Reply Brief — Friends of Earth v. Laidlaw Environmental Services

Eypieme Court, US

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fypeucs Of THE CLERK

No. 98-822 an

IN THE

Supreme Court of the United States

FRIENDS OF THE EARTH, et al..

Petitioners,

Vv.

LAIDLAW ENVIRONMENTAL SERVICES (TOC), INC..

Respondent.

On Writ of Certiorari

to the United States Court of Appeals

for the Fourth Circuit

REPLY 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

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ........cccccccccccees il

ED 66 eeccndddedsceusectunneeusees l

i 3

I. PLAINTIFFS’ PENALTY CLAIM IS

PS OS cccveccecnecpeduatucssietsses 3

A. Gwaltney, Not Steel Co., Is Controllmg ... 3

B. The Penalties Imposed Benefit Plamtiffs

because They Deter Laidlaw from

WEEE ovcescéondedetoness 4

Cc. Closure of the Facility Does Not Moot

GD 6.c0nna0edsdesneeeuneseuses 6

II. PLAINTIFFS’ DECLARATORY

JUDGMENT CLAIM IS NOT MOOT .... 8

I PLAINTIFFS HAVE STANDING ........ 8

A. Citizens Have Standing

to Pursue Civil Penalties ............... 9

B Plaintiffs Have Shown

ENED 6.n onc esGesecccnneaenes 10

IV. PLAINTIFFS ARE NOT PRECLUDED

FROM BEING AWARDED

ATTORNEYS’ FEES EVEN IF THIS

CASE IS HELD TO BE MOOT........ 18

A. Farrar Did Not Overrule the

GEE «6 0-0-0-6-454600 04000000008 18

B. Whether this Lawsuit Was a

Instance by the District Court .......... 19

APPENDIX

Brief of the United States

As Amicus Curiae in Support of

MUU occ ccc cccccccccccccccece la

Affidavit of Alicia M. Clark ................... lla

Affidavit of Bruce A. Bell ..................... l4a

Affidavit of Brandon Hemel .................... l6a

Affidavit of Kevin Kosik ...................... 17a

ii

TABLE OF AUTHORITIES

Cases Page

Bae v. Shalala, 44 F.3d 489 (7th Cir. 1995) oo... 6

Carden v. Arkoma Associate, 494 U.S. 185 (1990) ........... 8

Chesapeake Bay Foundation v. Gwaltney of Smithfield,

791 F.2d 304 (4th Cir. 1986), vacated, 484 U.S. 49

(1987), on remand, 844 F.2d 170 (4th Cir.1988),

judgment remstated, 688 F. Supp. 1078 (E.D. Va.

1988), aff'd m part and rev'd m part, 890 F.2d 690

SEED SUITE ‘cinenstencenenensnenniansabatnioninienineninnatnininimiatens 14

Farrar v. Hobby, 506 U.S. 103 (1992) .............cc0000. 18, 19

Federal Election Commission v. Akins, 118 S. Ct. 1777

SETETITEEED canutenditetieiiasinieiidastincannsinidshepeniniinaadunenibeameneitinnsndiiiaidinatiaiin 18

FOE v. Gaston Copper Recycling Co., 1999 WL 351165

11-12, reh'g granted, Aug. 3, 1999 000000... cccecccceeees 13

FOE vy. Laidlaw Envtl. Services (TOC), Inc., 890 F.Supp.

470 (D.S.C. 1995), vacated as moot, 149 F.3d 303

ESR es passim

FOE vy. Laidlaw Envtl. Services (TOC), Inc., 956 F.Supp.

588 (D.S.C. 1997), vacated as moot, 149 F.3d 303

eee Seem passim

Gwaltney of Smithfield, Ltd. v. Chesapeake Bay

Foundation, 484 U.S. 49 (1987) .o........ccccccccccceeseees passim

Hagans v. Lavine, 415 U.S. 528 (1974) .o....ccccccccccccseeeeeees 3

Hewitt v. Helms, 482 U.S. 755 (1987) .........ccccccccceeseeeeeees &

Illinois State Bd. of Elections v. Socialist Workers

SEA UEPEIEEED crenuccmenssinnimennmeens 3

Linda R.S. v. Richard D., 410 U.S. 614 (1973) ............ 3,4

Lujan v. Defenders of Wildlife, 504 U.S. 555

TUTTI ceicsssnessenesssesienemnaeeaienanenteieiiiaaeesnansitidinenatinilidinn 10, 11, 16

PIRG v. Powell Duffryn Terminals Inc., 913 F.2d 64

SEITE, GRIND .cnsnnetenneteienentdennpnmnmememaneunmneieimemennn l

PIRG v. Magnesium Elektron Inc., 123 F.3d 111

ee 17

IV

PIRG v. Powell Duffryn Terminals, Inc., 720 F. Supp.

1158 (D.N.J. 1989), affd m part and rev'd im part,

ES GUID cxmncnntsnenssanessntntnmeneenscsieniin 14

Pennhurst State School & Hospital v. Halderman,

Es PITTED caneeinctenienteenccnaneenenensnniensttimeiniinns 3

Planned Parenthood of Central Missouri v. Danforth,

CN ED esteccenintenesiniininhientaninitnainnaptnmmaintaceatamisiiisinin 8

Ruhrgas v. Marathon Oil Co., 119 S. Ct. 1563 (1999) ...... 8

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

PED censenemnesnsetenstememetmienieneeenameenn passim

Tunstall v. Brotherhood of Locomotive Firemen &

Enginemen, 323 U.S. 210 (1944) .......ccccccccccesseceeeeeceeeees 9

U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership,

Fe ITED excintsenteniscetienntentnnnninnnneinnnmianins 7, 19

United States v. Midwest Suspension and Brake, 824 F.

Supp. 713 (E.D. Mich. 1993), affd, 49 F.3d 1197

EEE: GUEIEED. cocmsnsenennnanmneneieniientebiinmmninmemammmeneiets 5

Walling v. James V. Reuter, Inc., 321 U.S. 671 (1944) ..... 7

Webster v. Fall, 266 U.S. S07 (1925) ............ccccceeeeceeeeeeees 3

Weinberger v. Romero-Barcelo, 456 U.S. 305 (1982) 5, 12

Statutes and Regulations:

a 2, 12, 17

Se > CEES cininsncitttnencdtensmnanneniniiemenieimeentinines 12

Po 6 6=—_(s cin 12

PP Es MEPUIIIIEED sensintnintceenennsiqueiiaisuninsiipgesanisdinineniiias 13

Be is: MTEEE ivtitshtniinucnesentnininninsidicninenionmmenninimaitenes 14

BP is IED . crninniicrsninininciniaietceastieidinnstcnmecimemmmnbennmnes 14

FP ts TEED eetntnininsinnneretiineiniantennmnnnibiadiiinpinainiiinn 14

its CHIE : dtniesnnintninenenecinntinnianinintinneiiiammemenninites 18

Si es GTI stirenscsrsciuieannnseninnimecnninintatnntenmmenmtaatts 18

Sr ey EIITIED Sicnitnssiercretsitennisnntenniuieieneninnennints 5, 6, 16

BP es CITED sinncnnnsinienasiinniniinnimmemene 18

a 1,2

ee

Vv

ee SI IIIEED ‘ cnctuticenncnsunintinensnipnobenmermteinen 6

TSUN cchatiniscusstuninssbinmpeniiaieieeeeieeunies 14

Legislative History:

S. Rep. No. 50, 90th Cong., Ist Sess. (1985) 000.000.0000... 2

S. Rep. No. 233, 98th Cong., Ist Sess. (1983) ................ 17

S. Rep. No. 414, 92d Cong., Ist Sess. (1971) ........ 2, 17 ,18

Miscellaneous:

Block, The Deterrent Effect of Antitrust Enforcement, 89

J. Pol. Econ. 429, 443-444 (1981) ooo. ccccccccccccccceceeeeeeneees 6

l

INTRODUCTION

Laidlaw and its amici repeatedly claim that Laidlaw was

dihgently actmg to bring itself mto compliance and that the

South Carolma Department of Health and Environmental

Control (“DHEC”) was vigorously enforcing Laidlaw’s permit

when plamtiffs, for no good reason, brought this litigation.

E.g., Resp’t Br. 3, 5, 6-7. Nothmg could te further from the

truth. In fact, as of the time of plaintiffs’ notice of mtent to sue,

Laidlaw had been violating its permit for over six years and

DHEC had failed to bring an enforcement action to enforce the

permit and penalize Laidlaw for its over 800 violations.

Laidlaw’s maximum potential penalty was im excess of

$20,000,000. PL. Pretrial Br. 29 (July 22, 1995).

After plamtiffs filed suit, Laidlaw employed the technology

that the district court found it could, and should, have employed

at least four years earlier. 956 F. Supp. at 599 (J.A. 155-156).

