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

Supreme Gourt, U.&

FILED

ig } MAY 17 1999

No. 98-822 CLERK

IN THE

Supreme Court of the United States

FRIENDS OF THE EARTH, ef ai.,

Petitioners,

L 2

LAIDLAW ENVIRONMENTAL SERVICES (TOC), INC.,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Fourth Circuit

BRIEF AMICUS CURIAE OF

AMERICANS FOR THE ENVIRONMENT

IN SUPPORT OF PETITIONERS

JOHN D. ECHEVERRIA*

JON T. ZEIDLER

ENVIRONMENTAL POLICY PROJECT

GEORGETOWN UNIVERSITY

LAW CENTER

600 New Jersey Avenue, N.W.

Washington, DC 20001

(202) 662-9851

*Counsel of Record for Amicus Curiae

Americans for the Environment

22%

TABLE OF AUTHORITIES

STATEMENT OF INTEREST

SUMMARY OF ARGUMENT

ARGUMENT

I

II.

Il.

i

TABLE OF CONTENTS

The Anti-Majoritarian Theory Underlying

Modern Environmental Standing Decisions

Ignores the Realities of the American Political

BE 4 dace Dee eee ae

The Clean Water Act Citizen Suit Provision

Represents a Legitimate Congressional Response

to the Danger of Undue Influence By the

Regulated Community On the Implementation of

Federal Environmental Law ............

Article II] of the Constitution Mandates

Judicial Respect for, Rather than Judicial

Abrogation of, Citizen Suit Provisions .....

es PTET ETT eee

a Se Ot ew a om ae et ley ie ee

1]

ii

TABLE OF AUTHORITIES

Page

CASES:

Bennett v. Spear, 520 U.S. 154 (1997)... 2... 6. ee. 5

Coleman v. Miller, 307 U.S. 433 (1939) .......... 16

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

Eee ee 15, 16, 17

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

0 Ge ea ee ee 3, 4, 5, 17

Lujan v. National Wildlife Federation, 497 U.S. 871

ee er ee ae 5

Steel Company v. Citizens for a Better Environment, 118

i PPD cwsccencetececsvcvess 5,17

STATUTES:

MR Ee ee se eee ee 17

LEGISLATIVE MATERIALS:

S. Rep. No. 91-1196, 91" Cong., 2d Sess. (1970) . 13

Senate Consideration of the Report of the Conference

Committee, 93% Cong., 1* Sess. reprinted in

LEGISLATIVE HISTORY OF THE WATER POLLUTION

CONTROL ACT AMENDMENTS OF 1972, Vol. Il

(Senate Public Works Comm. Print 1973)....... 13

MISCELLANEOUS

Ackerman, Bruce A., Beyond Carolene Products, 98

Harv. L. Rev.7i3 (1SGS) .. 0. eee wees 8

ee ere tere

ill

Table of Authorities (continued)

Page

Blumm, Michael C., Public Choice Theory and the

Public Lands: Why "Multiple Use" Failed, 18 Harv.

Envtl. L. Rev. 405(1994) ................., 12

Buzbee, William W., Expanding the Zone, Tilting the

Field: Zone of Interests and Article Ill Standing

Analysis After Bennett v. Spear, 49 Admin. L. Rev.

tS tach tie Dak eas & anole Wie w eis 15

Casey, Dion, Note, Agency Capture: The USDA's

Struggle to Pass Food Safety Regulations, 7 Kansas

J. Law & Pub. Pol. 142 (1998). ............. 12

Center for Responsive Politics, Political Action

Committees (1999) << www.opensecrets.org/pacs/> 9

Elliot, E. Donald, et. al., Toward a Theory of Statutory

Evolution: The Federalization of Environmental Law,

1 J. L. Econ. & Org. 313 (1985) .......... 7, 10

Farber, Daniel A., Politics and Procedure in Environmental

Law, 8 J. L. Econ & Org. 60 (1992) ...... 9, 10, 15

Johnson, Paul E., /nterest Group Recruiting: Finding

Members and Keeping Them, in INTEREST GROUP

POLITics (Alan J. Cigler & Burdett A. Loomis eds. ,

«hace bueusenneeekitedenkeansees 7

SE 5666046 449:546060bndeRAKee Ree 7

Macey, Jonathan R., Promoting Public-Regerding

Legislation Through Statutory Interpretation: An

Interest Group Model, 86 Colum. L. Rev. 223

PE ose ee edn éounkuewie se we ees 6,7, 8,9

iV

Table of Authorities (continued)

