Environmental Citizen Suits: Standing and Mootness After Laidlaw Caplin Pavilion, University of Virginia School of Law, March 28, 2000
By Robert Dreher
The EPA takes very seriously the role citizens play in enforcing the nation's environmental laws through citizen suits. As Congress recognized in enacting the citizen suit provisions of the Clean Water Act and other statutes, effective enforcement of a nationwide permit system requires the active involvement of the public. The EPA has never been given sufficient resources by Congress to enforce the environmental laws single-handedly. The states, who are very important partners and who carry the lion's share of the enforcement burden for the environmental laws, are also typically shorthanded when it comes to enforcing these laws. Congress accordingly built into these environmental laws opportunities for citizens, acting as ‘private attorneys general,’ to challenge violations by private companies. And, moreover, Congress required private companies like Laidlaw to file monthly monitoring reports disclosing whether or not they are adhering to the terms of their permits. So, determining whether there is a violation can be as simple as looking through the record of the company with the state agency to find out if they are, in fact, saying openly in their reports that, ‘We are violating the terms of our permit.’
And citizen suits have in fact proven to be a very effective means of implementing the nation's environmental policies. Individuals and environmental groups have brought hundreds of lawsuits that have forced polluting companies to comply with the law. The threat of such actions poses a powerful deterrent to would-be polluters, reminding them that even if they escape enforcement by federal or state authorities, they may be brought before the courts by their neighbors.
Moreover, for the EPA, affording citizens access to the courts to enforce environmental laws, or to seek judicial review of the agency's own actions, is an essential part of the agency's commitment to engaging the public meaningfully in the making and implementing of environmental policy, shown in our rulemakings and other stakeholder processes.
Citizen enforcement of the law raises fundamental questions, however, regarding the proper relationship of the courts, the executive branch charged with administering the nation's laws, the regulated community, and the public. Those questions center on the constitutional doctrine of standing, which determines whether a party has sufficient interest in a legal dispute to present it to a federal court. Over the past decade, a series of Supreme Court and lower court standing decisions have increasingly constricted citizen access to the federal courts to enforce the environmental laws. I think what you are seeing in Laidlaw may be a sea change, a major change in the way the lower courts and the Supreme Court approach these citizen suit enforcement cases. The story is by no means over, however.
The legal debate over the proper limits of citizen standing has been framed in large part by the efforts of one Justice on the Supreme Court, although his views have until recently been shared by a majority on the Court. Justice Antonin Scalia has been on a crusade for almost twenty years to reformulate the constitutional role of citizens in the government, and in particular their role in the federal courts. In his view of separation of powers, laid out in a law review article that he wrote before he was appointed to the Supreme Court bench, the courts should be open to people who are being regulated, like Laidlaw. Those parties should be allowed to go to court to challenge the effort of the EPA or the state to regulate them because people should have redress against the government when the government acts improperly in a manner that directly affects their interests. But the courts should not be open to citizens to assert ‘generalized grievances' regarding the enforcement of the nation's laws. Citizens have an opportunity in a democratic society to vote for legislators, and to vote for a president, and to try to get social policy established through those means; they should not invoke the judiciary to direct the executive branch's implementation of the law.
This view, carried to its extreme, would effectively write the citizen suit provisions out of our statutes. It would negate the policy that Congress has clearly favored, of providing a strong enforcement role for citizens to ensure that our laws are faithfully carried out, and would inevitably lead to less effective enforcement of those laws. Justice Scalia acknowledges that impact, but is untroubled. He wrote in his article, “Does what I have said [about how citizens should not be suing to enforce the laws] mean that, so long as no minority interests are affected, ‘important legislative purposes, heralded in the halls of Congress, [can be] lost or misdirected in the vast halls of the federal bureaucracy?” ’ And he answered, “Of course it does--and a good thing, too.” Citing the Sunday blue laws, Justice Scalia concluded that executive branch disregard of congressional mandates can be a positive thing: “The ability to lose or misdirect laws can be said to be one of the prime engines of social change, and the prohibition against such carelessness is (believe it or not) profoundly conservative.”