Laidlaw also reduced the amount of mercury fed mto its

mcinerator as a means of complying with its permit. /d. at 596

(J.A. 147). While Laidlaw had known for years that reducing

the feed would reduce the severity of its violations (see Def.

Exs. 54, 105, 144), it acted only after plaintiffs brought suit.

When Laidlaw received the notice of mtent to sue from an

organization well known for vigorous enforcement of the Act,”

Laidlaw set out to manufacture a preclusion defense. Since

state suits can bar citizen suits if filed before the citizen suit (33

U.S.C. 1365(b\(1)(B)), Laidlaw sought and was able to

convince DHEC to bring suit, before the 60-day notice period

expired and plamtiffs could bring suit, despite DHEC’s policy

not to bring suit to bar citizen suits. 890 F. Supp. at 478-479

(J.A. 93-95). Laidlaw drafted DHEC’s complamt, filed it and

even paid the filing fee. /d. at 479 (J.A. 94). At the same time

“See, e.g., PIRG and FOE v. Powell Duffryn Terminals Inc., 913 F.2d 64,

80-83 (3d Cir. 1990)imjunction and statutory maximum penalty over

$4,000,000 imposed ); PIRG and FOE v. Witco Chemical, D.N.J., Civ. No.

89-3146 (imsunction and $10,000,000 penalty through a consent judgment).

2

that it filed the complamt, Laidlaw filed a consent decree

setthng the suit. /bid.

When plaintiffs brought suit three days later, Laidlaw moved

to dismiss. Although the district court rejected plamtiffs’

allegation of collusion, it found that plamtiffs’ suit was not

barred under 33 U.S.C. 1365(b)(1)(B) because DHEC had not

diligently prosecuted Laidlaw when it acceded to Laidlaw’s

request to be sued. 890 F. Supp. at 498 (J.A. 136). In addition

to the unusual and accelerated procedures which denied

plaintiffs an opportunity to mtervene and participate m DHEC’s

suit, the district court found that DHEC’s action was not

dihgently prosecuted because the consent decree did not even

mchude an injunction requiring Laidlaw to comply with the law.

890 F. Supp. at 480, 489-490, 498 (J.A. 97, 117-120, 156).

The district court also found DHEC’s action lacking m diligent

under DHEC’s penalty policy and failed to provide an adequate

deterrent because it was too small even to remove the economic

benefit Laidlaw enjoyed as a result of its noncompliance. /d. at

479-481, 491-492 (J.A. 95-98, 121-123).

Laidlaw and its amici seek to cast plaintiffs and other citizens

as the villains rather than the victims of Laidlaw and other

polluters’ unlawful conduct. However, Congress has decided

that “no one has the right to pollute — that pollution contmues

because of technological limits, not because of any mherent

right to use the nation’s waterways for the purpose of disposing

of wastes” (S. Rep. No. 414, 92d Cong., Ist Sess. 42 (1971))

and that citizens play an mtegral part m ensuring that the Act’s

objective of “restor{ing] and maimtam{mg] the chemical,

physical, and biological mtegrity of the Nation’s waters” is

achieved (33 U.S.C. 1251(a); S. Rep. No. 50, 90th Cong., Ist

Sess. 28 (1985)).” Plaintiffs submit that it is against this

~To the extent that there have been any abuses of the citizen suit provision,

that is a matter for Congress to address. In any event, the issues m this

case have nothing to do with the abuses alleged by amici.

3

background that this Court should decide the issues in this case.

ARGUMENT

L PLAINTIFFS’ PENALTY CLAIM IS NOT MOOT

A. Gwaltney, Not Steel Co., Is Controlling

Laidlaw argues that the court of appeals properly dismissed

this case on mootness grounds because plaintiffs were only

pursuing civil penalty relief nm which they had no personal stake.

Resp’t Br. 10. Laidlaw has no answer to the significance of this

Court’s decision in Gwaltney of Smithfield, Ltd. v. Chesapeake

Bay Foundation, 484 U.S. 49 (1987). Like the court of

appeals, Laidlaw assumes that the decision m Steel Co. v.

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

decided the issue presented m this case. Resp’t Br. 10-13.

Laidlaw fails, like the court of appeals, to reconcile the court of

appeals’ decision with the decision in Gwaltney.» Presumably,

Laidlaw has not done so because it is impossible *

» Amicus Hercules argues (p. 17) that Gwaltney is not controlling on the

issue of mootness because this Court has previously held that it is not

bound by questions of jurisdiction that have been passed on m prior

decisions sub silentio. All four of the decisions cited are easily

distinguished. Three, Webster v. Fall, 266 U.S. 507, 511 (1925), Hagans

v. Lavine, 415 U.S. 528, 533 n. 5 (1974), and Pennhurst State School &

Hosp. v. Halderman, 465 U.S. 89, 119 (1984), mvolved situations where

the issue was not raised or briefed m the case asserted as precedent. That

is not the case im Gwaltney. Both standing and mootness were raised im the

briefing (see Pet. App. 37a-43a) and addressed by this Court. Since

mootness was addressed by the Court and the case was remanded for

further action by the court of appeals, this Court necessarily determmed

that Gwaltney was not moot. In the fourth case, /Ilinois State Bd. of

Elections v. Socialist Workers Party, 440 U.S. 173, 180-181, 182 (1979),

stating that “summary affirmances have considerably less precedential

value than an opmion on the merits,” this Court rejected use of a summary

affirmance as precedent for anything other than the “precise issue[]

presented * * *.” Since Gwaltney was an opinion on the merits, it has full

precedential value.

“Laidlaw points to the statement in Linda R.S. v. Richard D., 410 U.S.

4

B. The Penalties Imposed Benefit Plaintiffs because

They Deter Laidlaw from Violating the Act

Laidlaw argues that plaintiffs have no personal stake im civil

penalties because they are paid to the Treasury, not to plamtifis.

Resp’t Br. 10. Laidlaw maintains that plaintiffs lack a personal

stake because civil penalties cannot be “equated” with an

injunction that “bars” the conduct that harms plaintiffs. Id. pp.

11, 21. However, the issue is not whether civil penalties are

equal to an injunction or bar the defendant’s conduct. Instead,

the question is whether the relief requested serves to redress the

' Laidlow adenits that penalties deter fevere violations. Resp’t

Br. 21. Laidlaw fails to explain why a civil penalty that serves

to deter future misconduct is insufficient to provide plaintiffs

with a personal stake. Where plaintiffs have made and proven

an allegation of continuing violation,* both injunctive relief and

civil penalties protect the plaintiff from future misconduct by the

defendant.

eer ee sent ee enenn Are ammeter

lacks a judicially cognizable interest m the prosecuhon nonprosecution

af caster” an togpes tor ie position that chinene have no intarest in he

exaction of penalties payable to the Treasury. Resp’t Br. 19-20. This

statement has no relevance here. Linda R.S. mvolved the standing of a

woman seeking an order requiring the district attorney to prosecute the

father of her illegitimate child for failure to provide child support. 410

U.S. at 615-616. The Court held that “given the special status of criminal

prosecutions im our system,” the plaintiff lacked standing. Id at 619.

Although not technically a separation of powers issue involving branches

of the federal government, the case raised analogous concems about

citizens using the judicial branch to force the executive branch to exercise

its prosecutorial discretion. Such concems are not at issue here.

2 mul ig violation is a term of art in construmg citizen

nS en eaciageetien ua oa

It means an ongoing violation at the tme of the complamt. Gwaltney, 484

U.S. at 64-66. It is not restricted, as amici have suggested, to a state of

violation at the time the district court awards relief.

5

This Court has stated that civil penalties are an alternative to

injunctive relief im ensuring compliance with the Act.

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

also United States v. Midwest Suspension and Brake, 824 F.

Supp. 713, 738 (E.D. Mich. 1993), aff'd, 49 F.3d 1197 (6th

Cir. 1995)(citing Weinberger, court explained that it denied an

injunction because the penalty imposed was designed to deter

future violations). Laidlaw admits that mjunctive relief deters

violations and therefore provides redressability. Resp’t Br. 10,

11, 15, 21. In fact, civil penalties are an even better deterrent to

future permit violations than imjunctive relief because the

negative financial mpact on the violator is more immediate from

civil penalties. For example, if there are two violators with the

same types of violations and one is enjoined and another is

assessed a civil penalty, the violator assessed a penalty is more

likely to be deterred from future violations because he has

suffered an economic loss designed to remove the economic

advantage he has gained from his noncompliance. Three factors

work to deter his future violations: (1) the sting of paying the

civil penalty, (2) the realization that he cannot benefit

economically from noncompliance, and (3) the fear that any

penalty for further violation is likely to be more significant (see

33 U.S.C. 1319(d\history of violation to be considered in

assessing a penalty)).

