Petitioners Brief — Friends of Earth v. Laidlaw Environmental Services

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Supreme @ourt, U.S.

(3) FILED

WAY 2 1999

No. 98-822 —

IN THE )

Supreme Court of Che Ynited States

FRIENDS OF THE EARTH, et ai.,

Petitioners,

Vv.

LAIDLAW ENVIRONMENTAL SERVICES (TOC), INC.,

Respondent.

On Writ of Certiorari

to the United States Court of Appeals

for the Fourth Circuit

BRIEF FOR PETITIONERS

Bruce J. Terris* James S. Chandler, Jr.

Carolyn Smith Pravlik SOUTH CAROLINA

Monica Wagner ENVIRONMENTAL LAW

TERRIS, PRAVLIK & PROJECT

MILLIAN, LLP P.O. Box 279

1121 12th Street, N.W. Pawleys Island, S.C. 29585

Washington, D.C. 20005 (843) 527-0078

(202) 682-2100

*Counsel of Record Counsel for Petitioners

pre

1 Se ee | EE ee Peete ee

QUESTIONS PRESENTED

1. Whether a citizen suit seeking civil penalties under

Section 505 of the Clean Water Act is constitutionally moot

under Steel Co. v. Citizens for Better Environment, 118 S. Ct.

1003 (1998), due to lack of redressability, where plaintiffs had

standing at the time of the complaint and have shown

continuing injury-in-fact but have not obtained injunctive

relief.

2. Whether a citizen suit seeking civil penalties under

Section 505 of the Clean Water Act is constitutionally moot

under Stee! Co., due to lack of redressability, when the district

court has rendered a declaratory judgment as to liability and the

issue of liability was contested.

3. Whether plaintiffs could not be awarded attorneys’ fees

or litigation costs because the case was dismissed for mootness,

even if the litigation was responsible for bringing the defendant

into compliance with the Clean Water Act.

PARTIES TO THE PROCEEDING

The plaintiffs are Friends of the Earth, Citizens Local

Environmental Action Network, Inc. ("CLEAN"), and the

Sierra Club. The defendant was Laidlaw Environmental

Services (TOC), Inc., now Safety-Kleen (Roebuck), Inc.

CORPORATE DISCLOSURE STATEMENT

Each of the plaintiffs is a not-for-profit corporation. None

of the plaintiffs has a parent company and, as to each

corporation, no publicly held company owns 10% or more of

the corporation’s stock.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED .... 0... cccccccccccccces i

PARTIES TO THE PROCEEDINGS ................. ii

CORPORATE DISCLOSURE STATEMENT .......... ll

ED os os cn nésedesecéeaceess Vv

ERR ee ae |

ee ew cine eeus’s l

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED ............--2eeeeeee: l

STATUTORY BACKGROUND ..................... ]

STATEMENT OF THE CASE ...................... 4

SUMMARY OF ARGUMENT ..................... 9

Ee 12

I. PLAINTIFFS’ CLAIM FOR CIVIL PENALTIES

AGAINST LAIDLAW

TT 12

A. Gwaltney, Not Steel Co., Is

TT dies deedngcuseeeeseeseves 13

1. Gwaltney and This Case Are

ee di dee eeasane 13

2. Steel Co. Did Not Overrule Gwaltney .... 18

3. Contrary to the Decision Below, the

Standards for Mootness and Standing

i ai ee a i as 23

B. The Civil Penalties Imposed by the

District Court Benefit Plaintiffs because

They Deter Laidlaw from Violating its

cect deeedidedenes 24

1. Civil Penalties Deter Violations by

ee Re aso 25

Z. The District Court Found that Laidlaw

C. The Court of Appeals’ Decision Seriously

Undermines Congress’ Purpose in

Providing for Citizen Enforcement of the

I]. PLAINTIFFS’ INJURIES ARE REDRESSED BY

A DECLARATORY JUDGMENT WHERE

LIABILITY WAS CONTESTED ............ 40

Il]. PLAINTIFFS WOULD BE ENTITLED TO

ATTORNEYS’ FEES AND EXPENSES EVEN IF

THE CASE WERE MOOT ...............-. 42

GEE btesadeoucasescccscusaaauanuenane 50

APPENDIX

Art. Ill, Sec. 2, of the United States Constitution .... la

TABLE OF AUTHORITIES

Cases: Page

ASLF v. Pan Am. Tanning Corp.,

993 F.2d 1017 (2d Cir. 1993).............2-0200e. 29

ASLF v. Stroh Die Casting Co., 116 F.3d 814

(7th Cir. 1997), cert. denied, 118 S. Ct. 442 (1997) ... 29

ASLF v. Tyson Foods, Inc., 897 F.2d 1128

EE EE don ck che ce ahi cdeenneeadeeksc os 29

Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975) .... 29

American Council of the Blind v. Romer,

992 F.2d 249 (10th Cir. 1993)... ... 2. eee eee 49

Amoco Production Co. v. Village of Gambell, Alaska,

Pc tccccudastedeentscenstcrens 26

Arizonans for Official English v. Arizona,

Be ee EE edectctcosedscancessocnces 32

Baumgartner v. Harrisburg Housing Auth.,

ee Bc dadnndivcéesnescescces 48

Beard v. Teska, 31 F.3d 942 (10th Cir. 1994) .......... 48

Bender v. Williamsport Area Sch. Dist.

Gr es Ss Kkédkeidcccdcancess tccnbanes 21

Bennett v. Spear, 117 S. Ct. 1154 (1997) ........ 28, 39, 50

Carr v. Alta Verde Indus., Inc., 931 F.2d 1055

SE PE coca ddnéweedVekedadaeeeeeheseees 29

- Chesapeake Bay Found. v. Gwaltney of Smithfield, Lid.,

611 F. Supp. 1542 (E.D. Va. 1985), aff'd, 791 F.2d 304

(4th Cir. 1986), vacated and remanded, 484 U.S. 49

(1987), on remand, 844 F.2d 170 (4th Cir.

(1988), judgment reinstated, 688 F. Supp. 1078 (E.D. Va.

1988), aff'd in part, rev'd in part and remanded, 890 F.2d

ci tcceccduunddeebenadeseusee 18

Chesapeake Bay Found. v. Gwaltney of Smithfield, Ltd.,

890 F.2d 690 (4th Cir. 1989) ................ passim

Citizens Against Tax Waste v. Westerville City Sch.,

SPE SEED céccccccccccccccccnes 49

Citizens for a Better Env’ t v. Steel Co.,

42 Env't Rep. Cas. (BNA), 1186 (N.D. III. 1995),

rev'd, 90 F.3d 1237 (7th Cir. 1996), vacatec and

remanded, 118 S.Ct. 1003 (1998) ................. 13

City of Mesquite v. Aladdin’ s Castle,

Se Eb cdddndecuusdebesivessies 24, 40

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

Se ee Be GE SUED ocbcccesevecscccccess 29

Craig v. Gregg County, Texas, 988 F.2d 18

SR SE oe ee a 49

Deakins v. Monaghan, 484 U.S. 193 (1988) ........... 16

Department of Revenue v. Kurth Ranch,

ee ee DING Cdntudtdeudanuddetdsecsens 28

DuBois v. United States Dep’ t of Agric.,

20 F. Supp. 2d 263 (D.N.H. 1998) appeal stayed

pending Supreme Court decision in Friends of the

Earth v. Laidlaw Envtl. Services (TOC), Inc.

(No. 98-822) (No. 98-2364, Ist Cir., April 2, 1999) ... 19

Farrar v. Hobby, 506 U.S. 103 (1992) ........... passim

Friends of the Earth v. Laidlaw Envtl. Services (TOC),

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

Friends of the Earth v. Laidlaw Envtl. Services (TOC),

Inc., 890 F. Supp. 470 (D.S.C. 1995),vacated as

moot .149 F.3d 303 (4th Cir. 1998) ............ passim

Friends of the Earth v. Laidlaw Envtl. Services (TOC),

Inc., 956 F. Supp. 588 (D.S.C. 1997), vacated as

moot. 149 F.3d 303 (4th Cir. 1998) ............ passim

Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found,

ED Bore ee se | passim

Hanrahan v. Hampton, 446 U.S. 754 (1980) ........ 44, 46

Hewitt v. Helms, 482 U.S. 755 (1987) .......... 45, 46, 47

Hudson v. United States, 118 S. Ct. 488 (1997) ........ 28

Kilgour v. City of Pasadena, 53 F.3d 1007 (9th Cir. 1995) 48

vii

Little Rock Sch. Dist. v. Pulaski County Special Sch.

Baek; GS, FT FDOT cc cccccccccceccscccucece 48, 49

Maduka v. Meissner, 114 F.3d 1240 (D.C. Cir. 1997) ... 48

Maher v. Gagne, 448 U.S. 122 (1980) .......... 44, 45, 46

Marbley v. Bane, 57 F.3d 224 (2d Cir. 1995) .......... 48

Middlesex County Sewerage Auth. v. National Sea

Clammers Ass'n, 453 U.S. 1 (1981) ..........-. Lae

NRDC v. Texaco Ref. and Mktg., Inc., 2 F.3d 493

rere rr errr rr TT rrr TTT 29, 39

PIRG v. Powell Duffryn Terminals, Inc.,

720 F. Supp. 1158 (D.N.J. 1989), aff d in part

and rev’ d in part on other grounds, 913 F.2d 64

5 PPT TTT ITT TTT TELL TL 5

Paris v. HUD, 988 F.2d 236 (ist Cir. 1993) ........... 49

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

807 F.2d 1089 (Ist Cir. 1986)... 1. ee ee ee eee 29

Pennsylvania v. Delaware Valley Citizens' Council

for Clean Air, 478 U.S. 546 (1986) ..... 2.2... 66 6-. 44

Preseault v. Interstate Commerce Comm'n,

GBT, DEED hoc icocdeccdececccesevecsectes 28

Rhodes v. Stewart, 488 U.S. 1 (1988) .............5-. 48

S-1 and S-2 v. State Bd. of Educ., 6 F.3d 160

(4th Cir. 1993) rev'd en banc, 21 F.3d 49

» CR, Cac ckecdccateccccdessscecdeecds 43,47

S-1 and S-2 v. State Bd. of Educ., 21 F.3d 49

SO, EE cdadetadeceeuvdenesacdecsecesees 43

Steel Co. v. Citizens for Better Environment,

BOBS. Ce. OGRB CUSTER 2 cc cccccccccccccccces: passim

Super Tire Eng’ g Co. v. McCorkle, 416 U.S. 115 (1974) . 40

Tigner v. Texas, 310 U.S. 141 (1940) ............. 28, 35

Tull v. United States, 481 U.S. 412 (1987) ...... 25, 26, 30

United States Parole Comm'n v. Geraghty,

SEP UEE, DD ov .nc ckceccccccccvceveesesses 32

vill

United States v. Concentrated Phosphate

Export Ass'n, 393 U.S. 199 (1968) .......... 25, 32, 33

United States v. ITT Continental Baking Co.,

Se SEED 6600 40006066-0000540860040400 28

United States v. Munsingwear, Inc., 340 U.S. 36 (1950) . 16

United States v. Oregon State Med. Soc’ y,

RS ee nee ene 35

United States v. W.T. Grant Co.,

ES oe Ee 23, 24, 33

Walling v. Helmerich & Payne, Inc., 323 U.S. 37 (1944) . 40

Weinberger v. Romero-Barcelo,

I I i ani passim

Zinn by Blankenship v. Shalala, 35 F.3d 273 (1994) . . 47, 48

Federal Statutes and Regulations:

I TR Te ne ee 37

ED 66a io cadnesddeeenseinedsneanes 37

SE SEY oddeuucevdkavbnudevaveedeseuwaas l

oc owdnudd etcenanenaeesenwewe 15

Ec cdccudbbeataetuibekesceadeans 2

Pe CEE i-ineerudchidaween sentence suces 3

i int tt ante cudd ogddeekiuandhenes 2

PY EE oevendeanscescedecindddndseneusis 2

Ss SE 6:0:6656e46ewbbueneeseeacees 1, 25, 30

Pe aa acedeesuwenedsaceuancerde tase 3

Pe ING 66 once dudevendbbedweindens on 3

Ns pei thd recctacunncesobws 3

EE a du tetetieedinasdehsdbhdaseeeeias 3

PE EE ab ab adissencbeseesessuccieses 6, 17, 37

ED She deticcuscduuadbuvednuedeene as

I ey 6

ey SE Becket cidentepueniuedsses *. 1,42, 45

I a ccdtcndidacucacegncatasant bene 1,4

PP PT cvistbndccaddascdtcceuaceueceuas 3

ES nS Vide wensndeNesnsbadeedentenes 44

GO se cncceccncsssebonécesasaseseveses 37

Gs SE ncn cnveccncensccacesoecesveessanse 37

es SEED vncccecescvcecdséesnsvessess 13

Sh SED hoc cennsectbccncedessccedecseses: 3

Legislative History:

S. Rep. No. 50, 90th Cong., Ist Sess. (1985) ..... 27, 37, 46

S. Rep. No. 228, 101st Cong.,Ist Sess. (1989) ......... 27

S. Rep. No. 233, 98th Cong., Ist Sess. (1983) .......... 46

S. Rep. No. 414, 92d Cong., Ist Sess. (1971) ...... passim

S. Rep. No. 1011, 94th Cong., 2d Sess. (1976)) ........ 44

H.R. Rep. 1004, 99th Cong., 2d Sess. (1986) .......... 27

H.R. Rep. No. 1558, 94th Cong., 2d Sess. (1976) ....... 44

116 Cong. Rec. 32927 (1970) 2... .. 6. ccc eee eee 36

116 Cong. Rec. 33104 (1970) 2.0... cee eee 36

SO GM, THUD. GR UUIIOD Sc ccccsecsecesccnnncses 27

136 Come. Res. S627) (IDSG) .. wes cccccccecccveces 27

1987 U.S. Code Cong. & Ad. News 5 ............555. 27

100th Cong., 2d Sess., Sen. Print 144 (Nov. 1988) ...... 46

Miscellaneous :

13A Charles Alan Wright ef al., Federal Practice and

Procedure (2d ed. 1984) ...........0 cece eee eens 13, 32

OPINIONS BELOW

The opinion of the court of appeals was published at 149

F.3d 303 (4th Cir. 1998) and is reprinted in the Appendix to the

Petition for a Writ of Certiorari ("Pet. App.") at la. The oral

standing opinion of the district court was unpublished. Hr’g

Tr., June 30, 1993, p. 40. The preclusion opinion of the

district court was published at 890 F. Supp. 470 (D.S.C. 1995)

and is reprinted at J.A. 84-137. The relief opinion of the

district court was published at 956 F. Supp. 588 (D.S.C. 1997)

and is reprinted at J.A. 138-197.

