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

=

MAY _17 1999

IN THE SUPREME COURT OF WHE UNITERR*

STATES

OCTOBER TERM, 1998

No. 98-822

FRIENDS OF THE EARTH. INCORPORATED. er ail..

Petitioners,

Vv.

LAIDLAW ENVIRONMENTAL SERVICES (TOC),

INC..

Respondents.

ON WRIT OF CERTIORARI TO THE

U.S. COURT OF APPEALS FOR THE FOURTH

CIRCUIT

BRIEF AMICUS CURIAE OF THE STATES OF

CALIFORNIA, MISSOURI, ALABAMA,

ARKANSAS, DELAWARE, ILLINOIS, MICHIGAN,

MISSISSIPPI, NEW MEXICO, NEW YORK,

NORTH CAROLINA, TENNESSEE, RHODE

ISLAND, AND WASHINGTON

IN SUPPORT OF PETITIONERS

BILL LOCKYER

Attorney General

RODERICK E. WALSTON

Chief Assistant Attorney Genera}

RICHARD M. FRANK

Assistant Attorney General

LINUS MASOUREDIS

Deputy Attorney General

1515 Clay Street, 20th Floor

Oakland. CA 94612-1413

(510) 622-2144

*Counsel u, Record

(Additional Counsel listed on Inside Cover)

JEREMIAH W. (JAY) NIXON

Attorney General

JAMES R. LAYTON*

State Solicitor

JOSEPH P. BINDBEUTEL

WILLIAM J. BRYAN

Assistant Attorneys General

Supreme Court Building

P.O. Box 899

Jefferson City. MO 65101-0899

(573)751-8871

BILL PRYOR

Attorney General

State of Alabama

11 South Union Street

Montgomery, AL 36120

MARK PRYOR

Attorney General

State of Arkansas

323 Center Street, Suite 200

Little Rock, AR 72201

M. JANE BRADY

Attorney General

State of Delaware

820 N. French Street

Wilmington, DE 19801

JAMES E. RYAN

Attorney General

State of Illinois

100 W. Randolph St., 12th Fl.

Chicago, IL 60601

JENNIFER M. GRANHOLM

Attorney General

State of Michigan

P.O. Box 30212

Lansing, MI 48909

MIKE MOORE

Attorney General

State of Mississippi

P.O. Box 220

Jackson, MS 39205

PATRICIA A. MADRID

Attorney General

State of New Mexico

Post Office Drawer 1508

Santa Fe, NM 87504

ELIOT SPITZER

Attorney General

State of New York

State Capitol

Albany, NY 12224

PAUL G. SUMMERS

Attorney General

State of Tennessee

425 Fifth Avenue North

Nashville, TN 37243

SHELDON WHITEHOUSE

Attorney General

State of Rhode Island

150 South Main Street

Providence, RI 02903

CHRISTINE O. GREGOIRE

Attorney General

State of Washington

1125 Washington Street

Olympia, WA 98504-0100

MICHAEL F. EASLEY

Attorney General

State of North Carolina

P.O. Box 629

Raleigh, NC 27602-0629

QUESTION PRESENTED

Whether a citizen suit brought under § 505 of the Clean

Water Act, 33 U.S.C. § 1365, which sought injunctive and

declaratory relief and civil penalties for ongoing violations of

a National Pollutant Discharge Elimination System (NPDES)

permit -subsequently became moot, for lack of Article III

redressability, where:

(1) the NPDES permittee continued to violate its NPDES

permit after suit was filed but came into compliance by

the time of final judgment in the district court, and

where,

(2) the district court imposed civil penalties for the post-

complaint NPDES permit violations, but denied

injunctive relief because of the permittee’s post-

complaint compliance.