In comparison, the violator who has been enjoined has not

suffered an economic loss for his noncompliance. He has

actually enjoyed an economic benefit. During the life of the

imjunction, his compliance is secured through the threat of a

monetary payment m the form of a contempt sanction.

However, civil contempt allows the court only to threaten the

violator with a future penalty if he violates the permit again *

Thus, the violator who paid the penalty suffered a more

* Criminal contempt is rarely imposed. Plaintiffs know of no violation of

an iyunction under the Clean Water Act ever being punished through

6

immediate and significant financial impact and is more likely to

be deterred from further violations. Presumably, that is why

Congress decided that the statute should be enforced through

civil penalties of up to $27,500 per violation. 33 U.S.C.

1319(d); 40 C.F.R. §19.4 (1999).

In a twist of logic, Laidlaw argues that civil penalties serve

to deter only when there is the threat that they will be imposed

and that the specific deterrent effect is lost once the penalties

are exacted. Resp’t Br. 20-21. However, “specific or special

deterrence aims to change a particular individual’s behavior

through negative reimforcement.” Bae v. Shalala, 44 F.3d 489,

494 (7th Cir. 1995). Negative remforcement occurs through

the payment of the penalty, not the fact that the statute

threatens a civil penalty for violation. See Block, The Deterrent

Effect of Antitrust Enforcement, 89 J. Pol. Econ. 429, 443-444

(1981). A penalty that is on the books, but never enforced,

obviously provides no deterrent at all.”

C. Closure of the Facility Does Not Moot this Case

Laidlaw contends that this case is moot because the facility

is shut down. Resp’t Br. 24. Plamtiffs have shown that

Laidlaw has deliberately retained its NPDES permit and

therefore has the legal right to resume discharging at any time

it chooses to do so. Pet’r Resp. to Sugg. of Mootness, pp. 6-7.

Moreover, Laidlaw has recently violated its permit. Under its

permit, Laidlaw continues to be responsible for filing monitoring

“EPA has recognized the effect of civil penalties in removing the incentive

for dischargers to violate the law (Pl. Ex. 108, p. 3):

The first goal of penalty assessment is to deter people from violating

the law. Specifically, the penalty should persuade the violator to

take precautions against falling into noncomphance again (specific

deterrence) and dissuade others from violating the law (general

deterrence). Successful deterrence is mmportant because it provides

the best protection for the environment. In addition, it reduces the

resources necessary to administer the laws by addressing

noncomphance before it occurs.

7

reports. Laidlaw has failed to file one of the required reports

App. ‘12a-13a. In June 1999, the State issued a notice of

violation for the delinquent report. App. 12a. At the very least

this violation establishes that plaintiffs’ claim based on

monitoring and reporting violations is not moot.

Even if Laidlaw never resumes discharging at the facility,

Laidlaw and its Corporate affiliates own at least four other

facilities which have recently violated their NPDES permits

App. 14a-15a. Plaintiffs have members whose interests in the

involved waterways have been harmed by these unlawful

discharges. App. 12a, 16a-17a. The penalty imposed by the

district court will therefore serve as a specific deterrent to this

violator from committing such violations in the future ©

dissolution], the judgment of the Circuit Court of Appeals, which is not

could be had. See also U.S. Banco

' a. rp Mortgage Co. v. B

Partnership, 513 U.S. 18, 24-25 (1994). <e * Sy Se

8

0. PLAINTIFFS’ DECLARATORY JUDGMENT

CLAIM IS NOT MOOT

Plaintiffs have shown that thei myuries were redressed by the

district court’s issuance of a declaratory judgment. Pet’r Br.

40-42. Laidlaw responds that the plamtiffs’ obtammg of a

declaratory judgment does not prevent the case from bemg

moot because plaintiffs received only a “Judicial statement that

does not affect the relationship between the plamtiff and the

defendant” which is not equivalent to a declaratory judgment.

Resp’t Br. 18 (quoting Hewitt v. Helms, 482 U.S. 755, 761

(1987)). However, unlike m Hewitt, the finding of hability m

because the district court declared that Laidlaw had violated its

permit and hence the Clean Water Act. This is clearly more

than simply an “incidental” judicial statement because it

collaterally estops Laidlaw from arguing m the future that the

same kinds of discharges are not violations of its permit.

IL PLAINTIFFS HAVE STANDING

Laidlaw argues that even though the court of appeals’

decision was correct, the district court lacked jurisdiction from

the outset of the case because plamtiffs lacked standmg. Resp’t

Br. 35-38. Laidlaw appealed the district court’s finding on

standing, but the court of appeals did not reach the issue

because it concluded that the case was moot. Certiorari was

not sought or granted on this issue. Since the issue was not

reached by the court of appeals and it mvolves questions of fact,

it would be appropriate for this Court to remand this issue to

the court of appeals. E.g., Ruhrgas v. Marathon Oil Co., 119

S.Ct. 1563, 1572 n. 8 (1999)\(remanded for review of personal

jurisdiction); Carden v. Arkoma Assoc., 494 U.S. 185, 197

(1990) (remanded for review of diversity jurisdiction); Planned

Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 62

n. 2 (1976) (remanded for determmation of whether one

plaintiff had standmg to challenge portion of the Act where

9

other plamtiffs were found to lack standing); Tunstall v.

Brotherhood of Locomotive Firemen & Enginemen, 323 U.S.

210, 214 (1944) (remanded for consideration of other

jurisdictional questions).? In the event that this Court reaches

this issue rather than following its practice of remanding under

these circumstances, plamtiffs show below that they have

Article II] standing.

A. Citizens Have Standing to Pursue Civil Penalties

Laidlaw contends that, under this Court’s decisions, it is

doubtful that citizens ever have standing to seek civil penalties

since they are payable to the U.S. Treasury. Resp’t Br. 29.

Under this Court’s decisions m Gwaltney and Steel Co., there

is no doubt that citizens have Article II] standing to pursue civil

penalties where they have alleged an ongoing violation and seek

injunctive relief even if myunctive relief is ultimately denied. In

Gwaltney, a case identical to this case in all relevant aspects,

this Court found standing where the plaintiffs had alleged an

ongomg violation, sought an injunction and been denied an

mjunction and the only relief viable at the time the case reached

this Court was the civil penalty. 484 U.S. at 64-66. The

petitioner i Gwaltney had raised exactly the issue presented by

Laidlaw, arguing that “it would appear that penalties payable to

the Treasury can never redress mjury to citizen plaintiffs * * *”

(emphasis m origmal). Pet. App. 40a. The standing

determmation in Gwaltney was reaffirmed in Steel Co. 118 S.Ct.

at 1011.

In Steel Co., the briefing on the issue of whether the plaintiff

could satisfy the redressability prong of the constitutional

standing test also addressed the issue raised by Laidlaw. See

Pet’r Br. 37-42 and Resp’t Br. 27-38, Steel Co., 118 S.Ct. 1003

“Laidlaw also claims that the issue of preclusion involves jurisdiction.

Resp’t Br. 35, 38. However, prechusion is a question of whether plaintiffs

have a cause of action under the statute. Stee/ Co., 118 S. Ct. at 1010-

1014.

10

(1998)(No. 96-643). This Court did not hold m Stee/ Co. that

civil penalties may never be awarded to citizens due to a lack of

redressability. It held that civil penalties do not satisfy the

requirement of redressability where the citizen did not allege a

contmumg violation and thus there was no threat of future

violation for the penalties to deter. 118 S. Ct. at 1018-1020.

If the Court had mtended Stee/ Co. to foreclose all civil

penalties m citizen suits, it surely would have stated so m clear

terms and explained that it was overruling Gwaltney.*

B. Ptaintiffs Have Shown Injury-in-Fact

Laidlaw argues that plamtiffs lack standing because there is

no demonstrated proof of harm to the waterway. Resp’t Br. 35.

Injury-in-fact for standing does not require demonstrated proof

of harm to the environment. Instead, it requires proof of “a

harm suffered by the plaintiff’ (emphasis added). Steel Co..,

118 S.Ct. at 1016. In Sierra Club v. Morton, this Court stated

that the mjury would be felt only by those who use the park m

question and "for whom the aesthetic and recreational values of

the area will be lessened by the highway and ski resort.” 405

U.S. 727, 735 (1972). The Court further said (id. at 740):

The requirement that a party seeking review must allege

facts showing that he is himself adversely affected * * * *

does serve as at least a rough attempt to put the decision

as to whether review will be sought m the hands of those

who have a direct stake m the outcome.

in Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992),

this Court said that "the plamtiff must have suffered an ‘injury

im fact' * * *" m ordet to have standmg. The Court looked at

whether the plaimtiffs, not the wildlife they sought to protect,

101 the alternative, Laidlaw contends that even if citizens have standing

to pursue civil penalnes, penalnes may be awarded to citizens only as an

adjunct to injunctive relief. Resp’t Br. 32. Simce this Court dealt with that

issue ‘2 Gwaltmey as well, there is no need to address this argument

separately.

