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

4\

vs

No. 98-822 ry

FILED

JUL 19 1999

IN THE

Supreme Court of the United States

FRIENDS OF THE EARTH, et al.,

Petitioners,

LAIDLAW ENVIRONMENTAL SERVICES (TOC), INC.,

Respondent.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF AMICUS CURIAE OF

HERCULES INCORPORATED

IN SUPPORT OF RESPONDENT

JOEL SCHNEIDER*

PETER L. FRATTARELLI

ARCHER & GREINER, P.C.

One Centennial Square

Haddonfield, NJ 08033

(609) 795-2121

*Counsel of Record for Amicus Curiae

Hercules Incorporated

BEST AVAILABLE COPYL-

TABLE OF CONTENTS

: Page

TABLE OF AUTRE E EID: cc cccccccnecscccsccenes ill

STATEMENT OF INTEREST..............00eeeee00. l

SUMMARY OF ARGUMENT ..................005. 2

ARGUMENT

I. PETITIONERS’ CASE MUST BE DISMISSED AS

MOOT BECAUSE THE ONLY RELIEF THEY

COULD BE AWARDED IS CIVIL PENALTIES

PAYABLE TO THE UNITED STATES TREA-

PEPEED cosveecncdceccecenseyéeeesacsesensienees 3

A. The Steel Co. Decision Controls the Disposition

OF Feet Gs cb vecksacsewscnucdéscckeupesunns 3

1. All elements of constitutional standing must be

met at all stages of a lawsuit................ 3

2. The Steel Co. decision held that civil penalties

alone are not sufficient to satisfy the redress-

ability element of standing.................. 5

3. The fact that the plaintiff in Steel Co. did not

allege an ongoing violation in its complaint is

not legally significant to the disposition of this

Ws 60's 0c cnncessunsesesiaebaceaseusues 7

4. Future deterrence of potential Clean Water

Act violations does not satisfy the redressabil-

My Clement OF SIGRGIAS ... wc ccc ccccccsesess 9

B. Gwaltney Contemplated a Case Such as This That

Could Be Mooted Even Where the Requirements

of Statutory Jurisdiction Were Met When the Case

WE PUNE osc kcencdunesessanseeeseeeseaneee 10

C. The Laidlaw Ruling Furthers the Supplemental

Role Envisioned for Citizens in Enforcement Liti-

Us «3.00 00006000086505000006 00s beeeeaeenes 12

D. Gwaltney Does Not Support Petitioners......... 15

TABLE OF CONTENTS — (Continued)

Page

Il. NONE OF THE DECLARATORY RELIEF PETI-

TIONERS REQUEST REDRESSES ANY

PRP BEOPUIEE occ cccccccccccccccccceccces 20

cscs sbeeseeacsecsccccceccccccceccces 21

TABLE OF AUTHORITIES

Cases: Page

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

eT a PC, conncacencesensaceccestecs 4,7

Brecht v. Abrahamson, 507 U.S. 619 (1993) ............ 17

Chesapeake Bay Foundation v. Gwaltney of Smithfield,

Lid., 611 F. Supp. 1542 (E.D. Va. 1985) ........... 18

Chesapeake Bay Foundation v. Gwaltney of Smithfield,

Lid., 791 F.2d 304 (4th Cir. 1986)... ...........4.. 18

Chesapeake Bay Foundation v. Gwaltney of Smithfield,

Lid., 890 F.2d 690 (4th Cir. 1989) ............... 19, 20

Church of Scientology of California v. United States, 506

EL 0006000suvecusveoussenseseessesess 5

Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 5 L. Ed. 257

Di siiteetecegsgeevendeencncnesnceseseences 17

County of Los Angeles v. Davis, 440 U.S. 625 (1979).. 14, 15

DeFunis v. Odegaard, 416 U.S. 312 (1985) ............. 15

Diamond v. Charles, 476 U.S. 54 (1986) ............... 6

Edelman v. Jordan, 415 U.S. 651 (1974) ............... 17

Friends of the Earth, Inc. v. Laidlaw Environmental Ser-

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

granted, 119 S. Ct. 1111 (March 1, 1999)........ passim

George Moore Ice Cream Co. v. Rose, 289 U.S. 373

Ph ccdedeageanedecencencnseeeessecensteoens 11

Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Founda-

tion, Inc., 484 U.S. 49 (1987) .. 0... ee eee passim

Hagans v. Lavine, 415 U.S. 528 (1974) ...........06.5. 17

Hall v. Beals, 396 U.S. 45 (1969). ... 0... ce cece, 15

Hallstrom v. Tillamook County, 493 U.S. 20 (1989), reh’g

denied, 493 U.S. 1037 (1990)... 1.2.0.0... .. cece eee 12

TABLE OF AUTHORITIES — (Continued)

Cases: Page

Illinois State Board of Elections v. Socialist Workers Party,

Sa > Ce es cncccececcosccncscececececose 17

Lewis v. Continental Bank Corp., 494 U.S. 472 (1990) . . .6, 20

Linda R. S. v. Richard D., 410 U.S. 614 (1973) ......... 9

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

National Railroad Passenger Corp. v. National Ass'n of

Railroad Passengers, 414 U.S. 453 (1974) .......... 4

Pennhurst State School & Hosp. v. Halderman, 465 U.S.

BP ec cccncccccccecvescascncencaesecosesees 17

Preiser v. Newkirk, 422 U.S. 395 (1975).............4.. 15

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

cules, Inc., 50 F.3d 1239 (3d Cir. 1995)............. 1,2

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

cules, Inc., 830 F. Supp. 1525 (D.N.J. 1993) ........ 1,2

Simon v. Eastern Kentucky Welfare Rights Organization,

Ge Gs STs cn ccdnlncdcoceadecacenanseens 4,9

Smallwood v. Gallardo, 275 U.S. 56 (1927)............. 11

Sperry v. Florida, 373 U.S. 379 (1963) ...... 0.66060 eeu 15

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

ey ee es Ga Eo wb cn écesccetceceses passim

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

POEs nccvaccesescaseneanensounsecesensent 4,7

United States v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33

SL on tkkcnbdidecnesaeenenseseceneneateedéiess 17

United States v. Oregon State Medical Society, 344 U.S.

PP budececcucéceakannennsneedsawsuansés 15

United States v. W. T. Grant Co., 345 U.S. 629 (1953).... 14

Warth v. Seldin, 422 U.S. 490 (1975) . 2... 6... 4

iv

TABLE OF AUTHORITIES — (Continued)

Cases: Page

Webster v. Fall, 266 U.S. S07 (1925)... ..........00005. 17

Whitmore v. Arkansas, 495 U.S. 149 (1990) ............ 4

Statutes:

PNET Kbtnenbeddeuckedaddddudedseuansones 9

Pe et ED wbknddbueutcedctiadedénadences passim

SP ar EE Sadewdbccontendddddudccausukscesdes 5

Other Authorities:

Pe eS ap bandenedeedcedebsevdiesbasce 13

STATEMENT OF INTEREST!

