Standing and Mootness After Laidlaw

Craig N. Johnston

Professor of Law, Northwestern School of Law, Lewis & Clark College, Portland, Oregon.

Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc.¹ may prove to be the most important environmental decision since Chevron, U.S.A., Inc. v. Natural Resources Defense Council.² Laidlaw's primary significance lies in its discussion of the injury component of the U.S. Supreme Court's now familiar three-part standing test.³ The Laidlaw opinion, written by Justice Ginsburg and joined by five other Justices,⁴ reflects the Court's newly heightened sensitivity to the nature of the injuries that citizen plaintiffs suffer in the face of environmental violations. As such, this portion of the opinion represents a major victory for environmental plaintiffs. Indeed, the Court's new approach to injury questions may bear out Justice Scalia's prediction in his dissenting opinion that, henceforth, environmental groups likely will be able to establish injury-in-fact whenever they have members that live near any offending plants.⁵

Second, the Court's determination that citizens who face ongoing violations may seek to have penalties imposed for all past violations constitutes another significant victory for environmental plaintiffs. Remarkably, the Court's treatment of the question whether penalties payable to the U.S. Treasury provide sufficient redress to support standing marks an almost complete about-face from the position it carved out less than two years earlier in Steel Co. v. Citizens for a Better Environment.⁶

But Laidlaw was not a complete victory for the environmental community. The Court's mootness discussion provides a mixed blessing at best. On the positive side, by clarifying the relationship between the standing and mootness doctrines, the Court made clear that environmental offenders will bear a heavy burden in seeking to have citizen suits dismissed as moot based on claims of post-complaint reform. At the same time, however, the Court indicated that when defendants meet this burden, the case will be mooted, including any penalty claims for past violations. This last aspect of the Court's analysis may undermine any possibility of having citizens suits achieve a significant deterrent effect in many contexts (perhaps proving that, as far as environmental victories from this Court go, every silver lining has a touch of grey).⁷

Laidlaw is also noteworthy for two issues that the Court addressed but did not resolve. These include both the question of whether citizens may recover attorneys fees where their actions prompt compliance before a judicial order becomes necessary (under the so-called catalyst theory), and the issue of whether the whole notion of citizen enforcement is consistent with Article II of the U.S. Constitution. In both areas, the Court's consideration provides fodder for speculation regarding how it may resolve these issues if and when it confronts them.

Background

Laidlaw was a citizen suit in which the district court ultimately determined that the defendant's facility in Roebuck, South Carolina, had failed to comply with the Clean Water Act (CWA)⁸ for several years.⁹ Although the violations were ongoing at the time the complaint was filed, the defendant came into compliance shortly thereafter.¹⁰ The district court imposed a fine of $ 405,800 for the years of noncompliance, but denied the plaintiffs' request for injunctive relief, largely because by the time the case reached the remedy phase, the defendant had been in compliance for five years.¹¹

On appeal, the Fourth Circuit reversed the penalty award, determining that the case had become moot as soon as the plaintiffs failed to appeal the district court's denial of their request for injunctive relief.¹² The court cited Arizonans for Official English v. Arizona¹³ and two other [30 ELR 10318] cases¹⁴ for the dual propositions that mootness and standing are closely linked, and that mootness doctrine requires that the elements of standing (injury, causation, and redressability) "must continue to exist at every stage of review, not merely at the time of the filing of the complaint."¹⁵ The court went on to conclude that, because only penalties remained at stake in the litigation before it, the Supreme Court's 1998 decision in Steel Co. indicated that there was no continuing redressability and that, therefore, the case was moot.¹⁶ It therefore remanded the case to the lower court with instructions to dismiss. In a footnote, the Fourth Circuit further determined that the plaintiffs' "failure to obtain relief on the merits of their claims precluded any recovery of attorneys' fees or other litigation costs because such an award is available only to a 'prevailing or substantially prevailing party.'"¹⁷

The Supreme Court's Decision

Injury-in-Fact

In Laidlaw, the Court first addressed the injury prong of the standing analysis. The Court began its discussion by noting Laidlaw's argument that any finding of an injury was precluded by the fact that the district court, in the course of determining the appropriate fine, had expressly found that Laidlaw's discharges had not harmed the environment.¹⁸ The Court determined that this was not dispositive, however, because "the relevant showing for purposes of Article III standing . . . is not injury to the environment but injury to the plaintiff."¹⁹ The Court noted that insisting upon a showing of harm to the environment would have the effect of raising "the standing hurdle higher than the necessary showing for success on the merits in an action alleging noncompliance with an NPDES permit."²⁰

The Laidlaw Court went on to review the affidavits and deposition testimony of the plaintiffs' standing affiants, focusing primarily on their non-use injuries.²¹ Contrasting these sworn statements with those relied on by the plaintiff in the earlier case of Lujan v. National Wildlife Federation,²² the Court characterized the affidavits and testimony before it as demonstrating "the affiant members' reasonable concerns about the effect of [Laidlaw's] discharges," and concluded that they presented "dispositively more than the mere 'general averments' and 'conclusory allegations' found inadequate in National Wildlife Federation."²³

In dissent, Justice Scalia argued that the plaintiffs had failed to demonstrate that they had suffered a "concrete and particularized" injury within the meaning of Lujan v. Defenders of Wildlife (Defenders).²⁴ He characterized the plaintiffs' affidavits as being "woefully short" of the specific facts necessary to support standing beyond the motion to dismiss stage, and further opined that "the vague allegations of injury they do make are undermined by the evidence adduced at trial."²⁵ Justice Scalia then responded to the majority's harm-to-the-plaintiffs versus harm-to-the-environment distinction in the following terms:

The Court finds [the conclusions regarding the lack of harm to the environment] unproblematic for standing, because "the relevant showing for purposes of Article III standing . . . is not injury to the environment but injury to the plaintiff." This statement is correct, as far as it goes. . . . In the normal course, however, a lack of demonstrable harm to the environment will translate, as it plainly does here, into a lack of demonstrable harm to citizen plaintiffs. While it is perhaps possible that a plaintiff could be harmed even though the environment was not, such a plaintiff would have the burden of articulating and demonstrating the nature of that injury. Ongoing "concerns" about the environment are not enough, for "it is the reality of the threat of repeated injury that is relevant to the standing inquiry, not the plaintiff's subjective apprehensions," Los Angeles v. Lyons, 461 U.S. 95, 107, n.8 (1983). At the very least, in the present case, one would expect to see evidence supporting the affidavits' bald concerns regarding decreasing recreational usage and declining home values, as well as evidence for the improbable proposition that Laidlaw's violations, even though harmless to the environment, are somehow responsible for these effects.²⁶

Justice Scalia concluded his critique of the majority's injury analysis by offering the following lament:

By accepting plaintiffs' vague, contradictory, and unsubstantiated allegations of "concern" about the environment as adequate to prove injury in fact, and accepting them even in the face of a finding that the environment was not demonstrably harmed, the Court makes the injury-in-fact requirement a sham. If there are permit violations, and a member of a plaintiff environmental organization lives near the offending plant, it would be difficult not to satisfy today's lenient standard.²⁷

The majority responded to Justice Scalia by distinguishing the situation before it from that which the Court had been presented with in Los Angeles v. Lyons.²⁸

