Citizen Standing to Sue for Past EPCRA Violations

Jim Hecker

Editors' Summary: This Article addresses whether citizens have standing to bring citizen suits under EPCRA for wholly past violations—an issue presented before the U.S. Supreme Court last month in Steel Co. v. Citizens for a Better Environment. The author argues that citizen plaintiffs can satisfy Article III standing requirements even if a defendant comes into compliance before the citizen suit is filed. The author first addresses the injury-in-fact requirement of standing, and concludes that citizens living near a facility subject to EPCRA may suffer informational and environmental injuries if the facility violates the statute. Next, the author asserts that citizen plaintiffs can satisfy the redressability requirement of standing as well. Civil penalties will redress citizen plaintiffs' injuries because penalties deter future violations. And the voluntary cessation principle prevents defendants from using standing as a defense by taking corrective action as a means to avoid litigation. Last, the author notes that defendants may be required to pay for environmental projects in lieu of civil penalties, which may benefit the citizens directly.

Jim Hecker is an environmental enforcement attorney at Trial Lawyers for Public Justice (TLPJ) in Washington, D.C. He prepared and filed an amici curiae brief in the U.S. Supreme Court on behalf of TLPJ and 12 other organizations supporting the respondent in Steel Co. v. Citizens for a Better Environment, No. 96-643.

[27 ELR 10561]

The Emergency Planning and Community Right-To-Know Act (EPCRA)¹ gives citizens a right to sue persons who fail to comply with the statute's reporting requirements, and to seek injunctive relief, civil penalties, and costs, including attorneys fees. In Citizens for a Better Environment v. Steel Co.,² an environmental organization invoked this right and sent its notice of intent to sue to a company that had failed to file its reporting forms for seven consecutive years. In response to the notice, the company filed its overdue forms—after receiving the notice, but before the citizens' complaint was filed. The Seventh Circuit held that EPCRA authorized a citizen suit for these "wholly past" violations.³ In doing so, the court disagreed with the Sixth Circuit, which had reached the opposite conclusion in a similar case.⁴

Responding to this split in the circuits, the U.S. Supreme Court granted certiorari.⁵ The Court will confront two issues in this case. The first is a question of statutory construction: did Congress intend to authorize citizens to seek civil penalties for past violations that are not continuing at the time the suit is brought? In 1987, the Supreme Court answered this question as it pertains to citizen suits brought under the Federal Water Pollution Control Act (FWPCA)⁶ and said no.⁷ However, the language in EPCRA differs in several important respects from that in the FWPCA, and the Seventh Circuit relied on these differences to support its conclusion. Because the two circuit court opinions analyzed this issue in detail, this Article will not address it further.

The second question is a constitutional one: if Congress did authorize these suits for past violations, can the citizens bringing these suits meet the constitutional requirements in Article III for standing? If the defendant's precomplaint compliance moots injunctive relief, the only remaining relief available at the time of suit is civil penalties, which are payable to the U.S. Treasury, not to the plaintiffs. Focusing on this apparent lack of direct remedial benefit, three concurring Justices in Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation addressed the standing question hypothetically: "If it is undisputed that the defendant was in a state of compliance when this suit was filed, the plaintiff would have been suffering no remediable injury in fact that could support suit … [and] … there cannot possibly be standing to sue."⁸ If the Supreme Court decides [27 ELR 10562] that the plaintiffs in Steel Co. v. Citizens for a Better Environment have a statutory right to sue, the Court will face this question directly. And the Court's decision will likely have a major impact on the permissible scope of citizen enforcement. Because the standing issue was not raised or discussed in either of the two circuit court opinions, but is being raised in the Supreme Court, this Article will explore it in depth.

EPCRA's Reporting Requirements

Unlike most other federal environmental laws, EPCRA is purely a reporting statute. It does not impose other types of regulatory controls, such as monitoring requirements or restrictions on pollution releases. Congress sought to protect public health and safety and the environment by requiring public and official access to information on inventories and releases of hazardous and toxic chemicals. EPCRA requires covered facilities to submit annual inventory forms to local officials, fire departments, and the state in which the facility is located.⁹ These forms identify the amount and type of hazardous chemicals stored on site and are designed to improve a community's emergency preparedness if those chemicals are ever released into the environment. EPCRA also requires covered facilities to submit annual reports of toxic chemical releases to the state and the U.S. Environmental Protection Agency (EPA).¹⁰ These reports "are intended to provide information to the Federal, State, and local governments and the public, including citizens of communities surrounding covered facilities."¹¹ EPA must use these forms to maintain a national toxic chemical inventory in a publicly accessible computer database.¹²

