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

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FILTED

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i JUL 19 1999

No. 98-822 LSS Os Tae GER

3n the Supreme Court of the United States

FRIENDS OF THE EARTH, ETAL.,

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

WASHINGTON LEGAL FOUNDATION

AND ALLIED EDUCATIONAL FOUNDATION

IN SUPPORT OF RESPONDENT

DANIEL J. POPEO

PAUL D. KAMENAR

Counsel of Record

WASHINGTON LEGAL FOUNDATION

2009 Massachusetts Ave., N.W.

Washington, D.C. 20036

(202) 588-0302

Date: July 19, 1999

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ........................ ii

INTERESTS OF AMICI CURIAE ................... l

STATEMENT OF THE CASE ...................... 3

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

a cuccueoens 6

I. PLAINTIFFS LACK’ ARTICLE III

ae te ee 8

A. Plaintiffs Have Not Satisfied the Injury-

in-Fact Requirement of Standing ........ 10

B. Plaintiffs Have Failed to Demonstrate

That Laidlaw Has Caused The Alleged

Environmental Injuries To Their

Members Which Can Be Redressed... . . 16

II. PLAINTIFFS LACK STATUTORY

I re Ge 22

Ill. | THE PUBLIC INTEREST IS NOT SERVED

BY CITIZEN SUITS SUCH AS THIS ONE .... 24

EE Feu oe ddk a deo Cook oe oo Oo ok wee cwhwes 26

il

TABLE OF AUTHORITIES

Cases: Page

Allen v. Wright,

466 U.S. 737 (1GOD .. wc coesstesse eee 8

Bender v. Williamsport Area Sch. Dist.,

473 U.S. S36 (UGG... 8 0 ccs tee eee 8

Bennett v. Spear,

520 U.S. ISS CISPFD . «ce ccviccenneen ee 8

Dubois v. U.S. Dep't of Agriculture,

20 F. Supp.2d 263 (D.N.H. 1998) .......... 17, 20

Federal Election Comm'n y. Atkins,

18S S. Ce 1777 (OGRE oc oc ce cnseeeeeeeeeeee 15

Friends of the Earth v. Gaston Cooper Recycling Corp.,

___ F.3d , 1999 U.S. App. LEXIS 11201

(4 Cir. Sane 2. SGGGP 6 ce csee eee 15

Friends of the Earth v. Laidlaw Envt'l Servs. ,

956 F. Supp. 588 (D.S.C. 1997) ........ Passim

Friends of the Earth v. Laidlaw Envt’l Servs.,

149 F.3d 303 (4th Cir. 1998)........... Passim

FW/PBS, Inc. v. City of Dallas,

G03 U.S. 253 CORRE oe ev eee eee 7,8

Gwaltney of Smithfield v. Chesapeake Bay Found..,

406 U.S. GP CIGRTD oo csheseesee eee 22

Informed Citizens United, Inc. v. USX Corp..,

1999 WL 76266 (S.D. Tex. Feb. 9, 1999) .... 16

Juidice v. Vail,

450 US. SF COG eD oc eve wcvasseeesae 7

Lujan v. Defenders of Wildlife,

506 US. SS Gee 6 6.6 ste eee Passim

Ogden Projects, Inc. v. New Morgan Landfill Co..,

911 F. Supp. 863 (E.D. Pa. 1996).......... 16

Preiser v. Newkirk,

Gin U.S. TOD GIVE 6 os 00 4eee eee 7

iil

Public Citizen v. Dep't of Justice,

ES. ch ecceacececccces: 15

Public Interest Research Group of N.J. v. Magnesium

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

DEE ie eee eee bee eceeccesc. Passim

Secretary of State of Maryland v. Joseph H. Munson, Co..,

I 8

Sierra Club v. Simpkins,

847 F.3d 1109 (4th Cir. 1998) ............ 15

Steel Co. v. Citizens for a Better Env't,

Ds < . cccccencceseees Passim

Washington Area Pub. Interest Research Group v. Pendleton

Woolen Mills, 11 F.3d 883 (9th Cir. 1993) ...... 24

Constitution and Statutes:

Tene Tn nnn ee a cece censeee Passim

Clean Water Act

oe 3

ee te te 8 11, 25

ED. occ ence ccessece 22

Miscellaneous:

EPA, ENVIRONMENTAL PROGRESS AND CHALLENGE:

en sone neces eteeees 19

Michael Greve, The Private Enforcement of Environmental

Law, 65 Tulane L. Rev. 339 (1990). ........ . .25, 26

Richard Lazarus, Rise and Demise of the Citizen Suit,

15 Envtl Forum, No. 5 (Sept.-Oct. 1998) .... 24, 25

RICHARD POSNER, THE ECONOMIC ANALYSIS OF LAW

a 26

os ace wecesectneece 7

BRIEF AMICI CURIAE OF THE

WASHINGTON LEGAL FOUNDATION

AND ALLIED EDUCATIONAL FOUNDATION

IN SUPPORT OF RESPONDENT

INTERESTS OF AMICI CURIAE'

The Washington Legal Foundation (WLF) is a non-

profit public interest law and policy center based in

Washington, D.C., with supporters nationwide. WLF

devotes substantial resources to litigating cases and

publishing educational materials that promote, inter alia, a

limited and an accountable government, the proper role of

the judiciary, and reasonable government regulation.

Excessive regulation, related litigation, and excessive

penalties and attorney fee awards add enormous and

unnecessary burdens to our economy in the form of

increased consumer prices, lower productivity, and loss of

jobs.

