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

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Supreme Gourt, U.S,

FILED

MAY 17 1999

No. 98-822

a eR OREN I RU NN EE eC PE NR RET

Jn the Supreme Court of the Gnited States

FRIENDS OF THE EARTH, INC., ET AL., PETITIONERS

LAIDLAW ENVIRONMENTAL SERVICES (TOC), INC.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONERS

SETH P. WAXMAN

Solicitor General

Counsel of Record

LOIS J. SCHIFFER

Assistant Attorney General

LAWRENCE G. WALLACE

Deputy Solicitor General

JEFFREY P. MINEAR

Assistant to the Solicitor

General

DAVID C. SHILTON

R. JUSTIN SMITH

Attorneys

Department of Justice

Washington, D.C. 20530-0001

(202) d14 -22] 7

a |

QUESTIONS PRESENTED

1. Whether a citizen suit under Section 505 of the

Clean Water Act, 33 U.S.C. 1365, must be dismissed as

moot unless the district court orders injunctive relief.

2. Whether a citizen plaintiff is barred from recover-

ing litigation costs under Section 505(d) of the Clean

Water Act if the citizen suit is dismissed as moot.

TABLE OF CONTENTS

Interest of the United States

Statement

A. The Clean Water Act

B. The district court proceedings

C. The court of appeals’ decision

Summary of argument

eaawuud

Argument:

The court of appeals erred in holding that

a citizen suit must be dismissed as moot

unless the citizen plaintiff obtains injunctive

relief

A. The Clean Water Act’s citizen-suit provisions

authorize private judicial actions to compel

dischargers to comply with their discharge

permits :

B. A defendant’s voluntary cessation of permit

violations does not moot a citizen suit unless

the defendant demonstrates that the permit

violations will not recur

C. Acourt’s decision to withhold injunctive

relief does not constitute a finding that the

discharger’s violations will not recur

D. The court of appeals’ judgment should be

vacated and the case remanded for further

lings, includ : 7

ings respecting petitioners’ entitlement to

litigation costs

Conclusion

S 8

(IIT)

TABLE OF AUTHORITIES

Cases: Page

Albemarle Paper Co. v. Moody, 422 U.S. 405

0 ae 24

Allen v. Wright, 4653 U.S. T37 (1984) ........ccccsesesevenesesnsees 15

Arizonans for Official English v. Arizona,

520 U.S. 43 (1997) 11, 15, 16

Atlantic States Legal Found., Inc. v. Pan Am.

Tanning, 993 F.2d 1017 (2d Cir. 1993) 20, 26

Atlantic States Legal Found., Inc. v. Stroh Die

Casting, Inc., 116 F.3d 814 (7th Cir. 1997) 20

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

Inc., 897 F.2d 1128 (11th Cir. 1990) 20, 26

Baker v. Carr, 369 U.S. 186 (1962) ...........ccsesseserneneeneneens 27

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

(5th Cir. 1991) 20

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

283 (1982) 9, 17, 18, 19, 20, 21, 25

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

138 F.3d 351 (8th Cir. 1998)

County of Los Angeles v. Davis, 440 U.S. 625

(1979)

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

Gladstone, Realtors v. Village of Bellwood, 441

U.S. 91 (1979)

Gwaltney of Smithfield, Ltd. v. Chesapeake Bay

Found., Inc., 484 U.S. 49 (1987)

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

Honig v. Doe, 484 U.S. 305 (1988)

Lewis v. Continental Bank Corp., 494 U.S. 472

(1990)

15, 16

SERRE EERE HE EEE EERE EEE O EE Ee

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

(1992)

Lujan v. National Wildlife Fed’n, 497 U.S. 871

(1990)

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

Cases—Continued: Page

McLeod v. General Elec. Co., 385 U.S. 533

(1967) 22

Mosley v. United States, 119 S. Ct. 484 (1998)... 17

Murphy v. Hunt, 455 U.S. 478 (1982) ..0......ccccceccessseeseeeeees 17

Natural Resources Defense Council, Inc. v. Southwest

Marine, Inc., 28 F. Supp. 2d 584 (S.D. Cal. 1998) ........... 25

Natural Resources Defense Council v. Texaco

Refining & Marketing, Inc., 2 F.3d 493 (3d Cir.

1993) 20, 25

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

807 F.2d 1089 (1st Cir. 1986) 20

Steel Co. v. Citizens for a Better Env't, 523 U.S. 83

(1998) 8-9, 13, 14, 15, 16, 25, 26, 27

Tull v. United States, 481 U.S. 412 (1987) 24, 25

United States Bancorp Mortgage Co. v. Bonner Mall

Partnership, 513 U.S. 18 (1994) 28

United States Dep't of Justice v. Provanzano,

469 U.S. 14 (1984) 17

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

388 (1980) 15, 17

United States v. Chesapeake & Potomac Tel. Co.,

516 U.S. 415 (1996) 17

United States v. Concentrated Phosphate Export

Ass'n, 393 U.S. 199 (1968) 17, 18, 19, 20

United States v. Oregon State Med. Soc’y, 343 U.S.

326 (1952) 19

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

(1953) 17, 18-19, 20, 21, 22, 23

Vitek v. Jones, 436 U.S. 407 (1978) ........ccccccseecsseessnessneee 17, 22

Weinberger v. Romero-Barcelo, 456 U.S. 305

(1982) 10, 22-23, 24

U.S. Const.:

Art. III 7, 8, 9, 13, 15, 16, 22, 25, 27

§2 15

Statutes and regulations- ~~ntinued: Page

Clean Water Act, 33 U.S.C. 1251 et seq. 1

§ 101(a), 33 U.S.C. 1251(a) 2

§ 301(a), 33 U.S.C. 1311(a) 2,3

§ 309, 33 U.S.C. 1319 1,3

§ 309(a), 33 U.S.C. 1319%a) 3, 12

§ 309(b), 33 U.S.C. 1319(b) 3

§ 309%(b)-(g), 33 U.S.C. 1319(b)-(g) 12

§ 309%(c), 33 U.S.C. 1319%(c) 12

§ 309%c)-(g), 33 U.S.C. 131%c)-(g) 3, 12

§ 309(d), 33 U.S.C. 1319(d) 6, 23, 25

§ 402,33 U.S.C. 1342 2-3

§ 402(a), 33 U.S.C. 1342(a) 3

§ 402(a)(1), 33 U.S.C. 1342(a)(1) 11

§ 402(a)(2), 33 U.S.C. 1342(a)(2) 11

§ 402(a)(6), 33 U.S.C. 1342(a)(6) 3

§ 402(b), 33 U.S.C. 1342(b) 3

§ 402(b)(7), 33 U.S.C. 1342(b)(7) 3, 12

§ 402(c), 33 U.S.C. 1342(c) 3

§ 505, 33 U.S.C. 1365 1,3, 8, 12

§ 505(a), 33 U.S.C. 1365(a) 4, 22, 23, 24

§ 505(a)(1), 33 U.S.C. 1365(a)(1) 3, 12

§ 505(b), 33 U.S.C. 1365(b) ,5

§ 505(b)(1)(A), 33 U.S.C. 1365(b)(1 (A) 4

§ 505(b)\(1)B), 33 U.S.C. 1365(b)(1)(B) 4,5

§ 505(c), 33 U.S.C. 1365(c) 4

§ 505(c)(2), 33 U.S.C. 1365(c)(2) 4

§ 505(c)(3), 33 U.S.C. 1365(c)(3) 4

§ 505(d), 33 U.S.C. 1365(d) ..........0000000 2, 4, 8, 10, 28, 29

§ 505(f), 33 U.S.C. 1365(f) 3

§ 505(g), 33 U.S.C. 1365(g) 3

Emergency Planning and Community Right-To-

Know Act of 1986, 42 U.S.C. 11046(a)(1) 13

42 U.S.C. 1983 29

40 C.F.R.:

Pt. 122 ll

Section 122.41(j) 11

Section 122.41(/) 11

Pt. 123:

Sections 123.1 et seq. 12

VII

Miscellaneous: Page

EPA Civil Penalty Policy (1984), reprinted in Imple-

mentation of the Federal Clean Water Act: Hearings

on H.R. 81 Before the Subcomm. on Investigations and

Oversight of the House Comm. on Public Works and

Transp., 98th Cong., 2d Sess. (1984) 25

S. Rep. No. 414, 92d Cong., 2d Sess. (1971) 28

S. Rep. No. 1011, 94th Cong., 2d Sess. (1976) 30

Henry P. Monaghan, Constitutional Adjudication:

The Who and When, 82 Yale L.J. 1363 (1973) ...........000-+ 15

Robert L. Stern, et al., Supreme Court Practice

(7th ed. 1993) 17, 18, 22

In the Supreme Court of the United States

No. 98-822

FRIENDS OF THE EARTH, INC., ET AL., PETITIONERS

LAIDLAW ENVIRONMENTAL SERVICES (TOC), INC.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONERS

INTEREST OF 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 against federal facilities.

See CWA § 309, 33 U.S.C. 1319. The present case, in

which the United States participated as amicus curiae

before the district court and the court of appeals, con-

cerns the ability of citizen plaintiffs to recover civil

penalties for violations of the Act and the costs of litiga-

tion for successful enforcement actions. Its resolution

will have a direct and substantial effect on enforcement

of the Act.

STATEMENT

Section 505 of the Clean Water Act, 33 U.S.C. 1365,

authorizes private citizens to bring civil actions to

(1)

enforce the Act’s requirements. Petitioners Friends of

the Earth, Inc., Citizens Local Environmental Action

Network, Inc., and the Sierra Club brought this citizen

suit against respondent Laidlaw Environmental Ser-

vices, Inc., to enjoin Laidlaw’s violations of its Clean

Water Act permit. The district court found that Laid-

law had violated its permit both before and after

petitioners filed their citizen suit, but had ceased the

violations before final judgment. The court declined to

issue an injunction but assessed civil penalties and

indicated that it would award petitioners their costs of

litigation in accordance with Section 505(d) of the Act.

See 33 U.S.C. 1365(d). The court of appeals reversed

and directed the district court to dismiss the citizen

action. The court reasoned that “this action is moot

because the only remedy currently available to [peti-

tioners|—civil penalties payable to the government—

would not redress any injury [petitioners] have

suffered.” Pet. App. 8a-9a. The court of appeals also

stated that petitioners are not entitled to recover their

costs of litigation because they are not “prevailing or

substantially prevailing part[ies]” within the meaning

of Section 505(d).

A. The Clean Water Act

The Clean Water Act creates a comprehensive pro-

gram “to restore and maintain the chemical, physical,

and biological integrity of the Nation’s waters.” CWA

§ 101(a), 33 U.S.C. 1251(a). As a part of that program,

Section 301(a) of the Act prohibits all discharges of

pollutants into navigable waters except those made in

compliance with the Act. Section 402 of the Act estab-

lishes the National Pollutant Discharge Elimination

System (NPDES), which authorizes the federal govern-

ment and qualifying States to issue permits for con-

trolling the point-source discharge of pollutants. See 33

U.S.C. 1311(a), 1342.

Section 402(a) provides that the Environmental Pro-

tection Agency (EPA) shal) issue NPDES permits

authorizing effluent discharges in strict compliance

with-conditions specified in the permit. 33 U.S.C.

1342(a). Section 402(b) and (c) authorizes the States to

develop and administer their own NPDES permit

programs and provides that EPA shall suspend

issuance of federal permits upon determining that a

State has adopted an adequate program. 33 U.S.C.

1342(b) and (c). If an NPDES permit holder fails to

comply with the specified permit conditions, the federal

and state governments may take enforcement action.

CWA §§ 309, 402(b)(7), 33 U.S.C. 1319, 1342(b)(7).

Section 309 of the Clean Water Act provides for a

variety of government enforcement measures, including

the issuance of compliance orders, 33 U.S.C. 1319(a),

the initiation of civil actions for injunctive relief, 33

U.S.C. 1319(b), and the imposition of criminal, civil, and

administrative penalties, 33 U.S.C. 1319(c)-(g).

Section 505 provides for citizen enforcement of the

Act. See 33 U.S.C. 1865. As relevant here, Section

505(a)(1) provides that “any citizen may commence a

civil action on his own behalf * * * against any person

* * * who is alleged to be in violation of * * * an

effluent standard or limitation under this chapter.” 33

U.S.C. 1365(a)(1).' Section 505(b) generally bars a citi-

zen from suing until 60 days after the citizen gives

' A “citizen” means “a person or persons having an interest

which is or may be adversely affected.” CWA § 505(g), 33 U.S.C.

1365(g), and an “effluent standard or limitation” includes a state

acy “permit or condition thereef,” CWA § 505(f), 33 U.S.C.

l ).

notice of the alleged violation to EPA, the relevant

State, and the alleged violator, 33 U.S.C. 1365(b)(1)(A).

Section 505(b) also bars a citizen from suing if EPA

or the State has already commenced and is “dili-

gently prosecuting” an enforcement action. 33 U.S.C.

1365(b)(1)(B).”

Once the citizen files a suit, Section 505(c) directs

that the citizen must serve a copy of the complaint on

the Attorney General and the Administrator of EPA,

and the citizen must provide them with advance notice

of any proposed consent judgment. CWA § 505(c)(3), 33

U.S.C. 1365(c)(3). The district court is empowered to

enforce permit requirements and assess civil penalties,

which are payable to the United States Treasury. See

CWA § 505(a), 33 U.S.C. 1365(a). Furthermore, the

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 appropri-

ate.” CWA § 505(d), 33 U.S.C. 1365(d).

B. The District Court Proceedings

Laidlaw operated a hazardous waste incineration

facility in Roebuck, South Carolina. The facility in-

cluded a wastewater treatment plant that removed

pollutants from water generated by the facility’s air

pollution control system. Laidlaw discharged the

treated wastewater into the North Tyger River. In

1986, the State of South Carolina, which administers a

federally approved NPDES permit program through

2 The citizen may intervene in the government enforcement

action. See CWA § 505(b)(1)(B), 33 U.S.C. 1365(b)(1)(B). If the

United States has not filed its own action, it may intervene in the

citizen action. See CWA § 505(c)(2), 33 U.S.C. 1365(c)(2).

the State’s Department of Health and Environmental

Control (DHEC), issued a NPDES permit for Laidlaw’s

wastewater treatment plant. The NPDES permit lim-

ited Laidlaw’s discharges of numerous pollutants and

required Laidlaw to monitor and report its discharges.