JURISDICTION

The judgment of the court of appeals was entered on July 16,

1998 (Pet. App. 3a). The jurisdiction of this Court was invoked

under 28 U.S.C. 1254(1) in a Petition filed on November 9,

1998. The Petition was granted on March 1, 1999.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Section 2 of Article III of the United States Constitution is

appended hereto. The relevant sections of the Federal Water

Pollution Control Act, commonly known as the Clean Water

Act, 33 U.S.C. 1365(a), 1365(d), 1365(g), and _— are sei

forth at Pet. App. 10a.

STATUTORY BACKGROUND

Congress enacted the Federal Water Pollution Control Act,

commonly known as the Clean Water Act, in 1972. The 1972

statute represented a distinct change in federal water pollution

control policy. Prior to 1972, the federal water pollution

control law "emphasized state enforcement of water quality

standards." Middlesex County Sewerage Auth. v. National Sea

Clammers Ass'n, 453 U.S. 1, 11 (1981).

This system of pollution control led to substantial problems

in enforcement because of the difficulty in establishing precise

limitations for particular pollutants on the basis of the water

quality desired for the receiving bodies of water. See S. Rep.

tl a ell

No. 414, 92d Cong., Ist Sess. 8, 12 (1971). The effort to

contro] water pollution using only this method was found to be

"inadequate in every vital aspect." S. Rep. No. 414, supra, p.

The 1972 legislation "shifted the emphasis to ‘direct

restrictions on discharges,’ and made it ‘unlawful for any

person to discharge a pollutant without obtaining a permit and

complying with its terms’"(citations omitted). Sea Clammers,

453 U.S. at 11. The change in both emphasis and method was

described in the Senate Report (S. Rep. No. 414, supra, p. 42):

This section [Section 301, now 33 U.S.C. 1311] clearly

establishes that the discharge of pollutants is unlawful.

Unlike its predecessor program which permitted the

discharge of certain amounts of pollutants under the

conditions described above, this legislation would clearly

establish that no one has the right to pollute - that

pollution continues because of technological limits, not

because of any inherent right to use the nation’s

waterways for the purpose of disposing of wastes.

The Act’s overall goal of completely eliminating the

discharge of all pollutants (33 U.S.C. 1251(a)(1)) was

effectuated through Section 301(a) of the Act, 33 U.S.C.

1311(a), which states:

Except as in compliance with this section and sections

302, 306, 307, 318, 402, and 404 of this Act, the

discharge of any pollutant by any person shall be

unlawful.

Thus, there is a total prohibition on the discharge of pollutants

except pursuant to specific authorization.

Section 402 of the Act provides for the issuance of discharge

permits—known as National Pollutant Discharge Elimination

System (NPDES) permits. These permits are designed to

impose progressively more stringent limitations on the

discharge of pollutants in order to improve the nation’s waters.

Compliance with an NPDES permit is deemed compliance with

Section 301 and allows discharges which would otherwise be

unlawful. See 33 U.S.C. 1342(k). Conversely, noncompliance

with a permit constitutes noncompliance with Section 301 and

is a violation of the Act.

Section 402(a)(1), 33 U.S.C. 1342 (a)(1), authorizes the

Administrator of EPA or a State, if its permit program has been

approved by the Administrator, to issue NPDES permits. The

Act requires each NPDES permit to: (a) include discharge

limitations; (b) require the permittee to be in compliance with

the discharge limitations in the permit; and (c) require the

permittee to monitor its discharges as EPA requires and report

the results accurately to EPA and the state in discharge

monitoring reports ("DMR’s"). 33 U.S.C. 1342. Generally,

permit holders are required to submit DMR’s on a monthly

basis to EPA and the state regulatory authority.

The NPDES permitting system also provides for citizen

participation in the issuance of permits. Citizens have the

opportunity to comment on NPDES permit requirements before

they are imposed and to challenge the final permit

administratively and judicially. 33 U.S.C. 1342(b)(3), 1369(b);

40 C.F.R. 124.10. Citizen participation is a critical aspect of the

_ NPDES permitting system. See 33 U.S.C. 1251(e).

"The[] Act[] contain{s] unusually elaborate enforcement

provisions, conferring authority to sue for this purpose both on

government officials and private citizens." Sea Clammers, 453

U.S. at 13. Section 505(a) of the Act, 33 U.S.C. 1365(a) (Pet.

App. 10a), allows any "citizen" to bring suit to enforce any

limitation in an NPDES permit. Section 505(g), 33 U.S.C.

1365(g) (Pet. App. 1 1a), defines citizen as "a person or persons

having an interest which is or may be adversely affected."

Section 505(a) authorizes the courts to issue injunctive relief

and impose civil penalties.

STATEMENT OF THE CASE

Defendant Laidlaw operates a hazardous waste incinerator.

956 F. Supp. at 593 (J.A. 141). As part of its operation,

Laidlaw discharges wastewater into the North Tyger River

pursuant to an NPDES permit issued by the South Carolina

Department of Health and Environmental Control ("DHEC").

Ibid. The applicable permit limits the discharge of specified

pollutants, including mercury, lead, nickel, arsenic, cadmium.

chromium and zinc. /d. at 593 (J.A. 141-142). It also requires

Laidlaw to monitor its discharge and report the level of

pollutants discharged to EPA and DHEC. /d at 593(J.A. 142).

From January 1987 through January 1995, Laidlaw violated its

permit limitation for mercury 489 times. 956 F. Supp. at 610,

613-621 (J.A.158, 185-196). Laidlaw also violated its non-

mercury metals discharge limitations and its pH limitation 439

times. Pl. Exs. 98-99.2 In addition, it violated the monitoring

requirements of its permit 420 times and the reporting

requirements 503 times. 956 F. Supp. at 610 (J.A. 159).

Laidlaw’s discharge violations were due to an inadequate

treatment system and its failure to control adequately its

mercury feed rate, i.e., the amount of mercury in the waste fed

into the incinerator. 890 F. Supp. at 478 (J.A. 92). Laidlaw

gradually added treatment equipment from 1987 to 1991. Jd.

at 482 (J.A. 102-103). The Lancy system, installed in 1991.

corrected most of Laidlaw’s non-mercury metals violations. /d.

at 485 (J.A. 104). However, Laidlaw’s mercury violations

increased in early 1992. Laidlaw violated its mercury

limitation 103 times from January 1992 through May 1992, the

/ The district court granted Laidlaw’s motion for summary judgment on all

of its non-mercury discharge violations, since none of those limitations had

been violated subsequent to the filing of the complaint. 956 F. Supp. at 592

(J.A. 139-140).

2 Plaintiffs’ Exhibits 98 and 99 were admitted into evidence at volume | Il,

page 5, of the 1993 Trial Transcript (hereafter "1993 Tr.").

period immediately prior to the filing of the complaint,

including violations as much as 13 times over its permit

limitation. 956 F. Supp. at 619-621 (J.A. 193-195). The

increase in violations is explained by Laidlaw’s failure to

control its mercury feed rate, which it knew was needed to

achieve compliance after the installation of the Lancy system.

Def. Exs. 54, 105, 144; Pl. Ex. 143; Pl. Ex. 126, figure 1;

Stipulation of December 11, 1996, Appendix 1, pp. 16-19.*

In July 1992, a month after plaintiffs filed suit, Laidlaw

reduced its mercury feed rate and installed new carbon

adsorption equipment. 890 F. Supp. at 478, 483 (J.A. 92, 104);

Pl. Ex. 126, figure 1; Pl. Ex. 143. In January 1993, Laidlaw

installed equipment that aided the performance of the carbon

filters in removing mercury. 890 F. Supp. at 483 (J.A. 104).

As a result, the number and severity of its mercury violations

dropped. 956 F. Supp. at 621 (J.A. 195). Nonetheless, Laidlaw

violated the mercury discharge limitation in its permit 13 times

after the complaint was filed. /bid.

Mercury is an extremely toxic pollutant. 956 F. Supp. at 601

(J.A. 160). Laidlaw’s mercury limitation is a water-quality-

based permit limitation.4 Laidlaw’s 489 excessive discharges

alone caused the water quality standard for the River to be

2 Defendant's Exhibits 54, 105 and 144 were admitted into evidence at 1993

Tr., vol. 1, p. 40. Plaintiffs’ Exhibits 126 and 143 were admitted into

evidence at pages 205 and 83, respectively, of the 1995 Trial Transcript

(hereafter "1995 Tr.").

+ Water quality-based permit limitations are designed to ensure that the

receiving water meets the ambient water quality standards. P/RG v. Powell

Duffryn Terminals, Inc., 720 F. Supp. 1158, 1162 (D.N.J. 1989), aff'd in

part and rev'd in part on other grounds, 913 F.2d 64 (3d Cir. 1990).

Violation of a water quality-based permit limitation harms the receiving

water. /bid.

violated. Pl. Ex. 88, pp. 11-12;* 1993 Tr., vol. II, pp.194-195.

Plaintiffs Friends of the Earth, CLEAN and Sierra Club have

members who use or refrain from using the waterways affected

by Laidlaw’s discharge. The members would like to picnic,

birdwatch and hike near, boat on, and eat fish from the North

Tyger River and downstream waters but either do not do so or

are concerned when they do so because of the pollution in the

River. They are also concerned about the impact of that

pollution on the value of their homes and on their dairy

products because cows drink from the River. Curtis Aff., 9%

3-8: 2d Curtis Aff., §§ 2-8; Moore Aff., {9 3-6; 2d Moore Aff.,

@€ 3-7: 3d Moore Aff., § 4; McCullough Aff., {] 9, 10; Sharp

Aff., 9 4-6; Patterson Aff., {9 3-9; Lee Aff., {9 4-7; Pruitt Aff.,

q4 3-6.

Plaintiffs brought this action on June 12, 1992, under the

citizen suit provision of the Clean Water Act, Section 505, 33

U.S.C. 1365 (Pet. App. 10a-1la), to enforce the terms and

conditions of Laidlaw’s permit. Laidlaw moved to dismiss

Friends of the Earth, but not the other plaintiffs, for lack of

standing on the ground that its members had not suffered

injury-in-fact. On June 30, 1993, the district court orally

denied the motion. Hr’g Tr., June 30, 1993, p. 40.

Laidlaw subsequently moved to dismiss under Section

505(b)(1)(B) of the Act, 33 U.S.C. 1365(b)(1)(B), on the

ground that the suit was precluded because the State had

brought an action in state court against Laidlaw three days

before plaintiffs’ action was filed. 890 F. Supp. at 474 (J.A.

85). The complaint in the state case had been drafted and filed

by Laidlaw’s counse} and the filing fee was paid by Laidlaw.

2 Plaintiffs’ Exhibit 88 was admitted into evidence at 1993 Tr., vol. 1, p. 40.

for Preliminary Injunctive Relief, October 5, 1992, and Plaintiffs’

Supplemental Opposition to Defendant's Motion for Summary Judgment

as to Plaintiff Friends of the Earth, June 28, 1993.

Id. at 479 (J.A. 94). The complaint was filed at the request of

Laidlaw for the purpose of barring plaintiffs’ suit. /d. at 478

(J.A. 93-94). The district court denied the motion after a seven-

day evidentiary hearing on the ground that the state action had

not been diligently prosecuted for several reasons, but primarily

because the $100,000 penalty did not remove the economic

benefit enjoyed by Laidlaw as the result of its delayed

compliance. /d. at 489-491, 497-499 (J.A. 116-120, 134-136).

On July 31, 1995, the district court began a three-day trial on

liability and relief. 956 F. Supp. at 592 (J.A. 140). At the

conclusion of the testimony, the district court reserved

judgment until a decision was issued in a state administrative

proceeding involving a challenge to a change in the mercury

limitation in Laidlaw’s permit. /bid. As a result, the district

court did not issue its decision until January 22, 1997.

The district court found that Laidlaw had violated the

mercury limitation in its permit 489 times, including 13 times

after the complaint was filed. 956 F. Supp. at 600, 621 (J.A.