Amicus curiae, Hercules Incorporated (“Hercules”), is

currently a defendant in a case pending in the United States

District Court for the District of New Jersey that has been

described as “indistinguishable” from the case before this

Court. The background of Hercules’ case is discussed in Pub-

lic Interest Research Group of New Jersey, Inc. v. Hercules,

Inc., 50 F.3d 1239 (3d Cir. 1995), and Public Interest Research

Group of New Jersey, Inc. v. Hercules, Inc., 830 F. Supp. 1525

(D.N.J. 1993). The Hercules case was tried before the Honor-

able Jerome B. Simandle beginning in February 1997. While

the trial court's decision was pending, the decisions in Steel Co.

v. Citizens for a Better Environment, 523 U.S. 83, 118 S. Ct.

1003 (1998), and Friends of the Earth, Inc. v. Laidlaw Environ-

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

granted, 119 S. Ct. 1111 (March 1, 1999) (No. 98-822), were

rendered. Hercules filed a motion to dismiss based on these

decisions which was briefed and then argued in February 1999.

On March 31, 1999, the trial court issued an Order for Admin-

istrative Termination of the case pending the decision in this

appeal. The trial court noted “that the factual and procedural:

circumstances relating to redressability {in the Hercules] case

are indistinguishable from ... Laidlaw ...” and further stated

“because the Supreme Court will soon be determining

whether the finding of mootness in Laidlaw was correct, it

appears that the wisest course is to defer ruling upon this

complex issue, or reaching the merits of this case, until the

Supreme Court speaks in Laidlaw ... .” Order for Adminis-

trative Termination at 1-2 (footnote omitted) (Herc. App.

1. Counsel for the parties have consented to the filing of this amicus

brief, and the letters of consent are being filed with this Court. No counsel

for a party in this case authored this brief in whole or in part, other than

amicus or its counsel, and no person or entity, other than amicus or its

counsel, made a monetary contribution to this brief’s preparation or submis-

sion, pursuant to Supreme Court Rule 37.

1

2

1-2a).2 Consequently, Hercules has a direct interest in the out-

come of the Laidlaw appeal.

SUMMARY OF ARGUMENT

The Fourth Circuit Court of Appeals’ decision in Laidlaw

correctly decided that the disposition of this case is controlled

by Steel Co. Accordingly, the Laidlaw decision should be

affirmed. Steel Co. ruled that constitutional standing does not

exist where effectively the only relief sought by a citizen plain-

tiff is civil penalties payable to the United States Treasury.

This is precisely the situation that exists here since the Peti-

tioners’ request for an injunction was denied. It is of no

moment that when their complaint was filed, the Petitioners

satisfied the “alleged to be in violation” statutory jurisdictional

requirement discussed in Gwaltney of Smithfield, Ltd. v.

Chesapeake Bay Foundation, Inc., 484 U.S. 49 (1987). It is well

settled that post-complaint events can moot a case. Citizen

suits are not exempt from the body of case law that demands

that a plaintiff meet all the elements of constitutional standing

at all stages of a lawsuit. If standing requirements are not met

because of post-complaint events, then the case must be dis-

missed.

The Gwaltney decision anticipated a fact scenario identi-

cal to Laidlaw and discussed that, when presented with those

circumstances, the case should be dismissed. The mootness

discussion in Gwaltney would not have been included as part

of the Court's opinion unless this Court recognized that post-

complaint events could moot a citizen suit under the Clean

Water Act. The fact that this Court remanded Gwaltney to the

Fourth Circuit is irrelevant to the issues now before this

Court. The Supreme Court could not decide the constitutional

standing question because the lower court never developed

the necessary factual record.

2. The complaint against Hercules was filed on May 24, 1989, the last

permit violation occurred on August 9, 1990, the trial court denied the

plaintiffs’ request for injunctive relief on March 31, 1993, and the trial court

entered summary judgment for Hercules on the plaintiffs’ injunction claim

on July 28, 1993. See PIRG v. Hercules, supra, and Herc. App. 4-Sa.

3

Moreover, the Fourth Circuit properly dismissed the Peti-

tioners’ claims because a citizen cannot obtain civil penalties

after its injunctive relief claim is denied. The connection

between civil penalties and injunctions in citizen suits is evi-

denced by the language of the Clean Water Act and this

Court’s Gwaltney opinion. The dismissal of Petitioners’ case,

after their injunction claim was denied, is consistent with the

supplementary enforcement role envisioned for citizen plain-

tiffs. In the absence of a necessity to compel permit compli-

ance, citizen plaintiffs play no effective role, and any relief

they request will not “redress” their alleged injuries. The

litany of horrors that Petitioners predict will occur if the dis-

missal of their complaint is affirmed will not occur and, in any

event, do not usurp constitutional standing requirements and

limits put on citizen suits in the Clean Water Act. Trial courts

are well-equipped to avoid and deter intentional delaying tac-

tics and can certainly recognize, address, and cure insincere

attempts at permit compliance.

Lastly, Petitioners’ request for declaratory relief does not

provide them with the requisite redressability. As set out in

Steel Co., a declaration of liability as to a past violation is

worthless. A request for useless relief cannot bootstrap a citi-

zen plaintiff back into court when its request for injunctive

relief is denied.

ARGUMENT

I, PETITIONERS’ CASE MUST BE DISMISSED AS

MOOT BECAUSE THE ONLY RELIEF THEY COULD

BE AWARDED IS CIVIL PENALTIES PAYABLE TO

THE UNITED STATES TREASURY.

A. The Steel Co. Decision Controls the Disposition of This

Case.

1. All elements of constitutional standing must be met

at all stages of a lawsuit.

This Court’s decision in Steel Co. examined the same

constitutional issue presented in this appeal and controls the

disposition of the case. Constitutional standing requires a

4

plaintiff to sue over justiciable disputes and must be present

at every stage of a lawsuit.? If constitutional standing is

established, then plaintiffs seeking recourse under a specific

statute are also required to prove the standing elements set

forth in the statute. The Fourth Circuit recognized this

distinction and properly dismissed the Petitioners’ case based

on post-complaint events that deprived the court of

constitutional jurisdiction, even though when the complaint

was filed the Petitioners satisfied the Gwaltney “to be in

violation” requirement. Any other ruling would conflict with

Steel Co. and decades of case law analyzing subject matter

jurisdiction. |

Article III, §2 of the Constitution limits the “judicial

Power” of the United States to cases where a plaintiff has

“standing” to sue. Whitmore v. Arkansas, 495 U.S. 149, 155

(1990); Lujan v. Defenders of Wildlife, 504 U.S. 555, 559-60

(1992). This “irreducible constitutional minimum of standing”

contains three elements: (1) the plaintiff must have suffered

an injury in fact; (2) there must be a causal connection

between the plaintiff's alleged injury and the complained-of

conduct; and (3) there must also be “redressability,” defined as

a likelihood that the requested relief will redress the alleged

injury. Steel Co., 118 S. Ct. at 1017; Lujan, 504 U.S. at 560;

Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 41-42

(1976); Warth v. Seldin, 422 U.S. 490, 505 (1975).