In the context of his article, criticizing what he calls the federal judiciary's “long love affair with environmental litigation,” Justice Scalia thus drew an explicit link between Sunday blue laws and the nation's environmental laws, implying that we might all be better off if everybody just pretended they weren't there. Where the executive branch and the Congress agree to look the other way regarding a failure to enforce such laws, citizens should not have any redress beyond the electoral process. That's his view of what your role is. You can vote. That's it.
Justice Scalia's perspective raises fundamental issues regarding our constitutional framework, I think, and that is what is really going on in this case--a major retrenchment, a reaction by the majority of the Court against Justice Scalia's very narrow view of the role of citizens in our constitutional framework. There is a place in Justice Scalia's dissent in Laidlaw where he suggests that you shouldn't really need civil penalties enforced through citizen suits to deter a polluter's conduct because the environmental laws are widely--and he uses the word, “notoriously”--enforced. “Notoriously” is an oddly charged word for a Justice of the Supreme Court to use to refer to the actions of my agency and the environmental agency of Virginia, and of all the other states, in carrying out the public trust to protect all of us from harm to our health and harm to our public welfare. That semantically-colored word conveys a real sense of hostility toward our environmental laws, which Justice Scalia had earlier compared to Sunday blue laws.
Justice Scalia put his vision into practice on the Supreme Court, writing every major environmental standing decision for the Court for a period of ten years. And in every one, he said, ‘Environmentalists, you don't have standing.’ Those decisions were essentially lectures to the environmental bar on practice and pleading, but always directed to discourage broad challenges to the government's actions implementing the environmental laws.
In the original blockbuster case, Lujan v. National Wildlife Federation, the problem was that the plaintiffs had filed an affidavit claiming that public land policies that they thought were illegal would promote mining of the West in areas where they liked to hike.10 They said that they used areas “in the vicinity of” the lands that had been opened to mining and other kinds of resource extraction by the Reagan administration.
Scalia wrote a Supreme Court opinion to say that “in the vicinity of” isn't the right wording for a standing affidavit; you've got to say you've used the lands in question. Those of you that have been out West and have seen the majestic scenery know that a major mine or an oil and gas development field can affect, literally, a view-shed the size of three hundred square miles. You can see such development for twenty miles, and if it's in a valley, it can be seen from every mountain peak around. It is not, therefore, particularly unlikely that the view of people recreating in lands “in the vicinity of” such a huge industrial complex would be affected. But Justice Scalia believed that the environmentalists had to spell out their particular injury with great care in order to avoid the prospect of citizens simply suing to enforce the laws. He buttressed that point with a sweeping discussion of ripeness, telling the environmental community in dicta that it could not seek wholesale, programmatic reform of government policies through the courts, but must limit itself to challenging discrete actions taken by federal agencies on a case-by-case basis.
Justice Scalia got a second opportunity to restrict citizen access to the courts in Lujan v. Defenders of Wildlife, a test case brought by environmentalists to determine whether the Endangered Species Act ought to be enforced against federal agencies overseas. The plaintiffs had two members who said, ‘We have gone overseas and viewed endangered species in their native habitat, and we want to go back.’ But one of them said, ‘I can't go back immediately because there is a civil war going on in this foreign country, but I'd like to go back in the future.’ Writing for the majority of the Court, Justice Scalia said, ‘No, not good enough. You've got to be able to say that your prospective injury is “imminent.” ’ Basically, she needed a plane ticket. Justice Scalia directly rejected the idea that Congress could authorize a generalized right in the public to sue to enforce the nation's laws through a citizen suit provision. To permit Congress to confer standing on “any person” to sue to enforce the laws would, in his view, violate the principle of separation of powers, “enabl[ing] the courts, with the permission of Congress, ‘to assume a position of authority over governmental acts of another and co-equal department.”'
Significantly, Justice Kennedy and Justice Souter, while joining the majority opinion in most respects, concurred separately on this point, noting that Congress must be free, as government programs become more complex, “[T]o define injuries and articulate chains of causation that will give rise to a case or controversy where none existed before....”
