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

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Supreme Court, U.S.

(3) FILED

No. 00-1146 MAR 15 2001

In the CLERK

Supreme Court of the Gnited States

THE STEEL COMPANY, a/k/a CHICAGO

STEEL AND PICKLING COMPANY,

Petitioner,

CITIZENS FOR A BETTER ENVIRONMENT,

Respondent.

On Petition for Writ of Certiorari to the United

States Court of Appeals for the Seventh Circuit

BRIEF AMICI CURIAE OF THE CHEMICAL

INDUSTRIES COUNCIL OF ILLINOIS, THE

MID-AMERICA LEGAL FOUNDATION, AND THE

ILLINOIS MANUFACTURERS ASSOCIATION

IN SUPPORT OF PETITIONER

JAMES T. HARRINGTON

Counsel of Record

WILLIAM A. PRICE, General Counsel

Mid-America Legal Foundation

201 East Loop Road

Wheaton, Illinois 60187

(630) 682-6042

Attorneys for Amici Curiae

Midwest Law Printing Company/Photex — Chicago — (312) 321-0220

TABLE OF CONTENTS

PAGE

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

IDENTITY AND INTEREST OF AMICI CURIAE ..... 1

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

te an ps ess, EEL TOT PPT OEP ee 4

TABLE OF AUTHORITIES

PAGE(S)

Supreme Court Rules:

Supreme Court Rule 37,

Brief of an Amicus Curiae .................0.005. 1

Federal Statutes:

Clean Air Act of 1970, Section 304,

S07, 42 UBC. FOGG, Fe 2c di wae als ee cedasecs 8

Civil Rights Enforcement, 42 U.S.C. 1988 ............ 9

Copyviett Act, 17 Wa Gee oo 6s cnn easase censors 9

Disabilities Enforcement, 42 U.S.C. 12205............ 9

Emergency Planning and Community

Right-to-Know Act, 42 U.S.C. 11046 ......... 2, 4, 6

Employee Retirement and Income Security

Act (ERISA), 29 U.S.C. 1182(gX1) ............... 9

Cases:

United States Supreme Court:

American Tobacco Co. v. Patterson,

Bk | fo: rer eer ye eee 7

Arcambel v. Wiseman, 3 U.S. (3 Dall.) 306 (1796) ...... 5

Association of Data Processing Service

Organizations, Inc. v. Camp,

397 U.S. 150 (1969) ...... 2.0. 5

Christiansburg Garment Company v. Equal

Employment Opportunity Commission,

434 U.S. 412 (1978) ........................... 9

Fleischmann Distilling Corp. v. Maier Brewing Co.,

a a 2: ST eee 6

Gwaltney v. Chesapeake Bay Foundation,

oso occ occa e ele wck. 12, 13

Lujan v. National Wildlife Federation,

497 U.S. 871 (1990) .......................... 12

Lujan v. Defenders of Wildlife,

504 U.S. 555 (1992) ......000 12

McCool v. Smith, 1 Black (66 US) 459 ' 7

Pennsylvania v. Delaware Valley Citizen’s

Council For Clean Air, 478 U.S. 546

Re wi hy 8 oo 5 inns do winsce eck 10

Standard Oil of New Jersey v. United States,

ccleaner 7

Steel Company v. Citizens for a Better

Environment, 118 S.Ct. 1003 (1998) ......

U.S. v. Palmer, 3 Wheat (16 US) 610 (1818) ..

Valley Forge Christian College v. Americans

United for Separation of Church and State,

Inc., 454 U.S. 464 (1968) ... 2... ces ccees

Other Federal Courts:

Citizens for a Better Environment v. Steel Co.,

No. 99-2709 (7th Cir. Oct. 17, 2000) ......

Environmental Def. Fund v. EPA,

672 F.2d 42 (DC Cir. 1982) .............

Gray v. New England Telephone and

Telegraph Company, 792 F.2d 251

CN oe ae ewan

In Re Moore, 907 F.2d 1476 (4™ Cir. 1990) ....

Martin v. Luther, 689 F. 2d 109 (7" Cir. 1982)

Metropolitan Washington Coalition for

Clean Air v. District of Columbia,

639 F.2d 802 (D.C. Cir. 1981) ...........

Northern Plains Resource Council v. EPA,

670 F. 2d 847 (9" Cir. 1982) ............

NRDC v. EPA, 484 F.2d 1331 (1" Cir. 1973) ..