TABLE OF CONTENTS

Page

QUESTION PRESENTED i

TABLE OF AUTHORITIES il

INTEREST OF AMICI CURIAE l

SUMMARY OF ARGUMENT 2

I. THE COURT OF APPEALS MISTAKENLY

APPLIED STANDING PRINCIPLES TO DECIDE A

MOOTNESS QUESTION 3

Il. PETITIONERS’ REQUEST FOR CIVIL PENALTIES

DID NOT BECOME MOOT SIMPLY BECAUSE

THE COURT DENIED INJUNCTIVE RELIEF 10

Ill. PETITIONERS’ COGNIZABLE INJURY IS

REDRESSED BY CIVIL PENALTIES 12

CONCLUSION 17

TABLE OF AUTHORITIES

Page

Cases

Allen v. Wright, 468 U.S. 737 (1984) ............. 3

Arizonans for Official English v. Arizona, 520 U.S. 43

Ge Sdevawekdicsincesccdwdsvesséacee 4,5

Bennett v. Spear, 520 U.S. 154 (1997) ........... 17

Burke v. Barnes, 479 U.S. 361 (1987) ........... 4,5

Cardinal Chemical Co. v. Morton International, Inc., 508

ee a wd 4

Church of Scientology of California v. United States, 506

ee Es 64.6 5.46 babe One eb ch ewouene™ 4, 10

County of Riverside v. McLaughlin, 500 U.S. 44 (1991) . 6

Davis v. Passman, 442 U.S. 228 (1979)... ........ 10

Deakins v. Monaghan, 484 U.S. 193 (1988) ....... 4,5

Department of Energy v. Ohio, 503 U.S. 607 (1992) ... 1

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

I, ied sie aaa AiR Gk ero mee he ee he ela 16, 17

1V

Franklin v. Massachusetts, 505 U.S. 788 (1992) ..... 16

Friends of the Earth, Inc. v. Laidlaw Environmental

Services (TOC), Inc., 149 F.3d 303 (4th Cir. 1998) .. 12,

15

Gwaltney of Smithfield, Lid. v. Chesapeake Bay

Foundation, Inc., 484 U.S. 49 (1987) ......... passim

Honig v. Doe, 484 U.S. 305 (1988) .......... 8,9, 12

Lake Shore & Michigan Southern Railway Co. v. Ohio,

8 Ll ES ee eee 2 15

Linda R.S. v. Richard D., 410 U.S. 614 (1973) ..... 16

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) 4, 2

Mills v. Green, 159 U.S. 651 (1895) ............. 10

Powell v. McCormack, 395 U.S. 486 (1969) ...... 5. 10

Spencer v. Kemna, 118 S.Ct. 978 (1998) ........... 4

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

Ds tevietbehesses ere eeethaceuse ee passim

United States Parole Commission v. Geraghty, 445 U.S.

P+. sducues we 66 4nd on ee kGh bee nee 4.8

United States v. Concentrated Phospate Export Assn., 393

DD Kenhuneadtbaesen deeds kenesuwes 5

Vv

United States v. Municipal Auth. of Union Township, 150

De CUE ssechevecedeebeeéeees 13

United States v. W.T. Grant Co., 345 U.S. 629 (1953) 5,

il

Valley Forge Christian College v. Americans United for

Separation of Church and State, Inc., 454 U.S. 464 (1982)

SOREOONS 845045554 60464006 F4ENEESDEREND OS 9

Vander Jagt v. O'Neill, 699 F.2d 1166 (D.C. Cir. 1983) :

Warth v. Seldin, 422 U.S. 490 (1975) .......... 3, 16

Statutes

Pe EE 6.65400 60 bde wns eseneanesens 12

| TOT TT eT TT TT Tee 1, 11,14

ey ie OP ED ov oe bbc ee eeeeseeeenees 8

Other Authorities

Constitutional Rights and the Misuse of "Standing", 14

DUR. Ton TV. GRD IUD cc cc ccecccscevesens 4

S.Rep. No. 414, 92nd Cong., 2nd Sess. 1972, reprinted in

See CR, DOE coesceccceacnéenaseess 1]

IN THE SUPREME COURT OF THE UNITED

STATES

OCTOBER TERM, 1998

No. 98-822

FRIENDS OF THE EARTH, INCORPORATED, et ai.,

Petitioners,

\.

LAIDLAW ENVIRONMENTAL SERVICES (TOC), INC.,

Respondents.

INTEREST OF AMICI CURIAE

Amici States have a vital interest in the standing and

mootness principles applied to citizen suits brought under

§ 505 of the Clean Water Act (CWA), 33 U.S.C. § 1365.

Along with the federal government, they are the primary

enforcers and administrators of the CWA. But the states have

an equally significant role as "citizens," entitled to sue under

CWA’s citizen suit provision. See 33 U.S.C. §§ 1365(g),

1362(5); Department of Energy v. Ohio, 503 U.S. 607, 616

(1992). Under that provision, states bring citizen suits against

those who pollute interstate waters. Even federal agencies are

subject to citizen suits brought by states. Department of

Energy v. Ohio, 503 U.S. at 616. In a variety of

circumstances, citizen suits provide the states a better remedy

than does an enforcement action. They are an important tool

for states seeking to achieve environmental protection.

The states value that tool not just for their own use, but

also for its use by others. Suits brought by private citizens

fill the gap in CWA enforcement left by a lack of

2

governmental resources. Moreover, citizen suits provide a

valuable avenue for public participation in environmental

matters. A barometer for public sentiment and environmental

concern, citizen suits help states focus their regulatory aims.

