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

5 \ Supreme Court, Us

No. 98-822 FIRLED

IAN 15 4999

In The

Supreme Court of the United-States‘“™

October Term, 1998

+

FRIENDS OF THE EARTH, et al.,

Petitioners,

LAIDLAW ENVIRONMENTAL SERVICES (TOC), INC.,

Respondent.

+

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Fourth Circuit

+

AMICUS BRIEF OF NATURAL RESOURCES

DEFENSE COUNCIL, INC., CLEAN WATER ACTION,

INC., AMERICAN LITTORAL SOCIETY, DELAWARE

RIVERKEEPER NETWORK, CITIZENS FOR A

BETTER ENVIRONMENT, DELTA KEEPER, A

PROJECT OF THE SAN FRANCISCO BAYKEEPER,

CALIFORNIA PUBLIC INTEREST RESEARCH

GROUP, FLORIDA PUBLIC INTEREST RESEARCH

GROUP, ILLINOIS PUBLIC INTEREST RESEARCH

GROUP, MASSACHUSETTS PUBLIC INTEREST

RESEARCH GROUP, PUBLIC INTEREST RESEARCH

GROUP IN MICHIGAN, PUBLIC INTEREST

RESEARCH GROUP OF NEW JERSEY, OHIO

PUBLIC INTEREST RESEARCH GROUP, OREGON

STATE PUBLIC INTEREST RESEARCH GROUP,

AND WASHINGTON PUBLIC INTEREST

RESEARCH GROUP IN SUPPORT OF PETITION

FOR A WRIT OF CERTIORARI

+

MICHAEL AXLINE

(Counsel of Record)

Western Environmental Law Center

1216 Lincoln Street

Eugene, Oregon 97401

(541) 485-2471

COCKLE-LAW BRIEF PRINTING CO., (800) 225-6964 = be

OR CALL COLLECT (402) 342-2831 ao’.

TABLE OF CONTENTS

Page

Re eee i

a TTT TITEL TT TT TTT TTT ili

a cheek seek esedesbesecedoave l

EES GOW FUUPUFUIOUE sc ccccscccccsecccsscess l

REASONS FOR GRANTING THE PETITION ........ 5

I. The Fourth Circuit’s Opinion Creates a Conflict

as bn cent beh 6K E ee sense ees 5

Il. The Fourth Circuit’s Opinion Is Inconsistent With

The Result and the Reasoning In This Court’s

ees ee ceca eek peneenecedes’s 7

A. The Laidlaw Opinion Conflicts With the Result

Sr One 7

B. Had The Fourth Circuit Applied Gwaltney’s

Reasoning, It Would Have Concluded That

EE Oe OP SE dk ov cs oesceecessecees 9

1. Claims for civil penalties are seldom moot.. 10

2. The Defendant Carries the Burden of Dem-

onstrating Post-Complaint Compliance

ag 11

3. Mere “Protestations of Repentance and

Reform” Do Not Demonstrate That the

COMSVETEY TS BEGGS 2... ccc ccnccvccscess 13

4. The Denial of an Injunction Is Not Equiva-

lent to a Factual Finding That the Contro-

PET cc ekcdeenséoccesaeavenses 14

TABLE OF CONTENTS -— Continued

Page

IIl. The Fourth Circuit's Opinion Is Inconsistent With

The Court's Opinion In Tull v. United States That

Civil Penalties Deter Further Misconduct ........ 15

IV. The Fourth Circuit’s Opinion Raises Separation of

Powers Concerns Because It Eliminates A Remedy

Authorized By Congress And Undermines The Citi-

zen Suit Provision Of The CWA ........0scce00: 18

CONCLUSION .......csccecececn sees mene 20

~~ — ae

ill

TABLE OF AUTHORITIES

Page

Cases

Albermarle Paper Co. v. Moody, 422 U.S. 405 (1975) .... 16

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

ee cece cc enc etdeccencececes 10

Associated Industries v. Ickes, 134 F.2d 694 (2d Cir.

Atlantic States Legal Foundation, Inc. v. Pan Ameri-

can Tanning Corp., 993 F.2d 1017 (2nd Cir. 1993) .... 19

Atlantic States Legal Foundation, Inc. v. Stroh Die

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

Ee 5

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

Inc., 897 F.2d 1128 (11th Cir. 1990).............. 5, 11

Burke v. Barnes, 479 U.S. 361 (1987)................. 10

Cardinal Chemical Co. v. Morton Int'l, Inc., 508 U.S.

Tee ee eee cece eeeescceoesess 12

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

Nee ccc cece ebececescceces 6

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

es occ c ee cceceecccseess 12, 14

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

EE, UID, go con cccccccasescecees 5

Davis v. Passman, 442 U.S. 228 (1979) ............... 18

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

ee eee ee eacoscccatocesectescocecs 15

IV

TABLE OF AUTHORITIES — Continued

Page

Dubois v. Department of Agriculture, 20 F. Supp. 2d

BED GEE GEG cvccnccuceccovecccccensvnncsed 6, 18

Evans v. Jeff D., 475 U.S. 717 (1986)... 2.0... 6.0666 ee. |

Friends of the Earth, Inc. v. Laidlaw Environmental

Services (TOC), 149 F.3d 303 (4th Cir. 1998).... passim

Gwaltney of Smithfield, Ltd. v. Chesapeake Bay

,. § 2 Se Ff... Perr eee passim

Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foun-

dation, No. 86-473, Oct. Term 1987 ................. 8

Hudson v. United States, ___ U.S. __, 118 S.Ct. 488

eee ay ee

Illinois Central R.R. Co. v. Adams, 180 U.S. 28

ET Pere perry hye 14

Los Angeles County v. Davis, 440 U.S. 625 (1979)..... 10

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)..... 8

NAACP v. Button, 371 U.S. 415 (1963)................ 17

Natural Resources Defense Counsel, Inc. v. Texaco

Refining and Man., Inc., 2 F.3d 493 (3rd Cir. 1993)... .. 5

Natural Resources Defense Council v. Southwest

Marine, Inc., __ F.Supp. __, 1998 WL 832316

FF e- FO TTerre eree 6

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

807 F.2d 1089 (Ist Cir. 1986), cert. den., 484 U.S.

Gee CH ec eccccvececucnceseuenedupevvedadenscses 6

Powell v. McCormack, 395 U.S. 486 (1969).......... 8, 11

TABLE OF AUTHORITIES - Continued

Page

Preseault v. Interstate Commerce Comm., 494 US. |

PG retkddtadudecnetdisddudusieudbcnbwieee ens 18

Reich v. Occupational Safety and Health Comm'n,

102 F.3d 1200 (lith Cir. 1997)..................... 11

San Francisco Baykeeper v. Cargill Salt Division, No.