158, 195). The court also found that Laidlaw had violated the

monitoring requirements in its permit 420 times and the

reporting requirements 503 times, including 13 monitoring and

10 reporting violations after the complaint was filed. /d. at

600-601 (J.A. 159). The court found that Laidlaw had enjoyed

an economic benefit of $1,092,581 from its violation of its

permit. /d. at 603 (J.A. 165). However, the court concluded

that a penalty of $405,800 was an adequate deterrent, when

considered together with the attorneys’ fees award that Laidlaw

would be required to pay plaintiffs and Laidlaw’s own

litigation expenses. /d. at 610-611 (J.A. 181-182). The district

court denied plaintiffs’ request for injunctive relief because

Laidlaw had achieved substantial compliance with its permit.

Id. at 611 (J.A. 183).

Both sides appealed the district court’s decisions. Laidlaw

appealed, inter alia, on the ground that Friends of the Earth

lacked standing because of its alleged failure to show injury-in-

fact. The day before oral argument in the court of appeals, this

Court decided Steel Co. v. Citizens for Better Environment, \18

S. Ct. 1003 (1998). Plaintiffs filed a motion asking for the

opportunity to submit a brief showing that the decision in Stee/

Co. had no application. Laidlaw responded that Stee/ Co. "is

largely irrelevant to the standing issue before this Court." Def.-

Appellee’s Opp. to Pls.’ Mot. for Leave to File an Additional

Br., March 18, 1998, p. 1. The court of appeals granted

plaintiffs’ motion and directed the parties to brief the

applicability of Stee! Co. and respond to a series of questions

regarding standing and mootness.

In their brief, plaintiffs argued that Stee/ Co. was not

applicable to a case involving on-going violations. Instead,

plaintiffs argued, the standing and mootness issues raised by

the court of appeals were controlled by Gwaltney of Smithfield,

Ltd v. Chesapeake Bay Foundation, 484 U.S. 49 (1987).

The court of appeals vacated and remanded with instructions

to dismiss on the ground that the case was moot based on this

Court’s decision in Steel Co. 149 F.3d at 307 (Pet. App. 8a-

9a). The court of appeals did not consider Gwaltney or the

distinction between initial standing and mootness and applied

the standing analysis in Stee/ Co. to the issue of whether a case

has become moot. It assumed "without deciding that Plaintiffs

had standing to initiate this action and have proven a

continuous injury in fact." /d. at 306, n. 3 (Pet. App. 7a, n. 3).

It reasoned that "[bJecause Plaintiffs have not appealed the

denial of declaratory and injunctive relief, the only potential

relief that may be available to redress their claimed injuries is

the civil penalty imposed upon Laidlaw" and "[s]uch penalties

* * * cannot redress any injury suffered by a citizen plaintiff."

149 F.3d at 306 (Pet. App. 7a).

2 Laidlaw suggests that the case is moot because it has shut down its

incinerator since the court of appeals issued its decision. Resp. Br. in Opp.

In a footnote, the court of appeals also decided that

"[p}laintiffs’ failure to obtain relief on the merits of their claims

precludes any recovery of attorneys’ fees or other litigation

costs because such an award is available only to a ‘prevailing

or substantially prevailing party.’ 149 F.3d at 307, n. 5 (Pet.

App. 9a, n. 5).

SUMMARY OF ARGUMENT

1. In Steel Co. this Court determined that civil penalties

payable to the United States Treasury did not redress the

plainuff S claim because the plaintiff did not make an

allegation of continuing violation. Applying Steel Co., the

court of appeals here determined that plaintiffs’ claim for civil

penalties was moot absent a live claim for injunctive or

declaratory relief because their injury could not be redressed by

a civil penalty payable to the federal treasury. The court of

appeals erred by applying this Court’s analysis in Stee! Co. to

hold plaintiffs’ claim for civil penalties moot where, unlike in

to Pet. for Writ of Cert., pp. |, n. | and 10. Plaintiffs have ascertained that

Laidlaw has not taken any action to terminate the NPDES permit. Reply

= in — of Pet. for Writ of Cert., App. 33a (hereafter “Reply App.”)

ince Laidlaw’s NPDES permit is still in effect, it may discharge in the

future whenever it cares to do so. _ —

In November 1998, after the incinerator shut down, Laidlaw fi

| . . iled a

proposed order in the state court which was hearing a challenge to

Laidlaw s NPDES permit. In that order, Laidlaw asked that issuance of the

a 9 ene tale ror wel op oe

uently, on November 23, 1998, the i

——- court issued a virtually

The shut down of the facility, even if it were permanent, would not moot

the case. Laidlaw /Safety-Kleen has at least 16 other NPDES permitted

facilities. Friends of the Earth and Sierra Club have members who use the

waters affected by Laidlaw/Safety-Kleen’s discharges from some of these

facilities and their use and enjoyment of these waters is adversely affected

by illegal discharges from these facilities. See Reply App. 33a. The

issuance of civil penalties in this case would deter Laidlaw from violating

the statute at these other facilities.

Steel Co., plaintiffs alleged and proved a continuing violation

and the district court determined that the civil penalty imposed

would deter Laidlaw from violating the Act in the future.

The court of appeals’ application of Stee/ Co. created a direct

conflict with this Court's decision in Gwaltney. Gwaltney, like

this case, was a citizen suit under the Clean Water Act, where

the plaintiffs alleged a continuing violation and the district

court imposed a civil penalty but denied an injunction. As

here, the denial of injunctive relief was not appealed. When

Gwaltney reached this Court, the petitioner raised the same

redressability argument adopted by the court of appeals here.

This Court found standing in Gwaltney and, necessarily,

determined that the case was not moot since, after discussing

mootness generally, it proceeded to the non-constitutional

issues. Gwaltney applies a fortiori here, since Laidlaw

committed numerous post-complaint violations whereas in

Gwaltney there were none. There is no indication, direct or

implicit, in Steel Co. to suggest that it overruled Gwaltney.

The difference in the outcomes of Stee/ Co. and Gwaltney,

is fully explicable based on the fact that there were no

continuing violations alleged or proven in Stee/ Co. In

addition, this Court has repeatedly held that there are sharply

different standards for standing and mootness. A showing of

mootness requires that it be "absolutely clear" that the illegal

conduct "could not be reasonably expected to recur." United

States v Concentrated Phosphate Export Ass'n, 393 U.S. 199,

203 (1968). See also Gwaltney, 484 U.S. at 66. This

difference is presumably based on the different functions of

standing and mootness. Standing serves a gatekeeper function

to prevent inappropriate cases from being litigated in the

federal courts. Mootness serves to protect against the

unwarranted dismissal of actions in which the parties and the

courts have often invested substantial resources.

The court of appeals failed to consider the district court's

finding that the penalty imposed would deter Laidlaw’s illegal

conduct. Although the district court denied injunctive relief

based on equitable considerations, it did not find that such

relief was moot. It specifically found that the civil penalty it

imposed would deter Laidlaw’s illegal conduct. This

determination is consistent with the conclusions of both this

Court and Congress that civil penalties under the Clean Water

Act deter future violations. Thus, the civil penalties in this case

redress the harm to plaintiffs.

The court of appeals’ decision undermines Congress’

carefully-constructed program for citizen enforcement of

environmental laws because it requires, as a matter of federal

constitutional law, the dismissal of any citizen suit brought

against a party that has violated a federal environmental law as

long as that party comes into compliance prior to final

judgment. In this case, even though Laidlaw had violated the

Clean Water Act hundreds of times before the complaint was

filed and continued to violate the Act afterwards, the court of

appeals concluded that mootness compelled the lawsuit's

dismissal. Without disputing the district court's findings that

Laidlaw had enjoyed a large economic benefit through its

violation of the Act, the court of appeals precluded the

imposition of any civil penalty. The decision thereby creates

perverse incentives that encourage violation of the Act and

dilatory litigation practices. It also discourages citizens from

bringing suit and playing the integral role in enforcement of the

Act that Congress intended.

2. The court of appeals also erred in deciding that plaintiffs

had not been awarded a declaratory judgment. In fact, a

declaratory judgment had been awarded over Laidlaw’s

opposition and therefore, even under Stee/ Co. itself, this case

was not moot.

3. The court of appeals also erred in deciding that, because

this lawsuit was moot, plaintiffs were not entitled to an award

_ 12

of attorneys’ fees and expenses even though the suit acted as a

catalyst for Laidlaw to come into compliance with the Clean

Water Act. This Court recognized the "catalyst rule" in a series

of cases, including Gwaltney. It did not overrule those

decisions sub silentio in Farrar v. Hobby, 506 U.S. 103 (1992).

ARGUMENT

I. PLAINTIFFS’ CLAIM FOR CIVIL PENALTIES

AGAINST LAIDLAW IS NOT MOOT

The court of appeals stated that mootness is standing set in

a later time frame. 149 F.3d at 306 (Pet. App. 6a). It assumed

that plaintiffs’ members had suffered injury-in-fact and that the

injury was continuing at the time the complaint was filed. /d.

at 306, n. 3 (Pet. App. 7a, n. 3). However, applying this

Court's standing decision in Stee/ Co., it found that the case

was moot because plaintiffs could no longer satisfy the

redressability prong of the standing test. 149 F.3d at 306 (Pet.

App. 7a). It reasoned that "[bJecause Plaintiffs have not

appealed the denial of declaratory and injunctive relief,[*] the

only potential relief that may be available to redress their

claimed injuries is the civil penalty imposed upon Laidlaw" and

"|sjuch penalties * * * cannot redress any injury suffered by a

citizen plaintiff." Jd. at 306 (Pet. App. 7a).

The court of appeals erred in applying the redressability

analysis regarding civil penalties from Stee/ Co., a standing

case that did not involve an allegation of ongoing violation

which could be deterred by the imposition of civil penalties, to

a case involving an allegation of ongoing violation and the

actual continuation of violations that the district court

determined could be deterred by civil penalties. As a result, the

court of appeals’ decision is in direct conflict with this Court's

decision in Gwaltney, where, despite facts nearly identical to

Declaratory relief was not denied. We address this error below. See pp.

41-42 below.

those here, this Court concluded that the case was not moot and

that the plaintiffs had standing.”

The assessment of mootness requires a "highly

individualistic, and usually intuitive, appraisal of the facts of

each case." 13A Charles Alan Wright et al., Federal Practice

and Procedure § 3533, at pp. 211-212 (2d ed. 1984). "The

central question nonetheless is constant-whether decision of a

once living dispute continues to be justified by a sufficient

prospect that the decision will have an impact on the parties."

Id., p. 212.

As we show below, if the court of appeals had engaged in

such an appraisal of the facts, it would have found that the

district court determined that the civil penalty it imposed would

deter Laidlaw from discharging excessive pollutants in

violation of the Act. Civil penalties that deter Laidlaw from

renewing its violations of the Act redress plaintiffs’ interest in

protecting the waterways that they use or refrain from using

due to pollutants entering those waterways.

A. Gwaltney, Not Steel Co., Is Controlling

1. Gwaltney and This Case Are Indistinguishable

Steel Co. involved a citizen suit under the Emergency

Planning and Community Right to Know Act (EPCRA), 42

U.S.C. 11046(a)(1). In that case, the defendant brought itself

into full compliance with the reporting requirements of EPCRA

after receiving the plaintiff s notice of intent to sue -- or 60-day

notice letter, as it is commonly known -- but prior to the filing

of the complaint. 118 S. Ct. at 1009. As a result, the plaintiff

was not able to allege a continuing violation in the complaint

(see id. at 1020) and did not seek an injunction ordering the

defendant to comply with EPCRA (Citizens for a Better Env 't

* The only difference between Gwaltney and the present case is that Laidlaw

had post-complaint violations whereas, in Gwaltney, the last violation was

a month before the filing of the complaint. 484 U.S. at 53-54.

v. Steel Co., 42 Env’t Rep. Cas. (BNA) 1186, 1189-1190 (N.D.

Ill. 1995)).° It was because of the plaintiff s failure, indeed its

inability, to allege a continuing violation or the likelihood of a

continuing violation that this Court found that the plaintiff

could not satisfy the redressability prong of the standing test.

118 S. Ct. at 1020. The Court specifically stated: "[bJecause

respondent alleges only past infractions of EPCRA, and not a

continuing violation or the likelihood of a future violation,

injunctive relief will not redress its injury." /bid.

The Court examined each of the other forms of relief

requested by the plaintiff to see if any of those forms of relief

would serve to redress the plaintiff's injuries. 118 S. Ct. at

1018-1019. The Court concluded that none of the requested

relief would remedy the injury suffered by the plaintiff. /bid.

With regard to the claim for civil penalties, which are payable

to the United States Treasury, the Court reasoned (ibid. ):

In requesting [civil penalties], therefore, respondent seeks

not remediation of its own injury - reimbursement for the

costs it incurred as a result of the late filing - but

vindication of the rule of law - the "undifferentiated

public interest” in faithful execution of EPCRA.

* + *

By the mere bringing of his suit, every plaintiff

demonstrates his belief that a favorable judgment will

make him happier. But although a suitor may derive great

comfort and joy from the fact that the United States

Treasury is not cheated, that a wrongdoer gets his just

desserts, or that the nation’s laws are faithfully enforced,

that psychic satisfaction is not an acceptable Article III

remedy because it does not redress a cognizable Article

‘° A continuous violation, or an ongoing violation as it is sometimes called,

means an Ongoing violation at the time of the complaint. Gwaltney, 484

U.S. at 64-66.

