columbia, South Carolina; Thomas S. Mullikin, MULLIKIN

LAW FIRM, Camden, South Carolina, for Amici Curiae

Chamber of Commerce, et al. Charles C. Caldart, David A.

Nicholas, NATIONAL ENVIRONMENTAL LAW CENTER,

Boston, Massachusetts, for Amici Curiae California

4a

Public Interest, et al. Lois J. Schiffer, Assistant Attorney

General, James F. Simon, Deputy Assistant Attorney General,

Martin W. Matzen, Thomas A. Mariani, Jr., Julie B. Kaplan,

‘UNITED STATES DEPARTMENT OF JUSTICE,

Washington, D.C.; Susan Lepow, Associate General Counsel,

Richard Witt, Office of General Counsel, David Drelich,

Senior Attorney, Office of Enforcement and Compliance

Assurance, UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY, Washington, D.C., for Amicus

Curiae United States. Carlisle Roberts, Jr., Samuel L.

Finklea, III, William A. Ready, III, SOUTH CAROLINA

DEPARTMENT OF HEALTH AND ENVIRONMENTAL

CONTROL, Columbia, South Carolina, for Amicus Curiae

Department of Health.

OPINION

WILKINS, Circuit Judge:

Plaintiffs Friends of the Earth, Inc. (FOE), Citizens Local

Environmental Action Network, Inc. (CLEAN), and Sierra

Club appeal an order of the district court penalizing Laidlaw

Environmental Services (*TOC), Inc. (Laidlaw) for violations

of a National Pollutant Discharge Elimination System

(NPDES) permit, arguing that the district court abused its

discretion by imposing what Plaintiffs assert was an

inadequate penalty. Laidlaw cross appeals, claiming, inter

alia, that Plaintiffs lacked standing to institute this action

because they suffered no injury in fact and that this suit

should have been barred because the South Carolina

Department of Health and Environmental Control (DHEC)

diligently prosecuted a prior action regarding the same

Sa

violations, see 33 U.S.C.A. § 1365(b)(1)(B) (West 1986).

We conclude that this action is now moot; accordingly, we

vacate the order of the district court and remand with

instructions to dismiss.

I.

Plaintiffs brought this enforcement action against Laidlaw’

pursuant to the citizen-suit provision of the Federal Water

Pollution Control Act, see 33 U.S.C.A. § 1365(a)(1) (West

1986 & Supp. 1998), alleging ongoing violations by Laidlaw

of an NPDES permit and seeking imposition of monetary

penalties as well as declaratory and injunctive relief and

attorneys’ fees and costs. After a seven-day hearing, the

district court ruled that the prior suit by DHEC that Laidlaw

alleged barred the current action had not been “diligently

prosecuted" within the meaning of § 1365(b)(1)(B)’ and

therefore would not serve to bar present suit. See Friends of

the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 890 F.

Supp. 470, 498 (D.S.C. 1995). Following a bench trial, the

district court found that Laidlaw had committed numerous

permit violations and imposed a penalty of $405,800. See

Friends of the Earth, Inc. v. Laidlaw Envil. Servs. (TOC),

Inc., 956 F. Supp. 588, 600-01, 610 (D.S.C. 1997).

However, because the court found that Laidlaw’s violations

'FOE and CLEAN initiated the suit, and Sierra Club

subsequently joined as an additional plaintiff. See Fed. R.

Civ. P. 21.

*Section 1365(b)(1)(B) provides that a citizen suit under the

Federal Water Pollution Control Act may not be commenced

when the "State has commenced and is diligently prosecuting

a civil ... action in a court of the ... State to require

compliance." 33 U.S.C.A. §1365(b)(1)(B).

6a

had not harmed the environment and that Laidlaw had been

in substantial compliance for several years at the time of the

issuance of its final order, the court denied Plaintiffs’ request

for declaratory and injunctive relief. See id at 611. Ina

separate order, the court stayed the time for a petition for

attorney’s fees until the time for appeal had expired or, if

either party appealed, until the appeal was resolved. This

appeal followed.

Il.

The Constitution provides that "[t]he judicial Power"

of the federal courts of the United States extends only to

specified "Cases" and "Controversies." U.S. Const. art. III,

§ 2, cl. 1; see In re Pruett, 133 F.3d 275, 278 (4th Cir.

1997). "The doctrine of standing has always been an

essential component of [the] case or controversy requirement

of federal jurisdiction." Marshall v. Meadows, 105 F.3d 904,

906 (4th Cir. 1997). In order to have standing, a plaintiff

must have suffered an actual or threatened injury in fact; the

injury must have been caused by the defendant’s complained-

of conduct; and the injury must be redressable by the relief

sought. See Steel Co. v. Citizens for a Better Env't, 118 S.

Ct. 1003, 1016-17 (1998). Moreover, these elements must

continue to exist at every stage of review, not merely at the

time of the filing of the complaint. See Arizonans for

Official English v. Arizona, 117 S. Ct. 1055, 1068 (1997);

Suarez Corp. Indus v. McGraw, 125 F.3d 222, 228 (4th Cir.

1997). Otherwise, the action becomes moot. See United

States Parole Comm'n v. Geraghty, 445 U.S. 338, 397 (1980)

(explaining that mootness has been described as "the doctrine

of standing set in a time frame: The requisite personal

interest that must exist at the commencement of the litigation

(standing) must continue throughout its existence (mootness)"

(internal quotation marks omitted)). The continued presence

7a

of these elements ensures that the plaintiff has "such a

personal stake in the outcome of the controversy as to assure

that concrete adverseness which sharpens the presentation of

issues." Baker v. Carr, 369 U.S. 186, 204 (1962).

Here, we focus on the continued existence of the third

element, redressability. | Because Plaintiffs have not

appealed the denial of declaratory and injunctive relief, the

only potential relief that may be available to redress their

claimed injuries is the civil penalty imposed upon Laidlaw,

which would be paid to the United States Treasury. See

Atlantic States Legal Found., Inc. v. Tyson Foods, Inc., 897

F.2d 1128, 1131 n.5 (11th Cir. 1990). Such penalties,

however, cannot redress any injury suffered by a citizen

plaintiff. See Steel Co., 118 S. Ct. at 1018-19.