In the footnote from Lyons cited by the dissent, we noted that "the reasonableness of Lyons' fear is dependent upon the likelihood of a recurrence of the allegedly unlawful conduct," and that his "subjective apprehensions" that such a recurrence would even take place were not enough to support standing. Here, in contrast, it is undisputed [30 ELR 10319] that Laidlaw's unlawful conduct—discharging pollutants in excess of permit limits—was occurring at the time the complaint was filed. Under Lyons, then, the only "subjective" issue here is "the reasonableness of [the] fear" that led the affiants to respond to that concededly ongoing conduct by refraining from the use of the North Tyger River and surrounding areas. Unlike the dissent, we see nothing "improbable" about the proposition that a company's continuous and pervasive illegal discharges of pollutants into a river would cause nearby residents to curtail their recreational use of that waterway and would subject them to other economic and aesthetic harms. The proposition is entirely reasonable, the District Court found it was true in this case, and that is enough for injury in fact.²⁹

Penalties/Redressability

Turning to the issue of whether citizen plaintiffs have standing to seek penalties, the Court first agreed with Laidlaw that plaintiffs "must demonstrate standing separately for each form of relief sought."³⁰ It then concluded, however, that citizens who face ongoing violations generally do have standing to seek civil penalties. In reaching this conclusion, the Court first noted that Congress has found that civil penalties deter future violations, a finding that it deemed worthy of "judicial attention and respect."³¹ The Court went on to embrace this finding:

It can scarcely be doubted that, for a plaintiff who is injured or faces the threat of future injury due to illegal conduct ongoing at the time of suit, a sanction that effectively abates that conduct and prevents its recurrence provides a form of redress. Civil penalties can fit that description. To the extent that they encourage defendants to discontinue current violations and deter them from committing future ones, they afford redress to citizen plaintiffs who are injured or threatened with injury as a consequence of ongoing unlawful conduct.³²

The Court closed its standing discussion by distinguishing Steel Co. In that case, of course, the Court had held that civil penalties do not provide sufficient redressability to support citizen standing in situations in which the violator came into compliance with the relevant requirements prior to the filing of the citizen suit.³³ In Laidlaw, the Court simply noted that its decision in Steel Co. "did not reach the issue of standing to seek penalties for violations that are ongoing at the time of the complaint and that could continue into the future if undeterred."³⁴

In dissent, Justice Scalia raised three arguments in attacking what he termed the majority's "cavalier" redressability discussion.³⁵ First, he argued that the majority's approach was inconsistent with Linda R.S. v. Richard D.,³⁶ a case in which the Court had held thatthe mother of an illegitimate child did not have standing to challenge the allegedly discriminatory application of a Texas child-support statute because she could not show that, if the statute were enforced, the child's father would in fact pay child support.³⁷ Second, Justice Scalia maintained that the majority was taking an unprecedented step in allowing "Article III's remediation requirement to be satisfied by the indirect private consequences of a public penalty . . . ."³⁸ He elaborated on this point in the following terms:

The "remediation" that is the traditional business of Anglo-American courts is relief specifically tailored to the plaintiff's injury, and not any sort of relief that has some incidental benefit to the plaintiff. Just as a "generalized grievance" that affects the entire citizenry cannot satisfy the injury-in-fact requirement even though it aggrieves the plaintiff along with everyone else, so also a generalized remedy that deters all future unlawful activity against all persons cannot satisfy the remediation requirement, even though it deters (among other things) repetition of this particular unlawful activity against these particular plaintiffs.³⁹

And third, Justice Scalia decried what he viewed as the speculative nature of any deterrence benefit that the plaintiffs would receive in this particular case. In so doing, he distinguished between penalties for past violations, which he viewed as having no deterrence value, and the availability of penalties for future violations, which he acknowledged have at least some deterrent effect.⁴⁰ While recognizing that Laidlaw's fear of future penalties might be slightly higher if it had already been fined for past violations, Justice Scalia deemed it "entirely speculative whether it [would] make the difference between these plaintiffs' suffering injury in the future and these plaintiffs' going unharmed."⁴¹

The majority responded to only the first and third of Justice Scalia's points. In a footnote, it distinguished Linda R.S. as involving a situation where the plaintiff sought the "extraordinary remedy" of seeking to force a district attorney to file a criminal enforcement action against the absentee father for non-support.⁴² And as to the speculative nature of the benefit that would flow to the plaintiffs' members, the Court found it sufficient that "a defendant once hit in its pocketbook will surely think twice before polluting again."⁴³

Mootness

On the mootness front, the Court first noted that both of the possible bases for a finding of mootness—that Laidlaw had achieved substantial compliance in 1992 and the fact that it had recently shut down the offending plant entirely⁴⁴—involved voluntary conduct, thus triggering the potential application of the "voluntary cessation" exception to the mootness doctrine.⁴⁵ The Court quoted United States v. [30 ELR 10320] Concentrated Phosphate Export Ass'n⁴⁶ for the proposition that a defendant's voluntary cessation of the challenged practice will result in mootness only if the defendant meets a "heavy burden" of persuading a court that "the allegedly wrongful behavior could not reasonably be expected to recur."⁴⁷

Next, the majority determined that the Fourth Circuit had erred in treating standing and mootness as being two sides of the same coin, as if only timing concerns separated the two doctrines. The court pointed out that such an approach, although suggested in some prior Court opinions,⁴⁸ ignores the different burdens of proof involved in the standing and mootness contexts, at least where the claim of mootness is based on the defendant's voluntary cessation of the challenged activity:

Careful reflection on the long-recognized exceptions to mootness, however, reveals that the description of mootness as "standing set in a time frame" is not comprehensive. As just noted, a defendant claiming that its voluntary compliance moots a case bears the formidable burden of showing that it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur. By contrast, in a lawsuit brought to force compliance, it is the plaintiff's burden to establish standing by demonstrating that, if unchecked by the litigation, the defendant's allegedly wrongful behavior will likely occur or continue, and that the "threatened injury [is] certainly impending."⁴⁹

The Court concluded that, because of these different burdens of proof, "there are circumstances in which the prospect that a defendant will engage in (or resume) harmful conduct may be too speculative to support standing, but not too speculative to overcome mootness."⁵⁰

Turning to Laidlaw's claim that the plaintiffs' failure to appeal the district court's denial of injunctive relief should result in mootness as a matter of law, the Court determined that this argument misconstrued the relationship between the various remedies available under the CWA and, thus, the import of the denial of injunctive relief:

Under [the citizen suit provision], the district court has discretion to determine which form of relief is best suited, in the particular case, to abate current violations and deter future ones. "[A] federal judge sitting as chancellor is not mechanically obligated to grant an injunction for every violation of law." Denial of injunctive relief does not necessarily mean that the district court has concluded there is no prospect of future violations for civil penalties to deter. Indeed, it meant no such thing in this case. The District Court denied injunctive relief, but expressly based its award of civil penalties on the need for deterrence.⁵¹

In the end, the Laidlaw Court determined that the mootness issues should be left to the lower courts on remand. It cautioned, however, that not even Laidlaw's closure of the Roebuck facility should automatically result in a finding of mootness:

The facility closure, like Laidlaw's earlier achievement of substantial compliance with its permit requirements, might moot the case, but—we once more reiterate—only if one or the other of these events made it absolutely clear that Laidlaw's permit violations could not reasonably be expected to recur. The effect of both Laidlaw's compliance and the facility closure on the prospect of future violations is a disputed factual matter. FOE points out, for example—and Laidlaw does not appear to contest—that Laidlaw retains its NPDES permit. These issues have not been aired in the lower courts; they remain open for consideration on remand.⁵²

Moreover, the Court noted that, given the odd posture of this case (the district court had issued a judgment and imposed a fine before the mootness issue was even raised), "it is far from clear that vacatur of the District Court's judgment would be the appropriate response to a finding of mootness on appeal . . . ."⁵³