Further, standing is not a remote or stale concept to be

evaluated once, and thereafter forgotten. Standing must be

met at the time the complaint is filed and throughout the

course of the case, at least through trial. Arizonans for Offi-

cial English v. Arizona, 520 U.S. 43, 117 S. Ct. 1055, 1068

(1997). As the Fourth Circuit recognized below, this Court, in

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

397 (1980), explained mootness as “the doctrine of standing

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

3. Statutory standing examines whether a plaintiff has a cause of action

under the specific law being sued upon, i.e., is the plaintiff within that stat-

ute’s “zone of interests.” Stee! Co., 118 S. Ct. at 1013 (citing National R.R.

Passenger Corp. v. National Ass'n of R.R. Passengers, 414 U.S. 453, 465

(1974)). Constitutional standing, on the other hand, examines if there is a

case or controversy under Article III of the Constitution. /d. at 1013.

5

exist at the commencement of the litigation (standing) must

continue throughout its existence (mootness).” Accord Church

of Scientology of Cal. v. United States, 506 U.S. 9, 12 (1992).

It is the third prong of the standing test, redressability,

which is at issue in this appeal. The Steel Co. decision squarely

addressed the redressability issue and ruled that this require-

ment is not satisfied when civil penalties and attorney’s fees

are effectively the only forms of relief a plaintiff is seeking.

Since Petitioners’ other potential forms of redressabie relief

became moot during the pendency of the litigation, Steel Co.

demands that Petitioners’ case be dismissed.

2. The Steel Co. decision held that civil penalties alone

are not sufficient to satisfy the redressability element

of standing.

In Steel Co., this Court reversed the Seventh Circuit's

decision, which had allowed a citizen group to sue for past

failures to report its toxic chemicals inventory, based upon the

citizen suit provision of the Emergency Planning and Commu-

nity Right-To-Know Act, 42 U.S.C. § 11046 (“EPCRA”). In

ruling that those citizen-plaintiffs did not have standing, this

Court reached an important and significant conclusion for citi-

zen suit plaintiffs: if the only effective relief that may be

awarded is civil penalties and attorney's fees, Article III juris-

diction is lacking.

Steel Co. could not be clearer that civil penalties, such as

those requested by Petitioners here, do not support redress-

ability under Article III:

[T]he civil penalties authorized by the statute

[EPCRA] might be viewed as a sort of compensa-

tion or redress to respondent if they were payable to

respondent. But they are not. These penalties — the

only damages authorized by EPCRA - are payable

to the United States Treasury... . By the mere

bringing of his suit, every plaintiff demonstrates his

belief that a favorable judgment will make him hap-

pier. But although a suitor may derive great comfort

and joy from the fact that the United States Trea-

6

sury 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 accept-

able Article III remedy because it does not redress

a cognizable Article III injury... . Relief that does

not remedy the injury suffered cannot bootstrap a

plaintiff into federal court; that is the very essence

of the redressability requirement.

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

Similarly, Steel Co. held that a request for attorney's fees,

such as demanded by Petitioners here, does not create stand-

ing:

Obviously ... a plaintiff cannot achieve standing to

litigate a substantive issue by bringing suit for the

cost of bringing suit. The litigation must give the

plaintiff some other benefit besides reimbursement

of costs that are a byproduct of the litigation itself.

An “interest in attorney's fees is ... insufficient to

create an Article III case or controversy where none

exists on the merits of the underlying claim.”

118 S. Ct. at 1019 (quoting Lewis v. Continental Bank Corp.,

494 U.S. 472, 480 (1990) (citing Diamond v. Charles, 476 U.S.

54, 70-71 (1986))). Steel Co. then proceeded to dismiss the

plaintiff's action because the other forms of relief requested,

declaratory and injunctive, were not available to the plaintiff.

Simply put, Steel Co. plainly established that if the relief

requested by a citizen plaintiff does not redress its alleged

injuries, in that case civil penalties and attorney's fees, the case

must be dismissed.

The Steel Co. decision is controlling. Just as in Steel Co.,

the Fourth Circuit in Laidlaw examined the relief sought and

found that no standing existed because the following were

lacking at the time of trial: (1) a continuing violation, (2) an

imminent threat of a violation, and (3) damages suffered by

plaintiff, beyond solely litigation costs and a request for civil

penalties (i.e., some other “costs” recoverable by statute). See

Steel Co., 118 S. Ct. at 1018-20. Because Petitioners are merely

presenting claims for civil penalties and attorney's fees, Steel

7

Co. mandates that the case be dismissed. The fact that Peti-

tioners may have had redressable claims when they filed their

complaint does not remove the requirement that standing be

maintained during all stages of a case.

3. The fact that the plaintiff in Steel Co. did not allege an

ongoing violation in its complaint is not legally signifi-

cant to the disposition of this appeal.

Petitioners argue that Steel Co. is limited to selected citi-

zen suits where no allegation of an ongoing violation is made

at the time a complaint is filed. (Pet’r Br. at 19-21.) Yet, a

comparison of the facts in Steel Co. to those in this case

reveals no legally significant distinctions. The logic and rea-

soning of Steel Co., when combined with the traditional and

longstanding doctrine of mootness, dictate that the Fourth Cir-

cuit’s decision be affirmed.

The essence of the Steel Co. holding is straightforward -

civil penalties and attorney's fees, in and of themselves, do not

supply the necessary redressability to support Article III

standing to sue. Moreover, mootness, as noted above, is

“standing set in a time frame.” Geraghty, 445 U.S. at 397.

Thus, each of standing’s three elements must exist at every

stage of a case. Arizonans for Official English, 117 S. Ct. at

1068. When these principles are examined in the context of

the Steel Co. decision, an inescapable conclusion is reached. If

at some point in a case a citizen plaintiff loses its redressabil-

ity, that plaintiff has lost its standing to maintain the litigation,

and the entire dispute, including any right to civil penalties or

attorney's fees, has become moot.

The fact that Petitioners had redressable injuries at the

commencement of the case, whereas the Steel Co. plaintiff did

not, is not legally significant. Just as subsequent events that

change a plaintiff’s injury-in-fact can moot a case, subsequent

events which oust a plaintiff of redressable claims can also

moot a case. There is no logical rationale or case support

offered by Petitioners to support their argument that redress-

ability, unlike the other two prongs of standing, need only be

met at the time a complaint is filed.

