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

(i)

No. 98-822

In the

Supreme Court of the United States

4

FRIENDS OF THE EARTH, ef ai.,

Petitioners,

Vv.

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 PACIFIC LEGAL

FOUNDATION AND STATE OF CALIFORNIA

AUTO DISMANTLERS ASSOCIATION IN

SUPPORT OF RESPONDENT

+

ROBIN L. RIVETT

*M. REED HOPPER

*Counsel of Record

Pacific Legal Foundation

10360 Old Placerville Road,

Suite 100

Sacramento, California 95827

Telephone: (916) 362-2833

Facsimile: (916) 362-2932

Counsel for Amici Curiae

Pacific Legal Foundation and

California Auto Dismantlers

Association

QUESTIONS PRESENTED

|. Whether private plaintiffs’ action became moot on

appeal, due to redressability, where the only potential relief

available was civil penalties to the United States Treasury.

2. Whether private plaintiffs are entitled to recovery of

attorneys’ fees or other litigation costs when they are not the

prevailing or substantially prevailing party.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ....0ceccsucuseuuseeeeeee i

TABLE OF AUTHORIUEES 2. 00:6sden0nee eee ili

IDENTITY AND INTERESTS OF AMICI CURIAE .... 1

INTRODUCTION § ...cccccseencsuee ees eneee 3

STATEMENT OF THHE CAGE .. 00000005 0eu eee 4

SUMMARY OF THE ARGUMENT ................. 5

ARGUMENT ....0000c00een85 50 eee 7

|. PUTTING THINGS IN PERSPECTIVE:

PETITIONERS HAVE NOT

DEMONSTRATED AN IMMINENT

THREAT OR ONGOING VIOLATION .......... 7

Il. THE STANDING RATIONALE OF STEEL

COMPANY APPLIES TO THIS CASE .......... 11

Il. PETTTMIONERS* RELIANCE ON GWALTNEY

IS MISPLACED AS THAT CASE

UNDERCUTS RATHER THAN SUPPORTS

PETITIONERS’ MOOTNESS ARGUMENT ..... 14

CONCLUSION .. 000000800000 6b eee 16

TABLE OF AUTHORITIES

Page

Cases

Babbitt v. Sweet Home Chapter of Communities

for a Great Oregon, 515 U.S. 687 (1995) ........... 2

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

Chevron, U.S.A., Inc. v. Natural Resources

Defense Council, 467 U.S. 837 (1984)... 2... oe ee 2

Douglas County, Oregon \. Babbitt,

EE SE 2

Friends of the Earth, Inc. v. Laidlaw

Environmental Services, Inc., 956 F. Supp.

EIS 9-13

Gwaltney of Smithfield, Lid. v. Chesapeake Bay

Foundation, Inc., 484 U.S. 49 (1987)... 00... 4. 7, 13-16

Hallstrom v. Tillamook County,

ed ccccccecesccccccess 3

Steel Company v. Citizens for a Better

Environment, 118 S. Ct. 1003 (1998) ......... 2, 5, 7-9

United States v. Phosphate Export Association,

I EE oo occ cecececcecseseeces 1S

Rules of Court

EEG Ee cc wcec eee teocccsceces

EEE |

IDENTIFY AND INTERESTS OF AMICI CURIAF

Pursuant to Supreme Court Rule 37.2, Pacific Legal

Foundation and the State of California Auto Dismantlers

Association respectfully submit this brief amicus curiae in

support of Respondent, Laidlaw Environmental Services (TOC ),

Inc.’ Written consent was granted by counsel for all parties and

lodged with the Clerk of this Court.

Pacific Legal Foundation (PLI) ts the largest and most

experienced nonprofit public interest law foundation of its kind

in America. PL was founded in 1973 and provides a voice in

the courts for mainstream Americans who believe in limited

government, private property rights, individual freedoms, and

free enterprise. PLE litigates nationwide in state and federal

courts with the support of thousands of citizens from coast to

coast. PLF is headquartered in Sacramento, California, and has

offices in Miami, Florida; Honolulu, Hawai; Bellevue,

Washington; and a liaison office in Anchorage, Alaska.

In its fight to protect fundamental constitutional rights, PLE

becomes involved in cases that raise important public policy

considerations that may create significant legal precedents.