EPCRA authorizes enforcement actions by EPA,¹³ by state and local governments and emergency response commissions,¹⁴ and by citizens.¹⁵ Citizens are authorized to sue the owner or operator of a facility "for failure to do" certain things, including the failure to complete and submit inventory forms and toxic chemical release forms.¹⁶

CBE's EPCRA Citizen Suit

In the Seventh Circuit case, Citizens for a Better Environment (CBE) alleged that a Chicago steel mill, The Steel Company, had failed to file these two forms for the seven years between 1988 and 1995. To demonstrate its standing to sue, CBE alleged in its complaint that its members resided, owned property, engaged in recreational activities, breathed the air, and used areas near defendant's steel mill. CBE also alleged that its members use EPCRA information to learn about toxic chemical releases, to prepare for accidental releases, and to try to reduce the amount of toxic chemicals in the areas where they live, work, and visit. The complaint further alleged that The Steel Company's EPCRA violations adversely affected the safety, health, recreational, economic, aesthetic, and environmental interests of CBE's members. CBE sought a declaratory judgment, civil penalties, injunctive relief, and costs, including attorneys fees. The requested injunctive relief would require The Steel Company to permit CBE to inspect its facilities and records for EPCRA compliance for one year and to send CBE its EPCRA reports for at least one year.

The Steel Company did not challenge CBE's standing in the court of appeals and raised this defense for the first time in its brief to the Supreme Court. It relied on the Court's three-part test for constitutional standing under Article III, which requires a plaintiff to suffer an "injury-in-fact" that is "fairly traceable" to the defendant's conduct and will "likely be redressed" by a favorable decision.¹⁷

The Steel Company argued that CBE lacked two of these three characteristics. First, it claimed that CBE had no legally cognizable injury-in-fact because CBE cannot receive damages, the company's precomplaint compliance mooted injunctive relief, and CBE had nothing more than a "generalized public interest" in any civil penalties that The Steel Company might have to pay the U.S. Treasury for its past violations. Second, The Steel Company argued that CBE could not demonstrate redressability because any penalty payments sent to the government would not benefit CBE directly. Any attorneys fees paid to CBE would merely be a byproduct of the litigation and would not redress any injury CBE might have suffered from not having access to the information in the company's EPCRA forms.

Forms of Injury Under EPCRA

Whether CBE has suffered an injury-in-fact depends in part on how legally cognizable injuries are characterized. EPCRA is an informational statute with no counterpart in the common law. Citizens are injured by EPCRA violations only if "Congress has the power to define injuries … where none existed before …."¹⁸ The Supreme Court seemed to accept this principle over 20 years ago, when it stated that "the actual or threatened injury required by Art. III may exist solely by virtue of 'statutes creating legal rights, the invasion of which creates standing.'"¹⁹ Based on this principle, CBE's forms of injury can be defined as informational and environmental.

Informational Injury

By failing to file the required forms, The Steel Company denied CBE information that it was entitled to obtain under EPCRA. EPCRA gives citizens a "right to know," that is, a right to information. While the company did not have to give the information to CBE directly, it did have to give it to the government. The government would then have to make it publicly accessible. This type of informational injury is supported by precedent. The Supreme Court held in Havens Realty Corp. v. Coleman²⁰ that "injury to a statutorily [27 ELR 10563] created right to truthful … information" is sufficient for constitutional purposes.

Congress not only created a right to information in EPCRA, but targeted that right specifically at "citizens of communities surrounding covered facilities."²¹ CBE alleged that its members are within this narrow, geographically defined class. As a result, they "have suffered injury in precisely the form the statute was intended to guard against."²² In addition, The Steel Company injured CBE in its organizational capacity. Because The Steel Company failed to disclose the required information, CBE had to expend its own resources to conduct an investigation about the kinds of chemicals the company was storing and releasing and had to distribute a report on polluting industries to southeast Chicago residents without The Steel Company's EPCRA information.

Environmental Injury

The Steel Company's nondisclosure also created an increased risk of environmental harm to CBE's members. This increased risk has two components.

First, during the period of nondisclosure, governments had a reduced capability to respond to chemical emergencies at The Steel Company's facility. Governments use EPCRA information to identify the locations of hazardous chemicals in the community and to prepare for accidental releases. Untimely reports may make emergencies more serious and could result in the injury or death of community residents. For example, The Steel Company failed to disclose its storage and releases of hydrochloric acid. Hydrochloric acid is "acutely toxic to all human tissue, producing effects ranging from irritation to corrosion to risk of early death."²³ EPA has placed hydrochloric acid in a special regulatory category of "extremely hazardous substances," which EPA defines as "acutely toxic chemicals which cause both severe sort- [sic] and long-term health effects after a single, brief exposure."²⁴ EPCRA protects CBE's members from this form of environmental harm.

