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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2001
- **Citation:** 532 U.S. 994

## Text

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,
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 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

i

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

il

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

iv

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) ..

Vv

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

vi

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

1

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

2

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.

3

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.

4

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

5

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

6

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

7

(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,”

8

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

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9

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:

10

“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

11

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.

12

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-

t

13

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-

14

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

15

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.

17

(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,

JAMES T. HARRINGTON

Counsel of Record
WILLIAM A. PRICE, General Counsel
Mid-America Legal Foundation
201 E. Loop Road
Wheaton, Illinois 60187
(630) 682-6042

Attorneys for Amici Curiae

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_1664%3A3. Public record. Not legal advice.