In particular, the permit, at that time, limited Laidlaw

to a daily average maximum discharge of 1.3 parts per

billion (ppb) of mercury. See Friends of the Earth, Inc.

v. Laidlaw Envtl. Servs. (TOC), Inc., 956 F. Supp. 588,

593-594 (D.S.C. 1997) (Laidlaw II) (J.A. 141-143);

Friends of the Earth, Inc. v. Laidlaw Envtl. Servs.

(TOC), Inc., 890 F. Supp. 470, 475 (D.S.C. 1995) (Laid-

law I) (J.A. 86-87).

Between 1987 and 1991, Laidlaw violated the mer-

cury limitation contained in its NPDES permit 363

times. Laidlaw II, 956 F. Supp. at 600, 613-619 (J.A.

158, 185-193). Laidlaw installed additional pollution

control technology in 1991, but nevertheless violated

the mercury limitation more than 100 times in 1992. Jd.

at 595, 619-621 (J.A. 147, 193-195). On April 10, 1992,

petitioners notified Laidlaw of their intention to bring

a citizen suit under Section 505 of the CWA. Laidlaw J,

890 F. Supp. at 477 (J.A. 91). Laidlaw promptly entered

into a consent agreement with DHEC, drafted and filed

a complaint on behalf of DHEC, and sought state court

approval of the settlement. The state court approved

the settlement on June 10, 1992, the day after the

expiration of Section 505(b)’s 60-day notice period. 33

U.S.C. 1365(b). See 890 F. Supp. at 477, 478-479 (J.A.

91, 93-95). Laidlaw undertook those steps to interpose

a bar to the citizen suit under Section 505(b)’s “diligent

prosecution” provision, 33 U.S.C. 1365(b)(1)(B). See

Laidlaw I, 890 F. 2d at 478-479 (J.A. 93-94). Laidlaw

also continued to explore technology to curtail the

mercury violations. Jd. at 478 (J.A. 92-93).

On June 12, 1992, petitioners brought suit against

Laidlaw, seeking injunctive and declaratory relief and

an award of civil penalties for Laidlaw’s continuing

violations of its NPDES permit. Laidlaw raised its

“diligent prosecution” defense, and the district court

heard seven days of testimony on the matter. The

court then requested and received, through a brief

amicus curiae, the views of the United States on that

issue. The court rejected Laidlaw’s diligent prosecu-

tion defense after an extensive analysis of the sub-

stance of the settlement and the circumstances by

which it was reached. Laidlaw I, 890 F. Supp. at 484-

499 (J.A. 106-136).

The court next conducted a trial on petitioners’

complaint, but the court delayed issuance of its decision

in light of administrative proceedings respecting Laid-

law’s permit. Laidlaw II, 956 F. Supp. at 596-597 (J.A.

149). The court ultimately found that Laidlaw had

violated the permit’s mercury limitation 489 times, in-

cluding nine times after petitioners filed their com-

plaint. Laidlaw I], 956 F. Supp. at 600-601 (J.A. 158);

see also id. at 613-621 (J.A. 185-195). The court also

found that Laidlaw had committed 420 monitoring

violations, including 13 post-complaint violations, and

that Laidlaw had committed 503 reporting violations,

including ten post-complaint violations. Jd. at 600-601

(J.A. 159).

The district court evaluated the Clean Water Act’s

criteria for imposing civil penalties (CWA § 309(d), 33

U.S.C. 1319(d)), and it assessed a penalty of $405,800.

See Laidlaw IT, 956 F. Supp. at 601-610 (J.A. 159-181).

The court noted that the penalty amounted to less than

one half of the economic benefit that Laidlaw had

obtained through non-compliance, but it concluded that

the “total deterrent effect” was adequate, because

“Laidlaw will be required to reimburse [petitioners] for

a significant amount of legal fees and has, itself, in-

curred significant legal expenses.” Jd. at 610-611 (J.A.

181-182). The court refused to grant petitioners’ re-

quest for injunctive relief, reasoning that an injunction

was inappropriate because “Laidlaw has been in sub-

stantial compliance with all parameters in its NPDES

permit since at least August 1992.” Jd. at 611 (J.A. 183).

C. The Court of Appeals’ Decision

Petitioners appealed solely on the ground that the

district court’s penalty was inadequate, and Laidlaw

cross-appealed on the grounds that petitioners lacked

standing to bring the suit and that the district court

had improperly rejected Laidlaw’s diligent prosecution

defense. Pet. App. 4a. The court of appeals did not

reach any of those issues and instead concluded, after

supplemental briefing, that the case was non-justiciable

as a constitutional matter because the action had

become moot. Jd. at 5a.

The court observed that the Constitution’s “Case[ |”

or “Controvers[y]” requirement, U.S. Const. Art. III, is

enforced through the concept of standing, which re-

quires plaintiffs to demonstrate that they have suffered

an injury in fact, caused by the defendant’s action, that

can be redressed through a favorable decision. Pet.

App. 6a. The court stated that “these elements must

continue to exist at every stage of review” or else “the

action becomes moot.” Jbid. The court of appeals

specifically “focus[ed] on the continued existence of the

third element, redressability.” Jd. at 7a.’

8 The court of appeals “assume[d] without deciding that [peti-

tioners] had standing to initiate this action and have proven a

continuous injury in fact.” Pet. App. 7a n.3.

The court of appeals noted that the district court had

denied injunctive relief and, instead, assessed civil

penalties, which are payable to the United States Trea-

sury. Pet. App. 7a. Citing this Court’s decision in Stee/

Co. v. Citizens for a Better Environment, 523 U.S. 83

(1998), the court of appeals concluded that “this action

is moot because the only remedy currently available

to [petitioners]—civil penalties payable to the govern-

ment—would not redress any injury [petitioners] have

suffered.” Pet. App. 8a-9a. The court accordingly

vacated the district court’s decision and remanded with

instructions to dismiss the action. The court addition-

ally instructed that petitioners are not entitled to

recover their litigation costs because they failed to pre-

vail on the merits and therefore are not a “prevailing or

substantially prevailing party” within the meaning of

Section 505(d) of the Clean Water Act. Jd. at 9a n.5

(quoting CWA § 505(d), 33 U.S.C. 1365(d)).

SUMMARY OF ARGUMENT

The court of appeals erred in ruling that a Clean

Water Act citizen suit, brought to compel a regulated

entity to comply with its NPDES permit, must be

dismissed as moot if the district court concludes that

injunctive relief is unwarranted. The court’s ruling

rests on a mistaken understanding of the Clean Water

Act’s citizen-enforcement provisions, CWA § 505, 33

U.S.C. 1365, and this Court’s jurisprudence respecting

Article III’s case-or-controversy requirement.

A. This Court ruled in Gwaltney of Smithfield, Ltd.

v. Chesapeake Bay Foundation, Inc., 484 U.S. 49

(1987), that Section 505 authorizes citizens to bring

citizen suits to compel compliance with the Clean Water

Act, but not to sue merely to punish past violations.

The Court has since indicated in Steel Co. v. Citizens

for a Better Environment, 523 U.S. 83 (1998), that a

private citizen would lack constitutional standing to

bring a suit solely to assess civil penalties for past

infractions. In this case, petitioners commenced suit to

compel compliance from an entity that was in violation

of its permit requirements at the time the suit was

brought but that had discontinued its violations before

the court entered judgment. The question, for purposes

of Article III’s case-or-controversy requirement, is

whether petitioners’ claim for relief presented a live

controversy under the principles that this Court has

established for determining mootness.