In Steel Co., the Supreme Court held that a plaintiff lacked

standing to prosecute a private enforcement action under the

*Laidlaw claims that Plaintiffs were never injured by its

permit violations because the violations caused no harm to

the environment. Laidlaw also asserts that even if Plaintiffs

had been injured by the violations in the past, they no longer

have any stake in prosecuting this action because Laidlaw has

been in compliance with its permit for several years. For

purposes of this appeal, we assume without deciding that

Plaintiffs had standing to initiate this action and have proven

a continuous injury in fact. See Arizonans for Official

English, 117 S. Ct. at 1068 (deciding the case on the basis of

mootness without first determining whether appellants had

"standing to appeal because the former question, like the

latter, goes to the Article III jurisdiction of this Court and the

courts below, not to the merits of the case").

8a

citizen-suit provision of the Emergency Planning and

Community Right-To-Know Act of 1986, see 42 U.S.C.A. §

11046(a)(1) (West 1995), because the relief requested could

not redress the injury plaintiff had allegedly suffered. See

Steel Co., 118 S. Ct. at 1017-20. In particular, the Court

noted that any civil penalties imposed would be payable to

the United States Treasury and not to the plaintiff and

therefore that the penalties would not benefit the plaintiff.

See id. at 1018-19. The Court reasoned that

although a suitor may derive great comfort

and joy from the fact that the United States

Treasury is not cheated, that a wrongdoer get

his just deserts, or that the nation’s laws are

faithfully enforced, that psychic satisfaction is

not an acceptable Article III] remedy because

it does not redress a cognizable Article III

injury.

Id. at 1019. Applying the reasoning of Steel Co., we

conclude that this action is moot because the only remedy

*Prior to Stee! Co., which was decided after the district court

rendered its decision in the case at bar, this court had held

that because "penalties can be an important deterren(t] against

future violation," they could redress a private plaintiff's

injury from violations even though the penalties are not paid

to the plaintiff. Sierra Club v. Simkins Indus., Inc., 847 F.2d

1109, 1113 (4th Cir. 1988). Because Steel Co., constitutes "a

superseding contrary decision of the Supreme Court," we are

required to follow it. Hoffman v. Hunt, 126 F.3d 575, 584

(4th Cir. 1997) (internal quotation marks omitted), cert.

denied, 66 U.S.L.W. __ (U.S. May 26, 1998) (No. 97-

1322).

9a

currently available to Plaintiffs--civil penalties payable to the

government--would not redress any injury Plaintiffs have

suffered. We therefore vacate the order of the district court

and remand with instructions to dismiss this action.’ See

Arizonans for Official English, 117 S. Ct. at 1071.

VACATED AND REMANDED

*Plaintiffs’ failure to obtain relief on the merits of their

claims precludes any recovery of attorneys’ fees or other

litigation costs because such an award is available only to a

“prevailing or substantially prevailing party." 33 U.S.C.A.

§1365(d) (West Supp. 1998); cf Farrar v. Hobby, 506 U.S.

103, 111 (1992) (explaining that "to qualify as a prevailing

party, a civil rights plaintiff must obtain at least some relief

on the merits of his claim"); S-] & S-2 v. State Bd. of Educ.,

21 F.3d 49, 51 (4th Cir. 1994) (en banc) (per curiam)

(adopting the dissenting opinion reported at 6 F.3d 160, 168-

72 (4th Cir. 1993), wherein Judge Wilkinson concluded that

Farrar dictates that civil rights plaintiffs who obtained a

judgment against a defendant that was subsequently vacated

by this court on mootness grounds were not "prevailing

part[ies]" entitled to an award of litigation costs). But see

Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc.,

484 U.S. 49, 67 n.6 (1987) (citing 1971 legislative history for

the proposition that an award of litigation costs could be

allowed under §1365(d) when a case becomes moot because

the defendant violator voluntarily came into compliance with

the law, but not discussing the 1987 amendment to §1365(d)

requiring a plaintiff to be a "prevailing or substantially

prevailing party" to receive an award of litigation costs).

10a

STATUTES INVOLVED

The following are the relevant statutory provisions of the

Federal Water Pollution Control Act:

33 U.S.C. 1365:

§ 1365. Citizen suits

(a) Authorization; jurisdiction

Except as provided in subsection (b) of this section and

section 1319(g)(6) of this title, any citizen may commence a

civil action on his own behalf--

(1) against any person including (i) the United States,

and (ii) any other governmental instrumentality or agency to

the extent permitted by the eleventh amendment to the

Constitution) who is alleged to be in violation of (A) an

effluent standard or limitation under this chapter or (B) an

order issued by the Administrator or a State with respect to

such a standard or limitation, * * *.

* * *

The district courts shall have jurisdiction, without regard to

the amount in controversy or the citizenship of the parties, to

enforce such an effluent standard or limitation, or such an

order, or to order the Administrator to perform such act or

duty, as the case may be, and to apply any appropriate civil

penalties under section 1319(d) of this title.

(d) Litigation Costs. ;

The court, in issuing any final order in any action brought

pursuant to this section, may award costs of litigation

lla

(including reasonable attorney and expert witness fees) to any

prevailing or substantially prevailing party, whenever the

court determines such award is appropriate. * * *

(g)"Citizen" defined.

For the purposes of this section the term "citizen"

means a person or persons having an interest which is or may

be adversely affected.

33 U.S.C. 1319(D):

(d) Civil penalties; factors considered in determining

amount.

Any person who violates section 1311, 1312, 1316,

1317, 1318, 1328, or 1345 of this title, or any permit

condition or limitation implementing any of such sections in

a permit issued under section 1342 of this title by the

Administrator, or by a State, or in a permit issued under

section 1344 of this title by a State, or any requirement

imposed in a pretreatment program approved under section

1342(a)(3) or 1342(b)(8) of this title, and any person who

violates any order issued by the Administrator under

subsection (a) of this section, shall be subject to a civil

penalty not to exceed $25,000 per day for each violation. In

determining the amount of a civil penalty the court shall

consider the seriousness of the violation or violations, the

economic benefit (if any) resulting from the violation, any

history of such violations, any good-faith efforts to comply

with the applicable requirements, the economic impact of the

penalty or the violator, and such other matters as justice may

require. * * *

12a

Nos. 97-1246 and 97-1261

IN THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Friends of the Earth, Inc., Citizens Local

Environmental Action Network, Inc.,

and Sierra Club

Plaintiffs-Appellants,

V.

Laidlaw Environmental Services (TOC), Inc.,

Defendant-Appellee.