Student Pub. Interest Research Group v.

AT&T Bell Labs, 643 F. Supp. 961

(D.N.J. nse RELL TE ee Toe TTT en ed 14

U.S. v. Revis, 22 F. Supp. 2d 1242

TR. SR ie ok ea oer ore aks 7

U.S. v. Tabacca, 924 F.2d 906 (9" Cir. 1991) .......... 7

Village of Kaktoriak v. Watt, 689 F.2d 228

Pe Ma: SMP ss en anes axetil 8

Legislative History Materials:

S.Rep. No. 1196, 91" Cong., 2d Sess. 38(1970) ........ 8

S.Rep. No. 92-414, at 64(1971) .................... 13

Treatises:

Walter K. Olson, The Litigation Explosion (1991) ...... 6

Articles:

Greve, Michael S., “The Private Enforcement

of Environmental Law”, 65 Tulane Law

Review (1990), pp. 339 incendie cue eee 14

Greve, Michael “Private Enforcement, Private

Rewards,” in Environmental Politics: Public

Costs, Private Rewards, M. Greve and F.

Smith, eds. (New York: Praeger, 1992) ....... 13, 14

Mann, David S., Comment, “Polluter-Financed

Environmentally Beneficial Expenditures:

Effective Use or Improper Abuse of Citizen

Suits Under the Clean Water Act?”,

BE WNC Bee. Be, RO CRO cS eecd ceacepnnecceens 14

Meltz, Robert, Congressional Research Service,

Report for Congress RS20012: The Future of

the Citizen Suit After Steel Co. and Laidlaw,

January 5, 1999, http://www.cnie.org/nle/rsk-

38.html#Back15, accessed February 8, 2001 ... 16, 17

Miller, “Private Enforcement of Federal Pollution

Control Laws, Part III,” 14 ELR 10407

Coens TE 0-000 06 ken deek eee seseeeeses 7

Stevens, Michael Paul, Note & Comment,

“Limits on Supplemental Environmental

Projects in Consent Agreements to Settle

Clean Water Act Citizen Suits”, 10 GA. ST.

Us. Le. BEV. TOU GRR 6 dccccccutcocncedsensune 14

Websites:

Form 990 data from www.guidestar.org,

accessed March 9, 2001 .........ccccccccees 15, 16

IDENTITY AND INTEREST OF AMICI CURIAE'

Pursuant to Supreme Court Rule 37.2, The Chemical

Industries Council of Illinois, Illinois Manufacturers Asso-

ciation, and Mid-America Legal Foundation respectfully

submit this brief as amici curiae in support of the Peti-

tioner. The members of the amici Illinois Manufacturers

Association and Chemical Industry Council of Illinois are

typically subject to the environmental reporting require-

ments which were at issue in the first Steel Company case,

and could be subject to the same types of attorneys fees and

other costs if sued for purely past violations by parties who,

like the Citizens for a Better Environment, lack standing to

bring matters before the federal courts. Written consent to

this appearance was granted by counsel for all parties.

The Mid-America Legal Foundation and the Illinois

Manufacturers Association were permitted to address this

Court as amici curiae in the Court’s consideration of the

original Stee/ Company case. The Chemical Industries

Council of Illinois did not participate in that case, but has

a membership with similar interests to those of MALF and

IMA. Their members would be as significantly affected by

an adverse result in this attorney’s fees matter as they

would have been by a decision other than that which the

Court reached on standing. The business communities they

represent largely consists of small business organizations,

and their background and general description is as follows:

Amicus Mid-America Legal Foundation (MALF) was

organized in 1975 as an Illinois not-for-profit corporation to

engage in study, analysis, and legal advocacy for the benefit

of the general public. MALF endeavors to address evolving

' No part of the attached brief has been authored by counsel for

either party. No persons other than the amici curiae, its

members or their counsel made a monetary contribution to the

preparation and submission of this brief

concepts of law as they affect free enterprise and our demo-

cratic institutions, especially where the outcome of liti-

gation could potentially cause disruption to our national

commerce, and to provide legal representation on matters

of public interest on all levels of the judicial process. MALF

takes a special interest in actions that originate in or have

a direct effect on the Midwest region.

