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

») } mu 19 1999

No. 98-822 _| OFrce Os Tl BLE

IN THE

SUPREME COURT OF THE UNITED STATES

FRIENDS OF THE EARTH, et al.,

Petitioners,

V.

LAIDLAW ENVIRONMENTAL SERVICES (TOC), INC.,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Fourth Circuit

BRIEF FOR 40 CALIFORNIA CITIES AND THE BAY

PLANNING COALITION AS AMICUS CURIAE IN

SUPPORT OF RESPONDENTS

Rick W. Jarvis

MEYERS, NAVE, RIBACK

SILVER & WILSON

777 Davis Street, Suite 300

San Leandro, CA 94577

(510) 351-4300

Counsel for Amici California

Municipalities and the Bay

Planning Coalition

Dated: July 14, 1999

Ab"

LIST OF PARTICIPATING AMICI] CURIAE CITIES

Bakersfield

Barstow

Burbank

Burlingame

Camarillo

Corcoran

Cotati

Delano

El] Centro

Fresno

Gustine

La Habra

Lakewood

Live Oak

Long Beach

Los Alamitos

Los Angeles

Manteca

Merced

Milpitas

Monterey

Mountain

View

Novato

Palm Desert

Redlands

Roseville

San Bruno

San Diego

Santa Clara

Santa Rosa

South San

Francisco

Stanton

Sunnyvale

Sutter Creek

Turlock

Vacaville

Vernon

Waterford

Towns of

Corte Madera

Tiburon

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

STATEMENT OF THECASE..................... 2

SUMMARY OF ARGUMENT..................... 3

eer aidicesssecdiscscscccecs. 6

I. This Court should uphold the dismissal of

the claim for civil penalties, not because it

became moot, but because Petitioners never

had standing to seek civil penalties in the

DE SauGewenseeccccessvvcecces 6

A. Citizens lack standing to seek civil

penalties payable to the United

States, as such penalties do not

redress any injury suffered by

DE Beneseceececececcececs 6

l. A citizen group does not

automatically have standing to

seek civil penalties just

because it has standing to seek

injunctive relief; the

justiciability of the two types

of relief should be analyzed

ee 9

2. Civil penalties do not provide

citizen plaintiffs with any

redress against ongoing

CONCLUSION

violations of the Clean Water

dees beet ekiee 12

3. The Court should adopt an

absolute rule that civil

penalties pavable to the

United States never provide

redress to a citizen's injury,

rather than allow a “case-by-

case” inquiry as to whether

civil penalties would redress

an injury in a particular

GE. ccncvcecceccedens 21

Allowing citizen groups to seek civil

penalties has led to abuses of the

Federal judicial system which this

Court should not permit under

GEG Kaccsnvaccnsasdinss 24

ili

TABLE OF AUTHORITIES

Cases Page(s)

Brown v. Edwards

Be Bee Be GG, Bs oc bc cecccecccsocces 11

City of Los Angeles v. Lyons

461 U.S. 95, 103 S.Ct. 1660 (1993)............... 10

Coleman v. Watt

Co ee 10

Gwaltney of Smithfield v. Chesapeake Bay Foundation

484 U.S. 49, 108 S.Ct. 376 (1987)........ 7,17, 19, 20

Henschen v. City of Houston

959 F.2d 584 (Sth Cir. 1992) ..............-5-55. 10

Linda R.S. v. Richard D.

410 US. 614, 93 S.Ct. 1146 (1973)....... 4, 14-16, 24

Middlesex County Sewerage Authority v. National Sea Clammers

Ass'n, 453 U.S. 1, 1010 S.Ct. 2615 (1981)........... 7

National Maritime Union of Am. v. Commander, Military Sealift

Command, 824 F.2d 1228 (D.C. Cir. 1987).......... 1]

Nava v. City of Dublin

523 P96 455 Cts Cis. IDF) 222 nc ccccccscscccces 1]

Smith v. City of Fontana

818 F.2d 1411 (9th Cir. 1987) ...............-.4.-.. 11

iv

Steel Co. v. Citizens for a Better Environment

523 U.S. 83, 118 S.Ct. 1003 (1998)... .. 4,7-9,13

U.S. Dep't of Energy v. Ohio

503 U.S. 607, 112 S.Ct. 1627... 2... oo. 4, 16-19

United Anglers v. City of South San Francisce

1997 WL 362118 (N.D.Cal., Jun 19, 1997)...... 25, 26

Wagshal v. Foster

20 ©.26 1DGP GOL. Cis. 1906) .. 2... cece 10

Weinberger v. Romero-Barcelo

456 U.S. 305, 102 S.Ct. 1798 (1982)... .. 12, 15, 18, 19

Williams v. Ellington

936 F.2d 881, 889 (6th Cir. 199:: .......... ll

Statutes

ee oleae ak 2

ek ence okhuceccccusesébax 7,12

a 2

33 U.S.C. § 1342(b)(2)(B)(7) .................... 18

REST SI Nv Renee eee Se eee ope 2

a OD ccc cc ccceccecusseéee 7, 16,18

ee enueoan 18

United States Constitution:

]

IN THE SUPREME COURT OF THE UNITED

STATES

No. 98-822

FRIENDS OF THE EARTH, INC., ET AL.,

Petitioners

v.

LAIDLAW ENVIRONMENTAL SERVICES (TOC), INC.,

Respondents

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF FOR 40 CALIFORNIA CITIES AND

THE BAY PLANNING COALITION AS

AMICUS CURIAE IN SUPPORT OF RESPONDENTS

INTERESTS OF AMICI CURIAE

Amici Curiae Cities of Bakersfield, Barstow, Burbank

Burlingame, Camarillo, Corcoran, Cotati, Delano, El

Centro, Fresno, Gustine, La Habra, Lakewood, Live Oak,

Long Beach, Los Alamitos, Los Angeles, Manteca, Merced,

Milpitas, Monterey, Mountain View, Novato, Palm Desert,

Redlands, Roseville, San Bruno, San Diego, Santa Clara,

Santa Rosa, South San Francisco, Stanton, Sunnyvale,

Sutter Creek, Turlock, Vacaville, Vernon, Waterford, and

2

the Towns of Corte Madera and Tiburon are each

municipalities in the State of California. Some of these

municipalities (including the Cities of Gustine. Los Angeles,

Santa Rosa, and South San Francisco) have been sued in

the past by citizen groups for civil penalties under the

federal Clean Water Act (“CWA”), 33 U.S.C. § 1251] et seq.

