Environmental Citizen Suits: Standing and Mootness After Laidlaw Caplin Pavilion, University of Virginia School of Law, March 28, 2000
By Stuart H. Newberger
Good afternoon, everybody. Well, there's the Friends of the Earth--that makes me ‘Something Else’ of the Earth, I'm not quite sure what that is. Or citizens' group, as compared to non-citizens' group--I haven't quite sorted that one out either.
But, unlike Carolyn Pravlik and her firm, who were involved with this case for what, seven or eight years since 1992, living through two trials, Fourth Circuit proceedings, and then the Supreme Court, I came to it with a much fresher approach last spring and summer when I was asked by this company who I do a lot of constitutional litigation for, whether I'd help out with the Supreme Court case where certiorari had been granted. Actually, at that point even the Solicitor General for the EPA and a bunch of states had submitted amicus briefs in favor of the petition of the plaintiffs. So we came at it kind of like, oh, well that's nice. Let's get involved and see what has gone on here.
I like Professor Walker's phrase, a case-within-a-case, because that is really all that I was involved in--the case within a case. Because for years I had heard about this matter going on in South Carolina and it wasn't that big of a case in terms of the dollars at stake, or the issues at stake - it was a case that was one of many cases on a very big docket for this company. And lo and behold, we are now in the Supreme Court with these incredibly grand notions of Article III standing and mootness: the case-within-a-case. The struggle that is still going on in the Supreme Court is that many of the justices have very different views on what role the federal courts should play in our society.
And that is really what the case was focused on. It really wasn't about the facts of this case. You'll find that as you practice, the Court really doesn't care about the facts of too many cases and doesn't care about the lawyers, or the parties, or most anything else about it. They care about these great principles because they are the guardians of the Constitution and the gatekeepers for the Article III courts.
I think that going into it, the first thing you did was read the Fourth Circuit's opinion2 and the Supreme Court's decision a year earlier in the Steel Company case. And you thought, okay, maybe the Fourth Circuit didn't do it quite right, and they were using mootness when they meant standing, and they were sort of putting a square peg in a round hole, but we understand they were relying on the Steel Company case. The Steel Company case was very clear, and I think it was a unanimous decision--it wasn't a close case--where they found there was no Article III standing, and that was just a year and a half earlier. That was a case, a citizen suit, not with the same environmental statute as in Laidlaw but with a related statute, and you said, ‘Boy, this looks pretty close here.’
If they don't have standing in Steel Company, and Justice Breyer is going along with the majority, that must mean there is a real concern in the Supreme Court's mind, that maybe all of these citizen suits have an Article III problem, particularly when you are talking about standing, and in particular when you break it down into the elements of injury, causation and redressability. Because after all, even if someone who lives near a lake or fishes in a lake thinks or perceives that there is a mercury level in a permit that is being exceeded, but a trial judge finds there is no harm to the environment, then, what's the injury?
Forget about right or wrong, or whether you agree with the result. You have to ask yourself, what is the injury that someone can go into a federal court, which is a court of limited jurisdiction; Article III, of course, says that. Where do you say, ‘I have been injured,’ after a trial judge rules, after a big trial with experts and all that, that there is no injury to the environment? It makes you wonder, where did the Supreme Court come from in this decision? Because a year and a half earlier the Court had assumed injury to throw out on Article III grounds the Steel Company case and said, ‘Well, even if we assume there was some injury, which we don't think there was, but even if, there is no way that paying civil penalties to the U.S. Treasury is in any way going to redress their assumed injury.’
And that is exactly the case here. The $400,000-plus civil penalty which was imposed by the trial judge was based on a finding that there was no harm to the environment. So it is sort of a strict liability standard, although that is not what it is called. Essentially, if you violate the permit, you are going to pay some kind of penalty, but the penalty doesn't go to the plaintiff; the penalty goes to Uncle Sam. And the only thing the plaintiff can possibly get is attorneys' fees. Of course that doesn't go to the plaintiff, that goes to the plaintiff's lawyers.