—_—

OE me Oe

would be myured. See id. at 561-567. Citing Sierra Club v.

Morton, the Court m Lujan said: "Of course, the desire to use

or observe an animal species, even for purely esthetic purposes,

is undeniably a cognizable mterest for purpose of standing."

504 U.S. at 562-563. Plamtiffs have therefore satisfied the

myury-m-fact requirement if they show that thei enjoyment of

the waterway has been lessened.

Plamtiffs have done exactly that. They have shown that their

members use or would use the river and that their enjoyment of

such use is adversely affected or mterfered with as a result of

Lakilaw’s excessive mercury discharges — some more than

1,000% over the permit hmit. J.A. 185-196. For example,

CLEAN member Judy Pruitt lives approximately one-quarter

mile from Laidlaw’s facility. Pruitt Aff. #2. She enjoys outdoor

picnicking. /d. $3. Although she would like to undertake these

activities on or near the river downstream of Laidlaw’s

discharge because it is close to her home, she avoids

undertaking these activities there because of Laidlaw’s

discharge of mercury and other harmful pollutants. Jbid.

Although she frequently eats fish, she does not eat fish caught

im the river downstream of Laidlaw’s discharge because she is

afraid that the fish contam mercury and other contammants

discharged by Laidlaw. /d. 44. If the river were cleaner, she

would use the river for these activities. /d. #73, 8. Her efforts

to work with DHEC to enforce Laxdlaw’s NPDES permit were

consistently frustrated by DHEC’s umwillmgness to force

Laidlaw to comply with its permit. Jd. $7. Ms. Pruitt’s mterests

m the river are clearly mterfered with by Laidlaw’s unlawful

discharges. See also Pet’r Br. 6.

The myury-in-fact test recognizes the fact that plaintiffs often

suffer economic myuries based on the public perception, rather

than concrete proof, that a body of water has been harmed by

pollution. For example, CLEAN member Gail Lee testified that

her home, which is near Laidlaw’s facility, has a lower value

12

than similar homes located further away from Laidlaw’s facility.

Lee Aff. #2, 4. FOE member Kenneth Lee Curtis likewise

testified that Laxilaw’s unlawful discharges have “negatively

affected the property value of his home” which is approximately

one-half mile from the facility. Curtis Aff. #2 8. Angela

Patterson testified that she and her husband woukd like to

purchase a home m Roebuck near the river, but will not do so

because of the pollutants discharged by Laidlaw. Patterson Aff.

99. These perceptions are hardly unreasonable m view of the

fact that mercury is an “extremely toxic pollutant.” 956 F.

Supp. at 601 (J.A. 160). Perceptions like that of Ms. Patterson

and her husband, regardless of demonstrated proof of harm,

result m mgury to the economic mterests of homeowners like

Ms. Lee.

This Court has made clear that proof of harm to the

waterway from the illegal discharges is not needed for standing.

In Weinberger, supra, a citizen suit under the Water Act, this

Court proceeded on the issue of whether the district court

should have enjomed contimued operations pending receipt of an

NPDES permit, even though the district court found no harm to

the waterway. See 456 U.S. at 307-320. This Court would not

have proceeded without standmg. See Steel Co., 118 S.Ct. at

1009-1016. Therefore, demonstrated proof of harm to the

waterway is not a requisite for standmg.

Moreover, Congress has determmed that all pollutant

discharges are harmful In enactmg the Clean Water Act,

Congress prohibited the discharge of all pollutants. 33 U.S.C.

1311(a). However, recognizmg that it would not be possible to

elimmate all pollutant discharges immediately, Congress

provided for phased ehmmation, whereby mcreasingly more

stringent restrictions on discharges are imposed as technology

advances. See 33 U.S.C. 1251(a) and 1311. Ina dissent to a

recent Fourth Circuit decision holding that piaintiffs m a citizen

suit under the Water Act had not suffered myury-m-fact and

therefore did not have standmg, Chief Judge Wilkinson stated

13

(FOE v. Gaston Copper Recycling Co., 1999 WL 351165 *11-

12, reh’g granted, Aug. 3, 1999):42

Gaston Copper’s permit violations ipso facto pose a

concrete threat to the receivmg waters withm the range of

its discharge, mchuding the lake on Shealy’s property. By

establishing that Gaston Copper is polluting Shealy’s

nearby water source, CLEAN has proven an mcreased risk

to its member’s downstream uses. This threatened myury

is sufficient to provide myury m fact.

The majority would, however, require evidence that it can

touch and feel before it is willmg to acknowledge Shealy’s

threatened mjury. But the Constitution does not require

Shealy to wait until his lake becomes “barren and sterile”

or assumes an “unpleasant color and smell” before he may

seek relief m court. Nor must Shealy produce tests to

prove that his mjury is mmment. Indeed, he cannot - for

if an myury is threatened it by definition has not yet

occurred.

Citizens can rely on circumstantial evidence such as

proximity to pollutmg sources, predictions of discharge

mfluence, and past pollution to prove myury m fact, just as

they would to prove any other contested issue. To require

Shealy to fish mdividual copper molecules out of his lake

and haul them mto court serves no useful purpose, spawns

complicated litigation, and undermimes the protections

Congress sought to provide m the Clean Water Act.

[mternal citation and footnote omitted]

Even if proof of harm to the waterway from Laxilaw’s

discharges was required, there is such proof here. First, permit

limitations are generally based on available technology. 33

U.S.C. 1311(b). However, when necessary to protect a body

of water, permit limitations, more stringent than those based on

1 The United States joined with the plaintiffs in Gaston Copper to urge the

Fourth Circuit to rehear that case en banc. See App. |a-10a.

14

technology, are established m order to meet ambient water

quality standards. 33 U.S.C. 1312(a). Ambient water quality

standards are designed to protect the nation’s waters and

support designated uses of waterways.” See 33 U.S.C. 1312,

1313. Smce water quality based permit lmnitations are designed

to ensure that the recervmg water meets the ambient water

quality standards, any violation of a water quality based

limitation harms the recetvmg water. PIRG v. Powell Duffryn

Terminals, Inc., 720 F. Supp. 1158, 1162 (D.N_J. 1989), affd

im part and rev'd m part on other grounds, 913 F.2d 64 (3d Cr.

1990).

Laidlaw’s mercury limitation is water quality based” 956 F.

The designated uses of the North Tyger River are fishg and

propaganon of a balanced indigenous aquatic commumnuty of fauna and

agncultural and mdustrial uses. S.C. Reg. 61-68 G(8).

Laidlaw and its amici repeatedly refer to the fact that the mercury

lmutanon m Laidlaw’s permit was relaxed from | .3 ppb to 10 ppb durmg

the ligation m the district court and suggest that this demonstrates that

plamnffs’ suit was unfounded because Laidlaw would have commutted very

few violamons when its violations are compared to the |0 ppb hmutanan.

E.g., Resp’t Br. 7 n. 3. They fail to mention that when DHEC changed

Laidlaw’s maximum daily mit from | .3 ppbto 10 ppb, 2 also mmposed for

the first me a monthly average mercury lt. 956 F. Supp. at 596 (J.A.

148). The monthly average limit DHEC mmposed was | .25 ppb. Ibid. The

record shows that if the 1.25 ppb monthly average lm had been m

Laidlaw’s permut since 1987, Laidlaw would have violated is permit on

282 more days than it actually did. Compare PL Ex. 151 (showmg 71!

days of violanon based on an assumed monthly average permut mut of | .3

ppb) and PL Ex. 131 (showmg 60 addinanal days of violanion based on an

assumed monthly average permit limit of |.25 ppb) with 956 F. Supp. at

600, 621 n. 10 (J.A. 158, 196 n. 10) (showmg 489 days of violation based

on the actual |.3 ppb daily maxmmum lmmmtanion). See also Chesapeake

Bay Foundation v. Gwaltney of Smithfield, 791 F 2d 304, 313-315 (4th Cu.

1986), vacated on other grounds, 484 U.S. 49 (1987), on remand, 844 F.2d

170 (4th Cir. 1988), yadgment remstated, 688 F. Supp. 1078 (E.D. Va.

1988), aff'd m part, rev'd m part on other grounds, 890 F.2d 690 (4th Cir.

1989).