Second, during the period of nondisclosure, The Steel Company's incentive to decrease its use of toxic chemicals was reduced. Congress viewed the disclosure of EPCRA information, by itself, as a means to induce companies to reduce their pollution. One congressman stated during the House debates on EPCRA that "safe companies will be rewarded by a community knowledgeable of their good record in handling hazardous products, and unsafe companies will have a powerful incentive to clean up their act."²⁵ Thus, corporate secrecy encourages remedial inertia, while corporate disclosure encourages remedial action. EPCRA's history validates this premise. During the seven-year period when The Steel Company failed to file its EPCRA reports, total reported toxic chemical releases decreased by 43 percent nationwide.²⁶ However, CBE cites evidence in its brief that during this same period, The Steel Company's releases increased, and began decreasing only after the company started filing EPCRA reports.²⁷ Thus, CBE's members may have been exposed to higher amounts of toxic chemicals than they would have been had The Steel Company complied with EPCRA in a timely manner.

Continuing Injury

These informational and environmental injuries can continue even after belated EPCRA reports are filed. Informational injuries are not necessarily cured when the paper reports are filed, because it can take months for EPA to update its publicly accessible computer database. Environmental injuries can continue until governments incorporate the new information into updated emergency response plans, which are sometimes only reviewed on an annual basis.

Furthermore, besides the continuing effects of past violations, future reporting violations threaten future injuries. Predicting such future violations is a difficult task, especially for a reporting statute. In cases involving a pollution control statute such as the FWPCA, a firm's history of past violations can be used to infer the likelihood of continued noncompliance,²⁸ while the firm's investments in concrete remedial measures can be used to infer the likelihood of continued compliance.²⁹ However, when dealing with a reporting statute such as EPCRA, it is difficult to invest in paperwork remedial measures. Present compliance, or a promise of future compliance, means little. It is easy for a defendant to respond to a citizen's notice of intent to sue by filing its past-due reports and then ignoring EPCRA until it receives another notice. As a result, except when a company ceases business altogether, past violations under EPCRA may be the best, and only, indicator of future compliance or noncompliance.

Citizens who live near a nonreporting EPCRA facility therefore have a strong basis for claiming injury-in-fact. Even though they may lack the type of monetary injury protected under common law, these citizens belong to the class of persons that Congress intended to protect and their injuries are ones that EPCRA was designed to prevent.

Redressability of EPCRA Injuries

Besides injury-in-fact, the other two standing requirements are traceability and redressability. A citizen plaintiff's injuries will usually be "fairly traceable" to the defendant's failure to submit forms under EPCRA, because it is the defendant's conduct, rather than the conduct of some third party, that has deprived the plaintiff of its right to know. Therefore, the remaining issue is whether it is "'likely,' as opposed to merely 'speculative,' that the injury will be redressed by a favorable decision."³⁰ To meet this requirement, [27 ELR 10564] the citizen plaintiff must show that it is likely to benefit from the relief it is seeking.

If a defendant is not in compliance with EPCRA at the time the citizen suit is filed, redressability is not a problem. The court can order the defendant to file its forms, and this relief will redress the citizen plaintiff's lack of information. In Gwaltney, the Supreme Court implicitly accepted the standing of citizen plaintiffs in such cases.³¹

However, if the defendant is in compliance at the time of suit, the redressability issue is more difficult. If injunctive relief is moot, the remaining relief is civil penalties payable to the U.S. Treasury, as well as costs and attorneys fees. Because the plaintiff cannot receive a share of the penalties or personal damages, it cannot receive a direct monetary benefit from the suit. Furthermore, the Court has traditionally regarded costs and attorneys fees as collateral to the merits of a case because they do not remedy the injury giving rise to the action.³² These concerns most likely prompted the three concurring Justices in Gwaltney to hypothesize that if "the defendant was in a state of compliance when this suit was filed, the plaintiff would have been suffering no remediable injury in fact that could support suit."³³

There are at least three compelling responses to this contention. First, civil penalties redress the citizen plaintiff's injuries by deterring the defendant from not filing future EPCRA reports when they become due. Second, a long line of analogous cases establishes a presumption that the threat of future injury cannot be negated when a defendant voluntarily ceases its illegal conduct in response to litigation. Third, under established EPA guidelines, EPCRA citizen suits may be settled on terms that require a defendant to pay for environmental projects in lieu of penalties, and these projects, such as a pollution prevention project, may reduce the risk of the citizens' exposure to toxic chemicals.

