Amicus Curiae Brief — Friends of Earth v. Laidlaw Environmental Services

Supreme Uourt,

: k 1 lt ED

(h ) JAN 15 9

IN THE

Supreme Court of the United States

OcTOBER TERM, 1998

LAIDLAW

FRIENDS OF THE EARTH, et ai.,

Petitioners,

vs.

ENVIRONMENTAL SERVICES (TOC), INC.,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF OF AMICI CURIAE

SOUTH CAROLINA CHAMBER OF COMMERCE,

ENVIRONMENTAL MANAGEMENT ASSOCIATION

OF SOUTH CAROLINA AND SOUTH CAROLINA

MANUFACTURERS ALLIANCE

IN SUPPORT OF RESPONDENT

VIRGINIA ANN

MULLIKIN DEBORAH ANN HOTTEL

MULLIKIN LAW FIRM Counsel of Record

P.O. Box 745

Camden, South

(803) 425-4595

Counsel for Environmental

McNAIR LAW FIRM, P.A.

Carolina 29020 P.O. Box 11390

Columbia, South Carolina 29211

(803) 799-9800

Management Association of Counsel for South Carolina

South Carolina

Chamber of Commerce and

South Carolina Manufacturers

Alliance

—

150773

@© Counsel Press LLC

FORMERLY LUTZ APPELLATE SERVICES

(800) 274-3321 + (800) 359-6859

nee

i

QUESTIONS PRESENTED

1. Whether Petitioners lack standing under Article III of

the United States Constitution because the only potential relief

available to redress their claimed injuries is the civil penalty

assessed against Laidlaw and payable to the United States

Treasury.

2. Whether Petitioners’ failure to obtain relief on the merits

of their claims precludes any recovery of attorneys’ fees or

other litigation costs because such an award is available only

to a prevailing or substantially prevailing party under 33

U.S.C.A. § 1365(d) (West Supp. 1998).

3. Whether the citizen suit should have been barred even

if the Fourth Circuit had concluded that Petitioners had standing

because DHEC had diligently prosecuted Laidlaw.

i

PARTIES TO THE PROCEEDING

Respondent did not agree that Citizens Local

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

Club should be parties in this action. CLEAN and Sierra Club

never filed 60-day notice letters and, therefore, should not be

parties. 33 U.S.C.A. § 1365(b) (1986).

ill

TABLE OF CONTENTS

Questions Presented ....... 2.2.66 cee cece e ee enes

Parties to the Proceeding .............6.eseeeeees

MUD ccc ccccccccccccccccccccscccces

Table of Cited Authorities .............6 600 e eee

ee kk cece ccecceens

Opinions Below, Jurisdiction, Statutes Involved and

Statutory Background ......... 2.6... 66 e eee eee

CED . cc ccccccccccccccececcccces

Reasons for Denying the Petition .................

I. The Court Of Appeals For The Fourth Circuit

Properly Held That The Petitioners Lack Standing

Under Article III Of The Constitution Of The

ESE OTT TT ITIL E LE

Il. The Fourth Circuit Properly Denied The

Petitioners The Recovery Of Attorneys’ Fees And

in ceeasadesecoccesccoccces

III. The District Court Erred In Failing To Bar The

Citizen Suit Due To Diligent Prosecution By

Cries chdwectececcccecccceces

EEE

iv

TABLE OF CITED AUTHORITIES

Page

Cases:

Arkansas Wildlife Federation v. ICI Americas, Inc., 842

F. Supp. 1140 (E.D. Ark. 1993), aff'd, 29 F.3d 376

(CA8 1994), cert. denied, 513 U.S. 1147, 115 S. Ct.

SUUEUNED Sdenencctesededsassaddunnutensans 10

Atlantic States Legal Foundation v. Eastman Kodak Co.,

933 F.2d 124(CA2 1991) ...... 00... eee, 11,12

Connecticut Coastal Fishermen's Association v.

Remington Arms Co., 777 F. Supp. 173 (D. Conn.

DONE 6d6a60ucdeneeskeseéuesenun ee 10, 12

Connecticut Fund for Env't v. Upjohn Co., 660 F. Supp.