Justice Stevens raised two mootness-related points in his concurrence. First, he definitively declared his position on the last issue discussed by the majority, arguing that "no post-judgment conduct of the respondent could retroactively invalidate a judgment." Even more broadly, Justice Stevens agreed with the approach that had been adopted by all six of the courts of appeals that had confronted the issue before the Court's decision in Steel Co., i.e., that post-complaint compliance can never moot claims for penalties for past violations because, under the CWA, liability for penalties attaches at the time a permit violation occurs.⁵⁴ He added the further point that, in his view, civil penalties should be equated with punitive damages for purposes of mootness analysis.⁵⁵

Justice Scalia did not dissent on the mootness issue. In a footnote, however, he termed Justice Stevens' analogy to punitive damages "inapt," noting that, even under the majority's view, civil penalties are privately assessable only where necessary to deter future harm to the plaintiff. Thus, Justice Scalia concluded that "where there is no threat to the plaintiff, he has no claim to deterrence."⁵⁶

[30 ELR 10321]

Attorney Fees

Only the majority addressed the Fourth Circuit's attorney fee analysis. And even it did so without resolving matters. The Court began by noting that the Fourth Circuit in Laidlaw considered itself bound by prior circuit precedent construing the Court's decision in Farrar v. Hobby⁵⁷ as repudiating the "catalyst" theory (under which citizens had been able to recover fees where their legal actions prompted compliance, even if they did so without a judicial decree).⁵⁸ The Court itself, however, appeared to indicate its view that Farrar had not resolved this issue:

Farrar acknowledged that a civil rights plaintiff awarded nominal damages may be a "prevailing party" under 42 U.S.C. § 1988, 506 U.S., at 112. The case involved no catalytic effect. Recognizing that the issue was not presented for this Court's decision in Farrar, several Courts of Appeals have expressly concluded that Farrar did not repudiate the catalyst theory.⁵⁹

Still, however, the Court declined to further address the issue, determining that it would be premature for it to do so in the absence of an order from the district court either denying or awarding fees.⁶⁰

Article II

Justice Kennedy raised the separation-of-powers issues in his one-paragraph concurrence in Laidlaw. Although he deemed these issues "best reserved for a later case" given the lack of attention devoted to them in the briefing, he noted his view that:

Difficult and fundamental questions are raised when we ask whether exactions of public fines by private litigants, and the delegation of Executive power which might be inferable from the authorization, are permissible in view of the responsibilities committed to the Executive by Article II of the Constitution of the United States. . . .⁶¹

Justice Scalia seconded these concerns, noting that he saw issues with respect to both the Take Care Clause and the Appointments Clause.⁶² While Justice Scalia also shared Justice Kennedy's view that these issues were best reserved for a later day,⁶³ he tipped his hand somewhat by discussing the relevant dynamics under the rubric of an Article III analysis. Noting that a citizen plaintiff "acts as a self-appointed mini-[U.S. Environmental Protection Agency (EPA)]," Justice Scalia went on to argue that such a plaintiff could abuse that power to serve private ends:

The availability of civil penalties vastly disproportionate to the individual injury gives citizen plaintiffs massive bargaining power—which is often used to achieve settlements requiring the defendant to support environmental projects of the plaintiffs' choosing. Thus is a public fine diverted to a private interest.⁶⁴

Justice Scalia further indicated that he does not believe that this problem vanishes merely because EPA can preclude the citizen action by filing its own suit within the required 60-day notice period:

To be sure, the EPA may foreclose the citizen suit by itself bringing suit. This allows public authorities to avoid private enforcement only by accepting private direction as to when enforcement should be undertaken—which is no less constitutionally bizarre. Elected officials are entirely deprived of their discretion to decide that a given violation should not be the object of suit at all, or that the enforcement decision should be postponed.⁶⁵

The majority responded to these concerns in a footnote:

Certainly the federal Executive Branch does not share the dissent's view that such suits dissipate its authority to enforce the law. In fact, the Department of Justice has endorsed this citizen suit from the outset, submitting amicus briefs in support of FOE in the District Court, the Court of Appeals, and this Court. As we have already noted, the Federal Government retains the power to foreclose a citizen suit by undertaking its own action. And if the Executive Branch opposes a particular citizen suit, the statute allows the Administrator of the EPA to "intervene as a matter of right" and bring the Government's views to the attention of the court. § 1365(c)(2).⁶⁶

To which Justice Scalia replied in a footnote of his own:

The Court observes that "the federal Executive Branch does not share the dissent's view that such suits dissipate its authority to enforce the law," since it has "endorsed this citizen suit from the outset." Of course, in doubtful cases a long and uninterrupted history of presidential acquiescence and approval can shed light upon the constitutional understanding. What we have here—acquiescence and approval by a single Administration—does not deserve passing mention.⁶⁷

Analysis

Injury-in-Fact

Again, the Court's treatment of the injury prong of the standing analysis is the most significant part of the opinion.⁶⁸ This has to be considered a surprising development, given that neither of the underlying written opinions even addressed the standing issue (as distinct from mootness),⁶⁹ and also that the Court's grant of certiorari was limited to the [30 ELR 10322] mootness question.⁷⁰ Nonetheless, the Court determined that it had an obligation to examine whether Friends of the Earth had standing at the outset of the litigation,⁷¹ and in so doing it issued what may prove to be its most important environmental standing pronouncement since Sierra Club v. Morton.⁷²

The crux of the Laidlaw Court's injury analysis is in its focus on the reasonableness of the plaintiffs' affiants' concerns about the effects of Laidlaw's discharges on their recreational interests in the North Tyger River. Several of these affiants submitted sworn statements indicating that they had curtailed their use of the river because they knew of Laidlaw's permit violations.⁷³ The Court found these reactions per se reasonable, stating that it saw "nothing improbable about the proposition that a company's continuous and pervasive illegal discharges of pollutants would cause nearby residents to curtail their recreational use of that waterway."⁷⁴

The Court's approach is particularly striking given that, at the penalty stage of the case, the district court had found that the plaintiffs had failed to demonstrate that the defendant's discharges had resulted in any harm to the environment.⁷⁵ The majority found that, at least in this case, the combined effect of the defendant's violations and the affiants' descriptions of their responses to those violations was sufficient to survive the district court's later findings regarding the absence of demonstrated harm to the environment. The Court thus recognized an important distinction between reasonable concerns in the face of environmental threats (and reasonable reactions in light of those concerns), on the one hand, and the ability to show actual adverse effects on the environment, on the other.

This is as it should be, at least in most cases. Imagine, for example, that you have a lake on your property and you discover that an upstream industrial discharger has been violating the CWA by discharging heavy metals and polychlorinated biphenyls (PCBs) in excess of its permit limits. And later, when state officials take samples from your pond, you learn that the very same pollutants are found in your pond sediments. If you subsequently reduce your consumption of the fish from your lake, and if you also reduce your grandchildren's access to it, have you suffered a cognizable injury? Or do you need to prove that PCBs (which tend to bioaccumulate) are present in the fish at levels that toxicologists have deemed unhealthful or, alternatively, that scientific experts have deemed the levels of heavy metals or PCBs in the lake sediments unacceptable for water-contact recreation?

Or imagine that you live near a stream that traditionally has been clean enough that you have felt comfortable drinking from it. Upon learning that an upstream discharger has been violating its total organic carbon (TOC) limits due at least in part to excessive geese droppings in its treatment pond, you decide to forego drinking water from that source. Do you meet the injury-in-fact test? Or do you need to prove that the levels of bacteria in the water are above water quality standards, or that they are high enough that your risk of disease or other ill effects would exceed some specified level if you continued to drink the water? And if the latter, what would that specified level be: a 50 percent chance of illness, a 10 percent chance, or perhaps a one-in-a-million chance?

