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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0244%3A25

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2000
- **Citation:** 528 U.S. 167

## Text

») } 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 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= 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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0244%3A25. Public record. Not legal advice.