8

Petitioners attempt to distinguish Steel Co. by arguing

that “the determining factor in Steel Co. was the plaintiff's

inability to make and prove an allegation of continuing viola-

tion at the time of the complaint.” (Pet’r Br. at 20.) Yet, the

exact language cited by Petitioners for that proposition actu-

ally supports an opposite holding:

If respondent had alleged a continuing violation or

the imminence of a future violation, the injunctive

relief requested would remedy that alleged harm. But

there is no such allegation here — and on the facts of

the case, there seems no basis for it.

(Pet’r Br. at 19-20) (quoting Steel Co., 118 S. Ct. at 1019)

(emphasis in original). Contrary to Petitioners’ interpretation,

when this Court referred to the absence of an allegation of an

ongoing violation, it was merely explaining why injunctive

relief was not available under the facts of the case before it.

Nothing in this Court's language suggests that the doctrine of

mootness be eviscerated once a continuing violation is shown

at the start of a case.‘

Petitioners here sought injunctive relief in their com-

plaint. Yet, mere allegations in complaints do not control

constitutional requirements. Rather, mootness requires an

examination of the requested relief at every stage of a case.

Here, because of post-complaint events, there is no longer a

viable claim for injunctive relief. The only remaining items of

substantive relief requested are for civil penalties and attor-

ney’s fees, which Steel Co. clearly and directly decided are not

sufficient to satisfy Article III standing.

The factual differences between Steel Co. and this case

only had significance prior to t!. | me that Petitioners’ claims

became moot. In other wor:':, Petitioners’ injuries were

redressable, and thus still “live” for mootness purposes, during

4. Moreover, this argument ignores the procedural history of Steel Co.,

where this Court faced the standing issue at the motion to dismiss stage, not

following trial as occurred here. See Steel Co., 118 S. Ct. at 1017. Obviously,

this Court in Steel Co. had no reason to examine post-complaint events

because standing was lacking when the complaint was filed.

9

the time when injunctive relief was available. However, after

their request for an injunction was denied, Petitioners lost

their standing to maintain this litigation. Any other ruling

would be in direct conflict with Steel Co.

4. Future deterrence of potential Clean Water Act viola-

tions does not satisfy the redressability element of

standing.

Petitioners attempt an “end run” around Steel Co., and

thereby avoid Article-III based redressability requirements,

by citing to the deterrent effect of civil penalties imposed on

violators of the Clean Water Act, 33 U.S.C. § 1251, et seq.

(Pet’r Br. at 24-29.) Yet, no matter how often Petitioners cite

to deterrence, they cannot overcome the unqualified conclu-

sion of Steel Co. that in the absence of a valid injunctive relief

claim deterrence alone does not satisfy the redressability

prong of constitutional standing. Moreover, whatever Con-

gress’ intent may have been in allowing for civil penalties,

Article III jurisdiction must still be proven before penalties

can be awarded.

Steel Co. faced the same argument raised by Petitioners

here, that deterrence is enough to satisfy redressability, and

rejected it outright. After noting that civil penalties are pay-

able to the United States Treasury, and not to the plaintiffs,

the Court held:

In requesting [civil penalties], respondent seeks not

remediation of its own injury — reimbursement for

the costs it incurred as a result of the late filing — but

vindication of the rule of law — the “undifferentiated

public interest” in the faithful execution of

EPCRA... . This does not suffice. Justice Stevens

[in His concurring opinion] thinks it is enough that

respondent will be gratified by seeing petitioner

punished for its infractions and that the punishment

will deter the risk of future harm. ... If that were so,

our holdings in Linda R. S. v. Richard D., 410 U.S.

614 ... (1973), and Simon v. Eastern Ky. Welfare

Rights Organization, 426 U.S. 26 ... (1976), are

10

inexplicable. Obviously, such a principle would

make the redressability requirement vanish.

118 S. Ct. at 1018 (emphasis added) (internal citations omit-

ted). This Court’s clear language could not make this principle

more settled and established.

In addition, Steel Co. makes no differentiation or distinc-

tion, as Petitioners argue, based upon when the allegations of

ongoing violations are made. (Pet’r Br. at 21.) To the contrary,

this Court in Steel Co. emphasized that remedies which do not

flow to the citizen plaintiff cannot provide the requisite redres-

sability. See Steel Co., 118 S. Ct. at 1019 (the fact that a

“wrongdoer gets his just deserts,” or that a plaintiff receives

“psychic satisfaction” from a result, “is not an acceptable

Article II] remedy”). Accordingly, even accepting Petitioners’

alleged “common sense” proposition that civil penalties deter

potential water polluters, (see Pet’r Br. at 28), this does not

override the absence of an acceptable Article III injury.

Despite Petitioners’ protestations to the contrary, a general-

ized interest in deterrence does not act as a substitute for a

concrete, redressable Article III injury.

B. Gwaltney Contemplated a Case Such as This That

Could Be Mooted Even Where the Requirements of

Statutory Jurisdiction Were Met When the Case Was

Filed.

The Laidlaw decision is in complete accord with Gwalt-

ney and is not, as Petitioners argue, in “direct conflict.” (Pet’r

Br. at 9.) Gwaltney plainly indicates that post-complaint events

can moot a citizen suit. Indeed, Gwaltney anticipated the fact

scenario presented in this appeal and discussed how “[l]ong-

standing principles of mootness ... prevent the maintenance

of suit when there is no reasonable expectation that the wrong

will be repeated.” 484 U.S. at 66 (internal quotation marks

omitted).

Although Gwaltney primarily addressed the “to be in vio-

lation” language of §S50S(a) of the Clean Water Act, 33 U.S.C.

11

§ 1365(a),° it also had occasion to discuss what happens if the

“allegations of ongoing noncompliance become false at some

later point in the litigation because the defendant begins to

comply with the Act, ... .” /d. (emphasis added). When it

answered this question, this Court stated that the mootness

doctrine “protects defendants from the maintenance of suit

under the Clean Water Act based solely on violations wholly

unconnected to any present or future wrongdoing, ... .” /d. at

66-67. It is evident from this language that this Court antici-

pated that post-complaint events could moot a citizen’s claim

against a defendant, even though the defendant was “in viola-

tion” of its permit at the time the complaint was filed. Unless

this were true, this Court would not have referred to “some

later point in the litigation” in its mootness discussion. /d. at

66. The “point” of reference referred to by this Court was the

date the complaint was filed. The “later point” could only

have referred to post-complaint events.

Moreover, the Gwaltney decision stated that the mootness

doctrine “protects defendants from the maintenance of suit.”

Id. at 66-67 (emphasis added). This evidences that the Gwalt-

ney Court intended that post-complaint events could moot a

case. “To maintain a suit is to uphold, continue on foot and

keep from collapse a suit already begun.” Smallwood v. Gal-

lardo, 275 U.S. 56, 61 (1927); George Moore Ice Cream Co. v.