1397 (D. Conn. 1987) ......................... 10

Conte Bros. Auto. v. Quaker State-Slick 50, Inc., No. 98-

5136, 1998 U.S. App. LEXIS 32595 (CA3 Dec. 30,

1998)

Friends of the Earth, 149 F.3d 303 (CA4 Se S| A

Gwaltney of Smithfield, Ltd. vy. Chesapeake Bay

Foundation, 484 U.S. 49, 108 S. Ct. 376 (1987) ...

peeenvensaciedadeoseedeseeéeoes 4,5, 6, 10, 11, 12, 13

Harmon Industries, Inc. v. Browner, 19 F. Supp. 2d 988

(W.D. Mo. 1998)

v

Cited Authorities

Page

Mianus River Preservation Comm. v. Envt'l Protection ;

Agency, 541 F.2d 899 (CA2 EEGED ececcceccesese l

Mixer v. M.K.—Ferguson Co., No. 6:98-0326, 1998 U.S.

Dist. LEXIS 12801 (W.D.W.V. Aug. 12, 1998) ... 6

North and South Rivers Watershed Assn. v. Scituate, 949

F.2d 552 (CA1 1991) .......- cece reece eee eee 10, 1

Schurr v. Resorts Int'l Hotel, 16 F. Supp. 2d 537 (D.N.J. ;

PPPPPPPTTTCTTTITITI Te

Steel Co. v. Citizens For A Better Env't, 523 U.S. 83, ,

118 S. Ct. 1003 (1998) ........ cece eee eeeee 4, 5, 6, 7,

USEPA v. City of Green Forest, 921 F.2d 1394 (CA8 a

- /PPPPPPPPETTTITIT TTT Te PTTTT

Woodlands Ltd. v. Nationsbank, N.A., No. 97-1813, 1998

U.S. App. LEXIS 23716 (CA4 Sept. 23, 1998) .... 5

Statutes:

33 U.S.C.A. § 1251(a) (1986 and West Supp. 1998)... 2, 13

33 U.S.C.A. § 1365(b) .. 6... eee eee eee eee eee il

33 U.S.C.A. § 1365(b)(1 M(B)... . 66 eee eee eee 8,9

33 U.S.C.A. § 1365(d) (West Supp. 1998) ........-. i, 7

vi

Cited Authorities

Page

United States Constitution:

Article III of the Constitution of the United States

ee i ee Te er rere ane 1, 3, 4, 5,6

Rules

MEER OTEN thhddhennnenwiddeuckulessauu ce. 8

PIE teiteeudaGueenadeue ted). l

Other Authorities:

2 A Legislative History of the Water Pollution C ontrol

Act Amendments of 1972, p. 1482 SR dosuoeas 10

Frank P. Grad, Treatise on Environmental Law, 3-303

ee ee re ee 10

l

INTEREST OF AMICI CURIAE'

The South Carolina Chamber of Commerce (“Chamber”)

is comprised of regulated businesses and industries from across

the State of South Carolina. The Chamber actively participates

in the administrative, regulatory and legislative issues affecting

industry in South Carolina. Through its Environmental and

Technology Committee, the Chamber comments frequently on

environmental policies, guidelines, regulations, and legislative

measures that would directly affect the operations of its

membership. As such, the Chamber is keenly interested in this

appeal and the effect this Court’s decision will have on its

membership.

The Environmental Management Association of South

Carolina (“EMA”) is a group of environmental professionals

from South Carolina industry that promotes responsible waste

management practices to protect the environment. The EMA

serves communities and businesses by advising and

safeguarding members’ and the public’s interests through

regulatory and legislative incentives, public relations, and

educational programs. EMA members have a direct interest in

the development of laws under which they are regulated, such

as the Federal Water Pollution Control Act, and they are directly

affected by these administrative agency regulations and

procedures.

1. Pursuant to Sup. Ct. R. 37.6, Laidlaw Environmental Services,

Inc., now known as Safety-Kleen Corp., parent corporation of

Respondent, is a member of the South Carolina Chamber of Commerce

and the Environmental Management Association of South Carolina and

has made a monetary contribution to the preparation and submission of

this brief. Deborah Ann Hottel, Counsel for the South Carolina Chamber

of Commerce and the South Carolina Manufacturers Alliance, and

Virginia Ann Mullikin, Counsel for the Environmental Management

Association of South Carolina, are the sole authors of this brief. Letters

of consent have been filed with the Clerk of the Court.

2

The South Carolina Manufacturers Alliance (“SCMA”) is

a trade association representing South Carolina manufacturers.