ON APPEAL FROM THE UNITED STATES DISTRICT

COURT FOR THE DISTRICT OF SOUTH CAROLINA,

COLUMBIA DIVISION

SUPPLEMENTAL BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE

IN SUPPORT OF PLAINTIFFS-APPELLANTS

Lois J. Schiffer

er Ato’ 5

l3a

JAMES F. SIMON

i tt eneral

GREER GOLDMAN

DAVID C. SHILTON

MICHAEL E. WALL

Attorneys, Department of Justice

Environment & Natural Resources

Division

P.O. Box 4390

Washington, DC 20044-4390

(202) 514-0424

l4a

TABLE OF CONTENTS

, | gf QrewerrvrrrrrrirrT cir il

I GE ED ooo cade esencetercevesesees l

Interest of the United States ...............0205. 2

gf TTT TTR ee Te 2

ere ee rere aa eae ee 3

Laidlaw’s Post-Complaint Compliance Is Not

Relevant to FOE’s Standing, Because Standing Is

Evaluated Based on the Facts at the Time of the

GED wn ck eceendccenceeeeeeasenes 3

Standing Turns on the Facts as They Existed at the

Time of the Complaint, While Post-Complaint

Factual Developments Go to Mootness ....... 3

Laidlaw’s Post-Complaint Compliance Is Irrelevant

EE Gh bade bere ede aee sass 6

The Issuance of the 1993 and 1994 Permits Did Not

Necessarily Moot This Case ............... 7

A Defendant’s Voluntary, Post-Complaint Cessation

of Illegal Activity Does Not Moot a Case Unless

the Defendant Proves That the Wrongful Behavior

Could Not Reasonably Be Expected to Recur ... 7

The Defendant Carries the Burden of Demonstrating

that Post-Complaint Compliance Moots a Plaintiff's

Se au Peds eee Reta a ehehen ees 7

lSa

Mere “Protestations of Repentance and Reform” Do

Not Demonstrate That A Controversy Is Moot .. 9

The Denial of An Injunction Is Not Equivalent to A

Factual Finding that the Controversy Is Moot .. 10

Both An Injunction Against Future Violations And

An Award of Civil Penalties May Redress Injuries

From Threatened Future Violations ......... 1]

os er 2 ee aera. et 15

16a

TABLE OF AUTHORITIES

FEDERAL CASES

Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975) .. 14

Allen v. Wright, 468 U.S. 737, 104 S. Ct. 3315 (1984) 4,5

rican | d te v. Envi tal

Protection Agency, 115 F.3d 979 (D.C. Cir. 1997) ..... 8

Arizonans for Official English v. Arizona, 117 S. Ct. 1055

reer rrr rrT TTT te Te Tree 5

Atlantic Stat al Foundation v. St ie ti :

Tt A | es errr reer Tree 14

Atlantic States Legal Foundation v. Tyson Foods, Inc., 897

Fk. 5. 1. | reer ee 14

Bell v. Hood, 327 U.S. 678 (1946) .............. 11

Bender v. Williamsport Area School District, 475 U.S. 534

DE tence hinadeesad dc ceeded CORO RE EON Oe 5

Binderup v. Pathe Exchange. Inc., 263 U.S. 291 (1923) 11

Burke v. Barnes, 479 U.S. 361, 107 S. Ct. 734 (1987) .. 6

Cardinal Chemical Co. v. Morton International, Inc., 508

Cf ara ere re. Tee 7

Carr v. Alta Verde Industries, Inc., 931 F.2d 1055 (Sth Cir.

Pt cacuancans Rha £6660 b ooh Oke Oe eS 4

Che e Bay Foundati _ Vv. Gwaltn ithfiel

Lid., 890 F.2d 690 (4th Cir. 1989) ................ 8

City of Mesquite v. Aladdins Castle, Inc., 455 U.S. 283

DT tet ecetenensceeéeedeaeceees 8, 10

Comfort Associati Vv. | Contracti .

So ae ee GE EE ce cccesenesecesecs 14

County of Riverside v. McLaughlin, 500 U.S. 44 (1991) 4, 5

Diamond v. Charles, 476 U.S. 54 (1986) ........... 5

Flast v. Cohen, 392 U.S. 83 (1968) ............... 3

Friends of the Earth v. Laidlaw, 956 F. Supp 588 (D.S.C.

PPR PPT eT TTT TUT TTT Te 6, 10

Gwaltney of Smithfield v. Chesapeake Bay Foundation, 484

17a

Ulinois Central R.R. Co. v. Adams, 180 U.S. 28 (1901) 11

Lewis v. Continental Bank Corp., 494 U.S. 472 (1990) .. 4

Los Angeles County v. Davis, 440 U.S. 625 (1979) .... 4

rn nae ee 904 US. 555 (1992) . 3,4

Vv lokai

Inc., 891 F. Supp. 1389 (D. cone 1995) PSOE rE 15

Natura Refini

& Marketing, Inc., 2 F.3d 493 (3d Cir nn geese 8, 14

O'Shea v. Littleton, 414 U.S. 488 (1974) Dl a os 4

Pawt Vv Vv ;

807 F.2d 1089 (Ist Cir. 1986) .................. 15

Save Our Bays and Beaches v. City and County of

Honolulu, 904 F. Supp. 1098 (D. Haw. 1994). ....... 15

Smith v. Sperling, 354 U.S. 91 (1957) ............. 4

Spencer v. Kemna, 118 S. Ct. 978 (1998) ......... 5,6

St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S.

i ncae 4

tee v. Citi tter Environment

118 S. Ce. 1003 (1998) ........... 2, 6, 7, 9, 11, 12, 13

Tull v. United States, 481 U.S. 412 (1987) ....... 12, 13

United States Parole Commission v. Geraghty, 445 U.S.

REI Se Ss ae aa 6, 7

United States v. Concentrated Phosphate Export

Association, 393 U.S. 199(1968) ............ 8,9, 11

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

PLOT a eee roa eh irs son's 6d esse ene 8, 10, 11

Weinberger v. Romero-Barcelo, 456 U.S. 305 (1982) 12, 13

FEDERAL STATUTES

Clean Water Act

PRE Tae Be 0 2

PP Us DP UPUUED ccc ceecccccececcece 14

18a

MISCELLANEOUS

C. Wright, A. Miller & E. Cooper, Federal Practice and

Procedure 93533, at 211 (2d ed. 1984)

19a

IN THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Nos. 97-1246 and 97-1261

Friends of the Earth, Inc., Citizens Local

Environmental Action Network, Inc.,

and Sierra Club

Plaintiffs-Appellants

v.