C-96-02161 (N.D. Cal.) (November 19, 1998)......... 6

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

ee: SY EE neeehskuédecdueseadesesesuess passim

Tull v. United States, 481 U.S. 412 (1987).... 1, 3, 15, 16

eee OO Gee Se Se Oe Gc vic vicccccccccccececcs 20

United States Parole Commission v. Geraghty, 445

Dt; Pst cnduadeneuucencatedacheenddnnnese 11

United States v. Concentrated Phosphate Export

Ass‘a, 393 U.S. 199 (1968) .............. 8, 12, 13, 14

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

Peéhnt oucdd cbdobawdseewoombenenesesnees 8, 12, 13

Warth v. Seldin, 422 U.S. 490 (1975) .............. 17, 19

Weinberger v. Romero-Barcelo, 456 U.S. 305 (1982) ....15, 16

STATUTES

Lg I ri Pek ee ae 4, 18

I Si i)

Leciscative History

ee es Se EE oeacccccenceccceuecseses 16

vi

TABLE OF AUTHORITIES — Continued

Page

MISCELLANEOUS

Boyer & Meidinger, Privatizing Regulatory Enforce-

ment: A Preliminary Assessment of Citizen Suites

Under Federal Environmental Laws, 34 Buff. L.

ih i + cslicc cee edeene pe eaeeeheneeienete

D. Epple & M. Visscher, Environmental Pollution:

Modeling Occurrence, Detection, and Deterrence,

ae > Ee Ge e ED bc cb edaceecocesscioes

G. Van Cleve, Congressional Power to Confer Broad

Citizen Standing in Environmental Cases, 29

Envt'l. L. Rep. 10028 (January, 1989)...............

l

INTERESTS OF AMICI

Amici parties are not-for-profit public interest organiza-

tions working to protect the environment.' Amici’s work

includes influencing environmental legislation, persuading pol-

icy makers to provide greater environmental protection, and

conducting research into environmental problems. Amici agree

with Justice Brennan, however, that in the end “enforcement of

the law is what really counts.” Evans v. Jeff D., 475 U.S. 717,

743 (1986) (Brennan, J., dissenting). Accordingly, amici par-

ties regularly employ the citizen suit provisions of environ-

mental laws (such as the Clean Water Act (CWA)) to enforce

those laws. This central function of the amici parties is threat-

ened by the Fourth Circuit’s decision in this case.

SUMMARY OF ARGUMENT

The Court should grant certiorari to review the Fourth

Circuit’s opinion in Friends of the Earth, Inc. v. Laidlaw

Environmental Services (TOC), 149 F.3d 303 (4th Cir. 1998)

because (1) the Laidlaw opinion creates a split among the

circuits; (2) the Laidlaw opinion conflicts with this Court's

opinion in Gwaltney of Smithfield, Ltd. v. Chesapeake Bay

Found., 484 U.S. 49, 66 (1987); (3) the Laidlaw opinion

conflicts with this Court’s opinions in Tull v. United States, 481

U.S. 412 (1987), and other cases discussing the deterrent value

of civil penalties, and (4) the Laidlaw opinion eliminates a

remedy authorized by Congress in the Clean Water Act (CWA).

(1) Until the Fourth Circuit's opinion in Laidlaw, every

circuit to have considered the effect of a defendant’s alleged

post-complaint compliance on the availability of civil penalties

under the CWA has applied mootness principles to determine

whether penalties remain available. The first, second, third,

fifth, seventh, eighth, and eleventh circuits have all followed

| The parties to this case have consented to the filing of this brief.

Pursuant to Supreme Court Rule 37(6), counsel for amici states that no

counsel for any party to the Petition for Certiorari authored this brief in

whole or in part and no person or party, other than amici, made a monetary

contribution to the submission of this brief.

2

this Court's suggestion in Gwaltney, supra, that a post-com-

plaint claim of mootness by a defendant based on compliance

with the CWA must meet a “heavy burden” to make it “abso-

lutely clear that the allegedly wrongful behavior could not

reasonably be expected to recur.” Gwaltney, 484 U.S. at 66.

The Fourth Circuit in the instant case, however, declined

to apply the mootness analysis of Gwaltney, and instead .

applied the standing analysis used by this Court in Steel Co. v.

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

applying standing principles (which are intended to evaluate

whether a plaintiff may invoke a court’s jurisdiction at the time

the complaint is filed), rather than mootness principles (which

are intended to analyze whether a defendant's post-complaint

conduct has deprived a court of jurisdiction that is otherwise

present), the Fourth Circuit put itself at odds with every other

circuit that has considered the tssue.

(2) The Fourth Circuit's opinion also conflicts with the

Gwaltney opinion itself. Gwaltney presented the Court with

facts remarkably similar to Laidlaw. Plaintiff in Gwaltney did

not seek injunctive relief because the defendant had not vio-

lated the CWA since the complaint was filed. Defendant argued

that the CWA only allowed citizen suits when a defendant was

“in violation” of the Act at the time a complaint was filed. The

Court held that so long as a complaint alleged in good faith

that a defendant was “in violation,” any claims by a defendant

that post-complaint events had eliminated a “case or contro-

versy” should be evaluated under traditional principles of

mootness. Gwaltney, supra, 484 U.S. at 66. The Court did not

hold that civil penalties (the only remaining remedy for plain-

tiffs) would not “redress” plaintiffs’ injuries.

