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

Supreme Court of the Hnited

OCTOBER TERM, 1998

FRIENDS OF THE EARTH, et ai.,

Petitioners,

v.

LAIDLAW ENVIRONMENTAL SERVICES (TOC), INC.,

Respondent.

On Writ of Certiorari to the United States Court

of Appeals for the Fourth Circuit

Brief Amici Curiae of the

ALLIANCE OF AUTOMOBILE MANUFACTURERS,

AMERICAN IRON AND STEEL INSTITUTE,

CHAMBER OF COMMERCE OF THE UNITED STATES,

ENVIRONMENTAL MANAGEMENT ASSOCIATION OF

SOUTH CAROLINA ,

ENVIRONMENTAL TECHNOLOGY COUNCIL,

MICHIGAN MANUFACTURERS ASSOCIATION,

NATIONAL ASSOCIATION OF MANUFACTURERS,

SOUTH CAROLINA CHAMBER OF COMMERCE

and the

SOUTH CAROLINA MANUFACTURERS ALLIANCE

IN SUPPORT OF RESPONDENT

Scott M. DuBoff *

Kenneth S. Kaufman

WRIGHT & TALISMAN, P.C.

1200 G Street, N.W., Suite 600

Washington, DC 20005-3802

(202) 393-1200

Counsel for Amici Curiae

Alliance of Automobile Manufacturers, et al.

* Counsel of Record

(Additional Counsel Listed o1. ‘nside Cover)

Balmar Legal Publishing Department., Washington, D.C. (202) 682-9800

= oe

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BEST AVAILABLE COPY

Julie Becker

1401 H Street, N.W.

Suite 900

Washington, DC 20005

(202) 326-5511

Counsel for Alliance of

Automobile Manufacturers

Thomas M. Sneeringer

1101 17th Street, N.W.

Suite 1300

Washington, DC 20036

(202) 452-7100

Counsel for American

Iron and Steel Institute

Robin S. Conrad

National Chamber Litigation

Center, Inc.

1615 H Street, N.W.

Washington, DC 20062

(202) 463-5337

Counsel for Chamber of

Commerce of the United States

Virginia Ann Mullikin

P.O. Box 745

Camden, SC 29020

(803) 425-4595

Counsel for Environmental

Management Association of

South Carolina

——

David R. Case

734 15th Street, N.W.

Suite 720

Washington, DC 20005

(202) 783-0870

Counsel for Environmental

Technology Council

J. Walker Henry

Clark Hill P.L.C.

500 Woodward Avenue,

Suite 3500

Detroit, MI 48226-3435

(313) 965-8300

Counsel for Michigan

Manufacturers Association

Jan Amundson

1313 Pennsylvania Avenue, N.W.

Suite 1500

Washington, DC 20005

(202) 637-3055

Counsel for National

Association of Manufacturers

Deborah Ann Hottel

McNair Law Firm, P.A.

P.O. Box 11390

(803) 799-9800

Columbia, SC 29211

Counsel for South Carolina

Chamber of Commerce and

South Carolina Manufacturers

Alliance

a -_~

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Koy y

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES 000..0..0....cccccccccccccccecececceceseee il

STATEMENT OF INTEREST OF AMICI... 4

STATEMENT OF THE CASE..00..o.o.o.oeccccccccecceceoceeeeceee--... 6

SUMMARY OF ARGUMENT... 11

ES ELLE 12

!. Given FOE’s Abandonment Of Any Claim For

Equitable Relief, The Fourth Circuit Correctly

Determined That FOE’s Appeal Was Moot, As

Civil Penalties Alone Cannot Redress A

Party's Alleged Injury For — Of Article

Cl |?

Il. Alternatively, FOE’s Case Was Mooted By

Laidlaw’s Voluntary Cessation Of Permit

Exceedances, Because There Is No Reasonable

Expectation That Such Exceedances Will

Recur, And Any Effects Of The Exceedances

Have Been Completely Eradicated ............................ 17

Il. Contrary To FOE’s Contentions. The Finding

Of Mootness In This Case Will Advance The

Policies Underlying The Clean Water Act.................22

EE iaiiinianiainay 26

TABLE OF AUTHORITIES

Cases Page(s)

Arizonans for Official English v. Arizona,

SE Oi, GAIT 0 :ternssassreietenttinaiicisnmnctaiigenineemmaannenmnitianl 12

Arkansas Wildlife Fed’n v. ICI Americas, Inc.,

po mB Tk BE 25

Ashcroft v. Mattis, 431 U.S. 171 (1977) .......cccceeeeeeeeee es 14.15

ASLF v. Pan American Tanning Corp., 993 F.2d 1017

Ee ED ccnccinsnnemmmnsnnnanicndienneinipaiitinacemitaieneeniiduaaienanians 23

City of Los Angeles v. Lyons, 461 U.S. 95 (1983) ............0004 13

City of Mesquite v. Aladdin's Castle, Inc..

/ | 20

County of Los Angeles v. Davis,

ee, Ge icinrrtnnntcstcnsenesenmenmnmaninmennenes 17, 20, 22

Deakins v. Monaghan, 484 U.S. 193 (1988)...................... 14

EPA v. California ex rel. State Weter Resources Control

8 GR UES, Fe COD ccceressennanenmnenmnnnnmnen 3,7

Gwaltney of Smithfield, Lid. v. Chesapeake Bay Found..,

I 3, 24, 25

NE yy 12

Iron Arrow Honor Soc’y v. Heckler, 464 U.S. 68 (1983)... 20-21

Lewis v. Continental Bank Corp., 494 U.S. 472 (1990) ........ 13

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ...... 12. 16

Maine v. Taylor, 477 U.S. 131 (1986) .................ccceeeeeee 16-17

McLeod v. General Eleciric Co., 385 U.S. 533 (1967) ......... 21

Middlesex Coury Sewerage Auth. v. National Sea

Clammers Ass'n, 453 U.S. 1 (1981) ........ccccceeeeeeeeeeeeeeereeed

National Tre..sury Employees Union v. Von Raab,

' ho [0 7 18

il

Cases Page(s)

North & S. Rivers Watershed Ass'n v. Town of Scituate,

IU A cs 26

Pawtuxet Cove Marina, Inc. v. Ciba-Geigy Corp..

of > fe —

Powell v. McCormack, 395 U.S. 486 (1969) ........0000 13

Preiser v. Newkirk, 422 U.S. 395 (1975) o.oo. occccccccccccceccceee-. 12

Princeton University v. Schmid, 455 U.S. 100 (1982)........... 12

Public Interest Research Group of New Jersey, Inc. v.

Magnesium Elektron, Inc., 123 F.3d 111 (3d Cir. 1997).......... 19

SEC v. Medical Comm. for Civil Rights, 404 U.S. 403 (1972)...... 20

Steel Co. v. Citizens for a Better Environment.