B. This Court applies the mootness doctrine to

determine whether circumstances have changed during

the course of the litigation so as to eliminate the case or

controversy that the plaintiff had previously shown to

exist. In answering that question, the Court has

established the principle that a defendant’s mere

voluntary cessation of unlawful conduct does not moot a

case. See, e.g., City of Mesquite v. Alladin’s Castle,

Inc., 455 U.S. 283, 288-289 (1982). Instead, the defen-

dant must show that “subsequent events made it

absolutely clear that the allegedly wrongful behavior

could not reasonably be expected to recur.” Jd. at 289

n.10 (citations omitted). The Court has indicated that

those mootness principles apply to Clean Water Act

citizen suits. Gwaltney, 484 U.S. at 66-67.

C. The court of appeals erred in failing to apply the

Court’s teachings in City of Mesquite and other deci-

sions, which establish that a defendant’s mere volun-

tary cessation of unlawful conduct does not automati-

cally moot a case. The court of appeals based its deter-

mination of mootness on the fact that the district court

did not provide injunctive relief. The district court had

denied injunctive relief, however, as a matter of

remedial discretion and not because the case satisfied

this Court’s criteria for mootness. As this Court

indicated in Weinberger v. Romero-Barcelo, 456 U.S.

305 (1982), the Clean Water Act provides other reme-

dies, including civil penalties, to compel compliance.

The district court did not find that there was no reaso-

nable prospect of future violations; it therefore could

assess civil penalties, as an alternative to an injunction,

to deter future violations and redress the injuries that

prompted petitioners’ suit.

D. Because the court of appeals erred in concluding

that the district court’s decision to withhold injunctive

relief rendered petitioners’ citizen suit moot, there is no

occasion for this Court to review the court of appeals’

suggestion that a finding of mootness would preclude

petitioners from recovering their costs of litigation.

See CWA § 505(d), 33 U.S.C. 1365(d). Under this

Court’s normal practice, the case should be remanded

for resolution of the remaining issues that the court of

appeals did not reach. Although the court of appeals

appears wrong in suggesting that petitioners are not

entitled to recover their litigation costs, that matter

should be addressed, if it becomes necessary, through

the proceedings on remand.

ARGUMENT

The Court of Appeals Erred In Holding That A

Citizen Suit Must Be Dismissed As Moot Unless The

Citizen Plaintiff Obtains Injunctive Relief

The court of appeals’ ruling that petitioners’ citizen

suit is moot rests on a misunderstanding of the Clean

Water Act’s citizen-enforcement provisions and this

Court’s mootness jurisprudence. We begin by explain-

ing the content and objectives of the citizen-enforce-

ment provisions. We next address how this Court’s

mootness doctrine operates in the context of those

provisions. Finally, we show why the court of appeals

erred in holding that, because the district court denied

injunctive relief, the petitioners’ enforcement action is

moot.

A. The Clean Water Act's Citizen-Suit Provisions Author-

ize Private Judicial Actions To Compel Dischargers To

Comply With Their Discharge Permits

The Clean Water Act, like other federal environ-

mental statutes, creates a federal-state partnership for

developing environmental standards and providing for

their enforcement. Among other things, the Act pro-

hibits a facility from discharging pollutants into navig-

able waters unless the facility obtains a NPDES

permit, which, among other things, establishes limits on

the amounts of certain pollutants that may be dis-

charged. See CWA § 402(a)(1), 33 U.S.C. 1342(a)(1); 40

C.F.R. Pt. 122; pp. 2-3, supra. An NPDES permit also

typically imposes monitoring and reporting obligations,

which require the facility to measure its discharges at

prescribed times and document those measurements

through publicly available discharge monitoring reports

(DMRs). See CWA § 402(a)(2), 33 U.S.C. 1342(a)(2); 40

C.F.R. 122.41()) and (J).

* In the proceedings below, Laidlaw also contested petitioners’

standing to bring suit. Like the court of appeals (see note 3,

supra), we assume, for purposes of resolving the mootness ques-

tion, that Laidlaw’s permit violations have caused petitioners in-

jury in fact. See Arizonans for Official English v. Arizona, 520

U.S. 43, 66-67 (1997) (courts may assume that standing exists to

resolve whether a case has nevertheless become moot). If the

Court concludes that petitioners’ suit is not moot, the issue of

petitioners’ standing would be resolved on remand. See pp. 28-30,

infra.

Like most States, South Carolina has obtained EPA’s

approval to issue and enforce NPDES permits. See

CWA § 309(b) and (c), 33 U.S.C. 1342(b) and (c); 40

C.F.R. 123.1 et seg. EPA, as well as the issuing state

agency, may enforce a state-issued NPDES permit.

See CWA §§ 309(a), 402(b)(7), 33 U.S.C. 1319(a),

1342(b)(7). Congress and state legislatures have em-

powered those governmental entities to call upon a

variety of mechanisms—including administrative penal-

ties, judicial injunctions and civil penalties, and criminal

sanctions—to compel a facility to comply with its

permit and to punish permit violations. See CWA

§ 309(a)-(g), 33 U.S.C. 1319(a)-(g); see also 40 C.F.R.

123.27. Nevertheless, Congress has recognized, in light

of the sheer size of a water pollution program requiring

a permit for every point-source discharge in the Nation,

that the federal and state governments cannot ade-

quately enforce the NPDES permit program without

citizen cooperation and assistance. Congress accord-

ingly enacted Section 505 of the Clean Water Act,

which empowers citizens who are adversely affected by

permit violations to bring civil enforcement actions to

compel compliance. See 33 U.S.C. 1365.

This Court ruled in Gwaltney of Smithfield, Ltd. v.

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

that Section 505 allows citizens to commence citizen

suits to compel compliance with the Clean Water Act,

but not to sue merely to punish past infractions. The

Court reasoned that Section 505(a)(1), which authorizes

a citizen to sue persons “alleged to be in violation” of

permit requirements (33 U.S.C. 1365(a)(1)), allows the

citizen to commence suit in response to “a state of

either continuous or intermittent violation—that is, a

reasonable likelihood that a past polluter will continue

to pollute in the future.” 484 U.S. at 57. But the citizen,

unlike the federal or state government, may not bring

suit simply to assess civil penalties for “wholly past

violations.” Jbid. The citizen “may seek civil penalties

only in a suit brought to enjoin or otherwise abate an

ongoing violation.” Jd. at 59.

This Court’s decision in Gwaltney rested on a deter-

mination that Congress intended to authorize citizens

to initiate suit only to abate violations and compel com-

pliance. See 484 U.S. at 59-63. The Court has since

indicated in Steel Co. v. Citizens for a Better Environ-

ment, 523 U.S. 83 (1998), a case involving the citizen-

suit provisions of the Emergency Planning and Com-

munity Right-To-Know Act of 1986 (EPCRA), 42

U.S.C. 11046(a)(1), that a citizen plaintiff would lack

constitutional standing to bring a citizen suit solely to

assess civil penalties (payable to the government) for

wholly past violations. The citizen plaintiffs in Steel Co.

brought a citizen suit against an industrial facility that

had violated EPCRA’s requirements but came into

compliance before the citizens filed their complaint.