Although the Gwaltney opinion was briefed to the Laidlaw

panel, the panel did not discuss Gwaltney. Instead the panel

applied the standing analysis of Steel Company and dismissed

Gwualiney with a “but see” reference. By applying the pre-

complaint standing analysis of Steel Company rather than the

post-complaint mootness analysis of Gwaltney, the Laidlaw

panel shifted the burden of proof from the defendant to the

3

plaintiff, and shifted the nature of the inquiry from one exam-

ining the defendant's conduct to one examining the plaintiff's

qualifications.

Had the Laidlaw panel followed Gwaltney and applied

mootness principles, it would have concluded that this case is

not moot. Defendant's alleged post-complaint compliance con-

sisted of easily reversed actions. Defendant had taken these

actions (adjusting mercury flow) in the past, only to later

resume violating its permit. Furthermore, claims for civil pen-

alties are not moot simply because the acts upon which the

claims are based occurred in the past. If that were so, civil

penalties could never be imposed in citizen suits, because

penalties by their nature can only be imposed for past conduct.

(3) The Court has long recognized that civil penalties

deter future misconduct. In Tull v. United States, 481 U.S. 412

(1987), the Court stated: “The legislative history of the [CWA]

reveals that Congress wanted the district court to consider the

need for retribution and deterrence . . . when it imposed civil

penalties.” 481 U.S. at 422. See also Hudson v. United States

_._-U.S. __, 118 S. Ct. 488, 494 (1997) (“all civil penalties

have some deterrent effect.”). The Laidlaw opinion reads the.

Court's Steel Company opinion as eliminating consideration of

the deterrent value of penalties when considering whether there

is a “case or controversy” within the meaning of Article III.

The Laidlaw panel stated:

Prior to Steel Co. . . . this court had held that because

‘penalties can be an important deterren[t) against

future violations,’ they could redress a private plain-

uiff’s injury from violations even though the penal-

ties are not paid to the plaintiff . . . Because Steel

Co. represents ‘a superseding contrary opinion of the

Supreme Court,’ we are required to follow it.

103 F.3d at 306, note 4. This misreading of the Steel Company

opinion puts the Laidlaw panel's opinion squarely at odds with

Tull, which not surprisingly found that civil penalties do deter

future misconduct.

(4) The legal effect of the Laidlaw panel’s opinion is to

eliminate a remedy (civil penalties) that Congress authorized in

the CWA. The practical effect of the Laidlaw panel’s opinion

4

will be to eliminate private enforcement of the CWA alto-

gether.

The citizen suit provision of the CWA, 33 U.S.C. § 1365,

provides that in citizen suits to enforce the CWA, courts “shall

have jurisdiction . . . to apply any appropriate civil penalties

under section 1319(d) of this title.” By holding that when

plaintiffs seek only civil penalties there is no Article III juris-

diction to hear the claim, the Fourth Circuit has eliminated a

remedy authorized by Congress. Such an outcome raises sep-

aration of powers issues that warrant review by this Court.

Perhaps more importantly, the Laidlaw opinion under-

mines the entire citizen suit provision of the CWA. The

Laidlaw court’s opinion creates perverse incentives for defen-

dants to delay any determination on the merits of plaintiffs

claims in CWA citizen suits, and come into compliance only

when an opinion on the merits is unavoidable. Once a defen-

dant comes into compliance, claims for civil penalties will be

the only remaining remedy, and the case will be dismissed.

Defendant can gain the economic benefit of years of post-

complaint noncompliance (in addition to the benefits of pre-

complaint noncompliance) without any penalty. Defendants

will even escape paying plaintiffs’ attorney fees, since the

Fourth Circuit refused to consider whether plaintiffs’ lawsuit

was a causative factor in Laidlaw finally coming into compli-

ance.

These perverse incentives for delay by defendants also

create preclusive disincentives for plaintiffs to prosecute in the

first instance. No reasonable plaintiff will invest years of time,

effort, and expense to prosecute a case, no matter how mer-

itorious, when the defendant can have the case dismissed at

will without consequence. Where Congress encouraged citizen

enforcement and authorized fee awards for prevailing plain-

ffs, the Fourth Circuit has discouraged citizen enforcement

and refused even to consider, when evaluating a fee request,

whether such enforcement might have caused defendant's com-

pliance.

5

REASONS FOR GRANTING THE PETITION

I. The Fourth Circuit’s Opinion Creates a Conflict Among

the Circuits.

Since this Court’s Gwaltney opinion, seven circuits have

addressed defenses based upon allegations of post-complaint

compliance in CWA citizen suits. With the exception of the

Fourth Circuit’s opinion in this case, each of these circuits has

held that claims for penalties in citizen suits under the CWA

are not moot, even though claims for injunctive relief were no

longer available because the defendants had come into compli-

ance. Each of these circuits cited Gwaltney in reaching their

conclusion. See Comfort Lake Ass'n, Inc. v. Dresel Contract-

ing, Inc., 138 F.2d 351, 356 (8th Cir. 1998) (“even if a

polluter’s voluntary permanent cessation of the alleged viola-

tions moots a citizen suit claim for injunctive relief, it does not

moot a related claim for civil penalties”) (emphasis in original)

(citing Gwaltney); Atlantic States Legal Foundation, Inc. v.