AEE passim

Steffel v. Thompson, 415 U.S. 452 (1974) ooocccccccccccccccecee eee. 12

Sure-Tan, Inc. v. NLRB. 467 U.S. 883 (1984)... 17

United States v. Concentrated Phosphate Export Ass'n,

we | | RN EL saiieneeanniniienneninginasinaiogs 20

United States v. Oregon State Medical Society.

I 21

United States Parole Comm'n v. Geraghty,

I 13

United States v. W.T. Grant Co..

EE a a ee 17, 18, 20

Vitek v. Jones, 436 U.S. 407 (1978)... 21

Federal Statutes

Clean AirA 42U.S.C. § 7604 0000000023

EE LL ————

Pages

Clean Water Act, 33 U.S.C. § 1342...............ccccccssccresssesssensenees 7

i Trt hisiadintsohiedstiinaianetiniaincainaionbinapedeneiies 2

$ 1365 (D)(1)(A)........ceeeeeeeeeeeeee 9

7. = 18

Other Sources

Henry Monaghan, Constitutional Adjudication:

The Who and When, 82 Yale L. J. 1364 (1973)............... 13

Kenneth C. Davis, Standing: Taxpayers and Others, 35

Te Og eS 13

S. Rep. No. 92-414 (1971) .......:cccceeeeeeeeceeeteeteeees (pital

No. 98-822

IN THE

Supreme Court of the United States

OCTOBER TERM, 1998

FRIENDS OF THE EARTH, et ai.,

Petitioners,

v.

LAIDLAW ENVIRONMENTAL SERVICES (TOC), INC.,

Respondent.

On Writ of Certiorari to the United States Court

of Appeals for the Fourth Circuit

Brief Amici Curiae of the

ALLIANCE OF AUTOMGBILE MANUFACTURERS,

AMERICAN IRON AND STEEL INSTITUTE ,

CHAMBER OF COMMERCE OF THE UNITED STATES,

ENVIRONMENTAL MANAGEMENT ASSOCIATION OF

SOUTH CAROLINA,

ENVIRONMENTAL TECHNOLOGY COUNCIL,

MICHIGAN MANUFACTURERS ASSOCIATION,

NATIONAL ASSOCIATION OF MANUFACTURERS,

SOUTH CAROLINA CHAMBER OF COMMERCE

and the

SOUTH CAROLINA MANUFACTURERS ALLIANCE

IN SUPPORT OF RESPONDENT

This brief amici curiae of the Alliance of Automobile

Manufacturers, ef al., is submitted in support of Respondent

Laidlaw Environmental Services (TOC). Inc. (Laidlaw).

No portion of this brief was authored by counsel for a party, and no

person or entity other than the amici curiae and their members made a

2

This case involves a private enforcement action filed by

Petitioners Friends of the Earth, et al. (FOE), pursuant to

section 505 of the Federal Water Pollution Control Act (Clean

Water Act), 33 U.S.C. § 1365. In an opinion issued July 16,

1998, the United States Court of Appeals for the Fourth

Circuit ruled that FOE’s suit against Laidlaw was moot and

remanded the case to the district court with instructions to

dismiss. 149 F.3d 303, 307. The Fourth Circuit correctly

ruled that this case is moot, and amici, like Respondent,

submit that the court of appeals’ judgment should be

affirmed.

Laidlaw achieved compliance a number of years ago

with the Clean Water Act requirements that formed the basis

for FOE’s lawsuit, and there is no reasonable expectation that

the matters of which FOE complained in 1992 could reoccur.

It bears particular emphasis that Laidlaw’s compliance with

the Act was the combined result of two factors: (i) Laidlaw’s

own concerted efforts to achieve compliance, which were

undertaken in close coordination with the South Carolina

Department of Health and Environment Control (DHEC) and

prior to and entirely independent of FOE’s lawsuit; and (11) a

change in law -- the correction by DHEC of an unduly

stringent surface water discharge limit for mercury that was

monetary contribution to the preparation or submission of this brief. The

Petitioners and Respondent have consented to the filing of this briet and

their respective letters of consent have been filed with the Clerk of the

Court.

The industrial facility at issue in this case has been permanently

closed. In view of the plant closure, Respondent filed a Suggestion of

Mootness with the Court on June 9. 1999, which remains pending at this ume.

While amici believe that Laidlaw’s Suggestion of Mootness should be

dispositive. aynici's interest in this case transcends the plant closure. Thus, the

perspective from which amici address the issues before the Court 1s that

independent of the plant closure, this case became moot (1) as a result of

FOE’s failure to appeal the district court’s denial of equitable relief, or (11)

alternatively. as a result of Laidlaw’ s comphance with the Clean Water Act.

3

repeatedly described by the trial court as “drastic” and

“draconian.”

In addition, amici submit that an important aspect of the

context in which this case arises, and a significant factor in

amici’s interest in the case, is the longstanding recognition by

this Court and other courts that primary responsibility for

enforcement of the Clean Water Act is vested in the states.

See EPA v. California ex rel. State Water Resources Control

Bd., 426 U.S. 200, 207-08 (1976). In contrast, private

enforcement suits under section 505 of the Clean Water Act,

such as FOE’s suit here, were intended to serve a

supplementary role if government agencies fail to exercise

their enforcement responsibility. Gwaltney of Smithfield, Ltd.

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

In derogation of these principles, FOE’s enforcement suit

represented a duplicative and unnecessary action contrary to

the efforts of the regulated entity and the responsible state

agency, as well as the public interest. See ibid. Simply put,

Laidlaw found itself in the unenviable position -- a not

uncommon position for major industrial facilities -- in which

a Clean Water Act permit condition has proven to be unduly

stringent and is subsequently modified. The interposition of

FOE’s lawsuit reflects a frequent pattern in such

circumstances where duplicative citizen suits ride the coattails

of state enforcement and unnecessarily burden the federal

courts as well as defendants. These matters are of

considerable concern to amici and are especially compelling

in this case where more than seven years ago Laidlaw put in

place the requisite measures to reduce mercury discharges

(which had been the basis for FOE’s lawsuit) to levels that

consistently achieved the discharge limits finally established

for the facility at issue. In short, this case is moot and was

properly dismissed.

DHEC is the agency of state government responsible for

implementation and enforcement of the Clean Water Act in South

Carolina.

ee ee

4

STATEMENT OF INTEREST OF AMICI

As further described below, amici consist of voluntary

business and professional associations representing a broad

spectrum of industry in the United States. Amici’s members

hold thousands of surface water discharge permits which, like

the permits underlying this case, have been issued pursuant to

section 402 of the Clean Water Act, 33 U.S.C. § 1342. Amici

and their members are committed to the goals of the Act, and

to that end amici’s members spend vast sums, in coordination

with state and federal regulatory authorities, to upgrade and

enhance water pollution control at their industrial facilities.