Deterrence

In a strictly material sense, it is true that citizens cannot benefit individually from civil penalties paid to the U.S. Treasury. However, this characterizes the purpose of civil penalties too narrowly. The purpose of such penalties is to deter violations, not to enrich the U.S. Treasury.³⁴ If citizens could not seek civil penalties for past violations, the deterrent effect of EPCRA citizen suits and penalties would be eviscerated. As a result, citizens would be exposed to the risk of increased pollution.

The availability of civil penalties encourages citizens to bring citizen suits to remedy and deter violations. "Citizen plaintiffs often initiate suit not to recover monetary awards for their own benefit, but rather to ensure that penalties are imposed so as to deter future violations."³⁵ If citizens could not seek civil penalties for past violations, they would be unable torecover their costs of identifying violators. As a result, citizens' incentive to investigate violators and to file citizen suits would be greatly reduced. In addition, if violators could avoid civil penalties by complying with the statute after they receive notice of a citizen suit, they would have a greatly reduced incentive to comply promptly and voluntarily with their reporting obligations. Instead, it would be in their best interest to delay compliance. In effect, violators could avoid penalties at will. Then, when the noticed violations had become moot, violators could resume their noncompliance until they received another notice letter. As a result, citizen suits would have no real deterrent effect.

In the 1990 Amendments³⁶ to the Clean Air Act (CAA),³⁷ several senators recognized that the inability to sue for past violations would have exactly this type of devastating impact on deterrence. The Senate considered the Nickles-Heflin-Dole Amendment, No. 1456, which would have adopted Gwaltney and retained the existing language that authorized citizens to sue only those persons "alleged to be in violation" of the Act.³⁸ In the debates on this amendment, Sen. John Chafee (R-R.I.), one of the floor managers for the Senate bill, described the effect of this amendment:

The second point is on the citizen suit, the citizen cannot collect for past damages. In other words, the citizen has to give notice, under the law—and we all agree with this—has to give notice to the polluter that he is giving suit and that gives the polluter 60 days to straighten out the situation.

Under my colleague's [Senator Nickles'] proposal he cannot go back and collect anything for past damage. He can only collect for future damage. I do not understand the rationale for that provision. What the polluter does, he says: "Oh, that is right. I will straighten it out." So he straightens it out. And since the citizen cannot collect for any past damages and the polluters stop, then there is no ground for a suit. He stops within the 60 days.

Then what happens? The polluter starts polluting again, let us say somebody upstream, upwind. Then again the citizen has to go through this rigamarole, 60 days' notice; within the 60 days give notice. And the polluter says: "Oh, dear, I am sorry." We go through this charade possibly for several times.³⁹

The Senate rejected the proposed amendment and its language does not appear in the final enactment.⁴⁰

Thus, penalties deter nonfilers from violating EPCRA in the future. Covered facilities are under a continuing obligation to file EPCRA reports on a regular basis. Facilities will be specifically deterred from evading this obligation if they know that such evasions will be penalized. And by deterring violations, civil penalties will redress future potential harm to citizen plaintiffs in the same wayan injunction would.

Moreover, penalties will serve the general public interest by deterring other companies from failing to file required EPCRA reports. Because CBE has asserted "distinct and [27 ELR 10565] palpable" harm to itself, it may "invoke the general public interest in support of [its] claim."⁴¹ The imposition of penalties will deter other companies from violating their EPCRA obligations in the future. Companies will have a greater incentive to file reports quickly under EPCRA, instead of waiting until after the deadline, if they know that they can be sued for past violations even if they file their reports before being sued.⁴²

The deterrent effect of civil penalties is not speculative and has long been recognized by Congress. In numerous environmental statutes, Congress has drawn a direct connection between deterrence and civil penalties. In 1990, Congress amended the CAA's citizen suit provision to authorize citizens to seek civil penalties. The Senate report on this provision stated that "the assessment of civil penalties for violations of the Act is necessary for deterrence, restitution and retribution."⁴³ Similarly, "the legislative history of the [FWPCA] reveals that Congress wanted the district court to consider the need for retribution and deterrence, in addition to restitution, when it imposed civil penalties."⁴⁴

Congress has also viewed citizen suits that seek penalties as important deterrents. During the 1985 debates on the CERCLA citizen suit provision, Sen. Max Baucus (D-Mont.) stated that "citizen enforcement is currently operating as Congress intended: first, to provide a prod and second an alternative to government enforcement."⁴⁵ He also stated that "the scope and effectiveness of the publicity generated by recent citizen enforcement seems likely to act as a general deterrent."⁴⁶ The Senate Report on the 1987 FWPCA amendments similarly stated that citizen suits "are a proven enforcement tool" that "have deterred violators and achieved significant compliance gains."⁴⁷ Congress has therefore decided that civil penalties are causally related to deterrence. A wrongdoer who has paid a penalty is more likely to comply with the law in the future than is a wrongdoer who escaped punishment.

