Environmental Citizen Suits: Standing and Mootness After Laidlaw Caplin Pavilion, University of Virginia School of Law, March 28, 2000
By Carolyn Pravlik
I think we just had the Laidlaw decision described, as the Fourth Circuit has described it in a case I'll talk about in a minute, as a sea change. Actually it was in a concurring opinion that Laidlaw was described as a sea change on standing. I don't think that it is a sea change on standing, and I think that in terms of the law, as opposed to the application of that law, the Supreme Court maintained its three-prong test for standing, but it changed how it applied that test. As Professor Walker said, there were lots of green flags dropped all over the place.
And I think the Supreme Court dropped all those green flags, if you will, because it was perceiving that it was moving too far in one direction on how standing law was applied in environmental cases. And so the Supreme Court here reached out to decide the standing decision. It didn't have to do it. Very curiously, Justice Ginsburg said, ‘Before we go and decide this mootness issue that was the issue that came up on the certiorari petition, we've got to decide the standing issue.’ Now, we hadn't brought standing up in the petition--the way it got there is that Laidlaw's lawyers brought it up in their briefs on the merits before the Supreme Court as an alternative ground for why the Fourth Circuit's mootness decision could be affirmed.
That created a real dilemma for us, the plaintiffs, in looking at what to do in our next brief. Should we say to the Supreme Court, ‘You don't need to address this standing issue. Send it back to the Fourth Circuit. Address the mootness, and then send standing back to the Fourth Circuit.’ Or do we say to the Supreme Court, ‘Decide it. You can decide it; go ahead and decide.’ Our first reaction was, let the Supreme Court decide this, and the reason we decided that is because of a case called Gaston Copper, which the Fourth Circuit had decided in the midst of all the goings-on in Laidlaw. The Gaston Copper case was a case much like the Laidlaw case, where Friends of the Earth and CLEAN had brought a citizen suit against another corporation, and the Fourth Circuit said, ‘No standing.’ So we were worried the Laidlaw case--going back to the Fourth Circuit, because we thought, if Gaston Copper gets applied, we're out on standing--if the Fourth Circuit follows that same approach.
Luckily, before we submitted our reply brief, the Fourth Circuit granted en banc review in Gaston Copper. It did that I think, although I don't have any crystal ball or what have you, because Chief Judge Wilkinson wrote a tremendous dissenting opinion in the Gaston Copper case that really laid out the problem with where standing was going using the Supreme Court precedent out there. And it looked like, because en banc review had been granted, that he had been able to marshal enough votes on the court so that he could get the Gaston Copper panel decision reversed.
So we thought, okay, let's tell the Supreme Court, ‘Send the standing issue back to the Fourth Circuit.’ And that's what we did. Of course, we weren't brave enough just to do that. We also briefed the standing issue and told the Court exactly why there was standing in our case. And luckily--I say luckily because of the outcome--the Supreme Court reached out and decided that standing question.
I think that the Supreme Court did that because it was seeing what courts were doing with its standing decisions, most notably the Magnesium Elektron decision and the Gaston Copper decision. Magnesium Elektron was a case decided by the Third Circuit. What the Third Circuit did, it appears, was try to guess where the Supreme Court was going with standing after the Lujan II decision. And so the Third Circuit found that the plaintiffs had to prove demonstrated harm to the environment in order to have standing in a case. Interestingly, that was a good read on where the Supreme Court appeared to have been going, because Justice Scalia was the one who had been writing all of the standing decisions in the Supreme Court. And his dissenting opinion in Laidlaw latches on to that very thing--he said, ‘Yes, you had to prove the environmental harm for there to be standing.’
Anyway, that decision out of the Third Circuit was followed by the Fourth Circuit in Gaston Copper. So we can start to see this trend of very negative standing decisions in environmental cases, making it so that plaintiffs would not be able to bring environmental cases of this sort, because it is virtually impossible to demonstrate environmental harm. Professor Walker referred to “actual harm.” Nobody can do that absent some catastrophic environmental event like the Exxon Valdez or something like that. And it is mainly because, particularly in the water situation, the impact of a discharge that violates the law is gone by the time someone gets around to enforcing the situation. Nobody can go back and pull together all of the evidence.