The citizens argued that their suit could nevertheless

proceed because EPCRA, unlike the Clean Water Act,

authorized citizens to obtain a judicial assessment of

civil penalties for past infractions. See 523 U.S. at 86-

88. The Court ruled that, even if EPCRA authorized a

citizen to sue for wholly past violations, the citizens’

suit must be dismissed because the citizens lacked

Article III standing to seek relief that does not redress

a cognizable “injury in fact” to the citizens. Jd. at 102-

110.

The Court explained that “the irreducible constitu-

tional minimum of standing” consists of the “triad of

injury in fact, causation, and redressability,” which

“constitutes the core of Article III’s case-or-contro-

versy requirement.” 523 U.S. at 102-104. A citizen

plaintiff that simply seeks civil penalties to punish the

defendant for past infractions cannot satisfy the

redressability requirement because, in that situation, a

payment of civil penalties to the United States Trea-

sury does not redress any injury that the citizen

suffered from the defendant’s past conduct. /d. at 106-

107. The Court expressed no doubt that the federal or

state governments could bring suit to punish past

violations, but a private citizen could not sue to impose

civil penalties unless that relief “would likely remedy

its alleged injury in fact.” Jd. at 109.

In this case, unlike Gwaltney and Steel Co., it is clear

that, even after the citizen plaintiffs filed suit, the

defendant continued to violate environmental require-

ments. Compare Laidlaw I], 956 F. Supp. at 600-601

(J.A. 158), with Steel Co., 523 U.S. at 88, and Gwaltney,

484 U.S. at 55. Nevertheless, the district court found

that, within two months after petitioners filed their

complaint, Laidlaw was in “substantial compliance.”

956 F. Supp. at 611 (J.A. 183). The district court as-

sessed civil penalties and attorneys fees to “provide

adequate deterrence under the circumstances of this

case,” ibid. (J.A. 182), but it refused to issue an “injunc-

tion or other form of equitable relief” in light of “the

fact that Laidlaw is now and has for an extended period

of time been in compliance with its permit,” ibid. (J.A.

183).

The court of appeals concluded that the district

court’s refusal to provide injunctive relief had critical

constitutional implications. It ruled, based on an extra-

polation of this Court’s decision in Steel Co., that the

district court’s denial of petitioners’ request for an

injunction rendered this case constitutionally moot and

prohibited the district court from assessing civil penal-

ties. Pet. App. 7a-9a. As we next explain, the court’s

ruling overlooks established principles that guide how

the mootness doctrine should be applied in this case.

B. A Defendant's Voluntary Cessation Of Permit Viola-

tions Does Not Moot A Citizen Suit Unless The

Defendant Demonstrates That The Permit Violations

Will Not Recur

The constitutional doctrines of standing and moot-

ness each originate from Article III’s specification that

the “judicial Power” extends only to “Cases” or “Con-

troversies.” U.S. Const. Art. III, § 2. The doctrine of

standing requires a court to ascertain that a plaintiff

has demonstrated an “injury in fact,” caused by the

defendant’s allegedly unlawful action, that can be

redressed through the requested relief. See, e.g., Steel

Co., 523 U.S. at 102-104; Lujan v. Defenders of Wildlife,

504 U.S. 555, 559-560 (1992). The doctrine of mootness,

by contrast, requires a court to discontinue its exercise

of judicial power if it determines that a live case or

controversy no longer exists in light of changed cir-

cumstances. See Arizonans for Official English v.

Arizona, 520 U.S. 48, 67 (1997); County of Los Angeles

v. Davis, 440 U.S. 625, 631 (1979).

The doctrines of standing and mootness are closely

related because each inquires into the existence of an

Article III case or controversy. See, e.g., Allen v.

Wright, 468 U.S. 737, 750 (1984). Indeed, this Court has

suggested that mootness might be described as “‘the

doctrine of standing set in a time frame: The requisite

personal interest that must exist at the commencement

of the litigation (standing) must continue throughout its

existence (mootness).’” Arizonans for Official English,

520 U.S. at 68 n.22 (quoting United States Parole

Comm'n v. Geraghty, 445 U.S. 388, 397 (1980), and

Henry P. Monaghan, Constitutional Adjudication: The

Who and When, 82 Yale L. J. 1363, 1384 (1973)). Nev-

ertheless, the Court has treated the doctrines of stand-

ing and mootness as separate jurisdictional concepts

and subjected them to different standards because of

the distinct role that each plays, as a practical matter,

in the conduct of litigation.

The Court applies the doctrine of standing as a

threshold jurisdiction requirement that a plaintiff must

normally satisfy to invoke the federal judicial power.

See Steel Co., 523 U.S. at 88-89. Because Article III’s

case-or-controversy requirement subsists “through all

stages of federal judicial proceedings,” Lewis v. Con-

tinental Bank Corp., 494 U.S. 472, 477 (1990), the

plaintiff must be prepared to establish the requisites of

injury in fact, causation, and redressability at each

juncture where they may be called into question. The

plaintiff must allege sufficient facts in the complaint to

demonstrate standing. And if those allegations are

disputed, the plaintiff must be prepared to come for-

ward with sufficient evidence to withstand a motion for

summary judgment and to prove those facts at trial.

See, e.g., Lujan v. Defenders of Wildlife, 504 U.S. at

561; Lujan v. National Wildlife Fed’n, 497 U.S. 871,

883-889 (1990); Gladstone, Realtors v. Village of Bell-

wood, 441 U.S. 91, 114-115 & n.31 (1979).

The Court applies the doctrine of mootness to assess

. whether circumstances have changed during the course

of the litigation so as to eliminate the case or contro-

versy that the plaintiff had previously shown to exist.

See Arizonans for Official English, 520 U.S. at 67-68.

In general, “a case is moot when the issues presented

are no longer ‘live’ or the parties lack a legally cogniza-

ble interest in the outcome.” E.g., County of Los

Angeles, 440 U.S. at 631. A dispute may become moot

as a result of changes in the underlying facts, see, e.g.,

Mosley v. United States, 119 S. Ct. 484 (1998) (per

curiam) (death of the defendant mooted review of his

criminal conviction); Vitek v. Jones, 436 U.S. 407 (1978)

(grant of parole may moot prisoner’s challenge to

conditions of confinement), or the controlling law, see,

e.g., United States v. Chesapeake & Potomac Tel. Co.,

516 U.S. 415, 416 (1996) (per curiam) (vacating decision

for determination of mootness); see also United States

Dep't of Justice v. Provanzano, 469 U.S. '4.(1984) (con-

gressional enactment mooted one issue but not the

entire case).

The application of mootness principles frequently

calls for a practical assessment of whether a case or

controversy persists in light of the particular facts at

hand. See, e.g., Murphy v. Hunt, 455 U.S. 478, 482

(1982) (evaluating whether challenged conduct is

“capable of repetition, yet evading review”); Geraghty,

445 U.S. at 400 (noting, in the class action context,

the “flexible character of the Article III mootness

doctrine”); see also Honig v. Doe, 484 U.S. 305, 331

(1988) (Rehnquist, C.J., concurring). See generally

Robert L. Stern, et al., Supreme Court Practice 710-721

(7th ed. 1993) (collecting cases and secondary sources).