Amicus participation is approved by a voluntary Board of

Trustees where PLF’s perspective will assist the court in

resolving the underlying legal issues. PL supports a broad

view of the public interest and promotes balance and common

sense in the adoption, interpretation, and administration of laws

and regulations.

PLF has a long-standing interest in environmental issues

and has participated in this Court in numerous cases involving

the interpretation of federal laws. For example, PLF was amicus

' Pursuant to Supreme Court Rule 37.6, Amici Curiae affirm that no

counsel for any party in this case authored this brief in whole or in part,

and, furthermore, that no person or entity has made a monetary

contribution specifically for the preparation or submission of this brief.

%

curiae in this Court in Steel Company v. Citizens for a Better

Environment. 118 S. Ct. 1003 (1998): Bennett v. Spear.

520 U.S. 184 (1997); Douglas County, Oregon v. Babbitt,

516 U.S. 1042 (1996); Babbitt v. Sweet Home Chapter of

Communities for a Great Oregon, 515 U.S. 687 (1995); and

Chevron, U.S.A., Inc. v. Natural Resources Defense Council,

467 U.S. 837 (1984).

The State of California Auto Dismantlers Association

(Association) is a nonprofit organization with approximately

650 members and represents the interests of the 1,400 licensed

auto dismantilers in the State of California. Licensed facilities

are the only entities authorized to dismantle and salvage vehicles

for the recovery and recycling of parts and metals and for

properly disposing of the 300 pounds of toxins and hazardous

materials in the typical vehicle.

In addition to its lobbying efforts, the Association provides

services and training. Business and regulatory information ts

provided by the Association at conferences and through various

publications. For example, the Association has put together an

industry guide for complying with the storm water regulations

under the Clean Water Act. For several years, the industry has

worked hard to ensure compliance with the many environmental

regulations that govern these licensed facilities. The industry's

compliance with the state’s general storm water permit is well

documented.

However, these largely family-owned businesses have

recently been targeted by environmental activists with threats of

litigation for supposed infractions under the Clean Water Act.

These activists have sent California auto dismantlers scores of

Notices of Intent to Sue. These notices have cost the industry

huge sums in legal fees and cash settlements.

The Notices of Intent to Sue inform industry members that

they are in violation of the Clean Water Act and have 60 days to

comply. Such notices typically result in settlements with the

3

environmental group for approximately $50,000 and few, if any.

onsite environmental issues are addressed. The mere threat of

taking a small business to federal court compels the business

owner in most cases to seek a monetary settlement with the

potential plaintiff.

The allegations in these notices are often vague to the point

of unintelligibility. “Evidence” of failure to comply typically

entails a mere picture of a puddle in the facility parking lot with

an oil sheen on the top. Allegations of harm include claims that

there “may be” fewer birds in the area of the facility than

elsewhere and that boaters (miles away from the inland facility)

have gotten oil on their hands while untangling a propeller on

their boat. The notices usually make no attempt to connect the

alleged violations to the alleged harms. And while many of

these cases could never survive in court, the cost to defend

against such accusations is more than the industry or a small

family-owned business can support. In some cases, these

notices have resulted in the virtual confiscation of the business

and even the personal assets of some individuals.

Therefore, the Association has a direct interest in this case

that puts at issue the scope of citizen suits under the Clean

Water Act. The Association, along with PLF’s public policy

perspective and litigation experience in support of rational

environmental protection and economic rights, will provide a

necessary viewpoint on the issues presented in this case.

a

INTRODUCTION

In crafting the citizen suit provision of environmental laws,

this Court has found that Congress sought to “strike a balance

between encouraging citizen enforcement of environmental

regulations and avoiding burdening the federal courts with

excessive numbers of citizen suits.” Hallstrom v. Tillamook

County, 493 U.S. 20, 29 (1989). This Court has also found that

4

Congress intended citizen suits to “supplement rather than

supplant governmental action.” Gwaltney of Smithfield, Lid. v.

Chesapeake Bay Foundation, 484 U.S. 49, 60 (1987).