Rose, 289 U.S. 373, 377 (1933). When this Court indicated that

defendants would be “protected” from the “maintenance” of

suit, the Court acknowledged that a citizen suit should be dis-

5. Section S0S(a), as codified, 33 U.S.C. § 1365(a), provides in pertinent

part:

Except as provided in subsection (b) of this section and section

1319(g)(6) of this title, any citizen may commence a civil action

on his own behalf -

(1) against any person (including (i) the United States, and (ii)

any other governmental instrumentality or agency to the

extent permitted by the eleventh amendment to the Consti-

tution) who is alleged to be in violation of (A) an effluent

standard or limitation under this chapter or (B) an order

issued by the Administrator or a State with respect to such

a standard or limitation, ....

12

missed as moot even though the complaint satisfied jurisdic-

tional requirements when filed.

C. The Laidlaw Ruling Furthers the Supplemental Role

Envisioned for Citizens in Enforcement Litigation.

Petitioners argue that if violations or the risk of violations

exist at the time a complaint is filed, a case can never become

moot.® The fact that the Petitioners are wrong is demonstrated

by the mootness discussion in Gwaltney. Moreover, Petitioners

ignore the role envisioned for citizen plaintiffs in enforcement

litigation, and how the outcome in Laidlaw is completely con-

sistent with this role.

Gwaltney discussed the role citizens serve in enforcement

litigation and focused on the abatement of pollution when the

government cannot or will not command compliance. 484 U.S.

at 61. If a defendant such as Laidlaw is not violating its per-

mit, such that no injunction is necessary to compel compli-

ance, there is no longer a role for the citizen plaintiff to play.

Thus, the continuation of a suit, once it is clear compliance has

been achieved, is not necessary. Simply put, the “supplemen-

tary role envisioned for this citizen suit,” id. at 60, will have

been satisfied once compliance is achieved. The dismissal of

cases that become moot based on post-complaint events

strikes “a balance between encouraging citizen enforcement of

environmental regulations and avoiding burdening the federal

courts with excessive numbers of citizen suits.” Hallstrom v.

Tillamook County, 493 U.S. 20, 29 (1989), reh’g denied, 493

U.S. 1037 (1990).

Petitioners also ignore the fact there is a recognized con-

nection between a citizen’s request for civil penalties and

6. Petitioners’ Brief states:

Steel Co. indicates that a citizen plaintiff has standing through-

out 4 ca.e regardless of whether the violations cease as long as

the vioiations were continuing at the time of the complaint or

at least that there was a risk that such violations were continu-

ing at the time of the complaint.

(Pet'r Br. at 19.)

13

injunctive relief, such that a citizen cannot obtain civil penal-

ties in the absence of an injunction.” In Gwaltney, this Court

stated:

In contrast, §505 of the Act does not authorize civil

penalties separately from injunctive relief; rather,

the two forms of relief are referred to in the same

subsection, even in the same sentence. 33 U.S.C.

§1365(a). The citizen suit provision suggests a con-

nection between injunctive relief and civil penalties

that is noticeably absent from the provision autho-

rizing agency enforcement. A comparison of §309

and §505 thus supports rather than refutes our con-

clusion that citizens, unlike the Administrator, may

seek civil penalties only in a suit brought to enjoin or

otherwise abate an ongoing violation.

484 U.S. at 58-59 (emphasis added).* Furthermore, in discuss-

ing the legislative history of the Clean Water Act, this Court

referred to the fact that “[m]jembers of Congress frequently

characterized the citizen suit provisions as ‘abatement’ provi-

7. Petitioners argue:

This Court's holding on the statutory jurisdictional issue in

Gwaltney further shows that injunctive relief is not a sine qua

non to civil penalty relief in a citizen suit. This Court held that

“citizens *** may seek civil penalties only in a suit brought to

enjoin or otherwise abate an ongoing violation” (emphasis

added). 484 U.S. at 59. The emphasized language, which is

stated in the disjunctive, shows that civil penalties are available

in a citizen suit when injunctive relief is not.

(Pet’r Br. at 16) (emphasis in original).

8. The use of the term “enjoin or otherwise abate” in the middle of this

Court's discussion that Ҥ505 of the Act does not authorize civil penalties

separately from injunctive relief,” 484 U.S. at 58, does not support Petition-

ers’ argument that “civil penalties are available in a citizen suit when injunc-

tive relief is not.” (Pet'r Br. at 16.) This Court plainly was referring to an

injunction either to stop an operation or to bring it into permit compliance.

Enjoin is defined as “To require; command; positively direct. To require a

person, by writ of injunction, to perform, or to abstain or desist from, some

act.” Black's Law Dictionary 529 (6th ed. 1990). Abate is defined as “To

bring down entirely or demolish, to put an end to, to do away with, to nul-

lify, to make void.” Jd. at 4.

14

sions or as injunctive measures.” /d. at 61. In addition, this

Court stated, “[m]Joreover, both the Senate and House

Reports explicitly connected §505 to the citizen suit provisions

authorized by the Clean Air Act, which are wholly injunctive

in nature.” Jd. at 62. This discussion evidences the plain con-

nection between injunctive relief and civil penalties. Legisla-

tive history and prior precedent support the Laidlaw holding

that a citizen cannot obtain civil penalties unless injunctive

relief is awarded.

If Laidlaw is affirmed, there is no legitimate risk that the

parade of horribles Petitioners predict will occur will in fact

take place.? Moreover, Petitioners grossly overstate the impact

if Laidlaw is affirmed.'° Trial courts are well eouipped to rec-

ognize, handle, and sanction dilatory practices. Furthermore,

it will be the exception rather than the rule that cases will be

dismissed as moot. Gwaltney plainly noted that a defendant's

burden to demonstrate mootness “is a heavy one.” /d. at 66

(quoting United States v. W. T. Grant Co., 345 U.S. 629, 633

(1953)). In addition, the “general rule” is that voluntary cessa-

tion of illegal conduct does not make a case moot. County of

Los Angeles v. Davis, 440 U.S. 625, 631 (1979). Courts are well

aware of their duty “to beware of efforts to defeat injunctive

relief by protestations of repentance and reform, especially

when abandonment seems timed to anticipate suit, and there

is probability of resumption.” W. T: Grant Co., 345 U.S. at 632

9. Petitioners argue:

Moreover, the wasting of time and resources could become a

vicious circle if a case were easily dismissed due to the voluntary

cessation of the illegal conduct. In such circumstances, defen-

dants would be free to resume illegal conduct, cease such con-

duct during suit to avoid the consequences of the suit, resume

the illegal conduct when the case was dismissed as moot, and so

on.

(Pet'r Br. at 23.) Petitioners also argue, “The court of appeals’ deci-

sion eviscerates the citizen suit provision of the Water Act and creates

perverse incentives that encourage violation of the Act and dilatory

litigation practices.” (Pet'r Br. at 36.)

10. Petitioners argue that Laidlaw “requires ... the dismissal of any

citizen suit brought against a party that has violated a federal environmen-

tal law as long as that party comes into compliance prior to final judgment.”

(Pet'r Br. at 10.)