15

Supp. at 595 (J.A. 146). Plaintiffs’ expert calculated the

mercury level m the river from 1987 to 1992 using the mercury

discharged by Laidlaw and the river's flow. 1993 Tr., vol. I,

pp. 194-195; PL Ex. 88, pp. 11-12. He determined that

Laidlaw’s discharges alone (not considering any other sources

of mercury m the river) caused the mercury im the river to

exceed the water quality standard at least | 34 times, by as much

as three times the allowable level. 1993 Tr., vol. II, pp. 195-

196; Pl. Ex. 88, p. 12. His testimony was unrebutted. Since the

water quality standard was set at the level needed to protect the

river and its designated uses, the numerous violations of the

standard harmed the river “

Although Laidlaw wants this Court to believe that the change from | .3

ppd to 10 ppb is significant, this change actually was of very little, if any,

mnportance from the standpoint of Laidlaw’s compliance. Despite the

apparent large mcrease m the amount of mercury that could be discharged

on a particular day, this change did not allow Laidlaw to mcrease

significantly its total mercury discharge. This is because the 1.25 ppb

monthly average limitation is now the controlling factor m Laidlaw’s

discharge of mercury. Under the | .25 ppb lumuit, the most mercury Laidlaw

can discharge im a month and remam m compliance with its monthly

average limit is 37.5 ppb (1.25 ppb x 30 days), which is less than the 39

ppb it could discharge im a month under its old permit (1.3 ppb x 30 days).

if Laidlaw has only one day at or near its 10 ppb daily maximum limit, it

will have used up a substantial portion of its total monthly mercury

discharge allotment and will have to keep its discharge below | .25 ppb on

the remamung days of the month to avoid violating its monthly average

‘*The district court found, m discussing the significance of Laidlaw’s

violations as part of its penalty assessment, that “the water quality standard

for mercury is currently being attained m the North Tyger River and * *

* the overall quality of the river exceeds levels necessary to support

propagation of fish, shellfish, wildlife, and recreation m and on the water”

(emphasis added). 956 F. Supp. at 600 (J.A. 156). When that finding was

made m 1997, Laidlaw had come into compliance with its permit. See id

at 611 (J.A. 183). It is to be expected that the water quality standard is

attamed if a water quality based permit lumitation is complied with since

the purpose of a water quality based permut limitation is to ensure that the

16

Second, m assessing a civil penalty, the district court is

required to consider the seriousness of the violations. 33

U.S.C. 1319(d). As part of determming how much the penalty

should reflect the seriousness of the violations, the district court

here found that there was “no showing of any significant harm

to the environment” and “no demonstrated proof of harm to the

environment.” 956 F. Supp. at 600, 603 (J.A. 157, 164).

Laidlaw relies on such statements by the district court m the

penalty assessment to support its argument that plaintiffs lack

standing. See Resp’t Br. 35-36. These findings do not show

an absence of harm to the waterway. They only show that there

was no showing of harm to the waterway significant enough to

justify an increase in the penalty to be assessed

ambient water quality standard is met.

The district court’s finding is not mconsistent with its findmg that

plaintiffs have standing. The relevant facts for standing are those that

existed at the time the lawsuit was filed. E.g., Lujan, 504 U.S. at 569 n. 4.

Laidlaw violated its mercury limitation | 23 times m | 992, the year this suit

was filed. 956 F. Supp. at 600 (J.A. 158). Dr. Bell conchuded that the

water quality standard for the river was violated m 1992. Pl. Ex. 88, Table

was filed, the nver was being harmed.

‘> aidlaw and its amici refer to the fact that the district court found that

plaintiffs’ selection of the value range of |-10 from EPA’s civil penalty

policy constituted an acknowledgment by plaimtiffs that there was no nsk

of environmental harm. Resp’t Br. 36 n. 28. See 956 F. Supp. at 601-602

(J.A. 161). Plaimtiffs recommended to the district court that it rely on

EPA's penalty policy to guide its assessment of the seriousness of Laidlaw’s

discharge violations. /bid Plaintiffs proposed that, from EPA's “value

range” of 1-10 for violations of water quality based discharge limitations,

a value of 10 be assigned to each of Laidlaw’s violations. Pl. Pretrial Br.

41 (July 22, 1995). Plaintiffs proposed that the district court use the value

range for violations of water quality based discharge limitations because it

was the only range from the policy having any relationship to this case.

See PL. Ex. 129, p. 9. The other ranges are for mterference with drinking

water supplies, risks to subsistence fishing, fish kills, beach closmgs and

a general range of other impacts on the aquatic environment. /bid.

Plaintiffs recommended that the district court use |0, the highest value

17

The district court found that there was “no demonstrated

adverse affect on the environment” from Laidlaw’s discharges

(emphasis added). 956 F. Supp. at 603 (J.A. 164). This does

not mean that there was no adverse effect on the environment.

Congress has determined that all pollutant discharges are

harmful and affect our ability to “restore and maintain the

chemical, physical and biological integrity of the Nation’s

waters.” 33 U.S.C. 1251(a). The district court’s finding merely

means that none of the evidence available proved specific

adverse effects“ The difficulty, indeed often the impossibility,

of making such a demonstration was what lead Congress totally

to revamp the regulation of water pollution in 1972 by shifting

the focus of regulation from the water body to the end of the

discharge pipe. Congress made this shift because of the

uncertaimty of the relationship between water bodies and

pollutant loadings and the difficulty of being able to prove that

a particular source was responsible for particular conditions in

the waterway. See S. Rep. No. 414, supra, pp. 7-8, 42; S. Rep.

No. 233, 98th Cong., I st Sess. 2-3 (1983). To require a citizen

seeking to mvoke federal court jurisdiction to prove as a

prelimmary matter that the receiving waters were significantly

from the range, based on the fact that Laidlaw’s excessive discharges were

numerous, consistent and caused the water quality standard to be exceeded.

Pl. Pretrial Br. 41-44. The district court held that plaintiffs’ selection of the

value range of | -10 constituted an acknowledgment that there was no risk

of environmental harm. 956 F. Supp. at 601-602 (J.A. 161). However, a

value range of |-10, although lower than the range EPA selected for other

types of harm, assumes environmental harm and a value of |(0 obviously

1 ences eis See PL. Ex. 129,

p. 9.

‘©The district court’s finding that there was a lack of proof showing an

adverse affect is entirely different than the finding m PIRG v. Magnesium

Elektron Inc., 123 F.34 111, 122-123 (34 Cir. 1997), that the evidence

affirmatively showed no harm from the discharge. In this case, there has

been no overall study of the mmpact of the discharge. Instead, there are

only limited tests, none of which demonstrated an adverse affect.

18

harmed by a particular discharger would mean that citizens

could not sue to protect and maintam waters, particularly those

that are still relatively clean

IV. PLAINTIFFS ARE NOT PRECLUDED FROM

BEING AWARDED ATTORNEYS’ FEES EVEN IF

THIS CASE IS HELD TO BE MOOT

A. Farrar Did Not Overrule the Catalyst Rule

This Court has recognized the catalyst rule -- i.e., the rule

that a plaintiff has prevailed for purposes of obtaming attorneys’

fees when a lawsuit has been a catalyst for a voluntary change

in a defendant's conduct. See Pet’r Br. 44-46. Laidlaw argues

that Farrar v. Hobby, 506 U.S. 103 (1992), "necessarily

\’ Ptaintiffs also have standing to pursue the monitoring and reporting

violations for which the district court found Laidlaw liable. The NPDES

system, which regulates discharges until technology is sophisticated

enough to eluminate all discharges, 1s predicated on self-monitoring. S.

Rep. No. 414, supra, pp. 42, 62. Each NPDES permit requires the

permitholder to monitor its discharges in a specified manner and to report

the results of such monitoring to the regulatory authorities. 33 U.S.C.

1318, 1342(a)4b). Those authorities, in turn, are required to make the

monitoring information available to the public. 33 U.S.C. 1318(b).

Laidlaw’s failure to comply with the monitormg and reportmg

requirements of its permut denied plamnffs and their members mformanon

about the levels of pollutants beimg discharged ito the river m their

community. Plaimtiffs’ members have asserted that they are mterested

obtaining correct information about the pollutants discharged mto the nver

so that they can make decisions regarding their use of the niver and its

environs. See, e.g., Lee Aff. 98; Patterson Aff. 411. This Court has

recognized that an individual who is denied mformation to which he has

a statutory right has suffered an mjury-in-fact and has standing to sue.

Federal Election Comm'n v. Akins, 118 S. Ct. 1777, 1784 (1998).

Laidlaw focuses on the district court's finding regarding the senousness

of the monitoring and reporting violations and argues that since there was

not “some material nondisclosure or environmental consequence traceable

to the failure to report,” standing does not exist. Resp’t Br. 37. The

district court’s findings regarding the seriousness of these violations for

purposes of determining the appropriate penalty for the violations 1s

irrelevant to Article III standing.

ee

19

supersedes” the line of decisions recognizing the catalyst rule

because Farrar spoke in terms of a "judgment or settlement.”