The above hypotheticals are derived from two pre-Laidlaw decisions in which two different courts of appeals found that the plaintiffs had not adequately demonstrated injury-in-fact. In the first-described case, Friends of the Earth, Inc. v. Gaston Copper Recycling Corp.,⁷⁶ the Fourth Circuit originally found that the plaintiffs had failed to show that the relevant affiant's (Mr. Shealy's) lake was "adversely affected by pollution."⁷⁷ In so concluding, the court noted both that the plaintiffs had identified no "observable negative impact" on the lake, and that they had submitted "no toxicity tests, or tests or studies of any kind . . . ."⁷⁸

The second case, Public Interest Research Group of New Jersey, Inc. v. Magnesium Elektron, Inc.,⁷⁹ was similar to Laidlaw in that, although at the outset of the case the district court determined that the plaintiffs had standing to prosecute their action (and, in this case, the Third Circuit had affirmed that holding on interlocutory review), at the penalty phase the district court ultimately found that the defendant's discharges had caused no harm and posed no threat to the relevant river.⁸⁰ In light of this finding, Magnesium Elektron reraised the standing issue on appeal. While noting that one of the plaintiffs' affiants (Julie Howatt) avoided drinking water from the relevant waterway because she was concerned that it might be contaminated,⁸¹ the Third Circuit concluded that:

The reduction in a person's recreational activity cannot support the injury prong of standing when a court also concludes that a polluter's violation of an effluent standard has not harmed the affected waterway and that it, in fact, poses no threat to that waterway.⁸²

Specifically addressing the effects of the defendant's TOC violations, the court deemed determinative the district court's conclusion that, because the relevant waterway was nutrient-deprived, the defendant's discharges had actually benefitted the stream by adding nutrients to it.⁸³

These cases illustrate the unsoundness of an approach that would require citizen plaintiffs to demonstrate measurable adverse effects on the environment in order to establish standing under Article III. As I have noted in a prior article,⁸⁴ it seems eminently reasonable that one would reduce one's consumption of fish from a lake if one knew of the presence of PCBs in the lake sediments, or that one would refrain [30 ELR 10323] from drinking water from a stream if one knew that an upstream discharger was violating its TOC (bacteria) limits.⁸⁵ And the reasonableness of this course of conduct may have nothing to do with whether the levels of pollution exceed a water quality standard or some other indicia of predetermined unhealthfulness. Notably, water quality standards are not designed to remove all risk. In some circumstances, they can even be set at levels that pose not-insignificant risks of causing cancer.⁸⁶ It should go without saying that a reasonable person might avoid eating fish from a waterway, for example, if to do so would measurably increase his or her chances of getting cancer. Neither the Gaston Copper panel majority nor the Magnesium Elektron court made any effort to explain why the reactions of Mr. Shealy or Ms. Howatt (respectively) were unreasonable. Rather, they merely concluded that the plaintiffs had not shown harm to the environment.

Even before Laidlaw, the D.C. Circuit had established a much more plaintiff-friendly test than the Third and Fourth Circuits. In Louisiana Environmental Action Network v. U.S. Environmental Protection Agency (LEAN),⁸⁷ the court dealt with a challenge to a variance EPA had promulgated under the Resource Conservation and Recovery Act's (RCRA's) "land ban" provisions. After noting that the variance would "lower the average quality of waste disposed of"⁸⁸ at the relevant facility, the court concluded that "to the extent that there is any residual risk in the lower quality wastes, application of the rule will increase the risk of harm to LEAN members,"⁸⁹ thus providing them with standing to challenge the variance.

Laidlaw essentially embraces the LEAN approach. Under Laidlaw, environmental plaintiffs are deemed to have suffered a constitutionally cognizable harm whenever they reasonably refrain from using an affected resource because the defendant's alteration of that resource poses a risk of harm, even if the resource itself currently exhibits no observable manifestations of harm. Additionally, Laidlaw firmly indicates that plaintiffs need not put on an elaborate scientific case quantifying the degree of risk that would be posed if they in fact used the relevant resource in order to establish such an injury. In Laidlaw, the plaintiffs' affiants indicated that they fish, swam, waded, and canoed in the North Tyger River less often because they were aware of Laidlaw's illegal mercury discharges.⁹⁰ They submitted no scientific studies regarding the nature of the threats that Laidlaw's discharges would have posed if they had gone ahead with these activities, nor any proof that the discharges caused the level of pollutants in the river to exceed water quality standards. Nonetheless, the Court found the affiants' reactions per se reasonable, stating that it saw "nothing 'improbable' about the proposition that a company's pervasive and illegal discharges of pollutants into a river would cause nearby residents to curtail their recreational use of that waterway . . . ."⁹¹

The dramatic effect of Laidlaw's injury analysis can clearly be seen in the Fourth Circuit's recent en banc reconsideration of Gaston Copper.⁹² After Laidlaw was decided, the en banc panel unanimously reversed course, determining that Mr. Shealy was "a classic example of an individual who has suffered an environmental injury in fact fairly traceable to a defendant's conduct."⁹³ The majority opinion at the en banc level was written by Chief Judge Wilkinson, who had dissented from the original panel opinion. Perhaps unsurprisingly (given the fact that he thought the panel was wrong in the first place), his opinion does not place that much reliance on Laidlaw.⁹⁴ More interesting are the three concurring opinions. All three judges clearly indicated that they would have affirmed the district court were it not for Laidlaw. Judge Niemeyer stated that, in his view, "Laidlaw represents a sea change in constitutional standing principles."⁹⁵ Judge Luttig accused the en banc majority of "persisting in the fiction" that Laidlaw "was merely an unexceptional reaffirmation of the Court's previous precedents."⁹⁶ And Judge Hamilton, who wrote the original panel opinion, accused the Laidlaw Court of having "unnecessarily opened the standing floodgates, rendering our standing inquiry 'a sham.'"⁹⁷

The bottom line under Laidlaw's injury analysis may very well be the specter that Justice Scalia lamented in his dissent, i.e., that citizens groups will routinely be able to establish standing whenever they have members that live near offending plants.⁹⁸ At the very least, however, it should be remembered that plaintiff organizations must allege that the defendant's violations pose a threat that their members would encounter if they were to use the affected resource. By way of example, if the foregone uses in Laidlaw had only involved picnicking along the river, the plaintiffs presumably would not have had standing unless they could reasonably have alleged that their picnicking would somehow have put them at risk because of the excess mercury in the water (an unlikely proposition, unless they could testify that their picnicking would have involved contact with the water through wading, swimming, or the like).⁹⁹

Laidlaw leaves some injury questions unresolved. It is not clear, for example, how proximate the plaintiff's [30 ELR 10324] would-be use must be to the offending discharge point. In Laidlaw, one of the plaintiffs' affiants (Judy Pruitt) lived only one-quarter mile from the plant. What if the nearest point of access to the river was 15 miles downstream? Or what if the plaintiff's affiants could only allege that they would use the river at a point 75 miles downstream? Would the Court still be willing to presume that any foregone-use injuries based on permit exceedances were per se reasonable? At some point, presumably, the reasonableness of the plaintiff's concerns breaks down (what if the discharge were into a river in Oregon and the plaintiff foregoes the use of a beach in San Diego?). But Laidlaw does not address where that point is.¹⁰⁰

And finally, Laidlaw does not indicate how hard and fast the presumption is that one who would otherwise use the affected waterway reacts reasonably when he or she foregoes that use because it might result in exposure to the relevant pollutants. What if, for example, the foregone use involves wading, and the defendant puts on unrebutted evidence that dermal exposure to mercury poses no risk of adverse health effects? Or what if the foregone use involves drinking, the relevant pollutant is both odorless and tasteless, and the defendant puts on unrebutted evidence that it poses absolutely no increased risk of illness at the levels present in the defendant's discharge? Would the plaintiff still have standing? Time will tell; Laidlaw does not.

