# 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%3A20 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 2000 - **Citation:** 528 U.S. 167 ## Text = 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