Now, God bless them, everyone wants attorneys to get paid. When you all get out of school here, I don't care where you are working, the lawyers have to get paid. That's just one of the rules they've got to teach you in law school. And I think whether or not the plaintiffs ever do recover attorneys' fees in this case, that is all that they can even point to as a result for purposes of getting redressability--something that they can look at and say, ‘I got something.’ As opposed to, ‘I got something for the government,’ or ‘I got something for the Treasury,’ ‘I got something to make me feel better.’ And I don't think the Supreme Court has been intellectually honest in trying to reconcile what it did in the Steel Company case and what it did in the Laidlaw case.
Now, it is the Court, it has last word, and we have to live with it. But that doesn't mean it makes sense. And it wouldn't be the first time that the Supreme Court has not reconciled its own decisions that have come out a year and a half or two years apart. The lesson there for those of you who are going off to practice next year, or to clerk for judges, or whatever, is that when you read a decision from the Supreme Court, it is not really the law, because the Court can always change it. That is really the bottom line here. And the Court does it every year.
Now in terms of the specifics of what this is about, I do think that Carolyn Pravilk is right. I think that this wasn't a sea change type of decision. The Court didn't announce a new rule of law, although there are a lot of inconsistencies between this case and the Steel Company case-- inconsistencies the Court didn't even attempt to explain, by the way. Justice Ginsburg is a very bright judge, a very, very bright woman, and a former academic. I used to practice in front of her a lot in the D.C. Circuit. This is a very smart person who is purposely avoiding trying to reconcile the Steel Company case with the Laidlaw case, because she realizes they are not reconcilable. So, ‘We are the Supreme Court, so we'll just decide differently and let the chips fall where they may.’
I do think, again I agree with Carolyn, this was pulling back on the reins on the Supreme Court in the last--oh, we'll call it the Scalia era, not the Rehnquist era, because Justice Scalia has really been at the forefront of trying to limit as much as possible Article III's application to all kinds of cases, particularly citizen suits and environmental suits. So clearly, this was a slap at Scalia's charge, if you will, to continue that march, a march that as recently as Steel Company everyone assumed--just read the cases--was going to continue.
But will it have a lasting effect or is it a fluke? That I'm not sure; I don't know. I think so much of what happens in the Supreme Court is personality-driven and politically-driven. I don't mean that in a partisan sense of Democrat versus Republican, but sort of gut reactions that the justices have to a case. Their guts--Justice Ginsburg's gut told her that the Fourth Circuit and Judge Billy Wilkins got it wrong, and that they were going to fix it.
And the Fourth Circuit purposely refused to address the attorneys' fee issue, just so you know how this came up. The trial court had issued the civil penalty but purposely didn't decide the attorneys' fee application. The trial court said, ‘I'll wait until the Fourth Circuit gets done with all the appeals in the case, and all these other non-constitutional issues we won't bore you with.’ So, the Fourth Circuit said, ‘Well, no, Steel Company just came out, and the case is moot because you lack standing,’ or whatever Judge Billy Wilkins was really saying. And by the way, as Judge Wilkins threw into a gratuitous footnote, ‘You can't even get attorney's fees, plaintiff, because you never could bring this case to begin with.’
I think that's the reason the Supreme Court really took this case. The Court was concerned with a gratuitous footnote; that is what got their attention. It really was not necessary to decide the mootness and standing issue at all--I agree with Carolyn Pravlik on that. Because so much of public policy litigation is driven by fee-shifting attorneys' fee statutes, the Court didn't want to let the Fourth Circuit upset the apple cart there. And I think politically, having very little to do with Article III, that is what really got the Supreme Court's attention, or at least, four justices of the Court when they granted certiorari to take the case.
But then of course in the opinion, the Court absolutely refused to address the recovery of attorneys' fees at all, and said it was just not going to get into that, which was fine, because we had suggested that the Court not get into it. Even the Solicitor General had suggested that the Court not get into the attorneys' fees. So again, interestingly, that might have gotten the Justices' attention to get the case up there, but then they completely dodge the issue when it comes out in the opinion.