Penalties/Redressability

The Laidlaw Court's redressability analysis firmly establishes a general rule that citizens may seek to have courts impose fines that are payable to the Treasury, subject to two important caveats. The first restriction, which comes from the combined effect of Steel Co. and the Court's earlier decision in Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation¹⁰¹ is that the citizens must be able to allege and ultimately prove that the defendant was in violation of the relevant statute or permit on the date the complaint was filed. Nothing in Laidlaw overrules those prior precedents. Second, there must, at least until the time of judgment,¹⁰² be at least some possibility of future violations; Laidlaw itself indicates that, prior to that time, the defendant can moot any claim for penalties by establishing that it is "absolutely clear" that its violations "could not reasonably be expected to recur."¹⁰³

These caveats aside, however, the Laidlaw Court embraced the plaintiffs' argument that the imposition of fines payable to the Treasury sufficiently reduces the likelihood of future violations to provide redressability under Article III. That the Court was willing to take this step is remarkable given its pronouncements on essentially the same question less than two year's earlier in Steel Co. In that case, the Court, in an opinion written by Justice Scalia (and with five other justices signing on to the relevant analysis),¹⁰⁴ determined that the availability of penalties payable to the Treasury did not provide redressability in a citizen suit under the Emergency Planning and Community Right-To-Know Act (EPCRA)¹⁰⁵ because, in seeking them, the plaintiff did not seek "remediation of its own injury . . . but vindication of the rule of law—the 'undifferentiated public interest' in faithful execution of EPCRA."¹⁰⁶ The Court disparaged the notion that any perceived benefit to an individual plaintiff from the imposition of fines should be enough to support standing:

By the mere bringing of his suit, every plaintiff demonstrates his belief that a favorable judgment will make him happier. But although a suitor may derive great comfort and joy from the fact that the United States Treasury is not cheated, that a wrongdoer gets his just deserts [sic], or that the nation's laws are faithfully enforced, that psychic satisfaction is not an acceptable Article III remedy because it does not redress a cognizable Article III injury.¹⁰⁷

In his concurrence in Steel Co.,¹⁰⁸ Justice Stevens argued that the deterrent effect that a penalty would have on the violator should be enough to establish redressability. The majority responded that such an approach would be inconsistent with Linda R.S. and another Supreme Court case, Simon v. Eastern Kentucky Welfare Rights Organization.¹⁰⁹

In Laidlaw, however, the tables turned. Justice Ginsburg, writing for the Court, determined that:

To the extent that [civil penalties] encourage defendants to discontinue future violations and deter them from committing future ones, they afford redress to citizen plaintiffs who are injured or threatened with injury as a consequence of ongoing unlawful conduct.¹¹⁰

And in response to Justice Scalia's claim that it was "entirely speculative" whether the imposition of penalties for past violations would make it any less likely that Laidlaw would violate its permit in the future,¹¹¹ the Court found it self-evident that "a defendant once hit in its pocketbook will surely think twice before polluting again."¹¹²

Can Laidlaw be squared with Steel Co.? At least at one level, it cannot. Justice Scalia's majority opinion in Steel Co. was fueled by two related ideas: first, that citizens have only an undifferentiated interest in the assessment of fines that are payable to the Treasury; and second, that the prospect [30 ELR 10325] that imposing fines for past violations will cause defendants to alter their future actions in ways that will benefit specific plaintiffs is simply too speculative to support redressibility. If a majority of the Court continued to adhere to these views, Laidlaw would have come out differently. Indeed, these are the very views that Justice Scalia continued to press in his Laidlaw dissent. But now, at least in situations where there are ongoing violations at the time the complaint is filed, he finds himself able to command only one additional vote.

As mentioned, the Laidlaw majority never specifically responded to Justice Scalia's argument that generalized remedies are just as constitutionally troubling as generalized injuries.¹¹³ What Justice Scalia ignores, however, is the fact that the plaintiffs in Laidlaw were not similarly situated with the citizenry at large. Indeed, the entire injury discussion in Laidlaw spoke to the fact that the plaintiffs' members had suffered "particularized" injuries that were not shared by the general public. Seen in that light, it seems self-evident that the plaintiffs are not just sharing in a generalized remedy. To borrow from Justice Scalia's opinion in Steel Co., having penalties imposed in such situations is not merely a matter of providing the plaintiffs with the "psychic satisfaction" of seeing that "the United States Treasury is not cheated, that a wrongdoer gets his just deserts [sic], or that the nation's laws are faithfully enforced . . . ."¹¹⁴ Rather, it is a matter of specific deterrence; that is, of making it less likely that this particular defendant will in the future violate its permit in ways that harm the plaintiffs.

Juxtaposing Laidlaw and Steel Co., the Laidlaw majority (three members of whom had joined in the majority opinion in Steel Co.)¹¹⁵ was careful to distinguish the situation before it from that which was before the Court in Steel Co., based on the fact that in Laidlaw the problem had not been solved before the complaint was filed.¹¹⁶ This fits nicely with the Court's mootness analysis, particularly the Court's discussion of the burden of proof in that context.¹¹⁷ It also meshes with the Court's prior decision in Lyons, in which it had held that a citizen did not have standing to seek injunctive relief against the city of Los Angeles when he alleged that its police officers had put him in a chokehold without provocation. The problem, said the Lyons Court, was that the citizen could not show a "real and immediate threat" that he would again be stopped by police "who would immediately choke him into unconsciousness without any provocation or resistance on his part."¹¹⁸ Contrasting Lyons with its mootness cases, the Laidlaw court concluded that "there are circumstances in which the prospect that a defendant will engage in (or resume) harmful conduct may be too speculative to support standing, but not too speculative to overcome mootness."¹¹⁹

The practical implications of this dichotomy are somewhat bizarre, however. Imagine, for example, that a defendant has taken allegedly curative steps to eliminate a violation during the 60-day notice period (and thus, before the filing of the complaint). If the plaintiff chooses to proceed with its suit, under Gwaltney and Steel Co. it will bear the burden of showing that it is more likely than not that the problem will recur despite the defendant's curative efforts.¹²⁰ If it cannot show this, it has no standing to seek penalties. If, on the other hand, the defendant takes those same curative measures the day after the complaint is filed, it will bear the burden of showing that it is absolutely clear that the violations cannot reasonably be expected to recur in order to avoid the imposition of penalties for its past violations. In both cases, the likelihood of future violations is the same, but the redressability analysis may very well come out differently.

It seems quite strange that the constitutional issue of whether penalties are sufficiently likely to deter future violations to support redressability should hinge on the fortuity of whether corrective measures are taken the day before or the day after the filing of the complaint. Given Laidlaw, one might wonder whether the Court will at some point abandon the Lyons/Steel Co. approach and move to a more plaintiff-friendly formulation under which a reasonable prospect of future violations is all that is required in both the standing and mootness contexts. For the time being, however, the dichotomy between Steel Co. and Laidlaw places an enormous premium on the question of whether the purported solution was implemented before or after the filing of the citizen suit.

