ELR Citation: ELR 20246
No(s). 98-822 (U.S. Jan 12, 2000)

The Court holds that the Fourth Circuit erroneously vacated on mootness grounds a district court award of civil penalties in favor of environmental groups that brought a citizen suit against a hazardous waste treatment facility for violations of its Clean Water Act (CWA) national pollution discharge elimination system (NPDES) permit. The court of appeals concluded that the groups' claim for civil penalties was moot because the facility complied with its NPDES permit after the litigation's commencement and because the groups did not appeal the district court's denial of equitable relief.

The Court first holds that the groups had standing at the outset of the litigation to bring suit alleging the facility's NPDES noncompliance. The groups' affidavits and testimony asserted that the facility's discharges, and the group members' reasonable concerns about the discharges, directly affected those members' recreational, aesthetic, and economic interests. It is not improbable that the facility's illegal discharges of pollutants into a river would curtail nearby residents' recreational uses of that river and would subject them to other economic and aesthetic harms. The district court found it to be true in this case, and that is enough for injury-in-fact.

The Court next holds that the groups had standing to seek civil penalties because such penalties can redress a citizen plaintiff. To the extent that civil penalties encourage defendants to discontinue current violations and deter them from committing future ones, they afford redress to citizen plaintiffs injured or threatened with injury from ongoing unlawful conduct. Here, the civil penalties sought by the group carried a deterrent effect that made it likely that the penalties would redress the groups' injuries by abating current violations and preventing future violations by the facility. Moreover, Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 28 ELR 20434 (1998), does not direct the conclusion that citizen plaintiffs have no standing to seek civil penalties under the CWA. Steel Co. established that citizen plaintiffs lack standing to seek civil penalties for violations that have abated by the time of the suit, but it did not reach the issue of penalties for violations that are ongoing at the time of the complaint and that could continue into the future undeterred.

The Court then holds that the facility's voluntary cessation of its NPDES violations did not moot the groups' claims. In relying on Steel Co., the appellate court confused mootness with standing when it held that the facility's voluntary cessation of its NPDES violations rendered the groups' claims moot. Voluntary cessation only moots a case if subsequent events make it absolutely clear that the alleged wrong could not reasonably recur. Further, the groups' failure to appeal the district court's denial of injunctive relief did not doom its own civil penalty claim to mootness. Denial of injunctive relief does not necessarily mean that there is no prospect for civil penalties to deter. In addition, the closure of the facility, like the facility's subsequent compliance with its NPDES permits, may moot the groups' claim if the facility's NPDES permits could not be reasonably expected to recur. However, the effect of the facility's compliance and closure on the prospect of future violations is a disputed factual matter that must be considered on remand. The court also holds that the district court must determine if the groups are entitled to reimbursement of costs and attorneys fees under the catalyst theory.

In a concurring opinion, Justice Stevens argued that the case would not be moot even if it were absolutely clear that the facility had gone out of business and posed no threat of future permit violations. A record of voluntary post judgment compliance justifies a decision that injunctive relief is unnecessary, or even a decision that any claim for injunctive relief is now moot, would not warrant vacation of a valid money judgment. Further, the groups' claims for civil penalties would not be moot even if it were absolutely clear that the facility's NPDES violation could not reasonably be expected to recur. A polluter's post-complaint cessation of an alleged violation will not moot a citizen suit claim for civil penalties. In a separate concurring opinion, Justice Kennedy observed that the questions presented in the case did not address whether exactions of public fines by private litigants, and the delegation of executive power that might be inferable from such authorization, are permissible.

In a dissenting opinion, Justice Scalia, with whom Justice Thomas joins, argued that the groups lacked standing. The groups' averments of concern about the river did not demonstrate that they suffered a concrete and particularized injury. Typically, an environmental plaintiff claiming injury due to discharges in violation of the CWA argues that the discharges harm the environment, and that environmental harm injures them. This route to injury is barred here. The district court concluded that there has been no proof of harm to the environment caused by the facility's permit violations. Further, that payment of civil penalties will remedy the groups' injury by deterring future violations by the facility is not supported by precedent. The deterrence on which the groups must rely for standing is the marginal increase in the facility's fear of future penalties for past conduct. It is entirely speculative whether such fear will make the difference between the groups suffering injury in the future or going unharmed. Moreover, despite the majority's discussion of the differences between mootness and standing, the requisite personal interest that must exist at the commencement of the litigation must continue through its existence.

[Prior decisions in this litigation are published at 26 ELR 20457, 27 ELR 20976, and 28 ELR 21444.]

Counsel for Petitioners
Bruce J. Terris
Terris, Pravlik & Millian
1121 12th St. NW, Washington DC 20005
(202) 682-2100

Counsel for Respondent
Donald A. Cockrill
Ogletree, Deakins, Nash, Smoak & Stewart
The Ogletree Bldg.
300 N. Main St., Greenville SC 29602
(864) 271-1300

Before Stevens and Kennedy, JJ., with Scalia and Thomas, JJ., dissenting