WLLF has participated as amicus curiae in the Supreme

Court and lower federal courts in numerous cases that are

relevant to this case. In some of those cases, WLF argued

that the plaintiffs lacked Article II] standing. See, e.g., Steel

Co. v. Citizens for a Better Env't, 118 U.S. 1003 (1998);

Lujan v. National Wildlife Fed'n, 497 U.S. 871 (1990);

' Pursuant to Supreme Court Rule 37.6, no counsel for a

party in this case authored this brief in whole or in part, and no

persons or entities other than amicus Washington Legal

Foundation, its supporters, or counsel, contributed financially to

the preparation or submission of this brief. This brief is being

filed with the written consent of the parties which have been filed

with the Clerk.

2

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992); Public

Interest Research Group of New Jersey v. Magnesium

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

WLF has also challenged the validity of the

Environmental Protection Agency's (EPA) flawed BEN

Economic Model. EPA and the courts use the BEN Model

in cases such as the one at bar to assess civil penalties for

environmental violations by computing the economic benefit

to the facility for noncompliance. WLF discovered through

the Freedom of Information Act (FOIA) that the EPA had

suppressed evidence suggesting that the BEN Model

exaggerated the economic benefit of noncompliance which

resulted in the assessment of inflated civil penalties. See

Washington Legal Foundation v. United States EPA, CA

No. 93-1202 (CRR) (D.D.C. 1996); see also 64 Fed. Reg.

32948, 32972 (June 18, 1999) (referring to disclosure of

documents in response to WLF's FOIA lawsuit).

The Allied Educational Foundation (AEF) is a nonprofit

charitable and educational foundation based in New Jersey.

Founded in 1964, AEF is dedicated to promoting education

in diverse areas of study, including law and public policy,

and has appeared as a co-amicus curiae in numerous cases

with WLF.

While amici support all of the arguments made by the

respondent, WLF will focus upon the jurisdictional issues in

this case. In particular, while amici believe the court of

appeals correctly decided that this case was moot, amici will

argue that the lack of constitutional and statutory standing

provide this Court with alternative grounds upon which to

affirm the court of appeals.

3

STATEMENT OF THE CASE

In the interests of judicial economy, amici hereby adopt

the Statement of the Case as presented in the respondent's

brief. In brief, Laidlaw Environmental Services (TOC),

Inc. (Laidlaw) operated a hazardous waste incinerator in

Roebuck, South Carolina since 1986 when it was issued a

National Pollution Discharge Elimination System (NPDES)

permit by South Carolina's Department of Health and

Environment Control (DHEC) pursuant to Section 402 of the

Clean Water Act. 33 U.S.C. § 1342. The permit authorized

Laidlaw to discharge certain waste metals into the North

Tyger River within certain limits. Friends of the Earth v.

Laidlaw Environmental Services (TOC), Inc., 956 F. Supp.

588 (D.S.C. 1998). The prior operator of the facility was

permitted to discharge up to 20 parts per billion (ppb).

However, DHEC proposed to set the standard for Laidlaw

at an exceedingly low level of only 1.3 ppb under EPA's

1986 water quality standard. That level is well below the 2

ppb of mercury considered to be a safe level for drinking

water.

Laidlaw expended considerable resources for technical

feasibility studies and other costs to achieve this extremely

low level of discharge. Through the diligent efforts of

Laidlaw's personnel, Laidlaw was able to develop

technology to achieve the 1.3 ppb level for mercury.

Eventually, the permit was modified to allow for 10 ppb,

although it could have been legally set as high as 200 ppb

but for Laidlaw's demonstrated efforts that it could reduce

the levels. 956 F. Supp. at 598.

From 1987 to 1992, Laidlaw had intermittently

exceeded what the district court referred to as the

4

"draconian" low limits for mercury despite Laidlaw's best

efforts to do otherwise. By 1991, Laidlaw had met the

discharge levels for all of its other non-mercury metals. In

addition, Laidlaw had committed technical and minor

reporting violations that were characterized by the district

court as "anomalies." /d. at 602. The crucial finding by the

court, however, was that there was no showing of

environmental harm from these mercury exceedances and

reporting errors. /d.

Nevertheless, plaintiff Friends of the Earth, having

obtained Laidlaw's discharge data that it was required to file

with the EPA and DHEC, submitted a 60-day notice of

intent to sue letter under the Clean Water Act to Laidlaw

and federal and state agencies, even though Laidlaw had

been working closely with DHEC to develop ways to

prevent the occasional exceedances, and had greatly reduced

them. A few days before the 60-day period expired, DHEC

and Laidlaw entered into a consent order in state court to

resolve the violations and to pay a fine. While the Clean

Water Act precludes a citizen suit when such actions have

been commenced by state or federal authorities, the plaintiff

filed a citizen suit in federal court alleging that they and

their members have suffered both informational injuries and

harm to their environmental interests in the North Tyger

River.

The trial court concluded that the plaintiffs barely had

standing, that the suit was not precluded by DHEC's action,

imposed civil penalties of approximately $400,000 for the

technical violations, but denied plaintiffs' request for

declaratory and injunctive relief because of Laidlaw's

substantial compliance, good faith efforts, and the lack of

environmental harm.

5

The plaintiffs appealed, claiming that the fines should

have been higher, while Laidlaw argued on appeal that the

plaintiffs lacked both constitutional and statutory standing to

bring the action in the first place. The court of appeals

reserved ruling on those issues, and instead held that

because the plaintiffs did not appeal the denial of injunctive

relief, that meant that the only relief available was the

payment of civil penalties by Laidlaw to the U.S. Treasury.

