Amicus Curiae Brief — Steel Co. v. Citizens for a Better Environment

—

Suprame@ourt, U.S.

wm FILED

(Y FEB 15 2401

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*

No. 00-1146

~IMECLERK |

In the

Supreme Court of the United States

+

THE STEEL COMPANY, AKA CHICAGO STEEL

AND PICKLING COMPANY,

Petitioner,

v.

CITIZENS FOR A BETTER ENVIRONMENT,

Respondent.

—~+

On Petition for Writ of Certiorari

to the United States Court of

Appeals for the Seventh Circuit

+

BRIEF AMICUS CURIAE OF PACIFIC LEGAL

FOUNDATION AND STATE OF CALIFORNIA

AUTO DISMANTLERS ASSOCIATION IN

SUPPORT OF PETITIONER

>

M. REED HOPPER

Counsel of Record

Pacific Legal Foundation

10360 Old Placerville Road,

Suite 100

Secramento, California 95827

Telephone: (916) 362-2833

Facsimile: (916) 362-2932

Counsel for Amici Curiae

Pann Ba mw

i

QUESTION PRESENTED

Whether prevailing defendants should be placed on an

equal footing with prevailing plaintiffs in determining whether

an award of attorney fees is “appropriate” under the fee-shifting

provision of the Emergency Planning and Community Right-

To-Know Act of 1986 (EPCRA), 42 U.S.C. § 11046(f), and

similarly worded fee-shifting provisions of other federal

environmental statutes.

TABLE OF CONTENTS

Page

QUESTION PRESENTED © ...c.5 oc006 50s ckessevevewavei sas i

TABLE OF ALS FRROWRIE TIS occu caccnsasbadvesetersss< iii

IDENTITY AND INTERESTS OF AMICI CURIAE ......... |

STATEMENT OF THE CARE .iu.custdcavacusesaks ssess 3

SUMMARY OF THE ARGUMENT 3... 45csccceccsesss 4

ARGUMENT... oc ass sacceneen eee eee eeeees nee 6

WHETHER A PREVAILING DEFENDANT

MAY RECEIVE AN AWARD OF ATTORNEY'S

FEES UNDER AN ENVIRONMENTAL

STATUTE IS AN IMPORTANT QUESTION

OF FEDERAL LAW . ocis ia wansaeeannedess sites. 6

CERTIORARI SHOULD BE GRANTED TO

CLARIFY THIS COURT’S DECISION IN

PENNSYLVANIA v. DELAWARE VALLEY

CITIZENS’ COUNCIL ON WHICH THE

LOWER COURTS ERRONEOUSLY RELY

TO DENY ATTORNEY’S FEES TO PREVAILING

DEFENDANTS ...<..5cckune deen sabe aean axe es 9

IT IS IMPORTANT FOR THIS COURT TO

CLARIFY THAT THE “GOALS AND

OBJECTIVES” OF EPCRA SUPPORT

AN AWARD OF ATTORNEY’S FEES FOR A

PREVAILING DEFENIPANG ..c.cbscsesesecesees 13

A. Private Plaintiffs Are Not Congress’

“Chosen Instruments” to Enforce EPCRA ....... 15

B. The Plaintiffs in This Case, as in Many

Environmental Suits, Are Well Financed

and Do Not Warrant Special Protection

or Incentives in the Way of Fee Awards ......... 18

CUNCLAISHON .. ca acsckcuses ahs eNe ee nan eee mee eee 20

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TABLE OF AUTHORITIES

Page

Cases

Buckhannon Board and Care Home, Inc. v.

West Virginia Department of Health

and Human Resources (on writ of

certiorari, No. 99-1848)... 0. ccc ccc cece ees 12

Christiansburg Garment Co. v. Equal

Employment Opportunity Commission,

CR 8 oS ar passim

Citizens for a Better Environment v.

The Steel Company, 230 F.3d 923

ee ee LS eee ot wae 3 9,11

Farrar v. Hobby, 506 U.S. 103 (1992) ............... 12

Fogerty v. Fantasy, Inc.,

NE RR BED oo odes cree n cada cca es 8, 11-15, 18

Gwaltney of Smithfield, Ltd., v.