And they provide an important opportunity for cooperation

and communication among citizens, the regulated community,

and government.

The Amici States’ interest in preserving the effectiveness

of citizen suits as a tool for protecting the environmental,

health, and safety interests of their citizens will be directly

affected by the decision in this case.

SUMMARY OF ARGUMENT

Standing and moomess are both aspects of justiciability.

Though closely related, standing and mootness are applied

using distinct principles. Standing evaluates a party’s fitness

to proceed at the outset of a case. Mootness, in contrast,

examines the impact of subsequent events on a pending

action. The impact on justiciability caused by subsequent

events, including post-complaint compliance, should be

evaluated on mootness rather than standing grounds. Because

the issue before the court of appeals was created by post-

complaint compliance, it was a question of mootness. But the

court of appeals erroneously used a standing analysis to

decide it.

Post-complaint compliance does not moot a citizen suit

because the violator is "free to return to his old ways."

Moreover, the ability of petitioner to der.iand and the district

court's power to award civil penalties in a citizen suit is not

dependant on whether injunctive relief is appropriate. Even

if post-complaint compliance makes injunctive relief

inappropriate, civil penalties can redress a citizen’s injuries.

Civil penalties provide an incentive for defendants to cure

3

violations and prevent further pollution. Deterrence benefits

the affected waters by enhancing environmental protection

and reducing pollution. Because the petitioners have a special

interest in the affected waters, their injury is redressed by the

enhanced environmental protection flowing from the deterrent

effect generated by civil penalties. Consequently, civil

penalties can redress the petitioners’ injury.

I. THE COURT OF APPEALS MISTAKENLY

APPLIED STANDING PRINCIPLES TO DECIDE A

MOOTNESS QUESTION

The court of appeals did not question whether petitioners

had standing. The court nonetheless found that dismissal was

compelled by Steel Co. v. Citizens for a Better Environment,

523 U.S. 83 (1998) -- a standing decision. Yet it largely

ignored Gwaltney of Smithfield, Lid. v. Chesapeake Bay

Foundation, Inc., 484 U.S. 49 (1987) -- which discussed

mootness in circumstances like those here. The court of

appeals thus misapplied the separate but related doctrines of

standing and mootness. This Court should clarify the

distinction and reiterate the heavy burden borne by a

defendant that asserts mootness based on its own actions.

1. Standing and mootness are closely related, overlapping

aspects of justiciability. See Allen v. Wright, 468 U.S. 737,

750 (1984) (""All of the doctrines that cluster about Article

II] -- not only standing but mootness, ripeness, political

question, and the like -- relate in part, and in different though

overlapping ways, to an idea, which is more than an intuition

but less than a rigorous and explicit theory, about the

constitutional and prudential limits to the powers of an

unelected, umrepresentative judiciary in our kind of

government.’", quoting Vander Jagt v. O'Neill, 699 F.2d

1166. 1178-1179 (D.C. Cir. 1983) (Bork, J., concurring)).

See also Warth v. Seldin, 422 U.S. 490, 499 n.10 (1975)

4

("The standing question thus bears close affinity to questions

of ripeness . . . and of mootness"); Flast v. Cohen, 392 U.S.

83, 99 (1968) ("standing ‘serves, on occasion, as a shorthand

expression for all the various elements of justiciability’”,

quoting Lewis, Constitutional Rights and the Misuse of

"Standing", 14 STAN. L. REV. 433, 453 (1962)). The

constitutional dimension of mootness derives from the

requirement that an Article II] "case or controversy” persist

throughout the litigation. Deakins v. Monaghan, 484 U.S.

193, 199 (1988): Burke v. Barnes, 479 U.S. 361, 363 (1987).

The mootness doctrine requires that the parties maintain a

"personal stake" in the outcome of the litigation, which, for

the plaintiff, can be expressed in terms of the constitutional

standing triad of actual injury, causation, and redressability.

Spencer v. Kemna, 118 S.Ct. 978, 983 (1998). It is in this

sense that mootness is said to be "the doctrine of standing set

in a time frame: The requisite personal interest that must exist

at the commencement of litigation (standing) must continue

throughout its existence (mootness)." Arizonans for Official

English v. Arizona, 520 U.S. 43, 68 (1997), quoting United

States Parole Commission v. Geraghty, 445 U.S. 388, 397

(1980).

