# Amicus Curiae Brief — Friends of Earth v. Laidlaw Environmental Services > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0244%3A08 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 2000 - **Citation:** 528 U.S. 167 ## Text 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0244%3A08. Public record. Not legal advice.