However, the payment of fines would not redress any injury

suffered by the plaintiffs; consequently, the case was

therefore rendered moot by the action of the plaintiffs. 149

F.3d 303, 306 (4th Cir. 1998). In so ruling, the court of

appeals relied on this Court's recent decision in Steel Co. v.

Citizens for Better Environment, 118 S. Ct. 1003 (1998).

Laidlaw has since closed its facility.

SUMMARY OF ARGUMENT

While this Court can affirm the judgment of the court of

appeals either on the mootness grounds relied upon by the

court (lack of redressability of the injury by civil fines), or

on the more traditional mootness grounds presented in

Laidlaw's Suggestion of Mootness (cessation of complained

of conduct), amici submit that the judgment can be affirmed

on alternative jurisdictional grounds: that the plaintiffs lack

both constitutional and statutory standing to litigate this

case.

Because the district court found that there was no

environmental harm caused by Laidlaw's discharges, neither

the plaintiffs nor their members suffered any perceptible and

judicially cognizable injury-in-fact, let alone any injury that

could be redressed by the imposition of civil penalties.

Mere exceedances of a permit, or the plaintiffs’ "psychic

6

concerns" about those exceedances, do not ipso facto

constitute injury-in-fact to satisfy the first of three prongs of

Article III standing.

Furthermore, the court lacked jurisdiction to adjudicate

this case because the plaintiffs lacked statutory standing to

file it in the first place. The citizen suit provision of the

Clean Water Act authorizes the filing of such suits only

where the federal government or state authorities have not

commenced and are not diligently prosecuting an action to

require compliance. Here, the record indisputably shows

that the South Carolina DHEC commenced an action to

require compliance, and diligently prosecuted that action

before the plaintiffs filed a duplicative suit in federal court.

J.A. 72. Congress intended that citizen suits should

supplement, not supplant, duplicate, or disrupt federal or

state agency enforcement of the permits under the Clean

Water Act.

In short, this seven-year old lawsuit appears to be less

about a case of genuine citizen concern for the protection of

the environment, and more about a case of a concern by a

few national professional groups to continue exploiting the

"citizen suit" provisions of the Clean Water Act for their

personal benefit by reaping large attorneys fees awards, and

by seeking excessive fines or extorting settlements against

responsible companies which have demonstrated their

commitment to meet, if not exceed, anti-pollution standards.

ARGUMENT

Even though the court of appeais deferred addressing

the issues of statutory and constitutional standing, the

petitioners’ first question presented to this Court is expressly

7

premised on their assertion that they possessed standing not

only when they filed the underlying action in 1992, but

continue to suffer injury-in-fact to this day.’ Accordingly,

the issues of standing, both statutory and constitutional, are

presented before this Court, or at least are “subsidiary

question[s] fairly included" within the question presented.

Sup. CT. R. 14.1(a).

But even if the questions presented did not expressly

raise or implicate the standing issue, this Court has an

independent duty to determine sua sponte whether the

plaintiffs have standing and the case is live controversy

throughout all successive stages of the litigation. Juidice v.

Vail, 430 U.S. 327 (1977); Preiser v. Newkirk, 422 U.S.

395 (1975); Lujan v. Defenders of Wildlife, 504 U.S. 555,

561 (1992).

Federal courts are courts of limited jurisdiction and the

"obligation on the court to examine its own jurisdiction

continues at each stage of the proceedings, even if no party

> Petitioners’ first Question Presented states:

1. Whether a citizen suit seeking civil penalties under

Section 505 of the Clean Water Act is constitutionally

moot under Steel Co. v. Citizens for Better

Environment, 118 S. Ct. 1003 (1998), due to lack of

redressability, where plaintiffs had standing at the time

of the complaint and have shown continuing injury-in-

fact but have not obtained injunctive relief.

Pet. for Cert. at i (emphasis added).

8

raises the jurisdictional issue and both parties are prepared

to concede it." FW/PBS, Inc. v. City of Dallas, 493 U.S.

215, 230 (1990); Secretary of State of Maryland v. Joseph

H. Munson, Co., 467 U.S. 947, 954, n.4 (1984). This

Court has remarked that standing is “perhaps the most

important" of jurisdictional doctrines. FW/PBS Inc., 493

U.S. at 230, quoting Allen v. Wright, 468 U.S. 737, 750

(1984). In short, standing is a jurisdictional issue that can

be raised at any time. Bender v. Williamsport Area Sch.

Dist., 475 U.S. 534, 541 (1986).

Accordingly, it is entirely appropriate for amici and

Laidlaw to challenge FOE's statutory and constitutional

standing in this Court just as it was appropriate to challenge

it in the court below. Even if the reviewability of statutory

standing is not on the same par as the reviewability of

constitutional standing, this Court can nevertheless reach the

issue, should it become necessary, because "[a] respondent

is entitled * * * to defend the judgment on any ground

supported by the record * * * ." Bennett v. Spear, 520 U.S.

154, 161 (1997) (emphasis added).

Because the record is sufficiently developed with respect

to these standing issues, and because they are questions of

law, this Court can resolve them and affirm the judgment of

the court of appeals on either of those grounds.