However, cases like the present case, that seek exorbitant civil

penalties for good faith compliance efforts that result in

technical violations that cause no harm to the environment,

frustrate this congressional policy and unsettle the delicate

balance Congress sought. Moreover, as illustrated in the

Identity and Interests of Amici Curiae above, the citizen suit ts

becoming more and more the weapon of choice for activists

bent on extorting lucrative money settlements from

unsophisticated, small business owners on threat of litigation in

federal court. This was never the intent of citizen suits, nor is

it good public policy. Citizen suits are an aid to government

enforcement. They are not an end in themselves. To stem such

abuses, this Court should enforce the rule of law and hold

environmental citizen-plaintiffs to the same strict constitutional

standing and mootness standards that apply to other private

litigants.

STATEMENT OF THE CASE

Laidlaw Environmental Services, Inc. (Laidlaw), owned

and operated a hazardous waste incinerator in Roebuck, South

Carolina. Waste water was produced by the air pollution

control equipment attached to the incinerator. This waste water

contained toxic metals and was treated onsite before discharge

into the North Tyger River pursuant to a National Pollutant

Discharge Elimination System (NPDES) permit issued by the

State of South Carolina. Although Laidlaw tried a number of

State-of-the-art treatment technologies approved by the state,

Laidlaw was unable to meet the discharge limits established in

the permit for mercury constituents. This resulted in recurring

violations of the NPDES permit for a number of years. In May,

1992. the state filed an enforcement action against Laidlaw. On

June 10, 1992, a state court approved a settlement of the suit

whereby Laidlaw agreed to pay a $100,000 fine and meet all

5

discharge standards. By August, 1992, Laidlaw had innovated

a technical fix to the discharge problem. Notwithstanding the

court-approved settlement, on June 12, 1992, a number of

environmental groups sued Laidlaw in federal court under the

citizen suit provision of the Clean Water Act, seeking

declaratory and injunctive relief, additional penalties, costs, and

attorneys’ fees.

In a 1997 decision, the United States District Court for the

District of South Carolina held that Laidlaw had acted in good

faith in addressing its discharge problems and that its discharge

exceedences had not caused any harm to the environment

because the permit limits had been set artificially low by the

state. Nevertheless, the court held that Laidlaw had violated the

permit’s reporting, monitoring, and discharge standards and was

subject to an additional penalty of $405,800. The court did not

grant injunctive or declaratory relief to the plaintiffs because of

the lack of demonstrated harm and the fact that Laidlaw was

then in substantial compliance with its permit and had been for

several years.

The plaintiffs appealed, arguing the district court had

assessed an inadequate penalty. Laidlaw cross-appealed

claiming that plaintiffs lacked standing to bring the suit because

they suffered no injury in fact. Relying on the intervening

United States Supreme Court decision in Stee! Company v.

Citizens for a Better Environment, 118 S. Ct. 1003, the Fourth

Circuit held the case was moot because a civil penalty paid to

the United States Treasury would not redress any injury

plaintiffs may have suffered.

¢

SUMMARY OF THE ARGUMENT

Petitioners argue that Stee! Company v. Citizens for a

Better Environment does not apply because in this case, and

contrary to Steel Company, Petitioners allege ongoing or future

6

violations. But this argument mistakes the holding in Stee/

Company and is insufficient to resuscitate Petitioners’ now

defunct case.

The Court held in Steel Company that the remedial

purposes of Article Ill can be satisfied by claims of future harm,

but only if the harm is continuing or a future violation is

imminent. Petitioners cannot make such claims in this case

because the cited facility has been permanently closed and the

offending waste treatment incinerator has been dismantled. This

assures there will be no risk of future violations.

Petitioners also argue that Steel Company is inapposite

because that case is a standing case whereas the present case Is

a mootness case. Petitioners are wrong. Siee/ Company is very

much applicable to the present case.

The district court in this case found that Laidlaw had been

in substantial compliance with its waste water discharge permit

for an “extended period of time,” since at least August, 1992,

preceding not only the time of decision but also the time of trial.

In fact, Laidlaw was in substantial compliance before the suit

was brought and never caused actual harm to the environment.

Based on the lack of demonstrated harm to the environment and

future risk of harm, the district court denied Petitioners’ prayer

for both injunctive and declaratory relief. Petitioners never

appealed those denials. If follows, therefore, that the Fourth

Circuit could have found under Stee/ Company that Petitioners

lacked standing. The fact that the court chose to declare the

case moot instead, relying on the rationale of Stee! Company,

does not preclude this Court from finding a lack of standing

now.