Last, if the Court were to question or reject Congress' judgment on the effect of civil penalties and citizen enforcement, it would intrude on the separation of powers between the judicial and legislative branches. If the courts limited citizens' rights to seek civil penalties for past violations, they would be limiting the power of Congress to define, and to protect against, certain kinds of injury.⁴⁸ Congress should be permitted "to define injuries and articulate chains of causation that will give rise to a case or controversy where none existed before…."⁴⁹ In addition, "it is the duty of the courts to be alert to provide such remedies as are necessary to make effective the congressional purpose."⁵⁰ The purpose of penalties—deterring violators—would be seriously undermined if citizens could not sue for past violations.

Voluntary Cessation

Even if a defendant files its delinquent EPCRA forms in response to a citizen's notice letter and announces its intention to comply in the future, a plaintiff may still benefit from the filing of a citizen suit. There is a long line of cases holding that a threat of future injury is presumed to continue when a defendant voluntarily ceases its illegal conduct in response to litigation. Such a voluntary cessation generally "does not deprive the tribunal of power to hear and determine the case."⁵¹ The presumption of continuing injury is based on the commonsense notion that a wrongdoer's "protestations of repentance and reform" may be hollow ones, timed only to escape accountability for its actions.⁵² If defendants could manipulate their conduct to avoid judicial scrutiny, they would have a "powerful weapon against public law enforcement."⁵³ To prevent this result, courts have required such defendants to meet the heavy burden of showing that it is "absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur."⁵⁴

For belated EPCRA filers, there is a serious risk that their avowed repentance is temporary and insincere. As noted above, a promise of future compliance means little. It is easy for a defendant to respond to a citizen's notice of intent to sue by filing its past-due reports and then ignoring EPCRA until it receives another notice.

Courts have primarily applied the voluntary cessation exception to hold that claims for injunctive relief are not moot, even though the defendant's violations ceased after the plaintiffs filed their complaint.⁵⁵ However, the same considerations apply to violations that stop after the receipt [27 ELR 10566] of a notice letter but before the commencement of a suit. In both cases, the defendant's change in conduct "seems timed to anticipate suit," and should therefore be viewed with suspicion.⁵⁶ While the courts have only applied the voluntary cessation exception when analyzing mootness claims, it is logical to apply it to standing as well. Standing and mootness are closely related doctrines.⁵⁷ The Supreme Court has described mootness as "standing set in a time frame."⁵⁸ Both doctrines are founded in the same case-or-controversy requirement of Article III. And for both, the issue is whether there is a sufficient prospect of remedial benefit to warrant a decision.⁵⁹ The voluntary cessation exception must, therefore, be consistent with Article III.

Applying the voluntary cessation exception to standing analysis is a stretch only in terms of timing. In mootness analysis, the court looks at the defendant's conduct after the suit begins. To extend the exception to standing, the court would need to look at the defendant's conduct before the suit begins. Is there any constitutional reason for using the filing of the complaint as the cutoff point for jurisdictional analysis in every case? The applicable precedents indicate that there is not.

It is true that "the existence of federal jurisdiction ordinarily depends on the facts as they exist when the complaint is filed."⁶⁰ However, this is not an Article III requirement. The genesis of this timing rule was in diversity cases, in which the Court had to determine whether, and when, there was complete diversity between the parties.⁶¹ In Mullen v. Torrence, Chief Justice Marshall ruled that "it is quite clear, that the jurisdiction of the Court depends upon the state of things at the time of the action brought, and that after vesting, it cannot be ousted by subsequent events."⁶² Consequently, if diversity exists at the time an action is brought, diversity jurisdiction is not defeated if the parties subsequently become nondiverse.⁶³

This timing rule "is not attributable to any specific statute or to any language in the statutes which confer jurisdiction."⁶⁴ Rather, it represents a judicial policy decision "that the sufficiency of jurisdiction should be determined once and for all at the threshold and if found to be present then should continue until final disposition of the action."⁶⁵ Because this rule has no constitutional dimension, there is no constitutional obstacle to using a broader time frame to analyze standing and to include a defendant's precomplaint conduct. It is therefore logical and proper to extend the voluntary cessation exception to standing analysis under EPCRA.