2. Though standing and mootness are related analytically,

they are applied using distinct principles. Standing focuses

or the fitness of the party invoking the courts; mootness

fwcuses on whether events have altered the appropriateness of

judicial intervention. Compare Flast, 392 U.S. at 99, with

Church of Scientology of California v. United States, 506

U.S. 9, 12 (1992). The plaintiff bears the burden of

establishing standing; the defendant who alleges that some

event has made judicial intervention inappropriate bears the

burden of establishing mootness. Compare Lujan v.

Defenders of Wildlife, 504 U.S. 555, 561 (1992), with

Cardinal Chemical Co. v. Morton International, Inc., 508

U.S. 83, 98 (1993).

5

The nature of the alleged mooting event -- whether it is

due to the action of plaintiff, Arizonans for Official English,

520 U.S. at 67; Deakins v. Monaghan, 484 U.S. at 200 n. 4,

or to the action of the defendant, United States v. W.T. Grant

Co., 345 U.S. 629, 632 (1953), or to some "independent"

factor, ¢.g., Burke v. Barnes, 479 U.S. at 363 (expiration of

the bill by its own terms) -- significantly affects the burden

borne by the defendant. When, as here, the alleged mooting

event is the voluntary action of the defendant, "[t]he test for

moomess . . is a stringent one": it must be "absolutely clear

that the allegedly wrongful behavior could not reasonably be

expected to recur." United States v. Concentrated Phospate

Export Assn., 393 U.S. 199, 203 (1969) (emphasis added).

Otherwise, the defendant would be "free to return to his old

ways" after dismissal for mootness. United States v. W.T.

Grant Co., 345 U.S. 629, 632 (1953).

3. Because of their analytical differences and distinct

principles of application, mootness and standing are

considered at different points in litigation. The Court

generally has treated standing (like subject matter jurisdiction)

as a threshold matter. The impact of subsequent events is

then analyzed under the mootness doctrine rather than

revisiting the initial standing decision. The plurality opinion

in Lujan made this difference clear. It rejected the notion

that subsequent events could supply a redressability element

for standing that was lacking when the complaint was filed.

Lujan v. Defenders of Wildlife, 504 U.S. at 570 n. 4. And it

relied on subject matter jurisdiction -- which depends solely

on the state of things at the time the action is filed -- as the

1. The nature of the relief sought also affects the defendant's

burden. When severa! forms of relief are sought, each must be

examined for mootness independently. The mootness of equitable

claims does not necessarily moot any damage claims. Deakins, 484

U.S. at 201: Powell v. McCormack, 395 U.S. 486, 497-500 (1969).

6

model for standing. See 504 U.S. at 569 n. 4. See also

Gwalmey of Smithfield, Lid. v. Chesapeake Bay Foundation,

Inc., 484 U.S. at 69 (Scalia, J., concurring). The many

decisions holding that plaintiffs had standing when the

complaint was filed but that their claims subsequently became

moot, like County of Riverside v. McLaughlin, 500 U.S. 44,

51 (1991), fit the model of assessing standing as a threshold

matter and then evaluating the impact of subsequent events

under the mootness doctrine.

4. The court of appeals decision ignored that model; it

instead used a standing analysis to answer a mootness

question. The court relied on Steel Co. v. Citizens for a

Better Environment -- an initial standing case -- to analyze

the mootness effect of events subsequent to the filing of the

suit. The complainant in Steel Co. alleged only past

violations of environmental information reporting

requirements. 523 U.S. 83 at 1008. The Court held that the

civil penalties sought would not redress plaintiff's injury from

past reporting violations because: (1) civil penalties payable

to the Treasury would not remedy the injury suffered, 523

U.S. 83 at 1018; and (2) injunctive relief would not remedy

past violations, 523 U.S. 83 at 1019. Unfortunately for the

plaintiff, while injunctive relief would remedy future

violations by deterring them, plaintiff had not alleged either

a continuing or a future violation. See 523 U.S. 83 at 1019.

Here, in contrast, there is no question that petitioners had

standing, and therefore satisfied redressability requirements,

when they filed suit. Petitioners had standing based on their

allegations of continuing violations of National Pollutant

Discharge Elimination System (NPDES) discharge

requirements, which, consistent with Steel Co., could be

redressed by injunctive relief and civil penalties.

The question here is not one of standing. It is whether

subsequent voluntary compliance by respondent moots the

7

claims that petitioners had standing to raise at the time they

filed the complaint. Stee! Co. does not answer that question.

But Gwaltney of Smithfield. v. Chesapeake Bay Foundation,

does, albeit in dicta

The complaint in Gwaltney, like the complaint here,

included allegations that the NPDES discharger had violated

and was continuing to violate NPDES requirements. See 484

U.S. at 54. The complaint sought declaratory and injunctive

relief, and civil penalties. The discharger in Gwaltney

claimed that it had ceased violating the law before plaintiffs

filed suit, and that because the CWA citizen suit provision

only authorized suits for ongoing, not wholly past violations,

the courts lacked jurisdiction over the case. This Court held

that a citizen could seek civil penalties only in conjunction

with ongoing, not wholly past violations. 484 U.S. at 57.