Page

Noll, Roger G. & Bruce M. Owen, THE POLITICAL

ECONOMY OF DEREGULATION: INTEREST GROUPS IN

THE REGULATORY PROCESS (1983) ........... 9

Olson, Mancur, THE LOGIC OF COLLECTIVE ACTION

Dt «seas deeseas aces baeavusesabe 6, 7,8

Percival, Robert V., ef. al., ENVIRONMENTAL

REGULATION: LAW, SCIENCE AND POLicy (1996) . . 13

Scalia, Antonin, The Doctrine of Standing as an Essential

Element of the Separation of Powers, 17 Suffolk U.

Ss 5 Be £FRPPrrrrrrrrrere 4,5, 11

Schlozman, Kay L. & John T. Tierney,

ORGANIZED INTERESTS AND AMERICAN DEMOCRACY

PTT TTT CTT TT Te 7,9, 12

Stewart, Richard B., The Reformation of American

Administrative Law, 88 Harv. L. Rev. 1667 (1975) . 12

Sunstein, Cass R., What’s Standing After Lujan? Of

Citizen Suits, "Injuries," and Article ITI, 91 Mich. L.

ee: DPD <occccobsdbeees seen’ ss 13

Zener, Robert, The Federal Law of Water Pollution, in

FEDERAL ENVIRONMENTAL LAW (Erica L. Dolgin &

Thomas G. P. Guilbert, eds., 1974)........... 10

STATEMENT OF INTEREST

Amicus curiae Americans for the Environment is a

national environmental organization that provides training and

technical assistance to citizen leaders and elected officials

working to protect the environment and public health.’

Americans for the Environment has an interest in this case

because it raises a fundamental challenge to the authority of

Congress to include a citizen suit provision in the Clean

Water Act to counteract the significant practical obstacles

American citizens would otherwise encounter in advocating

effective implementation of the Act.

SUMMARY OF ARGUMENT

This amicus brief presents three arguments. First, the

Court has erred in its prior environmental standing cases by

relying on a formalistic understanding of the American

political system that ignores the significant barriers in the

political process to expression of the broad public interest in

environmental protection. The Court’s environmental standing

decisions over the last decade have narrowed the standing of

citizens alleging injuries to their interests in a clean

environment, while simultaneously expanding the standing of

regulated businesses to challenge environmental regulation.

These decisions are based, at least in part, on the mistaken

idea that environmental and other majoritarian interests

neither need nor deserve access to the courts because, simply

by virtue of their numbers, their concerns will be addressed

appropriately through the political process. In fact, as a result

of free rider problems and the high costs of collective

' Counsel for the parties have consented to the filing of this amicus

brief, and the letters of consent are being filed with the Clerk

simultaneously with the filing of this brief. No counsel for a party in this

case authored this brief in whole or in part, and no person or entity, other

than amicus or their counsel, made a monetary contribution to this brief’s

preparation or submission. See Supreme Court Rule 37.

a

2

political action, effective expression of the broad public

interest in environmental protection faces major obstacles in

the American political system.

Second, the Court’s recent environmental standing

decisions are mistaken insofar as they rely on the idea that the

courts should narrow citizen standing so that, in the words of

Justice Scalia, congressional mandates will “get lost or

misdirected” in the administrative implementation process.

This idea contradicts the established principle that the

judiciary should defer to Congress in the establishment of

administrative policies. The citizen suit provision of the

Clean Water Act represents a reasonable and entirely

legitimate effort by Congress to promote effective

implementation of the Act and to counteract the danger that

the regulated community could successfully undermine the

Act during the administrative implementation process. | The

courts have no authority to select those particular

congressional policies which they believe should be “lost or

misdirected.”

Finally, contrary to the reasoning in the Court's recent

environmental standing decisions, there is no basis in Article

III for imposing special limitations on access to the federal

courts for those seeking to protect their interests in

environmental quality. This is especially true when, as in

this case, Congress has passed legislation (which was

approved by the President) specifically authorizing the

bringing of the action, and the suit is against a private firm,

not another branch of government. It is the decision of the

court below, by refusing to enforce the Clean Water Act

citizen suit provision as Congress intended, that threatens the

separation of powers principle underlying Article III.