Amicus Illinois Manufacturers Association (IMA) is an

Illinois not-for-profit corporation founded in 1893 and is the

oldest and largest statewide manufacturing association in

the United States. IMA’s membership numbers more than

4,700 Illinois manufacturing companies which employ over

80 percent of the total Illinois manufacturing workforce.

Amicus Chemical Industry Council of Illinois is the or-

ganization representing the chemical industry in Illinois.

Currently, CICI has over 188 members who employ over

62,000 people in Illinois. The state’s chemical industry

produces over $23 billion worth of product each year, mak-

ing it the third largest manufacturing sector in Illinois. In

fact, 1.3 million Illinois employees work in industries de-

pendent on chemical products.

SUMMARY OF ARGUMENT

I. The Issue: This case presents the question of whether

a party who commenced litigation without standing to bring

such a suit may be sanctioned under the attorney's fees

provision of the Emergency Planning and Community

Right-to-Know Act (hereinafter referred to as “EPCRA”). (42

U.S.C. § 11046.) There is a substantial probability that the

Seventh Circuit was in error in denying the Steel Com-

pany’s claims for attorneys fees.

A. Standing to sue is a fundamental element of propriety

in federal court proceedings.

B. The statute granting attorneys fees follows the rule at

common law.

1. United States practice requires explicit congressional

authorization for an award of attorneys fees.

2. Common Law courts can award fees in appropriate

amounts to prevailing parties.

3. The attorneys fees statute in question follows the com-

mon law rule, and does not distinguish between prevailing

plaintiffs and defendants.

4. The plain meaning of the statute should be followed

absent strong indications of contrary legislative intent.

5. The legislative history supports a review of the quality

of plaintiffs cases, but does not specifically limit the lan-

guage of the statute.

6. Lower court decisions on environmental fees statutes

have used standards other than frivolousness to determine

when awards for a successful party are appropriate.

7. Courts and commentators have relied primarily on civil

rights statutes and precedents for interpretation of fee

shifting statutes. The proper test is more general, and looks

specifically at the equities which apply between parties

under a fee shifting law.

II. There Are Strong Policy Reasons To Allow Awards To

Prevailing Defendants.

A. The Steel Company, like all such defendants, has no

choice but to be in court.

B. This Court made the probability of lack of standing to

sue clear in several decisions which preceded CBE’s filing

suit against The Steel Company.

C. Environmental Litigation Organizations Are The Bene-

ficiaries of “Citizens Litigation”, Not Disinterested Propo-

nents of the Public Good.

D. CBE and Other Potential Environmental Litigants Are

Well Funded National Organizations, Not Impecunious

Individuals. The Steel Company Is A Relatively Small

Business.

III. Conclusion: This Court should grant certiorari and

reverse the decision of the seventh circuit court of appeals

holding successful defendants to a more difficult standard

for obtaining an award of attorney’s fees.

ARGUMENT

I. The Issue: This case presents the question of

whether a party who commenced litigation without

standing to bring such a suit may be sanctioned under

the attorney’s fees provision of the Emergency Plan-

ning and Community Right-to-Know Act (hereinafter

referred to as “EPCRA”). (42 U.S.C. § 11046.) There is a

substantial probability that the Seventh Circuit was in

error in denying the Steel Company’s claims for attor-

neys fees.

This Court made the determination that Citizens for a

Better Environment lacked standing in Steel Company v.

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

Subsequent to that determination, the Steel Company

sought attorney’s fees pursuant to EPCRA, as a “prevailing

party.” Both the District Court and the Seventh Circuit

have rejected this claim, and the Steel Company has peti-

tioned this Court to review the Seventh Circuit’s determina-

tion in Citizens for a Better Environment v. Steel Co., No.

99-2709 (7th Cir. Oct. 17, 2000). This brief amici curiae sup-

ports the Steel Company’s petition for certiorari.

A. Standing to sue is a fundamental element of propri-

ety in federal court proceedings.