The Court has applied mootness principles in a practical

manner when defendants facing injunctive remedies

urge that their voluntary cessation of allegedly unlaw-

ful actions renders the case moot. This Court has

repeatedly and emphatically rejected the notion that

“voluntary cessation” of the challenged conduct auto-

matically deprives a court of the power to order relief.

See, e.g., City of Mesquite v. Aladdin’s Castle, Inc., 455

U.S. 283, 288-289 (1982); United States v. Concentrated

Phosphate Export Ass’n, 393 U.S. 199, 203 (1968);

United States v. W.T. Grant Co., 345 U.S. 629, 632

(1953).

The Court’s decisions have established the hornbook

principle that “[mJere voluntary cessation of allegedly

illegal conduct, or a statement by the defendant that it

would be uneconomical to engage in any furt)or

questioned behavior, does not render moot a suit for an

injunction if it is possible for the defendant to resume

such conduct.” Stern, supra, at 716; see id. at 716 n.21

(collecting cases). As the Court has explained:

“Mere voluntary cessation of allegedly illegal con-

duct 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.’”

City of Mesquite, 455 U.S. at 289 n.10 (quoting Con-

centrated Phosphate Export Ass’n, 393 U.S. at 203, and

W.T. Grant Co., 345 U.S. at 632). Rather, “[tJhe test for

mootness in cases such as this is a stringent one.” /bid.

The defendant must show that “subsequent events

made it absolutely clear that the allegedly wrongful

behavior could not reasonably be expected to recur.”

Ibid. (quoting Concentrated Phosphate Export Ass'n,

393 U.S. at 203). Accord W.T. Grant Co., 345 U.S. at

633 (the defendant bears the “heavy” burden of

demonstrating that “there is no reasonable expectation

that the wrong will be repeated”).

The Court has explained that voluntary cessation “is

an important factor bearing on the question whether a

court should exercise its power to enjoin the defendant

from renewing the practice, but that is a matter

relating to the exercise rather than the existence of

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

Accord Concentrated Phosphate Export Ass’n, 393 U.S.

at 203-204 (a defendant is entitled to show “that the

likelihood of further violations is sufficiently remote to

make injunctive relief unnecessary”) (citing W.T. Grant

Co., 345 U.S. at 636). “It is the duty of the courts to be-

ware of efforts to defeat injunctive relief by pro-

testations 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). Neverthe-

less, the determination of whether injunctive relief is

warranted is a matter within the trial court’s discretion.

City of Mesquite, 455 U.S. at 289 n.10.

This Court has recognied that the foregoing princi-

ples governing mootness are directly applicable to

Clean Water Act citizen suits. See Gwaltney, 484 U.S.

at 66-67 (quoting Concentrated Phosphate Export

Ass’n, W.T. Grant Co., and Oregon State Med. Soc’y,

supra). The court of appeals erred in this case by

failing to take those principles into account. Specifi-

cally, the court of appeals incorrectly concluded that the

district court’s discretionary decision to withhold

injunctive relief in the face of Laidlaw’s post-complaint

cessation of its permit violations necessarily rendered

petitioners’ enforcement action moot.

C. A Court’s Decision To Withhold Injunctive Relief Does

Not Constitute A Finding That The Discharger’s Viola-

tions Will Not Recur

The court of appeals concluded that petitioners’

citizen suit was necessarily moot because the district

court refused to grant an injunction in light of Laidlaw’s

cessation of its permit violations and “the only remedy

currently available to [petitioners]|—civil penalties pay-

able to the government—would not redress any injury

[petitioners] have suffered.” Pet. App. 8a-9a. The

court of appeals’ exclusive focus on what relief the

citizen received departs from the methodology that

courts normally apply in analyzing mootness. More-

over, even if the court of appeals’ methodology were

proper, its analysis overlooks the relationship between

injunctive relief and civil penalties under the Clean

Water Act, which would be an essential consideration in

evaluating whether petitioners’ citizen suit against

Laidlaw is indeed moot.*

The court of appeals should have begun by applying

this Court’s teachings that a defendant’s voluntary

cessation of unlawful conduct does not automatically

moot a case. See pp. 15-19, supra. Indeed, under those

principles, Laidlaw was required to “demonstrate that

it is ‘absolutely clear that the allegedly wrongful

behavior could not reasonably be expected to recur.’”

Gwaltney, 484 U.S. at 66 (quoting Concentrated Phos-

phate Export Ass’n, 393 U.S. at 203) (emphasis added

by the Court in Gwaltney).

The district court did not treat petitioners’ claims

against Laidlaw as moot. It apparently saw no need to

invoke the foregoing mootness principles, and it did not

make specific findings on the question whether it was

clear that Laidlaw’s permit violations could not rea-

® The courts of appeals, other than the Fourth Circuit, have

concluded under various rationales that a citizen plaintiff who

proves that the defendant was in violation of a NPDES permit at

the time of suit may obtain civil penalties to deter future viola-

tions, even if the violations by that time ceased. See Comfort Lake

Ass'n v. Dresel Contracting, Inc., 138 F.3d 351, 356 (8th Cir. 1998);

Atlantic States Legal Found., Inc. v. Stroh Die Casting, Inc., 116

F.3d 814, 820 (7th Cir. 1997); Natural Resources Defense Council

v. Texaco Refining & Marketing, Inc., 2 F.3d 493, 502 (3d Cir.

1993); Atlantic States Legal Found., Inc. v. Pan Am. Tanning, 993

F.2d 1017, 1020-1021 (2d Cir. 1993); Atlantic States Legal Found.,

Inc. v. Tyson Foods, Inc., 897 F.2d 1128, 1135-1136 (11th Cir. 1990);

Pawtuxet Cove Marina, Inc. v. Ciba-Geigy Corp., 807 F.2d 10839,

1094 (1st Cir. 1986). See also Carr v. Alta Verde Indus., Inc., 931

F.2d 1055, 1065 n.9 (5th Cir. 1991) (dictum).

sonably be expected to recur. The district court did

deny petitioners’ request for injunctive relief, which

would have gone beyond a simple prohibitory injunction

and imposed special reporting obligations. Laidlaw I],

956 F. Supp. at 611 (J.A. 182-183). But the court denied

injunctive relief as a matter of equitable discretion,

treating Laidlaw’s compliance history as a factor bear-

ing on the exercise of that discretion. Jbid. (J.A. 182-

183). Specifically, the court 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.” Jbid. (J.A. 182-183). The court con-

cluded that “the fact that Laidlaw is now and has for an

extended time been in compliance with its permit”

supported its decision that “no injunction or other form

of equitable relief is appropriate.” /bid. (J.A. 183).

The district court’s statements respecting the appro-

priateness of equitable relief do not provide what a

determination of mootness would require: a definitive

finding that it is absolutely clear there is no reasonable

prospect that Laidlaw would repeat its violations. See

Gwaltney, 484 U.S. at 66-67. A district court can prop-

erly conclude that the prospect of recurrence is not so

small as to moot a case, but is sufficiently unlikely to

warrant denial of injunctive relief. See, e.g., W.T. Grant

Co., 345 U.S. at 633, 635-636 (“although the actions

were not moot, no abuse of discretion has been demon-

strated in the trial court’s refusal to award injunctive

relief”); see generally City of Mesquite, 455 U.S. at 289.