Resp’t Br. 43. Laidlaw fails to explain why the Court would

have overruled the catalyst rule in a case where that rule was

not at issue or without making it clear that it was doing so. See

Pet’r Br. 46-47. Laidlaw also fails to address the decisions of

ten Circuits finding that Farrar did not overrule the catalyst

rule. See id. at 48-49 ©

Laidlaw argues that the catalyst rule may require a "satellite

litigation.” Resp’t Br. 44. However, the Circuits that apply the

catalyst rule have made the straightforward factual

determmation required by the catalyst rule -- i.e., whether a

change in a defendant's behavior was brought about by a lawsuit

or some other factor -- and have expressed no concerns about

domg so.

B. Whether this Lawsuit Was a Catalyst Should Be

Decided in the First Instance by the District Court

Laidlaw contends that, even if the catalyst rule is intact, this

lawsuit was not a catalyst for it to comply with its permit.

Resp’t Br. 44-46. That factual determination should be made

im the first mstance by the district court. Plaintiffs simply seek

‘Laidlaw argues that, if this Court remands to the court of appeals for a

determination of whether there was standing at the outset of the litigation,

it should not rule on the fees issue at this time. Resp’t Br. 42. However,

if the Court affirms the court of appeals’ decision on mootmess, a ruling on

standing will be necessary only as an antecedent to a ruling on fees. See

ibid. It would be a waste of judicial resources for this Court to remand for

a rulmg on standing since the court of appeals will rule against plaintiffs

as to fees regardless of its determmation on standing based an its earlier

decision that citizens are not entitled to fees when a case becomes moot.

Instead, if the Court decides agaist plaintiffs as to mootness, plaintiffs

submit that the Court should consider the fees issue and remand for a

ruling on standing only if it rules for plaintiffs on the fees issue. Cf U.S.

Bancorp, 513 U.S. at 21-22 (a federal appellate court may rule on ancillary

matters even when it has determined that Article II] jurisdiction is

lacking).

20

a rulmg reversmg the decision of the court of appeals that

plamtiffs are precluded from any recovery of attorneys’ fees if

their claims are moot.

Laidlaw suggests that the district court has already

determmed that this lawsuit was not a catalyst for Laidlaw's

compliance. Resp’t Br. 45-46. Since the district court has not

ruled on plamtiffs’ entitlement to attorneys’ fees (see Resp’t Br.

7), it could not possibly have made that determmation.

Laidlaw quotes a portion of the district court's relief decision

Stating that enforcement efforts made by DHEC led to

Laidlaw’s "ultimate comphance with its permit over an extended

period of time." Resp’t Br. 46 (quotmg J.A. 163). That

quotation has been taken out of context. The district court was

addressmg the seriousness of Laxilaw’s reportmg and

monitoring violations and, m that context, found that those

violations did not mterfere with DHEC's enforcement efforts.

See 956 F. Supp. at 602 (J.A. 161-163). The court was not

addressmg the issue of whether this lawsuit was a catalyst for

Laidlaw’s compliance. Jd. at 602-603 (J.A. 162-163).

Moreover, as we have shown above (pp. 1-2), the district

court has found that DHEC's enforcement efforts were

madequate.

CONCLUSION

It is respectfully submitted that the decision of the court of

appeals should be reversed and the case remanded for

consideration of the issues presented im the parties’ appeals to

that court.

Respectfully submitted,

Bruce J. Terris

Carolyn Smith Pravlik

Monica Wagner

James S. Chandler, Jr.

Counsel for Petitioners

APPENDIX

IN THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 98-1938

Friends of the Earth, Inc. and Citizens Local

Environmental Action Network, Inc.

Plaintiffs/Appellants,

v.

Gaston Copper Recycling Corp., et al.

Defendant/ Appellant.

ON APPEAL FROM THE UNITED STATES COURT FOR

THE DISTRICT OF SOUTH CAROLINA

BRIEF OF THE UNITED STATES AS AMICUS CURIAE

IN SUPPORT OF REHEARING EN BANC

LOIS J. SCHIFFER

GREER S. GOLDMAN

DAVID SHILTON

R. JUSTIN SMITH

Washington, D.C. 20044-4390

(202) 514-9369

2a

(Tables of contents and authorities omitted]

INTEREST OF THE UNITED STATES

Pursuant to Fed. R. App. P. 29(a), the United States files this

amicus cunae brief because this case presents an issue of

substantial importance to the United States The United States,

in cooperation with the individual States, has primary

responsibility for implementing and enforcing the Clean Water

Act (CWA), 33 U.S.C. § 1251 et seq. The United States is also

a potential defendant in citizen enforcement actions agamst

federal facilities See CWA § 309, 33 USC. § 1319. The

present case concerns the ability of citizens to establish standing

to sue under the Act. The standard set forth m the panel's

opinion would significantly restrict citizens’ ability to enforce

the environmental laws. Thus, the resolution of this case will

have a direct and substantial effect on enforcement of the Act.

SUMMARY OF ARGUMENT

Congress intended to grant citizens standing to sue under the

Clean Water Act to the full extent permitted by the

Constitution. By imposing unduly strigent evidentiary burdens

on the citizen-plaintiffs, the panel's analysis thwarts this

Congressional intent and mreconcilably conflicts with decisions

in other circuits. .

As to mjury im fact, the panel effectively required direct

evidence of injury, disregarding the circumstantial evidence of

injury proffered by the plaintiffs. In dog so, it ignored the rule

that a plaintiff may ordinarily rely on circumstantial evidence to

make a showing required by law, and disregarded applicable

authority from the Supreme Court and other circuits. .

As to traceability, the panel improperly msisted that plaintiffs

provide scientific evidence as to the transport of pollutants. It

declined to credit the plaintiffs’ evidence, which relied on

reasonable inferences and circumstantial proof. This holding

conflicts with precedent from other circuits.

The effect of the panel opinion is to require plamtiffs to

owes ate

a ee re

3a

present substantial amounts of scientific evidence unrelated to

their case im order to establish standing. This will lead to

“expensive, lengthy sideshows to the straightforward issue

under the Clean Water Act - namely, whether a defendant is

violating its discharge permit.” Slip op. at 9 (dissenting opmion

of Chief Judge Wilkinson).

ARGUMENT

I. CONGRESS INTENDED THAT CITIZENS HAVE

STANDING TO SUE UNDER THE CLEAN WATER ACT

TO THE FULL EXTENT PERMITTED BY THE

CONSTITUTION

The text of the Clean Water Act permits suit by “any citizen,”

which is defined to mean “a person or persons having an mterest

which is or may be adversely affected.” 33 U.S.C. § 1365(a),

(g). The language of this provision was drawn from the

Supreme Court’s decision in Sierra Club v. Morton, 405 US.

727, 740 (1972), which required that a plaintiff “allege facts

showing that he is himself adversely affected” by the challenged

decision. See H.R. Conf. Rep. No. 92-1465 at 146 (1972)

(statmg that Congress had based the language of section

| 365(g) on Sierra Club v. Morton). Thus, in drafting the Clean

Water Act’s citizen suit provision, i appears that Congress

intended to extend the citizen suit remedy as far as the

Constitution permitted.” The Supreme Court reviewed the

foregoing legislative history in Middlesex County Sewerage

Auth. v. National Sea Clammers Ass’n, 453 U.S. 1, 16-17

(1981), concluding that the language of section 1365 was

intended to allow suit by a “broad category of potential

plaintiffs.” See also Lujan v. Defenders of Wildlife, 504 US.

Y Although the Court's decision in Sierra Club vy. Morton involved an

mterpretation of the text of the Admunistrative Procedure Act. the Court

made clear that it was informed by constitutional considerations. Sec id

at 740 & n.16.

4a

555, 580 (1992) (Kennedy, J., concurring) (“In my view,

Congress has the power to define mjunes and articulate chams

of cau:ation that will give rise to a case or controversy where

none existed before.”).

Extending citizen standing under the Act to the limits

permitted by the Constitution is also necessary to effectuate the

Act’s other purposes. As appellants explam m detail m ther

petition for rehearing en banc, an important reason for the Clean

Water Act’s shift from water quality standards to end-of-pipe

standards was to elimmate the need to address questions of

causation and injury in enforcement proceedings. See Petition

for Rehearmg En Banc at 6-9.

Il. THE PANEL IMPROPERLY REQUIRED PLAINTIFFS

TO PROFFER DIRECT EVIDENCE IN ORDER TO

ESTABLISH INJURY IN FACT

As to mgury m fact, the panel demanded that plamtiffs either

provide scient studies of the waters used by plaintiffs, see op.

at 6 (noting tk sence of “toxicity tests, or test or studies of

any kind,” of those waters), or show an “observable negative

impact” on those waters or the surrounding ecosystem. Op. at

6. This requirement, which effectively barred the plamtiffs from

proving injury in fact through circumstantial evidence, lacks any

basis m applicable law.