Mootness

As noted in the introduction, the majority's mootness analysis in Laidlaw contains some good news for environmental plaintiffs, but also some very bad news. The good news lies in the Court's reemphasis of the heavy burden that defendants bear under the voluntary cessation doctrine. In this regard, the fact that the Court was unwilling to deem the case moot as a matter of law even though the defendant had closed the relevant plant underscores the difficulty of the required showing.¹²¹

The bad news, on the other hand, is that the Court rejected what, prior to Steel Co., had been the unanimous view of the courts of appeals, i.e., that nothing that happens after the filing of the complaint can moot a claim for civil penalties.¹²² In Laidlaw, the Court clearly contemplated that, at least prior to judgment,¹²³ citizen suit defendants can moot all claims for penalties by showing that it is "absolutely clear" that the violations "could not reasonably be expected to recur."¹²⁴ This result flows logically from three propositions contained elsewhere in the opinion: first, that citizens must establish standing separately as to each form of relief sought¹²⁵; second, that citizens who face ongoing violations may seek penalties as necessary to deter those violations¹²⁶; and third, that while the burden shifts to the defendant where [30 ELR 10326] it voluntarily ceases the offending conduct during the course of the litigation, it can render the case moot if it shows that there is no reasonable prospect of future violations.¹²⁷ To borrow the words of the Court, if the defendant makes the showing required to establish mootness, "there is no prospect of future violations for civil penalties to deter."¹²⁸

While this is logical enough, it leads to some troubling dynamics. I summarized the most significant of these in a prior article:

If [defendants can moot citizen suits by coming into compliance], regulated entities will have much less reason to fear citizen suits because, so long as they are confident that they can solve their problems in a timely fashion, they will have no reason to fear punitive sanctions. Moreover, citizens may be discouraged from filing suit at all in these situations because, although they may be able to compel compliance, they will have little or no prospect of achieving the important added benefit of deterrence (with respect to both the defendant and others) that could be achieved through the imposition of penalties appropriate to the violation. The net effect of all of this is to promote a "one (or more) free bite" kind of mentality, where regulated entities get the message that they don't have to take compliance issues seriously unless and until they have actually been sued.¹²⁹

Additionally, allowing defendants to render penalty claims moot through belated compliance efforts will foster delay tactics in federal citizen suit litigation. As the Eleventh Circuit noted in Atlantic States Legal Foundation, Inc. v. Tyson Foods, Inc.¹³⁰:

Perhaps the most dangerous result [of applying mootness principles in this fashion] is that it encourages violators to delay litigation as long as possible, knowing that they will thereby escape liability even for post-complaint violations, so long as violations have ceased at the time the suit comes to trial or is decided on summary judgment. Under such a holding, dischargers could intentionally violate the Clean Water Act until they are sued and then obtain a stay while continuing their violations until they eventually are in compliance with the law. At this point, the case would be dismissed and they would have escaped all penalties. [This approach] reads the civil penalties provision out of the Clean Water Act.¹³¹

The Court in Laidlaw did not even mention, let alone address, these concerns.

In future cases, the emphasis in the mootness context is likely to shift to the question of whether particular defendants have adequately demonstrated that there is no reasonable expectation of future violations. Defendants will be in the best position to make this showing—and thereby to eliminate any penalty exposure—where they have taken clear and effective steps that address the underlying root cause of the alleged violations in a way that suggests a permanent solution.¹³² Conversely, defendants will be the most vulnerable to "voluntary cessation" arguments—and thus the most exposed to penalties—in situations in which, although they have achieved temporary compliance, they are unable to show that the steps they have taken make the possibility of future violations remote.¹³³

In this context, it will also be interesting to see the extent to which advocates and the courts focus not only on whether physical solutions are in place, e.g., whether a defective piece of equipment has been replaced, but also on whether the defendant demonstrates a behavioral commitment to staying in compliance. Imagine, for example, a situation in which a company has failed to comply with the CWA over a prolonged time period because its treatment system is inadequate. Has it "solved the problem" as soon as it installs a system that is capable of complying with its permit requirements? Or might there also have been a corporate attitudinal problem that contributed to at least the duration of the violations, and which might lead to other violations in the absence of the deterrent effect of a penalty? Or what if there is a situation in which a company with a limited compliance budget solves the immediate problem that led to the filing of the complaint by reallocating funds that had been dedicated to ensuring that other aspects of the plant remain in compliance? Will such a company be able to show that it has solved its compliance problems? Ultimately, district courts will have to resolve questions like these in determining whether defendants have met the heavy burden of showing that it is absolutely clear that their permit violations cannot reasonably be expected to recur.

Attorney Fees and Article II

On the attorney fee front, Laidlaw is significant only in that the Court recognized that its dictum in Farrar was just that. The Court went no further, declining to address the validity of the "catalyst" theory in the absence of an order from the district court either granting or denying a fee award. Thus, the split in the circuits remains intact,¹³⁴ and the resolution of this issue awaits another day.

The Court similarly declined to resolve the Article II issues. This is likely to be the next constitutional battleground n citizen suits. It is worth noting that the Fifth Circuit recently declared the qui tam provision of the False Claims Act unconstitutional under Article II in Riley v. St. Luke's Episcopal [30 ELR 10327] Hospital.¹³⁵ This decision is likely to have grave implications for citizen suits in the Fifth Circuit pending further guidance from the Court. It should also be noted that the Supreme Court is currently considering a standing challenge to qui tam actions in Vermont Agency of Natural Resources v. Stevens.¹³⁶ Although the Article III issues in that case (which focus on the injury question) differ from those that would be posed under Article II, the Court's treatment of those issues may provide further hints regarding how it may ultimately resolve the Article II issues posed by citizen suits.

Conclusion

On balance, Laidlaw must be counted as a major victory for environmental plaintiffs. The Court's injury discussion, in particular, open the courthouse door more widely for those who seek to restore the environment to a condition that will allow for the unhindered enjoyment of its many benefits. While the Court giveth, however, it also taketh away. In light of Laidlaw, those who degrade the environment will be able to avoid any deterrent sanctions in citizen suits in situations in which they are able to clearly resolve their compliance issues during the pendency of those enforcement actions.

1. 120 S. Ct. 693, 30 ELR 20246 (2000).

2. 467 U.S. 837, 14 ELR 20507 (1984). Chevron, of course, was the case in which the U.S. Supreme Court established that courts should defer to agency interpretations of ambiguous statutory provisions, at least in situations in which Congress has either explicitly or implicitly delegated interpretive powers to the relevant agency. I recognize that both Chevron and (although perhaps to a lesser extent) Laidlaw have implications well beyond the field of environmental law. My only point here is that they are vitally important cases within the environmental field.

3. In Laidlaw, the Court cited Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 22 ELR 20913, 20915 (1992), for the proposition that, to establish standing, citizens must demonstrate that they have been injured, that the injury is fairly traceable to the challenged action of the defendant, and that it is likely that the injury will be redressed by a favorable decision. 120 S. Ct. at 704, 30 ELR at 20248.

4. Justice Ginsburg was joined by Chief Justice Rehnquist, Justices O'Connor, Kennedy, Souter, and Breyer. Although he joined in the Court's opinion, Justice Kennedy filed a separate concurring opinion, as did Justice Stevens. Justice Scalia filed a dissenting opinion, in which Justice Thomas joined.

5. 120 S. Ct. at 715, 30 ELR at 20252.

6. 523 U.S. 83, 28 ELR 20434 (1998).

7. With apologies to Robert Hunter. GRATEFUL DEAD, Touch of Grey, on IN THE DARK (BMG/Arista Records 1987).

8. 33 U.S.C. §§ 1251-1387, ELR STAT. FWPCA §§ 101-607.

9. See generally Friends of the Earth v. Laidlaw Envtl. Servs. (TOC), Inc., 956 F. Supp. 588, 593-96, 27 ELR 20976, 20977-78 (D.S.C. 1997).

10. Id. at 592, 595, 27 ELR 20976, 20978.

11. Laidlaw, 120 S. Ct. at 700, 30 ELR at 20247; see also 956 F. Supp. at 610-11, 27 ELR at 20986.

12. 120 S. Ct. at 700, 30 ELR at 20247; see also Friends of the Earth v. Laidlaw Envtl. Servs. (TOC), Inc., 149 F.3d 303, 306-07, 28 ELR 21444 (4th Cir. 1998).