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

den., 118 S. Ct. 442 (1997) (“If the violation is cured at some

point while the suit is pending . . . the case nevertheless does

not become moot.”) (citing Gwaltney); Natural Resources

Defense Counsel, Inc. v. Texaco Refining and Man., Inc., 2 F.3d

493, 503-504 (3rd Cir. 1993) (“A citizen suit would lose much

of its effectiveness if a defendant could avoid paying any

penalties by post-complaint compliance.”) (discussing

Gwaltney); Atlantic States Legal Foundation, Inc. v. Pan Amer-

ican Tanning Corp., 993 F.2d 1017, 1020-1021 (2nd Cir. 1993)

(“A rule requiring dismissal of a citizen suit in its entirety

based on a defendant’s post-complaint compliance appears to

be in conflict with the language of the Act... We hold... that

a defendant’s ability to show, after suit if filed but before

judgment is entered, that it has come into compliance with

limits on the discharge of pollutants will not render a citizen

suit for civil penalties moot.”) (citing Gwaltney); Atlantic

States Legal Foundation, Inc. v. Tyson Foods, Inc., 897 F.2d

1128, 1135-1136 (11th Cir. 1990) (“[I]f the parties are able to

make a valid request for injunctive relief at the time the

complaint is filed, then they may continue to maintain a suit

6

for civil penalties, even when injunctive relief is no longer

appropriate.”) (discussing Gwaltney); Carr v. Alta Verde Indus-

tries, Inc., 931 F.2d 1055, 1065, n. 9 (Sth Cir. 1991) (“Even

had the improvements mooted the plaintiffs’ action for injunc-

tive relief, it would not necessarily have mooted the plaintiffs’

action for civil penalties.”) (discussing Gwaltney).

The First Circuit, in a pre-Gwaltney opinion, reached the

same conclusion. See Pawtuxent Cove Marina, Inc. v. Ciba-

Geigy Corp., 807 F.2d 1089, 1094 (Ist Cir. 1986), cert. den.,

484 U.S. 975 (1987); (“A plaintiff who makes allegations

warranting injunctive relief in good faith, judged objectively,

may recover a penalty judgment for past violations even if the

injunction proves unobtainable.”).

The Fourth Circuit’s Laidlaw opinion conflicts with the

opinions of these circuits.* Where other circuits have recog-

nized that the absence of injunctive relief does not moot a

claim for civil penalties, and that eliminating civil penalties

undermines a central provision of the CWA, the Fourth Circuit

has found that the absence of injunctive relief does moot a

2 The Laidlaw opinion is also creating confusion and disagreement

among district court opinions interpreting Steel Company. In San

Francisco Baykeeper v. Cargill Salt Division, No. C-96-02161 (N.D. Cal.)

(November 19, 1998), for example, the court held: “The U.S. Supreme

Court in [Steel Company] established an absolute rule of law that if a

plaintiff is not entitled to receive the penalties sought in the action, such as

here, where any penalties would go to the U.S. Treasury, the plaintiff does

not have standing under Article III of the Constitution to seek such

penalties. .. . See also |Laidlaw}.” In Natural Resources Defense Council v.

Southwest Marine, Inc. __ F. Supp. __. 1998 WL 832316 (S.D. Cal)

(Nov. 20, 1998), however, the court emphasized that Congress had

authorized citizens to seek civil penalties in the citizen suit provision of the

CWA, and held: “In the absence of clear case authority by either the

Supreme Court or of this Circuit, this Court will not tread so easily on the

powers inherent in the judicial branch.” /d. at 1-2. But in Dubois v.

Department of Agriculture, 20 F. Supp. 2d 263 (D.N.H. 1998), the court

held that because it had enjoined the defendant from any further violations,

“plaintiffs have failed to establish that the imposition of civil

penalties . . . would redress any harm that the plaintiffs either have

previously suffered or imminently face.” 20 F. Supp. 2d at 268.

7

claim for civil penalties, without discussing this Court's

Gwaltney opinion and without discussing whether its ruling

will undermine enforcement of the CWA. This Court should

grant certiorari to resolve the conflict.

Il. The Fourth Circuit’s Opinion Is Inconsistent With The

Result and the Reasoning In This Court’s Gwaltney

Opinion

The Fourth Circuit’s opinion in this case incorrectly

applied the standing analysis of Stee! Company, rather than the

mootness analysis of Gwaltney, to defendant's allegations of

post-complaint compliance. The result is at odds with

Gwaltney.

A. The Laidlaw Opinion Conflicts With the Result of

Gwaltney F

The Fourth Circuit “assume[d] without deciding that

Plaintiffs had standing to initiate this action and have proven a

continuous injury in fact.” Laidlaw, Appendix A at 7a. The

Laidlaw panel nevertheless cited Steel Company and concluded

that “this action is moot because the only remedy currently

available to Plaintiffs — civil penalties payable to the govern-

ment — would not redress any injury Plaintiffs have suffered.”

Laidlaw, Appendix A at 9a. The Fourth Circuit did not discuss

or apply Gwaltney, except to acknowledge in a footnote that

the panel’s decision to deny fees appeared to conflict with

Gwaltney. Appendix A at 9a, note 5.

In Gwaltney, under facts nearly identical to the facts in

this case, the Court recognized that traditional mootness prin-

ciples should be applied to allegations that post-complaint

compliance has eliminated Article III jurisdiction. In Gwaltney,

as in this case, the district court had not issued injunctive relief

and the plaintiffs had not sought injunctive relief on appeal.

Gwaltney, supra, 890 F.2d 690, 692 (4th Cir. 1989). Conse-

quently, by the time the case reached this Court, the sole

3 Unlike Gwaltney, however, there is no dispute in the present case

that Laidlaw’s violations continued after the complaint was filed.

8

remaining claim was for civil penalties. Defendant argued that

civil penalties alone would not redress plaintiffs’ injuries, and

therefore the case should be dismissed. Gwaltney of Smithfield,

Ltd. v. Chesapeake Bay Foundation, No. 86-473, Oct. Term

1987, Reply Br. for Petitioners, at 16. This is the same

redressability argument that the Fourth Circuit adopted in the

present case. See Gwaltney, supra, 484 U.S. at 66.

This Court in Gwaltney, however, rejected the argument,

and held that if plaintiffs prove standing as of the inception of

a case, courts have Article III jurisdiction to hear plaintiffs’

claims, unless defendants establish mootness. Gwaltney, 484

U.S. at 64-66.4 The Court’s refusal to find that Gwaltney was

moot simply because injunctive relief was not necessary was

consistent with the Court’s prior opinions finding that the

absence of injunctive relief does not necessarily make a case

moot. See e.g., United States v. Concentrated Phosphate

Export Ass'n, 393 U.S. 199, 203 (1968) (even though defen-

dant on remand might be able to show that injunctive relief

was inappropriate, the case was not moot); United States v.