It is permissible for a plamtiff to base a showing of myury m

fact (or some other element of standing) on reasonable

probabilities or mferences. Plamtiffs need not necessarily

adduce direct evidence, and may mstead rely on circumstantial

evidence im establishing standmg, as they may m making any

other legally required showing. See United States Postal

Service v. Aikens, 460 U.S. 711, 714 n.3 (1983) (in rejecting a

requirement of direct evidence in an employment discrimination

case, stating that plamtiff could elect to rely on circumstantial

evidence alone, “[a]s m any lawsuit.”). In crimmal cases, the

government may rely on circumstantial evidence to show guilt

Sa

beyond a reasonable doubt. See 2 Charlies A. Wright, Federal

Practice and Procedure § 411 at 479-86 (1982). Circumstantial

evidence thus must necessarily be admissible in making the

substantially lesser showing required for standing.

For example, in Duke Power Co. v. Carolina Env. Study

Group, 438 U.S. 59 (1978), the Supreme Court found that

plaintiffs who lived near a nuclear power plant could establish

myury m fact without requiring any direct proof of injury. The

Court found that that plant's emissions of waste heat into lake

waters created mjury, and that “the emission of non-natural

radiation mto appellees’ environment woukd also seem a direct

and present mjury, given our generalized concern about

exposure to radiation and the apprehension flowing from the

uncertamty about the health and genetic consequences of even

small emissions like those concededly emitted by nuclear power

plants.” Id. at 74. Notably, the Court did not require plaintiffs

to show that the air and water they used actually contained

radiation; it sufficed that radiation had been emitted in their

vicmity and caused reasonable concern about health effects.

Likewise, in Sierra Club v. Cedar Point Oil Co., 73 F.3d 546

(Sth Cir. 1996), citizen-plaimtiffs asserted that defendant's

discharge of oil-contammated water to Galveston Bay was

likely to cause harm to the Bay, and showed that they actually

used the Bay, but produced no direct scientific or visual

evidence of harm to the waters they used. The Fifth Circuit

nevertheless found that citizen-plaintiffs had standing to sue.

See id, at 557-58 #

eliance on circumstantial evidence is especially appropriate

m lght of the general rule that “the threshold for the injury

» One of citizen-plaintiffs’ standing witnesses stated that he had

observed “discolored water and foul odors.” Id at 557. However, the Fifth

Circuit did not rely on the testimony of this witness because he did not

“express[] an mterest m the part of Galveston Bay where Cedar Point's

discharge is located.” Id at 558 n.24.

6a

requirement is fairly low.” See id. at 557 n.23 (stating that

“CWA cases from other circul corroborate” this observation).

Indeed. as the Third Circuit has said, in order to establish

an injury “need not be large[;] an identifiable trifle will

were subject to threatened myury. The evidence im this case

focuses on the downstream transport of pollutants from

defendant’s facility. Many of the factors that may influence the

rate of this transport, such as weather, are subject to natural

variation. Standing law does not require that a plamtiff wait

until actual injury occurs im order to sue. Instead, a plaintiff can

sue on the basis of threatened harm, so long as the threat is “real

and immediate, not conjectural or hypothetical.” See generally

Los Angeles v. Lyons, 461 U.S. 95, 101-02 (1983), see also

Village of Elk Grove Village v. Evans, 997 F.2d 328, 329 (7th

Cir. 1993) (finding standing because “[t}he Village is in the path

of a potential flood” and “even a small probability of myury 1s

sufficient to create a case or controversy”).

1. THE PANEL IMPROPERLY DECLINED TO

CONSIDER A COMMON-SENSE ANALYSIS OF

TRACEABILITY, INSISTING INSTEAD ON SCIENTIFIC

EVIDENCE

The panel found that plamtiffs had not shown that the

pollutants im defendant's wastewater could travel four miles to

The traceability prong of the standing analysis requires only

7a

that plaintiff show that its myury “fairly can be traced to the

426 U.S. 26, 41 (1976). This demands that plaintiffs show a

“substantial likelihood that defendant’s conduct caused

plaintiff s harm”; this “is not equivalent to a requirement of tort

causation.” Powell Duffryn, 913 F.2d at 72. “In a Clean Water

Act case, this likelihood may be established by showing that a

defendant has |) discharged some pollutant in concentrations

greater than allowed by its permit 2) into a waterway m which

the plaimtiffs have an imterest that is or may be adversely

affected by the pollutant and that 3) this pollutant causes or

contributes to the kinds of injuries alleged by the plaintiffs.” Id.

The panel cited this standard, but found that its second element

was not met because plamtiffs had not shown that Gaston

Copper’s discharges had reached Shealy’s lake. Shp op. at 7.

The panel emphasized that the lake is four miles downstream of

Gaston Copper’s facility, and said that “even though water

flows downstream, the distances between the source of the

alleged pollution (Gaston Copper) and the waterways used by

[plaintiff's standing witnesses are] simply too great to mfer

The panel cited no authority for the proposition that four

miles downstream is too far to mfer traceability for the

discharge by this defendant’s facility. In fact, authority from

other circuits strongly supports a finding of traceability. In

several cases, including one im this Circuit, courts have found

that citizens’ group had standing to sue on the basis of a

member’s claim that he or she used a body of water m the

general area of the discharge, but without requiring any showmg

that the member used the precise spot at which the discharge

occurred. See Sierra Club v. Simkins Industries, Inc,, 847 F.2d

~~

F.2d 54, 56 (8th Cir. 1989) (Mississippi River);

8a

Earth v. Consolidated Rail Corp., 768 F.2d 57, 61 (2d Cr.

1985) (Hudson River); see also Friends of the Earth, Inc. v.

Chevron Chemical Co., 900 F. Supp. 67, 75 (E.D. Tex. 1995)

(specifically finding that plaintiffs could sue on the basis of

discharges two to four miles upstream from them). Many of

these cases involved quite large bodies of water; nevertheless,

these courts drew the reasonable inference that waterborne

pollutants migrate, without demanding scientific proof that they

had done so. Without distinguishing these cases, the panel m

this case effectively demanded scientific proof of traceability *

Moreover, the panel ignored plaintiffs’ evidence of

traceability beyond simple proximity to Gaston Copper’s

facility. The waters of Shealy’s lake have been tested, and

found to contain the contaminants discharged by Gaston’s

facility. Although the tests mvolved were conducted before

Gaston assumed ownership of the facility, they mdicate that

¥ The panel cited the “thirty-one mtervening ponds” between Gaston

Copper’s facility and Shealy’s lake. Slip op. at 7. However, since these

ponds taken together fit within a four-mile span, many of them are

presumably quite insubstantial. In any case, the mtervening ponds and

creeks taken together are likely trivial in comparison to, for example, the

Mississippi or Hudson River. Nor would the “three other tributanes” the

panel cited as flowing into Shealy’s lake necessarily do more than dilute

Gaston Copper’s pollutants.

It is true that, as the Fifth Circuit has said, “some waterways covered by

the [Clean Water Act] may be so large that plaintiffs should nghtfully

demonstrate a more specific geographic or other causative nexus” m order

to show standing. Cedar Point Oil Co., 73 F.3d at 558 n.24; cf. Lujan v_

National Wildlife Federation, 497 U.S. 871, 889 (1990). The Fifth Circuit

has found, for example, that a plaintiff could not assert standing solely on

the basis of use of “a body of water located three tributaries and 18 miles

downstream” from defendant’s refinery, where plamtiff had offered no

other evidence of injury. See Friends of the Earth v. Crown Central

Petroleum, 95 F.3d 358, 361 (Sth Cir. 1996). Here, by contrast, plaintiff

is much closer to the source of the emissions, and has offered abundant

additional evidence of myury.

Re ee Tae ll ee ree oe

9a

pollutants discharged by Gaston’s facility migrate to Shealy’s

lake. Since there is no evidence that the facility’s operations

have changed substantially, see slip op. at 11, it is reasonable to

conclude that pollutants from Gaston Copper’s facility have

contmued to reach Shealy’s lake. Plaintiffs also presented a

state official’s statement that Gaston Copper’s discharges travel

to a water body 16.5 miles downstream, and evidence that

Gaston Copper’ s discharges have polluted the lake adjacent to

its facility *

The panel opinion’s msistence on direct evidence of injury

and rigorous proof of causation is contrary to well established

law on standing. As the Third Circuit said in Powell Duffryn,

“({a] plamtiff need not prove causation with absolute scientific

ngor.” 913 F.2d at 72. This circuit has endorsed that

proposition. See Natural Resources Defense Council, Inc. v.