The Alliance of Automobile Manufacturers (Alliance) is

a voluntary non-profit trade association of domestic (United

States) and international companies engaged in the

manufacture and sale of automobiles and light trucks. The

Alliance’s members’ operations in the United States

encompass 255 manufacturing facilities and approximately

600,000 employees. In addition, Alliance members represent

more than 90% of motor vehicle sales in the United States.

The American Iron and Steel Institute (AISI) is a trade

organization representing North American manufacturers,

processors and other producers of iron and steel and related

products. Virtually every domestic member of AISI is subject

to regulation under the Clean Water Act and parallel state

laws. AISI’s 50 member companies represent approximately

70% of steel production in the United States. AISI represents

the views of its members before courts and regulatory

agencies on issues of law and public policy that are of

significant concern to them.

The Chamber of Commerce of the United States

(Chamber) is the world’s largest business federation. The

Chamber represents an underlying membership of more than

three million businesses and organizations of every size,

sector and region. Ninety-six percent of the Chamber's

members are businesses with fewer than 100 employees. The

Chamber regularly advocates the interests of its members in

5

court On environmental issues of national concern to the

business community.

The Environmental Management Association of South

Carolina (EMA) is an association of environmental

professionals from South Carolina industry formed to

promote responsible waste management practices for

protection of the environment. EMA serves its members’

communities and businesses through Participation in

regulatory and legislative initiatives, educational programs

and other public advocacy.

The Environmental Technology Council (ETC) is a non-

profit corporation which serves as a national trade association

for commercial firms that provide technologies and services

for the recycling, treatment and secure disposal of industrial

and hazardous wastes. ETC’s membership also includes

companies involved in the cleanup of contaminated industrial

Sites.

The Michigan Manufacturers Association (MMA) is a

business association of private Michigan employers studying

matters of general interest to its members. promoting their

interests and the interests of all Michigan employers and the

general public in the proper administration of laws relating to

its members, and otherwise promoting the general business

and economic welfare of Michigan. MMA’s more than 4,000

members employ 90% of the industrial work force in

Michigan -- over one million people. An important aspect of

MMA’s activities is representing its members as an amicus

curiae in a broad range of matters before the courts.

The National Association of Manufacturers (NAM) is

the nation’s oldest and largest broad-based industrial trade

association. Its more than 14,000 member companies and

subsidiaries, including 10,000 small manufacturers, employ

approximately 85% of all manufacturing workers and produce

over 80% of the nation’s manufactured goods. More than

158,000 additional businesses are affiliated with NAM

; 6

through its Associations Council and National Industrial

Council.

The South Carolina Chamber of Commerce is the state’s

largest broad-based association of business and industry.

Operating as a statewide organization with more than 2.400

members, the South Carolina Chamber represents businesses,

industries, professions and associations of all sizes and types.

The South Carolina Chamber serves as a forum for consensus

building to facilitate presentation of a unified viewpoint on a

broad range of public policy and regulatory matters before

legislative, regulatory and judicial forums. The South

Carolina Chamber works actively to maintain the state’s

positive business climate while at the same time enhancing

the quality of life for all South Carolinians.

Finally, amicus South Carolina Manufacturers Alliance

(SCMA) represents more than 80 companies and over 140

industrial facilities in South Carolina. In addition, SCMA

members employ more than 80,000 South Carolinians in the

manufacture of a wide variety of products. SCMA works

closely with state and federal regulatory agencies to provide

information, guidance and leadership in the development of

laws, regulations and policies regarding environmental

protection in South Carolina. SCMA’s environmental

committee consists of the state’s leading scientists and

engineers, who have responsibility for environmental

management and compliance at their respective companies.

SCMA promotes sound engineering, science and economics

in both legislative and regulatory processes.

STATEMENT OF THE CASE

The underlying facts and procedural history are fully set

forth in Respondent’s brief (as well as the district court’s

decisions), and amici address only those facts that have

particular relevance to amici’s arguments in support of

Respondent.

7

When this suit was filed in June 1992. and for several

years thereafter, Respondent owned and operated a hazardous

waste incineration facility in Roebuck, South Carolina.

Wastewater from the air pollution control system for the

incinerator was directed to an onsite wastewater treatment

plant and discharged to the North Tyger River pursuant to a

National Pollutant Discharge Elimination System (NPDES)

permit that had been issued to Laidlaw’s predecessor by

DHEC." Soon after Laidlaw purchased the facility, DHEC

issued a new NPDES permit, effective January 1, 1987,

containing a number of more stringent effluent limits. The

most significant reduction was the effluent limit for mercury,

which was reduced from the previous daily maximum

discharge concentration of 20 parts per billion (ppb) to 1.3

ppb.

Recognizing that it had imposed a drastic and potentially

unattainable reduction in the discharge limit for mercury,

DHEC required a feasibility study of possible mercury control

technologies and included a permit “reopener” clause if the

new limit proved unattainable. The feasibility study was

completed by a consulting engineering firm and evaluated

eight possible alternative technologies. Initial testing of one

of the eight alternatives (carbon adsorption) appeared

promising, and as a result Laidlaw chose not to avail itself of

the permit reopener clause in order to seek a less stringent

mercury limit. J.A. 142-44. DHEC subsequently approved

installation of the carbon adsorption technology.

Nevertheless, the feasibility study concluded that complying

with the 1.3 ppb limit would be extremely difficult and

4

The 1972 amendments to the Clean Water Act established the

NPDES program, which is based on a system of permits that regulate the

discharge of pollutants to navigable waters of the United States. The

permit program is administered by the U.S. Environmental Protection

Agency and the various states, including South Carolina, to which

administration of the program has been delegated. See § 402 of the Act,

33 U.S.C. § 1342; see also EPA v. California, 426 U.S. at 205-08.

8

complex given that all available information from

manufacturers and performance results for currently available

technology indicated that the 1.3 ppb limit was not

achievable. J.A. 143.

Unfortunately, the carbon adsorption technology did not

allow Laidlaw to comply with the 1.3 ppb mercury limit

consistently. It also presented some difficulty (substantially

less) for other metals that were regulated under Laidlaw’s

NPDES permit. As a result, in September 1988 Laidlaw and

DHEC entered an administrative order on consent that

required further evaluation of control technology alternatives.

In accordance with a DHEC-approved compliance schedule, a

new treatment technology, referred to as the Lancy system,

was installed in late 1990/early 1991. J.A. 144-45. Although

the Lancy system, a sulfide precipitation-filtration technology,

achieved full compliance with all other effluent limits of the

Roebuck facility’s NPDES permit, compliance with the 1.3

ppb mercury limit continued to present difficulty, and by early

1992 DHEC officials began preparing an enforcement action

against Laidlaw, which resulted in a consent decree entered in

South Carolina state court. At the same time Laidlaw was

continuing its investigation of alternatives for meeting the 1.3

ppb mercury limit. Through experimentation with use of

activated carbon, micr-filtration and ion exchange, Laidlaw

discovered that the addition of activated carbon to the end of

the Lancy system would achieve compliance with the 1.3 ppb

limit. J.A. 145-47, 155. The district court commended

Laidlaw’s genuine efforts to achieve compliance, particularly

given the highly restrictive nature of the 1.3 ppb mercury

limit. J.A. 173-74.