Chesapeake Bay Foundation, Inc.,

ee Seb bass vs woes eae 16-17

Hallstrom v. Tillamook County,

I og go we sk ke + id ws xcs 15-17

Pennsylvania v. Delaware Valley

Citizens’ Council, 478 U.S. 546 (1986) .......... mF

Statutes

ee OR Os sins gb da na eo ow os we eR 3

te ee cal ye Was a's e's! Ge cee eas WS +

Ee tad ain Caleta AK soe eS 10

rac ge oa ace anys ead en ek 7

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TABLE OF AUTHORITIES—Continued

Page

Court Rules

]

IDENTITY AND

INTERESTS OF AMICI CURIAE

Pursuant to Supreme Court Rule 37.2, Pacific Legal

Foundation and the State of California Auto Dismantlers

Association respectfully submit this brief amicus curiae in

support of Petitioner, The Steel Company.’ Written consent

was granted by counsel for all parties and lodged with the Clerk

of this Court.

Pacific Legal Foundation (PLF) is supported by thousands

of citizens from coast to coast and is the largest and most

experienced nonprofit public interest law foundation of its kind

in America. PLF was founded in 1973 and provides a voice in

the courts for mainstream Americans who believe in limited

government, private property rights, individual freedoms, and

free enterprise. PLF litigates nationwide in state and federal

courts and is directly affected by fee-shifting statutes.

In its fight to protect fundamental rights, PLF becomes

involved in cases that raise important public policy con-

siderations that may create significant legal precedents. Amicus

participation is approved by a voluntary Board of Trustees

where PLF’s perspective will assist the court in resolving the

underlying legal issues. PLF has a long-standing interest in

environmental issues and has participated in this Court in

numerous cases involving the interpretation of federal

environmental laws.

The State of California Auto Dismantlers Association

(Association) is a nonprofit organization with approximately

500 members and represents the interests of the 1,400 licensed

auto dismantlers in the State of California. Licensed facilities

' Pursuant to Supreme Court Rule 37.6, Amici Curiae affirm that no

counsel for any party in this case authored this brief in whole or in

part and that no person or entity has made a monetary contribution

specifically for the preparation or submission of this brief.

2

are the only entities authorized to dismantle and salvage

vehicles for the recovery and recycling of parts and metals and

for properly disposing of the 300 pounds of toxins and

hazardous materials in the typical vehicle.

In addition to its lobbying efforts, the Association provides

services and training. Business and regulatory information is |

provided by the Association at conferences and through various

publications. For example, the Association has put together an

industry guide for complying with the storm water regulations

under the Clean Water Act. For several years, the industry has

worked hard to ensure compliance with the many environ-

mental regulations that govern these licensed facilities. The

industry’s compliance with the state’s general storm water

permit is well documented.

However, these iargely family owned businesses have

recently been targeted by environmental activists with threats of

litigation for supposed infractions under the Clean Water Act.

These activists have sent California auto dismantlers scores of

notices of intent to sue. These notices have cost the industry

huge sums in legal fees and cash settlements. |

The notices of intent to sue inform industry members that

they are allegedly in violation of the Clean Water Act and have

60 days to comply. Such notices typically result in settlements

with the environmental group for approximately $50,000 and

few, if any, onsite environmental issues are addressed. The

mere threat of taking a small business to federal court compels

the business owner in most cases to seek a monetary settlement

with the potential plaintiff.

The allegations in these notices are often vague to the

point of unintelligibility. “Evidence” of failure to comply

typically entails a mere picture of a puddle in the facility

parking lot with an oil sheen on the top. Allegations of harm

include claims that there “may be” fewer birds in the area of the

facility than elsewhere and that boaters (miles away from the

3

inland facility) have gotten oil on their hands while untangling

a propeller on their boat. The notices usually make no attempt

to connect the alleged violations to the alleged harms. And

while many of these cases could never prevail in court, the cost

to defend against such accusations (without even the hope of a

fee award) is more than the industry or a small family owned

business can support. In some cases, these notices have

resulted in the virtual confiscation of the business and even the

personal assets of some individuals.

Therefore, the Association has a direct interest in this case

that puts at issue the treatment of prevailing defendants under

the fee-shifting provisions of environmental statutes. The

Association, along with PLF’s public policy perspective, will

provide a necessary viewpoint on the issues presented in this

case.

STATEMENT OF THE CASE

The Steel Company is a small, minority-owned steel

manufacturer and pickler in Chicago, Illinois. The Company

started in 1971 and employs about 55 people. The Company is

subject to the Emergency Planning and Community Right-To-

Know Act of 1986 (EPCRA) (42 U.S.C. § 11001, et seg.) that

requires, among other things, the annual submission of chemi-

cal inventory and release forms to federal, state, and local

entities.

In 1995, Citizens for a Better Environment (CBE), a large

environmental citizen group, sent an EPCRA 60-day Notice of

Intent to Sue to the United States Environmental Protection

Agency (EPA), the state, and the Company alleging the

Company had never filed the requisite forms. Before the 60-

day notice period had run, the Company filed the forms with the

EPA. EPA chose not to pursue any enforcement action but,

notwithstanding the Company’s remedial filing, CBE brought

suit in the Northern District Court of Illinois seeking, among

other things, civil penalties against the Company in excess of

4

$537,000,000. The district court dismissed the case but the

Seventh Circuit reversed.