Moreover, under this Court’s precedent, the requirements

for standing and mootness are essentially the same. The

elements of standing must continue to exist at every stage of

litigation, not just at the time of the complaint. Therefore, this

Court’s Article Ill analysis in Steel Company is equally

5

applicable to the present case and justifies a determination that

the case is moot.

Finally, Petitioners argue that Gwaltney, 484 U.S. 49, is

controlling in this case and not Stee/ Company. They claim that

Gwaltney is essentially identical on the facts to the present case

and this Court implicitly found Gwaltney was not moot.

However, the Court did not so find. To the contrary, the Court

suggested the mootness doctrine would come into play to stop

a case like the present case where the defendant has come into

compliance during the course of litigation: “Longstanding

principles of mootness, however, prevent the maintenance of

suit when ‘there is no reasonable expectation that the wrong will

be repeated. ””

ARGUMENT

I

PUTTING THINGS IN PERSPECTIVE:

PETITIONERS HAVE NOT DEMONSTRATED AN

IMMINENT THREAT OR ONGOING VIOLATION

Petitioners claim the Fourth Circuit’s reliance on Siee/

Company v. Citizens for a Better Environment, 118 S. Ct. 1003,

is misplaced because in this case, contrary to Stee! Company,

there is a risk of continuing or future violations under the Clean

Water Act. This argument is central to Petitioners’ position that

their case is not moot and should not be dismissed. However,

Petitioners utterly fail to demonstrate the immediacy of such

threats.

In the Steel Company case, Citizens for a Better

Environment (CBE) sent a 60-day Notice of Intent to Sue to

The Steel Company alleging the company had not filed certain

chemical inventory and release forms required under

Sections 312 and 313 of the Emergency Preparedness and

Community Right-to-Know Act (EPCRA) of 1986. Before the

60-day notice period had run, The Steel Company filed the

8

forms with the Environmental Protection Agency (EPA). EPA

chose not to pursue an enforcement action but, notwithstanding

the Steel Company filing, CBE commenced a suit in the

Northern District Court of Illinois. The Steel Company filed a

motion to dismiss, contending that because the company was in

compliance when the complaint was filed, the court had no

jurisdiction to hear a case for a present violation, and EPCRA

did not authorize citizen suits for wholly past violations. The

district court agreed, but the court of appeals reversed,

concluding that citizens may seek civil penalties against EPCRA

violators who file after the statutory deadline and after receiving

notice of intent to sue. This Court granted certiorari and held

that plaintiffs did not have Article III standing.

The gravaman of that decision was that the plaintiffs

lacked the third requirement of the “irreducible constitutional

minimum of standing”—redressability, a likelihood that the

requested relief will redress the alleged injury. /d. at 1016-17.

This Court noted that none of the specified items of relief

sought, and none that could be envisioned as “appropriate,”

would serve to recompense plaintiffs for their alleged harm.

As to civil penalties—the only relief sought by Petitioners

on appeal against Laidlaw in the present case—this Court

Stated:

[T]he civil penalties authorized by _ the

Statute .. . might be viewed as a sort of compensa-

tion or redress to respondent if they were payable

to respondent. But they are not. These

penalties—the only damages authorized by

EPCRA—are payable to the United States

Treasury. In requesting them, therefore, respon-

dent seeks not remediation of its own

injury—reimbursement for the costs it incurred as

a result of the late filing—but vindication of the rule

9

of law—the “undifferentiated public interest” in

faithful execution of EPCRA. ... This does not

suffice.

Id. at 1018.

After dismissing the claim for civil penalties as a basis for

establishing Article II] standing, this Court then examined the

plaintiffs’s request for injunctive relief. This Court observed

that injunctive relief “cannot conceivably remedy any past wrong

but is aimed at deterring petitioner from violating EPCRA in the

future.” /d. at 1019. However, the Court noted that objective

can satisfy Article III's remedial purposes when threatened

injury is a basis for the complaint. “If respondent had alleged a

continuing violation or the imminence of a future violation, the

injunctive relief requested would remedy that alleged harm.” /d.