3

ARGUMENT

I. The Anti-Majoritarian Theory Underlying Modern

Environmental Standing Decisions Ignores the

Realities of the American Political Process.

Over the last decade, the Court has dramatically revised

the law of standing to limit citizens’ ability to sue in federal

court to enforce federal environmental laws. This

transformation has been based on the idea that those asserting

a “majoritarian” interest in environmental protection neither

require nor are entitled to regular access to the courts,

whereas minority regulated interests need and should

routinely be granted access to the courts to challenge the

application of the environmental laws to them.

This novel theory of unequal standing is based on a

mistaken empirical assumption about the operation of the

American political process. that majoritarian interests

generally are fairly recognized and accurately reflected in the

political process. A large body of academic literature,

common sense, and substantial empirical evidence

demonstrate that this premise is simply wrong.

The basic rationale for the Court’s recent environmental

standing decisions is expressed most articulately by Justice

Scalia, writing for the Court in Lujan v. Defenders of

Wildlife, 504 U.S. 555 (1992). He explained the distinction

between those interests which should be denied standing and

those which should be granted standing in terms of whether

the plaintiff is the object, or the intended beneficiary, of a law

or regulation. Standing, he said,

“depends considerably upon whether the plaintiff is

himself an object of the action (or foregone action) at

issue. If he is, there is ordinarily little question that

the action or inaction has caused him injury, and that

a judgment preventing or requiring the action will

4

redress it. When, however, as in this case, a

plaintiff's asserted injury arises from _ the

government’s allegedly unlawful regulation (or lack

of regulation) of someone else, much more is needed.”

Id. at 561-62 (emphasis in original). While the quoted

language is from the opinion of the Court, it is uncertain, in

view of the separate concurring opinion by Justice Kennedy

(joined by Justice Souter), see 504 U.S. at 579-81, whether a

majority of the Court actually subscribed to this part of the

majority opinion. See also id. at 579 (expressing agreement

only with “the essential parts of the Court’s analysis”).

Justice (then Judge) Scalia developed this theory of the

distinction between beneficiaries and objects of regulation in

a 1983 article in the Suffolk University Law Review. See The

Doctrine of Standing as an Essential Element of the

Separation of Powers, 17 Suffolk U.L.Rev. 881 (1983).

Judge Scalia argued that standing doctrine needed to be

revised, in his words, to “restrict[ ] courts to their traditional

undemocratic role of protecting individuals and minorities

against impositions of the majority, and [to] exclud[e] them

from the even more undemocratic role of prescribing how the

other two branches should function in order to serve the

interest of the majority itself.” Id. at 894 (emphasis added).

Judge Scalia contended that when a claim is brought by

an individual who is “the very object of a law’s requirement

or prohibition,” then the plaintiff will “always” have standing.

Id. at 894 (emphasis in original). In that circumstance, the

claim presents a “classic case of the law bearing down upon

the individual himself, and the court will not pause to inquire

whether the grievance is a ‘generalized’ one.” Jd. On the

other hand, using language almost identical to that which

appeared in Lujan, when the plaintiff “is complaining of an

agency’s unlawful failure to impose a requirement or

rectneee ee

ee

|

5

prohibition upon someone else,” standing should be much

more difficult to establish. Jd. at 894 (emphasis in original).

A legal challenge based on non-enforcement of the law asserts

an essentially majoritarian interest, Judge Scalia reasoned,

which should ordinarily be addressed, not by the courts, but

by the majoritarian branches - the Congress or the Executive.

A plaintiff with a majoritarian interest should be recognized

as having standing only if he can demonstrate that non-

enforcement of the law resulted in some special and

distinctive harm to him. Jd. at 894-95.

Over the last decade, the Court’s major environmental

standing decisions, all of which have been authored by Justice

Scalia, have progressively implemented this anti-majoritarian

theory of standing. In all of the cases involving claims by

citizens or citizens groups alleging violations of the

environmental laws, the Court has rejected the plaintiffs’

standing and narrowed the circumstances in which citizens can

sue to protect their environmental interests in the future. See

Steel Company v. Citizens for a Better Environment, 118

S.Ct. 1003 (1998); Lujan v. Defenders of Wildlife, 504 U.S.

555 (1992); Lujan v. National Wildlife Federation, 497 U.S.

