Reply Brief — Friends of Earth v. Laidlaw Environmental Services

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IAN 19 1999

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CLER*F

Supreme Court, US |

No. 98-822

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1998

FRIENDS OF THE EARTH, et al.,

Petitioners,

Vv.

LAIDLAW ENVIRONMENTAL SERVICES (TOC), INC.,

Respondent.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Fourth Circuit

REPLY BRIEF

Bruce J. Terris*

Carolyn Smith Pravlik

Kathleen L. Millian

TERRIS, PRAVLIK &

MILLIAN, LLP

1121 12th Street, N.W.

Washington, D.C. 20005

(202) 682-2100

*Counsel of Record

James S. Chandler, Jr.

SOUTH CAROLINA

ENVIRONMENTAL LAW

PROJECT

P.O. Box 279

Pawleys Island, S.C. 29585

(843) 527-0078

Counsel for Petitioners

TABLE OF CONTENTS

REASONS FOR GRANTING THE PETITION

APPENDIX

BRIEF OF THE UNITED STATES AS AMICUS CURIAE

IN RESPONSE TO VALLEJO’S MOTION TO DISMISS

PLAINTIFF’S CIVIL PENALTY CLAIMS

AFFIDAVIT OF BRUCE J. TERRIS

il

TABLE OF CASES AND AUTHORITIES

Cases Page

Atlantic States Legal Foundation, Inc v. Eastman

Kodak Co., 933 F.2d 124 (2d Cir. 1991) ...........5.5. 3

Baumgarten v. Harrisburg Housing Authority,

yp PS ff se Brrr TT Tr Tre re ree 3

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

RO Fe Se GG COMED ccc cccvcsccanncvesveces 3

Department of Revenue v. Kurth Ranch, 511 U.S. 767

CL cL ACAD GACAROAARSDEDSEATEN OC RS CO CRS C8 5

Gwaltney of Smithfield, Ltd v. Chesapeake Bay

Foundation, Inc., 484 U.S. 49 (1987) ..........545. 1,2

Hudson v. United States, 118 S. Ct. 488 (1997) ......... 4

Lewis v. Continental Bank Corp., 494 U.S. 472

fia Lhbie shee Oe KORRREESOREEE EKO H OOS 0008 5,6

Little Rock School District v. Pulaski County

Special School District, 17 F.3d 260 (8th Cir. 1994) ..... 3

Pembroke v. Wood County, 981 F.2d 225

(5th Cir. 1993), certiorari denied, 508 U.S. 973

rrr rr rrr eT Teer eee eT TT 3

S-] & S-2 v. State Board of Education, 21 F.3d 49

SE CE hadaewesceenseccessserseccoccccsec 2

San Francisco Baykeeper v. Vallejo Sanitation and

Flood Control District, E.D. Cal., No. Civ-5-96

ee ee eee ee ab ebb eter eee ceces 2

Shepard v. Taylor, 556 F.2d 648 (2d Cir. 1977). ...... 5

Steel Co. v. Citizens for a Better Environment,

St i PCE ccc seenesccetesecveccocoes 2,5

Tull v. United States, 481 U.S. 412 (1987) ............. 4

United States Environmental Protection Agency v.

City of Green Forest, 921 F.2d 1394 (8th Cir. 1990) .... 3

iii

United States y. Pleasant, 730 F.2d 657

(11th Cir. 1984), certiorari deni

ao ed, 469 U.S. 869

Zinn by RB lankenship " : Shalala, 35 COSCO eeeseeceeceoecenn 5

F ’ F.

(7th Cir. 1994) wears

REASONS FOR GRANTING THE PETITION

1. The petition (pp. 8-13) showed that the

decision of the court below is directly inconsistent with this

Court’s decision in canteen _t_ See at

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

both cases, the district court had not granted injunctive iat

and this issue had not been appealed. As a result, the only

remaining issue was the imposition of civil penalties. In

Gwaltney, even though all violations had ceased before the

complaint was filed, after specifically discussing mootness,

this Court remanded the case for the courts below to consider

whether there was a risk of continuing violations when the

complaint was filed and therefore whether civil penalties

could be imposed. 484 U.S. at 67. In sharp contrast, in the

present case, the court of appeals held that the fact plaintiffs’

claim for injunctive relief was no longer in the case

automatically made the case moot even though there was not

only a risk of continuing violations but actual post-complaint

violations.

As plaintiffs noted in the petition (pp. 10-11), the

court of appeals did not discuss this Court’s decision in

Gwaltney even though plaintiffs had demonstrated that the

present case was stronger than Gwaltney. Laidlaw does

discuss Gwaltney (Laidlaw Opp. 9-10) and states, based on

it, that "[t]his Court must have envisioned the scenario where

the citizen suit would cease to be a valid case or controversy

under the Constitution and would be dismissed accordingly"

(id., p. 10). However, this is precisely the point. This Court

in Gwaltney did contemplate situations where citizen suits

under the Clean Water Act would be moot but plainly

decided that the case before it was not moot. Since the facts

here are even less supportive of mootness, the court of

appeals’ decision is directly inconsistent with Gwaltney.

Laidlaw, like the court of appeals, has entirely failed to show

2

any distinction between the two cases. This is not surprising

since no distinction exists.

Plaintiffs note that EPA fully supports plaintiffs’

position on the issue of standing in the present case. We

have attached the Brief of the United States in San Francisco

Baykeeper v. Vallejo Sanitation and Flood Control District,

E.D. Cal., No. Civ-5-96 1554 DFL, which is a similar citizen

suit under the Clean Water Act. There, EPA stated that

Laidlaw was “wrongly decided" (App. 25a, n. 9), and

presented a detailed argument which is inconsistent with the

court of appeals’ application of Steel Co. in the present case

(App. 1-31).

2. Plaintiffs showed in the petition (pp. 20-21,

24) that the decision below rejecting an award of attorneys’

fees is directly in conflict with this Court’s dictum in

Gwaltney that citizen plaintiffs in suits under the Clean Water

Act are entitled to attorneys’ fees when an illegal discharger

brings itself into compliance (484 U.S. at 67, n. 6) and with

decisions of nine other circuits holding that fees are payable

under fee-shifting statutes when the suit has led to the

plaintiffs obtaining a significant part of the relief requested.

In response, Laidlaw entirely ignores this Court’s dictum in

Gwaltney. As to the conflict im circuits, Laidlaw says

(Laidlaw Opp. 13):

First, the issue of mootness was not even involved in

seven of the ten cases. Second, in the remaining

cases, voluntary action by one of the parties or action

of a state environmental agency resulted in the

dismissal of the action as mooted. Courts in none of

the ten decisions were faced with facts where a

plaintiff lacked standing to prosecute a citizen suit

because the relief requested could not redress the

3

injury plaintiff had allegedly suffered.

Laidlaw’s response to the conflict in circuits is

entirely unpersuasive. First, the decision below was based on

the Fourth Circuit’s earlier decision in S-1 & S-2 v. State

Board of Education, 21 F.3d 49 (4th Cir. 1994) (en banc).

Pet. App. 9a, n. 5. S-1 and S-2 involved mootness. 21 F.3d

at 51. Moreover, in S-] and S-2, the Fourth Circuit

expressly rejected three of the decisions on which plaintiffs

here relied to show a conflict of circuits. 6 F.3d at 169, n.

2 (adopted as en banc decision, 21 F.3d at 51).