15

(quoting United States v. Oregon State Med. Soc’y, 344 U.S.

326, 333 (1952)). Ample authority exists to protect a citizen

plaintiff from the “suddenly repentant defendant.” See Gwalt-

ney, 484 U.S. at 66-67."'

The same public policy arguments Petitioners make here

can be raised in any case when a defendant asserts a mootness

defense based on post-complaint events. Nevertheless, if the

mootness standard is met, courts have dismissed cases based

_ on a defendant's cessation of illegal activities and the predic-

tion that the illegal conduct will not continue. See Preiser v.

Newkirk, 422 U.S. 395 (1975). See also Sperry v. Florida, 373

U.S. 379, 383 n.1 (1963) (petitioner's right to refer to himself

as a “Patent Attorney” mooted by his voluntary discontinu-

ance of use of that term); Davis, supra. These cases recognize

that “jurisdiction, properly acquired, may abate if the case

becomes moot ... .” /d. at 631. This, of course, is consistent

with the rule in federal cases “that an actual controversy must

be extant at all stages of review, not merely at the time the

complaint is filed.” Preiser v. Newkirk, 422 U.S. at 401 (cita-

tions omitted).

D. Gwaltney Does Not Support Petitioners.

Petitioners argue that Gwaltney is binding precedent

based on certain factual similarities between the two cases.

However, this Court in Gwaltney decided only statutory issues,

not the constitutional jurisdiction issue presented in this case

and in Steel Co. Further, the procedural and factual history of

Gwaltney before this Court in 1987 were such that this Court

had no basis upon which to dismiss the case as moot. Thus, the

Petitioners’ reliance on Gwaltney is misplaced.

Petitioners argue that Gwaltney controls by citing to the

doctrine, verified in Steel Co., that constitutional jurisdiction

should be dealt with by a court first, before addressing the

11. Nonetheless, the burden to establish mootness is not insurmount-

able. “[S}peculative contingencies afford no basis for . . . passing on the sub-

stantive issues [the petitioner] would have us decide ... in the absence of

evidence that this is a prospect of immediacy and reality.” DeFunis v. Ode-

gaard, 416 U.S. 312, 320 n.5 (1985) (quoting Hall v. Beals, 396 U.S. 45, 49

(1969)) (internal quotes omitted).

16

merits of a case. (Pet’r Br. at 15.) It follows, according to Peti-

tioners, that this Court in Gwaltney “necessarily decided that

this case was not moot even though injunctive relief was no

longer viable.” (Pet’r Br. at 16.) This argument fails on several

levels.

First, this Court expressly noted in Steel Co. that Gwalt-

ney did not decide the issue of constitutional standing:

The short of the matter is that the jurisdictional

character of the elements of the cause of action in

Gwaltney made no substantive difference (nor even

any procedural difference that the Court seemed

aware of), had been assumed by the parties, and was

assumed without discussion by the Court. We have

often said that drive-by jurisdictional rulings of this

sort (if Gwaltney can even be called a ruling on the

point rather than a dictum) have no precedential

effect.

118 S. Ct. at 1011 (emphasis added).'? Justice Stevens’ concur-

ring opinion in Steel Co. likewise confirms that Gwaltney

“resolved the statutory question without pausing to consider

whether the plaintiffs had standing to sue for wholly-past vio-

lations.” /d. at 1025. Justice Stevens also stated, “the fact that

we did not discuss standing in Gwaltney does not establish that

the plaintiffs had standing there.” /d. And, Justice Stevens

pointed out “the omission of even a passing reference to any

standing issue in connection with the principal holding [in

Gwaltney|.” Id. at 1025 n.13. As summarized succinctly by Jus-

tice Scalia, the Article III requirement of remedial injury in

fact, which was addressed in Steel Co., has “nothing to do with

the text of the statute [Clean Water Act] relied upon” that was

addressed in Gwaltney. Id. at 1014 n.2.

12. This Court in Steel Co. was clearly aware of the distinction between

satisfying Gwaltney’s statutory requirements and Article III constitutional

requirements by noting that there was a “fundamental distinction between

arguing no cause of action and arguing no Article III redressability... .” 118

S. Ct. at 1013. This Court further noted that the issue of “statutory standing

... has nothing to do with whether there is case or controversy under

Article III.” Id.

17

Second, given that Gwaltney’s ieatment of constitutional

jurisdiction was, at best, a “drive-by” ruling entitled to no

more weight than dicta, basic principles of jurisprudence com-

pel that Gwaltney is not precedent for the constitutional issue

to be decided here. It is firmly established that reasoning or

language found to be dicta is not binding on courts obligated

to follow that court’s precedent. See Cohens v. Virginia, 19

U.S. (6 Wheat.) 264, 399-400, 5 L. Ed. 257 (1821); Brecht v.

Abrahamson, 507 U.S. 619, 631 (1993) (citing Edelman v. Jor-

dan, 415 U.S. 651, 670-71 (1974)).

Petitioners also argue that since mootness was raised in

the 1987 Gwaltney briefs filed with this Court, Gwaltney is

controlling by implication. (Pet’r Br. at 14.) However, Petition-

ers apparently concede, as they must, that Gwaltney never

ruled on this precise issue, since they state that this issue was

“necessarily determined” by the remand to the Fourth Circuit.

(Pet’r Br. at 16.) This attempt to establish silent, but implicit,

precedent has been flatly rejected by this Court. “Questions

which merely murk in the record, neither brought to the atten-

tion of the court nor ruled upon, are not to be considered as

having been so decided as to constitute precedents.” Webster

v. Fall, 266 U.S. 507, 511 (1925). Accord Hagans v. Lavine, 415

U.S. 528, 533 n.5 (1974) (“when questions of jurisdiction have

been passed on in prior decisions sub silentio, this Court has

never considered itself bound when a subsequent case finally

brings the jurisdictional issues before us”); Pennhurst State

School & Hosp. v. Halderman, 465 U.S. 89, 119 (1984); United

States v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33, 38 (1952).

Accordingly, unstated assumptions or rulings, which were

either ignored or not raised before a court, do not become

precedential holdings for future cases. Illinois State Bd. of

Elections v. Socialist Workers Party, 440 U.S. 173, 182-83

(1979).

Lastly, Petitioners’ argument that Gwaltney controls is

based on the faulty premise that this case is factually and pro-

cedurally identical to Gwaltney. An examination of the history

of Gwaltney, particularly from the District Court and Fourth

2 EE eerermlrmrmrorlele

18

Circuit decisions that preceded this Court’s 1987 Opinion,

reveals instead that this case and Gwaltney are distinguishable

for a number of reasons.

The plaintiffs in Gwaltney originally filed their District

Court complaint in June 1984, only one month after the last

reported violation. Gwaltney, 611 F. Supp. 1542, 1544-45 (E.D.