The remainder could potentially be the subject of such

citizen suits in the future due to their operation of facilities

subject to regulation under the Clean Water Act, including

wastewater treatment plants and storm drain facilities.

Amicus Curiae Bay Planning Coalition is a coalition of

over 150 businesses, associations, and local public agencies

in the San Francisco Bay Area formed in 1983 to advocate

balanced regulation and use of San Francisco Bay-Delta

resources. The Coalition monitors and participates in state

and federal agency policy and rulemaking on shoreline

landuse and water quality issues. The Coalition is

concerned about the drastic increase in Clean Water Act

citizen suits filed in the San Francisco Bav Area in recent

years seeking civil penalties. Some of the Coalition's

members have been subjected to such citizen suits.

STATEMENT OF THE CASE

Petitioners in this case are citizen groups that have

brought a citizen enforcement action against Respondent

for alleged violations of a National Pollutant Discharge

Elimination System (“NPDES”) permit issued pursuant. to

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

facility operated by Respondent. Pursuant to section 505

of the Clean Water Act, 33 U.S.C. § 1365, Petitioners

sought injunctive relief against future violations and civil

3

penalties for past violations. Because Respondent brought

itself into substantial compliance with the NPDES permit

by the time of trial, the District Court denied the claim for

injunctive relief, but did award some civil penalties.

Petitioners appealed based upon the adequacy of the award

of civil penalties, but did not appeal the denial of injunctive

relief. Respondent cross-appealed. The Fourth Circuit held

that, because the issue of injunctive relief was no longer

before the court, and because civil penalties alone would

not have provided any remedy to Petitioners, the claim for

civil penalties had become muot. See, Friends of the Earth v.

Laidlaw Env. Services, 149 F.3d at 305-307 (4th Cir. 1998).

SUMMARY OF ARGUMENT

The Court should find that citizen groups lack standing

to seek assessments of civil penalties under the Clean

Water Act. Because such penalties are payable to the

United States, they do not provide any redress to a citizen

and thus do not satisfy the “redressability” requirement of

Article III.

The Fourth Circuit below confused the issue of whether

a claim for injunctive relief has become moot with the issue

of whether a citizen had standing to seek civil penalties in

the first place. However, the justiciability of the two differ-

ent types of relief must be analyzed separately. Having

standing to seek injunctive relief against an ongoing viola-

tion does not automatically give a citizen standing to seek

civil penalties for past violations. Litigating the issue of

how much civil penalties should be assessed for past viola-

tions raises numerous factual issues beyond what would be

required to determine whether to issue an injunction.

4

This Court has already held in the Steel Co. decision

that civil penalties do not provide citizens anv redress for

violations which precede the filing of the complaint. The

Court should also hold that civil penalties do not provide

redress to citizens even if the violations are still ongoing at

the time of trial. Just as in the Linda R.S. yr. Richard D. case,

the court should find that it is too speculative that the

assessment of civil penalties for past violations will dissuade

the defendant from future violations (and thereby arguably

provide redress to a citizen injured bv the violations). The

mere fact that criminal and civil sanctions Geter violations

of law does not mean that citizens injured by such

violations can find redress in the assessmenz of such

sanctions.

Citizens can still seek full redress bv pursuing claims for

injunctive relief. In awarding injunctive relief. a court can

include coercive sanctions if a monetarv fine is necessary to

enforce compliance. Civil penalties for past violations are

unnecessary. Petitioners’ argument that injunctive relief,

without an award of civil penalties, is not sufficient to

achieve compliance with the Clean Water Act is analogous

to an argument this Court already rejectec in LS. Dep't of

Energy v. Ohio. Further, civil penalties still serve as a

deterrence without citizens having standing to seek them,

as both the United States and state agencies still have

authority to seek such penalties (even for wholly past

violations).

The Court should not adopt a “case-by-case” rule which

leaves open the possibility that, in some cases. an award of

civil penalties might provide a particular citizen with some

5

‘dress, based on the speculative possibility that it may

dvter a particular defendant from future violations. Such a

relaxed interpretation of Article III would be cumbersome,

waste judicial resources, and often lead to absurd results.

Certainly, in most cases (including this one), a court will

lose jurisdiction as soon as the defendant has come into

compliance (even as a result of an injunction), in which

case the threat of civil penalties for past violations would

clearly provide a plaintiff with no redress. Upon

compliance, so long as the litigation is pending (even in the

court of appeal), the civil penalty claim will then have to be

dismissed as nonjusticiable, and all litigation expenses and

court resources spent litigating the civil penalty issue will be

wasted. Plaintiffs wili want to keep alive as long as possible

any issue as to whether a defendant has complied, even

where (as in this case) a plaintiff would otherwise no longer

litigate this issue.

Allowing citizen plaintiffs to pursue civil penalties

which bear no relation to the injury they actually have

suffered has led to gross abuses of the federal judicial

system. Citizen plaintiffs have used the threat of penalties

(sometimes totalling in the millions or even hundereds of

millions of dollars) to extort contributions and other

concessions out of defendants. Such abuses would not

occur if the relief plaintiffs could seek were limited to

remedying whatever injuries they actually suffered. Under

Article III, this Court should not tolerate the use of citizen

suits by environmental plaintiffs as a means of “fund-

raising” for their pet projects from reluctant defendants.

6

ARGUMENT

I. This Court should uphold the dismissal of the claim

for civil penalties, not because it became moot, but

because Petitioners never had standing to seek civil

penalties in the first place.

The Fourth Circuit correctly found that Petitioners’

claim for civil penalties under the Clean Water Act is not

justiciable, but it reached this finding for the wrong reasons.