Laidlaw Environmental Services (TOC), Inc.,

Defendant-Appellee

ON APPEAL FROM THE UNITED STATES DISTRICT

COURT FOR THE DISTRICT OF SOUTH CAROLINA,

COLUMBIA DIVISION

SUPPLEMENTAL BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE IN SUPPORT OF PLAINTIFFS-

APPELLANTS

20a

STATEMENT OF ISSUES

I. Whether a defendant’s post-complaint compliance

with a Clean Water Act discharge permit deprives a

citizen plaintiff of standing to enforce violations that

were ongoing when the plaintiff filed the complaint?

II. Whether, in an action to enforce a Clean Water Act

discharge permit, the expiration of that permit and the

issuance of a new permit necessarily moots the citizen

plaintiff's claim? .

INTEREST OF THE UNITED STATES

The United States, with the states, implements and has

the lead role in enforcing the Clean Water Act (“Act” or

“CWA”), 33 U.S.C. § 1251 et_seg. Congress also has

authorized affected persons to enforce many of the Act’s

requirements. Such “citizen suits” allow persons who are or

may be injured by violations to protect their health,

environmental, and other interests, and encourage compliance

with the Act. Because resource limitations do not allow the

government to pursue all violations that warrant enforcement,

the United States has a strong interest in ensuring that

citizens may enforce the Act to the full extent intended by

Congress and allowed by the Constitution.

SUMMARY OF ARGUMENT

The recent decision in Steel Company v. Citizens for

A Better Environment, 118 S. Ct. 1003 (1998), does not

undermine standing in this case. A defendant’s post-

complaint compliance with the law cannot deprive a citizen

2la

plaintiff of standing, because under a long line of

unquestioned precedent, standing depends upon the facts that

existed when the complaint was filed. While a case or

controversy must exist at all stages in the litigation, courts

evaluate post-complaint changes in fact and law through the

mootness doctrine, rather than by revisiting standing.

The United States takes no position on whether the

particular facts of this case render the controversy moot, but

notes that, as a rule, voluntary, post-complaint cessation of

illegal activity does not render a claim moot unless the

defendant carries its “heavy burden” of proving that the post-

complaint change makes “absolutely clear that the allegedly

wrongful behavior could not reasonably be expected to

recur.” Gwaltney of Smithfield, Ltd. v. Chesapeake Bay

Found., 484 U.S. 49, 66 (1987) (quoting United States v.

Concentrated Phosphate Export Ass’n, 393 U.S. 199, 203

(1968)). One factor a court should consider in deciding

whether the defendant has met that burden is whether the

defendant would have a financial incentive to resume its

illegal conduct. The mere fact that the district court decided

not to issue an injunction does not demonstrate that this case

is moot. Both injunctive relief and civil penalties may

redress the prospect of future violations through specific

deterrence. Thus, prayers for both types of relief may

support Article III jurisdiction, even where a court denies one

or both forms of relief on the merits.

Article III limits the judicial power of federal courts

to “cases” or “controversies.” This requirement serves to

“limit the business of the federal courts to questions

presented in an adversary context and in a form historically

viewed as capable of resolution through the judicial process”

and also “to assure that the federal courts will not intrude

into areas committed to other branches of government.” Flast

v. Cohen, 392 U.S. 83, 95 (1968). One aspect of the case-or-

controversy requirement is the doctrine of standing, under

which a plaintiff seeking to invoke the jurisdiction of a

federal court must show either a present or threatened future

“injury in fact” that is “causal[ly] connect[ed]” to the

challenged conduct and that “likely” would be redressed by

a favorable decision. Lujan v. Defenders of Wildlife, 504

U.S. 555, 560 (1992) (emphasis omitted).

The facts that must be alleged, supported, and

ultimately proven to support standing are the facts as they

existed at the time the plaintiff filed its complaint and sought

to trigger the court’s jurisdiction. See, e.g., Lujan., 504 U.S.

at 569 n.4; County of Riverside v. McLaughlin, 500 U.S. 44,

50-51 (1991); Gwaltney of Smithfield v. Chesapeake Bay

23a

Found., 484 U.S. 49, 69 (1987) (Scalia, J., concurring in part

and in the judgement); cf. Allen v. Wright, 468 U.S. 737,

751-52 (1984) (“In most cases the standing question can be

answered chiefly by comparing the allegations of the

particular complaint to those made in prior standing cases.”

(emphasis added)); O’Shea v. Littleton, 414 U.S. 488, 496

(1974) (holding that plaintiffs lacked standing where

“[nJeither the complaint nor respondents’ counsel suggested

that any of the named plaintiffs at the time the complaint was

filed were themselves serving an allegedly illegal sentence or

were on trial or awaiting trial before petitioners.” (emphasis

added)); Smith v. Sperling, 354 U.S. 91, 93 n. 1 (1957); St.

Paul Mercury Indemnity Co.

v. Red Cab Co., 303 U.S. 283,

289-90 (1938).

The Article III case-or-controversy requirement subsists

“through all stages of federal judicial proceedings,” Lewis v.

Continental Bank Corp., 494 U.S. 472, 477, 478 (1990)

(internal quote marks omitted), but post-complaint changes in

the facts or law that may eliminate any “case” or

“controversy” are uniformly assessed through the lens of

mootness rather than standing. See, generally Los Angeles

County v. Davis, 440 U.S. 625, 631 (1979) (“{JJurisdiction,

property acquired, may abate if the case becomes moot ***

(internal quote marks and citations omitted)); Carr v. Alta

Verde Industries. Inc. 931 F.2d 1055, 1061 (Sth Cir. 1991);

13A C. Wright, A. Miller & E. Cooper, Federal Practice and

Procedure 93533, at 211 (2d ed. 1984). The cases that

evaluate post-complaint developments under the mootness

rubric are numerous and unquestioned. See, e.g., Spencer v.

Kemna, 118 S. Ct. 978, 983 (1998). For example, in County

of Riverside v. McLaughlin, 500 U.S. 44, 50-52 (1991), the

Court held that the plaintiff had standing even though, as a

result of post-complaint developments, the case was moot.