As part of this effort, Laidlaw also severely restricted the feed rate

of mercury-bearing waste to the Roebuck facility’s incinerator. The

district court, however, found no demonstrated relationship between

reducing the mercury feed rate and compliance with the 1.3 ppb limit for

mercury. J.A. 155, 174-76.

9

During this same period, and well before Petitioners’

lawsuit, Laidlaw applied to DHEC for a new NPDES permit

which would, among other things, correct the unduly stringent

1.3 ppb mercury limit." In response, DHEC issued an

amended permit in 1993 providing new permit limits for a

number of pollutants, including mercury. J.A. 148. Laidlaw

appealed the 1993 permit because it continued to contain

erroneous requirements for mercury. First, the 1993 permit

failed to include both daily maximum and monthly average

mercury limits, even though NPDES regulations required

such two-part limits in order to control both short-term (acute)

and long-term (chronic) impacts on the receiving water. /bid.

Second, in determining the daily maximum -- or short-term --

component of the two-part limit, the 1993 permit had

incorrectly relied on water quality criteria that are intended

for use in determining longer term or chronic standards, such

as a monthly average limit for mercury (monthly average

limits are typically set at lower allowable pollutant

concentrations in comparison to the somewhat higher

pollutant concentrations that underlie short-term limits). The

1987 permit reflected the same shortcoming -- that is, the

daily maximum or acute limit for mercury was determined by

reference to water quality criteria that address chronic or

long-term impacts.

To address these matters, DHEC agreed in 1994 to

reissue the permit again and correct the permit’s requirements

for mercury. Specifically, the effluent limits for mercury in

the 1994 permit consisted of a new daily maximum discharge

concentration of 10 ppb and a monthly average concentration

limit of 1.25 ppb. The district court summarized these

changes in the new permit as follows:

Laidlaw’s NPDES permit renewal was filed on December 31, 1991,

four months before notice of intent to sue Laidlaw was issued by one of

the Petitioners, see Clean Water Act, § SOS(b 1A), 33 U.S.C. §

1365(b)(1)(A), and six months before Petitioners commenced suit in June

1992.

10

The 1994 Permit, therefore, significantly

altered Laidlaw’s discharge obligations in two

respects: it established a monthly average where

none had existed before, and it increased the daily

maximum to more than seven times what it had

been previously.

J.A. 148-49. The impact of these significant alterations to

Laidlaw’s discharge obligations is evident from the record.

Appendix A to the district court’s January 1997 opinion

chronicles all of Laidlaw’s mercury violations over the eight-

year period from January 1987 through January 1995. Of the

489 mercury excursions shown, 92 percent (or 449) would not

have been violations of the corrected limits for mercury in the

1994 permit. Within less than one week of the filing of this

lawsuit in June 1992, and continuing until the Roebuck plant

closed more than six years later, there were no discharge

concentrations for mercury that exceeded the 10 ppb daily

maximum limit of the 1994 permit.

Given Laidlaw’s state of compliance, and the absence of

any demonstrated harm to the environment, the district court

imposed a civil penalty but denied in all respects Petitioners’

request for an injunction and other equitable relief. J.A. 182-

83. Although Petitioners appealed the district court’s civil

penalty determination to the Fourth Circuit, Petitioners did

not challenge the district court’s denial of equitable relief. In

its Opinion addressing Petitioners’ appeal, the Fourth Circuit

found Petitioners’ relinquishment of their claim for equitable

relief to be dispositive, noting that “[bJecause Plaintiffs have

not appealed the denial of declaratory and injunctive relief,

the only potential relief that may be available to redress their

claimed injuries is the civil penalty imposed upon Laidlaw,

which would be paid to the United States Treasury.” 149

F.3d at 306. The court of appeals relied on this Court’s

decision in Steel Co. v. Citizens for a Better Environment, 118

S.Ct. 1003 (1998), in which the Court ruled that civil

penalties paid to the U.S. Treasury do not redress a private

plaintiff's alleged injury for violation of environmental laws.

Id. at 1019. The court of appeals concluded that FOE’s suit

against Laidlaw had become moot because civil penalties

payable to the government -- the only remedy available to

Petitioners, given relinquishment of their claim for injunctive

relief -- would not redress any injury FOE had suffered. 149

F.3d at 306-07. Accordingly, the court of appeals remanded

the case to the district court with instructions to dismiss.

SUMMARY OF ARGUMENT

To satisfy the Case-or-controversy requirement of Article

[Il of the Constitution, a federal court litigant must have a

personal stake in the outcome, which is a requirement

throughout the litigation. In this case. however, Petitioners

ceased to have a personal stake because they relinquished

their claim for injunctive relief regarding the Clean Water Act

violations at issue, and instead pursued only civil penalties (as

well as attorneys’ fees). This conclusion follows from the

fact that civil penalty relief, which is directed solely to the

United States Treasury, does not inure to the benefit of a

citizen plaintiff. Having relinquished the only claim for relief

which could provide the requisite personal stake, Petitioners’

case became moot.

Alternatively, this case is also moot because there was no

reasonable expectation (even before the Roebuck plant was

permanently closed) that Laidlaw would again be in violation

of its discharge permit. This follows from the fact that prior

to and independent of FOE’s lawsuit Laidlaw was already

vigorously pursuing the requisite pollution control measures,

and long ago achieved permanent and complete NPDES

compliance.

Finally, the determination of mootness in this case will

support, rather than conflict with, the congressional policies

underlying the Clean Water Act. Consistent with Congress’

intent that states have the primary role in enforcement of the

Act, determination of mootness will properly recognize the

unnecessary, Counterproductive nature of duplicative citizen

12

suits that ride the coattails of successful compliance efforts by

NPDES permittees and state regulatory authorities.

ARGUMENT

L Given FOE’s Abandonment Of Any Claim For Equitable

Relief, The Fourth Circuit Correctly Determined That

FOE’s Appeal Was Moot, As Civil Penalties Alone

Cannot Redress A Party’s Alleged Injury For Purposes

Of Article [II Justiciability

Under Article III of the Constitution, federal courts may

adjudicate only actual, on-going cases or controversies.

Arizonans for Official English v. Arizona, 520 U.S. 43. 64

(1997); Preiser v. Newkirk, 422 U.S. 395, 401 (1975). To

invoke Article III jurisdiction in the first instance, a litigant in

federal court (i) must have suffered (or be imminently

threatened with) an actual injury that (ii) is traceable to the

defendant's activities and (iii) is likely to be redressed by the

relief requested. Steel Co., 118 S. Ct. at 1016-17. These three

elements of injury in fact, causation and redressability form

the “irreducible constitutional minimum of standing,” Lujan

v. Defenders of Wildlife, 504 U.S. 555, 560 (1992), and are

the core of Article III's case-or-controversy requirement.