Va. 1985). In August 1984, those plaintiffs received a summary

judgment ruling which declared, under a standard that this

Court later overturned, the defendant “to have violated and to

be in violation of” the Clean Water Act. Gwaltney, 484 U.S. at

54. Only a few months later, in December 1984, the District

Court held a hearing as to the amount of civil penalties to be

assessed. Gwaliney, 611 F. Supp. at 1549 n.8.

As part of its ruling, the District Court cited to testimony

of a defense witness from the December 1984 hearing, who

stated that he would not be confident that the violation would

not recur until several months after the hearing, when the

manufacturing plant would have undergone a full winter's

operation. /d. The Fourth Circuit on the initial appeal recog-

nized this factual finding, but gave it no weight, as it:

assume[d] ... Gwaltney had ceased violating the

limits of its NPDES permit ... [bJecause we hold

that the Clean Water Act confers on the district

court jurisdiction over citizen suits seeking civil pen-

alties for past violations... . [W]e need not decide

whether plaintiffs in this case made their allegations

of continuing violations in good faith.

Gwaltney, 791 F.2d 304, 308 n.9 (4th Cir. 1986).

The District Court's rationale for its denial of an injunc-

tion in Gwaltney is also significant. Petitioners argue, “the

defendant's violations ceased a month before the complaint

was filed... . As a result, no injunctive relief was awarded by

the district court.” (Pet’r Br. at 14) (emphasis added). How-

ever, the footnote cited by Petitioners, which was from the

Fourth Circuit after this Court remanded the case in 1987,

shows the District Court gave no justification for its denial of

injunctive relief:

ee ee

19

The district court did not grant the injunction, nor

did its opinion give a rationale for not doing so.

However, in a later proceeding, Judge Merhige

explained that he was reluctant to enjoin people to

do what the law requires them to do.

Gwaltney, 890 F.2d 690, 692 n.2 (4th Cir. 1989) (emphasis

added). In contrast, the District Court here expressly held that

an injunction should not issue because the violations were not

substantially likely to recur.

Further, the scenario this Court faced in Gwaltney was

markedly different from the case at hand. The lower court

decision appealed in Gwaltney had no reason to examine

whether post-complaint events mooted the case. This was

because the District Court and the Fourth Circuit in Gwaltney

permitted citizen suits for wholly-past violations. Thus, those

courts did not reach any factual findings as to mootness, such

that the record below was insufficient for the Gwaltney Court

to determine whether the case was moot.

This Court in Gwaltney could not have dismissed the case

as moot because evidence on the issue was not developed

below. Insufficient facts were developed below as to whether

the case had become moot, unlike the situation here where the

lower court expressly found that Petitioners did not meet the

elements for injunctive relief against Laidlaw. Also, in 1987

this Court did not have before it an explanation from the

court below as to why an injunction was denied. Lastly, no

undisputed fact showing that the case was moot was present

before this Court in Gwaltney, but is present here, ie., the clo-

sure of Laidlaw’s plant. These factual and procedural distinc-

tions demonstrate why Gwaltney is not controlling on the

issues before this Court.

In remanding the case, this Court in Gwaltney gave direc-

tions to the Fourth Circuit on two issues. First, the Court

expressly rejected the notion that citizens could sue for wholly

past violations, and remanded for further proceedings on that

issue. Additionally, this Court included a discussion on moot-

ness, presumably not to be ignored but to identify an issue to

address on remand. Not unexpectedly, the defendant raised

20

mootness after remand. The Fourth Circuit on remand would

not have decided the mootness issue, 890 F.2d at 696, if this

Court had decided, as Petitioners argue, that after Gwaltney’s

Statutory requirements are met, a case cannot become moot.'?

il. NONE OF THE DECLARATORY RELIEF PETITION-

ERS REQUEST REDRESSES ANY ALLEGED

INJURY.

Petitioners also argue that this case is “live” because they

seek declaratory relief as to now-past violations. This argu-

ment has no merit under the redressability analysis of Steel

Co. and should be dispensed in short order. Petitioners

attempt to distinguish Steel Co. by arguing that a declaratory

judgment as to Laidlaw’s now nearly decade-old permit

exceedances is of some utility because Laidlaw contests them.

(Pet'r Br. at 39-40.) However, Petitioners offer no explanation

as to how such a declaratory judgment against Laidlaw, for

post-complaint but now mooted violations, is different from

the declaratory judgment denied in Steel Co. for pre-complaint

violations. At the time of trial, the Petitioners here sought a

declaratory judgment for wholly-past violations. As previously

discussed in detail, the mere fact that such claims were never

pled in Steel Co. is no reason to distinguish them from these

claims, which have become moot.

Petitioners’ analysis, if adopted, would lead to the absurd

result that a defendant could avoid liability by stipulating to

liability. If a Clean Water Act defendant does not believe it

committed a violation, but also believes any alleged violation

has been mooted due to the passage of time, that defendant

would be encouraged to admit liability for the prior violations

in order to eliminate redressability.

Just as in Steel Co., a declaratory judgment that Laidlaw

violated the Clean Water Act nearly ten years ago “is not only

worthless to [petitioners], it is seemingly worthless to all the

world.” Steel Co., 118 S. Ct. at 1018 (citing Lewis v. Continen-

tal Bank Corp., 494 U.S. at 479). Such a declaration for past

13. The Fourth Circuit's 1989 Gwaltney decision was not appealed to

this Court.

21

infractions is exactly the sort of “psychic satisfaction” which is

insufficient to establish redressability. Jd. at 1019. The only

arguable redress for Petitioners relates to their “generalized

interest in deterrence, which is insufficient for purposes of

Article III.” Jd. Accordingly, Petitioners’ claim for civil penal-

ties cannot resuscitate what are otherwise non-redressable

claims. Thus, the Fourth Circuit's decision properly dismissed

this case as moot, and should be affirmed.

CONCLUSION

For all the reasons discussed herein, amicus curiae, Her-

cules Incorporated, respectfully requests that this Court affirm

the Fourth Circuit's decision on the merits.

Respectfully submitted,

JOEL SCHNEIDER*

PETER L. FRATTARELLI

ARCHER & GREINER, PC.

One Centennial Square

Haddonfield, NJ 08033

(609) 795-2121

Counsel for Amicus Curiae,

Hercules Incorporated

*Counsel of Record

July 19, 1999

APPENDIX OF AMICUS CURIAE

HERCULES INCORPORATED

la

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

PUBLIC INTEREST RESEARCH

GROUP OF NEW JERSEY, INC.,_ :

et al., : Civil No. 89-2291 (JBS)

: Civil No. 93-2381 (JBS)

Plaintiffs,

2 - ORDER FOR

- ADMINISTRATION

HERCULES, INC., - TERMINATION

Defendant.