Environmental Projects

The potential monetary relief in an EPCRA citizen suit involving wholly past violations is not limited to a court-imposed assessment of penalties payable to the U.S. Treasury. In determining whether there is a sufficient prospect of remedial benefit to plaintiffs, the Court should also consider the remedies available through a negotiated consent decree.

A consent decree may provide "broader relief than the court could have awarded after a trial."⁶⁶ The courts have held that in citizen suit settlements, the parties may agree in a consent decree to apply the money to environmental projects that address the harm caused by the violation.⁶⁷ The district courts in several EPCRA citizen suits have approved consent decrees in which payments were made to such projects. For example, in Atlantic States Legal Foundation v. Whiting Roll-Up Door Manufacturing Corp.,⁶⁸ the court approved a consent decree that required the violator to purchase emergency response equipment for local agencies and to conduct a five-year pollution prevention/toxics use reduction program.⁶⁹

Congress has specifically endorsed the use of payments for environmental projects in the settlement of enforcement actions under federal environmental statutes. The conference report on the 1987 Amendments to the FWPCA stated: "Settlements of this type preserve the punitive nature of enforcement actions while putting the funds collected to use on behalf of environmental protection…. The conferees encourage this procedure where appropriate."⁷⁰

Similarly, in the 1990 Amendments to the CAA, Congress gave the district courts the "discretion to order that such civil penalties … be used in beneficial mitigation projects which are consistent with this [Act] and enhance the public health or the environment."⁷¹ During the floor debates on this issue, Senator Chafee stated that "it is quite possible for the judge to enter a consent decree in chambers, worked out with the polluter," to "fix up this area that has been so badly polluted."⁷²

EPA has endorsed the use of "supplemental environmental projects" (SEPs) in settlements of EPCRA enforcement actions. In its SEP policy, EPA recognized the deterrent effect of these projects: "The Agency encourages the use of SEPs. While penalties play an important role in environmental protection by deterring violations and creating a level playing field, SEPs can play an additional role [27 ELR 10567] in securing significant environmental or public health protection and improvements."⁷³

EPA has specifically approved SEPs that prevent or reduce the generation of pollution and restore and protect the environment.⁷⁴ EPA has also approved SEPs that increase emergency planning and preparedness under EPCRA.⁷⁵ EPA itself has settled EPCRA cases in which millions of dollars are designated for SEPs rather than the U.S. Treasury. For example, in United States v. Sherwin-Williams Co., the consent decree provided that the company would pay $ 4.7 million in penalties and as much as $ 10 million on a cleanup program aimed at bringing its 123-acre Chicago facility into compliance with federal environmental statutes, including EPCRA.⁷⁶

Nonfilers will be equally deterred from committing future EPCRA violations whether they pay a certain amount to the U.S. Treasury or to an environmental project. In either instance, they have suffered the same financial disadvantage. In addition, environmental projects can directly benefit a citizen plaintiff's members by reducing the pollution in their community. A pollution reduction project created in a citizen suit settlement could mirror the action a nonfiler would have taken voluntarily, as a result of public pressure, if it had not violated the law and had made timely disclosures required by EPCRA. Consequently, when these projects are included in the redressability analysis, the remedial benefit to plaintiffs is specific and concrete.

Conclusion

Citizen plaintiffs can meet Article III standing requirements even if a defendant comes into compliance before the citizen suit is filed. Citizens living near a facility subject to EPCRA have informational and environmental interests that will be harmed if the facility fails to disclose its release of toxic chemicals into their community. These injuries will be redressed by an assessment of civil penalties because Congress has found that civil penalties will deter nonfilers from repeating EPCRA violations. In addition, the voluntary cessation principle that has been established in analogous mootness cases prevents a defendant from defeating standing by taking corrective actions in response to a notice of intended litigation. Finally, EPCRA citizen suits may be settled on terms that provide for a defendant to pay for environmental projects in lieu of penalties, and these projects, such as a pollution prevention project, may directly benefit citizen plaintiffs by reducing their risk of exposure to toxic chemicals.

1. 42 U.S.C. §§ 11001-11050, ELR STAT. EPCRA §§ 301-330.

2. 90 F.3d 1237, 26 ELR 21408 (7th Cir. 1996).

3. Id.

4. Atlantic States Legal Found. v. United Musical Instruments, U.S.A., Inc., 61 F.3d 473, 25 ELR 21412 (6th Cir. 1995).

5. Steel Co. v. Citizens for a Better Env't, 117 S. Ct. 1079 (1997).

6. 33 U.S.C. §§ 1251-1387, ELR STAT. FWPCA §§ 101-607.

7. Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., 484 U.S. 49, 18 ELR 20142 (1987).

8. 484 U.S. at 70-71, 18 ELR at 20148 (Scalia, Stevens, and O'Connor, JJ., concurring).

9. 42 U.S.C. § 11022(a), ELR STAT. EPCRA § 312(a).

10. Id. § 11023(a), ELR STAT. EPCRA § 313(a).

11. Id. § 11023(h), ELR STAT. EPCRA § 313(h).

12. Id. § 11023(j), ELR STAT. EPCRA § 313(j).

13. Id. § 11045, ELR STAT. EPCRA § 325.

14. Id. § 11046(a)(2), ELR STAT. EPCRA § 326(a)(2).

15. Id. § 11046(a)(1), ELR STAT. EPCRA § 326(a)(1).

16. Id.

17. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 22 ELR 20913, 20915 (1992).

18. Id. at 580, 22 ELR at 20920 (Kennedy, J., concurring).

19. Warth v. Seldin, 422 U.S. 490, 500 (1975) (quoting Linda R.S. v. Richard D., 410 U.S. 614, 617 n.3 (1973)).

20. 455 U.S. 363, 373-74 (1982).

21. 42 U.S.C. § 11023(h), ELR STAT. EPCRA § 313(h).

22. Havens Realty Corp., 455 U.S. at 373.

23. 60 Fed. Reg. 57382, 57384 (Nov. 15, 1995).

24. 61 Fed. Reg. 20473, 20475 (May 7, 1996).

25. 132 CONG. REC. 29747 (1986) (statement of Rep. Sikorski).

26. 1993 EPA TOXICS RELEASE INVENTORY 173 (1995).

27. Respondent's Brief at 27, Steel Co. v. Citizens for a Better Environment (U.S. 1997) (No. 96-643).

28. Orange Env't, Inc. v. County of Orange, 860 F. Supp. 1003, 1019, 25 ELR 20247, 20255 (S.D.N.Y. 1994).

29. Pawtuxet Cove Marina, Inc. v. Ciba-Geigy Corp., 807 F.2d 1089, 1094, 17 ELR 20374, 20377 (1st Cir. 1986), cert. denied, 484 U.S. 975 (1987) (defendant ceased discharging and tied-in to a municipal treatment facility).

30. United States v. Hays, 115 S. Ct. 2431, 2435 (1995) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 22 ELR 20913, 20915 (1992)).

31. Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., 484 U.S. 49, 18 ELR 20142 (1987).

32. Budinich v. Becton Dickerson & Co., 486 U.S. 196, 200 (1988); Diamond v. Charles, 476 U.S. 54, 70 (1986).

33. 484 U.S. at 70-71, 18 ELR at 20148.

34. Tull v. United States, 481 U.S. 412, 422-23, 17 ELR 20667, 20670 (1987).

35. Atlantic States Legal Found. v. Pan Am. Tanning Corp., 993 F.2d 1017, 1021, 23 ELR 20865, 20867 (2d Cir. 1993).

36. Clean Air Act Amendments of 1990, Pub. L. No. 101-549, 104 Stat. 2399.

37. 42 U.S.C. §§ 7401-7671q, ELR STAT. CAA §§ 101-618.

38. 136 CONG. REC. 6437, 6557, 6564 § 609(a) (proposed Apr. 3, 1990).

39. Id. at 5627.

40. Id. at 6442.

41. Warth v. Seldin, 422 U.S. 490, 501 (1975).

42. SPIRG v. AT&T Bell Laboratories, 617 F. Supp. 1190, 1200-01 (D.N.J. 1985). In Bennett v. Spear, the Court found that the deterrent effect of civil penalties provided a sufficient prospect of remedial action to confer standing. 117 S. Ct. 1154, 27 ELR 20824 (1997). The plaintiffs in that case challenged the adequacy of a biological opinion issued by the U.S. Fish and Wildlife Service (FWS) under the Endangered Species Act. Plaintiffs claimed that they were injured because restrictions on lake levels recommended in the FWS' opinion would cause federal agencies to reduce the amount of irrigation water available to them. The Court held that although federal agencies were not bound to follow the opinion and reduce the water levels, they had a strong incentive to do so to avoid penalties for taking endangered species. According to the Court, the "powerful coercive effect" of the biological opinion on other federal agencies made it likely that plaintiffs' injury (i.e., the threatened water level restrictions) would be redressed if the biological opinion were set aside. Id. at 1165, 27 ELR at 20827-28. Similarly, the civil penalties imposed on EPCRA violators have a "powerful coercive effect" in stimulating compliance with EPCRA.