Second, five of the cases relied on by plaintiffs were

dismissed as moot. Comfort Lake Ass’n, Inc. v. Dresel

Contracting, Inc., 138 F.3d 351, 357 (8th Cir. 1998)

(plaintiffs in Clean Water Act suit entitled to fees if case has

become moot because their suit resulted in compliance); Zinn

by Blankenship v. Shalala, 35 F.3d 273, 274 (7th Cir.

1994)(awarding fees where "plaintiffs obtain the relief they

seek through defendants’ voluntary action" (id. at 276));

Baumgarten v. Harrisburg Housing Authority, 21 F.3d 541,

544 (3d Cir. 1994)(case dismissed because defendants’ action

met all of plaintiffs’ demands); Little Rock School District v.

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

(8th Cir. 1994) (plaintiffs entitled to fees when defendants’

voluntary actions mooted the claim); Pembroke v. Wood

County, 981 F.2d 225, 228, 231 (Sth Cir. 1993), certiorari

denied, 508 U.S. 973 (1993) (plaintiffs entitled to fees where

case has become moot because of the litigation). Accord

Atlantic States Legal Foundation, Inc v. Eastman Kodak Co.,

933 F.2d 124, 128 (2d Cir. 1991) (citizen plaintiffs in Clean

Water Act suit entitled to attorneys’ fees even if case is

dismissed as moot if compliance has resulted from the

plaintiffs’ suit); United States Environmental Protection

Agency v. City of Green Forest, 921 F.2d 1394, 1402 (8th

4

Cir. 1990) (citizen plaintiffs entitled to fees in Clean Water

Act suit where their action was barred by EPA action but

citizens were catalyst for EPA action). As the Seventh

Circuit has noted, the Fourth Circuit stands "alone." Zinn by

Blankenship v. Shalala, supra, 35 F.2d at 275. See also

Baumgarten v. Harrisburg Housing Authority, supra, 21 F.3d

at 549 (Fourth Circuit “held otherwise" then four other

circuits).

These cases, which held that plaintiffs are entitled to

attorneys’ fees when the litigation has become moot because

the plaintiffs obtained the relief sought in the litigation, are

directly contrary to the decision below. The determination of

mootness in those cases necessarily meant that the plaintiffs

could no longer obtain redress of the relief requested.

Nonetheless, the courts of appeals upheld the award of

attorneys’ fees.

3. Laidlaw suggests that the case is moot because

it has shut down its incinerator since the court of appeals

issued its decision. Def. Opp. 1, n. 1, 10. However, Laidlaw

has submitted no affidavit or other evidence to support the

bare statements in its brief or any indication whether the shut

down is temporary or permanent. Plaintiffs have ascertained

that Laidlaw has not taken any action to terminate the

NPDES permit. App. 33a. Since Laidlaw’s NPDES permit

is still in effect, it may discharge in the future whenever it

cares to do so.

Moreover, Laidlaw filed a proposed order in the state

court which was hearing a challenge to Laidlaw’s permit for

operation of the incinerator in November 1998, after the

incinerator shut down. In that order, Laidlaw asked that

issuance of the permit be affirmed and gave no indication

that the incinerator would not be operated. Subsequently on

5

November 23, 1998, the court issued virtually the identical

order. Thus, Laidlaw has the right to continue to operate the

incinerator.

In any event, the shut down of the facility, even if it

were permanent, would not moot the case. Laidlaw/Safety-

Kleen” has a* least 16 other NPDES rermitted facilities.

Friends of the Earth and Sierra Club have members who use

the waters affected by Laidlaw/Safety-Kleen’s discharges

from some of these facilities and their use and enjoyment of

these waters is adversely affected by illegal discharges from

these facilities. See App. 33a.

The imposition of civil penalties in this case will

continue to redress the injuries of plaintiffs and their

members. As we showed in the petition (p. 15), both this

Court and Congress have specifically found that penalties

under the Clean Water Act deter violations. Tull v. United

States, 481 U.S. 412, 422 (1987) ("Congress wanted the

district court to consider the need for retribution and

deterrence * * * when it imposed civil penalties" under the

Clean Water Act"). See also Hudson v. United States, 118

S. Ct. 488, 494 (1997)("All civil penalties have some

deterrent effect"); Department of Revenue v. Kurth Ranch,

511 U.S. 767, 778 (1994)("civil penalties * * * deter certain

behavior").

In Steel Co. v. Citizens for a Better Environment, 118

S. Ct. 1003 (1998), this Court held that civil penalties did not

satisfy redressability in a case where the defendant was not

violating the statute at the time of the complaint and there

was no allegation in the complaint of continuing violation.

l/Laidlaw acquired Safety-Kleen in April 1998 and then

changed its own name to Safety-Kleen. Def. Opp. ii.

6

Id. at 1017-1018. In analyzing the redressability issue

relating to civil penalties, the Court emphasized that the

penalties were paid to the U.S. Treasury rather than the

plaintiff. Id. at 1018. This analysis suggests that general

deterrence, the effect of the imposition of a civil penalty on

other dischargers, does not support redressability. See also

id. at 1019. However, in view of this Court’s emphasis on

the fact that Steel Co. involved only initial standing and not

mootness after initial standing had been shown (id. at 1019-

1020), it is not clear whether this determination affects the

present case.

In any event, even if Steel Co. establishes that general

deterrence does not satisfy the requirement of redressability

for purposes of mootness, the imposition of a civil penalty in

this case constitutes specific deterrence. Specific deterrence

involves the imposition of civil penalties which would affect

the conduct of the defendant itself. United States v. Pleasant,

730 F.2d 657, 662 (11th Cir. 1984), certiorari denied, 469

U.S. 869 (1984); Shepard v. Taylor, 556 F.2d 648, 653 (2d

Cir. 1977). Since Laidlaw/Safety-Kleen has other facilities

where plaintiffs’ members are injured by illegal discharges,

the imposition of a civil penalty in this case will redress harm

to plaintiffs even if the South Carolina incinerator were

permanently shut down.

In short, this case continues to present the issues

decided by the court of appeals. As the petition for a writ of

certiorari shows, the court of appeals’ decision presents

extremely important issues involving conflicts with decisions

of this Court and numerous courts of appeals. The shut

down of Laidlaw’s facility provides no support for denying

the writ.

7

Even if the shut down of the facility had some effect

on whether this Court should grant certiorari concerning the

court of appeals’ dismissal of the case on the ground of

mootness, it clearly has no effect on the denial of attorneys’

fees by the court of appeals. The denial of attorneys’ fees

involves whether, when a lawsuit has been properly filed and

a substantial portion of the relief requested has been obtained,

attorneys’ fees may be awarded when the case becomes moot.

Thus, the attorneys’ fees issue assumes arguendo that the

dismissal of the case on the ground of mootness was

correct. Laidlaw’s new reason for claiming mootness is

therefore irrelevant.

Respectfully submitted,

Bruce J. Terris

Carolyn Smith Pravlik

Kathleen L. Millian

James S. Chandler, Jr.

Counsel for Petitioners

APPENDIX

Ae a i

la

MICHAEL E. WALL (Cal. Bar. No. 170238)

Trial Attorney

United States Department of Justice

Environment & Natural Resources Division

601 D Street, NW, Room 8024

P.O. Box 4390

Washington, D.C. 20044-4390

Telephone: (202) 514-1442

Facsimile: (202) 514-8864

Attorney for Amicus Curiae

UNITED STATES OF AMERICA

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

SAN FRANCISCO BAYKEEPER, ) No. CIV-S-96

a non-profit — - . 1554 DFL

Vv.

