[Dioxin-l] Right To Sue Polluters Upheld

[Neil Tangri]

http://www.nytimes.com/aponline/w/AP-Scotus-Clean-Water.html
January 12, 2000

          Right To Sue Polluters Upheld

          Filed at 6:36 p.m. EST

          By The Associated Press

          WASHINGTON (AP) -- Private citizens won assurances from the
          Supreme Court on Wednesday that they can seek enforcement of
          environmental laws against polluters. 

          The justices, in a 7-2 decision, upheld citizen groups' right to
sue an
          alleged polluter even if the group were not directly harmed by the
          pollution or could prove financial damages. 

          The ruling also said polluters sued by private citizens cannot
necessarily
          avoid paying damages by stopping their misconduct during
litigation. 

          The decision involved the dumping of toxic chemicals into a
stream from
          a South Carolina hazardous waste incinerator. Friends of the
Earth and
          several other environmental groups sued incinerator's operator in
1992,
          although these groups were not directly harmed by the pollution. 

          The ruling ``assures that citizens ... have the right to go to
court to
          enforce environmental laws,'' said Lois Schiffer, assistant
attorney general
          for environment and natural resources, applauding the court's
finding. 

          The case against Laidlaw Environmental Services, operator of the
          incinerator, was a test of the Clean Water Act's provision that
allows
          private citizens to file lawsuits to help enforce the law. Under
the law,
          citizens can seek an end to misconduct, plus financial penalties
to be paid
          to the federal government. 

          ``This case had the potential to severely limit a citizen's
ability to enforce
          the Clean Water Act.,'' said Brian Dunkiel of Friends of the
Earth. ``We
          ... are pleased that the court has maintained the status quo'' on
citizen
          participation. 

          The suit dealt with Laidlaw's operation of its waste incinerator in
          Roebuck, S.C., that discharged wastewater into the North Tyger
River. 

          By the time a federal judge ruled on the lawsuit in 1997, Laidlaw
had
          come into compliance of the Clean Water Act. While the judge found
          that the environmental groups were not entitled to an order to
deter future
          violations, he imposed $405,800 in civil penalties for past
violations. 

          A year later, the 4th U.S. Circuit Court of Appeals threw out the
penalty.
          It said that once the judge decided not to ban future violations,
the only
          remaining remedy -- a civil penalty -- was not appropriate
because it
          would not benefit the groups who filed suit. Under the law, the
money
          had to be paid to the government. 

          But the Supreme Court said the civil penalty was intended to
deter future
          misconduct, and therefore it would, in fact, benefit the
environmental
          groups. 

          The justices ordered the case returned to a lower court to determine
          whether Laidlaw could show that the case was moot because future
          violations could not be expected to occur. 

          ``Congress has found that civil penalties in the Clean Water Act
cases do
          more than promote immediate compliance ... they also deter future
          violations,'' Justice Ruth Bader Ginsburg wrote for the court. 

          ``A defendant's voluntary cessation of allegedly unlawful conduct
          ordinarily does not suffice to moot a case,'' Ginsburg added. A case
          might be declared moot if it were clear that the unlawful conduct
could
          not reasonably be expected to reoccur, she said. 

          Ginsburg's opinion was joined by Chief Justice William H.
Rehnquist and
          Justices John Paul Stevens, Sandra Day O'Connor, Anthony M.
          Kennedy, David H. Souter and Stephen G. Breyer. 

          Justices Antonin Scalia and Clarence Thomas dissented. Writing
for the
          two, Scalia said the ruling permited ``law enforcement to be
placed in the
          hands of private individuals.'' 

          The case is Friends of the Earth vs. Laidlaw Environmental Services,
          98-822.