So I know what the Laidlaw ruling is about standing--the plaintiffs do have standing to get into federal court. But I don't know if there is now a rule that we can all embrace. If you read, you'll notice that Justice Kennedy purposely went out of his way to say, ‘I really do think there is a problem with private citizens suing to get money for the Treasury, but I just don't think this is the right case to get into it because it hasn't been briefed and there isn't a record.’ So Justice Kennedy clearly thinks there is a problem here. And Scalia and Thomas think there's a problem. And Chief Justice Rehnquist usually goes with them when the record gets that developed. So I think we are still going to wait and see.
There is a case pending up there that was argued, I think in December. It was a case against the State of Vermont, a qui tam whistleblower case--the Article III issues have also been raised, and it also has the separation of powers issues, whether private citizens can get money that goes to the Treasury--that sort of thing. Look for that decision, which should come out in the next six weeks or the next month. That's going to answer a lot of the questions that we can't answer yet. And it'll get folded into the final exam, I understand, so you better read it--particularly for the upper level classes--Federal Courts, right? This is fine, you can go on and on in your essay about Laidlaw, but look out for the Vermont case, because it is going to be on Professor Walker's exam.
The most important thing, in terms of what happens in the future in these kinds of cases, is that while the Article III standing issue has been “resolved” for purposes of this case, I think that what you are going to see on a practical level is that when people go to court on a Clean Water Act suit, for instance--and there are a lot of these cases all around the country against all kinds of industry and against states--you are going to see a lot of litigation about whether the case has become moot almost immediately after it was filed.
Because what you have here--split the screen if you will -- just think of your little computer. On the left side you have standing; that is the first threshold defense. And on the right side you've got mootness, which sort of assumes that they've got standing but something's happened, which means the case is over. They may--because of perceived harm to something, their ability to fly fish--they may be allowed to walk into the door of the federal courthouse, file a complaint, and withstand a motion to dismiss based on lack of Article III standing. But, the perceived problem may have ended before they got there, which means the Steel Company case still applies. They lack Article III standing if the problem really has ceased before the complaint was filed.
So Laidlaw doesn't say that everyone's got standing to go to court for perceived harm--only if the harm was ongoing when the complaint was filed. That is a critical distinction. There is going to be discovery and trials about that sort of thing. So that is one thing to remember. They still may not have Article III standing if the problem they are complaining of really ceased before the complaint was filed.
The second point is that even if the conduct was ongoing--some technical violation of the permit, whatever it is--they passed the Steel Company test and can be in federal court and have standing. It may be that, as happened in Laidlaw, that years of pre-litigation work by the company with the state enforcement agency has now cured the problem.
This case was about an equipment problem. This was not polluters opening up the sewage pipe and dumping in the middle of the night. This was a highly technical violation of a Clean Water Act permit, and the mercury levels, and the discharges and all that sort of thing. While the discharges did exceed the permit in mercury levels after the complaint was filed, the trial judge found that Laidlaw was in substantial compliance within a couple of months of the complaint being filed. And yet the plaintiffs and the defendant, and the trial judge in South Carolina went through seven years, two trials, untold expert discovery. I mean, it is very expensive all the way around, for the court as well as the parties. And yet, the perceived problem had been substantially cured shortly after the complaint was filed.
That is one of the two mootness issues that we raised in the Court and is now going to be addressed by the trial judge on remand. So, mootness issue number one is, was the case moot when the defendant came into substantial compliance shortly after the complaint was filed? If it was, then the bottom line is, why move on with it, if it was moot that early? The second mootness issue is, even if it wasn't moot then, was it moot later when the plant was closed, and that portion of the permit was no longer being used? Literally the discharges ceased, and there were no violations either.
Now that is the bigger question that Carolyn Pravlik pointed to and talked about a little bit, and I don't know the answer to that. There is going to be some discovery in the trial court, just to address this issue, the mootness issues. Whatever the trial judge does will go back up to the Fourth Circuit, and I'm sure Judge Billy Wilkins will get his hands on this case again, and who knows, maybe the Supreme Court will get its hands on the case again. The Court obviously is familiar with it.
