# Reply Brief — Friends of Earth v. Laidlaw Environmental Services

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0244%3A05

## Record

- **Collection:** Supreme Court brief
- **Document type:** Reply Brief
- **Published:** January 1, 2000
- **Citation:** 528 U.S. 167

## Text

sae ©
IAN 19 1999

(4)

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

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0244%3A05. Public record. Not legal advice.