871 (1990). On the other hand, consistent with the view that

minority interests should have superior access to the courts,

the Court in Bennett v. Spear, 520 U.S. 154 (1997), ruled that

representatives of narrow economic interests had standing to

challenge the implementation of federal environmental laws

which allegedly harmed them.

One basic problem with this anti-majoritarian theory of

Standing is that it conflicts with the facts of the American

political process. Contrary to the assumption that majoritarian

interests get accurately expressed through the political

process, citizens advocating majoritarian interests of many

different kinds - consumers of retail products or services,

citizens exposed to chronic health risks, or families seeking to

6

prevent environmental degradation in their communities —

face severe obstacles to getting their views expressed in the

political process. By contrast, both in absolute terms and in

relation to their numbers, relatively narrow interests have

significant advantages in advancing their agendas in the

political process.

As academic commentators have long recognized, those

who share an interest with a bre7zd cross-section of society

labor under two basic problems 1n seeking to advance their

agenda through the political process: the so-called “free rider”

problem and relatively high transaction costs. See generally

Mancur Olson, THE LOGIC OF COLLECTIVE ACTION (1965).

The free rider problem has been concisely described by

Professor Jonathan Macey:

“By definition, the benefits from public spirited

legislation fall on the public generally. As such, it

is extremely unlikely that any individual will find it

advantageous to devote privately the necessary

resources to obtain such legislation. Those members

of the public who spend nothing will have a free ride

at the expense of those who invest in public-

regarding legislation. Since any gain goes to the

group as a whole, those who contribute nothing

benefit just as much as those who have contributed a

great deal. Thus it pays for each individual to do

nothing and to hope that others will make an effort

upon which he can ‘free ride.””

Jonathan R. Macey, Promoting Public-Regarding Legislation

Through Statutory Interpretation: An Interest Group Model,

86 Colum. L. Rev. 223, 231 n. 44 (1986). The free rider

problem is particularly serious when the interest at issue is a

broadly shared public good, such as clean water or clean air.

Because the benefits of a public good accrue to everyone,

7

regardless of individual contribution, and because the benefits

are diffuse and relatively small compared to the total effort

required for their achievement, individuals will, if they are

rational economic actors, free ride on the efforts of others

rather than invest their own time and energy in political

activity. E. Donald Elliot et al., Toward a Theory of Statutory

Evolution: The Federalization of Environmental Law, J.L.

Econ. & Org. 313, 342 (1985).

By contrast, when the interest being advanced is not a

public good, but is concentrated in a few firms or individuals

sharing a specialized interest, and when the return to any

individual from collective action is high relative to the costs

of group activity, concerted political activity does not face a

free-rider problem. Olson, at 33-36. Furthermore, in contrast

with groups seeking to advance a public good, it is easier for

narrow interest groups to police against free-riders, either by

offering added incentives for involvement in the group or by

sanctioning members of the interest group for non-

participation. Macey, at 229. Finally, smaller size can

support sentiments of solidarity which help overcome the free

rider problem. David Knoke, ORGANIZING FOR COLLECTIVE

ACTION 38-40 (1990).’

* Some commentators have suggested that, in some cases, effective

political organizers can counteract the free rider problem by offering

“expressive” or “solidarity” incentives for collective political action. See

Paul E. Johnson, Interest Group Recruiting, Finding Members and

Keeping Them, in Alan J. Cogler & Burdett A. Loomis, INTEREST GROUP

POLITICS 41 (1998). Even under this view, however, collective political

action on behalf of public goods faces significant obstacles, “because

people who have an interest in a collective good do not tend to be ‘self-

starters’ who seek out and join groups. Instead, they must be sought out,

pursued, enticed, and persuaded.” Jd. at 60. See also Kay L. Schlozman

& John T. Tierney, ORGANIZED INTERESTS AND AMERICAN DEMOCRACY

128 (1986) (“most consumer and environmental groups enroll only a

minuscule proportion of all who share their goals”).

8

The second obstacle facing advocates of broadly shared

interests is high transaction costs. Olson, at 48; see also

Bruce A. Ackerman, Beyond Carolene Products, 98

Harv.L.Rev. 713 (1985). Identifying like-minded individuals,

communicating with the group, and motivating members to

take concerted political action all require investments of time

and money. The larger the group and the smaller the

individual stake in the issue by each member, the higher the

costs to achieve a given level of political effectiveness.