13. 520 U.S. 43 (1997).

14. Suarez Corp. Indus. v. McGraw, 125 F.3d 222, 228 (4th Cir. 1997) and U.S. Parole Comm'n v. Geraghty, 445 U.S. 388, 397 (1980).

15. 149 F.3d at 306, 28 ELR at 21445.

16. Id. at 306-07, 28 ELR at 21445.

17. Id. at 307 n.5, 28 ELR at 21445 n.5 (quoting 33 U.S.C. § 1365(d), ELR STAT. FWPCA § 505(d)).

18. 120 S. Ct. at 704, 30 ELR at 20248.

19. Id.

20. Id.

21. Id. at 704-05, 30 ELR at 20248. Five of the affiants whose testimony the Court summarized alleged that they refrained from using the relevant river because of their concerns about the offending discharges. Only one of these affiants (Mr. Curtis) specifically mentioned any observable harms (he said that the river looked and smelled polluted). Finally, a sixth affiant (Ms. Lee) testified that her home was worth less than homes that were farther down river, allegedly in part because of the offending discharges.

22. 497 U.S. 871, 20 ELR 20962 (1990).

23. 120 S. Ct. at 705, 30 ELR at 20249.

24. Id. at 713, 30 ELR at 20252 (quoting Defenders, 504 U.S. 555, 560, 22 ELR 20913, 20915 (1992)).

25. Id.

26. Id. at 714, 30 ELR at 20252 (emphasis in original).

27. Id. at 715, 30 ELR at 20252.

28. 461 U.S. 95 (1983).

29. 120 S. Ct. at 706, 30 ELR at 20249 (internal citation omitted).

30. Id.

31. Id.

32. Id. at 706-07, 30 ELR at 20249.

33. Steel Co., 523 U.S. at 106-07, 28 ELR at 20438.

34. 120 S. Ct. at 708, 30 ELR at 20249-50.

35. Id. at 715.

36. 410 U.S. 614 (1973).

37. 120 S. Ct. at 715-16, 30 ELR at 20253; see also 410 U.S. at 618.

38. 120 S. Ct. at 715, 30 ELR at 20253.

39. Id. at 716, 30 ELR at 20253 (citations omitted; emphasis in original).

40. Id. at 718, 30 ELR at 20253.

41. Id.

42. Id. at 708 n.4, 30 ELR at 20250 n.4.

43. Id. at 707, 30 ELR at 20249.

44. At the Supreme Court level, Laidlaw alleged that it had permanently closed the offending facility after the Fourth Circuit issued its opinion in the case. Id. at 703, 30 ELR at 20248.

45. Id. at 708, 30 ELR at 20250.

46. 393 U.S. 199, 203 (1968).

47. 120 S. Ct. at 708, 30 ELR at 20250.

48. Id. at 709, 30 ELR at 20250 (quoting Arizonans for Official English v. Arizona, 520 U.S. 43, 68 n.22 (1997)).

49. Id. (quoting Whitmore v. Arkansas, 495 U.S. 149, 158 (1990) (citations and internal quotation marks omitted)).

50. Id.

51. Id. at 710, 30 ELR at 20250-51 (quoting Weinberger v. Romero-Barcelo, 456 U.S. 305, 313, 12 ELR 20538, 20544 (1982)).

52. Id. at 711, 30 ELR at 20251 (citation omitted).

53. Id. at 711 n.6, 30 ELR at 20251 n.6 (citing U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U.S. 18 (1994) and Walling v. James V. Reuter, Inc., 321 U.S. 671 (1944)).

54. Id. at 712, 30 ELR at 20251 (citing Comfort Lake Ass'n v. Dresel Contracting, Inc., 138 F.3d 351, 356, 28 ELR 20604, 20606 (8th Cir. 1998); Atlantic States Legal Found. v. Stroh Die Casting Co., 116 F.3d 814, 820, 27 ELR 21087, 21090 (7th Cir.), cert. denied, 522 U.S. 918 (1977); Natural Resources Defense Council v. Texaco Ref. & Mktg., 2 F.3d 493, 502-03, 23 ELR 21328, 21333 (3d Cir. 1993); Atlantic States Legal Found. v. Pan Am. Tanning Corp., 993 F.2d 1017, 1020-21, 23 ELR 20865, 20867 (2d Cir. 1993); Atlantic States Legal Found. v. Tyson Foods, Inc., 897 F.2d 1128, 1134-37, 20 ELR 20788, 20791 (11th Cir. 1990); and Chesapeake Bay Found. v. Gwaltney of Smithfield, Ltd., 890 F.2d 690, 696-97, 20 ELR 20341, 20344 (4th Cir. 1989)). See also 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) ("A plaintiff who makes allegations warranting injunctive relief in good faith, judged objectively, may recover a penalty judgment for past violations even if the injunction proves unobtainable"); Jim Hecker, EPCRA Citizen Suits After Steel Co. v. Citizens for a Better Environment, 28 ELR 10306 (June 1998).

55. 120 S. Ct. at 712, 30 ELR at 20251.

56. Id. at 720 n.5, 30 ELR at 20255 n.5.

57. 506 U.S. 103 (1992).

58. 120 S. Ct. at 711, 30 ELR 20251 (citing S-1 & S-2 v. State Bd. of Educ. of N.C., 21 F.3d 49, 51 (4th Cir. 1994) (en banc)).

59. Id. (emphasis added) (citing Marbley v. Bane, 57 F.3d 224, 234 (2d Cir. 1995); Baumgartner v. Harrisburg Hous. Auth., 21 F.3d 541, 546-50 (3d Cir. 1994); Zinn v. Shalala, 35 F.3d 273, 276 (7th Cir. 1994); Little Rock Sch. Dist. v. Pulaski County Special Sch. Dist. #1, 17 F.3d 260, 263 n.2 (8th Cir. 1994); Kilgour v. Pasadena, 53 F.3d 1007, 1010 (9th Cir. 1995); Beard v. Teska, 31 F.3d 942, 951-52 (10th Cir. 1994); Morris v. West Palm Beach, 194 F.3d 1203, 1207 (11th Cir. 1999)).

60. Id. at 711-12, 30 ELR at 20251.

61. Id. at 713, 30 ELR at 20252.

62. Id. at 719, 30 ELR at 20254 (citing U.S. CONST. art. II, §§ 3 and 2, respectively).

63. Id.

64. Id. (citation omitted).

65. Id. at 719, 30 ELR at 20254 (citing 33 U.S.C. § 1365(b)(1)(B), ELR STAT. FWPCA § 505(b)(1)(B)).

66. Id. at 708 n.4, 30 ELR at 20250 n.4 (citing id. § 1365(b)(1)(B), ELR STAT. FWPCA § 505(b)(1)(B)) (other internal citations omitted).

67. Id. at 719 n.3, 30 ELR at 20254 n.3 (internal citation omitted).

68. See supra note 3 and accompanying text.

69. See generally Friends of the Earth v. Laidlaw Envtl. Servs. (TOC), Inc., 956 F. Supp. 588, 27 ELR 20976 (D.S.C. 1997) and 149 F.3d 303, 28 ELR 21444 (4th Cir. 1998).

70. 120 S. Ct. at 703, 30 ELR at 20248.

71. Id. at 704, 30 ELR at 20248.

72. 405 U.S. 727, 2 ELR 20192 (1972).

73. See supra note 21 and accompanying text.

74. 120 S. Ct. at 706, 30 ELR at 20249.

75. Id. at 704, 30 ELR at 20248.

76. 179 F.3d 107, 29 ELR 21213 (4th Cir. 1999), vacated, No. 98-1328, 2000 WL 204559 (4th Cir. 2000) (en banc). For an analysis of the Fourth Circuit's opinion, see Craig N. Johnston, 1999—The Year in Review, 30 ELR 10173, 10180-85 (Mar. 2000).