Steel Co., 118 S. Ct. at 1017.

The case-or-controversy requirement embodied in

standing doctrine, and the three prerequisites to standing,

must be met at every stage of review, not merely at the time

suit is brought. Steffel v. Thompson, 415 U.S. 452, 459 n.10

(1974); Arizonans for Official English, 520 U.S. at 67. If not,

the case becomes moot. /d. at 74. Normally, a case is moot

when the passage of time and intervening events have caused

the case to lose “its character as a present, live controversy of

the kind that must exist if [the Court is] to avoid advisory

opinions on abstract questions of law,"” Princeton University

v. Schmid, 455 U.S. 100, 103 (1982) (per curiam) (quoting

Hall v. Beals, 396 U.S. 45, 48 (1969) (per curiam)), or if the

13

parties no longer possess a “legally cognizable interest in the

outcome.” Powell v. McCormack, 395 U.S. 486, 496 (1969).’

For the purpose of the Court's mootness analysis in this

case, the pertinent question is whether the Petitioners continue

to have a genuine “personal stake” in resolution of the issues

they have brought before the Court. Lewis v. Continental

Bank Corp., 494 U.S. 472, 478 (1990) (at all Stages the

“parties must continue to have a ‘personal stake in the

outcome’ of the lawsuit.” (quoting City of Los Angeles v.

Lyons, 461 U.S. 95, 101 (1983))). “{Tjhe Article III question

is not whether the requested relief would [provide a benefit]

to the world at large, but whether [the litigant itself] has a

stake in that relief.” Lewis, 494 U.S. at 479. The personal

Stake requirement has no exceptions. Kenneth C. Davis,

Standing: Taxpayers and Others, 35 U. Chi. L. Rev. 601.

616-17 (1968)."

In this case, the Court has been asked to review the

Fourth Circuit’s decision to vacate as moot the imposition

against Laidlaw of civil penalties payable to the U.S. Treasury

~- relief in which Petitioners, as private parties, have no

personal stake, as they do not receive payment. Steel Co., 118

S.Ct. at 1018 (civil penalties paid to the Treasury do not

redress private plaintiff's injury for standing purposes because

mere gratification in seeing defendant punished and

?

The Court has described mootness as “the doctrine of standing set

im a time frame: The requisite personal interest that must exist at the

commencement of litigation (standing) must continue throughout its

existence (mootness)."” United States Parole Comm'n vy. Geraghty, 445

U.S. 388, 397 (1980) (quoting Henry Monaghan, Constitutional

Adjudication: The Who and When, 82 Yale LJ. 1364, 1384 ( 1973)).

The rule requiring litigants to have an “interest of their own at stake

18 applied so rigorously that it has been termed the ‘one major proposition’

in the law of standing to which ‘the federal courts have consistently

adhered . . . without exception.’” United States Parole Comm'n. 445 US.

at 412 (Powell, J., dissenting) (quoting 35 U. Chi. L. Rev. at 617).

14

deterrence of future harm, if deemed sufficient, “would make

the redressability requirement vanish”). Declaratory and

injunctive relief, which were denied by the district court due

to the absence of environmental harm and Laidlaw’s well-

established record of compliance, J.A. 182-83, arguably could

have provided the requisite personal stake. Petitioners,

however, abandoned their pursuit of equitable relief when

they appealed the district court's civil penalty ruling but

determined not to appeal the denial of an injunction. Clearly,

a claim becomes moot if, as in this case. it is abandoned on

appeal. See, e.g., Deakins v. Monaghan, 484 U.S. 193, 199-

201 (1988). Thus, in the absence of any request for relief that

could conceivably redress Petitioners’ professed injury, there

was no longer any cognizable case or controversy properly

before the Fourth Circuit.

The Court’s per curiam opinion in Ashcroft v. Mattis,

431 U.S. 171 (1977), is very much on point. There the

plaintiff filed suit, pursuant to 4* U.S.C. § 1983, against

police officers responsible for the ‘ing death of his son,

who was attempting to escape arres The plaintiff sought to

recover damages, and also to obtain a declaratory judgment

that the relevant state statute, which authorized the use of

deadly force to apprehend felons, was unconstitutional.

Finding that a defense of good faith had been established, the

district court denied both forms of relief. The plaintiff

appealed the denial of the declaratory judgment, but not the

denial of damages. The plaintiff's failure to appeal the

damages issue mooted not just the question of damages. but

the entire case, because the plaintiff's remaining interest in

the case -- that is, in a declaratory ruling as to the validity of

the state statute -- had been reduced to a mere abstract, non-

justiciable interest. In other words, the predicate for the

plainuff's action was the damages claim because it provided

the personal stake in the outcome that is a prerequisite to

standing. But having abandoned pursuit of damages, “[nJo

‘present nght’ of [plaintiff] was at stake.” /d. at 172.

15

In this case, as in Ashcroft, Petitioners abandoned the

one form of relief that could provide them with Standing,

thereby mooting the case. Just as the decision not to appeal

his claim for money damages divested the Ashcroft plainuff

of standing, Petitioners’ decision not to appeal their claim for

equitable relief divested them of standing in this case; and just

as the “emotional satisfaction” the Ashcroft plaintiff expected

to obtain from a declaratory judgment could not save his case

from mootness, id. at 173, neither can the “psychic

satisfaction” of seeing Laidlaw pay civil penalties to the

Treasury save Petitioners’ case from the same disposition.

Steel Co., 118 S. Ct. at 1019.

In this regard it bears emphasis that Steel Co. clearly

held that civil penalties paid to the Treasury do not redress a

private plaintiff's injury for purposes of Article III's case-or-

controversy requirement. /d. at 1018. Petitioners and their

supporting amici nevertheless misread that decision. They

insist that the Steel Co.'s redressability holding is limited to

instances where a claim is made to assess civil penalties for

wholly past violations, and does not apply if violations are on-

going when suit is brought. See, e.g., Pet’r Br. at 14-15, 20-

22; Brief of the United States as Amicus Curiae (Gov't Br.) at

9, 13. To the contrary, Steel Co. makes clear that the reason

civil penalties do not redress a private plaintiff's injuries is

because the private plaintiff does not receive them. 118 S. Ct.

at 1018.