The Fourth Circuit's ruling that Petitioners’ claim for civil

penalties became moot incorrectly presupposes that the

claim originally was justiciable. Instead, the Fourth Circuit

should have ruled that Petitioners lacked standing under

Article III of the United States Constitution to seek such

penalties in the first place. This is because requiring

Respondent to pay civil penalties to the United States

Treasury for past violations of the Clean Water Act never

would have redressed any injurv suffered bv Petitioners.

A. Citizens lack standing to seek civil penalties

payable to the United States, as such penalties

do not redress any injury suffered bv citizens.

A primary flaw in both the Fourth District’s decision

and in Petitioners’ opening brief is that thev leap

immediately to ts is ue of whether the claim for civil

penalties had become “moot,” without first addressing the

key threshhold issue of whether Petitioners ever had

standing to seek such penalties in the first place.

This Court should find that a citizen never has standing

to seek an assessment of civil penalties under sections

— ee

7

309(d) and 505(a) of the Clean Water Act, 33 U.S.C. §§

1319(d), 1365(a). This is because an award of civil

penalties would not satisfy the “redressability” requirement

of Article III, Section 2 of the United States Constitution.

As this Court has repeatedly held, in order for a plaintiff to

have standing to bring an action in federal court, the

plaintiff must, inter alia, seek relief that will redress an

injury suffered by plaintiff. Steel Co. v. Citizens for a Better

Environment, 523 U.S. 83, 118 S.Ct. 1003, 1016-1017

(1998). Civil penalties are payable to the United States

Treasury, not to the citizen plaintiff. Gwaltney of Smithfield

v. Chesapeake Bay Foundation, 484 U.S. 49, 53, 108 S.Ct.

376 (1987); Middlesex County Sewerage Authority v. National

Sea Clammers Ass’n, 453 U.S. 1, 14.n. 25, 1010 S.Ct. 2615

(1981). They thus do not provide any relief to citizens,

and citizens lack standing under Article III to seek them.

Steel Co., 118 U.S. at 1018-1019.

This Court’s holding on this issue in Steel Co. is

controlling. That case dealt with a citizen suit under the

Emergency Planning and Community Right-to-Know Act of

1986 (“EPCRA”), which, like the Clean Water Act,

authorizes civil penalties payable to the United States

Treasury. This Court held that a citizen plaintiff does not

have standing to seek such civil penalties, because they

provide no redress to the citizen:

[T]he civil penalties authorized by the statute . . .

might be viewed as a sort of compensation 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

8

States Treasury. In requesting them, therefore,

respondent secks not remediation of its own injury

.. . but vindication of the rule of law--the “undiffer-

entiated public interest” in faithful execution of

EPCRA. This does not suffice. Justice STEVENS

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. ... Obviously, such a principle would make

the redressability requirement vanish. Bv the mere

bringing of his suit, every plaintiff demonstrates his

belief that a favorable judgment will make him

happier. But although a suitor may derive great

comfort and joy from the fact that the United States

Treasury is not cheated, that a wrongdoer gets his

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

enforced, that psychic satisfaction is not an accept-

able Article III remedy because it does not redress a

cognizable Article II] injury. Relief thet does not

remedy the injury suffered cannot boozsirap a

plaintiff into federal court; that is the verv essence

of the redressability requirement.

Steel Co., 118 S.Ct. at 1018-1019 (citations omitted).

Petitioners weakly attempt to distinguish this holding

by arguing that the plaintiff in Stee! Co. did not allege an

ongoing violation at the time the complaint was filed. Yet,

as can be seen from the above excerpt, nothing in this

Court's analysis in Steel Co. suggested that the issue of

whether civil penalties “redress” a plaintiff's injuries

depends on whether the alleged violation is ongoing at the

9

time the complaint is filed. Certainly, if a violation is

ongoing, then a citizen plaintiff who is injured by the

violations would have standing to seek injunctive relief

against continued violations, as such injunctive relief would

redress the injury. But merely having standing to seek

injunctive relief does not give a plaintiff standing to seek

civil penalties, and civil penalties do not provide a citizen

plaintiff any redress against ongoing violations.

1. A citizen group does not automatically have

standing to seek civil penalties just because it

has standing to seek injunctive relief; the

justiciability of the two types of relief should

be analyzed separately.

Having standing to seek injunctive relief does not

automatically give a citizen standing to seek civil penalties.

Both the Fourth Circuit and Petitioners confuse the issue of

citizen standing to seek injunctive relief with the issue of

citizen standing to seek civil penalties. They fail to address

the key threshhold questions of whether Petitioners had

standing under Steel Co. to seek civil penalties in the first

place, and, if so, why? In this subsection, we explain why

standing to seek injunctive relief is not, by itself, sufficient

to grant standing to seek civil penalties. In the subsections

to follow, we will then explain why citizen plaintiffs should

never be found to have standing to seek civil penalties.

We have found no case in which this Court has directly

addressed the issue of whether and when having standing to

seek one type of relief automatically grants a plaintiff

standing to seek another type of relief as well. However,

the holding in City of Los Angeles v. Lyons, 461 U.S. 95, 105,

10

103 S.Ct. 1660 (1993) suggests such automatic standing

does not exist. The plaintiff in that case allegedly had been

subjected to a chokehold and sued for both damages and

for an injunction against the use of chokeholds in the

future. This Court held that, while plaintiff had standing to

seek damages for the chokehold he had suffered, plaintiff

did not have standing to seek an injunction regulating the

city’s use of chokeholds in the future, given that it was

speculative whether plaintiff would ever again be subjected

to such chokeholds (and thus an injunction would provide

no redress to plaintiff). 461 U.S. at 105-106. If the

plaintiff in Lyons did not have standing to seek injunctive

relief against future conduct just because he had standing to

seek damages for past wrongs, then a citizen should not be

found to have standing to seek civil penalties for past

wrongs just because he or she has standing to seek

injunctive relief against continued violations.

Most circuit courts that have addressed the issue have

held that having standing to seek one type of relief never

grants a plaintiff automatic standing to seek another type of

relief:

See, e.g., Coleman v. Watt, 40 F.3d 255, 259 (8th Cir.

