Environmental Citizen Suits: Standing and Mootness After Laidlaw Caplin Pavilion, University of Virginia School of Law, March 28, 2000
By Laurens Walker
INTRODUCTION
One of the genuine curiosities of federal law in the United States is the tendency to transform ordinary civil litigation into an extraordinary ‘case-within-a-case.’ One case deals with the substantive legal policies allegedly at stake, and the other, with justiciability, which is to say, the propriety of the particular request for federal court action. Congressional policy concerns typically play a central role in the “substantive case,” which must be the product of an affirmative grant of constitutional authority to legislate. The policy concerns of the Supreme Court justices dominate the ‘justicability case,’ presumably because of the Court's special concern for policing Article III. Although the analogous ‘play-within-a play’ proved to be a hit in A Midsummer Night's Dream, Hamlet, and Kiss Me, Kate, just to name a few examples, the judicial version usually gets mixed reviews. One problem is that sometimes the justiciability controversy overwhelms the substantive dispute, as in Friends of the Earth v. Laidlaw Environmental Services, Inc., a private enforcement action brought pursuant to the Clean Water Act (the “Act”). The four opinions barely mention the substantive concerns of the Act and are devoted to justiciability issues - standing and mootness. Thus, the decision provides nothing new about the objectives of the Clean Water Act but does provide current information about the justices' views on private enforcement of the Act.
In 1986 Laidlaw Environmental Services, Inc. (“Laidlaw”) purchased a hazardous waste incinerator facility in Roebuck, South Carolina. Shortly after the purchase, Laidlaw asked the South Carolina Department of Health and Environmental Control (“DHEC”) for a permit authorizing Laidlaw to discharge treated water into the North Tyger River, and a permit was issued effective January 1, 1987. Early in 1992, Friends of the Earth (“FOE”) and Citizens Local Environmental Action Network (“CLEAN”) sent a letter to Laidlaw, indicating that they planned to file suit to enforce the terms of the permit. Laidlaw's lawyer then asked the DHEC to bring suit itself to enforce the permit. The two organizations acted according to the citizen suit provisions of the Clean Water Act, which permit private enforcement of the Act but require a sixty-day written notice to the potential defendant. Laidlaw also responded in accordance with the same section, which further provides that diligent public enforcement will bar private action. The DHEC did bring suit and on June 9, 1992, the last day before the notice period ran, the DHEC and Laidlaw settled, with the agreement that Laidlaw would pay a fine of $100,000 and make an effort to comply with the permit. Three days later FOE and CLEAN filed suit against Laidlaw in the local district court, alleging noncompliance with the permit and asking for declaratory and injunctive relief and an award of civil penalties to the United States.
Laidlaw moved for summary judgment, arguing that the plaintiffs' lack of standing and the DHEC's prior action barred private enforcement. Laidlaw's motion was denied. On January 22, 1997, the district court entered judgment on the merits. The court found that Laidlaw had violated the discharge permit but had achieved substantial compliance by August 1992. Additionally, the court held that Laidlaw had an economic benefit from the discharge violations of $1,092,581 but fined Laidlaw only $405,800. The court denied injunctive and declaratory relief because Laidlaw had come into substantial compliance with the discharge permit before judgment. FOE and CLEAN appealed the award of the fine, arguing that the amount was insufficient, but they did not appeal the denial of injunctive and declaratory relief. Laidlaw cross-appealed, arguing that the plaintiffs lacked standing and that the DHEC suit and settlement barred the plaintiffs' action.
On July 16, 1998, the court of appeals issued a judgment vacating the district court's order and remanding with instructions to dismiss. The court assumed without deciding that the plaintiffs had initial standing to bring the action but held that the plaintiffs no longer had standing. The court also held that the case had become moot because the plaintiffs had not appealed the denial of declaratory and injunctive relief and because the plaintiffs had no interest in the civil penalty, since it was payable to the United States government. Although the district court had made no determination about attorneys' fees, the court of appeals added a footnote stating that since FOE and CLEAN had, in its view, failed to obtain relief on the merits, no attorneys' fees or costs could be awarded.
Laidlaw stated that the Roebuck incinerator facility was “closed, dismantled, and put up for sale” after the court of appeals had decided the case, but before the Supreme Court had issued its grant of certiorari. The Supreme Court granted certiorari and reversed the Fourth Circuit. Justice Ginsburg delivered an opinion for the Court, which seems likely to encourage private enforcement of the Clean Water Act and, perhaps, other federal environmental protection statutes. Justices Stevens and Kennedy concurred in separate opinions, and Justice Scalia dissented in an opinion joined by Justice Thomas.