Likewise, Petitioners and their supporting amici contend

that pursuit of civil penalties in the absence of a claim for

injunctive relief is sufficient to meet the redressability

element of standing for Article III purposes because of the

deterrent effect civil penalties may have when violations are

ongoing at the time a suit is filed. See, e.g., Pet’r Br. at 22:

Gov't Br. at 25-27. While amici disagree that civil penalties

would provide any deterrent under the facts of this case, the

more significant point is that Petitioners’ (and their amici’s)

argument proves too much. Specifically, for purposes of

Article III, the date of the complaint -- that is, whether there

16

are only pre-complaint violations -- has no significance: if the

deterrent effect of a civil penalty is sufficient to meet the

redressability element of standing in a case with post-

complaint violations, then that same deterrent effect would

also be sufficient in a case involving only pre-complaint

violations. That is because the role of the penalty in

encouraging compliance would be equally applicable in both

situations. Steel Co., however, makes clear that such

deterrence does not satisfy the case-or-controversy

requirement because in requesting civil penalties Petitioners

seek[ | not remediation of [their] own injury . . . but

vindication of the rule of law --_ the

“undifferentiated public interest” in faithful

execution of [the Clean Water Act]. This does not

suffice. .. . [I]t is [not] enough that [Petitioners]

will be gratified by seeing [Respondent] punished

for its infractions and that the punishment will deter

the risk of future harm. . . . Obviously, such a

principle would make the redressability requirement

vanish. .. . [A]lthough a suitor may derive great

comfort and joy from the fact that the United States

Treasury is not cheated, that a wrongdoer gets his

just deserts, or that the nation’s laws are faithfully

enforced, that psychic satisfaction is not an

acceptable Article III] remedy because it does not

redress a cognizable Article III injury.

118 S. Ct. at 1018-19 (citations omitted).

In short, absent the pursuit of a viable claim for

injunctive relief, the imposition of civil penalties payable to

the Treasury does not give a citizen plaintiff a sufficient

personal stake for Article III purposes. Having relinquished

their claim for equitable relief, the Petitioners’ appeal of the

district court’s civil penalty ruling was not for the vindication

of their own rights, but rather for “vindication of the rule of

law -- the ‘undifferentiated public interest’ in faithful

execution’” of the Clean Water Act. /d. at 1018 (quoting

Lujan, 504 U.S. at 577). See also Maine v. Taylor, 477 U.S.

“—

17

131, 137 (1986) (private parties have no judicially cognizable

interest in the prosecution of another); Sure-Tan, Inc. v.

NLRB, 467 U.S. 883, 897 (1984) (private parties have no

judicially cognizable interest in obtaining administrative

enforcement of the law). Simply put, Petitioners’ desire to

see a larger civil penalty imposed on Laidlaw simply fails to

meet Article III's justiciability requirements, and the Fourth

Circuit correctly decided that Petitioners’ case was moot.

II. Alternatively, FOE’s Case Was Mooted By Laidlaw’s

Voluntary Cessation Of Permit Exceedances, Because

There Is No Reasonable Expectation That Such

Exceedances Will Recur, And Any Effects Of The

Exceedances Have Been Completely Eradicated

As demonstrated above, FOE’s relinquishment of its

claim for equitable relief mooted this case. However, instead

of properly focusing on the decisive effect of FOE’s own

actions in mooting the case, FOE (and supporting amici)

mistakenly emphasize the “voluntary cessation” case law

exemplified by United States v. W.T. Grant Co., 345 U.S. 629

(1953), and on that basis contend that Laidlaw’s good faith

actions in achieving post-complaint compliance do not moot

this case. See, e.g., Pet’r Br. at 32-35; Gov't Br. at 17-19.

Contrary to those arguments, the actions taken by Laidlaw

provide a sound alternative basis for concluding that this case

iS Moot. )

Amici of course recognize that “voluntary cessation of

allegedly illegal conduct” does not of its own force moot a

case. W.T. Grant Co., 345 U.S. at 632. A case will, however,

be moot if (i) it can be “said with assurance” that there is no

reasonable expectation that the “alleged violation will recur”

and (ii) “interim relief or events have completely and

irrevocably eradicated the effects of the alleged violation.”

County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979).

“When both conditions are satisfied it may be said that the

case is moot because neither party has a legally cognizable

interest in the final determination of the underlying questions

of fact and law.” /bid. Both conditions are met in this case.

18

There is no reasonable expectation that Laidlaw will

again be in violation of its discharge permit.’ As explained in

detail by the district court, the vast majority of the permit

violations of which Petitioners complained occurred before

suit was filed, and Laidlaw was already vigorously pursuing

steps in coordination with DHEC to address the level of

mercury in the Roebuck facility's wastewater discharges at

the time that the statutorily-required notice of intent to sue

was given. In fact, within less than a week of the filing of this

suit, and continuing for more than six years thereafter (until

Laidlaw permanently closed the Roebuck facility), there were

no discharges of mercury in excess of the 10 ppb daily

maximum limit that was finally established for the facility."

In short, given the fact that for more than six years Laidlaw

consistently achieved the 10 ppb daily maximum limit (a limit

seven times /ess stringent than the incorrect and “draconian”

limit previously in effect), there was certainly “no reasonable

expectation” that violations would recur. W.T. Grant Co., 345

U.S. at 633.

Of course, now that Laidlaw has permanently closed the Roebuck

facility and removed or sold tts incineration equipment, that reasonable

expectation is an absolute certainty. See Respondent's Suggestion of

Mootness, Case No. 98-822, at 4 (June 9, 1999); see also supra note 2.

“ According to the district court, there were 14 exceedances of the

“old” maximum daily mercury limit of 1.3 ppb on or after June 12, 1992,

the day Petitioners filed suit. J.A. 195. As the district court recounted, the

1.3 ppb permit limit was calculated incorrectly and eventually changed to

10 ppb to remedy the error. J.A. 148-49. In determining whether a case is

moot, courts should retroactively apply administrative rulings in effect at

the time of decision-making on appeal. See, e.g., National Treasury

Employees Union v. Von Raab, 489 U.S. 656, 661 n.1 (1989). This ts

fully consistent with the principle that an NPDES permit condition cannot

be challenged in an enforcement proceeding. See 33 U.S.C. § 1369(b)(2).

That is because the issue for purposes of determining mootness 1s not

whether the actions of the permittee at a previous point in time would have

constituted a permit violation, but whether due to intervening events the

parties no longer have a cognizable interest in the outcome.

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Likewise, the effects of Laidlaw’s violations, assuming

that there were any effects, have been completely and

irrevocably eradicated. As the district court found

Laidlaw’s monitoring and reporting deficiencies, all

of which have long since been resolved, produced

no direct environmental impact. There has been no

demonstrated proof of harm to the environment.

. . . [N]Jo fish in [the North Tyger] river has a

mercury level even one-quarter of a limit that is ten

times lower than necessary to protect human health.

This test result, considered together with the nine

years of acute and chronic toxicity testing data as to

the effect of Laidlaw’s total effluent on all other

aspects of the stream, leads the court to conclude

that Laidlaw’s effluent, even with the permit

exceedances it has experienced, has had no

demonstrated adverse affect on the environment.