24a

Likewise, in Arizonans for Official English v. Arizona, 117

S. Ct. 1055 (1997), a state employee sued the state to

challenge a state law that she believed required her to speak

English at work. While the case was on appeal, the plaintiff

left state employment, and the Supreme Court determined

that her challenge was “moot.” Id, at 1068-69.' And in

Gwaltney, after addressing standing, the Supreme Court

invoked the mootness doctrine as the right tool for resolving

the defendant’s concern that citizens should not “press their

suit to conclusion” where the “allegations of ongoing

noncompliance become false at some later point in the

litigation.” 484 U.S. at 66-67.

Mootness and standing have common origins and related

contours. Allen v. Wright, 468 U.S. 737, 750, 104 S.

Ct. 3315, 3324 (1984). The Supreme Court has on occasion

described mootness “as the doctrine of standing set in a time

25a

frame.’” Arizonans for Official English, 117 S. Ct. at 1068-

69 (quoting United States Parole Comm’n v. Geraghty,

445 U.S. 388, 397 (1980)).' But while the contours of these

two doctrines sometimes overlap, the Supreme Court has

consistently inquired whether post-complaint changes deprive

the court of jurisdiction through the “mootness,” not the

“standing,” lens. Steel Company specifically recognized and

implicitly reaffirmed this distinction, in holding that an

exception to the mootness doctrine did not apply to the

standing inquiry. See 118 S. Ct. at 1020; see also Burke v.

Barnes, 479 U.S. 361, 364 n.*, 107S. Ct. 734, 736 n.*

(1987) (“We reject respondents’ argument that the questions

of mootness and standing are necessarily intertwined.”).

B. —Laidlaw’s_Post-Complaint Compliance Is

Irrelevant to FOE’s Standi

FOE did not “lose standing” once Laidlaw came into

compliance with the company’s 1986 permit. As discussed

supra, a plaintiff's standing depends on the facts that existed

when the plaintiff filed its complaint. FOE filed its

complaint on June 12, 1992, and joined Sierra Club as a

plaintiff on November 19, 1992. 956 F. Supp. at 592.

Laidlaw violated its permit limits for mercury fourteen times

in June 1992, including on the very day the complaint was

filed and on several subsequent days during that month, and

l The Supreme Court sometimes even has incorporated

the tripartite standing test into the mootness inquiry. See,

e.g., Spencer v. Kemna, 118 S. Ct. 978, 983 (1998) (Scalia,

J.). Compare United States Parole Comm’n v. Geraghty, 445

U.S. 388, 403 (1980) (using a test specific to the mootness

inquiry).

26a

violated its mercury limit on at least six more days in the

following four months. Id. at 621. Laidlaw substantially

reduced its violations shortly after FOE sued, see id. at 611,

but did not consistently comply with its permit limit for

mercury discharges until 1995. Ibid. Thus, Laidlaw did not

“come into compliance with the 1986 permit” until after FOE

sued, and Laidlaw’s post-complaint compliance is inapposite

to FOE’s standing. Put another way, if FOE had standing on

the facts as they existed when FOE filed its complaint, no

subsequent change in the facts — not even Laidlaw’s post-

complaint compliance — could eliminate that standing. The

Steel Company Court’s recognition of the difference between

mootness and standing, see 118 S. Ct. at 1020, buttresses this

conclusion.

Il. The ance of and 1994 Permits Did

Not Necessarily Moot This Cas

A. A Defendant’s V t-

Moot a Case Unless the Defendant Proves

That the W 1 vi t

Re t

1. The Defendant Carries the Burden

-

~

A case becomes moot “‘when the issues presented are

no longer “live” or the parties lack a legally cognizable

interest in the outcome.”” United States Parole Commission

v. Geraghty, 445 U.S. 388, 395-96 (1980) (quoting Powell v.

McCormack, 395 U.S. 486, 496 (1969)). The mootness

doctrine, like that of standing, derives from the Article III

>

Fd

#N

/ '

tel

27a

case-or-controversy requirement, but the two are not the

same:

[W)hile the initial burden of establishing the trial

court's jurisdiction rests on the party invoking that

jurisdiction, once that burden has been met courts are

entitled to presume, absent further information, that

jurisdiction continues. If a party to an appeal

Suggests that the controversy has, since the rendering

of judgment below, become moot, that party bears the

burden of coming forward with the subsequent events

that have produced that alleged result.

Cardinal Chemical Co. v. Morton Int’L., Inc., 508 U.S. 83, 98

(1993).

In keeping with this shifted burden, the Supreme

Court long has recognized that a defendant who voluntarily

halts challenged conduct only after being sued generally does

not thereby “deprive the tribunal of power to hear and

determine the case.” United States v. W. T. Grant Co., 345

U.S. 629, 632 (1953); accord City of Mesquite v. Aladdin’s

Castle, Inc., 455 U.S. 283, 289 (1982): United States v.

n ’n, 393 U.S. 199, 203

(1968). Rather, a defendant who seeks to moot a lawsuit by

voluntarily halting challenged activity only after being sued

must carry the “heavy burden” of showing “that it is

absolutely clear that the allegedly wrongful behavior could

not reasonably be expected to recur.” Gwaltney, 484 U.S. at

66 (emphasis in original; internal quote marks omitted);

accord, e.g., Chesapeake Bay Foundation, Inc. v. Gwaltney

of Smithfield, Ltd., 890 F.2d 690, 697 (4th Cir. 1989);

American Iron & Steel Inst. v. Environmental Protection

Agency, 115 F.3d 979, 1007 (D.C. Cir. 1997). This rule

28a

“protects plaintiffs from defendants who seek to evade

sanction by predictable protestations of repentance and

a reform,” Gwaltney, 484 U.S. at 67, while promoting

judicial economy and fairness. As the Third Circuit has

explained:

A citizen suit would lose much of its effectiveness if

a defendant could avoid paying any penalties by

post-complaint compliance. *** [PJolluters would be

encouraged to delay litigation as long as possible,

knowing that they will thereby escape liability even

for post-complaint violations, so long as violations

have ceased at the time the suit comes to trial.

Moreover, whether or not damage claims are mooted

would depend on the vagaries of when the district

court happens to set the case for trial.

Natural Resource Defense Council v. Texaco Ref. '

Inc., 2 F.3d 493, 503 (3d Cir. 1993) (citations and quotations

omitted).

Steel Company supports application of the “voluntary

cessation” mootness rule to this case. The Steel Company

Court declined to extend the “voluntary cessation” rule to

support a claim of standing where the plaintiff did not allege

any likelihood of future violations. See 118 S. Ct. at 1020.