I. PLAINTIFFS LACK ARTICLE III STANDING

Under the "Case" or "Controversy" provision of Article

III of the Constitution, a party seeking to invoke the judicial

power of the federal courts must meet three minimum

requirements. "First and foremost, there must be an “injury

in fact' -- a harm suffered by the plaintiff that is ‘concrete’

9

and ‘actual or imminent, not ‘conjectural’ or

“hypothetical.'" Lujan v. Defenders of Wildlife, 504 U.S.

555, 560 (1992). A ‘particularized' injury is one that

"affect[s] the plaintiff in a personal and individual way."

Id.

The plaintiff must make a "factual showing of

perceptible harm." Jd. (emphasis added). Standing, the

Court emphasized, is not "an ingenious academic exercise in

the conceivable." Jd. Thus, a plaintiff has not suffered a

legally cognizable injury where the alleged injury is based

on “pure speculation." Jd. at 567.

In addition to proving that they have suffered an injury

in fact, the plaintiffs must show that the injury was caused

by or is traceable to the “complained-of conduct of the

defendant." Steel Co. v. Citizens for a Better Env’t, 118 S.

Ct. 1003, 1016-17 (1998). Finally, "there must be

redressability -- a likelihood that the required relief will

redress the alleged injury." Jd. at 1017. The "party

invoking federal jurisdiction bears the burden of

establishing" all three elements of Article III standing. Jd.

This Court has made it clear that the doctrine of

standing is grounded in separation-of-power concerns that

federal courts do not arrogate to themselves powers which

properly belong to the two political branches of government.

Defenders, 504 U.S. at 560. "As a jurisdictional

prerequisite, standing prevents the federal courts from

becoming forums for the * ventilation of public grievances’

and protects the delicate balance of power shared by the

executive, legislature, and judiciary." Public Interest

Research Group of New Jersey v. Magnesium Elektron, Inc..,

123 F.3d 111, 117 (3d Cir. 1997).

10

A. Plaintiffs Have Not Satisfied the Injury-in-Fact

Requirement of Standing.

In the case at bar, the plaintiffs allege that Laidlaw

exceeded the mercury permit levels under its NPDES permit

over several years based upon information readily obtained

from the Daily Monitoring Reports (DMRs) required to be

filed by Laidlaw with the EPA and South Carolina DHEC.

But the "mere exceedance of a permit limit" is insufficient

to show injury-in-fact for purposes of Article III. See

PIRGNJ v. Magnesium Elektron, Inc., 123 F.3d 111, 121

(3d Cir. 1997). Just because Congress authorized the filing

of citizen suits (under limited circumstances) in federal court

to enforce permits, that does not mean that mere violations

of those permits ipso facto constitute the requisite injury-in-

fact that must be alleged and proven by the preponderance

of the evidence to satisfy Article III. Petitioner's amicus is

wrong when it suggests that "Congress . . . defined the

relevant ‘injury’ as a violation’ of the applicable

limitations." Brief of Americans for the Environment at

17.°

* To use another example, assume Congress had enacted a

law allowing citizen suits against those drivers who exceed the

posted speed limits on interstate highways. Mere allegation by a

plaintiff that a defendant exceeded the posted speed limit several

times, or even a thousand times (for example, by traveling 56

miles per hour (mph) in a 55 mph zone), does not ipso facto

translate into a perceptible, cognizable injury-in-fact to the

plaintiff, even if the plaintiff drives on the same highway as the

defendant. That is so because the plaintiff has not shown that he

or she suffered any perceptible injury because the defendant

exceeded the speed limit.

11

In setting acceptable levels of discharge for various

pollutants, the EPA builds a margin of safety into the

standard. Thus, even if the water quality were technically

"harmed" by Laidlaw's exceedances, the plaintiffs must still

prove that they -- and not just the water -- suffered

perceptible rather than speculative or abstract harm from the

excess discharge of mercury.‘

In the instant case, the plaintiffs made "boilerplate"

allegations of harm on behalf of themselves and their

members. J.A. 30-36.° The allegations of institutional

injuries centered around minor technical reporting and

* Even petitioners’ amici Natural Resources Defense

Council, et al., acknowledge this principle: "[I]t is the effect of

the illegal mercury discharges on the plaintiffs, not the effect on

the river, that is the focus of the Article III inquiry." Amici Br.

of Natural Resources Defense Council, et a/., at 8, n.9. But if

there is no effect on the river, a fortiori, there can be no effect on

the plaintiffs. Mere “concerns” about the state of the quality of

the environment are simply too abstract to confer standing under

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

> All three plaintiff organizations filed suit "on behalf of

[themselves] and [their] members." J.A. 30, 32, 34. However,

Congress authorized the commencement of citizen suits only by

a person "on his own behalf." 33 U.S.C. § 1365(a).

Consequently, only the harm to the institutional interests of the

three plaintiff organizations are properly the focus of whether

they have suffered a cognizable and redressable injury in fact.

Cf. Steel Co. v. Citizens for a Better Environment, 118 S. Ct.

1003, 1015, n. 6 (citizen suit provision authorizing suits by a

plaintiff only "on his own behalf" arguably permits plaintiffs "to

vindicate only its own interests as an organization, and not the

interest of its individual members").

12

monitoring violations; and the allegations of environmental

harm to the organizations' members were cast in vague and

conclusory terms.°

While these vague and generalized grievances may have

been sufficient to survive a motion to dismiss, this case was

argued and tried on the merits. Consequently, the plaintiffs

have the burden of proof and persuasion to demonstrate the

existence of injury-in-fact and the other elements of standing

throughout all stages of the proceedings. Lujan v. Defenders

of Wildlife, 504 U.S. at 561.