One of the genuine curiosities of federal law in the United States is the tendency to transform ordinary civil litigation into an extraordinary ‘case-within-a-case.’ One case deals with the substantive legal policies allegedly at stake, and the other, with justiciability, which is to say, the propriety of the particular request for federal court action. Congressional policy concerns typically play a central role in the “substantive case,” which must be the product of an affirmative grant of constitutional authority to legislate. The policy concerns of the Supreme Court justices dominate the ‘justicability case,’ presumably because of the Court's special concern for policing Article III. Although the analogous ‘play-within-a play’ proved to be a hit in A Midsummer Night's Dream, Hamlet, and Kiss Me, Kate, just to name a few examples, the judicial version usually gets mixed reviews. One problem is that sometimes the justiciability controversy overwhelms the substantive dispute, as in Friends of the Earth v. Laidlaw Environmental Services, Inc., a private enforcement action brought pursuant to the Clean Water Act (the “Act”). The four opinions barely mention the substantive concerns of the Act and are devoted to justiciability issues - standing and mootness. Thus, the decision provides nothing new about the objectives of the Clean Water Act but does provide current information about the justices' views on private enforcement of the Act.
In 1986 Laidlaw Environmental Services, Inc. (“Laidlaw”) purchased a hazardous waste incinerator facility in Roebuck, South Carolina. Shortly after the purchase, Laidlaw asked the South Carolina Department of Health and Environmental Control (“DHEC”) for a permit authorizing Laidlaw to discharge treated water into the North Tyger River, and a permit was issued effective January 1, 1987. Early in 1992, Friends of the Earth (“FOE”) and Citizens Local Environmental Action Network (“CLEAN”) sent a letter to Laidlaw, indicating that they planned to file suit to enforce the terms of the permit. Laidlaw's lawyer then asked the DHEC to bring suit itself to enforce the permit. The two organizations acted according to the citizen suit provisions of the Clean Water Act, which permit private enforcement of the Act but require a sixty-day written notice to the potential defendant. Laidlaw also responded in accordance with the same section, which further provides that diligent public enforcement will bar private action. The DHEC did bring suit and on June 9, 1992, the last day before the notice period ran, the DHEC and Laidlaw settled, with the agreement that Laidlaw would pay a fine of $100,000 and make an effort to comply with the permit. Three days later FOE and CLEAN filed suit against Laidlaw in the local district court, alleging noncompliance with the permit and asking for declaratory and injunctive relief and an award of civil penalties to the United States.
Laidlaw moved for summary judgment, arguing that the plaintiffs' lack of standing and the DHEC's prior action barred private enforcement. Laidlaw's motion was denied. On January 22, 1997, the district court entered judgment on the merits. The court found that Laidlaw had violated the discharge permit but had achieved substantial compliance by August 1992. Additionally, the court held that Laidlaw had an economic benefit from the discharge violations of $1,092,581 but fined Laidlaw only $405,800. The court denied injunctive and declaratory relief because Laidlaw had come into substantial compliance with the discharge permit before judgment. FOE and CLEAN appealed the award of the fine, arguing that the amount was insufficient, but they did not appeal the denial of injunctive and declaratory relief. Laidlaw cross-appealed, arguing that the plaintiffs lacked standing and that the DHEC suit and settlement barred the plaintiffs' action.
On July 16, 1998, the court of appeals issued a judgment vacating the district court's order and remanding with instructions to dismiss. The court assumed without deciding that the plaintiffs had initial standing to bring the action but held that the plaintiffs no longer had standing. The court also held that the case had become moot because the plaintiffs had not appealed the denial of declaratory and injunctive relief and because the plaintiffs had no interest in the civil penalty, since it was payable to the United States government. Although the district court had made no determination about attorneys' fees, the court of appeals added a footnote stating that since FOE and CLEAN had, in its view, failed to obtain relief on the merits, no attorneys' fees or costs could be awarded.
Laidlaw stated that the Roebuck incinerator facility was “closed, dismantled, and put up for sale” after the court of appeals had decided the case, but before the Supreme Court had issued its grant of certiorari. The Supreme Court granted certiorari and reversed the Fourth Circuit. Justice Ginsburg delivered an opinion for the Court, which seems likely to encourage private enforcement of the Clean Water Act and, perhaps, other federal environmental protection statutes. Justices Stevens and Kennedy concurred in separate opinions, and Justice Scalia dissented in an opinion joined by Justice Thomas.