Significantly, the discharger in Gwaltney also argued that

if the allegations of ongoing violation became false after

citizens filed suit, i.e., if the discharger subsequently

complied with NPDES requirements, then pursuit of the

citizen suit would contravene the Article III "case or

controversy" requirement. 484 U.S. at 66. The Court said if

that occurred, i.e., if there was post-complaint compliance,

the matter would be analyzed under the mootness doctrine

using the stringent standard for voluntary cessation of

illegality by the defendant. See 484 U.S. at 66-67. Supra at

5.

Consequently, Gwaltney shows that if allegations of

ongoing NPDES violations are sufficient to find standing

when a complaint is filed, subsequent post-complaint

compliance does not trigger reevaluation of the initial

standing decision. Instead, Gwaltney calls for application of

the mootess standard for voluntary cessation of illegality by

the defendant. There is nothing in Steel Co. questioning this

8

mode of analysis in Gwalmey. In fact. in Steel Co. the Court

treated Gwaltney as a case where "Article III standing was .

. . found,” 523 U.S. 83 at 1011 -- confirming that post-

complaint compliance does not eliminate Article II] standing

that existed at the time suit is filed.”

5. Replacing mootness with standing concepts to analyze

post-complaint compliance would eliminate the salutary

flexibility in mootness doctrine. For example, the "personal

stake" aspect of mootness is of no less constitutional

dimension or origin than injury-in-fact or redressability for

standing. Yet the Court has shown more flexibility in

considering mootness than in considering standing. Thus it

has recognized exceptions for mootness of disputes "capable

of repetition, yet evading review," Honig v. Doe, 484 U.S.

305, 318 (1988), and for adjudication of class action issues

despite the mootness of the class representatives’ claims, see

United States Parole Commission v. Geraghty, 445 U.S. 388.

The Court has expressly acknowledged the “flexible

2. The court of appeals’ reliance on Steel Co. is misplaced for

another reason. The complaint in Steel Co. was brought under the

Emergency Planning and Community Right-to-Know Act of 1986

(EPCRA), 100 Stat. 1755, 42 U.S.C. § 11001-11050. This suit was

brought under the Clean Water Act's citizen suit provision. Unlike the

CWA, the EPCRA does not establish liability for discharges that

exceed permit limitations like the Clean Water Act. Instead. it is a

regulatory scheme that requires strict adherence to reporting functions.

Violations under EPCRA are similar to CWA violations for failure to

submit a discharge monitoring report -- violations of only one part of

the scheme. The distinction between reporting requirements and

permit violations is significant. A regulated party often can

substantially comply with reporting obligations simply by filing a late

report. Indeed, that is how the defendant avoided the citizen suit in

Steel Co. 523 U.S. 83 at 1009. By contrast, neither logic nor law

supports the premise that a regulated party that made an illegal

discharge can avoid liability by improving the quality of the partially

treated waste water that has left its treatment facilities.

9

character” of Article II] mootness, id. at 400, which calls for

sensitivity to "practicalities and prudential considerations"

rather than a "strict formalistic view of An. III

jurisprudence." Jd. at 404 (emphasis added). See also

Honig, 484 U.S. at 331 (Rehnquist, C.J., concurring) ("The

logical conclusion to be drawn from these cases, and from the

historical development of the principle of mootness, is that

while an unwillingness to decide moot cases may be

connected to the case or controversy requirement of Art. III,

it iS an attenuated connection that may be overridden where

there are strong reasons to override it.").

Relying on _ formalistic standing requirements 1s

particularly inappropriate in this case, where the separation of

powers concerns underlying some standing requirements are

absent. This is not a suit against the government with some

risk that the courts will be drawn into judicial resolution of

“general grievances" "pervasively shared and most

appropriately addressed in the representative branches." Valley

Forge Christian College v. Americans United for Separation

of Church and State, Inc., 454 U.S. 464, 475 (1982). It is a

Suit by one private party against another. Indeed, any

separation of powers concerns cut the other way. The judicial

branch should be sensitive to Congressional power to define

not only "injuries and . . chains of causation that will give

rise to a case or controversy where none existed before,"

cujan, 504 U.S. at 580 (Kennedy, J., concurring), but also to

Statutory remedies for those injuries and chains of causation.

It is the continued viability of such a statutory remedy that is

the very issue in this case.