)

VALLEJO SANITATION AND _ ) Hearing Date:

FLOOD CONTROL DISTRICT, _) January 15, 1999

) Time: 10:00 a.m.

) Dept:Courtroom 3

) Trial Date:

) October 25, 1999

Defendant. )

ER

BRIEF OF THE UNITED STATES AS AMICUS

CURIAE IN RESPONSE TO VALLEJO’S MOTION

TO DISMISS PLAINTIFF’S CIVIL PENALTY

CLAIMS

2a

TABLE OF CONTENTS

TABLE OF AUTHORITIES ..........-...5505. ii

BRBUE PREDENEED nc cc ccccccccvcccccscece l

INTERESTS OF THE UNITED STATES .......... l

FACTUAL BACKGROUND ..........- 0.555056: 2

SUMMARY OF ARGUMENT ..............54:. 3

DTT cbheeueseroseveveroercccccees 4

Vallejo’s Argument Ignores Gwaltney and Other

Supreme Court Cases ..........- 0000006 4

Remedies that Specifically Deter Noncompliance

Are Sufficient and Cognizable Redress for Article

III] Standing Purposes ..........- 0000005: 6

Civil Penalties Payable to the Treasury Provide

Article III Redress for Continuing or Imminent

Future Violations by Specifically Deterring

Future Noncompliance ...............006:. 9

The Two Other Supreme Court Cases Cited by

Vallejo Are Inapposite to the Specific Deterrent

Redress of Civil Penalties ............... 14

DE Gspeseebeccveevercrcoscoece 16

3a

TABLE OF AUTHORITIES

FEDERAL CASES

Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975) . 11

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

Bennett v. Spear, 117 S. Ct. 1154 (1997) ...... 10, 11

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

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

ea we a a 3

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

890 F.2d 690 (4th Cir. 1989) ..............000. 5

City of Los Angeles v. Lyons, 461 U.S. 95 (1983) ... 10

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

rrr rrr rrrrrrr 3, 11

United States v. Concentrated Phosphate Export

Association, 393 U.S. 199 (1968) ............... ll

County of Riverside v. McLaughlin, 500 U.S. 44 (1991) 3

Department of Revenue v. Kurth Ranch, 511 U.S. 767

ee i ee an oui deube neces 9

Federal Election Commission v. Akins, 118 S. Ct. 1777

A RT a ae 16

Flast v. Cohen, 392 U.S. 83 (1968) .............. 4

Vv

149 F.3d 303 (4th Cir. 1998) .............00.. 14

Gompers v. Bucks Stove & Range Co., 221 U.S. 418

ea Leer aE a ks coe 13

Gwaltney of Smithfield, Ltd. v. Chesapeake Bay

Foundation, 484 U.S. 49 (1987) ........... 3, 5, 12

Hudson v. United States, 118 S. Ct. 488 (1997) ..... 10

In re Sealed Case No. 98-3077, 151 F.3d 1059 (D.C. Cir.

a St aE al 6

International Brotherhood of Electrical Workers v. Foust,

4a

Lake Shore & Mich. S. Railway Co. v. Ohio, 173 U.S. 285

Sn .s.s canessukseteeanensensennaes 13

Lamb v. Cramer, 285 U.S. 217 (1932) ..........-.. 7

Linda R. S. v. Richard D., 410 U.S. 614 (1973) . 15, 16

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) 3,4

Middlesex County Sewage Auth. v. National Sea Clammers

Ne Seren teahen bévbeshoueannnswes Sa

Inc.,CIV. No. 96 CV 1492-B (A.B, (Nov. 19, 1998) . 14

Natural Resources Defense Council v. Texaco Refining, ‘*

EE CE os nn pce enee was aute

O’Shea v. Littleton, 414 U.S. 488 (1974) ......... -

Preisolate v. Interstate Commerce Commission, 494 U.S. 1

SED cnc eucataenatanaeusandé aneusseness 12

Randolph v. Donaldson, 13 U.S. (9 Cranch.) 76 (1815) 13

Shepard v. Taylor, 556 F.2d 648 (2d Cir. 1977) ..... 6

Sierra Club v. Electronic Controls Design, Inc., 909 F.2d

1350 = PMT coctitacknncetaawane wee S

426 US. 26 (1976) PEE eI eI 14, 15

Snead v. McColl, 53 U.S. (12 How.) 407 (1851) .... 13

Steel Company v. Citizens for a Better Environment, 118

Ge CEE a nadGisuncccwess cadens passim

Tull v. United States, 481 U.S. 412 (1987) ...... 9, 12

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

i PPeppEnER HRD r 6

United States v. Pleasant, 730 F.2d 657 (11th Cir. 1984) 6

United States v. W. T. Grant Co., 345 U.S. 629 (1953) 11

Wal ettenel Aemnaetion of Radiation Sard

Se EE oo cdheoeticcusiesdaane 12

Weinberger v. Romero-Barcelo, 456 U.S. 305 (1982) . 10

Sa

FEDERAL STATUTES

Clean Water Act, 33 U.S.C. § 1251 .............. l

PG PE. 16 6 dob dba 6466660 eK ee 1, 5, 11, 12

SP ED” é.de6ucs wea wae ddwes es 11, 12

LEGISLATIVE HISTORY

131 Cong. Rec. 34650 (Dec. 5, 1985) ............ 2

Environment and Natural Resources Division of the

Department of Justice: Hearing Before the

Subcommittee on the Constitution of the House

Committee on the Judiciary, 104th Cong., Ist Sess.

ee 2

House Committee on Energy and Commerce, Superfund

Amendments of 1985, H.R. Rep. No. 253, 99th Cong., Ist

Sess., pt. 5, (Nov. 12, 1985), reprinted in 1986

ert 60bUvas bites dekensceece<s 2

S. Rep. No. 228, 101st Cong., Ist Sess. (1989), reprinted

i) Eee WR, GOED. ovcceecceccocesees 12

MISCELLANEOUS

(Prometheus Books 1988) (originally published 1781) .

Dennis Epple & Michael Visscher, Environmental

Pollution: Modeling, Occurrence, Detection, and

Deterrence, 27 J. Law & Econ. 29 (Apr. 1984) ..... 13

i i v. Akins. No. 96-1590, U.S.

Brief (1997 WL 523890) ..... 2.565 - see eee eeee 16

Sir William Holdsworth, A History of English Law (2d ed.

1937) (reprinted 1966) .......--- eee seer eeeee 13

Ta

Issue Presented

Whether the Article III standing doctrine precludes

Congress from granting courts jurisdiction to assess civil

monetary penalties, in Clean Water Act citizen suits,

against a defendant who, at the time the complaint is filed,

is violating or is imminently expected again to violate the

Act.

Interests of the United States

The United States has the lead role, along with the

states, in implementing and enforcing the Clean Water Act

(“Act”), 33 U.S.C. § 1251 et seg. Section 505 of the Act

also authorizes adversely affected private persons, or

“citizens,” to enforce many of the Act’s requirements, and

grants the district courts jurisdiction in citizen suits to issue

injunctions and to assess civil monetary penalties payable

to the United States. See 33 U.S.C. § 1365(a), (g). The

Vallejo Sanitation and Flood Control District (“Vallejo”)

contends that Article III’s “case” or “controversy”

requirement bars the courts from exercising Section 505

civil penalty jurisdiction, however, because such penalties

cannot, as a matter of law, redress any injury suffered by

citizen plaintiffs. The United States files this amicus

curiae brief to defend the constitutionality of the courts’

statutory jurisdiction to assess, and citizen plaintiffs’

standing to seek, civil monetary penalties.