W.T. Grant Co., 345 U.S. 629, 635-636 (1953) (“We conclude

that, although the actions were not moot, no abuse of discretion

has been demonstrated in the trial court’s refusal to award

injunctive relief.”). As the Court held in Powell v. McCormack,

395 U.S. 486, 496-97 n. 8 (1969): “Where several forms of

relief are requested and one of those requests subsequently

becomes moot, the Court has still considered the remaining

requests .. . [T]he remaining live issues supply the constitu-

tional requirement of a case or controversy.”

The Fourth Circuit did not address Gwaltney’s mootness

discussion, despite the direct relevance of that discussion.*

+ The facts that must be alleged, supported, and ultimately proven

to support standing are the facts as they existed at the time the plaintiff filed

its complaint and sought to trigger the court's jurisdiction. Lujan v.

Defenders of Wildlife, 504 U.S. 555, 564, n. 4 (1992).

* To compound the problem, the Fourth Circuit refused to consider

any application for fees and costs, without any inquiry as to whether

plaintiff's suit had caused Laidlaw to come into compliance. The panel

9

Instead the Fourth Circuit based its decision on Steel Company.

Steel Company, however, did not overrule Gwaltney. Steel

Company involved standing, not mootness. The facts of the

instant case are like those in Gwaltney, not Steel Company —

the complaint here alleged continuing violations, and the

Fourth Circuit assumed standing and continuing violations at

the time the complaint was filed. The issue, therefore, is not

whether plaintiffs had standing when they filed the complaint,

but whether plaintiffs’ request for civil penalties has been

rendered moot by defendant’s alleged post-complaint compli-

ance.

B. Had The Fourth Circuit Applied Gwaltney’s Rea-

soning, It Would Have Concluded That This Case

Is Not Moot

Gwaltney recognized that post-complaint defenses that

changes in facts or law have eliminated a “case” or “contro-

versy” within the meaning of Article III are addressed through

the lens of mootness. Gwaltney, supra, 484 U.S. at 66 (once

jurisdiction has been established, defendant bears “heavy bur-

den“of showing “that it is absolutely clear that the allegedly

wrongful behavior could not reasonably be expected to recur.”)

(emphasis in original). See also Gwaltney, supra, 484 U.S. at

69 (Scalia, J, concurring) (“It does not suffice to defeat subject

then gave a “but see” cite to Gwaltney. Gwaltney, of course, expressly

recognized that “({uJnder the (CWA), plaintiffs are also protected from

sudden!y repentant defendant by the authority of the district courts to

award litigation costs ‘whenever the court determines such an award is

appropriate.’ ” 33 U.S.C. § 1365(d). The legislative history of this

provision states explicitly that the award of costs ‘should extend to

plaintiffs in actions which result in successful abatement but which do not

reach a verdict.” " 484 U.S. at 49, note 6. The “but see” reference in the

Laidlaw opinion to this Court's opinion in Gwaltney is highly unusual — the

Fourth Circuit apparently recognized the conflict between its opinion and

Gwaltney, but elected not to follow Gwaltney. Although the fee provisions

of the Act were amended in 1987, those amendments in no way changed

the underlying point of Gwaltney; if plaintiffs’ suit causes defendants to

comply, plaintiffs are eligible for fees.

10

matter jurisdiction that the success of the attempted remedies

becomes clear months or even weeks after the complaint is

filed. Subject matter jurisdiction depends on the state of things

at the time of the action brought; if it existed when the suit was

brought, ‘subsequent events’ cannot ‘ous[t]’ the court of juris-

diction.”) (citations omitted). See generally, Los Angeles

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

properly acquired, may abate if the case becomes moot... ”)

(internal quote marks and citations omitted).

While mootness and standing are related, they are not the

same. This Court has described mootness “ ‘as the doctrine of

standing set in a time frame.’ ” Arizonans for Official English

v. Arizona, 117 S. Ct. 1055, 1068-69 (1997).© While the two

doctrines sometimes overlap, they are not identical, and this

Court has consistently examined arguments that post-complaint

changes have eliminated any “case” or “controversy” by apply-

ing mootness, principles, rather than standing principles. Steel

Company acknowledged this distinction in rejecting the gov-

ernment’s argument that a presumption of ongoing harm that

applies to mootness claims should also be applied to standing

claims. See Steel Company, supra, 118 S. Ct. at 1020 (“The

‘presumption’ the Government refers to has been applied to

refute the assertion of mootness by a defendant who, when

sued in a complaint that alleges present or threatened injury,

ceases the complained-of activity . . . It is an immense and

unacceptable stretch to call the presumption into service as a

substitute for the allegation of present or threatened injury

upon which initial standing must be based.”) (emphasis added);

see also Burke v. Barnes, 479 U.S. 361, 364 n.* (1987) (“We

reject respondents’ argument that the questions of mootness

and standing are necessarily intertwined”). °

1. Claims for civil penalties are seldom moot

As the circuits which have followed Gwaltney have recog-

nized, claims for civil penalties will seldom be moot, because

© Arizonans’ involved a post-complaint change in the plaintiff's

Status, as opposed to post-complaint changes in the defendant's conduct.

the conduct upon which the claims are based occurs tn the past,

not the future. It is for this reason that the Eleventh Circuit

held in Atlantic States Legal Foundation, Inc. v. Tyson Foods,

Inc., 897 F.2d 1128, 1134 (11th Cir. 1990) that “the mooting of

injunctive relief v'll not moot the request for civil penalties as

long as such penalties were rightfully sought at the time the

suit was filed.”