What the district court did in Laidlaw was find on the penalty phase that it shouldn't up the penalty because the plaintiffs had not been able to demonstrate a discernable environmental impact. So it was looking at things way down the road--not at the time you usually examine standing. In fact, the district court had examined standing at the beginning of the case and dealt *420 with these penalty issues at the end of the case. Anyway, I think that problem is why the Supreme Court ended up deciding the standing issue in the case.
Whether or not the standing decision in Laidlaw is an isolated fluke or something that will have lasting impact is certainly questioned. I think the fact that the majority decision in Laidlaw tried to narrow or restrict the holdings from its prior standing cases is an indication that the Laidlaw decision will have lasting impact. For example, Professor Walker referred to the affidavits as being like the affidavits in the Lujan II case. But the Supreme Court went out of its way to say that the Lujan II affidavits were really dealing with the situation where you were talking about something half way around the world as opposed to something in the plaintiff's community or backyard as it was in this case. As far as the Lujan I decision, the Supreme Court said that the affidavits were too general and conclusory, but that they weren't so in the Laidlaw case.
The Court also limited the Los Angeles v. Lyons case to a situation where it can be said that the illegal conduct could never recur. And the Court limited the Steel Co. decision, which was the decision on which the Fourth Circuit had based its Laidlaw decision, to say that this decision only applied where a plaintiff couldn't plead certain things in the complaint. The Supreme Court didn't mean it to apply to a situation where the plaintiff could allege that violations were ongoing at the time the complaint was filed.
From a practical standpoint, I don't think much is going to change because of the Laidlaw decision, in terms of the litigation of environmental cases. I think plaintiffs will continue to put in the same types of proof that they have in the past. In terms of what defendants may do, for the time being, you will have defendants not making standing challenges. But chances are that time will pass and there will be some more standing challenges. I know of at least one case where the defendant threatened us very vocally with a standing challenge. And then the Laidlaw decision came down, and I haven't heard a word about that any more. And I think we are not going to hear anything about it, at least for a while.
Moving on to mootness. It is much harder to figure out exactly what the Court was doing on the mootness question. It clearly reversed the Fourth Circuit on the way it applied mootness in the decision below. One of the very curious things is that the Supreme Court said in its decision, ‘The reason we took this case under the certiorari petition was to resolve a conflict in the circuits.’ And there was a conflict in the circuits. The Court resolved the conflict by undoing the Fourth Circuit's decision but never addressed the other circuit court decision, so we don't know where things stand in those cases. It might be one for the courts of appeals to sort out where they go.
I think the Third Circuit is probably going to be the first to face that question because it was one of the circuits that had held that civil penalties could never be mooted out, even if you mooted out injunctive relief. Obviously, the Third Circuit is going to have to resolve how that works with the Laidlaw framework on mootness, and it has choices. It can say its current position continues, or it can modify its prior decisions. Although I think if the Third Circuit modifies its prior decisions, in all likelihood, it will apply the modified test so rigidly that essentially you will end up in the same position as if those old decisions had been maintained all along.
And I think the reason that the Third Circuit will modify its prior decisions is because of the understanding that civil penalties only have a deterrent effect if they are actually imposed. If penalties are just sitting out there on some statute book, they are not going to have a deterrent effect. It is the check writing--that is what is the deterrent effect. I think there is language in the Supreme Court's decision in Laidlaw to really support that notion, that you have to write the check to have the deterrent effect.
I also think that the Supreme Court's effort to sort out mootness and standing, and the confusion that it said must have been created for the Fourth Circuit to have ended up where it ended up, suggests or emphasizes that the test for mootness in the voluntary cessation aspect ought to be very rigidly applied. I'm not sure how much you all have studied mootness, but mootness has lots of different aspects to it. Voluntary cession of the illegal conduct is just one column in the mootness category. There are many others. Anyway, in this one column on mootness, the Supreme Court suggested, by drawing this distinction between mootness and standing, that this is a very, very stringent test. And the Supreme Court had previously said that the test for mootness was a stringent test. But I think all of the discussion on mootness--where we've invested all of these resources, not wanting to lightly close those courthouse doors--would cause the test to be applied even more rigidly in the future.