The ability of citizen plaintiffs to enforce the Clean

Water Act allows those individuals who are most directly

injured by unlawful pollution — the people who live,

work, and play downstream from illegal discharges — to

protect their health and their environment. Citizen

enforcement authority is important because resource

constraints do not allow the Government to pursue all .

violations that warrant enforcement. A citizen suit that is

backed by the prospect of civil penalties provides a strong

incentive for a defendant violator to comply quickly with

the Act. For example, between January 20, 1993, and May

5, 1995, defendants in citizen enforcement suits that Ze

alleged Clean Water Act claims paid more than $3 million

in civil penalties to the United States, as a result of

judgments or settlements, and settlements in such suits

resulted in almost an additional $10 million in payments to

states. During this same period, settling defendants who

were parties to consent decrees in seventy-eight Clean

Water Act citizen suits — and who faced or paid such

penalties — agreed to fund at least $61 million in

quantifiable injunctive relief, and to undertake significant

additional, unquantified injunctive relief, to resolve and

address alleged Clean Water Act violations. Id. As

Congress recognized in enacting subsequent citizen

enforcement provisions, citizen suits are critical to filling

the gap between the number of significant environmental

violations and the limited governmental enforcement

resources available to address such violations. See, ¢.g.,

131 Cong. Rec. 34650 (Dec. 5, 1985) (statement of Rep.

Glickman) (“In view of the government’s limited and

overburdened enforcement authority, citizen suits are

essential to assure compliance with the law.”), House

Committee on Energy and Commerce, Superfund

1/See Environment and Natural Resources Division of the

Department of Justice: Hearing Before the Subcommittee on

the Constitution of the House Committee on the Judiciary,

104th Cong., Ist Sess. 296-302 (1995) (committee print)

(letter from Kent Markus, Acting Assistant Attorney General,

to Rep. Charles T. Canady, Chairman (May 5, 1995)).

9a

Amendments of 1985, H.R. Rep. No. 253, 99th Cong., Ist

Sess., pt. 5, at 83 (Nov. 12, 1985), reprinted in 1986

U.S.C.C.A.N. 3124, 3206 (“Citizen suits provisions [sic]

have been found to be helpful both in encouraging diligent

Federal enforcement of environmental statutes and in

locating and taking actions against violators of these

Acts.”).

Factual Background

San Francisco BayKeeper (“BayKeeper”) brought

this Clean Water Act citizen suit against the Vallejo

Sanitation and Flood Control District (“Vallejo”) for

unlawfully discharging raw sewage and other pollutants

into the San Pablo Bay and San Francisco Bay Estuary at

Mare Island Strait and Carquinez Strait, and by unlawfully

failing to report its discharges as required by its permit.

BayKeeper sought injunctive relief, civil penalties, and fees

and costs. Vallejo moved for summary judgment on

standing, and the parties filed cross-motions for summary

judgment on liability. On December 11, 1997, this Court

held that BayKeeper had introduced sufficient evidence of

standing to go to trial on that issue.” See Mem. of Op.

and Order 10 (Dec. 11, 1997).

On May 27, 1998, this Court granted summary

judgment for BayKeeper on Vallejo’s liability. This Court

held that — both before and after BayKeeper filed its

complaint — Vallejo was in violation of its Clean Water

Act permit requirements concerning chlorine residual, total

2/This Court granted summary judgment on standing against

an individual plaintiff, Michael Lozeau. See Mem. of Op.

and Order 10 (Dec. 11, 1997).

10a

suspended solids, copper, settleable matter, median and

total coliform, overflow and bypass, and reporting. See

Mem. of Op. and Order 10-17 (May 27, 1998).2/

3/This Court has held that Vallejo continued to violate the

Clean Water Act after the complaint was filed, and Vallejo’s

brief does not assert that its violations have ceased. The

United States is unaware of evidence that “it is 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)

(emphasis in original; internal quote marks omitted).

Nevertheless, in the United States’ present posture as amicus

curiae, the United States takes no position on Vallejo’s

current compliance. Vallejo’s argument appears to be that its

present compliance (or noncompliance) status is irrelevant

because the Article III standing doctrine bars civil penalties

in all citizen suits, even if the defendant continues to violate

the Clean Water Act through final judgment. Thus, Vallejo

challenges only BayKeeper’s initial standing; Vallejo does

not argue that it has mooted this case by ceasing its

violations, and does not even attempt to demonstrate that its

violations cannot reasonably be expected to recur. Compare

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

569 n.4 (1992) (holding, in a standing case, that “jurisdiction

is to be assessed under the facts existing when the complaint

is filed”); County of Riverside v. McLaughlin, 500 U.S. 44,

50-52 (1991) (holding that the plaintiff had standing based on

the facts at the time of the complaint, even though post-

complaint developments mooted the case); Gwaltney of

Smithfield v. Chesapeake Bay Found., 484 U.S. 49, 69

(1987) (Scalia, J., concurring in part) (stating that standing is

determined based on the facts at the timie uf the complaint);

with, e.g., Cardinal Chemical Co. v. Morton Int'l, Inc., 508

lla

a ent

Consistent with Article III standing doctrine, courts

may assess civil monetary penalties in citizen suits, where

such penalties will tend specifically to deter noncompliance

by a defendant who, when the complaint is filed, is

violating or is imminently expected again to violate the

Clean Water Act. Last term, Steel Company v. Citizens

for a Better Environment, 118 S. Ct. 1003 (1998),

reaffirmed that specific deterrence of a defendant is

cognizable redress under Article III’s standing test, and that

remedies designed specifically to deter ongoing or

imminent future violations of the law by a defendant

satisfy the redressability requirement. Moreover, the

Supreme Court repeatedly has recognized — in contexts

ranging from application of the Clean Water Act to

imposition of civil contempt sanctions and punitive

damages — that civil penalties coerce compliance with the

law by a defendant through specific deterrence. Thus, far

from supporting Vallejo’s facial challenge, Steel Company

teaches only that civil penalties payable to the Treasury

cannot redress citizens’ injuries from “purely past,”

nonrecurring violations. Here, where the Court has found

that the defendant’s violations continued at the time of the

complaint, civil penalties can cognizably coerce compliance

— redressing the plaintiff's injuries from the defendant’s

ongoing and future illegal discharges — and Article III

U.S. 83, 98 (1993) (stating that the burden shifts to the

defendant to prove mootness); Gwaltney, 484 U.S. at 66

(stating that voluntary cessation of illegal activity moots a

case only where the defendant proves that the wrong cannot

reasonably be expected to recur); City of Mesquite v

Aladdin’s Castle, Inc., 455 U.S. 283, 289 (1982) (same).

12a

standing doctrine poses no barrier to the Court's

assessment of civil penalties.

Argument

1. Vallejo’ t walt Jther

Supreme Court Cases. — Article III restricts the judicial

power of federal courts to “cases” or “controversies.” This

requirement serves to “limit the business of 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 the other

branches of government.” Flast v. Cohen, 392 U.S. 83, 95

(1968). One aspect of the case-or-controversy requirement

is the standing doctrine, which requires a plaintiff who

seeks to invoke the jurisdiction of a federal court to show

(1) either a present or threatened future “injury in fact” that

(2) is “causal[ly] connect[ed]” to the challenged conduct

and that (3) “likely” would be redressed by a favorable

decision. Lujan v. Defenders of Wildlife, 504 U.S. 555,

560 (1992) (emphasis omitted; internal quote marks

omitted).