1994) (analyzing justiciability separately for dam-

ages and injunctive relief); ... Wagshal r. Foster, 28

F.3d 1249, 1252 (D.C. Cir. 1994) (analyzing justic-

iability separately for damages and injunctive relief),

cert. denied, 115 S. Ct. 1314 (1995); Henschen v. City

of Houston, 959 F.2d 584, 587 (Sth Cir. 1992)

("Justiciability must be analyzed separately on the

issues of money damages and the propriety of equi-

1]

table relief."); Williams v. Ellington, 936 F.2d 881,

889 (6th Cir. 1991) (analyzing justiciability separ-

ately for damages and injunctive relief); . . . National

Maritime Union of Am. v. Commander, Military Sealift

Command, 824 F.2d 1228, 1234 (D.C. Cir. 1987)

("{T)he relief the litigant seeks is crucial to the de-

termination of his standing; he may possess standing

as to one form of relief [damages] but not as to ano-

ther [injunctive]."); . . . Brown v. Edwards, 721 F.2d

1442, 1446-47 (Sth Cir. 1984) (considering juris-

diction separately for damages and injunctive relief).

Nava v. City of Dublin, 121 F.3d 453, 457 (9th Cir. 1997).

Nonetheless, the Ninth Circuit applies a more liberal

rule, and has found that a plaintiff who has standing to

seek one type of relief automatically has standing to seek

another type of relief if the claims for relief are “predicated

on a single legal theory requiring development of the exact

same set of facts.” Smith v. City of Fontana, 818 F.2d 1411,

1422 (9th Cir. 1987). However, even under this more

liberal rule, a citizen with standing to seek injunctive relief

against ongoing violations should not be found to have

standing to seek civil penalties for past violations, because

the two claims do not require “development of the exact

san set of facts.” The Clean Water Act expressly requires

courts to consider many factual issues in determining a

claim for civil penalties which would not be considered in a

mere claim for injunctive relief:

In determining the amount of a civil penalty the

court shall consider the seriousness of the violation

or violations, the economic benefit (if any) resulting

12

from the violation, any history of such violations,

any good-faith efforts to comply with the applicable

requirements, the economic impact of the penalty

on the violator, and such other matters as justice

may require.

33 U.S.C. § 1319(d). While a court may consider various

equitable factors in issuing an inyur« tion, see, Weinberger v.

Romero-Barcelo, 456 U.S. 305, 312-313, 102 S.Ct. 1798

(1982), the statutory penalty factors quoted above clearly

raise additional factual issues. Indeed, in manv Clean

Water Act cases, issues of liability and the need for an

injunction are fairly readily determined, with most of the

litigation effort devoted to the issue of the proper amount

of civil penalties. Litigation over civil penalties can (and

often does) drastically increase the scope and expense of

Clean Water Act lawsuits.

Thus, citizen standing under Article III to seek an

injunction against violations of the Clean Water Act in no

way implies standing to seek civil penalties. The issue of

whether a citizen has standing in the first place to seek civil

penalties should not be confused with the issue of whether

a Claim for injunctive relief has become moot.

2. Civil penalties do not provide citizen

plaintiffs with any redress against ongoing

violations of the Clean Water Act.

This Court should find that civil penalties never provide

redress to citizen plaintiffs for injuries resuluing from

violations of the Clean Water Act, even where violations

are ongoing. It is too speculative to suppose that the award

13

of civil penalties for past violations (including post-

complaint violations which precede the trial) will serve to

discourage future violations by a defendant, sufficient to

provide redress to injury which a plaintiff may suffer as a

result of future violations.

As already noted, in Steel Co., this Court held that an

award of civil penalties payable to the United States

provides no constitutional redress to a citizen, and thus

that citizens do not have standing to seek such civil

penalties. 118 S.Ct. at 1018-1019. Plaintiff's sole ground

for distinguishing this holding is that, in Steel Co., the

alleged violations were not ongoing at the time suit was

filed. Thus, the primary question is: Is there a likelihood that

an award of civil penalties for past violations will redress an injury

suffered by a citizen plaintiff as a result of ongoing violations,

sufficient to give the plaintiff Article III standing to seek such

penalties? Only if the answer to this question is affirmative

does the Court reach the secondary question of mootness:

Once an ongoing violation has been remedied, will the additional

award of civil penalties still provide any further redress, or will

civil penalty proceedings have to be dismissed at that time (even

after trial but pending appeal)? An ongoing violation could

later be rendered moot by a variety of events, including (1)

compliance with injunctive relief being issued by the court,

(2) voluntarily compliance by the defendant, or (3) the

amendment or adoption of an NPDES permit to authorize

previously prohibited discharges.

This Court has never upheld the assessment of civil

penalties under the Clean Water Act or other law against a

defendant in a case brought by citizens. Thus, this Court

14

has never had the occassion to determine whether such an

award in a citizen suit is consistent with Article II].

However, this Court's prior cases on standing strongly

suggest that the speculative possibility that an award of

civil penalties against a particular defendant will discourage

tuture violations by that defendant is not sufficient to

confer standing on a citizen plaintiff.

The case Linda R.S. v. Richard D., 410 U.S. 614, 93

S.Ct. 1146 (1973) is controlling. In that case. the plaintiff

sought an order compelling a state to criminaliv prosecute

the father of her child for violating a state law requiring

payment of child support. This Court held that she did not

have standing, finding that it was “speculauve’ whether the

criminal prosecution of her child's father would, in fact,

result in child support payments:

Here, appellant has made no showing that her

failure to secure support payments results trom the

nonenforcement, as to her child's father. of An.

602. Although the Texas statute appears to create a

continuing duty, it does not follow the civil con-

tempt model whereby the defendant “keeps the kevs

to the jail in his own pocket” and may be released

whenever he complies with his legal obligations. On

the contrary, the statute creates a completed offense

with a fixed penalty as soon as a parent fails to sup-

port his child. Thus, if appellant were granted the

requested relief, it would result only in the jailing of

the child's father. The prospect that prosecution

will, at least in the future, result in payment of

support can, at best, be termed only speculative.

15

410 U.S. 618 (emphasis added). Just like it is speculative

whether the criminal prosecution of the father in Linda R.S.

v. Richard D. would result in the payment of child support

by the father, it is also speculative whether the assessment

of civil penalties for past violations of the Clean Water Act

will result in future compliance by the defendant. This is

true even if the Clean Water Act violations are ongoing,

just like the father’s alleged nonpayment of child support

was ongoing in Linda R.S. v. Richard D.