10

Il. PETITIONERS’ REQUEST FOR CIVIL PENALTIES

DID NOT BECOME MOOT SIMPLY BECAUSE

THE COURT DENIED INJUNCTIVE RELIEF

Applying mowti<ss rather than standing concepts in

deciding this case, tie proper inquiry is not whether civil

penalties "redress" petitioners’ injury. Instead the court must

decide whether it was "impossible for the court to grant to

petitioners ‘any effectual relief whatever," Church of

Scientology, 506 U.S. at 12, quoting Mills v. Green, 159 U.S.

651, 653 (1895), once respondent ceased its violations and

injunctive relief was no longer in issue. A case in which the

relief sought is limited to civil penalties is not moot under

this standard for at least two reasons.

First, monetary and damage claims are not usually moot

even if injunctive relief becomes unavailable. See, e.z..

Powell v. McCormack, 395 U.S. 486, 498 (1969). That

conclusion is unchanged by the ruling in Gwaltney that the

citizen suit provision has a “prospective onentation.” 484 U.S.

at 59. The Gwalmey ruling is, as the Court indicated in Steel

Co., more properly understood as a ruling on the scope of the

"cause of action” created under the CWA for citizens. See

Steel Co., 523 U.S. 83 at 1010-1011.

The “cause of action" concept is distinguishable from

“standing” and "relief." See Davis v. Passman, 442 U.S. 228,

239-240 n.18 (1979).° "A plaintiff may have a cause of

action even though he be entitled to no relief, as, for example

3. “Standing” refers to “whether a plaintiff is sufficiently

adversary to a defendant to create an Ar. III case or controversy”.

Davis v. Passman, 442 U.S. at 239-240, n. 18. A “cause of action”

defines the particular “class of litigants that may. as a matter of law.

appropriately invoke the power of the court.” /d. at 240. n. 8.

“Relief” is simply “a question of the various remedies a federal court

may make available.” Jd.

11

when a plaintiff sues for declaratory or injunctive relief

although his case does not fill the ‘preconditions’ for such

equitable remedies." Jd. at 240 n. 8. Similarly, injunctive

relief may be denied even though an action might not be

moot. See United States v. W.T. Grant Co., 345 U.S. at

635-636.

Here, there is no question that petitioners’ complaint

alleged a valid cause of action under Gwaltney, i.e., that

petitioners alleged continuing rather than wholly past

violations of the CWA. Petitioners’ complaint sought

declaratory and injunctive relief and civil penalties. The

subsequent unavailability of one of those remedies --

injunctive relief -- cannot change the fact that petitioners

Stated in their complaint a viable “cause of action” that was

fully in accord with Gwalmey, and that civil penalties remain

a viable remedy under that cause of action.

Moreover, weighty practical considerations militate against

the mootness of civil penalties in these circumstances. The

rule adopted by the court of appeals permits defendants to

wait until trial or appeal before complying with the CWA.

The rule then allows them to completely escape civil penalties

because of the belated elimination of "redressability."” If that

is true, then (a) no defendant has any incentive to comply

with the CWA until the very last stages of litigation, and (b)

citizens will be unlikely to even seek civil penalties because

defendants can always escape penalties at the last minute. The

practical effect of such a mootness rule would be to largely

eliminate citizen suits for civil penalties. Congress, however,

expressly authorized citizens to seek civil penalties. See 33

U.S.C. § 1365(a) ("district courts shal] have jurisdiction .. .

to apply any appropriate civil penalties under § 1319(d)");

S.Rep. No. 414, 92nd Cong., 2nd Sess. 1972, reprinted in

1972 U.S.C.C.A.N. 3745 (courts may “impose civil penalties

_ aS a result of actions brought by citizens"). Because

12

practical considerations rightfully play a role in mootness

doctrine, see Honig v. Doe, 484 U.S. at 330 (Rehnquist, C.J..

concurring) (noting the “obvious pragmatic considerations"

underlying the mootness exception for disputes "capable of

repetition yet evading review"), the practical impact of the

court of appeals’ mootness rule strongly counsels against its

adoption.

Il. PETITIONERS’ COGNIZABLE INJURY IS

REDRESSED BY CIVIL PENALTIES

The court of appeals concluded that civil penalties will not

redress petitioners’ injury because the penalties go to the

United States Treasury, not to petitioners, and therefore, the

penalties do not “benefit” petitioners. Friends of the Earth,

Inc. v. Laidlaw Environmenta! Services (TOC), Inc., 149

F.3d 303, 306-07 (4th Cir. 1998). The court failed to

appreciate the deterrent effect of civil penalties and the

resulting benefits to the environment, environmental

protection, and citizen suitors.