In Reich v. Occupational Safety and Health Comm'n, 102

F.3d 1200, 1202 (11th Cir. 1997), the court noted that “[c]ourts

have traditionally treated monetary relief claims differently

than injunctive relief claims for the purpose of mootness chal-

lenges.” (Citing Powell v. McCormack, 395 U.S. 486, 496 n. 8

(1969)). The Reich panel identified the practical problem with

applying the same mootness test to civil penalties as is applied

for injunctive relief: “Accepting the Commission's view of

mootness would mean the existence of a ‘case or controversy’

is dependent on an employer's post-violation acts as well as the

date a tribunal sets for a hearing in the proceedings. This

innovative view seems to inject unneeded confusion into tradi-

tional mootness principles.” 102 F.3d at 1202.’ This is the

same practical problem created by Laidlaw. If civil penalty

claims sought by a plaintiff who otherwise has standing can be

rendered “moot” by a defendant's post-complaint conduct,

defendants will simply postpone compliance until a decision

appears imminent, then come into compliance and move to

dismiss as moot. See Part IV of this brief, infra.

2. The Defendant Carries the Burden of Demon-

strating Post-Complaint Compliance Moots a

Plaintiff's Suit

A case becomes moot “when the issues presented are no

longer ‘live’ or the parties lack a cognizable interest in the

outcome.” United States Parole Commission v. Geraghty, 445

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

U.S. 486, 496 (1969)). The mootness doctrine, like that of

? A claim for civil penalties might become moot upon death or

bankruptcy.

12

standing, derives from the Article III case-or-controversy

requirement, but the two are not the same.

[While the initial burden of establishing the trial

court’s jurisdiction rests on the party invoking that

jurisdiction, once that burden has been met courts

are entitled to presume, absent further information,

that jurisdiction continues. If a party to an appeal

suggests that the controversy has, since the rendering

of the judgment below, become moot, that party

bears the burden of coming forward with the subse-

quent events that have produced the alleged results.

Cardinal Chemical Co. v. Morton Int'l, Inc., 508 U.S. 83, 98

(1993). In shifting this burden, this Court has recognized that a

defendant who voluntarily halts challenged conduct only after

being sued generally does not thereby “deprive the tribunal of

the power to hear and determine the case.” W.7. Grani, 345

U.S. at 632; accord City of Mesquite v. Alladin’s Castle, Inc.,

455 U.S. 238, 289 (1982) (“It is well settled that a defendant's

voluntary cessation of a challenged practice does not deprive a

federal court of its power to determine the legality of the

practice.”); Concentrated Phosphate; 393 U.S. at 203 (“Mere

voluntary cessation of an allegedly illegal activity does not

moot a case; if it did, the courts would be compelled to leave

‘[t}he defendant . . . free to return to his old ways (citation

omitted).” ”).

A defendant who seeks to moot a lawsuit by voluntarily

halting challenged activity only after being sued must therefore

carry the “heavy burden“of showing “that it is absolutely clear

that the allegedly wrongful behavior could not reasonably be

expected to recur.” Gwaltney, 484 U.S. at 66 (emphasis in

original; internal quote marks omitted). This rule promotes

judicial economy and fairness and “protects plaintiffs from

defendants who seek to evade sanction by predictable protesta-

tions of repentance and reform.” Gwaltney, 484 U.S. at 67.

This Court in Steel Company declined to extend the skep-

ticism of the “voluntary cessation” rule to a pre-complaint

claim of standing where the plaintiff admitted there was no

likelihood of future violations at the time the complaint was

filed. See 118 S. Ct. at 1020. In doing so, however, the Court

13

specifically noted that the presumption of future harm in cases

of voluntary post-complaint cessation was developed to “refute

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

complaint that alleges present or threatened injury, ceases the

complained of activity.” Id. See, e.g., W.T. Grant, 345 U.S. at

629, 632 (1953).

While it may be an “immense and unacceptable stretch to

call the presumption into service as a substitute for the allega-

tions of present or threatened injury upon which initial stand-

ing must be based,” 118 S. Ct. at 1020, it is no stretch at all to

apply the presumption in considering a mootness defense. In

fact, the presumption was developed for this purpose. See, e.g.,

W.T. Grant, 345 U.S. at 632. The presumption of future injury

recognized by this Court in Gwaltney, Steel Company, and W.T.

Grant applies to the present case, but was ignored by the

Laidlaw panel because the panel’s opinion failed to acknowl-

edge any distinction between mootness (as discussed in

Gwaltney), and standing (discussed in Steel Company).

3. Mere “Protestations of Repentance and

Reform” Do Not Demonstrate That the Con-

troversy Is Moot

Laidlaw has not overcome the presumption of future

injury in the case. One factor to consider in deciding whether a

defendant has satisfied its burden is whether the defendant

would have an incentive to resume its illegal activity. Cf.

Concentrated Phosphates, 393 U.S. at 202-03 (defendants’

mere assertion that the prior illegal practice was no longer

economical did not suffice to moot enforcement action); W.T.

Grant Co., 345 U.S. at 632 (while a profession of reform is one

factor to be considered, it does not suffice to make a case

moot). Where a defendant has a financial incentive to resume

illegal conduct, cessation of that conduct - even if accom-

panied by a substantial period of compliance during the lawsuit

- is unlikely to make “absolutely clear” that there is “no

reasonable expectation that the wrong will be repeated.” See

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

632-33.

14

Laidlaw did not establish that its illegal behavior could not

reasonably be expected to recur. On the contrary, a substantial

part of Laidlaw’s remedy for its violations involved its deci-

sion to reduce the mercury content of the waste it fed into its

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

in the past and subsequently increased it. Since Laidlaw could

easily change its practice at any time in the future, had the

Fourth Circuit properly applied mootness principles rather than

standing requirements, it would have been compelled to find

that the case is not moot. Cf. Gwaltney, 484 U.S. at 69 (Scalia,

J., concurring in part and in the judgment) (“A good or lucky

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

which a past effluent problem is not recurring at the moment

but the cause of the problem has not been completely and

clearly eradicated.”).

4. The Denial of an Injunction Is Not Equivalent

to a Factual Finding That the Controversy Is

Moot

The district court’s decision not to enjoin Laidlaw does

not mean that Laidlaw met its burden of proving mootness.