But Steel Company preserved without questioning the long-

standing application of the voluntary cessation rule “to refute

the assertion of mootness by a defendant who, when sued in

a complaint that alleges present or threatened injury, ceases

the complained-of activity.” Ibid. This is such a case.

The question whether Laidlaw’s present compliance

moots any controversy with respect to future violations turns

on two subsidiary questions: First, is Laidlaw’s post

29a

-complaint compliance attributable solely to a permanent

change in the law (i.e., the change in Laidlaw’s 1994 permit),

or did Laidlaw’s post-complaint compliance result at least in

part from Laidlaw’s “voluntary cessation” of illegal activity

after FOE sued? If “voluntary cessation” was a factor, then

the voluntary cessation doctrine applies. The United States

leaves that fact-specific inquiry to the parties. Second, if

Laidlaw’s compliance was attributable at least in part to

Laidlaw’s “voluntary cessation” of illegal activity, has

Laidlaw proved that its violations cannot reasonably be

expected to recur? If Laidlaw has not carried that burden,

this case remains “live.”

2. _ Mere “Protestations of Re c

t versy is

In evaluating whether a defendant has carried its

heavy burden of demonstrating that violations cannot

reasonably be expected to recur, one factor a court should

consider is whether the defendant would have an incentive to

resume its illegal activity — especially any economic

incentive like one the defendant may have had immediately

before the complaint — if the case (and the accompanying

imminent threat of sanctions) were dismissed. Cf.

Concentrated Phosphate Export Ass’n, 393 U.S. at 202-03

(holding that the defendants’ mere assertion that the prior

illegal practice was no longer economical did not suffice to

moot an enforcement action). Where a defendant has a direct

financial incentive to resume conduct that is illegal, cessation

of illegal activity — even if accompanied by a substantial

period of compliance during the lawsuit — is unlikely to be

sufficient to make “absolutely clear” that there is “no

reasonable expectation that the wrong will be repeated.” See

Gwaltney, 484 U.S. at 66-67; see also W.T. Grant Co., 345

30a

U.S. at 632-33; cf. Gwaltney, 484 U.S. at 69 (Scalia, J.,

concurring in part and in the judgement) (“A good or lucky

day is not a state of compliance. Nor is the dubious state in

which a past effluent problem is not recurring at the moment

but the cause of that problem has not been completely and

clearly eradicated.”).

The district court’s decision not to enjoin Laidlaw

does not necessarily mean that Laidlaw had carried its burden

of proving mootness. The district court correctly recognized

that “a defendant in substantial compliance with its NPDES

permit is not required to show that there is no chance of

future permit violations in order to defeat a request for

injunctive relief.” 956 F. Supp. at 611. Abandonment of

illegal activity “is an important factor bearing on the question

whether a court should exercise its power to enjoin the

defendant from renewing the practice, but that is a matter

relating to the exercise rather than the existence of judicial

power.” City of Mesquite, 455 U.S. at 289. Thus, even in

cases in which a court determines that an injunction is

inappropriate, claims regarding future violations generally are

not mooted by a defendant’s “voluntary cessation” of illegal

activity. See Concentrated Phosphate Export Ass'n, 393 U.S.

at 203; W.T. Grant Co., 345 U.S. at 633-34, 635-36 (“We

conclude that, although the actions were not moot, no abuse

of discretion has been demonstrated in the trial court’s refusal

to award injunctive relief.”); see also Illinois Central R.R.

Co. v. Adams, 180 U.S. 28, 30-32 (1901) (reasoning that the

court had jurisdiction, despite the respondent’s argument that

3la

“the very things the bill was filed to prevent are

accomplished facts, and the [petitioner] cannot be injured,”

because those “accomplished facts” went to the merits rather

than to jurisdiction). Steel Company reaffirmed that Article

Ill redressability turns on the relief the plaintiff requests —

unless the request is wholly frivolous — even if the court

ultimately dismisses the case on the merits. 118 S. Ct. at

1010; see also Bell v. Hood, 327 U.S. 678, 682-83 (1946);

Binderup v._Pathe Exchange, Inc., 263 U.S. 291, 305-06

(1923).

B Both An Injunction Against Future

Violati — -

Seen ek hen heen of Ont alties May Redress Injuries F

Both injunctions and civil penalties deter threatened

future violations by a defendant, and thereby redress injuries

from those threatened future violations. The Steel Company

Court recently reiterated that the deterrent effect of an order

regarding future compliance satisfies the Article III standing

requirement for redressability where the plaintiff alleges a

continuing violation or the imminence of a future violation.

Steel Co., 118 S. Ct. at 1019. Thus, if FOE has an injury

from the threat of Laidlaw’s future violations, that injury

would be redressed by an injunction against Laidlaw.

Civil penalties also would redress injuries from

threatened future violations, by deterring those future

violations. As the Supreme Court has noted, injunctions are

not the only means of obtaining compliance with the Clean

Water Act — penalties also can specifically deter future

violations by a defendant. Weinberger v. Romero-Barcelo,

456 U.S. 305, 314 (1982); see also Tull v. United States, 481

U.S. 412, 422-23 (1987) (citing 123 Cong. Rec. 39191

32a

(1977)) (“Congress wanted the district court to consider the

need for retribution and deterrence, in addition to restitution,

when it imposed civil penalties [under the Clean Water

Act].”). It was for this reasons that Congress empowered

district courts to “seek to deter future violations by basing the

penalty on its economic impact.” Tull, 481 U.S. at 423.

Relying on language in Steel Company, Laidlaw

argues that civil penalties cannot redress a citizen’s injuries

because penalties are paid to the Treasury and any deterrent

effect is not cognizable under Article III. See Laidlaw’s 2d

Supp. Br. 4. Laidlaw’s argument misreads Steel Company,

which stated that the plaintiff's prayer for penalties, in a

complaint that did not allege future violations, “seeks not

remediation of [plaintiff's] own injury *** but vindication of

the rule of law — the ‘undifferentiated public interest’ in

faithful execution of EPCRA.” 118 S. Ct. at 1018.

This does not suffice. Justice Stevens thinks it is

enough that respondents will be gratified by seeing

petitioner punished for its infractions and that the

punishment will deter the risk. of future harm. ees °

[SJuch a principle would make the redressability

requirement vanish. By the mere bringing of the suit,

every plaintiff demonstrates his belief that a favorable

judgment will make him happier. But although a

suitor may derive great comfort and joy from the fact

that the United States Treasury is not cheated, that a

wrongdoer gets his just deserts, or that the nation’s

laws are faithfully enforced, that psychic satisfaction

is not an acceptable Article III remedy because it does

not redress a cognizable Article III injury.