77. Id. at 113-14, 29 ELR at 21215. I use the term "originally" because I am referring to the decision by the three judge panel that was subsequently vacated by the Fourth Circuit en banc.

78. Id. at 114, 29 ELR at 21215.

79. 123 F.3d 111, 27 ELR 21340 (3d Cir. 1997).

80. Id. at 114, 27 ELR at 21341.

81. Id. at 115, 27 ELR at 21341.

82. Id. at 121, 27 ELR at 21344.

83. Id. at 123, 27 ELR at 21345.

84. Johnston, supra note 76, 30 ELR at 10184.

85. Perhaps even Justice Scalia would do the same.

86. In Natural Resources Defense Council v. U.S. EPA, 770 F. Supp. 1093, 1094-95, 21 ELR 21332, 21333 (E.D. Va. 1991), aff'd, 16 F.3d 1395, 24 ELR 20496 (4th Cir. 1993), the court noted that EPA allows states to set dioxin standards at levels posing up to a 1 in 100,000 risk of cancer for all persons exposed. By way of comparison, this leaves more residual risk than EPA's cleanup goals under the Superfund program. See 40 C.F.R. § 300.430(i)(a)(2) (1999).

87. 172 F.3d 65, 29 ELR 21038 (D.C. Cir. 1999).

88. Id. at 68, 29 ELR at 21039.

89. Id.

90. 120 S. Ct. at 704-05, 30 ELR at 20248-49.

91. Id. at 706, 30 ELR at 20249.

92. No. 98-1328, 2000 WL 204559 (4th Cir. 2000).

93. Id. at *7.

94. The en banc panel in Gaston Copper also rejected the panel majority's causation analysis. It did so, however, without any reference to Laidlaw. 2000 WL 204559, at ** 13-15; see also 179 F.3d at 114-16, 29 ELR at 21216. This is also unsurprising, given that Laidlaw did not even address the causation requirements. Interestingly, the two judges in the original panel majority in Gaston Copper (Judges Hamilton and Williams) must have read Laidlaw as undermining their earlier analysis on this froot as well, or else they presumably would have dissented from the en banc result.

95. 2000 WL 204559, at *17.

96. Id.

97. Id. at *18 (quoting from Justice Scalia's dissent in Laidlaw, 120 S. Ct. at 715, 30 ELR at 20252).

98. 120 S. Ct. at 715, 30 ELR at 20252.

99. See Public Interest Research Group of N.J. v. Powell Duffryn Terminals, Inc., 913 F.2d 64, 72, 20 ELR 21216, 21219 (3d Cir. 1990) (requiring plaintiffs to show that the defendant discharges a pollutant that causes or contributes to the kinds of injuries alleged by the plaintiffs).

100. See Friends of the Earth v. Crown Cent. Petroleum Corp., 95 F.3d 358, 361, 27 ELR 20193, 20195 (5th Cir. 1996) (holding that the plaintiff had not shown the requisite causation under Article III where the plaintiff's affiants used the allegedly affected resource at a point that was 18 miles and 3 tributaries downstream from the relevant discharge point).

101. 484 U.S. 49, 18 ELR 20142 (1987).

102. See supra note 53 and accompanying text.

103. 120 S. Ct. at 711, 30 ELR at 20250.

104. Chief Justice Rehnquist and Justices O'Connor, Kennedy, Thomas, and Breyer joined the relevant portions of Justice Scalia's majority opinion).

105. 42 U.S.C. §§ 11001-11050, ELR STAT. EPCRA §§ 301-330.

106. Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 106, 28 ELR 20434, 20438 (1998) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 577, 22 ELR 20913, 20919 (1992)).

107. Id. at 107, 28 ELR at 20438 (emphasis in original).

108. Justice Stevens concurred in the result because, as a statutory matter, he viewed EPCRA as precluding citizen suits for wholly past violations. 523 U.S. at 131-34, 28 ELR at 20443-44. He disagreed, however, with the majority's redressibility analysis.

109. Id. at 107, 28 ELR at 20438. In Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26 (1976), the Court had held that the plaintiffs did not have standing to challenge the denial of charitable-deduction tax status to certain hospitals because it was not sufficiently likely that if they were provided such status, they would offer treatment to the plaintiffs.

110. 120 S. Ct. at 707, 30 ELR at 20249.

111. Id at 718, 30 ELR at 20254.

112. Id. at 707, 30 ELR at 20249.

113. See supra note 39 and accompanying text.

114. 523 U.S. at 107, 28 ELR at 20438.

115. These include Chief Justice Rehnquist and Justices O'Connor and Breyer.

116. See, e.g., supra note 34 and accompanying text.

117. See supra notes 42-54 and accompanying text.

118. Lyons, 461 U.S. at 105.

119. 120 S. Ct. at 709, 30 ELR at 20250.

120. See also Chesapeake Bay Found. v. Gwaltney of Smithfield, Ltd., 890 F.2d 690, 20 ELR 20341 (4th Cir. 1989) (setting out the proof requirements for showing an ongoing violation).

121. See supra note 52 and accompanying text.

122. See supra note 54.

123. See supra note 53 and accompanying text.

124. 120 S. Ct. at 711, 30 ELR at 20250.

125. Id. at 706, 30 ELR at 20249.

126. Id. at 706-07, 30 ELR at 20249-50.

127. Id. at 709, 30 ELR at 20250.

128. Id. at 710, 30 ELR at 20251.

129. Craig N. Johnston, 1998—The Year in Review, 29 ENVTL. L. 69, 83-84 (1998).

130. 897 F.2d 1128, 20 ELR 20788 (1990).

131. Johnston, supra note 129, at 83-84 (quoting Tyson Foods, 897 F.2d at 1137, 20 ELR at 20792).

132. See, e.g., Tyson Foods, 897 F.2d at 1132, 20 ELR at 20790 (recognizing that the injunctive portion of the case was moot once the defendant's new wastewater treatment facility was operational and meeting permit limits); Orange Env't v. County of Orange, 923 F. Supp. 529, 26 ELR 21383 (S.D.N.Y. 1996) (illegal fill case was moot as soon as the defendant had implemented an EPA-approved offsite remediation plan); Hickman v. Missouri, 144 F.3d 1141, 1144 (8th Cir. 1998) (citations omitted) ("defendants' compliance with the [Americans with Disabilities Act], including structural changes such as installation of ramps, pull and grab bars, and chair lifts, is far 'more than a mere voluntary cessation of alleged illegal conduct, where we would leave the defendant[s] . . . free to return to [their] old ways.'").

133. See, e.g., United States v. Concentrated Phosphate Export Ass'n. 393 U.S. 199, 203 (1968) (declining to find a case moot where the Court had only the defendants' own statement that it would be uneconomical for them to reengage in the offending activity); United States v. W.T. Grant Co., 345 U.S. 629, 633 (1953) (defendant's statement that it had no intention to revive the allegedly illegal interlocking corporate directories did not of itself make the case moot).

134. See supra notes 54-57 and accompanying text. Unfortunately for the plaintiffs' attorneys in Laidlaw itself, their case is in the Fourth Circuit, in which the courts are presumably still bound by S-1 & S-2 v. State Bd. of Educ. of N.C., 21 F.3d 49, 51 (4th Cir. 1994) (en banc), absent either en banc reconsideration or Supreme Court review.

135. 196 F.3d 514 (5th Cir. 1999).

136. See 119 S. Ct. 2391 (1999); see also United States ex rel. Stevens v. Vermont Agency of Natural Resources, 162 F.3d 195 (2d Cir. 1998).