This matter came before the court upon motion of defen-

dant Hercules, Inc., to dismiss this case for lack of standing

due to alleged absence of redressability, upon which this court

heard oral argument on February 5, 1999; and

The court finding that the factual and procedural circum-

stances relating to redressability of the present case are indis-

tinguishable from Friends of the Earth, Inc. v. Laidlaw Ser-

vices, Inc., 149 F.3d 303 (4th Cir. 1998), cert. granted, 119 S. Ct.

1111 (March 1, 1999), which held that, in a Clean Water Act

suit seeking civil penalties and costs after injunctive relief has

been denied, in which there is no probable likelihood of a

repetition of events of non-compliance, the complaint for civil

penalties and costs was properly dismissed as moot despite

plaintiffs’ standing at the time the suit was filed; because the

Supreme Court will soon be determining whether the finding

of mootness in Laidlaw was correct, it appears that the wisest

1. Specifically, the Supreme Court granted certiorari on the following

three issues:

(1) Is citizen suit seeking civil penalties under Section 505 of

Clean Water Act constitutionally moot under Steel Co. v. Citi-

zens for Better Environment, 66 U.S.L.W. 4174 (U.S. 1998), due

to lack of redressability, when plaintiffs had standing at time of

complaint and have shown continuing injury-in-fact but have

2a

course is to defer ruling upon this complex issue, or reaching

the merits of this case, until the Supreme Court speaks in

Laidlaw, and

This court, by letter of March 10, 1999, sought the views

of the parties to obtain their assent to temporarily suspending

this case through an Order for Administrative Termination

while awaiting the Supreme Court's decision in Laidlaw; coun-

sel for defendant responded that Hercules has no objection

(see Letter of Joel Schneider, Esquire, dated March 15, 1999),

while counsel for plaintiffs responded that this case is distin-

guishable from Laidlaw and that, in any event, Laidlaw is not

binding in the Third Circuit? (see Letters of Carolyn Smith

Pravlik, Esquire, dated March 12, 1999 and March 22, 1999);

while this court agrees that Laidlaw is not Third Circuit pre-

cedent, a decision of the United States Supreme Court upon

this issue will be binding, and it is more than worth waiting

for; this court neither adopts nor rejects the Fourth Circuit's

not obtained injunctive relief? (2) Is citizen suit seeking civil

penalties under Section 50S of Clean Water Act constitutionally

moot under Sree! Co., due to lack of redressability, when district

court has rendered declaratory judgment as to hability and issue

of liability was contested? (3) Could plaintiffs not be awarded

attorneys’ fees or litigation costs because case was dismissed for

mootness, even if litigation was responsible for bringing defen-

dant into compliance with Clean Water Act?

67 U.S.L.W. 3537.

2. At oral argument on February 5, 1999, however. plaintiffs’ counsel

acknowledged that Laidlaw, though decided incorrectly by the Fourth Cir-

cuit in her view, presented circumstances indistinguishable from the present

case:

THE COURT: Is Laidlaw distinguishable from the present

case: And | know you've argued it was wrongly decided, and of

course —

MS. PRAVLIK: In-

THE COURT: But if it was correctly decided, is there any

way to distinguish it?

MS. PRAVLIK: No. I mean, obviously, it has, you know,

different facts and whatever, but in terms of the relevant facts

to this issue, no. It's indistinguishable from this situation.

Transcript of Hearing (Feb. 5, 1999), at 33:17 to 34:1.

3a

analysis in Laidlaw, and a temporary stay of proceedings

herein will be imposed in the interest of judicial economy:

IT IS this 31st day of March, 1999, hereby

ORDERED that consideration of defendant's motion is

stayed pending determination by the Supreme Court in Laid-

law; and

IT IS FURTHER ORDERED that the Clerk shall

ADMINISTRATIVELY TERMINATE this matter upon his

docket, without prejudice to any party's right to reopen the

docket for further proceedings consistent with law: and

IT IS FURTHER ORDERED that this Order for

Administrative Termination does not operate as a dismissal or

other determination of any claim, nor does this Order have

any consequence for purposes of statute of limitations or other

rights of any party.

/s/ Jerome B. Simandle

JEROME B. SIMANDLE

U.S. District Judge

3. When the Supreme Court renders its decision in Laidlaw, this docket

must be reopened for further proceedings upon defendant's motion and

upon the merits of the plaintiffs’ claims consistent with Laidlaw.

4a

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

PUBLIC INTEREST RESEARCH

GROUP OF NEW JERSEY, INC.,_ :

et al., : Civil No. 89-2291 (JBS)

Plaintiffs,

v.

HON. JEROME B.

SIMANDLE

HERCULES, INC.,

Defendant.

STIPULATION AND ORDER

WHEREAS, on March 31, 1993, this Court ruled on

plaintiffs’ and ‘efendant’s cross-motions for summary judg-

ment;

WHEREAs, the Court denied the cross-motions for sum-

mary judgment as to defendant's liability for six discharge vio-

lations which defendant claims were caused by an upset at

defendant's facility resulting from the failure of a blower and

a replacement blower (discharge violation nos. 50-51, 53, 56-58

in plaintiffs’ September 14, 1992, letter to Judge Simandle);

WHEREAS, the Court granted defendant's motion for

summary judgment that it is not liable for six discharge viola-

tions which were allegedly caused by an upset at defendant's

facility resulting from electrical failures and heavy rains (dis-

charge violation nos. 42-47 in plaintiff's September 14, 1992,

letter to Judge Simandle);

WHEREAS, the Court denied plaintiffs’ request for a

permanent injunction;

WHEREAS, the parties desire to assure that the trial

reduces the burden and costs on the parties and the Court by

focusing on whether additional penalties may be imposed for

ee ee Oe he

Sa

the violations already addressed by the New Jersey Depart-

ment of Environmental Protection and Energy;

IT IS HEREBY AGREED AND STIPULATED BY

THE PARTIES THAT:

1. Defendant consents to the entry of summary judgment

on liability for discharge violation nos. 50-51, 53, 56-58 in

plaintiffs’ September 14, 1992, letter to Judge Simandle;

2. Plaintiff's agree to the dismissal with prejudice of dis-

charge violation nos. 42-47 in plaintiffs’ September 14, 1992,

letter to Judge Simandle and not to seek to overturn that

judgment in any court;

3. Summary judgment is entered for Hercules as to plain-

tiffs’ claims for injunctive relief without prejudice to another

application based upon future violations.

/s/Elisabeth J. Lyons /s/Joel Schneider

CAROLYN SMITH PRAVLIK JOEL SCHNEIDER

ELISABETH J. LYONS Manta & Welge

Terris, Pravlik & Wagner One Commerce Square

1121 12th Street, N.W. 2005 Market Street, —

Washington, DC 20005 37th Floor

(202) 682-2100 Philadelphia, PA

(215) 851-6607

EDWARD LLOYD

15 Washington Street, Room 334

Newark, NJ 07102

The foregoing stipulation is hereby entered as an Order

of the Court, this 28th day of July, 1993.

/s/Jerome B. Simandle

JEROME B. SIMANDLE

United States District Court Judge