Here, the plaintiffs not only failed to show that the

excursions by Laidlaw harmed any aquatic life, the district

court found the opposite: Laidlaw's discharges caused no

harm to the environment. Friends of the Earth v. Laidlaw

Envt’l Servs. , 956 F. Supp. 588, 600-02 (D.S.C. 1997).

For example, Laidlaw introduced the results of its nine

years of semiannual acute and chronic toxicity tests, the

results of a fish tissue study on bluegill sunfish in the North

Tyger River, and the results of a second fish tissue study on

large mouth bass and other species of fish in the River.

Based on these tests, expert testimony, and the testimony of

© The Complaint alleges that the "Defendant's discharge of

pollutants in violation of its permit number SC0040517 has

adversely affected, is adversely affecting, and will continue

adversely to affect, the health, economic, recreational, aesthetic,

and environmental interests of FOE's members." J.A. 31, 8.

Essentially identical conclusory language was used to describe the

so-called injury to the members of plaintiff Citizens Local

Environmental Action Network, Inc. (J.A. 33, 4 12) and to the

members of plaintiff Sierra Club (J.A. 35, { 16).

13

various witnesses of the South Carolina DHEC, the court

found that the water quality standard for mercury had been

attained and that the overall quality of the river “exceeds

levels necessary to support propagation of fish, shellfish,

and wildlife, and recreation in and on the water.” /d. at

600.

Specifically, the fish tissue studies both showed that

levels of mercury in the sampled fish were well below the

Food and Drug Administration action level of 1.0 milligram

per kilogram of fish tissue examined. The DHEC fish study

showed no mercury above the detection limit of 0.25 mg/kg,

less than one quarter of the level necessary to trigger the

FDA action level. The court further found that:

Laidlaw’s macroinvertebrate assessments, which

were performed two times per year between 1986 and

1994, and 96-hour flow-through bioassays, which were

also performed during this same time period, showed

that prior mercury discharge limits as high as 20 ppb

had no adverse effect on the indigenous biological

community in the North Tyger River downstream from

Laidlaw’s facility.

Id. (emphasis added).

Under circumstances very similar to this case, the Third

Circuit found that while the plaintiff organizations may have

initially alleged sufficient harm to survive a motion to

dismiss, they lacked standing where the trial court ultimately

found that although the company in that case technically

violated its NPDES permit, there was no harm to the

environment. PIRGNJ, 123 F.3d 111 (3d Cir. 1997). The

Third Circuit also rejected the plaintiffs’ claim that their

14

mere knowledge of the technical violations by the company

constituted sufficient injury-in-fact. Jd. at 120-21.

Plaintiffs' alleged institutional interest in obtaining

information required to be reported by Laidlaw was also not

perceptibly affected by the technical monitoring and

reporting violations. “Laidlaw’s monitoring and reporting

deficiencies, all of which have long since been resolved,

produced no environmental impact. There has been no

demonstrated proof of harm to the environment.” 956 F.

Supp. at 602. The court even found that, in proposing a

penalty to the court, plaintiffs’ use of the value range in

EPA’s Penalty Policy that was indicative of the least amount

of health or environmental harm “constitutes an

acknowledgment that the NPDES permit violations at issue

in this citizen suit did not result in any health risk or

environmental harm.” Id. (emphasis added). Most

significantly, the violations “did not result in DHEC [or the

plaintiffs] being misled or ignorant as to the type or extent

of compliance difficulties Laidlaw was experiencing.” /d.

The court in PIRGNJ also soundly rejected a similar

argument made by the plaintiffs in that case that the

monitoring and reporting violations caused sufficient injury-

in-fact. The court reasoned that implicit in the argument

that the plaintiff needed the information to enforce the Clean

Water Act was the assumption that the company "posed a

real threat to the environment." 123 F.3d at 124. Because

the facts showed otherwise, and because the alleged injury

was not redressable, the plaintiffs failed to establish standing

15

in that case. Jd. at 124-25.’ The same result show obtain

here.

Recently, the Fourth Circuit similarly ruled in Friends

of the Earth v. Gaston Cooper Recycling Corp., __ F.3d

___, 1999 U.S. App. LEXIS 11201 (4th Cir. June 2,

1999), that plaintiffs’ allegations of injury were insufficient

to confer standing. There was no showing in that case that

the company's discharges caused environmental harm to the

portion of the waterbody used by the plaintiffs; rather, the

court concluded that the concerns of the plaintiffs about the

quality of the waterbody was “based on mere speculation."

Id.

” Thus, the information injury alleged in this case is quite

unlike the informational injury found by this Court to have existed

in Federal Election Comm'n v. Atkins, 118 S. Ct. 1777 (1998).

In Atkins, the plaintiffs alleged that the putative political

committee was not filing any financial information with the FEC

that would assist the plaintiff in evaluating candidates for public

office. Similarly, the plaintiffs in Public Citizen v. Department of

Justice, 490 U.S. 440, 449 (1989) alleged informational injury

because the putative advisory committee failed to disclose any

information otherwise required to be disclosed by the Federal

Advisory Committee Act. In Sierra Club v. Simpkins, 847 F.3d

1109 (4th Cir. 1998), the company failed to file any discharge

reports for over two years, and thus deprived plaintiffs and

regulators of substantial information regarding harm to the

environment.

In the case at bar, on the other hand, Laidlaw's reporting

violations were technical and insignificant in nature, and caused

no information injury to the plaintiffs. Indeed, the plaintiffs relied

on Laidlaw's monitoring reports to file this lawsuit and

presumably to inform its members about the water quality of

North Tyger River.