The last point before I quit here is interesting, at least I find it to be a very interesting mootness question. It is in the last footnote of the Supreme Court decision, and it is, what if Laidlaw's decision to close this facility down during the course of the appellate proceedings in the case is deemed to have mooted out the case? What happens? The Supreme Court suggests, based on some prior decisions, that the district court decision on the initial judgment remains in effect. That it is not vacated out. And so Laidlaw would have to pay the penalty, and it would move on to attorney's fees, which is the second, as Professor Walker would call it, ‘case-within-a-case.’
And I think the Supreme Court dropped all those green flags, if you will, because it was perceiving that it was moving too far in one direction on how standing law was applied in environmental cases. And so the Supreme Court here reached out to decide the standing decision. It didn't have to do it. Very curiously, Justice Ginsburg said, ‘Before we go and decide this mootness issue that was the issue that came up on the certiorari petition, we've got to decide the standing issue.’ Now, we hadn't brought standing up in the petition--the way it got there is that Laidlaw's lawyers brought it up in their briefs on the merits before the Supreme Court as an alternative ground for why the Fourth Circuit's mootness decision could be affirmed.
That created a real dilemma for us, the plaintiffs, in looking at what to do in our next brief. Should we say to the Supreme Court, ‘You don't need to address this standing issue. Send it back to the Fourth Circuit. Address the mootness, and then send standing back to the Fourth Circuit.’ Or do we say to the Supreme Court, ‘Decide it. You can decide it; go ahead and decide.’ Our first reaction was, let the Supreme Court decide this, and the reason we decided that is because of a case called Gaston Copper, which the Fourth Circuit had decided in the midst of all the goings-on in Laidlaw. The Gaston Copper case was a case much like the Laidlaw case, where Friends of the Earth and CLEAN had brought a citizen suit against another corporation, and the Fourth Circuit said, ‘No standing.’ So we were worried the Laidlaw case--going back to the Fourth Circuit, because we thought, if Gaston Copper gets applied, we're out on standing--if the Fourth Circuit follows that same approach.
Luckily, before we submitted our reply brief, the Fourth Circuit granted en banc review in Gaston Copper. It did that I think, although I don't have any crystal ball or what have you, because Chief Judge Wilkinson wrote a tremendous dissenting opinion in the Gaston Copper case that really laid out the problem with where standing was going using the Supreme Court precedent out there. And it looked like, because en banc review had been granted, that he had been able to marshal enough votes on the court so that he could get the Gaston Copper panel decision reversed.
So we thought, okay, let's tell the Supreme Court, ‘Send the standing issue back to the Fourth Circuit.’ And that's what we did. Of course, we weren't brave enough just to do that. We also briefed the standing issue and told the Court exactly why there was standing in our case. And luckily--I say luckily because of the outcome--the Supreme Court reached out and decided that standing question.
I think that the Supreme Court did that because it was seeing what courts were doing with its standing decisions, most notably the Magnesium Elektron decision and the Gaston Copper decision. Magnesium Elektron was a case decided by the Third Circuit. What the Third Circuit did, it appears, was try to guess where the Supreme Court was going with standing after the Lujan II decision. And so the Third Circuit found that the plaintiffs had to prove demonstrated harm to the environment in order to have standing in a case. Interestingly, that was a good read on where the Supreme Court appeared to have been going, because Justice Scalia was the one who had been writing all of the standing decisions in the Supreme Court. And his dissenting opinion in Laidlaw latches on to that very thing--he said, ‘Yes, you had to prove the environmental harm for there to be standing.’
Anyway, that decision out of the Third Circuit was followed by the Fourth Circuit in Gaston Copper. So we can start to see this trend of very negative standing decisions in environmental cases, making it so that plaintiffs would not be able to bring environmental cases of this sort, because it is virtually impossible to demonstrate environmental harm. Professor Walker referred to “actual harm.” Nobody can do that absent some catastrophic environmental event like the Exxon Valdez or something like that. And it is mainly because, particularly in the water situation, the impact of a discharge that violates the law is gone by the time someone gets around to enforcing the situation. Nobody can go back and pull together all of the evidence.
What the district court did in Laidlaw was find on the penalty phase that it shouldn't up the penalty because the plaintiffs had not been able to demonstrate a discernable environmental impact. So it was looking at things way down the road--not at the time you usually examine standing. In fact, the district court had examined standing at the beginning of the case and dealt *420 with these penalty issues at the end of the case. Anyway, I think that problem is why the Supreme Court ended up deciding the standing issue in the case.