III injury. [emphasis in original; citations omitted]

Having concluded that none of the relief requested could

redress plaintiff's injury, the Court vacated the judgment and

remanded the case with instructions to dismiss the complaint.

118 S. Ct. 1020. The merits were never reached.

Gwaltney involved a citizen suit under the Clean Water Act,

33 U.S.C. 1251, et seg. Unlike the plaintiff in Stee/ Co., the

plaintiffs in Gwaltney alleged a continuing or ongoing violation

of the Act. 484 U.S. at 54. In their complaint, they sought

injunctive relief and civil penalties. /bid

In Gwaltney, the defendant's violations ceased a month

before the complaint was filed. 484 U.S. at 53-54; Chesapeake

Bay Found. v. Gwaltney of Smithfield, Lid., 890 F.2d 690, 692

(4th Cir. 1989)(full procedural history of the case detailed in

remand decision). As a result, no injunctive relief was awarded

by the district court. 890 F.2d at 692, n. 2. This ruling was not

appealed to the Fourth Circuit (see id. at 692) and therefore

was not before this Court. By the time that this Court issued its

decision, there had been no violations for three and a half years.

Consequently, the sole remaining claim was for civil penalties.

This fact was specifically pointed out by the petitioner to this

Court. Reply Br. for Pe*’: at 16, Gwaltney of Smithfield, Ltd

v. Chesapeake Bay Found., 484 U.S. 49 (1987) (No. 86-

473) Pet. App. 40a)(hereafter "Gwaltney Reply Br."). See 484

U.S. at 66. Moreover, the petitioner in Gwaltney made the

identical redressability argument that the court of appeals

adopted in the present case. Gwaltney Reply Br., pp. 15-18

(Pet. App. 39a-43a). Nonetheless, this Court specifically held

that the plaintiffs had constitutional standing under Article II]

to seek imposition of civil penalties despite the fact that

injunctive relief was no longer being sought“ (484 U.S. at 64-

66) and proceeded to the merits.

4 See also Steel Co., 118 S. Ct. at 1011 (“Article III standing was in any

event found [in Gwaltney]").

All the facts in Gwaltney were plain and undisputed before

this Court. The record was clear that the district court had

issued no injunction against future violations, the plaintiffs had

not appealed this ruling, and no violations had occurred for

over three years by the time of this Court's decision. In

addition, the petitioner had squarely raised the issues of

constitutional standing and mootness before this Court. 484

U.S. at 65-66; Gwaltney Reply Br., pp. 15-18 (Pet. App. 39a-

43a). Yet, neither this Court nor the Fourth Circuit, on remand,

dismissed the case as moot. See 484 U.S. at 67; 890 F.2d at

696-697.

This Court emphasized in Stee/ Co. that its long-established

practice is to insist on the determination of constitutional

jurisdictional issues before dealing with the merits. 118 S. Ct.

at 1012-1013. This proposition applies just as much to

mootness as to standing. In a case decided well before

Gwaltney, this Court stated (United States v. Munsingwear,

Inc., 340 U.S. 36, 39 (1950)):

The established practice of [this] Court in dealing with a

civil case from a court in the federal system which has

become moot while on its way here or pending our

decision on the merits is to reverse or vacate the judgment

below and remand with a direction to dismiss.

It would therefore have been inconsistent with Article III of the

Constitution and this Court’s "established practice" for this

Court to have ignored in Gwaltney a substantial jurisdictional

problem that had been explicitly raised before it.

When this Court reached the statutory jurisdictional issue in

Gwaltney, it necessarily decided that the case was not moot

even though injunctive relief was no longer viable. Otherwise,

Gwaltney, like Steel Co., should have been vacated and

remanded with instructions to dismiss. See, e.g., Deakins v.

Monaghan, 484 U.S. 193, 204 (1988).

This Court’s holding on the statutory jurisdictional issue in

Gwaltney further shows that injunctive relief is not a sine qua

non to civil penalty relief in a citizen suit. This Court held that

“citizens * * * may seek civil penalties only in a suit brought to

enjoin or otherwise abate an ongoing violation" (emphasis

added). 484 U.S. at 59. The emphasized language, which is

stated in the disjunctive, shows that civil penalties are available

in a citizen suit when injunctive relief is not. As we show

below (pp. 24-40), civil penalties, as well as injunctive relief,

abate ongoing violations -- which, under Gwaltney, 484 U.S. at

64-66, means the risk of further violations at the time of the

complaint. Obviously, it would have been pointless for this

Court to have reached this conclusion if such circumstances

created a lack of jurisdiction under Article III. Since this Court

found constitutional standing in Gwaltney and implicitly, but

clearly, held that the case was not moot, it necessarily

concluded in Gwaltney that injunctive relief is not essential for

Article III jurisdiction in a citizen suit where ongoing violations

are alleged and proved.

When this Court remanded Gwaltney to the Fourth Court for

further consideration, it again necessarily determined that the

case was not moot and therefore that the Fourth Circuit had

jurisdiction’ In response to the petitioner's mootness

argument, which specifically raised the issue of redressability,

this Court discussed the applicability of mootness to citizen

suits under the Clean Water Act. 484 U.S. at 66-67. This

Court did not find that the case was moot since, in the

paragraph immediately following the discussion of mootness,

= Similarly, when the Fourth Circuit remanded Gwaltney to the district

court for determination of whether the plaintiffs proved at trial that there

was a reasonable likelihood of continuing or intermittent violations at the

time they brought suit, it was necessarily holding that the case was not

moot. 844 F.2d 170, 171 (1988). When the case returned to the Fourth

Circuit after the remand, the Fourth Circuit expressly held that the case was

not moot. 890 F.2d at 690.

. 18

it stated that it was remanding the case for a determination

whether the complaint’s allegation of continuing violations was

made in good faith. 484 U.S. 67. There could be no possible

reason for a remand if the case was moot because of the

absence of injunctive relief.

This case is governed a fortiori by Gwaltney. In both cases,

the defendant came into compliance with its permit before the

district court issued its decision on the relief issues. Gwaltney,

890 F.2d at 692: Laidlaw, 956 F. Supp. at 611 (J.A. 183). As

a result, in both cases, the district court did not issue an

injunction. /bid. Instead, in both cases, the district court

imposed only a civil penalty. Gwaltney, 611 F. Supp. 1542,

1565 (E.D. Va. 1985); Laidlaw, 956 F. Supp. at 610 (J.A. 181).

The only difference between the two cases is that here Laidlaw

did not come into compliance until well after the complaint had

been filed. See 956 F. Supp. at 611, 621 (J.A. 183, 195).

In neither Gwaltney nor Laidlaw did the defendant meet the

heavy burden of showing that injunctive relief was moot. See

pp. 32-33 below (discussion of burden). Indeed, Laidlaw did

not even attempt to make such a showing. As discussed below,

(pp. 31-35), the district court merely determined that an

injunction was not warranted and that civil penalties would

provide an ample deterrent against future violation. 956 F.

Supp. at 610-611 (J.A. 182-183). Likewise, the district court

in Gwaltney thought that the penalty that it assessed would

have a deterrent effect on the defendant. 611 F. Supp. at 1564.

The issue of injunctive relief in Gwaltney and here was

eliminated from the case by virtue of its not having been

awarded and no appeal of its denial being taken.

Thus, under Gwaltney, this case is not moot and it should be

remanded to the lower court to decide the remaining issues.

2. Steel Co. Did Not Overrule Gwaltney

The court of appeals did not even address Gwaltney, despite

its direct relevance to the court of appeals’ mootness

determination. Instead, it based its decision on Steel Co. The

only basis for the court of appeals to have based its decision on

Steel Co., instead of Gwaltney, is if Steel Co. overruled

Gwaltney.

There is no indication in Stee/ Co. that Gwaltney has been

overruled. On the contrary, in Stee/ Co., during its lengthy

discussion of its long-standing practice to determine as a

threshold matter that it has jurisdiction (118 S. Ct. at 1009-

1016), the Court specifically cited Gwaltney as a case in which

this practice had been followed (id. at 1011). In fact, in Stee/

Co., the Court specifically reaffirmed that Article III standing

was found in Gwaltney.“ Ibid.

» Plaintiffs relied heavily on Gwaltney throughout their brief on the Stee/

Co. issue in the Fourth Circuit. See Second Supplemental Br. for

Appellants, April 24, 1998. Yet, the court of appeals did not even mention

Gwaltney, except to reject it with a “but see" citation on the separate

attomeys’ fee issue. See 149 F.3d at 307, n. 5 (Pet. App. 9a, n. 5).

Plaintiffs submit that this was not an oversight; Gwaltney simply cannot be

squared with Laidlaw.

A district court has held that the decision in Laidlaw implicitly

overturned the Fourth Circuit's prior decision in Gwaltney, 890 F.2d at 696-

697, which held that "the mooting of a claim for injunctive relief does not

moot a claim for CWA civil penalties" (emphasis added). DuBois v. United

States Dep't of Agric., 20 F. Supp. 2d 263, 268, n. 4 (D.N.H. 1998), appeal

stayed pending this Court’s decision in Laidlaw (No. 98-2364, Ist Cir.,

April 2, 1999). The court of appeals’ decision in Laidlaw likewise

implicitly overturned this Court’s decision in Gwaltney.

13 Justice Stevens’ concurring opinion in Stee/ Co. suggests that standing

may not have been decided in Gwaltney. 118 S. Ct. at 1025. This is

directly contradicted by the statement in the Court’s opinion in Stee/ Co.

that standing was found in Gwaltney. /d. at 1011.

Moreover, as a matter of logic, standing had to have been found in

Gwaltney. The majority opinion in Stee/ Co. requires that constitutional

jurisdictional issues, such as standing, be decided before non-constitutional

jurisdictional issues or the merits may be reached. 118 S. Ct. at 1012-1013.

On the other hand, Justice Stevens, in his concurring opinion in Stee/ Co.,

would allow statutory jurisdiction to be decided first where a decision on

In addition, there is nothing implicit in the Stee/ Co. decision

that would suggest that Gwaltney was being overruled or

limited. Stee/ Co. indicates that a citizen plaintiff has standing

throughout a case regardless of whether the violations cease as

long as the violations were continuing at the time of the

complaint or at least that there was a risk that such violations

were continuing at the time of the complaint. This Court stated

twice that the outcome on standing in Siee/ Co. would have

been different if the plaintiff had alleged a continuing violation

(118 S. Ct. at 1019, 1020):

The latter objective can of course be "remedial" for

Article III purposes, when threatened injury is one of the

gravamens [sic] of the complaint. /f respondent had

alleged a continuing violation or the imminence of a

future violation, the injunctive relief requested would

that issue could avoid a more difficult constitutional jurisdiction issue. /d@

at 1021. However, Justice Stevens’ approach can only apply if the court

finds that the plaintiff loses on some other ground so that the constitutional

issue of jurisdiction need not be reached.

This Court in Gwaltney did not dismiss the case on a statutory

jurisdictional ground. On the contrary, it remanded the case to the Fourth

Circuit (484 U.S. at 67) to determine a non-constitutional jurisdictional

issue -- namely, whether the plaintiff had provided adequate proof that there

was a risk of continuing violations at the time the complaint was filed. If.

as the Fourth Circuit found (Gwaliney, 890 F.2d at 695), plaintiff had

provided such proof, the case could proceed.

Therefore, this Court necessarily determined in Gwaltney that there was

constitutional jurisdiction, including standing, under the approach of both

the majority and Justice Stevens in Steel Co. For even under Justice

Stevens’ approach, if the resolution of the non-constitutional issue does not

result in dismissal, the constitutional jurisdictional issues, such as standing

and mootness, must be decided before the plaintiff can be allowed to

continue its case. See 118 S. Ct. at 1023. Since this Court allowed the

plaintiffs’ case in Gwaltney to proceed, it had to have held that the plaintiffs

had constitutional standing.

This same analysis applies equally to this Court's mootness

determination in Gwaltney. See pp. 16-18 above.

remedy that alleged harm. But there is no such allegation

here--and on the facts of the case, there seems no basis for

it.

* * *

Because respondent alleges only past infractions of

EPRCA [sic], and not a continuing violation or the

likelihood of a future violation, injunctive relief will not

redress its injury. [emphases added}

This language demonstrates that the determining factor in

Steel Co. was the plaintiff's inability to make and prove an

allegation of continuing violation at the time of the complaint.

There was no reason for this Court to have been so focused on

the timing of the complaint vis-a-vis the defendant's violations

if it meant to hold that Article III requires continued violations

through the point of final resolution of the case.

Justice Scalia’s concurring opinion in Gwaltney strongly

supports this reading of his subsequent opinion for the Court in

Steel Co. In Gwaltney, a case where there was an allegation of

continuing violation and no post-complaint violations, Justice

Scalia predicted in his concurring opinion the outcome in a

case like Steel Co. where there was no allegation of continuing

violation. Justice Scalia stated in Gwaltney (484 U.S. at 70-

71):

While Gwaltney did not seek certiorari (or even appeal to

the Court of Appeals) on the denial of its motion to

dismiss for lack of standing, it did raise the standing issue

before us here, see Reply Brief for Petitioner 17-18, and

we in any event have an independent obligation to inquire

into standing where it is doubtful, see Bender vy.