Vallejo argues, based on a misreading of Steel

Company v. Citizens for a Better Environment, 118 S. Ct.

1003 (1998), that Article III’s standing doctrine prohibits

courts from assessing civil penalties in citizen suits. In

Vallejo’s view, penalties payable to the Treasury can never

redress any injury suffered by a citizen plaintiff.

Notwithstanding that Congress provided that the district

courts “shall have jurisdiction” in Clean Water Act citizen

suits “to enforce” the Act and “to apply any appropriate

civil penalties,” 33 U.S.C. § 1365(a) (emphasis added),

l3a

Vallejo contends that Article III bars the courts from

exercising such jurisdiction.

Given the Supreme Court’s repeated observations

that Clean Water Act citizen suitors may seek civil

penalties payable to the Treasury, Vallejo’s proposed result

would be, to say the least, surprising. See Gwaltney of

Smithfield, Ltd. v. Chesapeake Bay Found., 484 U.S. 49,

53 (1987); Middlesex County Sewage Auth. v. National

Sea Clammers Ass’n, 453 U.S. 1, 14 n.25 (1981); accord

Sierra Club v. Electronic Controls Design, Inc., 909 F.2d

1350, 1352, 1354 (9th Cir. 1990). Indeed, in Gwaltney,

the Supreme Court remanded a Clean Water Act citizen

enforcement action to allow the citizen plaintiffs to

demonstrate a good faith basis for their allegation that the

defendant was liable for violations continuing at the time

of the complaint — despite the fact that the only relief the

plaintiffs still sought was civil penalties. Compare 484

U.S. at 67 with Chesapeake Bay Found. v. Gwaltney of

Smithfield, Ltd., 890 F.2d 690, 692 & n. 2 (4th Cir. 1989)

(noting that the district court had assessed penalties but

denied an injunction, and that the defendant only had

appealed). Thus, under Vallejo’s reading of Steel

Company, Gwaltney necessarily would have been wrongly

decided. But Steel Company itself never suggested that it

overruled Gwaltney.

Vallejo’s mistake is to conflate the Supreme Court’s

discussion of general deterrence, which cannot satisfy the

standing doctrine’s redressability test, with the Court’s

discussion of specific deterrence, which can.‘/ As shown

4/Specific deterrence” generally is used to mean deterrence

of future misconduct by the same offender, while “general

l4a

below, civil penalties can redress a plaintiff's injuries from

a defendant’s ongoing and future violations by coercing the

defendant’s compliance — that is, through specific

deterrence. Vallejo’s contrary argument rests on one or

both of two mistaken premises: Either Vallejo assumes

that Article III’s redressability test is not satisfied by

remedies that specifically deter a defendant’s ongoing or

future violations, or Vallejo assumes that the assessment of

civil penalties cannot deter a defendant from committing

future violations. The first premise — that specific

deterrence is not cognizable under Article III — is

inconsistent with a vast and unquestioned body of Supreme

Court jurisprudence, including Steel Company itself. See

Argument 2, infra. The second premise — that civil

penalties cannot specifically deter a defendant from future

violations — is unsupported by Steel Company and

contrary to numerous Supreme Court decisions. See

Argument 3, infra.

2. Remedies that Specifically Deter

Noncompli

Article II] Standing Purposes. — Remedies designed to

coerce compliance by a defendant who is in continuing or

imminent future violation of the law — that is, remedies

that work “specific deterrence” — unquestionably satisfy

the redressability prong of Article III’s standing doctrine

where a plaintiff is injured by a defendant’s ongoing or

prospective violations. After all, coercion of compliance is

deterrence” generally is used to mean deterrence of future

misconduct by others. See, e.g., United States v. Pleasant,

730 F.2d 657, 662 (11th Cir. 1984), cert. denied, 469 U.S.

869 (1984); Shepard v. Taylor, 556 F.2d 648, 653 (2d Cir.

1977).

lSa

the “sole function” of injunctive relief, United States v.

Oregon State Medical Soc’y, 343 U.S. 326, 333 (1952),

and no one questions private litigants’ standing to seek

such relief, see, e.g., Steel Co., 118 S. Ct. at 1019.

Similarly, coercion of compliance is a principal purpose of

civil contempt sanctions, and there can be no doubt that

private litigants have standing to seek such sanctions. Cf.,

e.g., Lamb v. Cramer, 285 U.S. 217, 219 (1932) (holding

that a private litigant may initiate civil contempt

proceedings to secure compliance with a court order); In re

Sealed Case No. 98-3077, 151 F.3d 1059, 1069 (D.C. Cir.

1998) (holding that a civil contempt proceeding “may be

initiated by a private plaintiff’). Likewise, private

litigants have always been thought to have standing to seek

punitive damages, which “are not compensation for injury”

but instead are “private fines levied by civil juries to

punish reprehensible conduct and to deter its future

occurrence.” International Bhd. of Elec. Workers v. Foust,

442 U.S. 42, 48 (1979) (internal quote marks omitted;

emphasis added).

Steel Company reaffirmed that specific deterrence

of a defendant’s future violations satisfies the Article III

standing doctrine’s redressability requirement. Steel

Company decided the narrow question whether a citizen

plaintiff had standing to sue “for purely past violations,”

where the plaintiff alleged no prospect that the defendant

would violate the law again. 118 S. Ct. at 1008, 1019.

The plaintiff lacked standing because the relief that it

sought ~ including civil monetary penalties — would not

redress its injuries from those purely past violations. Id. at

1018-19. But, in discussing injunctive relief, the Court

made clear that a remedy designed to specifically deter a

defendant from anticipated future noncompliance does

provide adequate Article III redress:

l6a

The remaining relief respondent seeks *** is

injunctive in nature. It cannot conceivably remedy

any past wrong but is aimed at deterring petitioner

from violating EPCRA in the future. The latter

objective can of course be “remedial” for Article III

purposes, when threatened injury is one of the

gravamens of the complaint. If respondent had

alleged a continuing violation or the imminence of

a future violation, the injunctive relief requested

would remedy that alleged harm. But there is no

such allegation here — and on the facts of the

case, there seems no basis for it. Nothing supports

the requested injunctive relief except respondent's

generalized interest in deterrence, which is

insufficient for purposes of Article III.

Steel Co., 118 S. Ct. at 1019 (emphasis added). In this

passage, the Court made clear that specific, but not general,

deterrence is cognizable redress under the Article III

standing doctrine. Although raised in the context of

injunctive relief, the Court’s reasoning applies equally to

other types of relief that may be used specifically to deter

a defendant’s future noncompliance.

Notwithstanding Steel Company’s explicit statement

that specific deterrence is cognizable under Article III,

Vallejo contends that the specific deterrent effect of civil

penalties does not satisfy the Article III standing doctrine’s

redressability requirement. See Vallejo Mem. at 3 (“That

the award of penalties might deter the defendant from

future violations *** fell short of satisfying the test for

standing” (emphasis added).). Vallejo rests its argument

against specific deterrence on the Steel Company Court’s

rejection of general deterrence as a form of Article III

redress. Vallejo points to a passage in which the Court

17a

held that the possibility that civil penalties “will deter the

risk of future harm” is not sufficient to satisfy Article III.