Last year the Supreme Court decided the Steel Company case, with Justice Scalia holding for the majority that citizen plaintiffs lack standing to seek civil penalties for wholly past violations. Although the case seemed to raise a fundamental issue regarding the role of citizen enforcement--whether the award of civil penalties payable to the United States can ever remedy the injury an individual plaintiff may have suffered from a defendant's violation of law--the standing issue in Steel Company once again turned on an issue of pleading. The plaintiffs in the Steel Company case challenged the failure of the defendant company to file required environmental reports in a timely fashion, but failed to allege continuing or likely future injury from that failure. The statute at issue in Steel Company, as with most citizen suit provisions, required the plaintiffs to provide notice to the defendant of their intent to sue in order to afford the defendant a chance to come into compliance without the burden of litigation, and the company in fact hastily filed the required reports (although long overdue). The plaintiffs decided to sue in any case, to seek penalties for the past violations. Although the conduct of the company would appear to have raised an obvious risk of future reporting violations, the plaintiffs did not allege the possibility of future injury or seek injunctive relief.
That case went to the Supreme Court, giving Justice Scalia another opportunity to lecture the environmental bar on practice and pleading. His decision for the majority basically said, ‘If you write a complaint that doesn't say that these guys may do this in the future, then deterrence isn't relevant. You didn't ask for injunctive relief, therefore, there is no question here that the only thing you are trying to do is to get penalties for something that is already over. The penalties go to the United State Treasury; they can't help you. And the reason they can't help you is that there is no likelihood of future injury. You didn't allege it in your complaint, and therefore, it is not relevant whether there is a deterrent effect.’
Now we come to Laidlaw. In Laidlaw, as in Steel Company, the defendant company had come into compliance by the time the case was decided by the lower courts. There were two critical differences between Laidlaw and Steel Company, however. First, in Laidlaw the company did not come into compliance until after the plaintiffs filed their complaint. Second, in Laidlaw, unlike in Steel Company, plaintiffs did allege likely recurrence of the violations of Laidlaw's Clean Water Act permit, and sought a remedy against such future injury. The district court declined to enter an injunction against such future violations on equitable grounds, but awarded plaintiffs civil penalties payable to the United States precisely because of the deterrent effect such penalties would have on the defendant. The court of appeals, however, then dismissed the case as moot, noting that the defendant was now in compliance, and holding that civil penalties could not remedy the plaintiffs' claimed future injuries. The issue of the deterrent effect of citizen enforcement was thus squarely before the Court, together with the important procedural issue of whether a defendant's coming into compliance after the commencement of the litigation could moot the case. Because of the importance that the EPA places on citizen suit enforcement, the United States filed an amicus brief before the Court arguing that mere cessation of a defendant's offending conduct does not moot an enforcement action, and that the award of civil penalties clearly would redress the citizens' claim of potential future injury, since it would directly deter future violations.
In an opinion authored by Justice Ginsburg, with Justice Scalia in conspicuous dissent, the Court agreed. The Court found that the deterrent effect of civil penalties on the company was sufficient to demonstrate redressability, and that the cessation of violating conduct by the defendant after the filing of the complaint could not, under settled principles of law, moot the case unless the defendant had met a heavy burden of demonstrating that its permit violations could not reasonably be expected to recur. The Court went beyond these issues to resolve the plaintiffs' standing, holding that the plaintiffs had adequately shown injury to themselves arising from the numerous violations of the defendant's permit.
Although the district court had found that the permit violations had not damaged the environment or the public health, Justice Ginsburg held that the relevant injury was not to the environment, but to the plaintiffs themselves. The Court found that Laidlaw's violations had injured the plaintiffs by leading them to alter their use and enjoyment of the waters into which the company was discharging.
I think Laidlaw thus represents a push-back by the majority of the Court against the increasingly narrow constraints that the Court's standing decisions had placed on citizen plaintiffs. At bottom, I think they got tired of Justice Scalia beating up on these poor environmentalists and telling them how to write their affidavits. I think the majority sensed that the balance had tipped too far against the rights of environmental plaintiffs to secure judicial remedies for violations of the law. And the EPA is greatly heartened that the strong role of citizen plaintiffs in enforcing the environmental laws, and their right to obtain civil penalties to deter future violations, has been reaffirmed by the Court.
