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

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0244%3A16

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2000
- **Citation:** 528 U.S. 167

## Text

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
v.

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

10

A. The Clean Water Act’s citizen-suit provisions
authorize private judicial actions to compel
dischargers to comply with their discharge

ll

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

15

C. Acourt’s decision to withhold injunctive
relief does not constitute a finding that the
discharger’s violations will not recur

19

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)

IV

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
30

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)

Vv
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

VI
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

v.

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)

2

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-

3

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 ).

4

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).

5

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).

6

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

7

“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.

8

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

9

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

10

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

11

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.

12

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,

|

13

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

14

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

15

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

16

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.,

17

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).

18

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

19

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-

20

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).

21

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,

22

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-

23

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).

24

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

27

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.”).

29

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”)

30

(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.

SETH P. WAXMAN
Solicitor General

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

MAY 1999

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0244%3A16. Public record. Not legal advice.