Standing to sue is a fundamental element of propriety in

federal court proceedings. The Court has clearly established

a standing requirement and has grounded this requirement

in Article III, section 2 of the Constitution, which grants the

judiciary the power to hear “cases” and “controversies.” The

requirement that litigants demonstrate their standing to

sue under the Constitution, the Court has said, confines the

judiciary to its properly limited role in our system of sep-

arated powers, and helps ensure that cases filed in federal

court involve the type of well-defined, adversarial contests

which the courts are institutionally competent to resolve.

(See Valley Forge Christian College v. Americans United for

Separation of Church and State, Inc., 454 U.S. 464, 471-6

(1982); Association of Data Processing Service Organiza-

tions, Inc. v. Camp, 397 U.S. 150, 151 (1969).)

The Seventh Circuit, while recognizing Citizens for A

Better Environment’s lack of standing, ruled that the

group’s original suit was not “frivolous”, and that the Steel

Company’s application for attorney fees should therefore be

denied. (Citizens for a Better Environment v. Steel Co., No.

99-2709 (7th Cir. Oct. 17, 2000).)

B. The statute granting attorneys fees follows the rule

at common law.

1. United States practice requires explicit congressio-

nal authorization for an award of attorney’s fees.

Attorney's fees generally are not a recoverable cost of liti-

gation absent explicit congressional authorization. (Runyon

v. McCrary, 427 U.S. 160, 185 (1976).) The Runyon Court,

like many earlier decisions, followed the holding in Arcam-

bel v. Wiseman, 3 U.S. (3 Dall.) 306 (1796), in which the

inclusion of attorneys’ fees as damages was overturned on

the ground that “[t]he general practice of the United States

is in opposition [sic] to [fee shifting]; and even if that

practice were not strictly correct in principle, it is entitled

to the respect of the court [sic], till it is changed, or modi-

fied, by statute.” (Arcambel, 3 U.S. (3 Dall.) at 306.) The

Arcambel holding differed from the “British Rule” applica-

ble at common law.

2. Common Law courts can award fees in appropriate

amounts to prevailing parties.

In England, fee-shifting (awards of attorneys’ fees to

prevailing parties in litigation) is authorized at the discre-

tion of the court by statute. (Fleischmann Distilling Corp.

uv. Maier Brewing Co., 386 U.S. 714, 717 (1967).) Conse-

quently, fee-shifting has been consistently and freely al-

lowed in favor of prevailing parties since the year 1278.

(Id.) Virtually every other legal system in the world also

consistently awards attorneys’ fees to prevailing parties.

(See generally Walter K. Olson, The Litigation Explosion

(1991).)

3. The attorneys fees statute in question follows the

common law rule, and does not distinguish between

prevailing plaintiffs and defendants.

The attorney’s fees provision of EPCRA provides that

attorneys fees may be awarded to a “substantially prevail-

ing party” whenever the court finds the award to be “appro-

priate.” (42 U.S.C. § 11046(f).) On its face, this provision

would appear to do no more than restore the fee allocation

rule applicable at common law. No preference in awards for

either plaintiffs or for defendants is stated in the plain

language of the statute.

4. The plain meaning of the statute should be followed

absent strong indications of contrary legislative intent.

Ordinary canons of statutory interpretation do not call for

courts to go beyond the four corners of the statute, where

the meaning is clear. (Caminetti v. U.S., 242 U.S. 470

(1917); U.S. v. Revis, 22 F. Supp. 2d 1242 (N.D. Okla.1998).)

Legislative history is irrelevant to an unambiguous statute.

(In Re Moore, 907 F.2d 1476 (4™ Cir. 1990.)) Courts are

bound to give effect to the literal meaning without consult-

ing other indicia of intent or meaning when the meaning of

the statutory text itself is plain or clear and unambiguous.

(American Tobacco Co. v. Patterson, 456 U.S. 63 (1982).)