Macey, at 229. For all the same reasons, the smaller the

group, the lower the transaction costs to achieve the same

level of effectiveness. Ackerman, at 727.

As a result of both of these obstacles, contrary to the

formalistic premise of the Court’s environmental standing

decisions, citizens with broadly shared environmental interests

will, everything else being equal, exercise far less political

influence than their bare numbers would suggest. In practical

terms, “the [diffuse] group is less likely to have a well-

organized lobby to press its cause. It is also less likely to

have the communications network necessary for the lobby’s

leaders credibly to threaten Congressman with the prospect of

electoral retribution.” Ackerman, at 727-28.

The available empirical evidence confirms that

majoritarian interests face major obstacles in the political

process. For example, in ORGANIZED INTERESTS AND

AMERICAN DEMOCRACY, the most comprehensive study of

special interest influence on American politics, Kay L.

Schlozman and John T. Tierney conclude that:

In general, organized interest politics tends to

facilitate articulation of demands by the narrowly

interested and well organized. By and large, the

collectivities thus benefitted are well heeled;

business, in particular, finds pressure politics a

9

useful mechanism for pursuing political goals.

Larger aggregates, especially the less advantaged and

those seeking nondivisible public goods, such as

clean air and lower taxes, fare rather less well

through the agency of organized interest politics than

they do elsewhere in the American political process.

Id. at 400. See also Macey, at 232 (“everyone who buys

milk is harmed by mild price supports; but the small cohesive

lobby of milk producers nonetheless is able to obtain these

subsidies’); Roger G. Noll & Bruce M. Owen, THE

POLITICAL ECONOMY OF DEREGULATION: INTEREST GROUPS IN

THE REGULATORY PROCESS 41-53 (observing that consumers

are generally less well represented than producers, and

illustrating the point by discussing the successes of

concentrated agricultural interests and the steel industry’s

ability to lobby for and “capture nearly all of any benefits that

protectionist legislation provides the industry”). See generally

Daniel A. Farber, Politics and Procedure in Environmental

Law, 8 J.L. Econ. & Org. 60 (1992) (observing that the

collective action problem “is corroborated by the prevalence

of pork barrel legislation that produces local benefits but a net

social loss”).°

In view of the substantial obstacles to organizing diffuse

interests to support a particular political agenda, one might

wonder how the American political system has produced any

national environmental legislation at all. The most persuasive

* The relative political weakness of environmental interests also is

reflected in the levels of congressional campaign contributions. Total

contributions by environmental political action committees in 1997-98

totaled $224,583, far less than the amounts contributed by energy and

natural resource companies ($13,413,670), the agricultural sector

($14,095,910), chemical and related manufacturing ($1,517,781), and

development companies ($8,300,622). See Center for Responsive Politics,

Political Action Committees (1999) <www.opensecrets.org/pacs/ >.

10

explanation is what Professor Daniel A. Farber has called a

“Republican moment” in American political history.

According to this view, “politics alternates between normal

periods, in which public attention to an issue is weak, and

extraordinary periods, in which the issue has high salience for

the public.” 8 J.L.Econ.& Org. at 68. The spate of national

environment laws, particularly in the early 1970s, was,

according to Farber, the product of one such “éxtraordinary”

moment.

Assuming Professor Farber’ s theory explains at least in

part how some national environmental legislation got

enacted," it does not contradict the conclusion that — most of

the time — the free rider and collective action problems mean

that the political process is subject “to the demands of

conventional interest groups.” Jd. Thus, acceptance of the

idea that miajoritarian environmental interests should

ordinarily be addressed exclusively through the political

process would mean that they frequently would not be

addressed at all. Congress obviously hoped and believed that

the citizen suit provision in the Clean Water Act would allow

the public to play a strong role in vindicating the public

commitments made in the Act. Contrary to the ungrounded

anti-majoritarian theory of standing, limiting citizen standing

to invoke the Act’s citizen suit provision would simply

reinforce the imbalance in the political process which already

works to the disadvantage of members of the public interested

in environmental protection.

* But Compare E. Donald Elliott et al., at 326 (arguing that

enactment of national clean air legislation helped serve interests of

automobile and coal industries); Robert Zener, The Federal Law of Water

Pollution, in FEDERAL ENVIRONMENTAL LAW 784-86 (1974) (arguing that

enactment of Clean Water Act helped legalize pollution discharges).