43. S. REP. NO. 101-228, at 373 (1989).

44. Tull v. United States, 481 U.S. 412, 422-23, 17 ELR 20667, 20670 (1987). Congress amended the FWPCA in 1987 to give EPA administrative penalty authority because "issuance of an administrative order, without penalties, has not proven powerful enough to motivate violators or deter other similar violators." S. REP. NO. 99-50, at 29 (1985). Congress expected that "this tool can be a strong force for achievement of quick compliance." Id.

45. 131 CONG. REC. 24748 (1985).

46. Id. at 24749.

47. S. REP. NO. 99-50, at 28 (1985).

48. See William A. Fletcher, The Structure of Standing, 98 YALE L.J. 221, 223 (1988).

49. Lujan v. Defenders of Wildlife, 504 U.S. 555, 580, 22 ELR 20913, 20920 (1992) (Kennedy, J., concurring).

50. Cort v. Ash, 422 U.S. 66, 84 (1975) (quoting J.I. Case Co. v. Borak, 377 U.S. 426, 433 (1964)).

51. United States v. W.T. Grant Co., 345 U.S. 629, 632 (1953).

52. Id. at 633.

53. Id. at 632.

54. Id. at 633.

55. At least two courts of appeals have applied the doctrine in cases in which the defendant ceased its illegal conduct before filing the complaint, but after the defendant became aware of an investigation or impending lawsuit. See Jager v. Douglas County Sch. Dist., 862 F.2d 824, 833-34 (11th Cir. 1989); Hall v. Board of Sch. Comm'rs, 656 F.2d 999, 1000-01 (5th Cir. 1981).

56. W.T. Grant Co., 345 U.S. at 633.

57. Warth v. Seldin, 422 U.S. 490, 499 n.10 (1975).

58. Arizonans for Official English v. Arizona, 117 S. Ct. 1055, 1069 n.22 (1997).

59. 13 CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE & PROCEDURE § 3531.6 (2d ed. 1984).

60. Lujan v. Defenders of Wildlife, 504 U.S. 555, 569 n.4, 22 ELR 20913, 20913 n.4 (1992) (quoting Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 830 (1989)).

61. Smith v. Sperling, 354 U.S. 91, 93 (1957) (citing Mullen v. Torrence, 22 U.S. (9 Wheat.) 537 (1824)).

62. Mullen, 22 U.S. at 537.

63. See 13B CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE & PROCEDURE § 3608 (2d ed. 1984).

64. Dery v. Wyer, 265 F.2d 804, 808 (2d Cir. 1959).

65. Id.; 13B WRIGHT, supra note 63, § 3608, at 452.

66. Local No. 93 v. City of Cleveland, 478 U.S. 501, 525 (1986).

67. Public Interest Research Group of N.J. v. Powell Duffryn Terminals, Inc., 913 F.2d 64, 81 n.32, 20 ELR 21216, 21224 n.32 (3d Cir. 1990), cert. denied, 498 U.S. 1109 (1991); Sierra Club v. Electronic Controls Design, Inc., 909 F.2d 1350, 1355-56, 20 ELR 21081, 21084 (9th Cir. 1990).

68. 38 Env't Rep. Cas. (BNA) 1426, 1428 (W.D.N.Y. Mar. 23, 1994).

69. See also Atlantic States Legal Found. v. Com-Cir-Tek, Inc., [22 Current Developments] Env't Rep. (BNA) 535 (June 28, 1991) (pollution prevention program); Atlantic States Legal Found. v. Allied Signal, [21 Current Developments] Env't Rep. (BNA) 1852 (Feb. 15, 1991) (hazardous materials planning and response activities by local emergency planning committee).

70. H. REP. NO. 99-1004, at 139 (1986).

71. 42 U.S.C. § 7604(g)(2), ELR STAT. CAA § 304(g)(2).

72. 136 CONG. REC. 5628 (1990).

73. EPA, INTERIM REVISED SUPPLEMENTAL ENVIRONMENTAL PROJECTS POLICY (May 8, 1995), ELR ADMIN. MAT. I 35613. In a footnote, EPA stated that depending on circumstances and cost, SEPs also may have a deterrent impact.

74. Id. at 6-7.

75. Id. at 9-10.

76. [27 Current Developments] Env't Rep. (BNA) 2029 (Feb. 7, 1997); 62 Fed. Reg. 7473 (Feb. 19, 1997).