Abandonment of illegal activity “is an important factor bearing

on the question whether a court should exercise its power to

enjoin the defendant from renewing the practice, but that is a

matter relating to the exercise, rather than the existence, of

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

in cases in which a court determines that an injunction is

inappropriate, claims regarding future violations generally are

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

activity.” Concentrated Phosphates, 393 U.S. at 203; see WT.

Grant, 345 U.S. at 633-34, 635-36 (“[T]he court’s power to

grant injunctive relief survives discontinuance of the illegal

conduct. . . . The purpose of an injunctive is to prevent future

violations.”); /llinois Central R.R. Co. v. Adams, 180 U.S. 28,

30-32 (1901) (reasoning that the court had jurisdiction, despite

the respondent’s argument that “the very things the bill was

filed to prevent are accomplished facts, and the [petitioner]

cannot be injured.”

15

Ill. The Fourth Circuit’s Opinion Is Inconsistent With

The Court’s Opinion In Tull v. United States That

Civil Penalties Deter Further Misconduct

The Fourth Circuit concluded that civil penalties would

not “redress” plaintiffs’ injuries because this Court in Steel

Company found that “civil penalties imposed would be payable

to the United States Treasury and not to the plaintiff and

therefore the penalties would not benefit the plaintiff.” 118

S. Ct. 1018-19. But this statement was made in an entirely

different context. In Steel Company, the defendant had fully

complied prior to the complaint being filed, and there was no

real liklehood of future violations. The principle of

“redressability,” like the burden of proof, is applied differently

in the post-complaint mootness context than it is in the pre-

complaint standing context.

The fact that the “redressability” component of the test for

standing cannot be satisfied when all violations cease prior to

its filing of a complaint (see Steel Company, 118 S. Ct. at

1019) does not mean that plaintiffs who have standing to

initiate a suit cannot obtain civil penalties if injunctive relief

becomes inappropriate after the complaint is filed. As Steel

Company specifically noted: “[I]f respondent had alleged a

continuing violation or the imminence of a future violation,”

then judicial relief designed to deter future violations would

“remedy that alleged harm.” 118 S. Ct. at 1019.

The Court has consistently recognized that penalties, and

the threat of penalties, including CWA penalties, deter future

misconduct by persons who are, or may be, penalized. See Tull

v. United States, 481 U.S. 412, 422-423 (1987) (“[The Court]

may also seek to deter future violations by basing the penalty

on its economic impact.”). See also Hudson v. United States,

_. - U.S. __, 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) (stating that “civil penal-

ties . . . deter certain behavior.”): Weinberger v. Romero-

Barcelo, 456 U.S. 305, 314 (1982) (explaining that an injunc-

tion is not the only means of ensuring compliance, for instance,

the Clean Water Act itself provides for fines and criminal

16

penalties). See generally D. Epple & M. Visscher, Environmen-

tal Pollution: Modeling Occurrence, Detection, and Deter-

rence, 27 Jrnl. L. & Econ. 29, 56 (1984) (empirically linking

penalties and deterrence).*

The Steel Company holding that imposing civil penalties

on a defendant who comes into compliance before a complaint

was filed will not “redress” past harms does not implicitly

overrule the established law and common sense principle that

penalties imposed on a defendant who continues to violate the

law after a complaint is filed will deter future violations by

that defendant. The Fourth Circuit’s indiscriminate application

of the Steel Company deterrence discussion is inconsistent with

this Court’s decisions in Tull and Weinberger. When compli-

ance occurs only after a complaint has been filed, as in the

instant case, civil penalties deter the very defendant who

engaged in past violations. See Weinberger, 456 U.S. 305 at

314; see also Tull, 481 U.S. at 422-423 (citing 123 Cong. Rec.

39191 (1977)) (“Congress wanted the district court to consider

the need for retribution and deterrence, in addition to restitu-

tion, when it imposed civil penalties [under the Clean Water

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

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

on its economic impact [to the defendant].” Tull, 481 U.S. at

423.

Deterrence in the context of post-complaint compliance

differs from deterrence in the context of pre-complaint compli-

ance in at least three ways. First, where there is a continuing

post-complaint threat of violation, penalties deter not only the

general class of violators, but also the individual violator that

is the subject of the lawsuit. Second, the defendant who con-

tinues violating even after a complaint is filed is in greater

need of deterrence, while a violator who complies after receiv-

ing a notice of violation does not need to be deterred (in fact,

® In fact, civil penalties may have a greater deterrent value than

injunctive relief. If violators, especially those that complied only after a

lawsuit was filed, “faced only the prospect of an injunctive order, they

would have little incentive to shun practices of dubious legality.”

Albermarle Paper Co. v. Moody, 422 U.S. 405, 417 (1975).

17

others should be encouraged to act similarly). Third, the deter-

rence of a specific violator benefits the plaintiffs, who have

been adversely affected by past violations ai.) would be

adversely affected by future violations. Thus, in the post-

complaint context, a plaintiff receives more than merely “psy-

chic satisfaction.” See Steel Company, 118 S. Ct. at 1019.

Applying an analysis of “deterrence” and “redressability”

in the mootness context that differs from the analysis applied

in the standing context is consistent with the Court's differen-

tial treatment of burdens of proof and presumptions in these

contexts. It is also consistent with the Court’s more expansive

treatment of remedies generally, once it has satisfied itself that

a plaintiff has standing.

In Warth v. Seldin, 422 U.S. 490, 501 (1975), for example,

the Court held that so long as Article III standing requirements

were met, “persons to whom Congress has granted a right-of

action . . . may have standing to seek relief on the basis of the

legal rights of others, and, indeed, may invoke the general

public interest in support of their claim.” Analyzing

redressability and civil penalties differently in a post-complaint

setting than in a pre-complaint setting is consistent both with

Warth and with the pre- and post-complaint distinction made

by the notice requirement of the CWA’s citizen suit provision.