On certiorari, this Court held there was no ongoing dispute

and, therefore, CBE lacked constitutional (Article III) standing

to bring the suit. This was a watershed case in citizen-suit

standing and was decided by a unanimous court.

On remand, The Steel Company sought attorneys’ fees as

a “prevailing party” in the amount of $270,000. EPCRA

authorizes such fees:

The Court, in issuing any final order in any action

brought pursuant to this section, may award costs of

litigation (including reasonable attorney and expert

witness fees) to the prevailing party or the substan-

tially prevailing party whenever the court determines

such an award is appropriate.

42 U.S.C. § 11046(f).

Although this provision is party-neutral on its face, the

Seventh Circuit applied a “double standard” ruling that while

prevailing plaintiffs are presumptively entitled to attorney’s

fees, prevailing defendants must show the suit was “frivolous,

unreasonable, or pursued in bad faith.” Since the suit was

deemed ill-advised but not frivolous, The Steel Company was

denied fees.

The Steel Company has petitioned this Court to determine

whether the fee-shifting provision of EPCRA, like that of

approximately 40 other similar environmental statutes, requires

equal treatment of prevailing defendants.

SUMMARY OF THE ARGUMENT

This Court has twice characterized the question of fee

awards for prevailing defendants as an important question of

federal law warranting review by this Court. Under the Civil

Rights Act, this Court determined that Congress intended to

5

protect impecunious plaintiffs from large businesses and that

the fee-award provision of that statute should be interpreted to

favor plaintiffs. However, using an ad hoc analysis, this Court

considered a “virtually identical” provision in the Copyright Act

and determined that Congress intended to protect defendants as

well as plaintiffs and that the Act required even-handed

treatment of successful parties. But this Court has never

determined whether a similar fee-shifting provision in the

Emergency Planning and Community Right-To-Know Act, or

any other environmental statute, must be interpreted to require

a “dual” or even-handed approach to fee awards.

The lower court’s reliance on Pennsylvania v. Delaware

Valley Citizens’ Council, for the position that this Court

requires application of the “dual standard” of fee awards in

environmental cases, is misplaced. That case did not raise the

question of fee awards for prevailing defendants, but turned on

whether prevailing plaintiffs were entitled to fees for

administrative actions.

In Fogerty v. Fantasy, Inc., this Court made clear that the

meaning given a fee-shifting provision in a statute will be

determined by a case-by-case analysis of the goals and

objectives of the act. Unlike the Civil Rights Act, that this

Court believed was designed to maximize private suits, EPCRA

and similar environmental statutes were designed to encourage

compliance and avoid litigation. Environmental plaintiffs are

not “private attorneys general” in the make of a civil rights

plaintiff. Rather, they serve only to supplement, and not

replace, governmental enforcement.

Environmental plaintiffs are also not generally

impecunious but run the gamut from corporate behemoths to

those of small means. Environmental suits are often brought by

well funded activists, like CBE in this case, against small,

family owned businesses such as amici auto dismantlers who

van ill afford to defend themselves in court. Because these

a

6

defendants may not even recoup the cost of successful litiga-

tion, under the lower courts’ “dual standard” for environmental

suits, they must either settle the case at great expense or close

down their business. This standard promotes opportunistic

litigation for economic gain but deters litigation of a

meritorious defense.

Neither the language of EPCRA nor the legislative history

hint that successful plaintiffs are to be treated differently than

successful defendants. Therefore, this Court should grant the

Writ of Certiorari to address this important question of federal

law.

ARGUMENT

I

WHETHER A PREVAILING DEFENDANT MAY

RECEIVE AN AWARD OF ATTORNEY’S FEES

UNDER AN ENVIRONMENTAL STATUTE IS AN

IMPORTANT QUESTION OF FEDERAL LAW

On two occasions, this Court addressed the question of

whether attorney’s fees should be allowed when the defendant

is the prevailing party. In one case, the Court considered the

question in the context of a civil rights suit; and, in the other,

the Court considered the question in the context of a copyright

infringement suit. In both instances, certiorari was expressly

granted so that this Court could address “an important question

of federal law.” The question arises now in the context of an

environmental suit and is no less important.