Petitioners cite prior statements of this Court for the

truism that civil penalties have a deterrent effect against

future violations. Tull v. United States, 481 U.S. 412, 422-

423 (1987); Weinberger v. Romero-Barcelo, 456 U.S. 305, 314

(1982). Of course, it is just as true that the threat of

criminal prosecution in Linda R.S. v. Richard D. had a

deterrent effect against violation of the statute requiring

child support payments, and that all criminal and civil

penalties have a deterrent effect against the unlawful

activity they seek to penalize. Nonetheless, “in American

jurisprudence at least, a private citizen lacks a judicially

cognizable interest in the prosecution or nonprosecution of

another.” Linda R.S. v. Richard D., 410 U.S. at 619. The

fact that criminal and civil penalties, as a general matter,

deter violations of law does not mean that the prosecution

of a defendant in a particular case for past violations of law

will provide redress to an individual citizen cognizable

under Article III, even in cases where violations of law may

be repeated.

Unlike the plaintiff in Linda R.S. v. Richard D., a citizen

plaintiff can seek injunctive relief under the Clean Water

16

Act to require compliance, providing direct redress for any

injury. 33 U.S.C. § 1365(a). Thus, the case against the

justiciability of a claim for civil penalties under the Clean

Water Act is even stronger than the case against the

justiciability of the criminal prosecution sought in Linda

R.S. v. Richard D. Not only is it speculative whether such

penalties will result in future compliance, but the award of

penalties for past violations often would be redundant,

given that a plaintiff usually can already get full redress via

a claim for injunciive relief.

Petitioners and some of their supporting amia express

concern that an injunction alone may be insufficient, and

that without the threat of monetary sanctions. defendants

will not have a sufficient incentive to comply with the

Clean Water Act. There are two flaws with this argument.

First, Petitioners overlook the fact that, in awarding

injunctive relief, courts have full authority to include

coercive fines for any future violations, even though they do

not have jurisdiction to award civil penalties in an action

brought solely by private citizens. See, U.S. Dep't of Energy

v. Ohio, 503 U.S. 607, 613-614, 625, 112 S.Cu 1627

(1992) (finding that, while the United States was immune

from suit for civil penalties for past violations of the Clean

Water Act, it could still be subject to coercive fines to

ensure compliance with an injunction). Indeed, in U.S.

Dep't of Energy v. Ohio, this Court rejected arguments very

similar to those made by Petitioners and their supporting

amici here:

Ohio asserts that “federal facility compliance .. .

cannot be . . . accomplished without the [punitive]

———

17

penalty deterrent.” [9] The case for such pessimism

is not, however, self-evident. To be sure, an agency

of the Government may break the law where it

might have complied voluntarily if it had faced the

prospect of punitive fines for past violations. But to

say that its “compliance cannot be . . . accomp-

lished” without such fines is to assume that without

sanctions for past conduct a federal polluter can

never be brought into future compliance, that an

agency of the National Government would defy an

injunction backed by coercive fines and even a

threat of personal commitment. The position

seems also to ignore the fact that once such fines

start running they can be every dollar as onerous

as their punitive counterparts; it could be a very

expensive mistake to plan on ignoring the law

indefinitely on the assumption that contumacy

would be cheap.

503 U.S. at 625.

Second, even though citizens do not have standing to

seek civil penalties, the threat of civil penalties still serves

as a deterrent effect, because the United States and state

agencies can still seek civil and criminal penalties, even for

wholly past violations. Gwaltney of Smithfield v. Chesapeake

Bay Foundation, 484 U.S. at 58-59. Thus, the reasoning

quoted above of this Court in U.S. Dep't of Energy v. Ohio

(in which the Court found that the United States was

completely immune from any assessment of civil penalties

for past misconduct) applies with even more force here

(where the threat of civil penalties for past violations, in

18

addition to coercive fines, still exists). Indeed. if a citizen

suit brings to light egregious violations of the Clean Water

Act, that by itself may lead to a separate civil penalty action

by the United States or a state for those past violations.

Alternatively, the United States may seek to intervene into

a pending citizen suit pursuant to section 505(c)(2), 33

U.S.C. § 1365(c)(2), in which case the court could issue

civil penalties in that action pursuant to section 505(a), 33

U.S.C. § 1365(a).'

Of course, in balancing equities, courts have the

discretion to deny injunctive relief even where there is an

ongoing violation of the Clean Water Act. \% anberger v.

Romero-Barcelo, 456 U.S. at 319-320. Thus. in some cases, a

citizen plaintiff will be able to establish the existence of an

injury which will not necessarily be remedied as a result of

pursuing injunctive relief. As this Court recognized in

Weinberger v. Romero-Barcelo, “an injunction is not the only

means of ensuring compliance,” and the asssessment of

'Certain states have filed an amicus brief in which they

have expressed concern that, if citizens do not have standing to

seek civil penalties payable to the United States Treasury, then

neither will states, raising the spectre that states wil not be able

to penalize violators of the Clean Water Act. This concern is, of

course, ludicrous. In order to have a certified NPDES permit

program under the Clean Water Act, states are required to enact

their own laws providing for the assessment of civil and criminal

penalties. 33 U.S.C. § 1342(b)(2)(B)(7); see, Lmizea States Dep't

of Energy v. Ohio, 503 U.S. at 612, n. 1, (in which a state brought

enforcement action under Clean Water Act seeking fines imposed

under state law).

19

fines and civil penalties is an alternative means of

encouraging compliance. Id. at 314. However, that does

not change the fact that an assessment of civil penalties

does not provide a citizen plaintiff with any redress

cognizable under Article III. Petitioners purport to cite the

above-quoted language Weinberger v. Romero-Barcelo as

authority for the proposition that this Court has already

upheld the right of citizen plaintiffs to seek civil penalties.

