[Dioxin-l] Supremes rule 7-2 for citizen standing to sue!!!

[Tony Tweedale]

I've followed this and relted cases some, but of course I'm not intimate w/
the arguments--yet this seems a quite unexpected and a huge repudiation of
Scalia and other fed judges recent successes in taking away citizen suits!
Inter alia, now CHEER's ground-breaking pollution prevention consent decree
w/ Smurfit-Stone Container has a greater chance of being duplicated
elsewhere.
--

From: "Peter W. Martin" <martin@WWW.LAW.CORNELL.EDU>
To: <liibulletin@www3.LAW.CORNELL.EDU>
Subject: LIIBULLETIN, Wednesday January 12  (4 cases)
Date: Wed, 12 Jan 2000 10:36:07 -0500

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                         AN E-BULLETIN
       LEGAL INFORMATION INSTITUTE -- CORNELL LAW SCHOOL
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FRIENDS OF EARTH, INC. v. LAIDLAW ENVIRONMENTAL SERVICES (TOC), INC.
(98-822)
Web-accessible at:
    http://supct.law.cornell.edu/supct/html/98-822.ZS.html

Argued October 12, 1999  -- Decided January 12, 2000
Opinion author: Ginsburg

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Defendant-respondent Laidlaw Environmental Services (TOC),
Inc., bought a facility in Roebuck, South Carolina, that
included a wastewater treatment plant. Shortly thereafter, the
South Carolina Department of Health and Environmental Control
(DHEC), acting under the Clean Water Act (Act), 33 U.S.C. sect.
1342(a)(1), granted Laidlaw a National Pollutant Discharge
Elimination System (NPDES) permit.  The permit authorized
Laidlaw to discharge treated water into the North Tyger River,
but limited, among other things, the discharge of pollutants
into the waterway.  Laidlaw began to discharge various
pollutants into the waterway; these discharges, particularly of
mercury, an extremely toxic pollutant, repeatedly exceeded the
limits set by the permit.
On April 10, 1992, plaintiff-petitioners Friends of
the Earth and Citizens Local Environmental Action Network, Inc.
(referred to collectively here, along with later joined
plaintiff-petitioner Sierra Club, as "FOE"), notified Laidlaw
of their intention to file a citizen suit against it under the
Act, 33 U.S.C. sect. 1365(a), after the expiration of the
requisite 60-day notice period.  DHEC acceded to Laidlaw's
request to file a lawsuit against the company. On the last day
before FOE's 60-day notice period expired, DHEC and Laidlaw
reached a settlement requiring Laidlaw to pay $100,000 in civil
penalties and to make "every effort" to comply with its permit
obligations.
On June 12, 1992, FOE filed this citizen suit against
Laidlaw, alleging noncompliance with the NPDES permit and
seeking declaratory and injunctive relief and an award of civil
penalties.  Laidlaw moved for summary judgment on the ground
that FOE lacked Article III standing to bring the lawsuit.
After examining affidavits and deposition testimony from
members of the plaintiff organizations, the District Court
denied the motion, finding that the plaintiffs had standing.
The District Court also denied Laidlaw's motion to dismiss on
the ground that the citizen suit was barred under
sect.1365(b)(1)(B) by DHEC's prior action against the company.
After FOE initiated this suit, but before the District Court
rendered judgment on January 22, 1997, Laidlaw violated the
mercury discharge limitation in its permit 13 times and
committed 13 monitoring and 10 reporting violations.  In
issuing its judgment, the District Court found that Laidlaw had
gained a total economic benefit of $1,092,581 as a result of
its extended period of noncompliance with the permit's mercury
discharge limit; nevertheless, the court concluded that a civil
penalty of $405,800 was appropriate.  In particular, the
District Court found that the judgment's "total deterrent
effect" would be adequate to forestall future violations, given
that Laidlaw would have to reimburse the plaintiffs for a
significant amount of legal fees and had itself incurred
significant legal expenses.  The court declined to order
injunctive relief because Laidlaw, after the lawsuit began, had
achieved substantial compliance with the terms of its permit.
FOE appealed as to the amount of the District Court's
civil penalty judgment, but did not appeal the denial of
declaratory or injunctive relief.  The Fourth Circuit vacated
the District Court's order and remanded with instructions to
dismiss the action.  Assuming, arguendo, that FOE initially had
standing, the appellate court held that the case had become
moot once Laidlaw complied with the terms of its permit and the
plaintiffs failed to appeal the denial of equitable relief.
Citing Steel Co. v. Citizens for Better Environment, 523 U.S.
83, the court reasoned that the only remedy currently available
to FOE, civil penalties payable to the Government, would not
redress any injury FOE had suffered. The court added that FOE's
failure to obtain relief on the merits precluded recovery of
attorneys' fees or costs because such an award is available
only to a "prevailing or substantially prevailing party" under
sect.1365(d).  According to Laidlaw, the entire Roebuck
facility has since been permanently closed, dismantled, and put
up for sale, and all discharges from the facility have
permanently ceased.