Christiansburg Garment Co. v. Equal Employment

Opportunity Commission, 434 U.S. 412 (1978), was a Title VII

action. In 1972, Congress amended Title VII of the Civil Rights

Act of 1964 authorizing the Equal Employment Opportunity

Commission (EEOC) to sue in its own name on “charges

pending with the Commission” on the effective date of the

amendments. Relying on charges of racial discrimination filed

7

years earlier by Rosa Helm against her employer,

Christiansburg Garment Company, the EEOC sued the

company for unlawful employment practices. The company

defended on grounds that the charges were not “pending” at the

time the 1972 amendments took effect. The district court agreed

and granted summary judgment for the company.

The company then petitioned for attorney’s fees as a

prevailing defendant under section 706(k) of Title VII. That

section stated:

In any action or proceeding under this title the court,

in its discretion, may allow the prevailing party,

other than the Commission or the United States, a

reasonable attorney’s fee as part of the costs, and the

Commission and the United States shall be liable for

costs the same as a private person.

42 U.S.C. § 2000e-5(k).

Notwithstanding the party-neutral language of this provi-

sion, the district court ruled the company was not entitled to an

award of attorney’s fees because the EEOC’s action in bringing

the suit could not be “characterized as unreasonable or merit-

less.” Christenburg, 434 U.S. at 415. A divided Fourth Circuit

affirmed, and this Court “granted certiorari to consider-an

important question of federal law.” Id.

On certiorari, this Court adopted a “dual standard” for

awarding attorney’s fees in Title VII cases. That standard

requires a district court to grant an award of attorney’s fees to

a prevailing plaintiff “in all but special circumstances” while

denying attorney’s fees to a prevailing defendant except upon

a finding the action was “frivolous, unreasonable, or without

foundation.” Jd. at 417-21.

Although this Court admonished against a “mechanical

construction” of such provisions, and the Court found a unique

set of “equitable considerations” to justify its new Title VII

SS eT Ce ee

8

fee-award standard, id. at 419, the Court’s “dual standard” for

civil rights cases became the de facto standard in some circuits

for interpreting all similarly worded fee-shifting provisions.

This became apparent in a subsequent case this Court

considered called Fogerty v. Fantasy, Inc., 510 U.S. 517 t

(1994).

In that case, Fogerty successfully defended a copyright

infringement action brought against him by Fantasy, Inc., and

filed for an award of attorney’s fees as a prevailing defendant.

The fee-shifting provision of the Copyright Act of 1976 was

“virtually identical,” id. at 522, to that found in Title VII.

Following this Court’s ruling in Christiansburg, the

district and appellate courts ruled Fogerty was not entitled to

attorney’s fees as a prevailing defendant in a copyright action.

But this Court granted certiorari to once again “address an

important area of federal law,” and reversed. 510 U.S. at 521.

It is clear from Fogerty that this Court has adopted an ad

hoc approach to determining the appropriateness of a fee award

for a prevailing defendant. In Fogerty, this Court went to great

lengths to compare and contrast the Copyright and Civil Rights

Acts and concluded the goals and objectives of the two Acts are

not similar. /d. at 524. Most importantly, this Court concluded

that “the policies served by the Copyright Act are more

complex, more measured, than simply maximizing the number

of meritorious suits for copyright infringement”—a feature of

Title VII that this Court found decisive in Christiansburg.

Consequently, this Court rejected the “dual standard” approach i

of Christiansburg in a copyright context and adopted an

evenhanded approach; holding that “[p]revailing plaintiffs and |

prevailing defendants are to be treated alike” under the

Copyright Act.

But in stark contrast to the thorough analysis this Court

employed in Fogerty to determine the “goals and objectives” of

the Copyright Act and, therefore, the propriety of a fee award

9

for prevailing defendants, the Seventh Circuit in this case

adhered to the Christiansburg “dual standard” as a per se rule

and summarily rejected The Steel Company’s claim for

$270,000 in attorney’s fees. See Citizens for a Better

Environment v. The Steel Company, 230 F.3d 923, 931 (7th Cir.

2000).

It is necessary, therefore, that this Court determine if the

“goals and objectives” of the Emergency Planning and

Community Right-To-Know Act, an environmental statute, are

more like the Civil Rights Act of 1964, as interpreted by this

Court in Christiansburg, or the Copyright Act of 1976, as

interpreted by this Court in Fogerty.

CERTIORARI SHOULD BE GRANTED

TO CLARIFY THIS COURT’S DECISION

IN PENNSYLVANIA v. DELAWARE VALLEY

CITIZENS’ COUNCIL ON WHICH THE

LOWER COURTS ERRONEOUSLY RELY

TO DENY ATTORNEY’S FEES TO

PREVAILING DEFENDANTS

The court below applied the “dual standard” for fee

awards in this EPCRA case because it felt compelled by this

Court’s putative application of Christiansburg in Pennsylvania

v. Delaware Valley Citizens’ Council, 478 U.S. 546 (1986).