118 S. Ct. at 1018. The Court explained that:

[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.

Id. at 1018-19 (emphasis in original).

In context, this passage restates only the

unsurprising proposition that, absent any allegation of

future violations by the defendant itself, a “generalized

interest in deterrence *** is insufficient for purposes of

Article III.” Id. at 1019 (emphasis added). The passage

can refer to nothing else, for the Steel Company plaintiff

sought only penalties for “purely past violations.” Id. at

1008. Such penalties could not coerce compliance by the

defendant because there was nothing to coerce: The Steel

Company plaintiff conceded that the defendant was in

compliance and would remain so. Penalties for purely past

violations could at most have had some general deterrent

impact on possible future violations by other, unknown,

unrelated persons who might never cause the plaintiffs any

injury. Faced with those facts, the Court affirmed that

such general deterrence is not enough, that the “great

comfort” that a plaintiff may receive from knowing that

18a

“the nation’s laws are faithfully enforced,” without redress

of a particularized injury to the plaintiff, “is not an

acceptable Article III injury.” Id. at 1019.

Thus, Vallejo mistakes Steel Company’s terse

discussion of general deterrence for a holding concerning

specific deterrence, but ignores Steel Company's own

discussion of specific deterrence, just one opinion page

later. In this case, the plaintiff does not seek a generalized

pronouncement about the law; instead, it seeks an order

assessing penalties to deter Vallejo from continuing to

pollute waters that the plaintiff's members allegedly use.

Far from supporting Vallejo’s position, Steel Company

reaffirms that such relief, “aimed at deterring [the

defendant itself] from violating [the law] in the future,”

does provide a sufficient and cognizable Article III remedy.

Id. at 1019. That must be the law, for if Article III barred

courts from imposing remedies designed as specific

deterrents, then the courts would lack jurisdiction also to

impose injunctions and civil contempt sanctions. See

supra.

3. Civj , ;

ee ay ey ing F

Noncompliance. — Given that Article III standing doctrine

poses no jurisdictional barrier to remedies aimed at

specifically deterring noncompliance by a defendant who is

in violation at the time of the complaint, as Vallejo was,

Vallejo must fall back on an argument that civil penalties

do not specifically deter violations of the law. That

counterintuitive suggestion fails for four independent

reasons.

19a

First, the Supreme Court itself has long recognized

that the threat and assessment of civil monetary penalties,

including Clean Water Act penalties, deters misconduct by

persons who are or may be penalized. See, ¢.g.,

Department of Revenue v. Kurth Ranch, 511 U.S. 767, 778

(1994) (stating that “civil penalties *** deter certain

behavior”); Tull v. United States, 481 U.S. 412, 422

(1987) (holding that “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 (emphasis added)); Weinberger v.

Romero-Barcelo, 456 U.S. 305, 314 (1982) (“An

injunction is not the only means of ensuring compliance.

The [Clean Water Act] itself, for example, provides for

fines and criminal penalties.”); Hudson v. United States,

118 S. Ct. 488, 494 (1997) (“[A]ll civil penalties have

some deterrent effect *** .”); Natural Resources Defense

Council v. Texaco Refining, 2 F.3d 493, 503 n. 9 (3d Cir.

1993) (“[T]he imposition of penalties significantly

enhances the deterrent effect of a citizen suit.”); cf. O’Shea

v. Littleton, 414 U.S. 488, 503 (1974) (holding that the

threat of fines and imprisonment under a criminal statute

will exercise a deterrent effect, even absent an

injunction).*/

3/The Supreme Court also has opined that compensatory

damages, like an injunction, deter future violations by a

defendant. See City of Los Angeles v. Lyons, 461 U.S. 95,

112-13 (1983). Similarly, the Supreme Court has observed

that punitive damages “deter” future misconduct. Foust, 442

U.S. at 48 (internal quote marks omitted). From the

defendant’s perspective — the perspective that matters for

purpose of determining whether the defendant will be

deterred — there is little reason to think that paying damages

20a

In Bennett v. Spear, 117 S. Ct. 1154 (1997), for

example, the Court found that the citizen plaintiff had

standing based in part on the specific deterrent effect that

the threat of civil monetary penalties would have on the

party that injured the plaintiff. The plaintiff expected to

be injured by a Bureau of Reclamation’s (BOR) decision to

restrict certain water uses. However, instead of challenging

the BOR’s water use decision directly, the plaintiff

challenged a Fish and Wildlife Service (FWS) “biological

opinion” that had informed the BOR’s decision. The

Government argued that the plaintiff lacked standing to

challenge the FWS opinion because the FWS had not

harmed the plaintiff, the FWS opinion did not bind the

BOR, and a successful challenge to the FWS opinion

would therefore not redress the plaintiff's injury. Id. at

1163-64. The Court disagreed, reasoning that the BOR

would be coerced to follow the FWS’s views by the threat

of civil and criminal sanctions under the Endangered

Species Act. Id. Although BOR could legally ignore the

FWS opinion, and although no enforcement action was

threatened or pending against BOR, the Court noted that

compliance by the BOR with the FWS opinion would

immunize the BOR and its employees from Endangered

Species Act penalties for possible future violations. Id. at

1163-65. Thus, the Spear Court found that a successful

challenge to the FWS opinion would redress the plaintiff's

injury from the BOR decision because the BOR was likely

to follow FWS’s views to avoid the possibility of penalties

would have more of a deterrent effect than paying civil

penalties. Thus, the Court’s observations that damages deter

future misconduct support the conclusion reached by the

many cases that say that civil penalties deter future

misconduct.

EG ey me mem >

2la

in the future. If an indirect possibility of penalties for

unknown future violations is sufficiently coercive to satisfy

Article III’s redressabilty test, as in Spear, then surely the

coercive effect of civil penalties assessed directly against

the defendant for each day of each violation of the Clean

Water Act also is sufficiently coercive to satisfy the

redressability test.°/

Second, there is no doubt that the Article III

redressability requirement is satisfied by an injunction to

deter future noncompliance, see Steel Company, 118 S. Ct.

at 1019, yet the specific deterrent effect of an injunction

depends largely on the threat of civil penalties that give

such injunctions teeth. Indeed, at the initiation of a citizen

suit, the possibility of civil penalties may be a far more

powerful specific deterrent than the possibility of an

injunction: The defendant accrues additional civil penalty

6/Steel_ Company reaffirmed that Article III redressability

turns on the relief the plaintiff requests — unless the request

is wholly frivolous — even if the court ultimately denies the

relief on the merits. 118 S. Ct. at 1010. The subsequent

question of what relief is appropriate “relat[es] to the exercise

rather than the existence of judicial power.” City of

Mesquite, 455° U.S. at 289; see also United States v.

trate: phate Export Ass’n, 393 U.S. 199, 203

(1968); United States v. W.T. Grant Co., 345 USS. 629, 633-

34, 635-36 (1953); Bell v. Hood, 327 U.S. 678, 682-83

(1946); Binderup v. Pathe Exchange, Inc., 263 U.S. 291,

305-06 (1923). Thus, if BayKeeper in good faith sought civil

penalties that, if assessed, would by likely to deter ongoing

or future noncompliance by Vallejo, that specific deterrent

effect would satisfy the standing doctrine’s redressability test,

even if the Court ultimately did not assesses penalties.