Williamsport Area School Dist., 475 U.S. 534, 541 * * *

(1986). If it is undisputed that the defendant was in a

state of compliance when this suit was filed, the plaintiffs

would have been suffering no remediable injury in fact

that could support suit. The constitutional requirement

for such injury is reflected in the statute itself, which

defines "citizen" as one who has “an interest which is or

may be adversely affected."

Accordingly, even on the Court's theory of this case it

seems to me that the remand should require the lower

court to consider not just good-faith allegations of a state

of violation but its actual existence. To be sure, nothing

in the Court's opinion precludes such consideration of

standing. but under sound practice the remand should

require it. Of course that disposition would call attention

to the fact that we have interpreted the statute to confer

subject-matter jurisdiction over a class of cases in which,

by the terms of the statute itself, there cannot possibly be

standing to sue. [some citations omitted; emphases in

original]

Reading Justice Scalia’s two opinions together, there is no

Article III standing in a case where no allegation of continuing

violation can be made or the allegation is made but there is no

proof of continuing violations, but there is Article III standing

and continues to be standing in a case where the plaintiff

proves continuing violations or the risk of continuing violations

at the time of the complaint, even though the violations actually

cease during the pendency of the case. Since this case falls into

the latter category, due to Laidlaw’s post-complaint violations,

there is and continues to be Article II] standing according to

Justice Scalia’s opinions in both Gwaltney and Steel Co.

The holding in Stee/ Co. is therefore limited to citizen suits

where the plaintiff cannot and does not make an allegation of

continuing violations. This reading of Stee/ Co. is necessary

to avoid a conflict with Gwaltney. Here, plaintiffs alleged and

proved continuing violations. Am. Compl., para. 24 (J.A. 38);

956 F. Supp. at 600 (J.A. 158). Thus, this case is controlled by

Gwaltney. not Steel Co.

3. Contrary to the Decision Below, the Standards

for Mootness and Standing Are Different

Even if the distinction between Steel Co. and Gwaltney was

not the difference in the allegations regarding ongoing

violation, the difference in their outcomes would still be fully

explainable by the difference in the standards for standing and

mootness. This Court has held that injunctive relief is moot

only if the defendant can meet the heavy burden of showing

that it is "absolutely clear that the allegedly wrongful behavior

could not reasonably be expected to recur" (emphasis added).

Concentrated Phosphate, 393 U.S. at 203. In Steel Co. itself,

the Court emphasized the difference between initial standing

and mootness (118 S. Ct. at 1019-1020):

The United States, as amicus curiae, argues that the

injunctive relief does constitute remediation because

"there is a presumption of [future] injury when this

defendant has voluntarily ceased its illegal activity in

response to litigation," even if that occurs before a

complaint is filed. * * * 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. See e.g., United States

v. WT. Grant Co., 345 U.S. 629 * * * (1953). 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. [alteration in original]

Although this Court did not explain in either Gwaltney or

Steel Co. why standing and mootness are assessed differently

for purposes of redressability, there are sound reasons for this

distinction.

Standing serves a gatekeeping function. It serves to keep

cases that are not justiciable out of the courthouse. Mootness.

on the other hand, does not serve the same gatekeeping

function. By the time mootness is an issue, the case has been

brought and litigated, often for years. This Court's holdings

making it extremely difficult for a case to be dismissed as moot

serve to protect the rights and resources of the parties and the

courts.

Moreover, the wasting of time and resources could become

a vicious circle if a case were easily dismissed due to the

voluntary cessation of the illegal conduct. In such

circumstances, defendants would be free to resume illegal

conduct, cease such conduct during suit to avoid the

consequences of the suit, resume the illegal conduct when the

case was dismissed as moot, and so on. See City of Mesquite

v. Aladdin's Castle, 455 U.S. 283, 289 (1982); Concentrated

Phosphate, 393 U.S. at 203 ("Mere voluntary cessation of

allegedly illegal conduct 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” (alteration in original)). Avoiding

repetitious litigation serves the public interest and compels the

stringent test this Court has adopted for mootness of injunctive

relief. Cf W.T. Grant Co., 345 U.S. at 632.

In sum, the court of appeals’ decision to apply Stee/ Co. to

a mootness question was erroneous.

B. The Civil Penalties Imposed by the District Court

Benefit Plaintiffs because They Deter Laidlaw

from Violating its Permit and the Act

The court of appeals concluded that civil penalties could not

support redressability on the ground that in Stee/ Co. this Court

had found that “any civil penalties imposed would be payable

to the United States Treasury and not to the plaintiff and

therefore that the penalties would not benefit the plaintiff." 149

F.3d at 306 (Pet. App. 8a). However, this Court's conclusion

in Steel Co. is in the context of a case where the plaintiff could

not allege and prove an ongoing violation. Civil penalties,

even though paid to the United States Treasury, undoubtedly

benefit a plaintiff who makes and proves an allegation of

ongoing violation because they deter future illegal conduct by

the defendant.

As we show below, the decisions of this Court make clear

that civil penalties serve to deter a defendant’s unlawful

conduct, particularly under the Clean Water Act. In addition,

the district court explicitly found that the civil penalty imposed

here would deter Laidlaw from future violations.

1. Civil Penalties Deter Violations by the Defendant

This Court has determined that civil penalties under the

Water Act deter defendants from future violations. Tull v.

United States, 481 U.S. 412, 422-423 (1987); Weinberger v.

Romero-Barcelo, 456 U.S. 305, 314 (1982).

Tull involved the issue of whether the Seventh Amendment

right to a jury trial applied to the liability determination for

alleged violations of the Clean Water Act and/or the penalty

assessment for such violations. This Court analyzed Section

309(d) of the Act, 33 U.S.C. 1319(d), which governs the

imposition of civil penalties under the Act, its purpose, its

legislative history and other factors. In doing so, this Court

stated that (481 U.S. at 422-423):

A civil penalty was a type of remedy at common law that

could only be enforced in courts of law. Remedies

intended to punish culpable individuals, as opposed to

those intended simply to extract compensation or restore

the status quo, were issued by courts of law, not courts of

equity. The action authorized by [33 U.S.C.] § 1319(d) is

of this character. Subsection (d) does not direct that the

“civil penalty" imposed be calculated solely on the basis

of equitable determinations, such as the profits gained

from violations of the statute, but simply imposes a

maximum penalty of $10,000 per day of violation. The

legislative history of the Act reveals that Congress wanted

the district court to consider the need for retribution and

deterrence, in addition to restitution, when it imposed

“civil penalties. A court can require retribution for

wrongful conduct based on the seriousness of the

violations, the number of prior violations, and the lack of

good-faith efforts to comply with the relevant

requirements. /f may also seek to deter future violations

by basing the penalty on its economic impact. [emphases

added; citations and footnote omitted]

Thus, Congress intended penalties to create an economic

incentive for the defendant to comply in the future.

In Romero-Barcelo, acitizen suit under the Clean Water Act,

the district court found that the U.S. Navy was violating the

Water Act by discharging ordnance into the sea without a

permit. 456 U.S. at 307-308. It ordered the Navy to apply for

the permit but refused to enjoin the weapons operations that

resulted in the discharge. /d. at 309-310. The First Circuit

reversed and directed the district court to enjoin all discharges

until a permit was obtained, on the basis that the traditional

balancing of the equities was inappropriate where there was a

statutory duty to obtain a permit. /d. at 310-311. This Court

reversed, holding that the traditional balancing test applied. /d.

at 320. This Court reached this conclusion after determining

that there was nothing in the statute or the legislative history to

suggest that Congress intended to deny courts their traditional

equitable discretion in issuing injunctions. /d. at 314-320.

After stating that "[a]n injunction is not the only means of

ensuring compliance,"it then cited penalties. /d. at314. See

also Amoco Production Co. v. Village of Gambell, Alaska, 480

U.S. 531, 544 (1987).& Obviously, a penalty imposed in lieu

4 Consistent with Tull and Romero-Barcelo, Gwaltney shows that civil

penalties redress violations that continued subsequent to the filing of the

complaint or even threatened to continue. Since civil penalties were the

sole relief left in Gwaltney and this Court upheld the plaintiffs’ continued

of an injunction is meant to deter the defendant from violating

the Act.

Congress likewise has specifically concluded, in discussing

civil penalties under the Water Act, that citizen suits "have

deterred violators and achieved significant compliance gains."

S. Rep. No. 50, 90th Cong., Ist Sess. 28 (1985).“% See also S.

Rep. No. 228, 10lst Cong.,lst Sess. 373 (1989)("[t}he

assessment of civil penalties for violations of the [Clean Air]

Act [is] necessary for deterrence, restitution and retribution").

standing, this Court necessarily held that civil penalties can provide

redressability for the threat of continuing violations when it reached the

non-constitutional issue presented and then remanded the case to the court

of appeals. See pp. 15-18 above.

“Senate Report No. 50 is part of the legislative history of the 1987

amendments to the Water Act. It accompanied S. 1128. S. 1128 became

the bill accepted by the conference committee. See H.R. Rep. No. 1004,

99th Cong., 2d Sess. (1986) (Conference Report to accompany S. 1128).

S. 1128 was enacted by Congress in 1986 and vetoed by President Reagan

on November 6, 1986. In the 100th Congress, S. | 128 was enacted as H.R.

|. 133 Cong. Rec. 1262 (1987) (H.R. | “is absolutely identical to the

conference report on S. 1128"). H.R. | was not accompanied by any

reports. 1987 U.S. Code Cong. & Ad. News 5 (readers are referred to

Senate Report 50 and House Report 1004 from the 99th Congress).

“7 In the 1990 amendments to the Clean Air Act, Congress recognized the

impact that a lack of civil penalties would have on deterrence. Senator

Chafee. one of the floor managers, stated during a debate on an amendment

to restrict civil penalties in citizen suits that was defeated (136 Cong. Rec.

5627) 1990)):

| do not understand the rationale for that provision. What the polluter

does. he says: “Oh, that is right. | will straighten out.” So he

straightens it out. And since the citizen cannot collect for any past

damages and the polluters stop, then there is no ground for a suit. He

stops within the 60 days. Then what happens? The polluter starts

polluting again, let us say somebody upstream, upwind. Then again

the citizen has to go through this rigamarole, 60 days’ notice; within

the 60 days give notice. And the polluter says: "Oh, dear, | am

sorry.” We go through this charade possibly several times.

As this Court recognized in Tigner v. Texas, 310 U.S. 141, 149

(1940), the issue of deterrence and how it is to be effectuated

are "matters within legislative competence." As with other

congressional findings, Congress’ determination as to the effect

of civil penalties is entitled to substantial deference. See, e.g.,

Preseault v. Interstate Commerce Comm'n, 494 U.S. 1, 17

(1990)(holding that courts must defer to Congress’ findings

that regulated activities affect interstate commerce where a

statute is challenged as an invalid exercise of congressional

power under the Commerce Clause). Therefore, civil penalties,

under the Clean Water Act, according to both this Court and

Congress, provide redress for the harm. These conclusions are

fully consistent with decisions of this Court and other federal

courts that have repeatedly found that civil penalties deter the

violation of a variety of federal statutes. Hudson v. United

States, 118 S. Ct. 488, 494 (1997)("[A]ll civil penalties have

some deterrent effect"); Department of Revenue v. Kurth

Ranch, 511 U.S. 767, 778 (1994)("civil penalties * * * deter

certain behavior"); United States v. ITT Continental Baking

Co., 420 U.S. 223, 231 (1975)(where "the detrimental effect to

the public and the advantage to the violator [of ignoring the

law] continue and increase over a period of time, and the

violator could eliminate the effects of the violation if it were

motivated to do so," accumulating daily penalties under the

consent decree between the parties can provide the motivation

and deter violations).

In Bennett v. Spear, 117 S. Ct. 1154 (1997), the Bureau of

Reclamation informed the Fish and Wildlife Service (F WS)

that operation of the project might affect several endangered

species in violation of the Endangered Species Act (ESA). The

FWS issued a biological opinion that identified alternatives

designed to avoid jeopardy to the species, including the

maintenance of minimum water levels in the water bodies

involved in the project. /bid. The Bureau notified the FWS

that it intended to operate the project in compliance with the

biological opinion. /bid. The plaintiffs claimed that they were

injured because the restrictions on water levels recommended

by the FWS biological opinion would cause a reduction in the

amount of irrigation water available to them. /d. at 1160. The

plaintiffs brought suit against the FWS, rather than the Bureau,

to have the biological opinion set aside. /d at 1159-1160.

Although the Bureau was not bound to adhere to the biological

opinion and reduce the water levels, this Court found that the

Bureau had a strong incentive to do so to avoid the penalties for

“taking” an endangered species under the ESA. /d at 1165.

The "powerful coercive effect" of the biological opinion on the

Bureau made it likely that the plaintiffs’ injury from the

threatened water level restrictions would be redressed if the

biological opinion were set aside. /bid. Accordingly, this

Court found that the plaintiffs satisfied the redressability prong

of the standing test.

Five courts of appeals have held that claims for penalties in

citizen suits under the Clean Water Act are not moot even

though claims for injunctive relief were no longer viable

because the defendants had brought themselves into compliance

with the Act on the ground that the civil penalties act as a

. deterrent to further violations by the defendants. ASLF v. Stroh

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

denied, 118 S. Ct. 442 (1997); NRDC v. Texaco Ref. and Mktg.,

Inc., 2 F.3d 493, 503-504 (3d Cir. 1993); ASLF v. Pan Am.