However, that case did not uphold (or even address) any

claim for civil penalties. Further, that case dealt with a

citizen suit against the United States. Thus, any reading of

that case as affirming the right of citizens to sue for civil

penalties against the defendant in that case (the United

States) would directly contradict this Court’s holding in

U.S. Dep't of Energy v. Ohio, 503 U.S. at 615-627, that the

United States is immune from suit for civil penalties.

While not directly addressing the issue of whether an

award of civil penalties satisfies the “redressability”

requirement of Article III, this Court’s decision in Gwaltney

does effectively state that citizens do not have standing to

maintain an action solely for civil penalties, even where

there is an ongoing violation of the Clean Water Act at the

time the complaint is filed:

Petitioner also worries that our construction of

§ 505 would permit citizen-plaintiffs, if their allega-

tions of ongoing noncompliance become false at some

later point in the litigation because the defendant

begins to comply with the Act, to continue nonethe-

less to press their suit to conclusion. According to

petitioner, such a result would contravene both the

20

prospective purpose of the citizen suit provisions

and the “case or controversy” requirement of Article

Ill. Longstanding principles of mootness, however,

prevent the maintenance of suit when “‘there is no

reasonable expectation that the wrong will be re-

peated.’” .. . Mootness doctrine thus protects

defendants from the maintenance of suit under the

Clean Water Act based solely on violations wholly

unconnected to any present or future wrongdoing ... .

484 U.S. at 66-67 (emphasis added, citations omitted).

After reaching the above conclusion, this Court remanded

the case to the lower court for consideration of whether any

violations were ongoing. /d. at 67. It would be inconsistent

with the above reasoning to allow a citizen-plaintff to

proceed with an action for civil penalties for violations after

the they are remedied (even if the violations continued

after filing of the complaint), as the above language clearly

states that a Clean Water Act case should no longer be

prosecuted once a defendant comes into full compliance.’

*Petitioners make a strained interpreiation of Gwaltney

(relying on facts not disclosed in the opiruon nor before this

Court, but disclosed in a subsequent appellate court proceeding)

to suggest that this Court recognized the ability of Guzens to

pursue an action solely for civil penalties. Obviously, such an

interpretation directly contradicts the language quoted above.

Further, while this Court in Gwaltney presupposed (without

deciding) the ability of citizen plaintiffs to seek civil penalties in

connection with a claim for injunctive relief, 484 U.S. at 58-59,

it did not analyze or decide the issue of whether Article III grants

citizen plaintiffs standing to seek civil penalties in connection

21

For all of the above reasons, the Court should find that

citizens never have standing to seek an assessment of civil

penalties under the Clean Water Act.

3. The Court should adopt an absolute rule that

civil penalties payable to the United States

never provide redress to a citizen’s injury,

rather than allow a “case-by-case” inquiry as

to whether civil penalties would redress an

injury in a particular case.

As an alternative to ruling that civil penalties will never

redress a citizen’s injury, the Court might be tempted to

adopt a “case-by-case” rule. The Court might require an

evidentiary hearing in each citizen suit as to whether the

possibility of an award of civil penalties for past violations

would serve as a sufficient, non-speculative discouragement

against future violations by that particular defendant, under

the circumstances of that particular case, so as to justify

allowing the citizen to seek civil penalties in addition to, or

as an alternative to, injunctive relief. However, such a

relaxed interpretation of Article III would be cumbersome,

result in a waste of judicial resources, and would often lead

to absurd results.

First, we stress that even if the Court does not rule out

the possibility that a citizen group would have standing

under some circumstances to seek civil penalties, such

circumstances would be extremely rare and certainly do not

exist in the case now before this Court. In the proceedings

with a claim for injunctive relief against ongoing violations.

22

below, the District Court denied injunctive relief on the

ground that Respondent had been in substantial

compliance with its NPDES permit for several vears by the

time of trial. Even if the threat of civil penalties had, in

part, spurred Respondent to come into compliance (and we

understand that Respondent strongly denies this), that

would not change the fact that, by the time of trial, the civil

penalty award for past violations provided no redress to

Petitioners and thus became non-justiciable.

Likewise, in many cases, an award of injunctive relief by

the Court will provide full redress to Petitioners. As soon

as such an award is made, any civil penalty award for past

violations (including post-complaint violations prior to

trial) will not provide any additional redress. If the award

of injunctive relief is made first, then the Court will have

lost jurisdiction at that point to assess civil penalties. If the

Court has already assessed civil penalties by the time it

issues injunctive relief providing full redress, then there will

be no Article III jurisdiction for any appellate proceedings

concerning the amount of civil penalties, and the civil

penalty award will have to be reversed at that point. All

the litigation expenses and judicial resources already

consumed litigating the civil penalty issue will have been

wasted.

The facts of this case illustrate the absurdity of such a

“case-by-case” rule. The availability of civil penalties will

always depend on whether plaintiffs are still facing

threatened injury requiring redress. If, as here, the court

denies injunctive relief on the ground that the violation has

already been remedied, or if the court awards complete

‘

- ee 8 eee

23

injunctive relief, the citizen plaintiffs will virtually always

(if not always) have received all redress to which they are

entitled, without the need for civil penalties. A “case-by-

case” rule would encourage plaintiffs to appeal any order

regarding injunctive relief, in the hopes that the ongoing

doubt regarding whether their injuries have been redressed

will keep their claim for civil penalties alive. (Indeed, it is

possible that Petitioners in this case regret not appealing

the denial of injunctive relief for this reason.) Likewise,

defendants will be encouraged to appeal any order for civil

penalties, hoping to keep the issue alive until subsequent

events make it clear that the civil penalties for past

violations will not redress any ongoing or threatened injury

suffered by plaintiff, at which point plaintiff will no longer

have an Article III interest in pursuing the civil penalty

award, which will then have to be dismissed for lack of

justiciability.

Finally, even if the assessment of civil penalties for

current or ongoing violations were found to provide citizens

with redress, the assessment of civil penalties for past

violations would not. If the Court were to adopt some sort

of “case-by-case” standard, it would leave to lower courts

the confusing task of drawing the line between violations

which were wholly in the past at the time of trial (including

post-complaint violations), and those which are sufficiently

ongoing such that the assessment of civil penalties would

somehow discourage future violations and provide the

citizen plaintiff with a remedy.