Indeed, that is what the district court apparently con-

cluded here. The court imposed civil penalties ex-

pressly to “provide adequate deterrence” of future

violations. Laidlaw II, 956 F. Supp. at 610-611 (J.A.

181-182). But it nevertheless denied injunctive relief,

stating that Laidlaw need not demonstrate “no chance

of a future permit violation” to defeat petitioners’ re-

quest for an injunction. Jd. at 611 (J.A. 183).

We believe that the district court’s actions demon-

strate its understanding that petitioners’ citizen suit

continued to present a live controversy under the

standards set out in Gwaltney. But if the court of

appeals nevertheless believed that Laidlaw’s “volun-

tary” compliance, by itself, may have eliminated any

reasonable prospect of future violations, then the court

of appeals should have remanded the case to the district

court for an express finding on that matter. See, e.g.,

Vitek, 436 U.S. at 410 (remanding case to the district

court for consideration of the question of mootness);

McLeod v. General Elec. Co., 385 U.S. 533, 535 (1967)

(directing that “the District Court should determine in

the first instance the effect of an intervening event

upon the appropriateness of injunctive relief”); Stern,

supra, at 257. The court of appeals should not have

based a determination of mootness on the mere fact

that the district court imposed civil penalties but did

not provide injunctive relief.

A district court does not necessarily transgress Arti-

cle III’s case-or-controversy limitation by resolving a

Clean Water Act citizen suit through the imposition of

civil peralties as the sole form of relief. A citizen who is

aggrieved by permit violations has standing to sue to

enforce the permit and thereby abate those violations.

See Gwaltney, 484 U.S. at 65-66; id. at 70 (Scalia, ‘J.,

concurring in part and dissenting in part). The citizen

may obtain enforcement through an injunction that

compels compliance. See CWA § 505(a), 33 U.S.C.

1365(a); W.T. Grant Co., 345 U.S. at 633 (“The purpose

of an injunction is to prevent future violations.”). But

as this Court explained in Weinberger v. Romero-

Barcelo, 456 U.S. 305 (1982), the Clean Water Act does

not employ injunctions as “the only means of ensuring

compliance.” Jd. at 314.

In Romero-Barcelo, citizens demanded an injunction

to abate government discharges of ordnance, which

qualified as a pollutant under the Clean Water Act.

This Court concluded that the Clean Water Act does

not “deny courts the discretion to rely on remedies

other than an immediate prohibitory injunction.” 456

U.S. at 316. Rather, the Court concluded that the Clean

Water Act gives a court discretion to choose relief “that

will achieve compliance with the Act.” Jd. at 318. That

relief “can include, but is not limited to, an order of

immediate cessation.” /d. at 320. As Section 505(a)

makes clear, a citizen may ask the district court to

“apply any appropriate civil penalties under [Section

309(d), 33 U.S.C. 1319(d)}” to deter future violations.

33 U.S.C. 1365(a). See Romero-Barcelo, 456 U.S. at

314.

The court of appeals concluded that the district

court’s award of civil penalties, without an injunction,

dictated that the case was moot, because civil penalties

—which are payable to the Treasury—“would not

redress any injury [petitioners] have suffered.” Pet.

App. 9a. The court of appeals overlooked that peti-

® Section 309(d) sets forth standards for a district court to

apply in assessing civil penalties in government enforcement

actions. It directs that the court may impose a maximum penalty

of $25,000 per day of violation and that, when assessing the pen-

alty, the court shall consider “the seriousness of the violation or

violations, the economic benefit (if any) resulting from the viola-

tion, any history of such violations, any good-faith efforts to comply

with the applicable requirements, the economic impact of the

penalty on the violator, and such other matters as justice may

require.” 33 U.S.C. 1319(d).

tioners brought this citizen suit to compel Laidlaw to

cease permit violations that, at the time the suit was

filed, were allegedly causing petitioners injury in fact.

If Laidlaw had failed to meet its “heavy” burden of

showing that “there is no reasonable expectation that

the wrong will be repeated,” Gwaltney, 484 U.S. at 66,

then the citizen suit was not moot, and the district court

could impose relief to ensure future compliance. As this

Court indicated in Romero-Barcelo, the court was

entitled to employ civil penalties, rather than an injunc-

tion, to deter future violations and ensure continued

compliance. See 456 U.S. at 314. It would deny that

flexibility and exalt form over substance to require the

district court to add a pro forma injunction order in

order to avoid mootness.

By authorizing citizens to seek civil penalties, Con-

gress intended to provide citizens with an additional

means of compelling compliance through the specific

deterrent force of a monetary sanction. Cf. Albemarle

Paper Co. v. Moody, 422 U.S. 405, 417 (1975) (“If [viola-

tors] faced only the prospect of an injunctive order,

they would have little incentive to shun practices of

dubious legality.”). As this Court recognized in Gwalt-

ney, the primary function of the citizen-suit provisions

is to compel compliance with the law, 484 U.S. at 59-63,

and it is therefore reasonable to conclude that Congress

provided for “appropriate civil penalties” (33 U.S.C.

1365(a)) in citizen suits specifically to facilitate that

objective. Congress empowered the government to

seek civil penalties to punish wrongful conduct as well

as to deter future violations, both of which are proper

government objectives. Tull v. United States, 481 U.S.

412, 422-423 (1987). Congress’s authorization of civil

penalties in citizen suits, however, is properly viewed

as limited to the “forward-looking” objective of deter-

ring the defendant from further non-compliance.

Gwaltney, 484 U.S. at 59. *

Civil penalties are an effective “forward-looking”

remedy because a coercive monetary sanction allows

the court to compel compliance through a mechanism

that directly removes the economic incentives that

could induce a defendant “to return to his old ways.”

City of Mesquite, 455 U.S. at 289 n.10. The coercive

effect of that sanction can be calibrated to respond to

the likelihood of future violations. The district court in

this case expressly applied civil penalties in that

manner for the specific purpose of deterrence. See

Laidlaw IT, 956 F. Supp. at 610-611 (J.A. 181-182). In-

deed, the lower courts, which have practical experience

with the effectiveness of particular remedies, have

concluded that civil penalties are an effective deterrent

for Clean Water Act violations. See, eg., Natural

Resources Defense Council, Inc. v. Southwest Marine,

Inc., 28 F. Supp. 2d 584 (S.D. Cal. 1998); see also

Natural Resources Defense Council, Inc. v. Texaco

Refining & Marketing, Inc., 2 F.3d 493, 503 n.9 (3d Cir.

1993).

7 Congress drafted Section 309(d)’s standards for assessing civil

penalties (see note 6, supra) with deterrence of violations specifi-

cally in mind. Section 309(d) makes express reference to setting

penalties in light of the “the economic benefit (if any) resulting

from the violation.” 33 U.S.C. 1319(d). Congress drew that factor,

as well as others, from EPA's pre-existing civil penalty policy. See

Tull, 481 U.S. at 422 n.8. EPA's policy expressly stated that a core

objective of civil penalties is to deprive the defendant of the

economic benefit of the violation in order to provide effective

deterrence. See EPA Civil Penalty Policy (1984), reprinted in

Implementation of the Federal Clean Water Act: Hearings on

H.R. 81 Before the Subcomm. on Investigations and Oversight of

the House Comm. on Public Works and Transp., 98th Cong., 2d

Sess. 531, 536 (1984).