Remarks of a legislator, even the sponsor of a bill, will not

override the plain meaning of a statute. (U.S. v. Tabacca,

924 F. 2d 906 (9 Cir. 1991).)

Absent some indication to the contrary, a reasonable

interpretation of the statute’s plain meaning would appear

to support application of the common law rule for allocation

of responsibility for attorney's fees. The discretion of the

court to award fees “where appropriate” which the statute

provides for does not, again, differ significantly on its face

from the similar discretion provided English courts under

the common law rule. Any prevailing party should, under

that rule, ordinarily be made whole by an appropriate

award of attorney’s fees from the party that loses. If a term

used in a statute has a settled legal meaning, then courts

will normally infer that the legislature intended to incorpo-

rate the established meaning. (Martin v. Luther, 689 F.2d

109 (7 Cir. 1982).) If a term has a common-law meaning,

then such meaning may be preferred in a court’s interpreta-

tion of a statute. (Standard Oil of New Jersey v. United

States, 221 U.S. 1(1911); McCool v. Smith, 1 Black (66 US)

459 (1861); U.S. v. Palmer, 3 Wheat (16 US) 610 (1818).)

5. The legislative history supports a review of the

quality of plaintiffs cases, but does not specifically limit

the language of the statute.

There is little substantive legislative history on attorney’s

fees provisions in environmental statutes. (Miller, “Private

Enforcement of Federal Pollution Control Laws, Part III,”

14 ELR 10407, at 10409 (November 1984).) Reference is

therefore usually made to the legislative history of Section

304 of the Clean Air Act of 1970 (42 U.S.C. 7604), the first

of several environmental statutes containing similarly

worded attorneys fee provisions. (See 42 U.S.C. 7607.) The

Senate report for that bill noted that many Senators feared

that Section 304 would be used to bring frivolous and

harassing actions. An appropriateness standard, the Senate

decided, “should have the effect of discouraging abuse of

this provision, while at the same time encouraging the qual-

ity of the actions that will be brought.” (S.Rep. No. 1196,

91% Cong., 2d Sess. 38 (1970).)

6. Lower court decisions on environmental fees

statutes have used standards other than frivolousness

to determine when awards for a successful party are

appropriate.

Federal courts have found fees appropriate where a

prevailing party has made a “substantial contribution” to

reaching the goals of the statute. (See Environmental Def.

Fund v. EPA, 672 F.2d 42 (DC Cir. 1982); Village of

Kaktoriak v. Watt, 689 F. 2d 228 (DC Cir. 1982); NRDC v.

EPA, 484 F. 2d 1331 (1" Cir. 1973).) The Senate Report’s

concern with “frivolous and harassing” actions would cer-

tainly appear to apply to actions brought by persons with-

out standing to be in court in the first place. The statutory

provision, on its face, does not require a finding of frivolous-

ness by the other party to permit an award of attorney's

fees

Other courts have also held that a “prudent effort”

standard should apply, which tests whether the suit was of

a nature which the statute can fairly be read to have

anticipated. (See Northern Plains Resource Council v. EPA,

670 F.2d 847 (9% Cir. 1982); Metropolitan Washington

Coalition for Clean Air v. District of Columbia, 639 F.2d 802

(D.C. Cir. 1981).)

nine st ee ere

nn oe a

7. Commentators have relied primarily on civil rights

statutes and precedents for interpretation of fee shift-

ing statutes. The proper test is more general, and looks

specifically at the equities which apply between parties

under a fee shifting law.

Commentators opposing fees for prevailing defendants in

environmental actions have relied on a non-environmental

case, Christiansburg Garment Company v. Equal Employ-

ment Opportunity Commission, which held that, under the

fee-shifting provision of Title VII of the Civil Rights Act of

1964, fees should not be awarded to prevailing defendants

unless the district court finds “that the plaintiffs action was

frivolous, unreasonable, or without foundation.” (Christ-

tansburg v. EEOC, 434 U.S. 412, 421 (1978).) This case is

significant authority, but is not evidently controlling for all

fee shifting statutes. These vary in their terms. In descend-

ing order, the prevailing plaintiffs or defendant’s “entitle-

ment” to attorneys’ fees is strongest under relatively equal

statutes like the Copyright Act, 17 U.S.C. § 505 (1994),

strong but not unequivocal under 42 U.S.C. secs. 1988 (civil

rights) and 12205 (disabilities), and always in serious ques-

tion under the Employee Retirement and Income Security

Act (ERISA), 29 U.S.C. sec. 1132(g\1). The ERISA provi-

sion is actually less strong in allowing an award to the

usual defendant (the employer) than the “prevailing party”

language of EPCRA is for a defendant company. ERISA

provides that

In any action under this subchapter . . ., the court in its

discretion may allow a reasonable attorney's fee and

costs of action to either party.