It just shows you though, that a lot of these cases, even in today's contexts, are not black and white. A lot of gray areas, and the shifting of that, and the perceptions of the justices and the judges in the lower courts will affect, not just what the rules are, but the practical application of it. And I think there is a lot left to be seen in this case.
But, unlike Carolyn Pravlik and her firm, who were involved with this case for what, seven or eight years since 1992, living through two trials, Fourth Circuit proceedings, and then the Supreme Court, I came to it with a much fresher approach last spring and summer when I was asked by this company who I do a lot of constitutional litigation for, whether I'd help out with the Supreme Court case where certiorari had been granted. Actually, at that point even the Solicitor General for the EPA and a bunch of states had submitted amicus briefs in favor of the petition of the plaintiffs. So we came at it kind of like, oh, well that's nice. Let's get involved and see what has gone on here.
I like Professor Walker's phrase, a case-within-a-case, because that is really all that I was involved in--the case within a case. Because for years I had heard about this matter going on in South Carolina and it wasn't that big of a case in terms of the dollars at stake, or the issues at stake - it was a case that was one of many cases on a very big docket for this company. And lo and behold, we are now in the Supreme Court with these incredibly grand notions of Article III standing and mootness: the case-within-a-case. The struggle that is still going on in the Supreme Court is that many of the justices have very different views on what role the federal courts should play in our society.
And that is really what the case was focused on. It really wasn't about the facts of this case. You'll find that as you practice, the Court really doesn't care about the facts of too many cases and doesn't care about the lawyers, or the parties, or most anything else about it. They care about these great principles because they are the guardians of the Constitution and the gatekeepers for the Article III courts.
I think that going into it, the first thing you did was read the Fourth Circuit's opinion2 and the Supreme Court's decision a year earlier in the Steel Company case. And you thought, okay, maybe the Fourth Circuit didn't do it quite right, and they were using mootness when they meant standing, and they were sort of putting a square peg in a round hole, but we understand they were relying on the Steel Company case. The Steel Company case was very clear, and I think it was a unanimous decision--it wasn't a close case--where they found there was no Article III standing, and that was just a year and a half earlier. That was a case, a citizen suit, not with the same environmental statute as in Laidlaw but with a related statute, and you said, ‘Boy, this looks pretty close here.’
If they don't have standing in Steel Company, and Justice Breyer is going along with the majority, that must mean there is a real concern in the Supreme Court's mind, that maybe all of these citizen suits have an Article III problem, particularly when you are talking about standing, and in particular when you break it down into the elements of injury, causation and redressability. Because after all, even if someone who lives near a lake or fishes in a lake thinks or perceives that there is a mercury level in a permit that is being exceeded, but a trial judge finds there is no harm to the environment, then, what's the injury?
Forget about right or wrong, or whether you agree with the result. You have to ask yourself, what is the injury that someone can go into a federal court, which is a court of limited jurisdiction; Article III, of course, says that. Where do you say, ‘I have been injured,’ after a trial judge rules, after a big trial with experts and all that, that there is no injury to the environment? It makes you wonder, where did the Supreme Court come from in this decision? Because a year and a half earlier the Court had assumed injury to throw out on Article III grounds the Steel Company case and said, ‘Well, even if we assume there was some injury, which we don't think there was, but even if, there is no way that paying civil penalties to the U.S. Treasury is in any way going to redress their assumed injury.’
And that is exactly the case here. The $400,000-plus civil penalty which was imposed by the trial judge was based on a finding that there was no harm to the environment. So it is sort of a strict liability standard, although that is not what it is called. Essentially, if you violate the permit, you are going to pay some kind of penalty, but the penalty doesn't go to the plaintiff; the penalty goes to Uncle Sam. And the only thing the plaintiff can possibly get is attorneys' fees. Of course that doesn't go to the plaintiff, that goes to the plaintiff's lawyers.