Held:  The Fourth Circuit erred in concluding that a citizen
suitor's claim for civil penalties must be dismissed as moot
when the defendant, after commencement of the litigation, has
come into compliance with its NPDES permit.  Pp. 8-25.
    (a)  The Constitution's case-or-controversy limitation on
federal judicial authority, Art. III, sect.2, underpins both
standing and mootness doctrine, but the two inquiries differ in
crucial respects.  Because the Fourth Circuit was persuaded
that the case had become moot, it simply assumed that FOE had
initial standing.  See Arizonans for Official English v.
Arizona, 520 U.S. 43, 66-67.  But because this Court concludes
that the Court of Appeals erred as to mootness, this Court has
an obligation to assure itself that FOE had Article III
standing at the outset of the litigation.  Pp. 8-9.
    (b)  FOE had Article III standing to bring this action.
This Court has held that to satisfy Article III's standing
requirements, a plaintiff must show "injury in fact,"
causation, and redressability. Lujan v. Defenders of Wildlife,
504 U.S. 555, 560-561. An association has standing to bring
suit on behalf of its members when its members would have
standing to sue in their own right, the interests at stake are
germane to the organization's purpose, and neither the claim
asserted nor the relief requested requires individual members'
participation in the lawsuit.  Hunt v. Washington State Apple
Advertising Comm'n, 432 U.S. 333, 343. The relevant showing
for Article III standing is not injury to the environment but
injury to the plaintiff.  To insist on the former rather than
the latter is to raise the standing hurdle higher than the
necessary showing for success on the merits in a citizen's
NPDES permit enforcement suit. Here, injury in fact was
adequately documented by the affidavits and testimony of FOE
members asserting that Laidlaw's pollutant discharges, and the
affiants' reasonable concerns about the effects of those
discharges, directly affected those affiants' recreational,
aesthetic, and economic interests.  See, e.g., Sierra Club v.
Morton, 405 U.S. 727, 735. These submissions present
dispositively more than the mere "general averments" and
"conclusory allegations" found inadequate in Lujan v. National
Wildlife Federation, 497 U.S. 871, 888, or the " 'some day'
intentions" to visit endangered species halfway around the
world held insufficient in Defenders of Wildlife.  504 U.S., at
564.  Pp. 9-13.
    (c)  Laidlaw argues that FOE lacked standing to seek
civil penalties payable to the Government, because such
penalties offer no redress to citizen plaintiffs.  For a
plaintiff who is injured or threatened with injury due to
illegal conduct ongoing at the time of suit, a sanction that
effectively abates that conduct and prevents its recurrence
provides a form of redress.  Civil penalties can fit that
description.  Insofar as they encourage defendants to
discontinue current violations and deter future ones, they
afford redress to citizen plaintiffs injured or threatened with
injury as a result of ongoing unlawful conduct.  The Court need
not explore the outer limits of the principle that civil
penalties provide sufficient deterrence to support
redressability, because the civil penalties sought here carried
a deterrent effect that made it likely, as opposed to merely
speculative, that the penalties would redress FOE's
injuries--as the District Court reasonably found when it
assessed a penalty of $405,800.  Steel Co. is not to the
contrary.  That case held that private plaintiffs may not sue
to assess penalties for wholly past violations, 523 U.S., at
106-107, but did not address standing to seek penalties for
violations ongoing at the time of the complaint that could
continue into the future if undeterred, see id., at 108.  Pp.
13-17.
    (d)  FOE's civil penalties claim did not automatically
become moot once the company came into substantial compliance
with its permit.  A defendant's voluntary cessation of a
challenged practice ordinarily does not deprive a federal court
of its power to determine the legality of the practice. City of
Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283, 289. If it
did, courts would be compelled to leave the defendant free to
return to its old ways.  Thus, the standard for determining
whether a case has been mooted by the defendant's voluntary
conduct is stringent: A case might become moot if subsequent
events make it absolutely clear that the allegedly wrongful
behavior could not reasonably be expected to recur.  United
States v. Concentrated Phosphate Export Assn., Inc., 393 U.S.
199, 203.  The heavy burden of persuading the court that the
challenged conduct cannot reasonably be expected to recur lies
with the party asserting mootness.  Ibid.  The Court of Appeals