The primary function of the SCMA is to serve as the

manufacturing industry’s government liaison. SCMA maintains

constant Communication with state government agencies on

issues of interest to its members. SCMA currently has nine

standing committees, including the Environmental Committee,

and four divisions. Its 77 member organizations represent over

80,000 employees statewide.

The Chamber, the EMA and the SCMA (“Amici Curiae”)

recognize the value of citizen suits as an important component

of enforcement of the Federal Water Pollution Control Act and

believe that they can provide a strong incentive for regulated

entities to comply with the Act in furtherance of the Act’s

principal objective to “restore and maintain the chemical,

physical, and biological integrity of the Nation’s waters.” 33

U.S.C.A. § 1251(a) (1986 and West Supp. 1998). The Amici

Curiae, however, oppose a judicial broadening of the

Congressional circumscription of these laws which the

Petitioners urge. Thus, on behalf of their members, the Amici

Curiae submit this joint brief to express the views of their

regulated members in support of Respondent Laidlaw

Environmental Services (TOC), Inc., now known as Safety-

Kleen Roebuck, Inc.

INTRODUCTION

Amici Curiae South Carolina Chamber of Commerce,

Environmental Management Association of South “arolina, and

South Carolina Manufacturers Alliance respectfully request that

this Court deny the Petition for Writ of Certiorari which seeks

review of the Fourth Circuit’s opinion in this case. That opinion

is reported at 149 F.3d 303 (CA4 1998).

3

OPINIONS BELOW, JURISDICTION, STATUTES

INVOLVED AND STATUTORY BACKGROUND

The Petition for Writ of Certiorari accurately sets out the

opinions below, the grounds for jurisdiction, the statutes

involved and the statutory background.

STATEMENT OF THE CASE

Amici Curiae adopt the Statement of the Case as set forth

in the Brief in Opposition of the Respondent.

REASONS FOR DENYING THE PETITION

I.

E COURT OF APPEALS FOR THE FOURTH

CRCUIT PROPERLY HELD THAT THE PETITIONERS

LACK STANDING UNDER ARTICLE III OF THE

CONSTITUTION OF THE UNITED STATES.

(Petitioners’ Arguments 1, 2, 3, 4, 5 and 6).

In order to have standing, the Petitioners must meet three

elements: (1) the Petitioners must have suffered an actual or

threatened injury in fact; (2) the injury must have been caused

by Laidlaw’s conduct; and (3) the injury must be redressable

by the relief sought. Friends of the Earth, 149 F.3d 303, 306

(CA4 1998). These elements must continue to exist at every

stage of review, not merely at the time of filing. Otherwise, the

action becomes moot. /d.

The Fourth Circuit reasoned that since the Petitioners did

not appeal the denial of declaratory and injunctive relief, the

only relief available was the civil penalty imposed on Laidlaw

which would be paid to the United States Treasury. Relying on

4

Steel Co. v. Citizens For A Better Env't, 523 U.S. 83, 118 S.

Ct. 1003 (1998), the Fourth Circuit held that civil penalties

payable to the government could not redress any injury the

Petitioners may have suffered. Hence, the Fourth Circuit

properly vacated the order of the district court and remanded

with instructions to dismiss the action.

The Petitioners raise as a reason for granting the Petition

that the Fourth Circuit’s opinion is directly inconsistent with

this Court’s opinion in Gwaltney of Smithfield, Ltd. y.

Chesapeake Bay Foundation, 484 U.S. 49, 108 S. Ct. 376

(1987). Petition for Writ at 8 and 13.

Steel Co. simply held that Article III jurisdiction is always

the antecedent question, as Justice O’Connor and Justice

Kennedy recognized. In his concurring opinion, Justice Stevens

took issue with this statement. As stated in his concurrence

Justice Stevens believes the Steel Co. case presents two

questions: (1) whether EPCRA confers federal jurisdiction over

citizen suits for wholly past violations; and (2), if so, whether

respondent has standing under Article III.

Justice Stevens opined that the Court elected to decide the

constitutional question first and, in doing so, “has created new

constitutional law.” Steel Co., 523 U.S. at, 188 S. Ct. at

1021. Justice Stevens’s argument revolves around the question

of which issue to decide first. For him, the choice in Steel Co.

is between two jurisdictional issues, and the Court has routinely

held that, when presented with two jurisdictional issues, the

Court may choose which one to answer first. In the Steel Co.

decision, Justice Stevens stated it would have been “prudent to

answer the question of statutory construction before announcing

new constitutional doctrine” as was the case in Gwaltney. The

decision in Gwaltney stands for the proposition that the Court

clearly has the power to decide the Statutory question first. Stee/

5

Co.,5z. ‘J.S.at__, 1188S. Ct. at 1025. Therein lies the problem

with the Petitioners’ argument in this case.