Such a distinction also allows the Court to account for the

congressional goal of encouraging private individuals to pro-

tect public resources. A more expansive post-complaint anal-

ysis of redressability is also consistent with our common law

heritage of private enforcement of public rights, in which qui

tam actions, common informer laws, and public nuisance rights

were widely recognized, and individual enforcement of com-

munity rights “was common because there was no well devel-

oped conceptual distinction between public and private

functions.” Boyer & Meidinger, Privatizing Regulatory

Enforcement: A Preliminary Assessment of Citizen Suites

Under Federal Environmental Laws, 34 Buff. L. Rev. 833, 952

(1984). See also NAACP v. Button, 371 U.S. 415, 429 (1963)

(recognizing the legitimacy of citizen enforcement of non-

ecomomic: public rights); Associated Industries v. Ickes, 134

F.2d 694, 704 (2d Cir. 1943) (Congress may authorize private

18

citizens to enforce public rights, so long as private litigants’

interests are sufficiently affected to create justiciable contro-

versy) (coining the term “private attorneys general”). See gen-

erally G. Van Cleve, Congressional Power to Confer Broad

Citizen Standing in Environmentai Cases, 29 Envt'l. L. Rep.

10028 (January, 1989).

IV. The Fourth Circuit’s Opinion Raises Separation of

Powers Concerns Because It Eliminates A Remedy

Authorized By Congress And Undermines The Citizen

Suit Provision Of The CWA

Congress authorized private citizens to seek civil penalties

when enforcing the provisions of the CWA. 33 U.S.C. § 1365.

The Fourth Circuit’s conclusion that penalties do not “redress”

the harm suffered by plaintiffs in otherwise properly initiated

citizen suits conflicts with Congress’ determination that such

penalties do address the harm suffered by citizen plaintiffs.9

Congress’ fact (and policy) determinations are entitled to sub-

stantial deferrence. Preseault v. Interstate Commerce Comm.,

494 U.S. 1, 17 (1990). The courts should not lightly eliminate

remedies created by Congress; doing so implicates separation

of powers concerns. See Davis v. Passman, 442 U.S. 228, 241

(1979) (Congress decides “who may enforce [statutory rights]

and in what manner.”). This is particularly true in the Article

III context. Article III limits the courts’ power, not Con-

gress’ .!0

9 The perfidy of the Fourth Circuit’s opinion is illustrated by the

district court’s opinion in Dubois v. Department of Agriculture, 20

F. Supp. 2d 263 (D.N.H. 1998). In Dubois the court enjoined the defendant

from further violating the CWA, then found that its own injunction made

plaintiffs’ request for civil penalties “moot,” citing the Fourth Circuit's

opinion in the instant case. 20 F. Supp. 2d at 268-70.

10 It is not unusual for the Court to consider related questions of

justiciability differently depending upon whether a statutory provision is

involved or not. In evaluating standing, for example, the Court has

recognized that “Congress may grant an express right of action to persons

who otherwise would be barred by prudential standing rules. Of course,

19

By finding that plaintiffs may not seek civil penalties,

even in properly initiated enforcement actions, the Fourth

Circuit has as a practical matter eviscerated the entire citizen

suit provision of the CWA. As the Second Circuit noted in

Atlantic States Legal Foundation v. Pan American Tanning

Corp., 993 F.2d 1017, 1020-21 (2nd Cir 1993):

A rule requiring dismissal of a citizen suit. . . based

on a defendant’s post-complaint compliance appears

to conflict with the language of the Act. Under such

a rule, a penalty suit would always become moot and

a defendant would escape all liability if it could

show, at any time before judgment, ‘that the

allegedly wrongful behavior could not reasonably be

expected to recur.’ Gwaltney I, 484 U.S. at 66, 108

S. Ct. at 386. Yet, as the Fourth Circuit noted in

Gwaltney Ill, section 1319(d) of the Act provides

that any person who violates effluent limitations or

permit conditions ‘shall be subject to a civil penalty.’

890 F.2d at 697. Allowing a discharger to escape all

liability by virtue of its post-complaint compliance

cannot be squared with this mandatory language.

In addition, we agree with the Eleventh Circuit's

view .. . that mooting an entire suit based on post-

complaint compliance would weaken the deterrent

effect of the Act by diminishing the incentives for

citizen plaintiffs to sue and by encouraging defen-

dants to use dilatory tactics in litigation. Pan Ameri-

can suggests, however, that disallowing civil

penalties when a defendant comes into compliance

after a complaint is filed will not significantly dimin-

ish the incentives for citizens to bring suit because

they can still recover attorney fees. Pan American

further suggests that because any penalties imposed

go to the United States Treasury (Treasury) and not

to the citizen plaintiff, the pursuit of these monies

Article III's requirement remains... .” Warth v. Seldin, 422 U.S. 490, 501

(1975).

20

cannot provide an incentive. We disagree. Citizen

plaintiffs often initiate suit not to recover monetary

awards for their own benefit, but rather to ensure

that penalties are imposed so as to deter future viola-

tions.

The perverse incentives created by the Fourth Circuit's deci-

sion in this case undermine the purpose of the citizen suit

provision of the CWA and, as with the civil penalty provision

of the CWA, raise separation of powers concerns. See, e.g.,

TVA v. Hill, 437 U.S. 153, 194 (1978) (it is “the exclusive

province of the Congress not only to formulate legislative

policies and mandate programs and projects, but also to estab-

lish their relative priority for the Nation.”).

CONCLUSION

The Fourth Circuit has created a conflict among the cir-

cuits of the federal court of appeals by wrongly applying this

Court’s standing analysis in Steel Company to a case in which

violations continued even after the complaint was filed. The

Fourth Circuit should have applied this Court’s mootness anal-

ysis in Gwaltney, as all other circuits have under similar facts.

Post-complaint voluntary cessation of illegal activity does not

moot a plaintiff’s claims for relief, unless the defendant carries

the heavy burden of proving that the change makes absolutely

clear the wrongful behavior could not be expected to recur. The

defendant in this case has not met that burden. The Fourth

Circuit’s opinion eliminates a remedy authorized by Congress,

undermines a key provision of the CWA, and should be

reviewed under a writ of certiorari.

Respectfully submitted,

MicHAgEL AXLINE

Western Environmental Law Center

1216 Lincoln Street

Eugene, Oregon 97401

(541) 485-2471