1. Civil penalnes play a vital role in protecting the Nation's

waters. Basically, penalties give defendants an incentive to

cure violations and prevent further pollution. They also

deter future violations.

Most importantly, the CWA specifically provides that the

amount of penalties will be based, in part, on "the economic

benefit (if any) resulting from the violation." 33 U.S.C.

§ 1319(d). Accordingly, penalties offset the economic

benefits that a defendant might obtain by continuing its CWA

violations after a plaintiff has filed a citizen suit. Civil

penalties also are mandatory: violators "shall de subject to"

civil penalties. 33 U.S.C. § 1319(d) (emphasis added).

Penalties are certain, and by disgorging any resulting

economic benefit, penalties are more than a cost of doing

13

business. See United States v. Municipal Auth. of Union

Township, 150 F.3d 259, 264 (3d Cir. 1998) (economic

benefit analysis is used “to level the economic playing field

and prevent violators from gaining an unfair competitive

advantage.")

Mandatory civil penalties also work hand-in-hand with the

60 day notice provision of the CWA. The notice requirement

gives violators a 60 day window of opportunity to remedy

their violations free of any economic sanctions. An

enlightened violator will take advantage of this opportunity.

The affected waters will benefit, and so will the plaintiffs,

who have a special interest in those waters. Unenlightened

violators will learn their lesson the hard way; after a citizen

suit has been filed, mandatory civil penalties will deprive

those violators of any economic benefits from further

noncompliance. Those penalties also specifically deter future

violations of the CWA by the named defendant. Thus, civil

penalties play a powerful remedial role both in stopping

ongoing violations as soon as possible, and in deterring future

ones by the defendant.

2. Contrary to the court of appeals’ conclusion, civil

penalties would benefit petitioners and redress their injury

consistent with the "prospective orientation,” Gwaliney, 484

U.S. at 59, of citizen suits. Petitioners’ injury stems from

ongoing violations of NPDES discharge permits. Civil

penalties help stop those ongoing violations as soon as

possible. An injunction may stop the violation, but standing

alone it creates no real incentive for speedy compliance. The

prospect of paying substantial civil penalties, on the other

hand, can change a polluter’s offending behavior.

Citizens filing CWA suits, whether the petitioners here or

the Amici States elsewhere, are not indifferent as to the

tuming of compliance. They have a direct and powerful

14

interest, as users of the polluted waterway, in stopping

violations as soon as possible. They are adversely affected by

delays in compliance. The incentive for prompt compliance

created by the threat of civil penalties defies the notion that

civil penalties merely serve to redress wholly past, or

speculative future injury. Civil penalties play a crucial role

in halting ongoing violations as soon as possible -- a role that

directly “benefits” plaintiffs, remedies their injury, and is fully

consisient with Gwaltney's prospective focus.‘

3. The court of appeals’ rationale defeats all citizen suit

claims for civil penalties, not just those where the district

court has denied injunctive relief. Penalties always go to the

Treasury. Citizens’ suits would be brought to an abrupt end,

no matter how egregious the circumstances, by a holding that

the failure of Congress to direct civil penalties to the

plaintiff's bank account is a sufficient basis to defeat a citizen

suit. Congress clearly envisioned a different result: it

provided for civil penalties and injunctive relief in citizen

suits, not merely injunctive relief. 33 U.S.C § 1365. The

court of appeals read the citizen suit provision as though

Congress never even mentioned civil penalties.

4. To say that civil penalties only redress past violations

musunderstands the nature and dynamics of deterrence. Deterrence 1s

based on credible threats. A threat of punishment made in an effort to

change someone's behavior is only credible if the punishment is

carned out later if the behavior does not change. In this case. if civil

penalties cannot be imposed for respondent's “past,” i.¢.. post-

complaint, violations, then civil penalties can never be a credible threat

and will not have a coercive effect on polluter’s behavior and ongoing

post-complaint violations. In short. imposition of civil penalties for

past violations is essential to, and inextricably linked with, deterring

the continuation of earlier violations. In short. civil penalties deter.

and deterrence enhances environmental! protection. Thus in turn

benefits a citizen suitor because that person has a special interest in the

affected waters.

15

This approach is tantamount to saying that some form of

“bounty” or qui fam provision is a constitutional prerequisite

for Congress to authorize citizens to collect civil penalties for

the government. Yet long ago the Court upheld a state statute

authorizing private parties to sue for penalties that went

exclusively to a local government, and the Court expressed no

concern about any standing defects in such a statutory

scheme. See Lake Shore & Michigan Southern Railway Co.

v. Ohio, 173 U.S. 285, 286 (1899).