In their Petition for Writ, the Petitioners repeatedly state

that the issue here is not standing as in Stee/ Co., but mootness

as in Gwaltney. See Petition for Writ at 11 and 13. However,

as the Fourth Circuit aptly stated recently in Woodlands Ltd. v.

Nationsbank, N.A., No. 97-1813, 1998 U.S. App. LEXIS 23716

(CA4 Sept. 23, 1998), the doctrine of standing often implicates

that of mootness; the three standing elements must exist

throughout the pendency of the litigation. Otherwise, the case

becomes moot. What Justice Stevens pointed out in his

concurrence is that the Steel Co. decision has effectively

eliminated the opportunity to choose which jurisdictional issue

to address first. In Gwaltney, the Court addressed the statutory

issues first of whether the statute conferred jurisdiction over

citizen suits for wholly past violations and whether the

allegation of on-going injury sufficed to support jurisdiction.

As Justice Stevens states, the fact that the Court did not address

standing in Gwaltney does not establish that the plaintiffs had

standing there. Stee! Co., 523 U.S. at__, 118 S. Ct. at 1025. It

stands simply for the proposition that regardless of how the

Court characterized the issue in Gwaltney, the Court had the

power to address the statutory issue first, and did. Steel Co.,

523 U.S. at__, 118 S. Ct. at 1025.

In Steel Co., the Court said that the Article III standing

issue must be addressed first.’ As Justice Stevens states,

2. The Third and Fourth Circuits have adopted the Steel Co. holding

by deciding the Article II] standing issue first. See Conte Bros. Auto. v.

Quaker State-Slick 50, Inc., No. 98-5136, 1998 U.S. App. LEXIS 32595

(CA3 Dec. 30, 1998) (question of Article III standing should be addressed

before issues of prudential and statutory standing); Schurr v. Resorts

Int'l Hotel, 16 F. Supp. 2d 537 (D.N.J. 1998) (federal courts must first

(Cont'd)

6

“[w]hether correct or incorrect, the Court’s constitutional

holding represents a significant extension of prior case law.”

523 U.S. at __, 118 S. Ct. at 1027. This case is a “significant

new development in our constitutional jurisprudence.” 523 U.S.

at__, 118 S. Ct. 1030. The Petitioners herein propose that the

Court ignore this new development and continue to decide

statutory issues before Article III issues, as was done in

Gwaltney. That choice no longer exists. When Article III

standing ceases to exist, “the only function remaining to the

court is that of announcing the fact and dismissing the cause.”

Steel Co., 523 U.S. 83, _, 118 S. Ct. 1003, 1012.

The Petitioners did not appeal the denial of declaratory

and injunctive relief and have as their only relief the civil

penalty imposed upon Laidlaw to be paid to the United States

Treasury. As Justice Stevens pointed out, although the Court

in Steel Co. failed to specify why payment to the Respondent

would redress Respondent’s injuries and why payment to the

United States Treasury does not, Steel Co. holds that payment

of the civil penalty is the only proper relief, and thus, the Fourth

Circuit's reliance upon this holding is proper. “Relief that does

not remedy the injury suffered cannot bootstrap a plaintiff into

federal court; that is the very essence of the redressability

requirement.” 523 U.S. at__, 118 S. Ct. at 1019. A generalized

interest in deterrence is insufficient for purposes of Article III.

523 U.S. at__, 118 S. Ct. at 1019.

We 2 ‘ee with the Respondent that Laidlaw was not

brought into compliance in response to litigation. The

Petitioners’ assertion to the contrary is not accurate. Petitioners

(Cont'd)

squarely address the question of subject matter jurisdiction); Mixer v.

M.K.—Ferguson Co., No. 6:98-0326, 1998 U.S. Dist. LEXIS 1280!

(W.D.W.V. Aug. 12, 1998) (this term the Supreme Court invalidated

the practice of addressing questions on the merits without addressing

jurisdictional questions first).