Rather than allowing judicial resources to be wasted in

litigation over the appropriate amount of civil penalties

24

based on the speculative possibility that, in some cases,

such an award will discourage future violations by a

particular defendant, this Court should adhere to the clear

standard it adopted in Linda R.S. v. Richard D., and hold

that citizens never have standing to seek civil penalties

under the Clean Water Act.

B. Allowing citizen groups to seek civil penalties

has led to abuses of the Federal judicial system

which this Court should not permit under

Article III.

It has been the experience of at least some of the amici

curiae herein that allowing citizen plaintiffs to seek civil

penalties for past violations -- the amount of which has no

relation to remedying any injury actually suffered by the

plaintiffs -- has led to gross abuses of the federal judicial

system which should not be tolerated by this Court.

Citizens often use the threat of large civil penalties to extort

payments and other concessions from public and private

defendants. Indeed, environmental groups often appear to

use such lawsuits as a form of “fund raising,” requiring

defendants to agree to fund environmental projects of

importance to the plaintiffs, or face not only the expense of

litigation (including plaintiffs’ attorneys fees if they are

successful), but also the risk of more than $25,000 per dav

per violation in civil penalties, the sum of which can often

total into the hundreds of millions of dollars.

As an example of such citizen suit abuses, one of the

amici herein, the City of South San Francisco, as a

condition of settlement of a suit challenging NPDES

violations at a wastewater treatment plant, was required to

25

pay $90,000 to fund a state investigation of pollution from

abandoned mines in the Central Valley (another target of

the citizen plaintiff) well over a hundred miles away from

the City’s discharges. See, United Anglers v. City of South San

Francisco, 1997 WL 362118, *2, *5-*6 (N.D.Cal., Jun 19,

1997). In this case, there was no dispute that the City had

hundreds of NPDES violations, but, before the suit was

even filed, the City (working with the Regional Water

Quality Control Board) already had a plan in place to

install over $40 million in improvements to resolve the

violations.

The City took offense at being asked to pay money to a

pet project of the plaintiff which would only help it file

more lawsuits against other defendants. At first, the City

tried to negotiate for the funds to be spent on a local

project to benefit the environment where the violations

occurred. When plaintiff refused to agree, the City then

asked that the money instead simply be paid to the U.S.

Treasury as penalties, in strict accordance with the Clean

Water Act. Even though the Act only authorizes penalties

to the U.S. Treasury, and no payments to plaintiff, plaintiff

refused these terms. Plaintiff countered that, if the City

wanted to settle based upon payment of penalties (rather

than its own pet project), the settlement demand would

increase from $100,000 to $300,000. Because of a large

potential exposure to civil penalties, in addition to litigation

costs, the City felt it had no choice but to acquiesce. In its

resolution approving the settlement agreement, the City

Council bitterly recited the facts leading up to the

settlement agreement and stated:

26

the City further opposes the use by citizen groups of

citizen suits under the Clean Water Act, and the

associated threat of enormous civil penalties, to

leverage contributions out of cities and other

defendants to fund other causes important to the

citizen groups but having no relationship to the

defendants’ activities.

Res. No. 50-97, City Council, City of South San Francisco

(copy attached as Exhibi: A).

Significantly, the settlement did not include any further

injunctive relief beyond the $40 million in improvements to

which the City had already committed before the suit was

brought. See, United Anglers v. City of South San Francisco,

1997 WL 362118, at *2. Thus, the case did not result in

any change in the way the City was operating the plant, but

merely provided opportunity for a citizen group to come in

and extract its “pound of flesh” for its own purposes.

These sorts of abuses of the federal courts are a direct

result of allowing citizens to file suits for relief that has

nothing to do with remedying injuries actually suffered by

the citizens. If the relief a citizen is seeking bears some

relationship to the injury the citizen actually suffered, then

the parties could fairly negotiate a settlement designed to

remedy such injuries. But where a citizen plaintiff can

request millions (and even hundereds of millions) of dollars

in civil penalties, bearing no relationship to the harm

actually suffered by the plaintiff, the plaintiff faces a great

temptation to use the threat of such penalties to leverage

extra concessions. This Court should not interpret Article

III to allow these types of claims to be prosecuted.

27

CONCLUSION

For the reasons set forth herein, this Court should find

that an assessment of civil penalties under the Clean Water

Act payable to the United States Treasury does not remedy

any injury suffered by a citizen plaintiff, and thus that

citizens never have standing under Article III to seek an

assessment of such penalties, even if there is an ongoing

violation for which they have standing to seek injunctive

relief.

Respectfully submitted.

Rick W. Jarvis

Meyers, Nave, Riback, Silver

& Wilson

Counsel for Amici Curiae 40

California Cities and the Bay

Planning Coaltion

July 1999 _—

RESOLUTION NO. SO -47]

CITY COUNCIL, CITY OF SOUTH SAN FRANCISCO, STATE OF CALIFORNIA

RESOLUTION AUTHORIZING SETTLEMENT OF ACTION BROUGHT 3°

UNITED ANGLERS FOR ALLEGED VIOLATIONS OF THE FEDEPA.

CLEAN WATER ACT AT THE CITY'S WASTEWATER TREATMEN

PLANT AND APPROVING AN AMENDMENT TO THE 1996-97

co-owner and operator of the Waters Qua--ty

at 195 Belle Air Road, which is sus tect to

tion System Permit No. CACC33130 ("she

WHEREAS. the City is 4

Control Plant (“the Plant”)