118 S. Ct. at 1018-19.

33a

This language must be read in light of Steel

Company's facts and other aspects of the opinion. The

Supreme Court explicitly decided Steel Company on the basis

that the plaintiff had not alleged a threat of future violations.

Id. at 1019, 1020. It was obvious that penalties could not

deter continuing or future violations by the defendant: There

were no continuing or future violations by the defendant to

deter. On those facts, the only deterrent effect that penalties

could have had would have been to deter violations by the

population at large — speculative violations by unknown,

unrelated persons who might never cause the plaintiffs any

injury. Consistent with longstanding principles of standing,

the Steel Company Court rejected the notion that such an

indistinct possibility satisfies the standing doctrine’ s injury-in-

fact requirement, reasoning that the “great comfort” that a

plaintiff may receive from knowing “the nation’s laws are

faithfully enforced” simply “is not an acceptable Article III

injury.” Id. at 1019.

The fact that Article III is not satisfied by the chance

that penalties may generally deter speculative violations that

have not even been alleged cannot be read as a rejection of

the concept that specific deterrence provides cognizable

redress for a plaintiff's injury from continuing or future

violations by the defendant. Steel Company specifically

reaffirmed that, “[i]f respondent had alleged a continuing

violation or the imminence of a future violation,” then

judicial relief designed to deter a future violation “would

remedy that alleged harm.” 118 S. Ct. at 1019. While the

Court made this statement in discussing injunctive relief, the

Court has always recognized that penalties and the threat of

penalties, including Clean Water Act penalties, specifical!y

deter misconduct by persons who are, or may be, penalized.

See, e.g., Tull, 481 U.S. at 423; Romero-Barcelo, 456 U.S.

at 314 (“An injunction is not the only means of ensuring

34a

compliance. The [Clean Water Act] itself, for example,

provides for fines and criminal penalties.”); accord Texaco

Refining, 2 F.3d at 503 n. 9 (“Citizens file actions primarily

to deter future violations by the named defendant and by

other potential polluters, and the imposition of penalties

significantly enhances the deterrent effect of a citizen suit.”).

If violators “faced only the prospect of an injunctive order,

they would have little incentive to shun practices of dubious

legality.” Albemarle Paper Co. v. Moody, 422 U.S. 405, 417

(1975). That is because the deterrent effect of even

injunctions depends partly on the penalties that may give

those injunctions teeth.’ Penalties specifically deter future

illegal activity by a defendant, and under Steel Company's

reasoning, specific deterrence may redress injuries caused by

the threat of a defendant’s future violations.’ Steel

Company's holding — that some possible general deterrent

effect on the world at large does not cognizably redress

injuries from past violations — does not implicitly overrule

the established law that penalties do specifically deter, or

Steel Company’s clear statement that specific deterrence is

2 Similarly, declaratory relief would specifically deter

future violations. A declaration that Laidlaw had violated the

Clean Water Act could subject it to increased penalties if it

committed violations again. 33 U.S.C. § 1319(d).

3 Indeed, this case seems to illustrate that principle:

Laidlaw did not come into compliance until faced with the

concrete prospect of penalties from the state and citizen

enforcement actions.

35a

adequate Article III redress for continuing or threatened

future violations.‘

CONCLUSION

a... defendant’s post-complaint compliance does not

deprive a citizen plaintiff of standing, because standing

depends upon the facts as they were when the complaint was

filed. Post-complaint voluntary cessation of illegal activity

moots a citizen plaintiff's claims for prospective relief only

where the defendant carries the heavy burden of proving that

the change makes absolutely clear that the wrongful behavior

could not reasonably be expected to recur.

4 Five courts of appeals have unanimously rejected the

argument that post-complaint compliance strips a federal

court of jurisdiction to hear a Clean Water Act plaintiff's

claims for civil penalties for violations that were continuing

at the time the plaintiff filed suit.

See Comfort Lake Assoc...

af gy yr 138 F.3d 351, 356 (8th

ir Auantic States Legal Found. v._Stroh Die

Casting Co., 116 F.3d 814, 820 (7th Cir. 1997); Natural

Resource Defense Council v. Texaco Ref. & Mktg., Inc., 2

F.3d 493, 503-04 (3rd Cir. 1993); Atlantic States Legal

Found. v. Tyson Foods, Inc., 897 F.2d 1128, 1135 (11th

Cir. 1990); Pawtuxet Cove Marina, Inc. v. Ciba-Geigy,

Corp., 807 F.2d 1089, 1091 (ist Cir. 1986); see also

Molokai Chamber of Commerce v. Kukui (Molokai), Inc.,

891 F. Supp. 1389, 1406 (D. Hawaii 1995); Save Our Bays

& Beaches v. City and County of Honolulu, 904 F. Supp.

1098, 1119 (D. Haw. 1994).

90- 12-098

JUNE 1998

36a

Respectfully Submitted,

LOIS J. SCHIFFER

Assistant Attorney General

JAMES F. SIMON

Deputy Assistant Attorney General

GREER GOLDMAN

DAVID C. SHILTON

MICHAEL E. WALL

Attorneys, Department of Justice

’ Environment and Natural Resources

Division

P.O. Box 4390

Washington, D.C. 20044-4390

(202) 514-0424

* Counsel of Record

37a

No. 86-473

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1987

GWALTNEY OF SMITHFIELD, LTD.,

Petitioner,

v.

CHESAPEAKE BAY FOUNDATION, INC.,

and

NATURAL RESOURCES DEFENSE COUNCIL,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Fourth Circuit

REPLY BRIEF FOR PETITIONER

E. BARRETT PRETTYMAN, JR*

RICHARD J.M. POULSON

PATRICK M. RAHER

DAVID J. HAYES

CATHERINE JAMES LACROIX

Washington, D.C. 20004

(202) 637-5685

Counsel for Petitioner

—~ 38a 39a

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ..........--++ee05: il

REIS cccccccccesnseneseesccesesoss l

Citizen Suits Are Limited to Ongoing

WHS ccc tccccccsverecesscocees l

Jurisdictional Allegations That Turn Out To Be

Untrue Cannot Sustain A Citizen Suit ....... 12

Permitting Citizen Suits For Purely Past Violations

Would Contravene The Constitution ........ 15

CS. Cc ccoocs cen bs ebeeneeen deen 19

Permitting Citizen Suits For Purely Past Violations

Would Contravene The Constitution

1. We agree with the Solicitor General that if the citizen

suit provision were interpreted to permit citizen penalty

actions for wholly past violations, it would violate the

constitutional standing requirements of Article III. Gov. Br.