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

ASLF v. Tyson Foods, Inc., 897 F.2d 1128, 1135-1136 (11th

Cir. 1990); Pawtuxet Cove Marina, Inc. v. Ciba-Geigy Corp.,

807 F.2d 1089, 1094 (1st Cir. 1986). See also Comfort Lake

Ass'n v. Dresel Contracting, Inc., 138 F.3d 351, 356 (8th Cir.

1998)(dictum); Carr v. Alta Verde Indus., Inc., 931 F.2d 1955,

1065, n. 9 (Sth Cir. 1991)(dictum). These cases are fully

nT a ee ee re .

consistent with this Court’s decision in Gwaltney.

The fact that civil penalties have a deterrent effect on

violators hardly requires the citation of authority. This is a

matter of common sense. Virtually all of our law is founded on

the assumption that the imposition of penalties deters

misconduct by the defendant. It is also a matter of common

sense that any remedy that deters the defendant’s misconduct

benefits the plaintiff by protecting it from further misconduct.

The court of appeals failed to appreciate the deterrent value

of civil penalties. Penalties deter violations in a way that

injunctions never can. Ifa violator only faced the prospect of

an injunctive order requiring compliance, it would have little

incentive to comply before the issuance of the injunction. As

this Court stated in Albemarle Paper Co. v. Moody, 422 U.S.

405, 417 (1975) "[i]f employers faced only the prospect of an

injunctive order, they would have little incentive to shun

practices of dubious legality" in the meantime. It is the

"reasonably certain prospect" of a monetary penalty that

"‘provide[s] the spur or catalyst’" for compliance (alteration in

original )(citation omitted).

This is precisely why Congress insisted that civil penalties

imposed under the Clean Water Act remove the economic

benefit derived from noncompliance. 33 U.S.C. 1319(d); Tull,

481 U.S. at 422-424. Otherwise, a violator stands to benefit

from its noncompliance. If a violator benefits from its

noncompliance, it is extremely likely to continue to violate.

1 These cases remain good law after Stee! Co. Each of these cases is

distinguishable from Siee/ Co. on exactly the same basis as this case and

Gwaltney. All of these cases involved allegations of ongoing or continuous

violations; otherwise, the courts that decided them would have lacked

subject matter jurisdiction under Gwaltney. Therefore, just as in this case,

the decision in Steel Co. has no relevance to these earlier cases.

2. The District Court Found that Laidlaw Will

Be Deterred by the Penalty Impdésed

Injunctive relief against violators of the Clean Water Act is

not automatic. Romero-Barcelo, 456 U.S. at 311. An

injunction should issue only (id. at 312):

[Where the intervention of a court of equity "is essential

in order effectually to protect property rights against

injuries otherwise irremediable." The Court has repeatedly

held that the basis for injunctive relief in the federal courts

has always been irreparable injury and the inadequacy of

legal remedies.

Where [the parties] present competing claims of injury,

the traditional function of equity has been to arrive at a

“nice adjustment and reconciliation" between the

competing claims. In such cases, the court "balances the

conveniences of the parties and possible injuries to them

according as they may be affected by the granting or

withholding of the injunction." "The essence of equity

jurisdiction has been the power of the Chancellor to do

equity and to mould each decree to the necessities of the

particular case. Flexibility rather than rigidity has

distinguished it."

* * *

The grant of jurisdiction to ensure compliance with a

statute hardly suggests an absolute duty to do so under

any and all circumstances, and a federal judge sitting as

chancellor is not mechanically obligated to grant an

injunction for every violation of law. [citations omitted]

Thus, if the defendant’s unlawful conduct can be deterred

through other means, an injunction is not necessary.” Jd at

312, 314.

? Civil penalties were among the other means for deterrence that the Court

enumerated in Romero-Barcelo. See p. 26 above.

On the other hand, injunctive relief can become moot due to

the voluntary cessation of the illegal conduct, only if the

defendant proves that the unlawful conduct has ceased.

Concentrated Phosphate, 393 U.S. at 203. As this Court stated

in Gwaltney, before a claim for injunctive relief can be

adjudged moot (484 U.S. at 66):

The defendant must demonstrate that it is "absolutely

clear that the allegedly wrongful behavior could not

reasonably be expected to recur." United States v.

Phosphate Export Assn., Inc., 393 U.S. 199, 203, 89 S.Ct.

361, 364, 21 L.Ed. 344 (1968). [emphasis added by the

Court in Gwaltney]

Thus, there are numerous intermediate situations where

neither injunctive relief nor dismissal of an injunctive relief

claim based on mootness due to voluntary cessation is proper.

2°"'MJootness has two aspects: ‘when the issues presented are no longer

‘live’ or the parties lack a legally cognizable interest in the outcome.’”

United States Parole Comm'n v. Geraghty, 445 U.S. 388, 396

(1980)(quoting Powell v. McCormack, 395 U.S. 486, 496 (1969)). The

first aspect involves the settlement of a claim, the lack of a timely appeal,

a change in the law that gave basis to the suit or the defendant’s voluntarily

cessation of the alleged illegal conduct during the course of the litigation.

See 13A Wright, supra, §§ 3533.2, 3533.5, 3533.6 and 3533.10. The other

is what has been referred to as the “personal stake" aspect of mootness.

Geraghty, 445 U.S. at 396. The "personal stake" aspect involves situations

where the plaintiff no longer has a personal stake in the outcome of the

litigation. For example, in Geraghty, 445 U.S. at 390, the plaintiff, who ~

challenged the validity of the parole commission’s release guidelines, was

released from prison while his case was on appeal and, in Arizonans for

Official English v. Arizona, 117 S.Ct. 1055, 1059 (1997), the plaintiff state

employee challenged a state law requiring that state business be conducted

in only the English language, but resigned from state employment during

the course of the litigation.

The mootness aspect at issue in Gwaltney and in this case involve the

first aspect, where the issues presented are no longer "live" due to the fact

that the district court denied injunctive relief and the denial was not

appealed.

See, e.g., Concentrated Phosphate, 393 U.S. at 203 (even

though the defendant on remand might be able to show that

injunctive relief was inappropriate, the case was not moot);

W.T. Grant, 345 U.S. at 635-636 ("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"). This is such a case.

The district court made clear that, in denying injunctive

relief, it was not finding that violations of the permit would not

occur in the future. It specifically stated that "a defendant in

substantial compliance with its NPDES permit is not required

to show that there is no chance of a future permit violation in

order to defeat a request for injunctive relief." 956 F. Supp. at

611 (J.A. 182-183). It further stated that "[t]aken together, this

court believes the above penalty, potential fee awards, and

Laidlaw’s own direct and indirect litigation expenses provide

adequate deterrence under the circumstances of this case." Jd.

at 611 (J.A. 182) Thus, the district court specifically found that

the penalty it imposed would be a deterrent to possible future

violations by Laidlaw.

The district court’s conclusions are supported by the

evidence. Laidlaw’s discharge violations were due to an

inadequate treatment system and its failure to control

adequately its mercury feed rate, i.e., the amount of mercury

introduced into the incinerator at a given time. See 890 F. Supp

at 478 (J.A. 92). The level of mercury in Laidlaw’s discharge

is a function of the amount of mercury that it processes in its

incinerator. 1993 Tr., vol. V, p. 208; 1995 Tr. 100-101; Def.

Exs. 54. 125, 144, 167, para. 10; Pl. Ex. 130, pp. 18, 39.2

Consequently, Laidlaw’s violations depended in significant part

2!’ Defendant's Exhibits 54, 125, 144 and 167 were admitted into evidence

at 1993 Tr., vol. 1, p. 40. Plaintiffs’ Exhibit 130 was admitted into

evidence at 1995 Tr., p. 13.

on the changes Laidlaw made to its mercury feed rate“ The

district court found that the treatment equipment that Laidlaw

ultimately installed was only effective "so long as Laidlaw

severely restricted the feed rate of mercury-containing waste

into the incinerator." 956 F. Supp. at 599 (J.A. 147).

The district court’s conclusions are consistent with the well-

established law that injunctive relief is an extraordinary

remedy. It is not a remedy that issues as a matter of course.

See pp. 31-31 above. Therefore, injunctive relief may well not

be issued even when, as the district court found in this case,

future violations are possible and civil penalties will deter

22‘In December 1988, Laidlaw violated its permit 16 times. See Pl. Ex. 143.

Shortly after these violations, in February 1989, defendant acknowledged

that its "mercury removal ha[d] diminished to totally unacceptable levels."

Def. Ex. 54. Defendant further acknowledged that the source of the

problem was, in part, "an elevated mercury level in the waste blends” and

that the solution was "blending to reduce mercury levels in the feedstock."

Ibid. Thereafter, Laidlaw reduced the amount of mercury fed into the

incinerator and the number of violations was reduced. See PI. Ex. 126, p.

2, Pl. Exs. 131 and 132 (admitted into evidence at 1995 Tr., pp. 205, 13

and 184-191, respectively).

In April 1991, the number of pounds of mercury fed into the incinerator

was increased. Pl. Ex. 126, figure 1; Pl. Ex. 131. See Def. Ex. 105. This

increase was based on Laidlaw’s desire to increase its sales by accepting

waste with a higher mercury content after it installed the Lancy system. See

Def. Ex. 105.

From April 1991 through January 1992, the number of mercury

violations dramatically increased. See P|. Ex. 143. Yet, not until January

1992, did Laidlaw

begin to lower the amount of mercury introduced into the incinerator. PI.

Ex. 126, figure |. In spite of the reduction, between February and June

1992, the number of mercury violations per month remained extremely

high. See Pl. Ex. 143.

In July 1992, the first full month after plaintiffs filed this suit, Laidlaw

reduced its mercury feed rate significantly and the level of mercury

violations per month dropped. See Pl. Ex. 126, figure 1; Pl. Ex. 143. In

that month, Laidlaw also installed new carbon adsorption equipment. 890

F. Supp. at 483 (J.A. 104).

them.

The district court’s conclusion that civil penalties would

deter future violations is consistent with the presumption of

future injury recognized by this Court when the defendant has

voluntarily ceased its illegal conduct in response to litigation.

Thus, this Court has held that "[i]t is the duty of the courts to

beware of efforts to defeat injunctive relief by protestations of

repentance and reform, especially when abandonment seems

timed to anticipate suit, and there is probability of resumption."

United States v. Oregon State Med. Soc 'y, 343 U.S. 326, 333

(1952). See also pp. 32-33 above.

This Court stated in TJigner, 310 U.S. at 148, that

"{jJudgment on the deterrent effect of the various weapons in

the armory of the law can lay little claim to scientific basis.

Such judgment as yet is largely a prophecy based on meager

and uninterpreted experience." Absent an extraordinary

showing that civil penalties could not possibly have a deterrent

effect on the defendant, civil penalties should be presumed to

have the deterrent effect on a defendant that this Court and

Congress have found that they have. However, such a

presumption is not needed here. The record shows that Laidlaw

could return at anytime to the conduct that resulted in its earlier

violations and that the imposition of civil penalties is likely to

deter such conduct.

Cc. The Court of Appeals’ Decision Seriously

Undermines Congress’ Purpose in Providing for

Citizen Enforcement of the Act

The court of appeals’ decision is not only legally erroneous,

but also seriously undermines Congress’ efforts to ensure

effective enforcement of the Clean Water Act and other

environmental statutes. The citizen suit provision in the Water

Act is modeled on the citizen suit provision in the Clean Air

Act Amendments of 1970. S. Rep. No. 414, supra, p. 79. The

legislative history of the Clean Air Act shows that Congress

I _ —_<£_

36 37

intended citizen suits to be a significant part of the rigorous control all significant acts of pollution .... The extension

enforcement of the Act. Senator Muskie, the sponsor of the of private right, . . . and effective sanctions for the persons

legislation, stated during the Senate debate (116 Cong. Rec. directly affected or concerned will be essential if vital

32927 (1970)): interests are to be protected. Our experience in areas of

What we are seeking to establish is a nationwide policy.

National ambient air standards implemented by plans

developed at the State and local level create potentially

enormous enforcement problems for State, local, and

regional governments, as well as for the National

Government. I think it is too much to presume that,

however well staffed or well intentioned these

enforcement agencies, they will be able to monitor the

potential violations of the requirements contained in all

the implementation plans that will be filed under this act,

all the other requirements of the act, and the responses of

the enforcement officers to their duties.

Citizens can be a useful instrument for detecting

violations and bringing them to the attention of the

enforcement agencies and courts alike. So we have

provided this restrictive citizen suit provision for that

purpose. We took testimony on this subject. It was

strongly supported by legal scholars and several

organizations.

Senator Hart added (116 Cong. Rec. 33104 (1970)):

The basic argument for the provision is plain: namely, that

Government simply is not equipped to take court action

against the numerous violations of legislation of this type

which are likely to occur. In testifying on a similar bill

before the Senate Subcommittee on Energy, Natural

Resources and the Environment, former Attorney General

Ramsey Clark spoke convincingly of this inevitable

incapability. Mr. Clark stated:

"It will be impossible for government enforcement to

massive unlawful racial discrimination, such as in

schooling, employment, and housing tells us that however

hard it might try, government will never have the

manpower, the techniques, or the awareness necessary to

enforce the law for all. Private enforcement of those laws

is the only way the individual can be assured that the

rights cannot be violated with impunity.