National Pollutant Discharge Elimina

NPDES Permit”); and

WHEREAS, at times operations at the Plant have been in vis.at-+on ef the

NPDES Permit; and

has been in the process eof planning anc .mplementiag

to the Plant, has completed many improvements which

would avoid most NPDES Permit violations during dry weathe: periods, and is

planning to install an estimated $41 million in upgrades by =ne yea: 2000

which should avoid NPDES Permit violations during wet weathe=: ; riods: and

WHEREAS, the City

substantial improvements

WHEREAS, United Anglers has nonetheless brought 4 cic-z7e5 suc = against

the City pursuant to the federal Clean Water Act and has allesez over 1,000

violations of the NPDES Permit; and

WHEREAS, the City disputes that there have been over 1,2¢¢ violations of

the NPDES Permit, but concedes that there have been some viclations of the

NPDES Permit; and

surts to issue

NPDES Permits and assessing ©-~-- penalties =o

25,000 per day per violation, sus at someys

WHEREAS, the federal Clean Water Act authorizes federal <c

orders enjoining violations of

the federal treasury of up to $

fees to prevailing plaintiffs; and

award maximum penalties aga-as= c+t.es

urts have awardec pena.=.es agé=25=

lar te those of =e <:tY +> tetal

WHEREAS, courts generally do not

for treatment plant violations, but co

cities for treatment plant violations simi

amounts of $400,000 or greater: and

WHEREAS, during settlement negotiations with United Aa¢g-ers, =e City

offered to pay as penalties $100,000 to an environmental wate= zua-ity

remediation project to take place in South San Francisco; asc

WHEREAS, United Anglers insisted, as a condition to set=lLement, on

having the money paid to the State Water Pollution Cleanup a=< Abatement

Account, with the intent that it be used to reimburse the Recicna, Water

Quality Control Board for the Central Valley Regions for the menitoring of

privately owned inactive and/or abandoned mines in the Centra. valley with

drainage to watersheds leading to San Francisco Bay; and

ts seney “or

lace in the Central Valley, in acseas 3a@ving n°

quality problem which could possib.y sesult from

WHEREAS, the City opposes in principle the use of i

remediation projects to take p

nexus to any potential water

the City's discharges; and

WHEREAS, the City further opposes the use by citizen groups of citizen

suits under the Clean Water Act, and the associated threat of enormous civil

penalties, to leverage contributions out ef cities and other defendants to

fund other causes important to the citizen groups but having no relationship

te the defendants’ activities: and

WHEREAS, the City thus proposed that the entire $100,000 in penalties be

paid directly to the federal treasury as penalties, in strict accordance with

the provisions of the Clean Water Act; and

WHEREAS, United Anglers, despite the City's objections, nonetheless

continued to insist that the money be used for its Central Valley project as a

condition of settlement (agreeing only to allow $10,000 to be paid as actual

penalties to the federal treasury): and

WHEREAS, given the great exposure to penalties, which could pose 4

potentially great burden on the public fisc, the City feels that it has no

choice but to reluctantly agree to United Anglers’ demands; and

WHEREAS, United Anglers also seeks reimbursement of fees and costs in

the amount of $37,956.39, which amount the court would be likely to award; and

WHEREAS, the City has negotiated a settlement of United Anglers in

accordance with the above terms, which would not require the City to make ny

improvements to the Plant in addition to the improvements it has already been

planning to make since before this litigation was filed;

WHEREAS, the City has also negotiated terms which will drastically limit

the ability of United Anglers to bring another Clean Water Act citizen suit

against the City for future violations of the NPDES Permit, pending the City's

completion of the planned improvements;

WHEREAS, Unite. Anglers has already approved and executed a proposed

Consent Judgment in accordance with the above terms, a copy of which is

attached hereto;

NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of South

San Francisco, that:

1. Im order to settle the Clean Water Act litigation brought by

United Anglers against the City in terms consistent with those set forth in

the Recitals, legal counsel for the City is hereby authorized t> execute the

proposed Consent Judgment in a form substantially the same as the copy which

is attached hereto, and any additional related documents to accomplish that

purpose.

2. The City Council further authorizes an amendment to the 1996-97

Operating Budget (BA ) Adding $137,956.39 from the Sewer Enterprise

Reserve Fund for Payment of Settlement Costs. The City Manager is authorized

to make all payments called for in the Consent Judgment, if and when it is

approved by the Court.

. . * J

rego ed

solution was regularly introduc

ty. yA oe ~ ay Ry South San Francisco at @

41

3 ee a on the _ léth day of —May—

1997 by the following vote:

Councilmembers James L. Datzman, Eugene R. Mullin, Johr R.

AYES:

-

City Clerk

ATTEST:

A: \SETTUONT . RES

No. 98-822

—_——_EE——————EE

IN THE

SUPREME COURT OF THE UNITED STATES

FRIENDS OF THE EARTH, et al.,

Petitioners,

V.

LAIDLAW ENVIRONMENTAL SERVICES (TOC), INC..

Respondent.

On Writ of Certiorari to the

United States Court of

for the Fourth Circuit

CONSENT TO FILING OF AMICUS CURIAE BRIEF BY

AT LEAST 40 CALIFORNIA MUNICIPALITIES AND

THE BAY PLANNING COALITION

Rick W. jarvis

MEYERS, NAVE, RIBACK,

SILVER & WILSON

777 Davis Street, Suite 300

San Leandro, CA 94577

(510) 351-4300

Counsel for Amici California

Municipalities and the Buy

Planning Coalition

Dated: July 6, 1999

CONSENT FORM

The undersigned hereby consent to the filing of a joint amicus

curiae brief on behalf of Respondent in this cuse by at least 40 California

municipalities and the Bay Planning Coalition. The California

municipalities include the Cities of Bakersficld, Barstow, Burlingame,

Camarillo, Corcoran, Cotati, Delano, El Centro, Fresno, Gustine, La

Habra, Lakewood, Live Oak, Long Beach, Los Alamitos, Los Angeles,

Manteca, Merced, Milpitas, Monterey, Mountain View, Novato, Palm

Desert, Redlands. Roseville, San Bruno, San Diego, Santa Clara, Santa

Rosa, South San Francisco, Stanton, Sunnyvale, Sutter Creek, Turlock,

Vacaville, Vernon, Waterford, and the Towns of Corte Madera and

Tiburon.

Dated: 2/ 13/98 OGLETREE, DEAKINS, NASH

SMOAK & STEWART, P.C.

By: / Ui/

Donald A. Cockzill

Counsel for Respondent

Dated: 1\¢}44 TERRIS, PRAVLIK &

cs MILLIAN, LLP

by Conch aside oh

Bruce J.

Carolyn Smith Praviik

JAWPD\MNRSW4 ] (O08\PLEADICONSENT FRM