21-22 n.34. To satisfy Article III, a plaintiff must show not

only an injury to himself but also that the injury "is likely to

be redressed by a favorable decision." Simon v. Eastern

Kentucky Welfare Rights Org., 426 U.S. 26, 38 (1976). Even

if a citizen plaintiff can show that he was injured by past

40a

violations, penalties payable only to the Treasury cannot

redress those injuries to that plaintiff.

"The necessity that the plaintiff who seeks to invoke

judicial power stand to profit in some personal interest

remains an Art. III requirement.’"*' Because respondents

sued on the basis of purely past violations, App. 7a, 17a, they

could not and did ont obtain the injunction they sought

barring future violations. App. 83a. Damages are never

recoverable under the Act. Middlesex County, 453 U.S. at

18,21. The redressability requirement of Article III cannot

be satisfied by any interest in general deterrence or law

enforcement, no matter how keenly held, Diamond v.

Charles, 106 S.Ct. 1697, 1706 (1986), nor by recovery of

attorney’s fees and costs.” While it would appear that

penalties payable to the Treasury can never redress injury to

citizen plaintiffs, it is certain that at least in the case of

"citizen suits like the one at bar, seeking civil penalties for

permit violations committed entirely in the past," App. 17a,

the plaintiff does not and cannot "stand to profit in some

personal interest" sufficient to satisfy Article III. Allen v.

Wright, 468 U.S. at 766.

We also agree with the Solicitor General that permitting

citizens to seek penalties for purely past violations would

intrude upon the Executive’s responsibility to "take Care that

the Laws be faithfully executed," U.S. Const. Art. II § 3.

21Allenv. Wright, 468 U.S. 737, 766 (1984) (quoting Simon v. Eastern Kentucky

Welfare Rights Org., 426 U.S. at 39).

22id. at 1708; White v. New Hampshire Dept. of Employment Security, 455 U.S.

455, 452 (1982).

4la

Gov. Br. 21-22 n. 34” Such an interpretation would allow

any unaccountable citizen to engage in the essentially

prosecutorial function of punishing permit holders for past

— See Tull v. United States, 107 S.Ct. 1831, 1838

2. Respondents do not even address these concerns,

arguing that the constitutional issues are not before the

Court.“ Interpreting the statute as urged by Gwaltney

would indeed avoid the necessity of reaching the

constitutional issues in this case. The Court would simply

hold that Gwaltney’s motion to dismiss should have been

granted, because the citizen plaintiffs sought penalties that the

statute did not authorize. If the Court accepts respondents’

view of the statute, however, it must address and resolve the

constitutional arguments. Questions of Article III standing

can never be waived, and this Court has an obligation to

satisfy itself that the requirements of Article II] have been

met in every case before it.”

23See Brief of Amici Curiae Bethlehem Steel Corporation, et al.; Brief of Amicus

Curiae Rollins Environmental Services (NJ) Inc.

24Resp. Br. 9 n.4. Respondents do include a cursory citation to United States ex

rel. Marcus v. Hess, 317 U.S. 537 (1943), as the "full answer" to the

constitutional concerns. That case is wholly beside the point, since the statute at

issue there granted the citizen plaintiff half of any damages recovered. See id. at

540. Damages are not recoverable in citizen suits under the Clean Water Act, and

all penalties go to the Treasury.

25"*This question the court is bound to ask and answer for itself, even when not

otherwise suggested, and without respect to the relation of the parties to it.’"

Bender v. WilliamsportArea School Dist., 106 S. Ct. 1326, 1334 (1986) (quoting

MansfieldC. & L.M.R. Co. v. Swan, 111 U.S. 379, 382 (1884)).

i

42a

3. The Government recognizes that an ongoing violation is

an Article III predicate to a constitutional citizen suit, but

then suggests that Article III redressability concerns are

satisfied when the citizen plaintiff alleges that he is adversely

affected by an ongoing violation--even if the allegation turns

out to be untrue. Gov. Br. 21 n.34. This Court, however,

has repeatedly stressed that mere allegations are insufficient

to meet the requirements of Article III. The facts

establishing an Article II] case or controversy "must

affirmatively appear in the record,” and "it is not “sufficient

that jurisdiction may be inferred argumentatively from

averments in the pleadings.’"”’Here it is "undisputed" that

Gwaltney’s violations ceased before suit. App. 7a. Any

allegations to the contrary cannot be relied upon to satisfy the

redressability requirement of Article III.

Over the long run, even the Government finds its theory

untenable. As the Government puts it, jurisdiction acquired

on the basis of allegations may "abate," and the cessation of

violations may render a case "nonjusticiable." Gov. Br. 27-

28. These principles, the Government notes, "embrace core

Article III concerns." Jd. at 28. If the absence of an ongoing

violation has constitutional significance at a /ater point in the

litigation, however, it must have the same significance at the

26See, e.g.. Warthy. Seldin, 422 U.S. 490, 502 (1975) (plaintiffs "must allege and

show that they personally have been injured” (emphasis supplied); United States

v. Students Challenging Regulatory Agency Procedures,412 U.S. 669, 689 (1973)

(standing allegations “must be true and capable of proof at trial"); Los Angeles v.

Lyons, 461 U.S. 95, 107 n.8 (1983) ("It is the reality of the threat of repeated

injury that is relevant to the standing inquiry, not the plaintiff's subjective

apprehensions”) (emphasis in original).

27Bender v. Williamsport Area School Dist., 106 S.Ct. at 1334 (quoting Grace v.

American Central Ins. Co., 109 U.S. 278, 284 (1983)).

43a

outset of the litigation. The Government simp! attem

transform the plaintiff's burden of naidie on ies

violation, and thereby jurisdiction, into a burden on the

defendant to prove the absence of an ongoing violation and

the lack of jurisdiction. If one thing is clear, however, it is

that since it is the plaintiff who "is seeking relief subject to

[the court’s] supervision, it follows that he must carry

throughout the litigation the burden of showing that he is

properly in court.". McNutt v. General Motors Acceptance

Corp., 298 U.S. at 189. Respondents failed to meet that

burden.