1]

Il. The Clean Water Act Citizen Suit Provision

Represents a Legitimate Congressional Response to the

Danger of Undue Influence By the Regulated

Community On the Implementation of Federal

Environmental Law.

Then Judge Scalia, in his 1983 law review article,

acknowledged that limiting citizen standing to sue to enforce

environmental laws could encourage administrative

nullification of federal environmental legisiation. He viewed

this possibility in an entirely positive light. He asked: “Does

what I have to say [about standing] mean that, so long as no

minority interests are affected, ‘important legislative

purposes, heralded in the halls of Congress [can be] lost or

misdirected in the vast halls of the federal bureaucracy?’” 17

Suffolk Univ. L.Rev, at 897. And he answered: “Of course

it does - and a good thing, too,” because there is no harm

done when legislative mandates “get lost or misdirected.” Jd.

(emphasis in original). Indeed, in his view, “[t]he ability to

lose or misdirect laws can be said to be one of the prime

engines of social change, and the prohibition against such

carelessness is (believe it or not) prcfoundly conservative.”

Id. In short, citizens should be denied standing to enforce the

law to facilitate agency disobedience of congressional

mandates and thereby promote administrative innovation.

In the Clean Water Act, Congress obviously reached a

different judgment about the value of allowing federal

legislative purposes to be “lost or misdirected in the vast halls

of the federal bureaucracy.” It is perhaps a fair question for

legislative debate whether Congress. should craft

environmental legislation to tightly control administrative

discretion or to promote flexibility and innovation. But the

choice properly beiongs to Congress and Congress’

determination on this point is entitled to great deference.

Certainly the courts have no authority to deploy standing

12

doctrine to select those particular policies which they believe

should be “lost or misdirected.”

The citizen suit provision in the Clean Water Act

represents a reasonable and entirely legitimate effort by

Congress to address the risk of “agency capture” by the

regulated community, a well recognized, pervasive challenge

to the fairness of the entire federal administrative process.

See Richard B. Stewart, The Reformation of American

Administrative Law, 88 Harv. L. Rev. 1667, 1713 (1975) (“It

has become widely accepted, not only by public interest

lawyers, but by academic critics, legislators, judges and even

by some agency members, that the comparative over-

representation of regulated or client interests in the process of

agency decision results in a persistent policy bias in favor of

these interests.”) The risk of capture arises from the same

basic problem affecting the legislative process, the imbalance

of power between diffuse public interests and discrete firms

and individuals subject to regulation. Indeed, if anything, the

imbalance is greater in the administrative process than in the

legislative process, given the so-called “revolving door”

problem, the arcane technical and legal character of many

administrative procedures, and the time-consuming nature of

agency processes. See id. at 1713-14; Dion Casey, Note,

Agency Capture: The USDA’s Struggle to Pass Food Safety

Regulations, 7 Kansas J.Law & Pub.Pol. 142, 142-43 (1998)

(cataloguing the explanations for agency capture).

Concerns about agency capture apply with full force in

the environmental arena, where implementation efforts pit

highly diffuse public interests against highly motivated

polluters subject to potentially costly abatement obligations.

See Schlozman & Tierney, at 400. See also Michael C.

Blumm, Public Choice Theory and the Public Lands: Why

“Multiple Use’ Failed, 18 Harv. Envtl. L. Rev. 405, 407-08

(1994) (the concern that “well organized special interest

13

groups will exert a disproportionate influence on policy-

making” is “particularly relevant in the case of public lands,

where the interests of disorganized, distant public owners are

regularly overshadowed by the opposing interests of locally

concentrated commodity interests”).

The historical context and legislative history of the Clean

Water Act citizen suit provision (and of the Clean Air Act

citizen suit provision upon which the CWA provision was

modeled) confirm that Congress adopted this provision out of

concern about the danger of agency capture. See S. Rep. No.