Now, God bless them, everyone wants attorneys to get paid. When you all get out of school here, I don't care where you are working, the lawyers have to get paid. That's just one of the rules they've got to teach you in law school. And I think whether or not the plaintiffs ever do recover attorneys' fees in this case, that is all that they can even point to as a result for purposes of getting redressability--something that they can look at and say, ‘I got something.’ As opposed to, ‘I got something for the government,’ or ‘I got something for the Treasury,’ ‘I got something to make me feel better.’ And I don't think the Supreme Court has been intellectually honest in trying to reconcile what it did in the Steel Company case and what it did in the Laidlaw case.
Now, it is the Court, it has last word, and we have to live with it. But that doesn't mean it makes sense. And it wouldn't be the first time that the Supreme Court has not reconciled its own decisions that have come out a year and a half or two years apart. The lesson there for those of you who are going off to practice next year, or to clerk for judges, or whatever, is that when you read a decision from the Supreme Court, it is not really the law, because the Court can always change it. That is really the bottom line here. And the Court does it every year.
Now in terms of the specifics of what this is about, I do think that Carolyn Pravilk is right. I think that this wasn't a sea change type of decision. The Court didn't announce a new rule of law, although there are a lot of inconsistencies between this case and the Steel Company case-- inconsistencies the Court didn't even attempt to explain, by the way. Justice Ginsburg is a very bright judge, a very, very bright woman, and a former academic. I used to practice in front of her a lot in the D.C. Circuit. This is a very smart person who is purposely avoiding trying to reconcile the Steel Company case with the Laidlaw case, because she realizes they are not reconcilable. So, ‘We are the Supreme Court, so we'll just decide differently and let the chips fall where they may.’
I do think, again I agree with Carolyn, this was pulling back on the reins on the Supreme Court in the last--oh, we'll call it the Scalia era, not the Rehnquist era, because Justice Scalia has really been at the forefront of trying to limit as much as possible Article III's application to all kinds of cases, particularly citizen suits and environmental suits. So clearly, this was a slap at Scalia's charge, if you will, to continue that march, a march that as recently as Steel Company everyone assumed--just read the cases--was going to continue.
But will it have a lasting effect or is it a fluke? That I'm not sure; I don't know. I think so much of what happens in the Supreme Court is personality-driven and politically-driven. I don't mean that in a partisan sense of Democrat versus Republican, but sort of gut reactions that the justices have to a case. Their guts--Justice Ginsburg's gut told her that the Fourth Circuit and Judge Billy Wilkins got it wrong, and that they were going to fix it.
And the Fourth Circuit purposely refused to address the attorneys' fee issue, just so you know how this came up. The trial court had issued the civil penalty but purposely didn't decide the attorneys' fee application. The trial court said, ‘I'll wait until the Fourth Circuit gets done with all the appeals in the case, and all these other non-constitutional issues we won't bore you with.’ So, the Fourth Circuit said, ‘Well, no, Steel Company just came out, and the case is moot because you lack standing,’ or whatever Judge Billy Wilkins was really saying. And by the way, as Judge Wilkins threw into a gratuitous footnote, ‘You can't even get attorney's fees, plaintiff, because you never could bring this case to begin with.’
I think that's the reason the Supreme Court really took this case. The Court was concerned with a gratuitous footnote; that is what got their attention. It really was not necessary to decide the mootness and standing issue at all--I agree with Carolyn Pravlik on that. Because so much of public policy litigation is driven by fee-shifting attorneys' fee statutes, the Court didn't want to let the Fourth Circuit upset the apple cart there. And I think politically, having very little to do with Article III, that is what really got the Supreme Court's attention, or at least, four justices of the Court when they granted certiorari to take the case.
But then of course in the opinion, the Court absolutely refused to address the recovery of attorneys' fees at all, and said it was just not going to get into that, which was fine, because we had suggested that the Court not get into it. Even the Solicitor General had suggested that the Court not get into the attorneys' fees. So again, interestingly, that might have gotten the Justices' attention to get the case up there, but then they completely dodge the issue when it comes out in the opinion.