But I wonder whether the Court may have gone too far in one respect. As government counsel, I am responsible for defending citizen litigation, brought by the same good citizens that bring suit against Laidlaw and other polluters, against the EPA itself. The plaintiffs tell us that we are not complying with the law, and they have rights to judicial review under these same citizen suit provisions. And from time to time, I will suggest to the Department of Justice that particular plaintiffs may lack standing. I spent ten years representing environmental groups and arguing for their standing before coming to the EPA, so I don't do that lightly. It is something that I look at very carefully. But, there are factual circumstances where we will conclude that plaintiffs who have sued the EPA have not alleged standing with sufficient clarity, or have not provided affidavits that actually show how they are being injured by our actions. And in those cases, if we think it is clear--we will not stretch the law, we are not out here trying to keep citizens out of court--but if we really think they have failed to make a case, we will bring standing up.
And we are, therefore, worried, I think, as all government agencies should be, by the breadth of Justice Ginsburg's holding on injury in fact, where she said the relevant question isn't injury to the environment. The district court had said that even though Laidlaw was violating its permit and discharging mercury, a toxic metal, it wasn't damaging the environment. One could question whether that could possibly be a correct holding, but nonetheless, that is what the district court found based on the record, and that holding was not challenged by plaintiffs on appeal. So Justice Ginsburg says, ‘That is not the problem. The problem is whether the plaintiffs have been injured. And plaintiffs say here that they are concerned about the river. They think it looks or smells polluted. They've stopped swimming in it. They don't want to go recreate on it, all because of their concerns about these violations. Therefore they've shown injury to themselves.’
But what does that mean? How grounded in fact does a plaintiff's concern have to be? You may recall the Supreme Court's decision in Metropolitan Edison v. People Against Nuclear Energy. In that case, citizens sued to stop the nuclear power plant at Three Mile Island from going back on line. The plaintiffs included neighbors living around Three Mile Island, and they said they suffered severe psychological fear of a nuclear accident if the plant went back on line. They wanted to have an EIS written about the effects of restarting the plant. The Supreme Court said that starting up the plant will make no significant change to the physical environment, and psychological fear by itself isn't an environmental impact under NEPA. In Metropolitan Edison, the Court essentially said, ‘Your concern isn't going to be enough. There's got to be some reality there.’
The standing issue is factual: will plaintiffs in fact be injured by the violations of law that they allege? They may well have a genuine fear that they are going to be contaminated by nuclear radiation, but if the evidence clearly shows they're wrong and that they will not actually be injured, then they lack standing. Even if plaintiffs were correct that there had been a procedural violation along the way, they still have to show a real injury. At least, they did before the Laidlaw decision.
Now, however, query whether this decision will be implemented by the lower courts in a way that goes too far in the other direction, that allows plaintiffs to come in and say, ‘You know, even if the experts are right, and even if this isn't something that harms me, you know, I'm still worried.’ This is the battle you are going to see in the lower courts. Courts are going to have to be examining these concerns and saying, ‘Are they really based on reality? Is there really a genuine fear here? Is there risk of real injury? Or is it simply a matter of exaggerated concern?’
That is a difficult issue. Frankly, I think that, at least with citizen suits against polluters, the EPA would be just as happy if the courts didn't have to do it. I think Congress didn't intend for there to be a trial within a trial on this issue. I think Congress intended citizens to basically have the right to bring these citizen suits as a matter of strict liability. If citizens find a company polluting, they can go in and enforce. That is probably consistent, moreover, with the original intentions of the Founders. The modern notion of standing was not developed by the Supreme Court until the early twentieth century. From the historical evidence I've seen, it probably never occurred to the Founding Fathers at the time they wrote Article III in the Constitution. Maybe that's a better policy outcome. Let everybody be a watchdog on these issues.