But the Court concluded there was no such allegation in that

case and, on the facts of that case, there appeared no basis for

it. /d. So it is in the present case. There is no basis for alleging

a continuing or imminent future violation.

From the time the complaint was filed and its January,

1997, opinion, the district court found there had been only one

monitoring violation and no reporting violations. Friends of the

Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc.,

956 F. Supp. 588, 609 (D.S.C. 1997). In fact, the district court

found Laidlaw had been in substantial compliance since two

months after the complaint was filed and years before any trial.

The court even laid some blame for delayed technical

compliance at the feet of petitioners.

In this case, Laidlaw has been in substantial

compliance with all parameters in its NPDES permit

since at least August 1992. This includes mercury,

all other metals, temperature, pH and all monitoring

and reporting obligations. In fact, Laidlaw has been

in compliance with the vast majority of its permit

requirements for a much longer period of time,

10

extending back to March 199] when the Lancy

system was installed. The only mercury violations

in 1994 and 1995 were at the levels of 2.7 ppb and

1.6 ppb, respectively, and these would not have

been permit exceedences at all had not plaintiffs by

their appeal stayed the effective date of Laidlaw’s

new NPDES permit containing a daily maximum

limit for mercury of 10 ppb.

Id. at 611.

Based on the lack of demonstrated harm to the

environment, and the fact that Laidlaw was in compliance at the

time of the court’s decision and had been for an extended period

of time, the district court felt compelled to deny the plaintiffs’

request for injunctive relief. /d. Petitioners did not appeal this

denial. Nevertheless, Petitioners doggedly maintain their case

is different from Stee! Company because they have alleged a

threat of future violations. But even if Petitioners’ failure to

appeal the denial of an injunction were not enough to preclude

Petitioners’ argument from consideration by this Court,

Petitioners’ allegations of future harm do not satisfy this Court’s

requirement that the anticipated violation must be either ongoing

or imminent.

As a factual matter, there is no ongoing threat of harm to

the environment or a risk of an imminent violation. As the

district court found, Laidlaw has been in compliance or

substantial compliance with its NPDES permit for years. For

this reason, Petitioners were unable to demonstrate in the trial

court that they would suffer irreparable injury if injunctive relief

were not granted.

Injunctive relief is not appropriate where the

defendant is in compliance or in substantial com-

pliance with the Clean Water Act, PIRG v. Yates

Industries, 757 F. Supp. 438 (D.N.J. 1991); citing

Weinberger v. Romero-Barcelo, 456 U.S. 305, 102

11

S. Ct. 1798, 72 L. Ed. 2d 91 (1982), and a

defendant in substantial compliance with its NPDES

permit is not required to show that there is no

chance of a future permit violation in order to

defeat a request for injunctive relief. Atlantic States

Legal Foundation, Inc. v. Tyson Foods, Inc.,

897 F.2d 1128 (11th Cir. 1990).

Id.

Not only has Laidlaw been in compliance for an extended

period of time, but it can now guarantee compliance in the

immediate future because the company has ceased operation of

the permitted facility and has dismantled the offending waste

incinerator. See Respondents’ Suggestion for Mootness.

But these facts do not deter Petitioners. They

unabashedly claim a threat of harm still looms because

(1) Laidlaw still has a valid NPDES permit and “may discharge

in the future whenever it cares to do so,” (2) Laidlaw’s retention

of its permit indicates Laidlaw’s intent to discharge, and

(3) Laidlaw has NPDES permits at other facilities. Brief for

Petitioners at 8 n.7. However, these allegations are not enough

to resuscitate Petitioners’ suit. The first two claims are specula-

tive and fail to address the immediacy requirement for

subsequent violations. The third claim is simply irrelevant to the

present case. As this Court stated in Steel Company, such

allegations must indicate an ongoing violation or an imminent

future violation. Steel Company, 118 S. Ct. at 1019. But, on

the facts of this case, there is no basis for such allegations.

THE STANDING RATIONALE OF STEEL

COMPANY APPLIES TO THIS CASE

Besides their putative claims of future violations, there is

another reason Petitioners offer to distinguish this case from

Steel Company. They argue that Stee! Company is a standing

12

case while this case is a mootness case. Therefore, Petitioners

believe Stee! Company has no relevance to this case. They are

wrong.