16

Other courts have begun to take their constitutional

duties seriously by closely examining the allegations of

injury in environmental lawsuits, and if found wanting, have

dismissed those cases for lack of standing. See, e.g.,

Informed Citizens United, Inc. v. USX Corp., 1999 WL

76266 (S.D. Tex. Feb. 9, 1999) (allegations that filling

wetlands would interfere with plaintiff's wildlife viewing

"falls far short" of establishing injury-in-fact); Ogden

Projects, Inc. v. New Morgan Landfill Co., 911 F. Supp.

863 (E.D. Pa. 1996) (plaintiffs failed to show how allegedly

illegal air emissions adversely affect health, environment,

and recreational interests).

B. Plaintiffs Have Failed to Demonstrate That

-Laidlaw Has Caused The Alleged Environmental

Injuries To Their Members Which Can Be

Redressed.

While it is true that the mercury exceedances were

caused by Laidlaw, that does not necessarily mean that

Laidlaw is the source of the environmental injury allegedly

suffered by the plaintiffs’ members. Concomitantly, if

Laidlaw's mercury exceedances are not the source of the

injury to plaintiffs' members, the injunctive relief requested

in the Complaint would certainly not redress those injuries.

As will be demonstrated, the plaintiffs failed to satisfy these

second and third prongs of Article III standing.*

* Amici agree with the court of appeals that the civil fines

ultimately imposed by the district court do not redress plaintiffs’

environmental injuries. 149 F.3d 303, 307 (4th Cir. 1998); Steel

Co., 118 S.Ct. at 1019. The argument that fines provide general

deterrence to prevent violations by Laidlaw of its permit at other

plants is putting the cart before the horse: the plaintiffs have not

17

We are told by the petitioners that they have members

“who use or refrain from using the waterways affected by

Laidlaw's discharge" of mercury above the permitted levels.

Pet. Br. at 6. This statement, of course, tells us absolutely

nothing about whether those who use the waterways are (or

were) adversely affected by Laidlaw's discharge of mercury

over and above the limit allowed by the NPDES permit, and

whether those who refrain from using the waterways do (or

did) so because of Laidlaw's intermittent exceedances.

We are next told that the plaintiffs' members:

would like to picnic, birdwatch, and hike near, boat on,

.nd eat fish from the North Tyger River and

downstream waters but either do not do so or are

concerned when they do so because of the pollution in

the River. They are also concerned about the impact of

that pollution on the value of their homes and on their

dairy products because cows drink from the River.

Pet. Br. at 6 (citing to Affidavits). In the first place, it is

highly questionable whether these are genuine interests

possessed by these individual members, or whether they

properly shown that Laidlaw has violated any of its other permits

or that plaintiffs or their members have been injured if there were

any such violations. The belated Affidavit of Bruce Terris,

counsel for plaintiffs, to show otherwise is wholly conclusory,

woefully inadequate, and not based on personal knowledge. See

January 19, 1999 Affidavit of Bruce J. Terris, attached to

Petitioners’ Reply to Opp. Cert. at 33a. Properly viewed, the

interest in general deterrence is one that is shared by the public at

large. Steel Co. 118 S. Ct. at 1019; Dubois v. U.S. Dep't of

Agriculture, 20 F. Supp.2d 263 (D.N.H. 1998).

18

were newly found and manufactured after this lawsuit was

filed. See generally Hr'g Tr., June 30, 1993.”

* During the hearing on the motion for summary judgment

on the standing issue, counsel for Laidlaw pointed out to the court

in some detail that the depositions of plaintiffs’ affiants

contradicted the boilerplate affidavits that had been drafted for

them by the plaintiff organizations; at one point, counsel accused

the plaintiffs’ attorney of violating Rule 11. Hr’g Tr. at 31.

According to Laidlaw's counsel, affiants Curtis and Moore, the

two principal witnesses “either recanted or denied most what they

said in their affidavit[s]" in their depositions. Hr’g Tr. at 3. For

example, Mr. Curtis was asked in his deposition whether the

reason he stopped visiting the river was because of the pollution.

He answered "No." When asked whether he had any desire to go

back to the river, he responded, "I haven't, no." /d. at 35.

Ms. Moore indicated in her affidavit that she “would like to

use the North Tyger River" for “picnicking and other recreation"

but is concerned that the River contains harmful pollutants.

Moore Aff. 44. Yet she testified in her deposition that she had

only been near the river once in 1980 when she was visiting a

friend who happened to live near the river, and did not visit the

river again until after this lawsuit was filed. Hr'g Tr. at 7. Ms.

Moore further testified on direct that she did not have “any

interest" in going to the North Tyger River prior to the filing of

this lawsuit. Jd. at 8. On cross-examination by plaintiffs’

attorney, she speculated that she only "might" want to visit the

river. Jd. She also stated in her affidavit that she wanted to take

her students to the river to study pollution. Hr’g Tr. at 36. But

when she was deposed, she said she had not taken them there. /d.

But even if Ms. Moore had taken her students on the trip, that

obviously would not constitute an injury-in-fact because the goal

of the trip was to see and study pollution.