But that is not what we have to deal with. We have to stay within the confines of judicial doctrine on standing, and citizens are going to have to put on this dog and pony show, and say, ‘Here's the proof that you've violated. Case closed, we can move for summary judgment on your own emission reports.’ And then the defendant is going to say, ‘We still have to have a trial to determine two things. One is, what relief do you get? The extent of any civil penalties awarded should be based in part on how much harm, if any, our violations did to the environment. And the other issue for trial is, who are your members, where do they live, and how are they injured by our actions?’
So the issues related to citizen suit standing are far from resolved. But it will certainly be a lot easier for citizens to go forward with enforcement suits thanks to Laidlaw.
And citizen suits have in fact proven to be a very effective means of implementing the nation's environmental policies. Individuals and environmental groups have brought hundreds of lawsuits that have forced polluting companies to comply with the law. The threat of such actions poses a powerful deterrent to would-be polluters, reminding them that even if they escape enforcement by federal or state authorities, they may be brought before the courts by their neighbors.
Moreover, for the EPA, affording citizens access to the courts to enforce environmental laws, or to seek judicial review of the agency's own actions, is an essential part of the agency's commitment to engaging the public meaningfully in the making and implementing of environmental policy, shown in our rulemakings and other stakeholder processes.
Citizen enforcement of the law raises fundamental questions, however, regarding the proper relationship of the courts, the executive branch charged with administering the nation's laws, the regulated community, and the public. Those questions center on the constitutional doctrine of standing, which determines whether a party has sufficient interest in a legal dispute to present it to a federal court. Over the past decade, a series of Supreme Court and lower court standing decisions have increasingly constricted citizen access to the federal courts to enforce the environmental laws. I think what you are seeing in Laidlaw may be a sea change, a major change in the way the lower courts and the Supreme Court approach these citizen suit enforcement cases. The story is by no means over, however.
The legal debate over the proper limits of citizen standing has been framed in large part by the efforts of one Justice on the Supreme Court, although his views have until recently been shared by a majority on the Court. Justice Antonin Scalia has been on a crusade for almost twenty years to reformulate the constitutional role of citizens in the government, and in particular their role in the federal courts. In his view of separation of powers, laid out in a law review article that he wrote before he was appointed to the Supreme Court bench, the courts should be open to people who are being regulated, like Laidlaw. Those parties should be allowed to go to court to challenge the effort of the EPA or the state to regulate them because people should have redress against the government when the government acts improperly in a manner that directly affects their interests. But the courts should not be open to citizens to assert ‘generalized grievances' regarding the enforcement of the nation's laws. Citizens have an opportunity in a democratic society to vote for legislators, and to vote for a president, and to try to get social policy established through those means; they should not invoke the judiciary to direct the executive branch's implementation of the law.
This view, carried to its extreme, would effectively write the citizen suit provisions out of our statutes. It would negate the policy that Congress has clearly favored, of providing a strong enforcement role for citizens to ensure that our laws are faithfully carried out, and would inevitably lead to less effective enforcement of those laws. Justice Scalia acknowledges that impact, but is untroubled. He wrote in his article, “Does what I have said [about how citizens should not be suing to enforce the laws] mean that, so long as no minority interests are affected, ‘important legislative purposes, heralded in the halls of Congress, [can be] lost or misdirected in the vast halls of the federal bureaucracy?” ’ And he answered, “Of course it does--and a good thing, too.” Citing the Sunday blue laws, Justice Scalia concluded that executive branch disregard of congressional mandates can be a positive thing: “The ability to lose or misdirect laws can be said to be one of the prime engines of social change, and the prohibition against such carelessness is (believe it or not) profoundly conservative.”
In the context of his article, criticizing what he calls the federal judiciary's “long love affair with environmental litigation,” Justice Scalia thus drew an explicit link between Sunday blue laws and the nation's environmental laws, implying that we might all be better off if everybody just pretended they weren't there. Where the executive branch and the Congress agree to look the other way regarding a failure to enforce such laws, citizens should not have any redress beyond the electoral process. That's his view of what your role is. You can vote. That's it.