J.A. 162, 164. Thus, the second condition for mootness is

clearly met as well. Indeed, Laidlaw caused no injury and

there were no effects that needed to be redressed.''

Laidlaw’s conformity with the standard for mootness

enunciated in Davis is readily demonstrated by comparing

Laidlaw’s actions to those of the defendants in the “voluntary

compliance” cases. Here, Laidlaw’s actions to address its

mercury discharges were well underway prior to FOE’s

complaint, and thus were taken independent of, and without

regard to, FOE’s lawsuit. In contrast, where the Court has

concluded that voluntary cessation of a defendant's actions

The district court’s finding that there was no harm to the

environment provides another basis tor concluding that Petitioners’ claims

are not justiciable. See, e.g., Public Interest Research Group of New

Jersey, Inc. v. Magnesium Elektron, Inc., 123 F.3d Vit, 120-23 (3d Cir.

1997) (case not justiciable without injury in fact)

20

did not moot a case, the facts demonstrated post-suit cessation

only, significant possibilities for backsliding, and/or cosmetic

changes or only partial reform. See, e.g., W.T. Grant Co., 345

U.S. at 634 (defendant had previously retused to terminate the

illegal actions at issue -- interlocking directorates -- “despite

five years of administrative attempts to persuade him of their

illegality,” and defendant would not commit to avoiding

stmilar violations in the future); City of Mesquite v. Aladdin's

Castle, Inc., 455 U.S. 283, 289 & n.11 (1982) (city’s repeal of

objectionable ordinance did not preclude it from reenacting

precisely the same provision if judgment were vacated, and

city had announced just such an intention); United States vy.

Concentrated Phosphate Export Ass'n, 393 U.S. 199, 203

(1968) (in antitrust injuncuion action against association as

well as its individual members, mere fact of dissolution of the

association and statement that it was uneconomical to resume

the conduct at issue was insufficient to satisfy mootness

burden).

In sharp contrast to the cases discussed above are cases

which the Court found moot based on voluntary compliance.

In those cases, the Court relied on the defendant's good faith

efforts to comply, the permanence of the changes made to

achieve compliance, the history of compliance (or attempted

compliance) prior to suit and/or consistent compliance

thereafter. See, e.g.. Davis, 440 U.S. at 631-33 (fire

department's good faith efforts at revamping hiring practices

so as to address past discrimination indicated past practices

would not recur despite district court’s finding of necessity

for injunction and fact that remedial measures post-dated

commencement of litigation); SEC v. Medical Comm. for

Civil Rights, 404 U.S. 403, 406 (1972) (where defendant

corporation declined to include disputed shareholder proposal

in proxy statement until after suit was brought, fact that

proposal ultimately garnered little shareholder support led

Court to speculate that corporation would in the future include

proposal in its proxy statements, rather than repeat litigation,

thereby mooting case). Cf Jron Arrow Honor Soc’y vy.

Heckler, 464 U.S. 68, 72 (1983) (per curiam) (Court

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21

determined that case was moot because there was no

reasonable likelihood that university, having reversed position

that gave rise to controversy, would later change its mind).

The factual similarities between the cases discussed

immediately above and this case are thoroughly demonstrated

in the record, and “voluntary cessation” moots Petitioners’

claims. More specifically, long before receiving Petitioners’

pre-suit notice letter, Laidlaw was well on its way to

achieving compliance, having installed additional pollution

control equipment in close coordination with the responsible

State agency; compliance was achieved shortly after suit was

brought and was consistently maintained for over six years:

and most of the discharge violations were the result of an

excessively restrictive permit limit that was technologically

impossible to meet consistently, and which was subsequently

corrected. The Court, accordingly, should conclude that Laidlaw

met its burden of demonstrating mootness through its own

successful actions to achieve compliance, as those actions “did not

consist merely of pretensions or promises but [were] overt and

visible [efforts] carried out by extensive operations which [had]

every appearance of being permanent,” and “[t}he record

discloses no threat or probability of resumption” of the disputed

actions. United States v. Oregon State Medical Soc’y, 343 U.S.

326, 334 (1952).

In sum, Laidlaw’s voluntary efforts in achieving

compliance provide a sound alternative basis for affirming the

court of appeals’ judgment.’

" Citing Vitek v. Jones, 436 U.S. 407, 410 (1978), and McLeod v.

General Electric Co., 385 U.S. 533, 535 (1967), the United States

suggests that if Laidlaw’s voluntary compliance eliminated any reasonable

prospect of future violations, the proper course was for the Fourth Circuit

to remand the case to the district court for consideration of mootness.

Gov't Br. at 22. Both Vitek and McLeod addressed new developments that

potentially mooted the case, but which the courts below had not had the

opportunity to consider. That 1s not the situation here, as the facts that

moot this case -- Laidlaw’s permanent compliance -- were extremely well

developed on the record before the district court. In such circumstances, it

””D

Ill. Contrary To FOE’s Contentions, The Finding Of

Mootness In This Case Will Advance The Policies

Underlying The Clean Water Act

Petitioners also contend that declaring this case moot

will conflict with the congressional policies underlying the

Clean Water Act. Pet’r Br. at 35-40. To the contrary, the

determination of mootness tn this case supports those policies,

and Petitioners’ opposing arguments are unsound.

First, Petitioners set up a strawman, suggesting that the

court of appeals’ mootness determination means that “civil

penalties cannot be imposed for any violations as long as the

defendant comes into compliance some time during the

pendency of the case.” /d. at 38. To the contrary, this case 1s

moot because Laidlaw achieved, through good faith efforts, a

permanent state of compliance, which was demonstrated over

an extended period, and neither Respondent nor amici suggest

in any way that mootness occurs simply by “com|[ing] into

compliance some time during the pendency of the case.” /bid.

Moreover, although Petitioners argue that Respondent's (and

aumict’s) position gives “the defendant . . . every incentive to

continue its noncompliance,” ibid., in tact just the opposite

incentive is created. Thus, the more promptly the defendant

implements the measures necessary to eliminate the cause of

violations, the greater the likelihood that a case will be moot

or, if the case is not moot, that the defendant will succeed in

mitigating its civil penalty exposure. The “Russian roulette”

strategy that Petitioners attribute to NPDES permittees --

choosing to prolong noncompliance -- is irrational.

Petitioners also make the flawed argument that the court

of appeals’ ruling will create a disincentive for plaintiffs to

bring Suits under section 505, which are “often initiate[d] . . .

is enurely appropriate for the Court to consider whether Laidlaw’s

documented, long-term compliance mooted the case. See, e.g., Davis, 440

U.S. at 634 (Court found defendant's voluntary actions mooted the case,

even though lower courts apparently had not addressed the issue).