19

Secondly, assuming that these interests are legitimate .

and not speculative ones as amici submit, the petitioners

State in their brief that they do not engage in certain

activities or do so with some concern "because of the

pollution in the River." Pet. Br. at 6. Laidlaw's discharge

of mercury above the permitted limits is certainly not the

cause of all the "pollution" in the river, nor indeed, is the

discharge any part of the pollution that impacts these alleged

interests. For example, there is absolutely no showing by

the plaintiffs that when Laidlaw exceeded its mercury

discharge limit of 1.3 parts per billion by another part per

billion or fraction thereof, the plaintiffs’ members could not

"picnic, birdwatch, or hike near," or "boat on" the North

Tyger River, or that these activities were impaired in any

perceptible manner.

There are other companies and entities in the

geographical area which discharge pollutants into the North

Tyger River. In addition, by plaintiffs' own admission,

there are also farms and dairies nearby whose livestock use

the river. Pet. Br. at 6 ("cows drink from the River"). EPA

estimates that 65% of stream pollution is caused by

unregulated nonpoint sources compared to 26% caused by

municipal and industrial point sources combined. EPA,

ENVIRONMENTAL PROGRESS AND CHALLENGE: EPA's

UPDATE 46 (1988). Thus, not only have the plaintiffs failed

to show that Laidlaw is the source of their pollution

concerns, they have failed to show that their concerns would

be redressed by a favorable opinion. For example, Affiant

Curtis claims in his affidavit that the North Tyger River

"looks and smells polluted" (Curtis Aff. ¢ 3). Yet there

was no showing that the trace levels of mercury from

Laidlaw's facility contribute to water turbidity or produce

20

malodorous compounds to make the River "look and smell

polluted."

Plaintiffs’ members also express concern about eating

fish from the River and drinking milk from a local dairy

whose cows drink water from the River. In the first place,

the record shows no environmental harm to fish from

Laidlaw's discharges. The same can be said about the milk

from cows who drink from the river. There is absolutely no

proof that the retail fish and milk supplies in the area have

been tainted by Laidlaw's mercury discharges, or that

governmental health and safety procedures would not detect

such levels before the products were shipped to market.

Secondly, the affiants suggest in their depositions that

they buy their fish at the supermarket, and prior to the

filing of this lawsuit, they had no concern about where the

fish came from. Hr'g Tr. 19. But even assuming that the

plaintiffs' members would refrain from drinking milk or

eating fish that came from the river because of the presence

of mercury, that injury cannot be redressed by a favorable

ruling because Laidlaw is permitted to discharge mercury,

albeit up to a limit, into the river. Thus, the plaintiffs

would apparently continue to avoid or be "concerned"

about eating fish or drinking milk because of the presence of

even lawful amounts of mercury in the River.

Even if it could be demonstrated that Laidlaw

contributed in some minute way to the pollution in the North

Tyger River, plaintiffs would not have satisfied the

redressability prong of standing because there was no

showing that the water quality would improve in any

21

perceptible degree to remedy affiants' so-called injuries,

psychological or otherwise.'°

Despite the fact that Laidlaw's discharges caused no

environmental harm, that the “overall quality of the river

exceed levels necessary to support propagation of fish,

shellfish, and wildlife, and recreation in and on the water"

(956 F. Supp. 600), and that Laidlaw has long ceased

operating the facility, the plaintiffs are nevertheless claiming

that they are still suffering an injury in fact to this very day.

Pet. Cert. at i. Clearly, these continuous "injuries" were

and are being caused by sources other than Laidlaw, and are

not redressable by a ruling against Laidlaw.

In short, plaintiffs have failed to satisfy any of the three

prongs of standing under Article III. The failure to satisfy

any one of them necessitates the dismissal of this case for

lack of jurisdiction.

10 In that regard, the plurality opinion in Defenders on this

issue is instructive. There, the government contributed only

"10% of the funding for the Mahaweli Project" alleged by

plaintiffs to be harmful to endangered species; but the plaintiffs

"have produced nothing to indicate that the projects they have

named will either be suspended, or do less harm to listed species,

if that fraction is eliminated * * * * There is no standing." 504

U.S. at 571. In the instant case, because there was no showing

that plaintiffs’ so-called injuries from all of the pollution in the

river were attributable to Laidlaw's intermittent mercury

exceedances, there can be no showing of redressability.

22

II. PLAINTIFFS LACK STATUTORY STANDING

Section 505(b)(1) of the Clean Water Act states that

"[n]o action may be commenced * * * if the [EPA)

Administrator or State has commenced and is diligently

prosecuting a civil * * * action in a court of the United

States, or a State to “equire compliance with the standard,

limitation, or order * * * ." 33 U.S.C. § 1365(b)(1).

Congress enacted this provision recognizing the primary role

of the appropriate governmental agencies to enforce the

Clean Water Act, and to prevent potentially intrusive

citizens suits. See Gwaltney of Smithfield v. Chesapeake

Bay Found. , 484 U.S. 49, 60-61 (1987).

To be sure, this Court in Steel Co., made it clear that

the Court must first determine whether it has Article Ill

jurisdiction before it addresses a merits question. Steel Co.

118 S. Ct. at 1010-12. In doing so, the Court rejected the

"doctrine of hypothetical jurisdiction" whereby jurisdiction

is assumed to reach a merits question, the resolution of

which would also result in dismissal of the suit. "We decline

to endorse such an approach because it carries the courts

beyond the bounds of authorized judicial action and thus

offends fundamental principles of separation of powers."

Id. at 1012.

In response to Justice Stevens concurring opinion in

Steel Co. that a statutory standing question can be

adjudicated before difficult the constitutional question, the

majority countered that the issue Justice Stevens would

address was not a statutory standing question, i.e., "whether

EPCRA authorized this plaintiff to sue (it assuredly does),

but whether the scope of the EPCRA right of action includes

23

past violations." Jd. at 1011. The Court opined that that

was a merits question, not a jurisdictional one. Jd.