Justice Scalia's perspective raises fundamental issues regarding our constitutional framework, I think, and that is what is really going on in this case--a major retrenchment, a reaction by the majority of the Court against Justice Scalia's very narrow view of the role of citizens in our constitutional framework. There is a place in Justice Scalia's dissent in Laidlaw where he suggests that you shouldn't really need civil penalties enforced through citizen suits to deter a polluter's conduct because the environmental laws are widely--and he uses the word, “notoriously”--enforced. “Notoriously” is an oddly charged word for a Justice of the Supreme Court to use to refer to the actions of my agency and the environmental agency of Virginia, and of all the other states, in carrying out the public trust to protect all of us from harm to our health and harm to our public welfare. That semantically-colored word conveys a real sense of hostility toward our environmental laws, which Justice Scalia had earlier compared to Sunday blue laws.
Justice Scalia put his vision into practice on the Supreme Court, writing every major environmental standing decision for the Court for a period of ten years. And in every one, he said, ‘Environmentalists, you don't have standing.’ Those decisions were essentially lectures to the environmental bar on practice and pleading, but always directed to discourage broad challenges to the government's actions implementing the environmental laws.
In the original blockbuster case, Lujan v. National Wildlife Federation, the problem was that the plaintiffs had filed an affidavit claiming that public land policies that they thought were illegal would promote mining of the West in areas where they liked to hike.10 They said that they used areas “in the vicinity of” the lands that had been opened to mining and other kinds of resource extraction by the Reagan administration.
Scalia wrote a Supreme Court opinion to say that “in the vicinity of” isn't the right wording for a standing affidavit; you've got to say you've used the lands in question. Those of you that have been out West and have seen the majestic scenery know that a major mine or an oil and gas development field can affect, literally, a view-shed the size of three hundred square miles. You can see such development for twenty miles, and if it's in a valley, it can be seen from every mountain peak around. It is not, therefore, particularly unlikely that the view of people recreating in lands “in the vicinity of” such a huge industrial complex would be affected. But Justice Scalia believed that the environmentalists had to spell out their particular injury with great care in order to avoid the prospect of citizens simply suing to enforce the laws. He buttressed that point with a sweeping discussion of ripeness, telling the environmental community in dicta that it could not seek wholesale, programmatic reform of government policies through the courts, but must limit itself to challenging discrete actions taken by federal agencies on a case-by-case basis.
Justice Scalia got a second opportunity to restrict citizen access to the courts in Lujan v. Defenders of Wildlife, a test case brought by environmentalists to determine whether the Endangered Species Act ought to be enforced against federal agencies overseas. The plaintiffs had two members who said, ‘We have gone overseas and viewed endangered species in their native habitat, and we want to go back.’ But one of them said, ‘I can't go back immediately because there is a civil war going on in this foreign country, but I'd like to go back in the future.’ Writing for the majority of the Court, Justice Scalia said, ‘No, not good enough. You've got to be able to say that your prospective injury is “imminent.” ’ Basically, she needed a plane ticket. Justice Scalia directly rejected the idea that Congress could authorize a generalized right in the public to sue to enforce the nation's laws through a citizen suit provision. To permit Congress to confer standing on “any person” to sue to enforce the laws would, in his view, violate the principle of separation of powers, “enabl[ing] the courts, with the permission of Congress, ‘to assume a position of authority over governmental acts of another and co-equal department.”'
Significantly, Justice Kennedy and Justice Souter, while joining the majority opinion in most respects, concurred separately on this point, noting that Congress must be free, as government programs become more complex, “[T]o define injuries and articulate chains of causation that will give rise to a case or controversy where none existed before....”
Last year the Supreme Court decided the Steel Company case, with Justice Scalia holding for the majority that citizen plaintiffs lack standing to seek civil penalties for wholly past violations. Although the case seemed to raise a fundamental issue regarding the role of citizen enforcement--whether the award of civil penalties payable to the United States can ever remedy the injury an individual plaintiff may have suffered from a defendant's violation of law--the standing issue in Steel Company once again turned on an issue of pleading. The plaintiffs in the Steel Company case challenged the failure of the defendant company to file required environmental reports in a timely fashion, but failed to allege continuing or likely future injury from that failure. The statute at issue in Steel Company, as with most citizen suit provisions, required the plaintiffs to provide notice to the defendant of their intent to sue in order to afford the defendant a chance to come into compliance without the burden of litigation, and the company in fact hastily filed the required reports (although long overdue). The plaintiffs decided to sue in any case, to seek penalties for the past violations. Although the conduct of the company would appear to have raised an obvious risk of future reporting violations, the plaintiffs did not allege the possibility of future injury or seek injunctive relief.