Watkins, 954 F.2d 974, 980 n.7 (4th Cir. 1992). In the words

“ Plaintiffs also presented evidence that Gastan Copper has repeatedly

violated the terms of its permit and that Gaston Copper’s discharges have

many times been found m scientific tests to be toxic to small aquatic

animals. Slip op. at 10. Together with the evidence that Gaston Copper’s

discharges were capable of traveling downstream to Shealy’s lake, this

amounts to significant circumstantial proof of myury im fact. Because

eames ffen.2y Retin Png Raver

Elektron, Inc., 123 F.3d 111 Gd Cir. 1997), oem ediadente Gooundie

opinion in this case. In Magnesium Elektron, the court found that the

defendant had shown that releases from its facility did not injure, and may

indeed have benefited, the environment. See id. at 123. Here, by contrast,

Because plaintiffs have adequately shown that Shealy’s lake was

threatened by Gaston Copper’s discharges, it also follows that plaintiffs

may pursue their monitoring and reporting claims. See slip op. at 8 n.9;

Sierra Club v. Simkins Industries, Inc., 847 F.2d 1109 (4th Cir. 1988).

(Such a threat is not necessarily the only basis on which a citizen may have

standing to pursue monitoring and reporting claims, but it is one valid

basis.)

10a

of the dissent, “the exhaustive exposition and proof” required

by the panel “will create expensive, lengthy sideshows to the

straightforward issue under the Clean Water Act - namely,

whether a defendant is violating its discharge permit.” Slip op.

at 9. These proceedings would burden the courts and, contrary

to Congressional intent, dimmish the ability and mcentives of

citizens to bring enforcement actions.

CONCLUSION

For the foregoing reasons, the United States urges this

Circuit to rehear the panel’s decision in this case en banc. In the

event that rehearing en banc is granted, the United States

requests an opportunity to submit a more detailed amicus curiae

brief addressing the issues im this case.

Respectfully Submitted,

LOIS J. SCHIFFER

Assistant Attorney General 4

Environment and Natural Resources Division

R. JUSTIN SMITH

Attomey

Environment & Natural Resources Division

U.S. Department of Justice

P.O. Box 4390

Ben Franklin Station

Washington, DC 20044-4390

(202) 514-9369 phone

(202) 514-4231 fax

[Certificate of compliance with Fed. R.App. P. 32(a)(7) and

certificate of service omitted]

lla

IN THE SUPREME COURT

OF THE UNITED STATES

No. 98-822

FRIENDS OF THE EARTH, INC..

Petitioners

Vv.

LAIDLAW ENVIRONMENTAL SERVICES (TOC), INC..

Respondent

AFFIDAVIT OF ALICIA M. CLARK

Pursuant to 28 U.S.C. 1746 and under penalty of perjury, I

state the following:

1. I am a paralegal with the law firm of Terris, Pravlik &

2. Terms, Pravlik & Millian are counsel for petitioners in the

above-captioned action.

3. 1 was asked to identify facilities owned by Laidlaw

Environmental Services, Inc. and its subsidiaries which have

been issued NPDES permits. First, I conducted a search of the

EPA Permit Compliance System (PCS) database for NPDES

permits issued to facilities containing “Safety-Kleen” in their

name. I searched the name Safety-Kleen because Laidlaw

Environmental Services is currently doing business as Safety-

Kleen Corp. The search produced a list of facilities and

provided an address for each.

4. I compared the names of the facilities generated by the

PCS search with the names of Laidlaw Environmental Services,

Inc. subsidiaries listed in Laidlaw’s August 1998 10-K, filed

with the Securities and Exchange Commission. For facilities

12a

that I could not match to any of the subsidiaries listed m the 1 0-

K, I used the addresses provided by the PCS search and

compared those addresses to the facilities listed on the Safety-

Kleen Corp. web-site.

5. Based on the research described in paragraph 4, I made a

list of facilities I had determimed were both owned by Laidlaw

Environmental Services, Inc. or one of its subsidiaries and held

an NPDES permit. I requested that Carpenter Environmental

Associates, Inc. conduct a full search of the PCS database to

determine if any of the facilities on the list I provided had recent

NPDES permit violations.

6. Once Carpenter Environmental Associates, Inc. provided

me with a list of facilities with NPDES permit violations, |

called Brandon Hemel, the membership and database

coordinator for Friends of the Earth, to request that he search

the Friends of the Earth membership database and determine if

there are members residing in the areas surrounding the Laidlaw

facilities with violations. I also asked the Sierra Club to search

its membership database and determine if there are members

residing in the areas surrounding the Laidlaw facilities with

violations.

7. Using the list of members provided, I contacted as many

members as possible to see if they have an mterest m the

waterways affected by the discharges from the Laidlaw facilities

with violations. Members of both organizations have mterests

in the waterways affected by the discharges from the Laidlaw

facilities with violations.

8. Carpenter Environmental Associates’ review of the PCS

database showed a reporting violation by Laidlaw’s Roebuck

facility. On August 4, 1999, I contacted Sandra Hercey of the

South Carolina Department of Health and Environmental

Control. Ms. Hercey informed me that m June she had issued

a Notice of Violation to the Safety-Kleen (Roebuck), Inc.

facility, located in Roebuck, South Carolina. The facility failed

to submit its April 1999 seven-day toxicity test report, as

te ee ed Bn

. We ee

CLP >

enone

A EE EPR” wr OR et on

13a

required by the NPDES permit issued to the facility. The April

report was due at the end of May and, as of our phone

conversation Ms. Hercey had still not received the report.

Pursuant to 28 U.S.C. 1746, I declare under penalty of

perjury that the foregoing is true and correct. Executed this

13th day of August, 1999.

/s) ALICIA M. CLARK

14a

IN THE SUPREME COURT

OF THE UNITED STATES

No. 98-822

FRIENDS OF THE EARTH, INC..

Petitioners

Vv.

LAIDLAW ENVIRONMENTAL SERVICES (TOC), INC..,

Respondent

AFFIDAVIT OF BRUCE A. BELL

Pursuant to 28 U.S.C. 1746 and under penalty of perjury,

I state the followmg:

1. I am currently president of Carpenter Environmental

Associates, Inc. of Ramsey, New Jersey, an environmental

2. Ihave appeared as an expert witness for the petitioners m

the above-captioned action.

3. My firm was contacted by Alicia Clark , a paralegal for the

law firm of Terris, Pravlik & Millian, LLP, who requested that

Carpenter Environmental Associates, Inc. conduct a search of

the EPA Permit Compliance System database to determine if

any of the facilities owned by Laidlaw Environmental Services,

Inc. or its subsidiaries had recent NPDES permit violations.

4. Carpenter Environmental Associates, Inc., using the

facilities NPDES permit numbers, conducted a search of the

EPA Permit Compliance System database. The following four

facilities had recent NPDES permit violations: Safety-Kleen

Corp., Little Rock, Arkansas; Safety-Kleen Corp., Lexington,

Kentucky; Safety-Kleen (Baton Rouge), Inc., Baton Rouge,

Se

1Sa

Louisiana; Safety-Kleen (Deer Park), Inc., Deer Park, Texas.

Pursuant to 28 U.S.C. 1746, I declare under penalty of

perjury that the foregoing is true and correct. Executed this

10th day of August, 1999.

/s) BRUCE A. BELL

16a

IN THE SUPREME COURT

OF THE UNITED STATES

No. 98-822

FRIENDS OF THE EARTH, INC.,

Petitioners

v.

LAIDLAW ENVIRONMENTAL SERVICES (TOC), INC.,

Respondent

AFFIDAVIT OF BRANDON HEMEL

Pursuant to 28 U.S.C. 1746 and under penalty of perjury,

I state the followmg:

|. lamthe membership and database coordimator for Fnends

of the Earth.

2. I was contacted by Alicia Clark, a paralegal for the law

firm of Terris, Pravlik & Millian, LLP, who requested that I

determine whether Friends of the Earth had members livmg m

the vicinity of facilities owned by Laidlaw Environmental

Services, Inc. or its subsidiaries.

3. 1 conducted a search of the Friends of the Earth

raembership database and determmed that there are a significant

number of Friends of the Earth members living m the areas

Pursuant to 28 U.S.C. 1746, I declare under penalty of

perjury that the foregoing is true and correct. Executed this 6th

day of August, 1999.

/s) BRANDON HEMEL

17a

IN THE SUPREME COURT

OF THE UNITED STATES

No. 98-822

FRIENDS OF THE EARTH, INC.,

Petitioners

Vv.

LAIDLAW ENVIRONMENTAL SERVICES (TOC), INC.,

Respondent

AFFIDAVIT OF KEVIN KOSIK

Pursuant to 28 U.S.C. 1746 and under penalty of perjury, I

state the followmg:

1. I am the Director of Member Services and Development

Operations for Sierra Club.

2. Sierra Club was contacted by Alicia Clark, a paralegal for

the law firm of Terris, Pravlik & Millian, LLP, who requested

that Sierra Club determine whether it had members livmg m

the vicmity of facilities owned by Laidlaw Environmental

Services, Inc. or its subsidiaries.

3. I conducted a search of the Sierra Club membership

database and there are many Sierra Club members living m the

Pursuant to 28 U.S.C. 1746, I declare under penalty of

perjury that the foregomg is true and correct. Executed this 6th

day of August, 1999.

/s/ KEVIN KOSIK