The Steel Company case was decided after the district

court decision in this case but before the decision of the Fourth

Circuit. The Fourth Circuit relied entirely on Steel Company for

its mootness determination. But the irony of this case is that the

Fourth Circuit could have relied on Stee! Company to find that

Petitioners had no Article III standing. In fact, this case is a

classic Steel Company standing case.

As noted in some detail above, the district court expressly

found that Laidlaw had been in substantial compliance with its

NPDES permit for an “extended period of time”—at least since

August, 1992, two months after the complaint was filed in June,

1992—-preceding not only the time of decision but also the time

of trial. See Friends, 956 F. Supp. at 611. In fact, there was

sufficient evidence to support a conclusion that Laidlaw was in

substantial compliance even before the complaint was filed, thus

negating Petitioners’ standing claims.

For example, the court found that Laidlaw’s monitoring

and reporting deficiencies “produced no direct environmental

impact.” /d. at 602. Further, the court found that Laidlaw was

in “good faith” compliance since March, 1991, when it installed

a new treatment system. /d. at 599. And, the court determined

the two mercury exceedences subsequent to the filing of the

complaint should not have been actual violations because the

10 ppb daily maximum permit limit was set artificially high by

the state and could have been set at 200 ppb but for Laidlaw’s

demonstrated ability to achieve a much lower limit. /d. at 609.

Based on these observations and the lack of demonstrated

future harm to the environment, the district court denied

Petitioners’ request for both injunctive and declaratory relief.

This left Petitioners only with a claim for civil penalties. And

13

such a claim, this Court decided in Stee! Company, does not

satisfy the redressability requirement of Article III standing.

The fact that the Fourth Circuit did not employ a direct

application of Stee! Company to the standing issue does not

preclude this Court from doing so now. This case should have

been decided on standing grounds and not on mootness

grounds. See Gwaltney, 484 U.S. at 65-66. However, the

distinction may be one of little difference. The Fourth Circuit

correctly perceived that under this Court’s precedent, the

standards for mootness and standing are essentially the same.

In order to have standing, a plaintiff must have

suffered an actual or threatened injury in fact; the

injury must have been caused by the defendant's

complained-of conduct; and the injury must be

redressable by the relief sought. See Steel

Company v. Citizens for a Better Env't, — U.S.

— — - — 2118 S. Ct. 1003, 1016-17,

140 L. Ed. 2d 210 (1998). Moreover, these ele-

ments must continue to exist at every stage of

review, not merely at the time of the filing of the

complaint. See Arizonans for Official English v.

Arizona, 520 U.S. 43, 117 S. Ct. 1055, 1068, 137

L. Ed. 2d 170 (1997); Suarez Corp. Indus. v.

McGraw, 125 F.3d 222, 228 (4th Cir. 1997).

Otherwise, the action becomes moot. See United

States Parole Com'n v. Geraghty, 445 U.S. 388,

397, 100 S. Ct. 1202, 63 L. Ed. 2d 479 (1980)

(explaining that mootness has been described as

“the doctrine of standing set in a time frame: The

requisite personal interest that must exist at the

commencement of the litigation (standing) must

continue throughout its existence (mootness).”

Friends of the Earth, Inc. v. Laidlaw Environmental Services

(TOC), Inc., 149 F.3d 303, 306 (4th Cir. 1998).

14

lt makes little difference, therefore, whether the lower

court based its dismissal of this suit on mootness or standing—

both are jurisdictional and the rationale expressed in Siee/

Company applies equally to both. At virtually no time did

Petitioners qualify to litigate this case because their suit lacked

the essential component of redressability. At the beginning as

at the end, the only live claim they had was for civil penalties.

Since these are paid into the United States Treasury and do not

inure to the benefit of the plaintiffs, the imposition of penalties

cannot recompense Petitioners for their alleged harm.

Therefore, the case should be dismissed.

PETITIONERS RELIANCE

ON GWALTNEY IS MISPLACED

AS THAT CASE UNDERCUTS

RATHER THAN SUPPORTS

PETITIONERS’ MOOTNESS ARGUMENT

Petitioners claim that Gwaltney of Smithfield, Lid. v.