Pollution control is another such area. If we are really

serious about controlling the quality of our environment

before it destroys the quality of our lives, we must give

the individuals affected by, or concerned about pollutions

in his life, the power to stop them through legal process.

Far from risking an undue or inhibiting interference with

Government enforcement, it will provide powerful

supplementary enforcement . . . . and an effective and

desirable prod to officials to do their duty."

Every federal environmental statute enacted since that time

has a citizen suit provision modeled on the Clean Air Act. See,

e.g., 33 U.S.C. 1365, 16 U.S.C. 1540(g), 42 U.S.C. 6972, 15

U.S.C. 2619, and 42 U.S.C. 9659. Congress’ repeated

enactment of citizen suit provisions shows that it relies on

citizen enforcement as an integral part of enforcement of

environmental laws. Moreover, Congress specifically

commented on the success of the citizen suit provision of the

Clean Water Act in enacting the 1987 amendments to the Act

(S. Rep. No. 50, supra, p. 28):

Citizen suits are a proven enforcement tool. They operate

as Congress intended - to both spur and supplement to

[sic] government enforcement actions. They have

deterred violators and achieved significant compliance

gains. In the past two years, the number of citizen suits to

enforce NPDES permits has surged so that such suits now

constitute a substantial portion of all enforcement actions

filed in Federal court under this Act.

The court of appeals’ decision eviscerates the citizen suit

provision of the Water Act and creates perverse incentives that

encourage violation of the Act and dilatory litigation practices.

First, if civil penalties cannot be imposed for any violations as

long as the defendant comes into compliance some time during

the pendency of the case, the defendant has every incentive to

continue its noncompliance. This allows the defendant to

maximize the economic benefit it has enjoyed from its

noncompliance. Only if a defendant knows that civil penalties

are certain and significant will it hasten its compliance with the

Act. Laidlaw’s fear of substantial civil penalties in this case

almost certainly affected its compliance efforts.

Second, citizen suits under the Water Act are vigorously

litigated, as is the defendant’s right. Therefore, citizen suits

often take so long that there is time for the defendant to bring

itself into full compliance years after the complaint is filed but

before the case is finally resolved. If defendants know that the

longer the litigation takes, the more chance they have of

ultimately avoiding liability for civil penalties, they will be

encouraged to take every possible action to extend the

litigation. They are likely to delay responses to discovery, to

file every possible motion seriatim, to appeal to the courts of

appeals and seek certiorari in this Court. The result will almost

certainly be to ensure that citizen suits take even more time, to

make settlements extremely unlikely, to make the relationship

between the parties more hostile and to burden the federal

courts needlessly. Creating incentives for litigation delay is

directly counter to Congress’ intent that enforcement of the

Water Act be "swift and direct." S. Rep. No. 414, supra, p. 65.

Third, these incentives for defendants to delay create strong

disincentives for citizens to prosecute citizen suits at all.

"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 violations." Pan Am. Tanning

Corp., 993 F.2d at 1021. Citizens will be leery of investing

years of time, effort and expense to litigate a case that, no

matter how meritorious, can be dismissed at anytime with no

consequence to the defendant. This is counter to "the obvious

purpose of the * * * provision * * * [which] is to encourage

enforcement by so-called ‘private attorneys g =

Bennett v. Spear, 117 S. Ct. at 1162 (addressing standing under

the ESA citizen suit provision).

Fourth, in this case, mootness was not based on a

determination by the district court that the claim was moot, but

instead on the denial of injunctive relief and the plaintiffs’

decision not to appeal the denial. If civil penalties are deemed

moot based on whether an appeal of the denial of injunctive

relief is taken, citizen plaintiffs would be compelled to appeal

every denial of injunctive relief in order to keep their civil

penalty claim alive.

Consequently, if the court of appeals’ decision is allowed to

stand, Congress’ intent to create an effective alternative

enforcement mechanism when the federal and state

_ governments fail to act would be deeply undermined and

citizens will no longer be able to protect their local water

resources from dischargers who violate the Act.

As the Third Circuit explained in Texaco, 2 F.3d at 503-504,

in holding that a civil penalty claim survived the mooting of an

injunctive relief claim in a citizen suit:

A citizen suit would lose much of its effectiveness if a

defendant could avoid paying any penalties by post-

complaint compliance. If penalty claims could be

mooted, polluters would be encouraged to “delay

litigation as long as possible, knowing that they will

thereby escape liability even for post-complaint

violations, so long as violations have ceased at the time

the suit comes to trial." Moreover, whether or not damage

claims are mooted would depend on the vagaries of when

the district court happens to set the case for trial. We

cannot embrace a rule that would weaken the deterrent

effect of the Act by diminishing incentives for citizens to

sue and encourage dilatory tactics by defendants.

[citations and footnotes omitted]

II. PLAINTIFFS’ INJURIES ARE REDRESSED

BY A DECLARATORY JUDGMENT

WHERE LIABILITY WAS CONTESTED

This Court held in Stee/ Co. that a declaratory judgment as

to liability does not support the redressability requirement of

standing where the issue of liability was not contested (118 S.

Ct. at 1018):

There being no controversy over whether petitioner failed

to file reports, or over whether such a failure constitutes

a violation, the declaratory judgment is not only worthless

to respondent, it is seemingly worthless to all the world.

Conversely, if liability is disputed, the plaintiff's injury is

redressed by a determination that the defendant’s practices are

unlawful. See Steel Co., 118 S. Ct. at 1018.

This Court has repeatedly found that even where a defendant

has voluntary ceased an unlawful practice, a plaintiff's injury

is redressed by a declaratory judgment establishing that the

defendant’s past practices were unlawful. E.g, City of

Mesquite, 455 U.S. at 289; Super Tire Eng'g Co. v. McCorkle,

416 U.S. 115, 121-122 (1974); Walling v. Helmerich & Payne,

Inc., 323 U.S. 37, 42-43 (1944). If a claim for declaratory

judgment were mooted by a showing of voluntary cessation,

there is nothing to prevent the defendant from resuming its

unlawful conduct at the enc of the litigation. /bid. Here, the

declaratory relief awarded to plaintiffs, like the civil penalties,

serves to deter Laidlaw by informing it that its past practices

were unlawful and may not legally be resumed.

The court of appeals stated that declaratory relief had been

denied to plaintiffs. 149 F.3d at 306 (Pet. App. 7a). However,

this conclusion is erroneous. The district court could not have

imposed, and did not impose, civil penalties without first

determining that defendant’s actions violated the law.

Plaintiffs sought a declaratory judgment as to liability. Am.

Compl., para. A (J.A. 39). Unlike the situation in Steel Co.,

there was a controversy over Laidlaw’s violation of the law.

In its answer, Laidlaw denied all of the allegations that it had

violated the discharge, monitoring and reporting requirements

of its permit. Am. Compl., para. 28 (J.A. 39)(para. 27 in the

prior Am. Compl.); Answer, para. 26(J.A.49). When plaintiffs

moved for partial summary judgment on all of Laidlaw’s

violations, Laidlaw opposed summary judgment on its mercury

discharge violations on the ground that the permit was

erroneous. Def.’s Resp. in Opp. to Pls.’ Mot. for Partial Summ.

Judgment, June 7, 1995, p. 3. Laidlaw also argued that "most

of the alleged monitoring violations are incorrect" (ibid.) and

that most of the reporting violations likewise did not occur (id.,

_ p. 5).

At trial, Laidlaw continued to dispute all of its violations.

1995 Tr., p. 11. After trial, Laidlaw informed the district court

that it no longer disputed the discharge violations, but that it

continued to dispute most of the monitoring and reporting

violations. Def.’s Proposed Findings of Fact and Conclusions

of Law, October 13, 1995, pp. 12-15; Def.’s Modified Proposed

Findings of Fact and Conclusions of Law, March 29, 1996, pp.

21-24. Thus, defendant did not concede its mercury discharge

violations until plaintiffs fully presented their case to the

district court after three years of litigation and never conceded

its monitoring and reporting violations.

Contrary to the conclusion of the court of appeals (149 F.3d

at 306 (Pet. App. 7a)), the district court issued a declaratory

judgment. It determined that Laidlaw was liable for 489

discharge. 420 monitoring. and 503 reporting violations. 956

F. Supp. at 610, 613-621 (J.A. 158-159, 185-196). This

determination was far from worthless; it determined that

defendant had engaged in repeated, flagrant and long-standing

violation of federal law. Such a decision serves to deter

Laidlaw from engaging in such practices in the future even

though it discontinued them during the course of the litigation.

Anything that deters a defendant’s violation of the Act benefits

the plaintiffs, and therefore, redresses plaintiffs’ injury.

Thus, the decision of the court of appeals is in conflict with

Steel Co., even if Steel Co. fully applies to the issue of

mootness, where the plaintiffs alleged continuing violations and

the violations continued after the complaint was filed.

Ill. PLAINTIFFS WOULD BE ENTITLED TO

ATTORNEYS’ FEES AND EXPENSES EVEN IF

THE CASE WERE MOOT

Section 505(d) of the Water Act, 33 U.S.C. 1365(d),

provides that "[t}he court, in issuing any final order in any

action brought pursuant to this section, may award costs of

litigation (including reasonable attorney and expert witness

fees) to any prevailing or substantially prevailing party,

whenever the court determines such award is appropriate." The

court of appeals held that "[p]laintiffs’ failure to obtain relief on

the merits of their claims precludes any recovery of attorneys’

fees or other litigation costs because such an award is available

only to a ‘prevailing or substantially prevailing party’" (citation

omitted). 149 F.3d at 307, n. 5 (Pet. App. 9a, n. 5). The court

reached that conclusion even though it recognized that

defendant had come into compliance with its permit. /d. at 305

(Pet. App. 5a-6a). The court relied on this Court’s decision in

- a eee

Farrar v. Hobby, 506 U.S. 103 (1992), and its own decision in

S-1] and S-2 v. State Board of Education, 2\ F.3d 49 (1994) (en

banc). 149 F.3d at 307, n. 5 (Pet. App. 9a, n. 5).

In Farrar, this Court considered the issue of "whether a civil

rights plaintiff who receives a nominal damages award is a

‘prevailing party’ eligible to receive attorney’s fees under 42

U.S.C. § 1988." 506 U.S. at 105. The Court explained that, "to

qualify as a prevailing party, a civil rights plaintiff must obtain

at least some relief on the merits of his claim." /d at 111. The

Court found that an award of nominal damages was sufficient

to make the plaintiff a prevailing party because "[a] judgment

for damages in any amount, whether compensatory or nominal,

modifies the defendant’s behavior for the plaintiffs benefit by

forcing the defendant to pay an amount of money he otherwise

would not pay." /d. at 113.4

In the course of reaching its conclusion, the Court stated that,

in order to prevail for the purpose of obtaining fees, the

"plaintiff must obtain an enforceable judgment against the

defendant from whom fees are sought or comparable relief

through a consent decree or settlement" (citations omitted). 506

U.S. at 111. Based on that statement and other references in

Farrar to judgments and settlements, the Court of Appeals for

the Fourth Circuit held in S-/ and S-2 that Farrar had overruled

the "catalyst theory,” i.e., the theory that a plaintiff prevails

when "a lawsuit * * * operate[s] as a catalyst for post-litigation

changes in a defendant’s conduct * * *." 21 F.3d at 51. See

also S-1 and S-2 v. State Bd. of Educ., 6 F.3d 160, 168 (4th Cir.

1993) (dissenting opinion subsequently adopted by majority in

en banc decision, 21 F.3d at 51).

2 The Court went on to explain that a prevailing party is only entitled to

reasonable fees. 506 U.S. at 115. It upheld the denial of fees to the

plaintiff because "[w]hen a plaintiff recovers only nominal damages

because of his failure to prove an essential element of his claim for

monetary relief, the only reasonable fee is usually no fee at all" (citation

' omitted). /bid.

The catalyst rule was recognized by this Court in several

decisions prior to Farrar. In Hanrahan v. Hampton, 446 U.S.

754, 756-757 (1980), the Court held that civil rights plaintiffs

who had prevailed on appeal and thereby won the right to anew

trial but had not yet received any relief from the district court

were not "prevailing parties" under 42 U.S.C. 1988 for the

purpose of obtaining attorneys’ fees. However, the Court

reviewed the legislative history of 42 U.S.C. 1988 and

explained that "a person may in some circumstances be a

‘prevailing party’ without having obtained a favorable ‘fina!

judgment following a full trial on the merits’" (quoting H.R.

Rep. No. 1558, 94th Cong., 2d Sess. 7 (1976), and citing S.

Rep. No. 1011, 94th Cong., 2d Sess. 5 (1976)). 446 U.S. at 756-

757. It relied on the House and Senate Reports, which stated

that “parties may be considered to have prevailed when they

vindicate rights through a consent judgment or without formally

obtaining relief" (emphasis added). /d. at 757.*°

The Court further articulated the catalyst rule in Maher v.