22a

liability for each day of violation until it comes into

compliance. 33 U.S.C. §§ 1365(a), 1319(d). By contrast,

contempt sanctions cannot be imposed until after an

injunction is issued and then violated. As the Supreme

Court has explained, “{i]f 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).

Third, Congress plainly believes that civil penalties

do deter violations of the law, and Congress’ factual

conclusions are entitled to substantial deference. See, ¢.g.,

Preseault v. Interstate Commerce Comm’n, 494 U.S. 1, 17

(1990); Walters v. National Ass’n of Radiation Survivors,

473 U.S. 305, 330 n.12 (1985). As Gwaltney noted, the

legislative history of the Clean Water Act makes clear that

Congress authorized citizen suits precisely to allow private

persons to abate violations. 484 U.S. at 61. In furtherance

of this specific deterrent goal, Congress authorized courts

in citizen suits to grant injunctions and to assess civil ;

penalties under the Act’s general civil penalties provision.

33 U.S.C.-§§ 1365(a), 1319(d). “Congress wanted the

district court to consider the need for retribution and .

deterrence, in addition to restitution, when it imposed civil

penalties” under this general civil penalty provision. Tull

v. United States, 481 U.S. 412, 422-23 (1987) (emphasis

added; citing 123 Cong. Rec. 39191 (1977)). Given

Congress’ purpose of abatement, Congress must have

believed that the threat of penalties — and the imposition

of civil penalties in the event of actual non-compliance —

would specifically deter violations of the law.’/ See also

7/Political philosophers have recognized as least since the

Framer’s era that monetary punishments deter violations of

23a

S. Rep. No. 228, 101st Cong., Ist Sess. 373 (1989),

reprinted in 1990 U.S.C.C.A.N. 3386, 3756 (stating that, in

citizen suits under the Clean Air Act, assessment of civil

penalties for violations *** [is] necessary for deterrence,

restitution, and retribution”).

Fourth, as a factual matter, penalties have been

empirically demonstrated to deter, so there is little warrant

for Vallejo’s proposed per se legal conclusion that civil

penalties do not coerce more rapid compliance. For

example, one study of actual enforcement of federal water

pollution control laws found that enforcement efforts under

a statute providing for civil penalties do deter water

polluters. See Dennis Epple & Michael Visscher,

“Environmental Pollution: Modeling Occurrence,

Detection, and Deterrence,” 27 J. Law & Econ. 29, 56

(Apr. 1984).

Nothing in Steel Company suggests that the Court

there considered the specific deterrent effect of civil

monetary penalties on future noncompliance, let alone that

the Court overruled the Court’s repeated past statements

that civil penalties do deter, or created a per se rule that

the law by removing the incentives for noncompliance. See,

¢.g., Jeremy Bentham, The Principles of Morals and

Legislation 147 (Prometheus Books 1988) (originally

published 1781) (“The temptation, then, may be said to be

strong, when the pleasure or advantage to be got from the

crime is such as in the eyes of the offender must appear great

in comparison of the trouble and danger that appear to him

to accompany the enterprise *** .”); id. at 189-91

(recognizing that “pecuniary” punishments can be set at a

level designed to remove the incentive to commit misdeeds).

24a

civil penalties never have a specific deterrent effect. On

Steel Company’s facts, the question of whether civil

monetary penalties specifically deter was not presented.

Given the overwhelming support for civil penalties’

deterrent effect — and given Steel Company’s own

statement that specific deterrent relief satisfies the Article

Ill redressability requirement — Article III poses no barrier

to Congress’ grant of jurisdiction to assess penalties in

citizen suits to specifically deter noncompliance by the

defendant.*/

8/A claim for civil monetary penalties to coerce compliance

is a “case[] or controversy[] of the sort traditionally

amendable to and resolved by the judicial process.” See

Steel Co., 118 S. Ct. at 1016. Laws allowing private persons

to recover civil penalties for the government are hardly novel

to this century. See Lake Shore & Mich. S. Ry. Co. v. Ohio,

173 U.S. 285, 286 (1899) (discussing an 1889 state law that

authorized “any person” to sue persons who violate a state

rail law to collect civil monetary penalties payable to “the

general fund of the county”). Indeed, courts have always

been thought to have Article III jurisdiction to incarcerate

condemners in civil contempt proceedings initiated by one

private party against another, because incarceration coerces

compliance. See, e.g., Gompers v. Buck’s Stove & Range

Co., 221 U.S. 418, 442, 444-45 (1911) (stating that

imprisonment for civil contempt “is intended to be remedial

by coercing the defendant to do what he has refused to do”

and that “[p]roceedings for civil contempt are between the

original parties”). Likewise, in the Framers’ era, creditors

apparently had a justiciable interest in having their debtors

imprisoned. Cf. Randolph v. Donaldson, 13 U.S. (9 Cranch.)

76, 84-86 (1815) (discussing a federal law under which a

federal marshal could be liable to a private creditor for the

Va

Civil Penalties. — — Despite the fact that ld

involved only past violations, Vallejo argues that Steel

Company prohibits civil monetary penalties for ongoing

violations because “the [Steel Company] Court relied on

two cases *** where the alleged violations and resulting

harms were ongoing.”/ Because neither of these other

escape of a debtor who was in the marshal’s custody); Snead

v. McCoull, 53 U.S. (12 How.) 407, 410 (1851) (noting that

the debtor was incarcerated upon a writ of capias ad

satisfaciendum under an 1800 federal law); Sir William

Holdsworth, 8 A History of English Law 231 (2d ed. 1937)

(reprinted 1966) (explaining that, at common law, a writ of

capias_ad_satisfaciendum allowed a creditor to “take his

debtor’s body in execution”). Certainly such incarceration

and imprisonment has a greater element of retribution than

does the assessment of monetary civil penalties, and yet

private litigants could seek such sanctions, because they

coerce compliance.

9/Vallejo also relies on Friends of the Earth v. Laidlaw Envtl.

Serv. (TOC), Inc., 149 F.3d 303 (4th Cir. 1998), petition for

cert. filed, No. 98-822 (Nov. 9, 1998), and San Francisco

BayKeeper v. Cargill Salt, No. C 96-02161 CAL (N.D. Cal.

Nov. 19, 1988) (unpublished order). As noted in a recent

decision from the Southern District of California, Laidlaw

involved violations that had ceased, and is factually dissimilar

from this case. See Op. and Order Denying Mot. to

Preclude Civil Penalties 2, Natural Resources Defense

Council v. Southwest Marine, Inc., Civ. No. 96 CV 1492-B

(AJB) (Nov. 19, 1998). In any event, based on the

arguments presented in this brief, the United States

respectfully suggests that both cases were wrongly decided.

26a

cases involved claims for civil penalties, or even suits

against the party that had injured the plaintiffs, both cases

are inapposite.

In Simon v. Eastern Kentucky Welfare Rights

Organization, 426 U.S. 26, 32-33 (1976), several

individuals who had been denied hospital service due to

indigency, as well as several organizations that represented

such individuals, challenged an Internal Revenue Service

(IRS) ruling that, according to the plaintiffs, unlawfully

encouraged some hospitals to deny benefits to indigents.