But, that case provides no precedent for this case.

In Pennsylvania, the plaintiff, Delaware Valley Citizens’

Council, sued the commonwealth for failure to implement a

vehicle inspection and maintenance (I/M) program required by

the Clean Air Act. Pursuant to a consent decree, Pennsylvania

agreed to implement an I/M program in some counties. As a

prevailing party under section 304(d) of the Act, the plaintiff

sought and received fees and costs; not only for the cost of

litigation, but also for monitoring Pennsylvania’s performance

under the consent decree and subsequent participation in related

re

10

rulemaking proceedings. Pennsylvania challenged the award of

fees and costs related to plaintiff's administrative actions

arguing the Act only authorized fee awards for the “costs of

litigation.” 478 U.S. at 557-58.

The primary question before this Court, therefore, and

unlike the question in this case, was “whether the Clean Air

Act, 42 U.S.C. § 7401, et seq., authorizes attorney’s fees awards

{ for prevailing plaintiffs] for time spent by counsel participating

in regulatory proceedings.” /d. at 548.

To address that question, this Court analogized to sec-

tion 1988 jurisprudence:

Several courts have held that, in the context of

the Civil Rights Attorney’s Fees Awards Act of

1976, 42 U.S.C. § 1988, postjudgment monitoring of

a consent decree is a compensable activity for which

counsel is entitled to a reasonable fee .... Although

§ 1988 authorizes fees in “any action or proceeding”

- brought to enforce the Civil Rights Acts, and

§ 304(d) applies only to “any action” brought under

the Clean Air Act, this distinction is not a sufficient

indication Congress intended § 304(d) to apply only

to judicial, and not administrative, proceedings.

Id. at 859 (citations omitted).

Therefore, in determining the propriety of a fee award for

a prevailing plaintiff for work in post-litigation administrative

proceedings, this Court stated that “we find no reason not to

interpret both provisions governing attorney’s fees in the same

manner.” Jd. at 560. This Court did not address, however, the |

- propriety of a fee award under the Clean Air Act, or any other

statute, for a prevailing defendant. Nor did this Court imply

that it had adopted the § 1988 “dual standard” as a general rule

of applicability with respect to fee awards.

11

Nevertheless, the court below in the present case elevated

this narrow opinion to a general and conclusive rule of law,

encompassing all fee award questions arising under

environmental, and presumably many other, fee-shifting

statutes:

Pennsylvania v. Delaware Valley Citizens’ Council,

478 U.S. 546, 560, 92 L. Ed. 2d 439, 106 S. Ct. 3088

(1986), says that the fee-shifting provisions of

environmental statutes that promote private

enforcement should be applied “in the same manner”

as § 1988, a statute covered by Christiansburg’s

asymmetric [dual standard fee award] approach.

Citizens for a Better Environment v. The Steel Company,

230 F.3d at 931.

Of course, this Court has made no such general

pronouncement. Had it done so, it could not have come to an

opposite conclusion later in Fogerty v. Fantasy, Inc., 510 U.S.

517, wherein this Court determined that the fee-shifting

provision in that case—which is “virtually identical” to the fee-

shifting provision in Christiansburg, as well as in this case and

most other environmental statutes—does not allow the

“asymmetric” treatment of prevailing defendants the lower

court maintains is now required by this Court under

Pennsylvania and Christiansburg.

As Justice Thomas suggested in his concurring opinion in

Fogerty, to the extent Pennsylvania and Christiansburg are read

to “impose a ‘dual’ standard of recovery,” they create a conflict

with Fogerty and constitute a “dubious precedent.” He warns

against doing what the Seventh Circuit has done in this case in

expanding the precedent “to its outer limits.” Fogerty, 510 U.S.

at 538-39.

According to Justice Thomas, the standard for interpre-

tation “implicit in Christiansburg,” and more express in

12

Fogerty, is to look at the “policy objectives and legislative

history of the statute.” It is apparent, therefore, that this Court

has rejected a categorical interpretation of the various fee-

shifting statutes in favor of a case-by-case analysis based on the

goals and objectives of the particular act. But this Court has

never considered the goals and objectives of EPCRA, or any

other environmental statute, to determine whether that statute

allows a fee award for a prevailing defendant. Nevertheless, the

Seventh Circuit precedent of this case is likely to be applied by

other courts in interpreting EPCRA, and similar environmental

laws, without a Supreme Court pronouncement. Therefore, this

Court should address the issue now.