Gagne, 448 U.S. 122 (1980). The question presented there was

"whether fees may be assessed * * * after a case has been

settled by the entry of a consent decree, without any

determination that the plaintiff s constitutional rights have been

violated." /d at 124. The Court resolved the issue with little

discussion, holding that "[t}he fact that respondent prevailed

=In Pennsylvania v. Delaware Valley Citizens ' Council for Clean Air, 478

U.S. 546, 559-560 (1986), the Court stated that the principles to be followed

in awarding attorneys’ fees and expenses are the same for environmental

and civil rights cases.

2° The House Report also stated (H.R. Rep. No. 1558, supra, p. 7):

Similarly, after a complaint is filed a defendant might voluntarily

cease the unlawful practice. A court might still award fees even

though it might conclude, as a matter of equity that no formal relief,

such as an injunction, is needed.

i» te tered ae

through a settlement rather than through litigation does not

weaken her claim to fees." /d. at 129. The Court again relied

on the Senate Report’s "express[{] state[ment]" that fees are

available when parties "vindicate rights through a consent

judgment or without formally obtaining relief." /bid.

In Hewitt v. Helms, 482 U.S. 755, 759-760 (1987), the Court

issued its clearest statement of the catalyst rule. It reversed an

award of attorney's fees to a plaintiff inmate who received no

damages, injunctive relief, or declaratory judgment. However,

it emphasized that (id. at 760-761):

It is settled law, of course, that relief need not be

judicially decreed in order to justify a fee award under §

1988. A lawsuit sometimes produces voluntary action by

the defendant that affords the plaintiff all or some of the

relief he sought through a judgment - e.g., * * * a change

in conduct that redresses the plaintiff's grievances. When

that occurs, the plaintiff is deemed to have prevailed

despite the absence of a formal judgment in his favor. See

Maher, supra, 448 U.S., at 129 * * *.

The Court explained that the lower court’s holding that the

plaintiff's disciplinary proceeding was unconstitutional was

insufficient because that finding had not “affect/ed] the

hehavior of the defendant towards the plaintiff” (emphasis in

original). 482 U.S. at 761. In contrast, if "the defendant, under

the pressure of the lawsuit, pays over a money claim before the

judicial judgment is pronounced" or "alters his conduct (or

threatened conduct) towards the plaintiff that was the basis for

the suit.” then "the plaintiff will have prevailed." /bid.

Finally. in Gwaltney, the Court stated (484 U.S. at 67, n. 6):

The legislative history of [33 U.S.C. 1365(d)] states

explicitly that the award of costs "should extend to

plaintiffs in actions which result in successful abatement

but do not reach a verdict. For instance, if as a result of a

citizen proceeding and before a verdict is issued, a

defendant abated a violation, the court may award

litigation expenses borne by the plaintiffs in prosecuting

such actions." [S. Rep. No. 414, supra, p. 81).[#]

Thus, prior to Farrar, the Court had stated that it was

"settled law" that a plaintiff has prevailed for purposes of fees

when, in the absence of a court order or a settlement, a

voluntary change in a defendant’s conduct as a result of a

lawsuit has redressed the plaintiff's grievances. Hewitt, 482

U.S. at 760-761. The Court also made clear that a change in

conduct includes abatement of a Clean Water Act violation.

Gwaltney, 484 U.S. at 67, n. 6.

Nonetheless, the court of appeals held below that Farrar had

overruled the catalyst rule. It reached that conclusion even

though Farrar did not state that it was overruling the catalyst

rule and even though Farrar cited Hewitt and Maher v. Gagne

22 The court of appeals implicitly, but clearly, admitted that its decision on

attorneys’ fees below was inconsistent with Gwaltney. It did so by

prefacing its citation to Gwaltney with "But see." 149 F.3d at 307, n. 5

(Pet. App. 9a). Such a citation to an opinion of this Court by a court of

appeals is, to say the least, unusual. The court of appeals’ only explanation

for doing so was to note that Gwaltney discussed the prior language of

Section 505(d) of the Act, which authorized a court to award fees to any

"party," rather than the language of the 1987 amendment to Section 505(d),

which added "prevailing or substantially prevailing" before "party." /bid.

The legislative history of the 1987 amendment to Section 505(d) shows

that the change in the language of Section 505(d) was intended merely to

clarify Congress’ intent that citizen plaintiffs not receive attorneys’ fee

awards when the plaintiffs had lost the litigation. S. Rep. No. 50, supra, p.

33; S. Rep. No. 233, 98th Cong., Ist Sess. 24-25 (1983); A Legislative

History of the Water Quality Act of 1987, 100th Cong., 2d Sess., Sen. Print

144 (Nov. 1988), vol. 2, pp. 1311-1312 (remarks of Senator Chafee, the

sponsor of the legislation). Since the "prevailing party" language is

precisely the language interpreted by the Court in Hanrahan v. Hampton,

Maher v. Gagne, and Hewitt v. Helms, the addition of that language cannot

possibly mean that the catalyst rule no longer applies to fee awards under

Section 505(d).

<0 eee Ow ee

without indicating any disagreement with them. 506 U.S. at

110-111. As the Court of Appeals for the Seventh Circuit

stated in Zinn by Blankenship v. Shalala, 35 F.3d 273, 276

(1994), it is "implausible that the Supreme Court meant to

abolish a rule employed by nearly every circuit and previously

recognized by the Court itself as ‘settled law,’ without

expressly indicating that it was doing so."

In Farrar, the Court stated that "to qualify as a prevailing

party, a civil rights plaintiff must obtain at least some relief on

the merits of his claim." 506 U.S. at 111. It stated further that,

in order to prevail for the purpose of obtaining fees, "the

plaintiff must obtain an enforceable judgment against the

defendant from whom such fees are sought or comparable relief

through a consent decree or settlement" (citations omitted).

Ibid. The Fourth Circuit found that Farrar overruled the

catalyst rule because it did not add or voluntary action by the

defendant at the end of that sentence. S-/ and S-2, 6 F.3d at

168 (dissenting opinion adopted by majority en banc).

However, Farrar was not addressing the situation where a

defendant had voluntarily changed its behavior in response to

a lawsuit. Instead, it was discussing the nature of the relief that

a plaintiff must receive in order to be a prevailing party for fees

purposes. The Court stated (506 U.S. at 111):

Whatever relief the plaintiff secures must directly benefit

him at the time of the judgment or settlement. * * *

Otherwise the judgment or settlement cannot be said to

"affect the behavior of the defendant toward the plaintiff."

[citation omitted]

When, as here, a defendant modifies its behavior in response

to a lawsuit, the lawsuit has “affected the behavior of the

defendant toward the plaintiff." Indeed, the Court has made

ciear that it is not a judgment itself that confers prevailing party

status but a change in behavior by the defendant. In Hewitt, the

Court stated that "[a]t the end of the rainbow lies not a

judgment, but some action (or cessation of action) by the

defendant that the judgment produces--the payment of

damages, or some specific performance, or the termination of

some conduct." 482 U.S. at 761. In Rhodes v. Stewart, 488

U.S. 1, 4 (1988), the Court held that a party who wins a

declaratory judgment prevails for fees purposes only if the

judgment "affects the behavior of the defendant toward the

plaintiff." Thus, the sine gua non of prevailing party status is

not a judgment but a change in behavior by the defendant

brought on by the lawsuit.

Plaintiffs here achieved exactly that. The fact that the relief

plaintiffs obtained was vacated is irrelevant. This conclusion

is particularly clear in this case since the vacation of the

judgment occurred precisely because the suit had been

successful in obtaining Laidlaw’s compliance with the statute.

Ten other Circuits have found, either explicitly or implicitly,

that the catalyst rule was not overturned by Farrar. Maduka v.

Meissner, 114 F.3d 1240, 1241 (D.C. Cir. 1997); Marbley v.

Bane, 57 F.3d 224, 234 (2d Cir. 1995)("Farrar does not

eviscerate the long-standing doctrine that a plaintiff who has

obtained at least some part of what he sought in bringing the

suit may be considered a prevailing party"); Kilgour v. City of

Pasadena, 53 F.3d 1007, 1010 (9th Cir. 1995)("Farrar does not

preclude a catalyst test"); Zinn, 35 F.3d at 274-276 (quoted at

p. 47 above); Beard v. Teska, 31 F.3d 942, 951-952 (10th Cir.

1994)("We * * * have not agreed [that Farrar rendered the

catalyst theory nonviable]"); Baumgartner v. Harrisburg

Housing Auth., 21 F.3d 541, 546-550 (3d Cir. 1994)("We

believe it is not likely that the Supreme Court [in Farrar]

would overturn such a wide-spread theory without even

mentioning it, particularly when it was inapplicable to the case

at hand"): Little Rock Sch. Dist. v. Pulaski County Special Sch.

Dist.. #1. 17 F.3d 260, 262-263 and n. 2 (8th Cir. 1994)("We

decline to extend Farrar’s language beyond its context of

determining prevailing party status after a final determination

on the merits"); American Council of the Blind v. Romer, 992

F.2d 249, 250-251 (10th Cir. 1993)("It does not appear that the

decision in Farrar condemns the use of the ‘catalyst rule’ in a

nonjudgment on the merits situation"); Craig v. Gregg County,

Texas, 988 F.2d 18, 20-21 (Sth Cir. 1993)("A more precise

reading of Farrar, however, might suggest that a party may

prevail, even in the absence of a judgment, consent decree, or

direct personal benefit ‘if its ends are accomplished as a result

of the litigation’" (citation omitted)); Paris v. HUD, 988 F.2d

236, 240-241 (ist Cir. 1993); Citizens Against Tax Waste v.

Westerville City Sch., 985 F.2d 255, 257-258 (6th Cir. 1993).

The fees provision of the Clean Water Act was intended by

Congress to induce attorneys to bring these cases: "[t]he Courts

should recognize that in bringing legitimate actions under this

section citizens would be performing a public service and in

such instances, the courts should award costs of litigation to

such party. S. Rep. No. 414, supra, p. 81. See also SPIRG v.

AT&T Bell Lab., 842 F.2d 1436, 1449 (3d Cir. 1988). The

decision of the court below deeply undermines this inducement.

It means that, even when the litigation is fully successful, it will

often result in no compensation to the plaintiff s attorney. Such

a result is not only obviously unfair but directly contrary to

Congress’ intent. ,

Indeed, the court of appeals’ position would have a serious

impact not only on citizen suits under environmental statutes

but also civil right suits and other suits brought under

fees-shifting statutes. As this case illustrates, enforcement suits

under the Clean Water Act and other environmental statutes are

major, complex litigation requiring a substantial commitment

of time by attorneys and expert witnesses. The same is true of

civil right suits. Since individual and non-profit organizational

plaintiffs rarely have such resources, most such suits are

brought by attorneys who will be compensated solely by fee

awards against the defendant if the suits are successful. Few

lawyers would be willing to bear large costs in the form of

expert witness’ fees and their own uncompensated time only to

find that the suit has led the defendant to comply with the

statute and therefore, for this very reason, the case must be

dismissed without any award of attorneys’ fees or expenses.

Attorneys who practice under fee-shifting statutes take on the

risk of not being paid when they lose. It is unlikely that they

will be able to bear the additional risk of not being paid even

when they are fully successful.

In short, the decision below is contrary to decisions of this

Court recognizing the catalyst rule, the decisions of ten other

circuits holding that the catalyst rule survived Farrar,

congressional intent, and sound public policy. As a result, it

should be reversed.

CONCLUSION

It is respectfully submitted that the decision of the court of

appeals be reversed and the case be remanded for consideration

of the issues presented in the parties’ appeals to that court.

Respectfully submitted,

Bruce J. Terris

Carolyn Smith Pravlik

Monica Wagner

James S. Chandler, Jr.

25 The ruling on fees should be reversed even if this Court also reverses the

ruling on mootness. As a result of its decision on mootness, the court of

appeals did not rule on Laidlaw’s arguments regarding standing and diligent

prosecution by the State. See 149 F.3d at 305, 307 (Pet. App. Sa, 9a). If

plaintiffs are successful on mootness but ultimately lose based on Laidlaw’s

other arguments, the court of appeals’ decision on fees will preclude

reimbursement of these fees. Since the attorneys’ fees issue will have been

fully briefed and argued, it would be an appropriate exercise of the Court's

discretion to decide the issue. See Bennett v. Spear, 117 S. Ct. at 1163.

APPENDIX

Article III of the Constitution of the United States

Section. 2. The judicial Power shall extend to all Cases, in

Law and Equity, arising under this Constitution, the Laws of

the United States, and Treaties made, or which shall be made,

under their Authority;—to all Cases affecting Ambassadors,

other public Ministers and Consuls;—to all Cases of admiralty

and maritime Jurisdiction;—to Controversies to which the

United States shall be a Party;—to Controversies between two

or more States;—between a State and Citizens of another

State;—between citizens of different States;—between Citizens

of the same State claiming Lands under Grants of different

States, and between a State, or the Citizens thereof, and foreign

States, Citizens or Subjects.

In all Cases affecting Ambassadors, other public Ministers

and Consuls, and those in which a State shall be Party, the

supreme Court shall have original Jurisdiction. In all the other

Cases before mentioned, the supreme Court shall have appellate

Jurisdiction, both as to Law and Fact, with such Exceptions,

and under such Regulations as the Congress shal] make.

The Trial of all Crimes, except in Cases of Impeachment,

shall be by Jury; and such Trial shall be held in the State where

the said Crimes shall have been committed; but when not

committed within any State, the Trial shall be at such Place or

Places as the Congress may by Law have directed.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.