29 U.S.C. sec. 1132(g)(1).

Courts interpreting the ERISA provision have come up

with a balancing test that may be relevant in considering

the similar provisions of EPCRA. In Gray v. New England

Telephone and Telegraph Company, 792 F.2d 251 (1st Cir.

1986), the court held that:

“This discretion is not standardless. To channel its

exercise, this court has cited five basic factors that

customarily should be weighed in the balance: (1) the

degree of culpability or bad faith attributable to the

losing party; (2) the depth of the losing party’s pocket,

i.e., his or her capacity to pay an award; (3) the extent

(if at all) to which such an award would deter other

persons acting under similar circumstances; (4) the

benefit (if any) that the successful suit confers on plan

participants or beneficiaries generally; and (5) the

relative merit of the parties’ positions. See id. at 257-58.

... The circuits agree that such compendia are exem-

plary rather than exclusive. . . . An inquiring court

may—indeed, should—consider additional criteria that

seem apropos in a given case... . In a word, the test for

granting or denying counsel fees in an ERISA case is

“flexible.”

Gray, 792 F.2d at 258.

This Court, in Pennsylvania v. Delaware Valley Citizen’s

Council for Clean Air, 478 U.S. 546 (1986), addressed fee

awards for plaintiffs in post-trial administrative proceed-

ings, and held in that case that similar post-trial stage

awards were allowable in an environmental suit for matters

which had been held to be “reasonable” elements of attor-

neys fees in earlier civil rights cases. The Christianberg and

other civil rights cases which were cited in Delaware Valley

would, as that case was decided, apply only to the amount

of any award, not to which party should receive same. The

Court’s decision did not address a standard of when an

award to defendants would be appropriate, or whether the

standard should be different from that applicable to plain-

tiffs.

The appropriate test, in other words, is not one which

rewards one type of prevailing party over another. Rather,

the standard courts should apply in interpreting a facially

Cl eee

neutral “prevailing party” attorneys fee awards statute is

one of fairness and equity. In the absence of specific

statutory language directing that awards go only to prevail-

ing plaintiffs, a consideration of the equities such cases, and

the general policy favoring compliance rather than penalty

seeking as the primary goal of environmental enforcement,

which would discourage litigation like that brought by CBE,

may be appropriate.

Il. There Are Strong Policy Reasons For This Court To

Review The Decision To Deny Awards To Prevailing

Defendants.

A. The Steel Company, like all such defendants, has no

choice but to be in court.

In this case, the Steel Company had no choice but to be in

court in the first instance, as it was the defendant in a case

brought by Citizens for a Better Environment. Whether the

Steel Company was prudent in defending itself, instead of

settling, and whether CBE was merely engaged in unrea-

sonable harassment, can best be determined by reviewing

the cases on standing to sue for past actions which this

Court had decided prior to the Steel Company decision.

B. This Court made the probability of lack of standing

to sue clear in several decisions which preceded CBE’s

filing suit against The Steel Company.

The Steel Company decision which held that CBE was

without standing to sue for past actions was only the most

recent of several Court opinions which it clear that the

proper interpretation of environmental statutes on citizen

suits, and of Constitutional provisions relative to standing

to bring action, encouraged citizen suits to prevent and

eliminate ongoing violations of environmental laws, but

prohibited them from suing for past actions.

On statutory interpretation, the leading case is Gwaltney

vu. Chesapeake Bay Foundation. (484 U.S. 49 (1987).) The

case is consistent with the recent direction of Supreme

Court standing doctrine. In that case, the Court held that

the Clean Water Act citizen suit provision does not autho-

rize filing suit based on violations which occurred wholly

prior to the commencement of the litigation.

For standing in environmental cases, counsel for CBE and

for the Steel Company should certainly have made their

clients aware of the Court’s holding in Lujan v. National

Wildlife Federation (Lujan I). The Court, by a vote of 5 to 4,

ruled that the National Wildlife Federation lacked standing

to challenge a decision of the Bureau of-Land Management

(BLM) to review the classification of federal lands and open

them to various kinds of resource development. The Federa-

tion contended that the BLM had acted in violation of the

Federal Land Policy and Management Act and had failed to

prepare an environmental analysis as required by the

National Environmental Policy Act. To establish its stand-

ing, the Federation filed affidavits of several of its members

who asserted that they used land “in the vicinity” of federal

lands affected by the agency’s decision, and that opening

these lands to development would interfere with “recre-

ational use and aesthetic enjoyment” of the lands. (Lujan v.