So I know what the Laidlaw ruling is about standing--the plaintiffs do have standing to get into federal court. But I don't know if there is now a rule that we can all embrace. If you read, you'll notice that Justice Kennedy purposely went out of his way to say, ‘I really do think there is a problem with private citizens suing to get money for the Treasury, but I just don't think this is the right case to get into it because it hasn't been briefed and there isn't a record.’ So Justice Kennedy clearly thinks there is a problem here. And Scalia and Thomas think there's a problem. And Chief Justice Rehnquist usually goes with them when the record gets that developed. So I think we are still going to wait and see.
There is a case pending up there that was argued, I think in December. It was a case against the State of Vermont, a qui tam whistleblower case--the Article III issues have also been raised, and it also has the separation of powers issues, whether private citizens can get money that goes to the Treasury--that sort of thing. Look for that decision, which should come out in the next six weeks or the next month. That's going to answer a lot of the questions that we can't answer yet. And it'll get folded into the final exam, I understand, so you better read it--particularly for the upper level classes--Federal Courts, right? This is fine, you can go on and on in your essay about Laidlaw, but look out for the Vermont case, because it is going to be on Professor Walker's exam.
The most important thing, in terms of what happens in the future in these kinds of cases, is that while the Article III standing issue has been “resolved” for purposes of this case, I think that what you are going to see on a practical level is that when people go to court on a Clean Water Act suit, for instance--and there are a lot of these cases all around the country against all kinds of industry and against states--you are going to see a lot of litigation about whether the case has become moot almost immediately after it was filed.
Because what you have here--split the screen if you will -- just think of your little computer. On the left side you have standing; that is the first threshold defense. And on the right side you've got mootness, which sort of assumes that they've got standing but something's happened, which means the case is over. They may--because of perceived harm to something, their ability to fly fish--they may be allowed to walk into the door of the federal courthouse, file a complaint, and withstand a motion to dismiss based on lack of Article III standing. But, the perceived problem may have ended before they got there, which means the Steel Company case still applies. They lack Article III standing if the problem really has ceased before the complaint was filed.
So Laidlaw doesn't say that everyone's got standing to go to court for perceived harm--only if the harm was ongoing when the complaint was filed. That is a critical distinction. There is going to be discovery and trials about that sort of thing. So that is one thing to remember. They still may not have Article III standing if the problem they are complaining of really ceased before the complaint was filed.
The second point is that even if the conduct was ongoing--some technical violation of the permit, whatever it is--they passed the Steel Company test and can be in federal court and have standing. It may be that, as happened in Laidlaw, that years of pre-litigation work by the company with the state enforcement agency has now cured the problem.
This case was about an equipment problem. This was not polluters opening up the sewage pipe and dumping in the middle of the night. This was a highly technical violation of a Clean Water Act permit, and the mercury levels, and the discharges and all that sort of thing. While the discharges did exceed the permit in mercury levels after the complaint was filed, the trial judge found that Laidlaw was in substantial compliance within a couple of months of the complaint being filed. And yet the plaintiffs and the defendant, and the trial judge in South Carolina went through seven years, two trials, untold expert discovery. I mean, it is very expensive all the way around, for the court as well as the parties. And yet, the perceived problem had been substantially cured shortly after the complaint was filed.
That is one of the two mootness issues that we raised in the Court and is now going to be addressed by the trial judge on remand. So, mootness issue number one is, was the case moot when the defendant came into substantial compliance shortly after the complaint was filed? If it was, then the bottom line is, why move on with it, if it was moot that early? The second mootness issue is, even if it wasn't moot then, was it moot later when the plant was closed, and that portion of the permit was no longer being used? Literally the discharges ceased, and there were no violations either.
Now that is the bigger question that Carolyn Pravlik pointed to and talked about a little bit, and I don't know the answer to that. There is going to be some discovery in the trial court, just to address this issue, the mootness issues. Whatever the trial judge does will go back up to the Fourth Circuit, and I'm sure Judge Billy Wilkins will get his hands on this case again, and who knows, maybe the Supreme Court will get its hands on the case again. The Court obviously is familiar with it.
It just shows you though, that a lot of these cases, even in today's contexts, are not black and white. A lot of gray areas, and the shifting of that, and the perceptions of the justices and the judges in the lower courts will affect, not just what the rules are, but the practical application of it. And I think there is a lot left to be seen in this case.