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to ensure that penalties are imposed.*” /d. at 39 (quoting

ASLF v. Pan American Tanning Corp., 993 F.2d 1017, 1021

(2d Cir. 1993)). In considering this argument, it bears

emphasis that section 505 was “expressly modeled” after the

citizen suit provision in section 304 of the Clean Air Act, 42

U.S.C. § 7604. Middlesex County Sewerage Auth. v. National

Sea Clammers Ass'n, 453 U.S. 1, 17 0.27 (1981). Under both

statutes the trial court could issue an enforcement order or

injunction. While section 505 added authority (which was

then absent from section 304) for the court to supplement its

injunction with civil penalties, section 505 reflected “no

change in purpose” from section 304. Pawtuxet Cove

Marina, Inc. v. Ciba-Geigy Corp., 807 F.2d 1089, 1092-93

(Ist Cir. 1986). Legislative history shows that section 505

was “carefully restricted” to the same types of actions as

section 304, see S. Rep. No. 92-414 (1971), reprinted in 2 A

Legislative History of the Water Pollution Control Act

Amendments of 1972 (CWA Leg. Hist.) at 1497 (1973) -- that

is, to abatement or injunction actions; “successful abatement”

is, of course, the intended “result of a citizen proceeding.” S.

Rep. No. 92-414 at 81, 2 CWA Leg. Hist. at 1499. In short,

section 505 is fundamentally an injunctive remedy and is not

intended, as Petitioners argue, “to ensure that penalties are

imposed.” Nothing in the court of appeals’ decision detracts

from the purpose Congress intended.’

eel

i%

The injunction remedy of section 304 of the Clean Air Act was later

supplemented with civil penalties. See Pub. L. No. 101-59, § 304, 104

Stat. 2399, 2576-77 (1990) (codified as amended at 42 U.S.C. § 7604).

Petitioners further contend that affirmance here would encourage

defendants in other citizen suits to engage in dilatory litigation tactics in

order to “buy time” to come into compliance, and thereby increase their

chances of avoiding the imposition of civil penalties. Pet’r Br. at 38. If

ciuzen plainuffs find themselves confronted with unjustified, dilatory

litigation tactics, they have the full arsenal of remedies available to every

civil liugant in federal court. See, e.g., Fed. R. Civ. P. 11 (addressing

frivolous pleadings and motions practice); 16(b) (addressing scheduling of

litigation, including time limits on motions and discovery); and 37

(providing sanctions for discovery abuse).

24

Aside from offering invalid policy arguments, Petitioners

fail to consider the policy consequences of allowing a citizen

suit to proceed under the circumstances of this case. As the

district court emphasized, faced with the extremely difficult

task of attempting to meet the 1.3 ppb mercury limit, Laidlaw

would have been justified at several points in abandoning that

effort and seeking a less stringent mercury limit under the

1987 permit’s reopener clause. See J.A. 177-78. This is

similar to the hypothetical the Court described in Gwaltney, in

which an NPDES permittee, as part of the resolution of an

enforcement process, agreed to

take some extreme corrective action, such as to install

particularly effective but expensive machinery, that it

otherwise would not be obliged to take. If citizens

could file suit, months or years later, in order to seek

the civil penalties that the Administrator chose to forgo,

then the Administrator's discretion to enforce the Act

in the public interest would be curtailed considerably.

The same might be said of the discretion of state

enforcement authorities.

484 U.S. at 61. In this case, Laidlaw would have been fully

justified, as any NPDES permittee in Laidlaw’s position

would have been, in pursuing the reopener clause of the 1987

permit and, if necessary, challenging an insufficient response

by DHEC. That would have been especially true if at the time

Laidlaw had already been confronting the specter of FOE’s

entirely duplicative citizen suit. But as the district court

Finally, Petitioners complain that, if the Court were to affirm, citizen

plaintiffs would have a “to appeal every denial of injunctive relief” in

order to keep civil penalty claims alive on appeal. Pet’r Br. at 39.

Contrary to Petitioners’ implication, the Fourth Circuit's decision does not

encourage unnecessary appeals of orders denying injunctive relief.

Instead the court of appeals’ decision simply recognizes that a civil

penalty-only appeal loses its character as a justiciable case-or-controversy

where the one form of relief that provides the plaintiff's requisite personal

stake is relinquished.

25

emphasized, “[i}nstead, Laidlaw elected the more difficult and

costly path: install the technology in an attempt to meet the

1.3 ppb limit.” J.A. 177. And just as in the Gwaltney

hypothetical, the environment benefited from Laidlaw’s

choice because

for the foreseeable future [Laidlaw was required to]

comply with a mercury limit that [was] determined

in part by the fact that it ha{d] purchased the

technology to achieve an unusually restrictive limit.

The limit ordinarily would have been much higher.

J.A. 178-79. Put another way, what public policy is achieved

by penalizing a permit holder for failing to meet unattainable

standards’? The answer is, of course, none. Laidlaw pursued

cutting-edge pollution control in a vigorous effort to achieve

extremely stringent standards. To allow suits like FOE’s

under these circumstances will only serve to discourage such

initiative.

Finally, throughout the difficult process of attempting to

achieve compliance with the 1.3 ppb limit, Laidlaw kept

DHEC apprised of all efforts to achieve compliance,

including review and approval of each of the studies,

recommendations, and wastewater treatment system

modifications Laidlaw made to achieve compliance with its

permit. See J.A. 174. Allowing Petitioners to maintain their

entirely duplicative enforcement action in such circumstances

disregards this Court's admonition that states have primary

authority and discretion to enforce the Clean Water Act. See

Gwaltney, 484 U.S. at 60-61. NPDES permittees in Laidlaw’s

position will not agree to the extreme corrective measures that

Laidlaw pursued if they will nevertheless face the specter of a

duplicative citizen suit that rides the coattails of

comprehensive state enforcement. See Arkansas Wildlife

Fed'n v. ICI Americas, Inc., 29 F.3d 376, 383 (8th Cir. 1994)

(allowing duplicative citizen suit “despite a state's diligent

efforts at administrative enforcement, could result in undue

interference with, or unnecessary duplication of, the

legitimate efforts of the state agency. We believe that such a

26

result would undermine, rather than promote, the goals of the

[Clean Water Act], and is not the intent of Congress”). In

short, as explained in North & S. Rivers Watershed Ass'n v.

Town of Scituate, 949 F.2d 552, 556 (ist Cir. 1991):

Duplicative actions aimed at exacting financial

penalties in the name of environmental protection at a

tume when remedial measures are well underway do

not further [that] goal. They are, in fact, impediments

to environmental remedy efforts.

CONCLUSION

In view of the foregoing, amici curiae Alliance of

Automobile Manufacturers, et al., respectfully urge the Court

to affirm the judgment of the court of appeals.

Respectfully submitted,

Scott M. DuBoff*

Kenneth S. Kaufman

WRIGHT & TALISMAN, PC.

1200 G Street, N.W.

Suite 600

Washington, DC 20005-3802

(202) 393-1200

Counsel for Amici Curiae

Alliance of Automobile Manudacturers, et al

*Counsel of Record