Chesapeake Bay Foundation, Inc., 484 U.S. 49, is controlling

in this case and not Siee/ Company. If this is true, Petitioners

still lose.

In Gwaltney, this Court considered whether the citizen

Suit provision in the Clean Water Act authorized citizen suits for

wholly past violations. This Court determined the Act did not

confer such jurisdiction citing, among other things, the forward-

looking language, and the purpose of the citizen suit provision.

That case turned on a question of statutory interpretation rather

than mootness. Nevertheless, Petitioners claim that Gwaltney

is like the present case and in Gwaltney the Court “implicitly,

but clearly, held that the case was not moot.” Petitioners’ Brief

at 17. Whatever petitioners infer from Gwaltney, the one thing

that is clear is that the Court did not hold the case was not

moot, either expressly or implicitly. To the contrary, the Court

15

suggested a case like the present would be declared moot to

protect Article III principles.

According to the Court, the petitioner in Gwaltney

expressed some worry that the Court’s construction of the

Clean Water Act

would permit citizen-plaintiffs, if their allegations of

ongoing noncompliance become false at some later

point in the litigation because the defendant begins

to comply with the Act, to continue nonetheless to

press their suit to conclusion. According to

petitioner, such a result would contravene both the

prospective purpose of the citizen suit provisions

and the ‘case or controversy’ requiremeni of

Article IIL.

Id. at 386.

To assuage these worries, the Court stated that

“[ Ljongstanding principles of mootness, however, prevent the

maintenance of suit when ‘there is no reasonable expectation

that the wrong will be repeated.” /d. Thus, the Court

envisioned a case like the present case and offered a resolution

that undercuts rather than supports Petitioners’ argument that

their case is not moot and should not be dismissed.

Apparently, however, Petitioners are convinced that the

mere allegation of ongoing or future violations is sufficient to

overcome a mootness determination, even if the facts show

there is no such threat. But, the Court in Gwaliney considered

this question and came to the opposite conclusion.

According to the Court, allegations of ongoing or future

violations may be defeated by a showing that it ts “absolutely

clear that the alleged wrongful behavior could not reasonably

be expected to reccur.” Gwalthey, 484 U.S. at 67 (citing United

States v. Phosphate Export Association, Inc., 393 U.S. 199, 203

(1968). Respondent Laidlaw has met this burden. As noted

16

above, the Laidlaw facility has been permanently closed and the

offending waste incinerator has been dismantled. There is no

future risk of harm.

Mootness doctrine thus protects defendants from

the maintenance of suit under the Clean Water Act

based solely on violations wholly unconnected to

any present or future wrongdoing, while it also

protects plaintiffs from defendants who seek to

evade sanction by predictable “protestations of

repentance and reform.” United States v. Oregon

State Medical Society, 343 U.S. 326, 333 (1952).

Id. at 66-67.

+

CONCLUSION

This Court has consistently held that Article II] standing

requirements must be met throughout the course of litigation.

This Court’s decisions in both Steel Company and Gwaltney

affirm this rule. Unless there is evidence of an ongoing violation

or a threat of an imminent future violation, the federal courts do

not have jurisdiction to entertain the case. In this case, Respon-

dent has demonstrated unequivocally that no ongoing or future

harm can occur at the designated site. Therefore, whether

Petitioners lack standing or the case is moot, the case should be

dismissed.

Such a ruling would not only satisfy the constitutional

requirements of a “case or controversy,” but would also advance

the congressional policy behind citizen suits—to supplement

rather than supplant government action. See Gwaltney,

484 U.S. at 60. As Amici have discovered first hand, this policy

has been subverted. Where no ongoing harm or future risk to

the environment is present, activist plaintiffs should not be

17

allowed to press a “dead” suit to completion just to punish the

defendant and to garner attorney’s fees. Citizen suits are an aid

to government enforcement. They are not an end in themselves.

DATED: July, 1999.

Respectfully submitted,

ROBIN L. RIVETT

*M. REED HOPPER

*Counsel of Record

Pacitic Legal Foundation

10360 Old Placerville Road.

Suite 100)

Sacramento, California 95827

Telephone: (916) 362-2833

Attorneys for Amici Curiae

Pacific Legal Foundation and

State of California Auto

Dismantlers Association