7

also argue that there is no evidence that makes it absolutely

clear that Laidlaw’s allegedly wrongful behavior could not be

reasonably expected to recur. Petition for Writ at 19. Again,

this statement is not accurate. The facility has been in closure

since August 1998 pursuant to a consent order entered into with

DHEC. As stated by this Court in Stee/ Co., “[i]t is an immense

and unacceptable stretch to call the presumption into service

as a substitute for the allegation of present or threatened injury

upon which initial standing must be based.” 523 U.S. at __,

118 S. Ct. at 1020.

THE FOURTH CIRCUIT PROPERLY DENIED THE

PETITIONERS THE RECOVERY OF ATTORNEYS’

FEES AND OTHER COSTS.

(Petitioners’ Arguments 7 and 8).

In a footnote, the Fourth Circuit ruled that the failure of

FOE, et al. to obtain relief on the merits of their claims precludes

any recovery of attorneys’ fees or other litigation costs because

such an award is available to only a “prevailing party or

substantially prevailing party. 33 U.S.C.A. § 1365(d) (West

Supp. 1998).” Friends of the Earth, 149 F.3d at 307 n.5.

In response, the Petitioners submit a lengthy argument that

the Fourth Circuit decision is “of devastating consequence to

citizen suits under the Clean Water Act and other environmental

statutes,” “is almost certain to lead environmental groups to

cease bringing citizen suits,” and “will affect the willingness

of lawyers to bring not only citizen suits under environmental

statutes but suits under civil rights statutes and other statutes

where Congress has provided for fee-shifting.” Petition for Writ

at 26, 27 and 29.

8

These statements are without merit. If anything, the

decision will cause plaintiffs to avoid pursuing citizen suits in

instances where the violation has resulted in no harm to the

environment and the state has “diligently prosecuted” the

violation. Members of the bar should properly evaluate the case

before them to determine if the state has “diligently prosecuted”

and, if so, refrain from incurring millions of dollars in attorneys’

fees at the expense of their citizen-plaintiffs pursuing a case

that should not be brought in the first instance. This holding by

no means should discourage plaintiffs from properly bringing

citizen suits in those instances where diligent prosecution has

not occurred — the sole purpose of the citizen-suit provision

of the Federal Water Pollution Control Act. The Fourth Circuit

indirectly has held true to the dictates of 33 U.S.C.A.

§ 1365(b)(1)(B) and correctly applied the holding in Steel Co.

Indeed, an interest in attorneys’ fees is insufficient to create an

Article III case or controversy where none exists on the merits

of the underlying claim. 523 U.S. at __, 118 S. Ct. at 1019.

Having reviewed the Petitioners’ argument and underlying

authorities, the Amici Curiae in accordance with Sup. Ct. R.

37.1 can bring to the attention of this Court no further relevant

material not already brought to the attention of this Court by

the Respondent in its Brief in Opposition. Therefore, Amici

Curiae support in its entirety the argument made by the

Respondent.

Ill.

THE DISTRICT COURT ERRED IN FAILING TO BAR

THE CITIZEN SUIT DUE TO DILIGENT

PROSECUTION BY DHEC.

FOE, et al., appealed the order of the district court arguing

that the district court abused its discretion by imposing an

inadequate penalty. Laidlaw cross appealed claiming that FOE,

9

et al. lacked standing to institute this action because they

suffered no injury in fact and that

this suit should have been barred because the South

Carolina Department of Health and Environmental

Control (DHEC) diligently prosecuted a prior action

regarding the same violations. See 33 U.S.C.A.

§ 1365(b)(1)(B).

Friends of the Earth, 149 F.3d303, 305 (CA4 1998).* Although

the Fourth Circuit concluded that the action was moot for lack

of standing and, therefore, did not address the diligent

prosecution issue in its decision, the Amici Curiae remain

concerned about the district court’s conclusion. Even if the

Fourth Circuit had concluded that the Petitioners had standing,

the district court erred in failing to bar the citizen suit and in

ruling that DHEC had not diligently prosecuted Laidlaw within

the meaning of Section 1365(b)(1)(B) for the following reasons.

This Court has recognized that agencies administering the

Federal Water Pollution Control Act are to be given significant

discretion and has outlined the role of citizen suits.