National Wildlife Federation, 497 U.S. 871 (1990).)

The Court further elaborated on standing doctrine in a

second Lujan case. (Lujan v. Defenders of Wildlife, 504 U.S.

555 (1992).) The most significant aspect of Lujan II is

Justice Scalia’s rejection of the idea that Congress can con-

fer standing by adopting an expansive citizen suit provision.

Defenders sought to establish its standing based on the

provision of the Endangered Species Act which authorizes

“any person” to bring a civil suit “to enjoin any person...

who is alleged to be in violation of any provision of this

chapter.” To permit Congress to confer standing through

such a provision, Justice Scalia said, would authorize in-

dividuals to sue to enforce the “undifferentiated public

interest” in seeing that the laws are enforced. This would

violate the principle of separation of powers, according to

Justice Scalia, by “enabl{ing] the courts, with the permis-

sion of Congress, to assume a position of authority over the

governmental acts of another and co-equal department.”

The Justice, in this, echoed Congressional concerns noted in

Gwaltney:

“(T]he Committee intends the great volume of enforce-

ment actions [to] be brought by the State.”

(Gwaltney of Smithfield, Ltd. v. Cheasapeake Bay Found.,

Inc., 484 U.S. 49, 60 (1987), quoting S.Rep. No. 92-414, at

64 (1971).)

In light of the substantial caselaw and Congressional

history concerning the proper role of citizen suits—pollution

prevention, not criminal or quasicriminal prosecution for

past misdeeds—an award of attorney’s fees to the Steel

Company for costs incurred in the course of reasserting

existing standing and statutory doctrine would not seem

unreasonable.

C. Environmental Litigation Organizations Are The

Beneficiaries of “Citizens Litigation”, Not Disinterested

Proponents of the Public Good.

Environmental organizations have benefited substantially

from citizen suit settlements and judgments. Due to the

anti-business bias of many of the environmental organiza-

tions that engage in citizen suits, private industry is subject

to more legal actions than either agricultural activities

or governmental facilities. For example, between 1984 and

1988, environmentalist citizen suits against private indus-

try were more than six times as common than suits against

governmental facilities. (Michael Greve, “Private Enforce-

ment, Private Rewards,” in Environmental Politics: Public

Costs, Private Rewards, M. Greve and F. Smith, eds. (New

York: Praeger, 1992), p. 111.) Some environmental groups

have found that citizen suits can be a lucrative source of

revenue (Ibid., pp. 109-110.)

Such organizations may benefit directly from litigation

expense awards or attorney's fee awards above the actual

costs incurred. (See, e.g. Environmental Defense Fund uv.

EPA, 672 F.2d 42, 58 (D.C. Cir. 1982), and see also Student

Pub. Interest Research Group v. AT&T Bell Labs, 643 F.

Supp. 961 (D.N.J. 1986).) Where cases are settled, the

groups usually demand that substantial amounts be paid

through other environmental groups for “supplemental”,

“mitigation”, or “credit” programs. (Greve, Michael S., “The

Private Enforcement of Environmental Law’, 65 Tulane

Law Review (1990), pp. 339 ff, at page 356.)

The use of supplemental environmental projects has been

subject to increasing scrutiny. See, e.g., Mann, David S.,

Comment, “Polluter-Financed Environmentally Beneficial

Expenditures: Effective Use or Improper Abuse of Citizen

Suits Under the Clean Water Act?”, 21 ENVTL. L. 175

(1991); Stevens, Michael Paul, Note & Comment, “Limits on

Supplemental Environmental Projects in Consent Agree-

ments to Settle Clean Water Act Citizen Suits”, 10 GA. ST.