91-1196, 91" Cong., 2d Sess. 36-39 (1970). See also

Statement of Senator Bayh during Senate consideration of the

conference committee report, October 4, 1992, reprinted in,

LEGISLATIVE HISTORY OF THE WATER POLLUTION CONTROL

ACT AMENDMENTS OF 1972, Vol. II. at 217 (Senate Public

Works Comm. Print 1973) (describing citizens suit provisions

as “a very important tool for keeping industry and government

alike from letting standards and enforcement slip”). Leading

academies have frequently observed that concerns about

agency capture motivated Congress to adopt the citizen suit

provisions. See R. Percival, Environmental Regulation: Law,

Science, and Policy 181 (1996) (“When it enacted the

environmental laws, Congress was aware of the extensive

literature suggesting that regulatory agencies tend to become

the captives of the regulated industry. To resist this agency

capture model of the process, action-forcing provisions such

as the citizen suits and provisions for judicial review were

incorporated into the environmental statutes."); C. Sunstein,

What's Standing After Lujan? Of Citizen Suits, “Injuries, ”

and Article Ill, 91 Mich. L.Rev. 163, 192-93 (1992)

(“[s}]purred by... suspicion of agency ‘capture,’ Congress

created a wide range of citizens’ suits;” “[wJith a number of

devices, including the citizen suit, Congress hoped to

overcome administrative laxity and unenthusiasm, and also to

14

counteract the relatively weak political influence of

beneficiaries”).

Because Congress adopted the Clean Water Act citizen

suit provision to address the danger of agency capture and

consequent skewing of administrative implementation of the

Act, limiting the scope of the provision would directly

frustrate Congress’ purpose. Congress believed that citizen

suits were necessary to correct a systematic imbalance of

power in the administrative process. Judicial rulings limiting

citizens’ ability to rely upon citizen suit provisions nullify

Congress’ sensible and entirely permissible efforts to correct

this imbalance.

Further, the idea that majoritarian interests in

environmental protection should be accorded relatively Jess

access to the courts than regulated entities not only leaves the

imbalance of power in the administrative process unaddressed,

it makes it worse. As Professor Farber has explained the

point:

“More restrictive standing rules are likely to have a

differential impact. Industry groups can readily

demonstrate economic harm, a traditional basis for

standing. Thus, restricted standing rules will not

affect their efforts to use the courts to rewrite

legislative deals. When the original deal is in their

favor, they will also be able to use the courts to

enforce the deal. Because they lack the traditional

economic injuries, environmental groups are likely

to be more substantially affected by standing

restrictions. Hence, they will be less able to enforce

favorable legislative deals or to use the courts to

rewrite deals in their favor. The net result is that

restrictions on standing will tend to tug

implementation away from the legislative deal

toward industry interests.”

15

8 J.L.Econ & Org. at 77. See also William W. Buzbee,

Expanding the Zone, Tilting the Field: Zone of Interests and

Article III Standing Analysis After Bennett v. Spear, 49

Admin.L. Rev. 764 (1997) (observing that unequal standing

doctrine will inevitably cause agencies to deal with the

regulated community and the general public in a non-

evenhanded fashion, based on which interest is most likely to

sue the agency successfully if it makes a mistake).

Ill. Article III of the Constitution Mandates Judicial

Respect for, Rather than Judicial Abrogation of,

Citizen Suit Provisions.

It would create no fundamental problem under Article III

of the Constitution for this Court to accept Congress’ broad

authority to confer standing on citizens to protect their

environmental interests, even if those interests are broadly

shared by other citizens. Indeed, it is the contrary view, that

the judiciary may constrain Congress’ authority to enact

effective citizen suit provisions, which creates the genuine

Article III problem in this case.

First, there is no Article III obstacle to repudiation of the

anti-majoritarian rationale for the Court's recent

environmental standing decisions, as the Court implicitly

recognized last term in Federal Election Commission v. Akins,

118 S.Ct. 1777 (1998). In that case the Court upheld the

standing of voters to challenge the FEC’s classification of an

organization under the federal election laws, rejecting the

argument that plaintiffs lacked standing because they were

asserting a “generalized grievance” that was “‘shared in

substantially equal measure by all or a large class of

citizens.’” Jd. at 1785, quoting from Brief for Petitioner.

The Court acknowledge that some of its prior decisions

included language suggesting that judicial relief might not be

available “where large numbers of Americans suffer alike.”