The bar on citizen suits when governmental

enforcement action is under way suggests that the

citizen suit is meant to supplement rather than to

supplant governmental action. The legislative

history of the Act reinforces this view of the role of

the citizen suit. The Senate Report noted that “[t]he

Committee intends the great volume of enforcement

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

Federal Water Pollution Control Act may not be commenced when the

“State has commenced and is diligently prosecuting a civil . . . action in

a court of the ... State to require compliance.” 33 U.S.C.A.

§ 1365(b)(1)(B) (1986).

10

actions [to] be brought by the State,” and that citizen

suits are proper only “if the Federal, State, and local

agencies fail to exercise their enforcement

responsibility.”

Gwaltney, 484 U.S. 49, 60, 108 S. Ct. 376, 383 (1987) (quoting

S. Rep. No. 92-414, p. 64 (1971) reprinted in 2 A Legislative

History of the Water Pollution Control Act Amendments of

1972, p. 1482 (1973) (emphasis added)). The 1987 amendments

to the Federal Water Pollution Control Act reflect a shift of

enforcement emphasis to the state agencies. Connecticut

Coastal Fishermen's Association v. Remington Arms Co., 777

F. Supp. 173, 177 (D. Conn. 1991) (citing Frank P. Grad,

Treatise on Environmental Law, 3-303). States are afforded

some latitude in selecting the specific mechanisms of their

enforcement program in that the state agency must be given

great deference to proceed in a manner it considers in the best

interests of all the parties involved. Arkansas Wildlife

Federation v. ICI Americas, Inc., 842 F. Supp. 1140, 1147 (E.D.

Ark. 1993), aff'd, 29 F.3d 376 (CA8 1994), cert. denied, 513

U.S. 1147, 115 S. Ct. 1094 (1995). Citizen suits are to “ignite

agency enforcement” and to act as an “alternative enforcement

mechanism absent agency enforcement.” Connecticut Fund for

Env 't v. Upjohn Co., 660 F. Supp. 1397, 1403 (D. Conn. 1987)

(emphasis added). Thus, unless the state has failed or declined

to take action, a citizen suit is not authorized. USEPA v. City

of Green Forest, 921 F.2d 1394, 1405 (CA8 1990); see North

and South Rivers Watershed Assn. v. Scituate, 949 F.2d 552,

557 (CA1 1991); see also Remington Arms, 777 F. Supp. at

179.

An analysis of whether or not “diligent prosecution” has

taken place does not encompass de novo assessment of whether

the agency’s procedure in seeking enforcement and computing

sanctions conforms to those that the citizen group or the court

11

wishes to impose. See Gwaltney, 484 U.S. 49, 61, 108 S. Ct.

376, 383 (1987); Atlantic States Legal Foundation v. Eastman

Kodak Co., 933 F.2d 124, 127 (CA2 1991).

In order to overcome the presumption of DHEC’s diligent

prosecution, the Petitioners were required to show that the

actions by DHEC amounted to inaction. See Gwaltney, 484 U.S.

at 60, 108 S. Ct. at 383; see also Scituate, 949 F.2d at 555.

In this case, Laidlaw paid a substantial penalty, expended

over a million dollars in upgrading its system, and complied

with its NPDES permit as a result of DHEC’s enforcement

action. A citizen suit to visit the identical issues, absent fraud

or collusion, is inappropriate.‘ Scituate, 949 F.2d at 556.

Moreover, the First Circuit has held that diligent

prosecution by a state agency does not require assessing any

penalty at all. In Scituate, the First Circuit rejected the plaintiff's

argument that for the state agency’s action to be considered

“diligently prosecuted” a penalty must be assessed. Such an

interpretation would enable citizen suits to expand the

“supplemental” role envisioned for citizen suits and create a

potentially intrusive role for citizens. Scituate, 949 F.2d at 556,

558 (citing Gwaltney). “Diligence” is the act of remedying the

violations. Scituate, 949 F.2d at 558. The mere fact that the

state does not take the precise action plaintiffs desire does not

constitute lack of diligence. Jd. at 558.

The district court in the instant case essentially substituted

its judgment for that of DHEC in determining what the penalty

should be, thereby allowing the citizen suit to supplant rather

than supplement the government action. DHEC’s enforcement

action brought Laidlaw into full compliance, assured that no

4. The district court found that the action between DHEC and

Laidlaw was not the product of fraud or collusion. (JA 89).

12

harm to the environment occurred, and resulted in a substantial

monetary penalty. The actions of DHEC were diligent in

remedying the noncompliance and DHEC did not fail “ ‘to

exercise [its] enforcement responsibility.” ”" Gwaltney, 484 U.S.

at 60, 108 S. Ct. 383.