That case went to the Supreme Court, giving Justice Scalia another opportunity to lecture the environmental bar on practice and pleading. His decision for the majority basically said, ‘If you write a complaint that doesn't say that these guys may do this in the future, then deterrence isn't relevant. You didn't ask for injunctive relief, therefore, there is no question here that the only thing you are trying to do is to get penalties for something that is already over. The penalties go to the United State Treasury; they can't help you. And the reason they can't help you is that there is no likelihood of future injury. You didn't allege it in your complaint, and therefore, it is not relevant whether there is a deterrent effect.’
Now we come to Laidlaw. In Laidlaw, as in Steel Company, the defendant company had come into compliance by the time the case was decided by the lower courts. There were two critical differences between Laidlaw and Steel Company, however. First, in Laidlaw the company did not come into compliance until after the plaintiffs filed their complaint. Second, in Laidlaw, unlike in Steel Company, plaintiffs did allege likely recurrence of the violations of Laidlaw's Clean Water Act permit, and sought a remedy against such future injury. The district court declined to enter an injunction against such future violations on equitable grounds, but awarded plaintiffs civil penalties payable to the United States precisely because of the deterrent effect such penalties would have on the defendant. The court of appeals, however, then dismissed the case as moot, noting that the defendant was now in compliance, and holding that civil penalties could not remedy the plaintiffs' claimed future injuries. The issue of the deterrent effect of citizen enforcement was thus squarely before the Court, together with the important procedural issue of whether a defendant's coming into compliance after the commencement of the litigation could moot the case. Because of the importance that the EPA places on citizen suit enforcement, the United States filed an amicus brief before the Court arguing that mere cessation of a defendant's offending conduct does not moot an enforcement action, and that the award of civil penalties clearly would redress the citizens' claim of potential future injury, since it would directly deter future violations.
In an opinion authored by Justice Ginsburg, with Justice Scalia in conspicuous dissent, the Court agreed. The Court found that the deterrent effect of civil penalties on the company was sufficient to demonstrate redressability, and that the cessation of violating conduct by the defendant after the filing of the complaint could not, under settled principles of law, moot the case unless the defendant had met a heavy burden of demonstrating that its permit violations could not reasonably be expected to recur. The Court went beyond these issues to resolve the plaintiffs' standing, holding that the plaintiffs had adequately shown injury to themselves arising from the numerous violations of the defendant's permit.
Although the district court had found that the permit violations had not damaged the environment or the public health, Justice Ginsburg held that the relevant injury was not to the environment, but to the plaintiffs themselves. The Court found that Laidlaw's violations had injured the plaintiffs by leading them to alter their use and enjoyment of the waters into which the company was discharging.
I think Laidlaw thus represents a push-back by the majority of the Court against the increasingly narrow constraints that the Court's standing decisions had placed on citizen plaintiffs. At bottom, I think they got tired of Justice Scalia beating up on these poor environmentalists and telling them how to write their affidavits. I think the majority sensed that the balance had tipped too far against the rights of environmental plaintiffs to secure judicial remedies for violations of the law. And the EPA is greatly heartened that the strong role of citizen plaintiffs in enforcing the environmental laws, and their right to obtain civil penalties to deter future violations, has been reaffirmed by the Court.