It is noteworthy that this Court recently granted certiorari

in a similar context to address the viability of the so-called

“catalyst theory” of fee awards. Under that theory a plaintiff

may obtain a fee award as a “prevailing party” by merely

inducing a favorable change in behavior in the defendant

without any ruling on the merits of the claim or an enforceable

order. This theory was created by the lower courts and has not

been squarely addressed by this Court. However, in |

Buckhannon Board and Care Home, Inc. v. West Virginia

Department of Health and Human Resources (on writ of

certiorari, No. 99-1848), the Fourth Circuit ruled that this

Court’s decision in Farrar v. Hobby, 506 U.S. 103 (1992),

precluded application of the theory.

Much like the Seventh Circuit’s interpretation of

Pennsylvania in this case, the Fourth Circuit in Buckhannon

distilled a general rule from Farrar relating to the viability of

the “catalyst theory,” although this Court never addressed that

theory in the Farrar case. This Court recently took the case up

on review to clarify its decision in Farrar and to address an

important question of federal law that requires a direct ruling by

this Court. Likewise, this Court should grant review in this

case to clarify its decision in Pennsylvania and to provide a

direct ruling on whether EPCRA authorizes a fee award for a

RT ee a eo

13

prevailing defendant on an equal footing with a prevailing

plaintiff—an important question of federal law.

il

IT IS IMPORTANT FOR THIS

COURT TO CLARIFY THAT THE

“GOALS AND OBJECTIVES” OF EPCRA

SUPPORT AN AWARD OF ATTORNEY’S

FEES FOR A PREVAILING DEFENDANT

The legislative policies behind EPCRA, and similar laws,

suggest Congress intended an even-handed approach to fee

awards in environmental suits. The citizen suit provisions of

these statutes were designed to encourage compliance and deter,

not promote, litigation. To ensure that the citizen suit provi-

sions of federal environmental laws remain focused on

achieving the purposes of these statutes, it is important for this

Court to address the question of fee awards in this case.

In Fogerty v. Fantasy, Inc., 510 U.S. 517, this Court ruled

that the purposes of the Copyright Act, unlike the Civil Rights

Act in Christiansburg, required equal treatment of prevailing

plaintiffs and defendants, although the fee-award provisions in

both Acts were “virtually identical.” In his concurrence, Justice

Thomas noted:

The Court recognizes the general principle that

similar fee provisions are to be interpreted alike . . .

but states that the principle does not govern this case

because the factors that guided our interpretation in

Christiansburg—the policy objectives and legislative

history of the statute —do not support the adoption

of a “dual” standard in this context.

510 U.S. at 537 (citation omitted).

Justice Thomas clearly disagreed with this approach. He

urged the Court to rely on the plain meaning of the fee-shifting

provisions and “acknowledge that Christiansburg mistakenly

14

cast aside the statutory language to give effect to [other]

considerations.” /d. at 538. Nevertheless, Justice Thomas

recognized that the Court’s analytical approach “implicit in

Christiansburg”—whether to interpret a fee-shifting statute “in

accordance with its plain meaning”—depends on the statute’s

policy objectives and legislative history. /d. at 537-38.

The considerations this Court found in Christiansburg, to

justify ignoring the plain language of the statute and to disallow

an award of attorney’s fees for a prevailing defendant, were

two-fold. First, this Court found that a Title VII plaintiff is the

“chosen instrument” of Congress to vindicate the goals of the

Act. Christianburg, 510 U.S. at 523. And second, this Court

relied on the admittedly sparse legislative history for its

conclusion that successful plaintiffs should be treated

differently than successful defendants. /d.

But in Fogerty, this Court found no such considerations:

The goals and objectives of the two Acts

are .. . not completely similar. Oftentimes, in the

civil rights context, impecunious “private attorney

general” plaintiffs can ill afford to litigate their

claims against defendants with more resources.

Congress sought to redress this balance in part, and

to provide incentives for the bringing of meritorious

lawsuits, by treating successful plaintiffs more

favorably than successful defendants in terms of the

award of attorney’s fees. The primary objective of

the Copyright Act is to encourage the production of

original literary, artistic, and musical expression for

the good of the public .... In the copyright context,

it has been noted that “entities which sue for

copyright infringement as plaintiffs can run the

gamut from corporate behemoths to starving artists;

the same is true for prospective copyright

infringement defendants.”

Id. at 524 (citation omitted).