A citizen suit may not be brought merely to obtain penalties

and attorneys’ fees when the agency has already remedied the

problem causing the violations.’ /d.; City of Green Forest, 921

F.2d at 1405.

Citizens suing under the Federal Water Pollution Control

Act are “private attorneys general”; thus, there is little left to

be done after the government has negotiated an agreement. City

of Green Forest, 921 F.2d at 1405. Penalties recoverable under

the Act are payable to the United States Treasury and are not

recovered by the aggrieved citizens. /d. While a citizen may be

dissatisfied with an agency's ultimate resolution, the filing of

a citizen suit due to dissatisfaction would impinge on the

authority and autonomy of the federal and state agencies.

Remington Arms, 776 F. Supp. at 179; see generally Harmon

Industries, Inc. v. Browner, 19 F. Supp. 2d 988 (W.D. Mo. 1998)

(in case of first impression under Resource Conservation and

Recovery Act, court held that EPA did not have the authority

to impose its own separate penalties after an industry negotiates

a consent decree with the authorized state agency and that

settlement is approved by an appropriate state authority; were

5. The Second Circuit was faced with a similar issue in Atlantic

States Legal Foundation v. Eastman Kodak, 933 F.2d 124 (CA2 1991).

The Court held that a citizen suit cannot proceed when its actual purpose

is to challenge the terms of a settlement reached by state officials where

the settlement reasonably assures that the alleged violations have ceased

and will not recur. This holding is based upon the fact that a citizen suit

is to stop violations of the Federal Water Pollution Control Act and not

to challenge the appropriate state and federal authorities. /d. at 127.

13

it otherwise, none of the state’s powers would ever have the

same force and effect because the EPA could modify, by

piecemeal measures, any action taken by the states).

This Court has recognized that judicial involvement might

ultimately discourage out of court settlements between agencies

and regulated entities, since an incentive to settle would be

diminished if subsequent citizen suits were allowed. Gwaltney,

484 U.S. at 60-61, 108 S. Ct. at 383. Given the history of the

Federal Water Pollution Control Act, this could not have been

the Congressional intent. /d.

By enacting the Water Pollution Control Act, Congress

envisioned a partnership where states would assist in the

protection of the Nation’s waterways. See Mianus River

Preservation Comm. v. Envt'l Protection Agency, 541 F.2d 899

(CA2 1976). South Carolina has dedicated vast resources, time

and thoughtful study to implement these programs — programs

upon which South Carolina industry has a right to rely.

Duplicative actions aimed at exacting financial penalties

in the name of environmental protection do not further the goal

of the Federal Water Pollution Control Act to restore and

maintain the chemical, physical, and biological integrity of the

Nation’s waters. 33 U.S.C.A. § 1251(a) (1986).

If DHEC’s discretionary penalty assessment procedure

were not upheld as adequate, and, therefore, as diligent

prosecution, the business community is concerned that virtually

every DHEC enforcement action could be followed by a citizen

suit alleging nondiligent prosecution on the part of the state,

thereby changing the citizens’ role from “interstitial to

potentially intrusive.” Gwaltney, 484 U.S. at 61, 108 S. Ct. at

383. This concern is especially accurate in instances where a

citizen group disagrees with the penalty set by the state. See

14

generally Harmon Industries, Inc., 19 F. Supp. 2d 988, 996

(1998) (RCRA gives EPA only the option of withdrawing

authorization of a state program that fails to enforce the

program, not the option to reject part of a program because

EPA believes the penalty to be inadequate. “Certainly, such a

schizophrenic approach to enforcement of RCRA would result

in uncertainty in the public mind.”).

CONCLUSION

For the foregoing reasons, the Petition for a Writ of

Certiorari of Friends of the Earth, ef a/. should be denied.

Respectfully submitted,

DEBORAH ANN HOTTEL

Counsel of Record

McNair Law Firm, P.A.

P.O. Box 11390

Columbia, South Carolina 29211

(803) 799-9800

Counsel for South Carolina

Chamber of Commerce and

South Carolina Manufacturers

Alliance

VIRGINIA ANN MULLIKIN

MULLIKIN LAW FIRM

P.O. Box 745

Camden, South Carolina 29020

(803) 425-4595

Counsel for Environmental

Management Association of

South Carolina