incorrectly conflated this Court's case law on initial
standing, see, e.g., Steel Co., with its case law on mootness,
see, e.g., City of Mesquite.  Such confusion is understandable,
given this Court's repeated description of mootness as "the
doctrine of standing set in a time frame: The requisite
personal interest that must exist at the commencement of the
litigation (standing) must continue throughout its existence
(mootness)."  E.g., Arizonans, 520 U.S., at 68, n. 22. Careful
reflection, however, reveals that this description of mootness
is not comprehensive.  For example, a defendant claiming that
its voluntary compliance moots a case bears a formidable
burden.  By contrast, it is the plaintiff's burden, in a
lawsuit brought to force compliance, to establish standing by
demonstrating that, if unchecked by the litigation, the
defendant's allegedly wrongful behavior will likely occur or
continue and that the threatened injury is certainly impending.
Whitmore v. Arkansas, 495 U.S. 149, 158.  The plain lesson is
that there are circumstances in which the prospect that a
defendant will engage in (or resume) harmful conduct may be too
speculative to support standing, but not too speculative to
overcome mootness.  Further, if mootness were simply "standing
set in a time frame," the exception to mootness for acts that
are "capable of repetition, yet evading review" could not
exist. See, e.g., Olmstead v. L. C., 527 U.S. ___, ___, n. 6.
Standing admits of no similar exception; if a plaintiff lacks
standing at the time the action commences, the fact that the
dispute is capable of repetition yet evading review will not
entitle the complainant to a federal judicial forum.  See,
e.g., Steel Co., 523 U.S., at 109.  Standing doctrine ensures,
among other things, that the resources of the federal courts
are devoted to disputes in which the parties have a concrete
stake. Yet by the time mootness is an issue, abandonment of
the case may prove more wasteful than frugal.  Courts have no
license to retain jurisdiction over cases in which one or both
of the parties plainly lacks a continuing interest, see, e.g.,
Arizonans, 520 U.S., at 67, but the foregoing examples
highlight an important difference between the two doctrines,
see generally Honig v. Doe, 484 U.S. 305, 329-332 (Rehnquist,
C. J., concurring).
Laidlaw's argument that FOE doomed its own civil penalty
claim to mootness by failing to appeal the denial of injunctive
relief misconceives the statutory scheme.  Under sect.1365(a),
the district court has discretion to determine which form of
relief is best suited to abate current violations and deter
future ones.  See Weinberger v. Romero&nbhyph;Barcelo, 456 U.S.
305, 313.  Denial of injunctive relief does not necessarily
mean that the district court has concluded there is no prospect
of future violations to deter. Indeed, it meant no such thing
in this case; the District Court denied injunctive relief, but
expressly based its award of civil penalties on the need for
deterrence.  A district court properly may conclude that an
injunction would be too intrusive, because it could entail
continuing and burdensome superintendence of the permit
holder's activities by a federal court.  See City of Mesquite,
455 U.S., at 289.  Both Laidlaw's permit compliance and the
facility closure might moot this case, but only if one or the
other event made it absolutely clear that violations could not
reasonably be expected to recur.  Concentrated Phosphate Export
Assn., 393 U.S., at 203.  These are disputed factual matters
that have not been aired in the lower courts; they remain open
for consideration on remand.  Pp. 18-23.
    (e)  This Court does not resolve FOE's argument that it
is entitled to attorneys' fees on the theory that a plaintiff
can be a "prevailing party" under sect.1365(d) if it was the
"catalyst" that triggered a favorable outcome. Although the
Circuits have divided as to the continuing validity of the
catalyst theory following Farrar v. Hobby, 506 U.S. 103, it
would be premature for this Court to address the question here.
The District Court stayed the time for a petition for
attorneys' fees until the time for appeal had expired or until
any appeal was resolved.  Thus, when the Fourth Circuit
addressed the availability of counsel fees, no order was before
it either denying or awarding fees.  It is for the District
Court, not this Court, to address in the first instance any
request for reimbursement of costs, including fees.  Pp. 23-25.

149 F.3d 303, reversed and remanded.

Ginsburg, J., delivered the opinion of the Court, in which
Rehnquist, C. J., and Stevens, O'Connor, Kennedy, Souter, and
Breyer, JJ., joined.  Stevens, J., and Kennedy, J., filed
concurring opinions.  Scalia, J., filed a dissenting opinion,
in which Thomas,  J., joined.

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