The disparity in the goals and objectives between EPCRA

and the Civil Rights Act are just as great. Environmental

plaintiffs are not Congress’ “chosen instruments” to vindicate

the goals of the Act nor are they impecunious parties who can

“ill afford to litigate their claims against defendants with more

resources.” To the contrary, the state and federal governments

are the “chosen instruments” of Congress to enforce this and

similar environmental laws, and it is often the plaintiffs, not the

defendants, who have the greater resources. As in the copyright

context, both plaintiffs and defendants run the gamut from

corporate behemoths to those who barely make ends meet.

A. Private Plaintiffs Are Not Congress’

“Chosen Instruments” ta Enforce EPCRA

In crafting the citizen suit provision of environmental

laws, Congress sought to “strike a balance between encouraging

citizen enforcement of environmental regulations and avoiding

burdening the federal courts with excessive numbers of citizen

suits.” See Hallstrom v. Tillamook County, 493 U.S. 20, 29

(1989) (analyzing the legislative history of the citizen suit

provision of the Clean Air Amendments of 1970, which served

as the precursor to analogous citizen suit provisions in other

environmental laws, including the Clean Water Act, the

Resource Conservation and Recovery Act, and the Emergency

Planning and Community Right-to-Know Act at issue in this

case).

In furtherance of this goal, environmental plaintiffs are

required to give 60-day notice of their intent to sue to the

alleged violator and the federal and state governments. This

Court stated in Hallstrom:

Requiring citizens to comply with the [60-day]

notice and delay requirements serves __ this

congressional goal [of striking a balance] in two

16

ways. First, notice allows Government agencies to

take responsibility for enforcing environmental

regulations, thus obviating the need for citizen suits

....« Second, notice gives the alleged violator “an

opportunity to bring itself into complete compliance

with the Act and thus likewise render unnecessary a

citizen suit.”

Hallstrom, 493 U.S. at 29 (citing in part Gwaltney of Smithfield,

Lid. v. Chesapeake Bay Foundation, Inc., 484 U.S. 49, 60

(1987)).

In Gwaltney, this Court considered whether the citizen suit

provision in the Clean Water Act (CWA), which is strikingly

similar to the citizen suit provision in EPCRA, authorized

citizen suits for wholly past violations. This Court determined

the Act did not confer such jurisdiction citing, among other

things, the purpose of the citizen suit provision.

This Court reasoned that retroactive citizen suits would

render incomprehensible the notice provision that requires

citizens to give 60-day’s notice of their intent to sue to the

alleged violator as well as to the administrator of the EPA and

the state. Gwaltney, 484 U.S. at 59. “If the Administrator or

the State commences enforcement action within that 60-day

period, the citizen suit is barred, presumably because govern-

mental action has rendered it unnecessary.” /d. According to

this Court, it follows logically that “the purpose of notice to the

alleged violator is to give it an opportunity to bring itself into

complete compliance with the Act and, thus, likewise render

unnecessary a citizen suit.” /d. at 60. In a unanimous opinion,

this Court stated: “If we assume, as respondents urge, that

citizen suits may target wholly past violations, the requirement

_ of notice to the alleged violator becomes gratuitous.” /d.

This Court also pointed out that the bar on citizen suits

when governmental enforcement action is under way suggests

that the citizen suit is meant to supplement rather than supplant

17

government action. /d. “Permitting citizen suits for wholly

past violations of the Act could undermine the supplementary

role envisioned for the citizen suit.” /d. To illustrate this dan-

ger, this Court posed a hypothetical.

Suppose the administrator of the EPA identified a violator

and issued a compliance order. /d. “Suppose further that the

Administrator agreed not to assess or otherwise seek civil

penalties on the condition that the violator take some extreme

corrective action, such as to install particularly effective but

expensive machinery, that it otherwise would not be obliged to

take.” Jd. at 60-61. “If citizens could file suit, months or years

later, in order to seek the civil penalties the Administrator chose

to forego, then the Administrator’s discretion to enforce the Act

in the public interest would be curtailed considerably.” Jd.

at 61.

This Court concluded that to allow citizen suits for past

violations would subvert the purpose of the Act and change the

nature of the citizen’s role from interstitial to potentially

intrusive. Jd. The Court stated: “We cannot agree that Congress

intended such a result.” Jd.

This Court’s rationale for limiting the scope of the citizen

suit provision of the Clean Water Act applies equally to

EPCRA which contains a nearly identical prohibition on citizen

suits when the government acts. Therefore, unlike the “private

attorneys general” in the Civil Rights Act, environmental

plaintiffs are not Congress’ “chosen instrument” for enforcing

EPCRA. To the contrary, they are, at most, merely supple-

mental. The paramount objective of citizen suits under federal

environmental statutes is to encourage compliance and assist,

not replace, governmental law enforcement. That is the theme

pervading this Court’s ruling in Gwaltney.