Id. But, as the Court explained, these decisions actually

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rested not only on the “generalized” nature of the injury, but

also on the fact that the alleged injuries were “abstract or

indefinite in nature.” /d. at 1785 (distinguishing, among other

decisions, the Court’s decision in Lujan). So long as an

injury is “concrete,” even if it is widely shared, the Court

ruled, there is no Article III standing problem. In reaching

this conclusion the Akins Court refuted the idea implicit in

Lujan that those asserting majoritarian interests lack standing

simply because their interests are shared by many other

citizens. See Jd. at 1786 (“the fact that a political forum may

be more readily available where an injury is widely shared...

does not . . . automatically disqualify an interest for Article

III purposes”).

The conclusion that standing doctrine grants even-handed

access to the courts for dif**rent types of interests properly

focuses standing doctrine ‘ye core constitutional issues

underlying the doctrine. .. omports with the established

idea that the “case or controversy” limitation is intended to

“help[ ] assure that courts will not ‘pass upon . . . abstract,

intellectual problems, but adjudicate ‘concrete, living

contest(s] between adversaries’. Jd. at 1784, quoting Coleman

v. Miller, 307 U.S. 433, 460 (1939) (Frankfurter, J.

dissenting). It also comports with the understanding that

Standing doctrine prevents the courts from becoming

entangled in essentially political issues assigned by the

Constitution to the other branches of government.

Significantly, in this case, not only has Congress

explicitly authorized (and the President approved) the filing of

a Clean Water Act citizen suit, but this suit involves a claim

against a private firm, not another branch of government.

Thus, none of the primary indicia of a potential separation of

powers problem are present in this case.

Second, Article [I] requirements are met in this case

because plaintiffs satisfy the traditional three-part test for

ee nn

17

standing, including a showing of an actual “injury,”

“causation,” and “redressability.” Congress believed that

efforts to control water pollution had failed, and would

continue to fail in the future, to the extent they relied upon

independent showings that individual discharges caused an

adverse impact on water quality. Thus, in 1972, Congress

redefined the regulatory strategy to focus on technologically-

defined effluent limitations. Consistent with that approach,

Congress, in the citizen suit provision, defined the relevant

“injury” as a “violation” of the applicable limitations. 33

U.S.C. 1365(a). See Lujan, 504 U.S. at 580 (Kennedy, J.

concurring, joined by Souter, J.) (recognizing that “Congress

has the power to define injuries and articulate chains of

causation that will give rise to a case or controversy where

none existed before”); Akins, at 1784 ( “a plaintiff suffers an

‘injury in fact’ when the plaintiff fails to obtain information

which must be publicly disclosed pursuant to a statute”). At

least when, as in this case, plaintiffs demonstrated that the

illegal discharges were made into a waterbody they actually

use, Article [II injury and causation requirements are met.

Furthermore, because the violations were ongoing at the time

the suit was filed, the civil penalties payable to the U.S.

Treasury serve a general as well as specific deterrent effect

that meets the redressability requirement. Compare Steel

Company v. Citizens for a Better Environment, 118 S.Ct.

1003 (1998) (civil penalties do not satisfy redressability

requirement where violations ceased prior to filing of citizen

enforcement action). For the reasons discussed in detail in the

briefs of the petitioners and other amici, it would be

nonsensical to conclude that a firm violating the Clean Water

Act at the time a suit is filed can escape liability for civil

penalties, and that citizen plaintiffs can be entirely denied

reimbursement of their attorneys’ fees, simply because the

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firm managed to come into compliance by the entry of final

judgment.

Lastly, the ruling of the court below, rather than

upholding the principle of separation of powers underlying

Article III of the Constitution, actually infringes upon that

principle by effectively invalidating the Clean Water Act

citizen suit provision. Judicial invalidation of an act of

Congress, whether this step is based on Article III or some

other provision of the Constitution, involves the greaiest

possible judicial intrusion into the responsibilities of the

legislative branch. This extraordinary judicial power can only

be exercised sparingly and upon the clearest demonstration of

the necessity for doing so. No such showing is possible with

respect to the citizen suit provision of the Clean Water Act.

CONCLUSION

For the foregoing reasons, the Court should reverse the

decision of the U.S. Court of Appeals for the Fourth

Circuit in this case.

Respectfully Submitted,

JOHN D. ECHEVERRIA*

JON T. ZEIDLER

ENVIRONMENTAL POLICY PROJECT

GEORGETOWN UNIVERSITY

LAW CENTER

600 New Jersey Avenue, N.W.

Washington, DC 20001

(202) 662-9851

*Counsel of Record for Amicus Curiae

May 17, 1999 Americans for the Environment