Whether or not the standing decision in Laidlaw is an isolated fluke or something that will have lasting impact is certainly questioned. I think the fact that the majority decision in Laidlaw tried to narrow or restrict the holdings from its prior standing cases is an indication that the Laidlaw decision will have lasting impact. For example, Professor Walker referred to the affidavits as being like the affidavits in the Lujan II case. But the Supreme Court went out of its way to say that the Lujan II affidavits were really dealing with the situation where you were talking about something half way around the world as opposed to something in the plaintiff's community or backyard as it was in this case. As far as the Lujan I decision, the Supreme Court said that the affidavits were too general and conclusory, but that they weren't so in the Laidlaw case.
The Court also limited the Los Angeles v. Lyons case to a situation where it can be said that the illegal conduct could never recur. And the Court limited the Steel Co. decision, which was the decision on which the Fourth Circuit had based its Laidlaw decision, to say that this decision only applied where a plaintiff couldn't plead certain things in the complaint. The Supreme Court didn't mean it to apply to a situation where the plaintiff could allege that violations were ongoing at the time the complaint was filed.
From a practical standpoint, I don't think much is going to change because of the Laidlaw decision, in terms of the litigation of environmental cases. I think plaintiffs will continue to put in the same types of proof that they have in the past. In terms of what defendants may do, for the time being, you will have defendants not making standing challenges. But chances are that time will pass and there will be some more standing challenges. I know of at least one case where the defendant threatened us very vocally with a standing challenge. And then the Laidlaw decision came down, and I haven't heard a word about that any more. And I think we are not going to hear anything about it, at least for a while.
Moving on to mootness. It is much harder to figure out exactly what the Court was doing on the mootness question. It clearly reversed the Fourth Circuit on the way it applied mootness in the decision below. One of the very curious things is that the Supreme Court said in its decision, ‘The reason we took this case under the certiorari petition was to resolve a conflict in the circuits.’ And there was a conflict in the circuits. The Court resolved the conflict by undoing the Fourth Circuit's decision but never addressed the other circuit court decision, so we don't know where things stand in those cases. It might be one for the courts of appeals to sort out where they go.
I think the Third Circuit is probably going to be the first to face that question because it was one of the circuits that had held that civil penalties could never be mooted out, even if you mooted out injunctive relief. Obviously, the Third Circuit is going to have to resolve how that works with the Laidlaw framework on mootness, and it has choices. It can say its current position continues, or it can modify its prior decisions. Although I think if the Third Circuit modifies its prior decisions, in all likelihood, it will apply the modified test so rigidly that essentially you will end up in the same position as if those old decisions had been maintained all along.
And I think the reason that the Third Circuit will modify its prior decisions is because of the understanding that civil penalties only have a deterrent effect if they are actually imposed. If penalties are just sitting out there on some statute book, they are not going to have a deterrent effect. It is the check writing--that is what is the deterrent effect. I think there is language in the Supreme Court's decision in Laidlaw to really support that notion, that you have to write the check to have the deterrent effect.
I also think that the Supreme Court's effort to sort out mootness and standing, and the confusion that it said must have been created for the Fourth Circuit to have ended up where it ended up, suggests or emphasizes that the test for mootness in the voluntary cessation aspect ought to be very rigidly applied. I'm not sure how much you all have studied mootness, but mootness has lots of different aspects to it. Voluntary cession of the illegal conduct is just one column in the mootness category. There are many others. Anyway, in this one column on mootness, the Supreme Court suggested, by drawing this distinction between mootness and standing, that this is a very, very stringent test. And the Supreme Court had previously said that the test for mootness was a stringent test. But I think all of the discussion on mootness--where we've invested all of these resources, not wanting to lightly close those courthouse doors--would cause the test to be applied even more rigidly in the future.
The last point before I quit here is interesting, at least I find it to be a very interesting mootness question. It is in the last footnote of the Supreme Court decision, and it is, what if Laidlaw's decision to close this facility down during the course of the appellate proceedings in the case is deemed to have mooted out the case? What happens? The Supreme Court suggests, based on some prior decisions, that the district court decision on the initial judgment remains in effect. That it is not vacated out. And so Laidlaw would have to pay the penalty, and it would move on to attorney's fees, which is the second, as Professor Walker would call it, ‘case-within-a-case.’