In the case at bar, however, federal courts are not

authorized to entertain citizen suits unless the federal

government or state agency has not commenced and is not

diligently prosecuting a civil or criminal case. Thus, in

certain respects, this provision appears to be a statutory

standing question: does the citizen suit provision allow these

plaintiffs to file a citizen suit in federal court where State

authorities have commenced and have diligently prosecuted

an action?

It is clear from the record in this case that South

Carolina DHEC commenced and diligently prosecuted a

civil action against Laidlaw. J.A. 72. Yet the district court

erroneously concluded that the results obtained by state

authorities in its enforcement action, namely the amount of

civil penalties, were not considered to be severe enough, and

that private parties such as the plaintiffs were given little

chance to intervene in the exercise of the State's executive

power. J.A. 118. Amici submit, however, that the severity

of the judgment -- whether entered as a consent order or by

a state court after a trial -- or the existence of opportunities

for intervention by private parties in the state enforcement

action, does not mean, as a matter of law, that the State did

not diligently prosecute the action.

While lower court decisions have interpreted the

meaning of "civil or criminal action" narrowly, for example,

by ruling that citizen suits are not precluded while

administrative rather than court actions have been

24

undertaken,'' nothing in the statute or any regulation

requires that certain levels of punishment or relief be

obtained by federal or state authorities to be determinative

of whether a prosecution of an action has been diligent or

not. If anything, the filing of the complaint and consent

order by state authorities within a few days of each other

shows that the agency was super diligent in prosecuting the

action, rather than dilatory.’

Accordingly, it is clear that an action was commenced

and diligently prosecuted before the plaintiffs filed their suit.

For these reasons, this Court can affirm the court of appeals

on this statutory jurisdictional ground as well.

Ill. THE PUBLIC INTEREST IS NOT SERVED BY

CITIZEN SUITS SUCH AS THIS ONE

While Congress provided for citizen suits in the Clean

Water Act as well as in many other environmental statutes,

Congress did not intend that they would generate disruptive

and needless litigation by professional interest groups more

concerned with their attorneys' fees and the exaction of fines

than genuine environmental protection. In the view of many

observers, "citizen suits border[] on extortion and allow[]

environmentalists to maintain suits for technical violations

'! See, e.g., Washington Area Pub. Interest Research Group

v. Pendleton Woolen Mills, 11 F.3d 883 (9th Cir. 1993).

'2 It is common practice for agencies such as the Securities

and Exchange Commission, the Federal Trade Commission, and

similar law enforcement agencies to file simultaneously a lawsuit

against a defendant and a consent judgment for entry by the court.

25

so trivial that they had not warranted governmental

enforcement." Richard Lazarus, Rise and Demise of the

Citizen Suit, 15 Envtl Forum, No. 5 at 8 (Sept.-Oct. 1998).

One commentator astutely concluded that the "real

purpose and effect of citizen suits is not efficient law

enforcement but the subsidization of political constituencies

* * *.” Michael Greve, The Private Enforcement of

Environmental Law, 65 Tulane L. Rev. 339, 392 (1990).

Most of the citizen suits are brought by a "cartel" of

professional environmentalist groups that take "less than a

half-day * * * to train student volunteers to scan [the

company's} DMRs and identify infractions." Jd. at 354.

Notice of Intent to Sue letters are fired off, and companies

are pressured into "settling" for minor or technical

violations which otherwise would be subjected to excessively

high statutory penalties. Laidlaw's commitment to defend

itself rather than settle is the exception, not the rule.

The Clean Water Act in particular, in contrast to most

citizen suit environmental statutes, allows the private

plaintiff to seek not only injunctive relief, but civil fines as

well. 33 U.S.C. § 1365(a). While this enforcement power

raises serious separation of powers concerns, the motivation

to obtain large fines for the U.S. Treasury is not necessarily

altruistic:

Economically speaking, the requirement that all

fines be paid to the Treasury is a 100% tax on the

private enforcer's recovery. Taxation creates a

differential between the enforcer's expected gain from

enforcement and the violator's expected loss from

enforcement. This, in turn, means that "both the

apprehended offender and the enforcer would be better

26

off if they negotiated a private transfer payment that

was less than the statutory fine but greater than the fine

minus the tax."

Id. at 357 (quoting RICHARD POSNER, THE ECONOMIC

ANALYSIS OF LAW 561 (3d ed. 1986)).

An objective review of the actions that Laidlaw

undertook to limit its mercury discharge indicates that the

company was a model of corporate responsibility. The

district court's finding that Laidlaw's infractions caused no

environmental harm and the plaintiffs’ last-minute scramble

to find "injured" members speaks volumes about the

interests that are really at stake in this citizen suit. If the

plaintiffs insist on calling upon the federal courts to devote

their scarce judicial resources to adjudicate these kinds of

cases, this Court should scrupulously insist that these groups

are properly invoking the court's power.

27

CONCLUSION

For the foregoing reasons, and those provided in

Laidlaw's brief, amici curiae urge this Court to affirm the

judgment below, and to remand this case to the court of

appeals with directions to vacate the district court judgment.

Respectfully submitted.

Daniel J. Popeo

Paul D. Kamenar

(Counsel of Record)

WASHINGTON LEGAL FOUNDATION

2009 Massachusetts Ave., N.W.

Washington, D.C. 20036

(202) 588-0302

Date: July 19, 1999