The plaintiffs did not sue the hospitals that had denied

them service, however. Id. at 41. Thus, Simon did not

involve specific deterrence at all, but instead raised a

question whether an IRS ruling caused the plaintiffs’

injuries by encouraging unlawful conduct. Faced with a

rather tenuous nexus between the alleged violation and

claimed injury, the Court held that the plaintiffs lacked

standing. “[I]t is purely speculative whether the denials of

service” were caused by the IRS, the Court said, id. at 42-

43, and therefore it was “equally speculative” whether a

remand for the IRS to reconsider its ruling would lead to

more hospital service for the plaintiffs, id. at 43. As with

Steel Company, a ruling for the Simon plaintiffs would at

most have served to “vindicat[e] the rule of law,” Steel

Co., 118 S. Ct. at 1018, because the plaintiffs suggested

“no substantial likelihood that victory in this suit would

result in” a benefit to the plaintiffs, Simon, 426 U.S. at 45-

46. Here, by contrast, BayKeeper seeks to deter future

unlawful (and injurious) discharges by asking this Court to

assess civil monetary penalties directly against the violator.

In Linda R. S. v. Richard D., 410 U.S. 614, 614-15

(1973), the mother of an illegitimate child sued to enjoin

discriminatory application of a state statute that

27a

criminalized parents’ willful neglect or nonsupport of their

children. The state statute had been interpreted by the state

courts to apply only to the parents of legitimate children,

however, and to impose no duty on parents of illegitimates.

Id. at 615. The plaintiff sought an injunction requiring the

local district attorney to prosecute the father of her

unsupported, illegitimate child. Id. at 616. The Court held

that she lacked standing, because “in the unique context of

a criminal statute, appellant has failed to allege a sufficient

nexus between her injury and the government action which

she attacks.” Id. at 617-18.

Linda R. S. turned on the longstanding rule that “a

citizen lacks standing to contest the policies of the

prosecuting authority when he himself is neither prosecuted

nor threatened with prosecution.” Id. at 619. The plaintiff

sought an injunction against a defendant, the local district

attorney, who had not directly caused the plaintiff any

injury. Id. at 616. As Simon later explained, “[t]he

principle of Linda R. S. * * * is that indirectness of injury,

while not necessarily fatal to standing, may make it

substantially more difficult to meet the minimum

requirement of Art. III.” 426 U.S. at 44-45 (internal quote

marks omitted). The Court noted that “(t]he prospect that

prosecution will, at least in the future, result in payment of

support can, at best, be termed only speculative,” because

the requested relief “would result only in the jailing of the —

child’s father.” 410 U.S. at 618. Given that the defendant

had not directly caused the plaintiff's injuries, and in light

of the “special status of criminal prosecutions in our

system,” the court declined to find standing. 410 U.S. at

619. For, “in American jurisprudence, at least, a private

citizen lacks a judicially cognizable interest in the

prosecution or nonprosecution of another.” Id. The Court

explicitly limited its holding to “the unique context of a

28a

challenge to a criminal statute,” however. Id. at 617. That

holding is inapposite to a case, such as the present, where

the plaintiff seeks civil penalties directly against the party

that injured the plaintiff, to deter future violations by the

defendant that would directly injure the plaintiff again.'°/

10/Any extension of Linda R. S. to a civil enforcement

proceeding also runs up against the Supreme Court’s post-

Steel Company decision in Federal Election Commission v.

Akins, 118 S. Ct. 1777 (1998). The Akins Court held that a

private citizen who sought information about AIPAC, a

political action committee, had standing to challenge the

Federal Election Commission’s determination not to require

AIPAC to comply with certain federal reporting

requirements. The Akins plaintiffs sought a declaration that

FEC’s action was unlawful. Such a declaration might, or

might not, have led to reporting by AIPAC, however. Even

if on remand the FEC did require the information from

AIPAC, AIPAC might not have complied and the FEC would

have had to bring an enforcement action to get the

information that the plaintiffs sought. Id. at 1786-87.

Nevertheless, the Akins Court found standing, implicitly

rejecting an argument in the Government’s brief that the

effect of possible future civil enforcement against AIPAC

was too speculative to satisfy the redressability test. See

Federal Election Commission, No. 96-1590, U.S. Br. at 29-31

(1997 WL 523890). In the present case, the actual

imposition of civil penalties against Vallejo might be

expected to have at least as immediate a coercive effect as

the mere possibility of civil enforcement found sufficient for

redressability in Akins.

29a

Conclusion

For these reasons, Vallejo’s motion to dismiss

BayKeeper’s claims for civil penalties should be denied.

Respectfully submitted,

LOIS J. SCHIFFER

Assistant Attorney General

By:

MICHAEL E. WALL

Attorney for Amicus Curiae

United States of America

90-12-01140

December 11, 1998

30a

CERTIFICATE OF SERVICE

I hereby certify that, on December 11, 1998, I

caused a copy of the BRIEF OF THE UNITED STATES

AS AMICUS CURIAE IN RESPONSE TO DISTRICT’S

MOTION TO DISMISS PLAINTIFF’S CIVIL PENALTY

CLAIMS to be served by Federal Express, postage pre-

paid, on:

John Briscoe

Sandi L. Nichols

Wendy Lou Manley

Washburn, Briscoe & McCarthy

A Professional Corporation

55 Francisco Street , Suite 600

San Francisco, California 94133

Albert M. Lavezzo

Favaro, Lavezzo, Gill, Caretti & Heppel

Courthouse Plaza, Suite A

300 Tuolumne Street

Vallejo, California 94590-5787

Deborah S. Reames, Esq.

Earth Justice Legal Defense Fund

180 Montgomery Street, Suite 1725

San Francisco, California 94104-4209

Daniel G. Cooper, Esq.

San Francisco BayKeeper

Presidio - Building 1004

P.O. Box 29921

San Francisco, California 94129-0921

3la

CHRISTOPHER YATES

Legal Support Assistant

United States Department of Justice

Environment and Natural Resources Division

P.O. Box 4390

Washington, D.C. 20044-4390

(202) 514-1442

32a 33a

No. 98-822 (b) |The NPDES permit issued by the State

a of South Carolina for the discharge of

pollutants by the incinerator has not

been terminated or withdrawn.

SUPREME COURT OF THE UNITED STATES

(c) Laidlaw acquired Safety-Kleen in

OCTOBER TERM, 1998

April 1998. Laidlaw changed its name

to Safety-Kleen.

FRIENDS OF THE EARTH, et al.,

Petitioners, (d) Laidlaw/Safety-Kleen operates at least

v. 16 other NPDES permitted facilities in

Illinois, Louisiana, Kentucky,

LAIDLAW ENVIRONMENTAL SERVICES (TOC), INC., Mi i New Viewinia and

Respondent. T ) —

exas.

On Petition for a Writ of Certiorari (¢) Plaintiffs Friends of the Earth and the

to the United States Court of Appeals Sierra Club have members who use the

waters affected by Laidlaw/Safety-

for the Fourth Circuit

Kleen’s discharges from some of these

facilities and their use and enjoyment

AFFIDAVIT OF BRUCE J. TERRIS of these waters is adversely affected by

illegal discharges from these facilities.

1, Bruce J. Terris, do hereby affirm and state:

Pursuant to 28 U.S.C. 1746, I declare under penalty

l. I am counsel for plaintiffs in the above-

captioned case. of perjury that the foregoing is true and correct. Executed on

2. My staff has obtained the following January 19, 1999.

information relating to-the shut down of the incinerator of

Laidlaw Environmental Services (TOC), Inc., in Roebuck, AT

South Carolina and other facilities operated by Laidlaw: —

BRUCE J. TERRIS

(a) The incinerator was shut down in

August 1998.