U. L. REV. 757 (1994).

Citizen suit plaintiff organizations are not, therefore,

properly regarded as purely altruistic guardians of an ab-

stract public good. They are economic actors who can obtain

substantial benefits from litigation. Citizens for a Better

Environment is not a poverty-stricken individual with no

recourse but an equal employment opportunity action. It is

a national organization, and part of a set of well funded

national environmental organizations, with active litigation

programs, and substantial receipts to date from a wide

variety of environmental litigation. The Court can direct

such private prosecutors to their proper duties by any

means it determines to be appropriate, including attorneys

fee awards where they ignore its relevant precedents and

the text of the notice provision of the statutes pursuant to

which they bring suit, without putting such organizations

out of business.

D. CBE and Other Potential Environmental Litigants

Are Well Funded National Organizations, Not Impecu-

nious Individuals. The Steel Company Is A Relatively

Small Business.

The relative sizes and abilities to bear the costs of counsel

of the parties litigant do not indicate that the citizen

litigants are “impoverished.” Citizens for a Better Environ-

ment is, like other major environmental organizations

which could bring similar suits in later actions, a nation-

wide organization. It had over 30,000 members and 180,000

contributors in 1995. (Complaint, paragraph 6.) CBE’s IIli-

nois office filed a Form 990 for tax year 1999 which indi-

cated receipt of contributions of $1,932,456 in direct and

indirect contributions. The Form 990 for 1997 indicated

contributions of $2,030,582. (Source: www.guidestar.org,

accessed March 9, 2001.) The Environmental Law and

Policy Center of the Midwest, which appears as counsel for

CBE in this matter, is another example of how well funded

potential environmental organization plaintiffs can be. Data

from the Guidestar website, which provides information

from annual Form 990’s for 640,000 organizations, profiles

the ELPC as follows:

Financial Info

Fiscal Year: 1999

Assets: $5,283,084

Income: $3,430,000

(Source: http://www.guidestar.org/search/report/gs-report.

a °ein= ° = Ww s=&

pA a encensed March 9, 2001. LD)

The Steel Company, by contrast, is a manufacturing or-

ganization which at the time of the litigation had approxi-

mately 100 employees. This is relatively small for the steel

industry. For a company of this size, like any small manu-

facturing business, more than $270,000 in attorneys fees

and costs to defend a case against a party without standing

to bring suit is a substantial penalty. (Source for fee and

cost amount: Stipulation cited in Petition for Writ of Cer-

tiorari, p. 8.)

Ill. Conclusion: This Court Should Grant Certiorari

and Reverse the Decision of the Seventh Circuit Court

of Appeals Holding Successful Defendants to a More

Difficult Standard for Obtaining an Award of Attorney’s

Fees.

As set forth above, there are ample policy and legal rea-

sons for this Court to review and reverse the decision of the

Seventh Circuit Court of Appeals. The practical effect on

enforcement of a decision to award attorney’s fees to the

Steel Company should also be considered. Allowing success-

ful defendants to recover attorney’s fees in a case such as

this will not discourage well brought citizen suits; it will

insure that they are pursued only when necessary to abate

ongoing violations. Moreover, the Congressional Research

Service, when reviewing the effect of the Court’s earlier

Stee] Company decision, concluded that:

If Steel Co. and Laidlaw (widely adopted) ultimately do

reduce the number of citizen suits and their value as

incentives for advance compliance, one should not

assume that rampant flouting of environmental and

other regulations will result. Nothing in these decisions

impairs the enforcement ability of federal agencies, or

state agencies under delegated federal programs.

(Robert Meltz, Congressional Research Service, Report for

Congress, RS20012: The Future of the Citizen Suit After

Steel Co. and Laidlaw, January 5, 1999, http://www.cnie.

org/nle/rak-38.html#Back15, accessed February 8, 2001.)

A decision for the Steel Company on award of fees will in-

sure that other relatively well funded environmental organ-

izations will be encouraged to remember that Congress had

a good reason for putting in EPCRA and similar environ-

mental statutes the 60-day notice to prosecutors and the

alleged violator. If a governmental prosecution is com-

menced or the alleged violator comes into compliance, the

environmental group has fulfilled its mission and has no

business proceeding.

The overarching goal of the citizen suit provisions is com-

pliance, not punishment. It is respectfully submitted that it

is in the interest of proper administration of the law and

public policy for this Court to grant the Petition and ulti-

mately reverse the decision below.

Respectfully submitted,