# 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%3A19 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 2000 - **Citation:** 528 U.S. 167 ## Text 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) 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 . 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 16 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 18 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0244%3A19. Public record. Not legal advice.