Certainly, under this statutory scheme, the federal

government does not have to prove injury to its Own interests

in order to collect CWA civil penalties; nor must it use such

penalties to remediate the polluted waterway. It follows that

civil penalties do not have any compensation or remediation

purpose; their sole purpose is deterrence. Where the money

goes -- be it to the Treasury or elsewhere -- is irrelevant. So

long as the violator pays the penalty, the deterrence purpose

is achieved. The court of appeals’ focus on where the money

goes in analyzing the "benefit" to petitioners misperceived

and underestimated the deterrent value of penalties.

4. These petitioners are interested in an award of civil

penalties even though it goes to the Treasury because they

personally benefit from the deterrent effects of the penalties.

Their special interest in the affected waters makes their

interest in the penalties more than a “generalized” one. And

this interest, despite its complexity, is very real.

The court of appeals declared that civil penalties would

merely provide petitioners "psychic satisfaction" in seeing the

laws enforced and wrongdoers punished, and that the case,

consequentiy, fell into the category of "generalized

grievances” where standing is lacking. Friends, 149 F.3d at

306, quoting Steel Co., 118 S.Ct. at 1019. Regardless of

whether that might be true elsewhere, it 1s not true here.

16

This Court has explained that "generalized grievance"

cases are those where

the harm at issue is not only widely shared, but 1s also of

an abstract and indefinite nature -- for example, harm to

the ‘common concern for obedience to law’ [citations

omitted]. The abstract nature of the harm -- for example,

injury to the interest in seeing that the law is obeyed --

deprives the case of .. . concrete specificity. . . [and]

prevents a plaintiff from obtaining what would, in effect,

amount to an advisory opinion.

Federal Election Commission v. Akins, 118 S.Ct. 1777, 1785-

1786 (1998) (emphasis added). Here, petitioners are not

pursuing an abstract and indefinite injury like general

obedience to the law. They have suffered special injury to

their use of a particular waterway, something that

distinguishes them from the general public. Neither of the

two characteristics of a "generalized grievance," namely,

"widely shared" and “abstract and indefinite" injury, are

present in this case. Perhaps other members of the public may

benefit indirectly from imposition of penalties against this

defendant by virtue of an in terrorum effect against other

future violators. But that does not undermine petitioners’

standing. "[T]}he general public interest" can always buttress

one’s standing. Warth v. Seldin, 422 U.S. at 501.

Furthermore, this case is not like cases where standing

was lacking because redressability depended on _ the

intervening response or actions of third parties, such as Linda

R.S. v. Richard D., 410 U.S. 614 (1973). Here, the penalties

act directly and immediately on respondent -- the very party

whose behavior is causing the injury to_ petitioners.

Moreover, the Court has upheld indirect patterns of

redressability even when redressability depended on the

actions of a third party. See Franklin v. Massachusetts, 505

17

U.S. 788, 801-803 (1992) (redressability where declaratory

relief action against Secretary was likely to result in

compliance by the President); Bennett v. Spear, 520 U.S. 154,

168-170 (1997) (redressability in suit challenging biological

opinion by U.S. Fish and Wildlife Service even though

Bureau of Reclamation was not technically bound by the

biological opinion, and the actions causing injury were those

of the Bureau); cf. Akins, 118 S.Ct. at 1786-1787

(redressability in overturning discretionary prosecutorial

decision even though agency might make the same decision

not to prosecute later on different grounds). If "indirect"

forms of redressability were sufficient in these cases, then a

fortion, the linkage between civil penalties and deterrence of

ongoing violations establishes sufficient redressability for

standing in this case.

CONCLUSION

Subsequent events neither destroyed petitioners’ standing

nor mooted their claim for civil penalties. Accordingly, this

court should reverse and remand with instructions to decide

the petitioners’ appeal on the merits.

Dated: May 17, 1999

18

Respectfully submitted,

JEREMIAH W. (JAY) NIXON

Attorney General of the

State of Missouri

JAMES R. LAYTON

State Solicitor

JOSEPH P. BINDBEUTEL

WILLIAM J. BRYAN

Assistant Attorneys General

Missouri Attorney General's Office

207 West High Street

P.O. Box 899

Jefferson City, MO 65102

573-751-1800

BILL LOCKYER

Attorney General of

the State of California

RODERICK E. WALSTON

Chief Assistant Attorney General

RICHARD M. FRANK

Assistant Attorney General

LINUS MASOUREDIS

Deputy Attorney General

1515 Clay Street, 20th Floor

Oakland, CA 94612-1413

510-622-2144