But I wonder whether the Court may have gone too far in one respect. As government counsel, I am responsible for defending citizen litigation, brought by the same good citizens that bring suit against Laidlaw and other polluters, against the EPA itself. The plaintiffs tell us that we are not complying with the law, and they have rights to judicial review under these same citizen suit provisions. And from time to time, I will suggest to the Department of Justice that particular plaintiffs may lack standing. I spent ten years representing environmental groups and arguing for their standing before coming to the EPA, so I don't do that lightly. It is something that I look at very carefully. But, there are factual circumstances where we will conclude that plaintiffs who have sued the EPA have not alleged standing with sufficient clarity, or have not provided affidavits that actually show how they are being injured by our actions. And in those cases, if we think it is clear--we will not stretch the law, we are not out here trying to keep citizens out of court--but if we really think they have failed to make a case, we will bring standing up.
And we are, therefore, worried, I think, as all government agencies should be, by the breadth of Justice Ginsburg's holding on injury in fact, where she said the relevant question isn't injury to the environment. The district court had said that even though Laidlaw was violating its permit and discharging mercury, a toxic metal, it wasn't damaging the environment. One could question whether that could possibly be a correct holding, but nonetheless, that is what the district court found based on the record, and that holding was not challenged by plaintiffs on appeal. So Justice Ginsburg says, ‘That is not the problem. The problem is whether the plaintiffs have been injured. And plaintiffs say here that they are concerned about the river. They think it looks or smells polluted. They've stopped swimming in it. They don't want to go recreate on it, all because of their concerns about these violations. Therefore they've shown injury to themselves.’
But what does that mean? How grounded in fact does a plaintiff's concern have to be? You may recall the Supreme Court's decision in Metropolitan Edison v. People Against Nuclear Energy. In that case, citizens sued to stop the nuclear power plant at Three Mile Island from going back on line. The plaintiffs included neighbors living around Three Mile Island, and they said they suffered severe psychological fear of a nuclear accident if the plant went back on line. They wanted to have an EIS written about the effects of restarting the plant. The Supreme Court said that starting up the plant will make no significant change to the physical environment, and psychological fear by itself isn't an environmental impact under NEPA. In Metropolitan Edison, the Court essentially said, ‘Your concern isn't going to be enough. There's got to be some reality there.’
The standing issue is factual: will plaintiffs in fact be injured by the violations of law that they allege? They may well have a genuine fear that they are going to be contaminated by nuclear radiation, but if the evidence clearly shows they're wrong and that they will not actually be injured, then they lack standing. Even if plaintiffs were correct that there had been a procedural violation along the way, they still have to show a real injury. At least, they did before the Laidlaw decision.
Now, however, query whether this decision will be implemented by the lower courts in a way that goes too far in the other direction, that allows plaintiffs to come in and say, ‘You know, even if the experts are right, and even if this isn't something that harms me, you know, I'm still worried.’ This is the battle you are going to see in the lower courts. Courts are going to have to be examining these concerns and saying, ‘Are they really based on reality? Is there really a genuine fear here? Is there risk of real injury? Or is it simply a matter of exaggerated concern?’
That is a difficult issue. Frankly, I think that, at least with citizen suits against polluters, the EPA would be just as happy if the courts didn't have to do it. I think Congress didn't intend for there to be a trial within a trial on this issue. I think Congress intended citizens to basically have the right to bring these citizen suits as a matter of strict liability. If citizens find a company polluting, they can go in and enforce. That is probably consistent, moreover, with the original intentions of the Founders. The modern notion of standing was not developed by the Supreme Court until the early twentieth century. From the historical evidence I've seen, it probably never occurred to the Founding Fathers at the time they wrote Article III in the Constitution. Maybe that's a better policy outcome. Let everybody be a watchdog on these issues.
But that is not what we have to deal with. We have to stay within the confines of judicial doctrine on standing, and citizens are going to have to put on this dog and pony show, and say, ‘Here's the proof that you've violated. Case closed, we can move for summary judgment on your own emission reports.’ And then the defendant is going to say, ‘We still have to have a trial to determine two things. One is, what relief do you get? The extent of any civil penalties awarded should be based in part on how much harm, if any, our violations did to the environment. And the other issue for trial is, who are your members, where do they live, and how are they injured by our actions?’
So the issues related to citizen suit standing are far from resolved. But it will certainly be a lot easier for citizens to go forward with enforcement suits thanks to Laidlaw.