The civil penalty remedy is also a useful alternative

to an injunction because, if the court concludes that an

assessment of civil penalties will effectively deter

future violations, then the court will not need to engage

in the potentially cumbersome role of supervising the

defendant’s future compliance through an ongoing

injunction. In addition, if the defendant knows that-it

faces the prospect of civil penalties as well as an injunc-

tion, it will not have an incentive to engage in “dilatory

tactics” to prolong the litigation in the hope of eliminat-

ing the need for an injunction and then claiming that

the citizen’s claim for assessment of the accumulated

civil penalties is moot. See Atlantic States Legal

Found., Inc. v. Pan Am. Tanning, 993 F.2d 1017, 1021

(2d Cir. 1993); see also Comfort Lake Ass’n v. Dresel

Contracting, Inc., 1388 F.3d 351, 356 (8th Cir. 1998);

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

897 F.2d 1128, 1137 (11th Cir. 1990). Civil penalties, as

an alternative to an injunction, would continue to be

available unless it is “absolutely clear that the allegedly

wrongful behavior could not reasonably be expected to

recur.” Gwaltney, 484 U.S. at 66.

The court of appeals accordingly erred in inferring

from the district court’s decision to limit petitioners’

relief to civil penalties that petitioners’ suit was moot.

If this case were truly like Steel Co., and petitioners

had brought suit simply to seek imposition of civil

penalties for past violations, then they would lack

standing, because punishing pre-complaint conduct, dis-

continued before the suit began, would not redress any

cognizable injury to petitioners that could provide the

basis for the suit. See 523 U.S. at 106. But this case

differs crucially from Steel Co. because petitioners

brought suit to abate Laidlaw’s ongoing environmental

violations, Laidlaw was in a state of non-compliance

when the suit was filed, Laidlaw failed to demonstrate

that its voluntary cessation had left no reasonable pros-

pect of future violations, and petitioners were therefore

entitled to seek a remedy that would adequately ensure

future compliance. The civil penalties, which the court

expressly levied to deter future violations, were an

appropriate judicial means to that end. Cf. Hewitt v.

Helms, 482 U.S. 755, 761 (1987).

Here, unlike the situation in Steel Co., petitioners had

more than merely a “generalized interest in deter-

rence.” 523 U.S. at 108. Instead, petitioners had the

same Article III interest as one who seeks an injunction

or declaratory judgment to curtail “a continuing viola-

tion or the imminence of a future violation.” bid. Peti-

tioners sought to deter violations that caused them, and

would in the future cause them, injury in fact. See

Hewitt, 482 U.S. at 761 (“The real value of the judicial

pronouncement—what makes it a proper judicial

resolution of a ‘cause or controversy’ rather than an

advisory opinion—is in the settling of some dispute

which affects the behavior of the defendant towards the

plaintiff.”). The relief the district court awarded—civil

penalties calibrated to “provide adequate deterrence

under the circumstances of this case” (Laidlaw II, 956

F. Supp. at 611 (J.A. 182))—was designed to redress

that specific interest by compelling compliance. Peti-

tioners accordingly had the requisite adversarial

posture, arising from their concrete interest in abating

those violations, to satisfy the requirements of Article

III. See Baker v. Carr, 369 U.S. 186, 204 (1962).*

8 In its brief in opposition, Laidlaw indicated that it closed the

facility after the district court assessed civil penalties. Br. in Opp.

1 n.1. We note that Laidlaw’s decision to close the facility after

receiving a penalty assessment designed to deter future violations

D. The Court of Appeals’ Judgment Should Be Vacated

And The Case Remanded For Further Proceedings,

Including Appropriate Proceedings Respecting Peti-

tioners’ Entitlement To Litigation Costs

For the foregoing reasons, we submit that the court

of appeals erred in concluding that the district court’s

determination not to award injunctive relief rendered

this case moot. If the Court agrees, then there will be

no occasion to reach the question whether citizens may

recover litigation costs if the citizen action becomes

moot as a consequence of the defendant’s cessation of

its unlawful conduct. Under this Court’s normal prac-

tice, the case will be remanded for resolution of the

remaining issues that the court of appeals did not reach,

including the question of petitioners’ standing.

The question of attorneys’ fees can be addressed once

the litigation has run its course. We nevertheless ob-

serve that there is good reason to question the court of

appeals’ dictum that “[petitioners’] failure to obtain

relief on the merits of their claim precludes any re-

covery of attorneys’ fees or litigation costs because such

an award is available only to a ‘prevailing or sub-

stantially prevailing party.’” Pet. App. 9a n.5. This

Court indicated in Gwaltney that citizens would be

entitled to recover litigation costs for suits that “result

in successful abatement but do not reach a verdict.”

484 U.S. at 67 n.6 (quoting S. Rep. No. 414, 92 Cong., 2d

Sess. 81 (1971)). At the time of that suit, Section 505(d)

of the Clean Water Act authorized courts to award

would not provide a basis for setting aside the civil penalty

assessment as moot. Cf. United States Bancorp Mortgage Co. v.

Bonner Mall Partnership, 513 U.S. 18, 24-25 (1994) (“The judg-

ment is not unreviewable, but simply unreviewed by [the losing

party’s] own choice.”).

attorneys’ fees “whenever the court determines such

award is appropriate.” 33 U.S.C. 1365(d) (1982). Con-

gress ras since revised Section 505(d) to allow an award

of litigation costs “to any prevailing or substantially

prevailing party, whenever the court determines such

award is appropriate.” 33 U.S.C. 1365(d). The amend-

ment, which prohibits a court from awarding fees to a

losing party, does not appear to restrict the court’s

power to award fees to a citizen who can show that the

suit prompted the defendant to come into compliance.

The Court has previously indicated, in connection

with other federal statutes that authorize “prevailing

parties” to recover attorneys’ fees, that a plaintiff

whose suit induces the defendant to comply with the

law voluntarily is a “prevailing party.” For example,

the Court stated in Hewitt, supra, a case arising under

42 U.S.C. 1983, that “[i]t is settled law, of course, that

relief need not be judicially decreed in order to justify a

fee award under [42 U.S.C.] 1988.” 482 U.S. at 760.

The Court explained:

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

monetary settlement or 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.

Id. at 760-761. See also Maher v. Gagne, 448 U.S. 122,

129 (1980) (“for purposes of the award of counsel fees

[under 42 U.S.C. 1988], parties may be considered to

have prevailed when they vindicate rights through a

consent judgment or without formally obtaining relief”)

(quoting S. Rep. No. 1011, 94th Cong., 2d Sess. 5

(1976)).

The Court’s decision in Farrar v. Hobby, 506 U.S. 108

(1992), which states that, “to qualify as a prevailing

party, a civil rights plaintiff must obtain at least some

relief on the merits of his claim,” id. at 111, does not

repudiate the reasoning in Hewitt and Maher. A

plaintiff prevails on the “merits of his claim” if a court

finds that the defendant, in direct response to the

plaintiffs suit, has altered his behavior in a way that

renders the claim moot as a matter of law. See Hewitt,

482 U.S. at 761 (“In all civil litigation, the judicial

decree is not the end but the means.”).

CONCLUSION

The judgment of the court of appeals should be

vacated and the case remanded for further proceedings.

Respectfully submitted.