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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0244%3A06

## Record

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

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0244%3A06. Public record. Not legal advice.