The most logical reason for Congress to have included

party-neutral fee award language in EPCRA, and other environ-

mental laws, is not only to provide an incentive for citizens to

18

pursue meritorious claims but also to encourage defendants to

litigate meritorious defenses. See Petition for Writ of Certiorari

at 7.

The policies served by EPCRA are “more complex, more

measured, than simply maximizing the number of meritorious

suits” for environmental reporting violations. Fogerty, 510

U.S. at 526. As this Court recognized in Fogerty, statutes often

have more than one goal and “a successful defense . . . may

further the policies of the ... Act every bit as much as a

successful prosecution.” 510 U.S. at 527.

This is particularly true in this case where The Steel

Company’s vigorous defense resulted in a landmark ruling

decided by a unanimous Supreme Court. The statutory

language and legislative history “give no hint that successful

plaintiffs are to be treated differently than successful

defendants.” Jd. at 522. Therefore, this Court should grant

certiorari to elucidate the fee award provision of EPCRA.

B. The Plaintiffs in This Case, as in Many

Environmental Suits, Are Well Financed

and Do Not Warrant Special Protection

or Incentives in the Way of Fee Awards

Unlike the impecunious plaintiffs this Court determined

Congress sought to protect under the Civil Rights Act, which

warranted special treatment in fee awards, the plaintiffs in

environmental actions are often well-financed, while the

defendant may be a party with few resources.

Certainly the plaintiff in this case is not impecunious.

Citizens for a Better Environment boasts a membership

reaching into the tens of thousands. According to its IRS (Form

990) filing for fiscal year 1999, plaintiff had revenues in excess

of $2,000,000. This is typical of the activists groups filing

environmental suits around the country. IRS filings for fiscal

year 1999 show Defenders of Wildlife with revenues in excess

of $19,000,000, and more than $14,000,000 in net assets.

19

Likewise, the Sierra Club Foundation had revenues over

$26,000,000, and net assets over $41,000,000; the Natural

Resources Defense Council had revenues over $36,000,000,

and net assets over $53,000,000; and, the World Wildlife Fund

had revenues over $111,000,000, and net assets over

$133,000,000.

Environmentalism is “Big Business” and environmental

litigation is a large and lucrative industry. Suits are often

brought by large organizations against small, family owned

businesses like amici auto dismantlers (for minor administrative

infractions) who cannot afford to defend themselves in court.

See Identity and Interests of Amici Curiae above. Even if these

defendants win their case, under the “dual standard” for fee

awards they will not be able to recoup even the cost of

litigation. Instead, they are forced to settle the suit at great

expense or, in the worst cases, to give up their business rather

than pursue a meritorious defense.

The range of both plaintiffs and defendants under EPCRA,

like the Copyright Act, runs the gamut from corporate

behemoths to cash-strapped individuals. But because of the

favorable fee-award treatment environmental plaintiffs receive

in the courts, they have little to lose and much to gain by filing

unnecessary actions; actions like the present where the violation

was technical and caused no harm to the environment. This

encourages opportunistic litigation for economic gain. Environ-

mental plaintiffs can and do use the threat of a lawsuit to coerce

lucrative settlements from alleged violators. CBE readily

admits that those companies that don’t settle will be “punished”

with a lawsuit.

In the event that CBE is unable to settle the matter,

it files court actions seeking penalties to be paid to

the United States Treasury to punish non-complying

companies and other companies from ignoring

EPCRA.

20

Opening Brief for Plaintiff-Appellant, Citizens for a Better

Environment, in the United States Court of Appeals for the

Seventh Circuit at 9-10 (original suit) (emphasis added).

But, as noied above, the paramount objective of citizen

suits under EPCRA is to encourage compliance. Congress

could not have intended this law to be used by private citizens

for their own punitive and mercenary purposes.

It is critical that this Court clarify this important area of

federal law and level the playing field. With an even-handed

fee award standard, plaintiffs will be less likely to pursue

unnecessary cases while defendants, sometimes impecunious

defendants, are afforded an incentive to litigate meritorious

defenses.

—+

CONCLUSION

This Court has never determined whether the fee-shifting

provision of EPCRA, or any other environmental statute,

requires disparate or even-handed treatment of successful

defendants. This is an important question of law warranting a

Writ of Certiorari. Review should be granted.

DATED: February, 2001.

Respectfully submitted,

M. REED HOPPER

Counsel of Record

Pacific Legal Foundation

10360 Old Placerville Road,

Suite 100

Sacramento, California 95827

Telephone: (916) 362-2833

Facsimile: (916) 362-2932

Counsel for Amici Curiae