Friends of the Earth v. Laidlaw Environmental Services, 528 U.S. 167 (2000)

A photo of the North Tyger River, apparently a popular canning and kayaking destination, hosted by Paddle SC.



Friends of the Earth v. Laidlaw Environmental Services

Friends of the Earth v. Laidlaw is an important case discussing the constitutional concepts of standing and mootness, as well as the statutory (and to Scalia, Thomas and perhaps Kennedy, constitutional) question of whether private citizens can enforce civil penalties in the place of the executive. The majority of the court, consisting of Justices Rehnquist, Stevens, O'Connor, Kennedy, Souter, Breyer and written by Justice Ginsburg, held that Friends of the Earth had standing to sue Laidlaw Environmental, that their case was not moot, and that it was an appropriate remedy to Friends' injury to compel Laidlaw to pay civil penalties. Justices Stevens and Kennedy wrote concurring opinions, while Justices Scalia and Thomas dissented.


Decision in a nutshell
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The appellate court erred in concluding that a citizen suitor’s claim for civil penalties must be dismissed as moot when the defendant, albeit after commencement of the litigation, has come into compliance. In directing dismissal of the suit on grounds of mootness, the Court of Appeals incorrectly conflated our case law on initial standing to bring suit with our case law on postcommencement mootness. (also) Civil penalties … may serve, as an alternative to an injunction, to deter future violations and thereby redress the injuries that prompted a citizen suitor to commence litigation. (528 U.S. 173-174)
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THE LAW

This case was brought under the Clean Water Act. Congress passed the Clean Water Act to restore the integrity of the nation’s waters and end all water pollution by 1985. Under the CWA, if you’re going to discharge a pollutant from a point sources to a water of the United States, you need a permit. The permit will limit how much you can discharge, specify technology to limit or eliminate pollutants, and require you to monitor and report discharges (among other things). It’s against the law to not comply with your permit. 

The act also allows citizens to sue to enforce its provisions. The plaintiff must give the defendant 60 days of notice before beginning its suit, and the plaintiff may not sue if the state or EPA has begun its own genuine suit. If the private plaintiff wins, the court may order the defendant to pay plaintiff’s costs, issue an injunction and (as resolved here), assess civil penalties payable to the United States.

THE FACTS

Laidlaw bought a waste incinerator in Roebuck, South Carolina. Laidlaw’s permit governed the discharge of several pollutants, including mercury, to the North Tyger River. The company violated its permit limits for Mercury 489 times in eight years. Friends of the Earth and allies sent the required 60 day letter to Laidlaw, notifying the company of their intent to sue to enforce the terms of the Clean Water Act permit. 

Seeking to preempt Friends’ suit, Laidlaw drafted a complaint against themselves and asked the South Carolina Department of Health and Environmental Control to sue them. South Carolina issued Laidlaw’s complaint on the 59th day after Friends' 60-day notice letter. Laidlaw and South Carolina settled their suit for $100,000 and a promise from Laidlaw to try harder in the future. Nevertheless, Friends sued Laidlaw for its Clean Water Act violations.

In District Court, Laidlaw argued that Friends didn’t have standing and that the suit was preempted by South Carolina's enforcement. The district court held Friends did have standing, and that South Carolina hadn’t diligently prosecuted the case. Laidlaw had violated their permit several more times in the interim. The District Court found that Laidlaw had benefited by almost 1.1 million dollars, and issued a fine of about $400k.

On appeal, the Fourth Circuit decided that whether or not Friends had standing to bring the case, the case was now moot because Laidlaw had come into compliance with their permit. Since there was no ongoing violation, the only available remedy was a fine payable to the United States Government, which the Court felt would not benefit Friends or remedy their injury. The Appeals Court also directed the District Court to deny Friends’ attorney’s fees because they had not prevailed. Laidlaw subsequently closed the facility. The Supreme Court took the case to resolve a conflict between circuit courts about whether compliance moots claims for civil penalties.

THE DECISION

Did Friends have Standing? What is Standing?

Standing is a constitutional issue that determines whether someone has the right to bring a lawsuit. One has standing when one is (1) injured (2) because of something the defendant did (3) and the injury can be fixed by the court.

Standing is well explained in Lujan v. Defenders of Wildlife. To establish standing, a plaintiff must show
(1) it has suffered an “injury in fact” that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; 
(2)  the injury is fairly traceable to the challenged action of the defendant; and 
(3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.

When an organization wants to bring a lawsuit on behalf of its members, it must additionally show that (1) some identifiable members would have standing, (2) that the issues are related to the organization’s purpose and (3) justice doesn’t require participation of individual members.

Under Hunt v. Washington State Apple Advertising Commission, for an organization to bring a case on behalf of its members, it must show that:
(1) its members would otherwise have standing to sue in their own right,
(2) the interests at stake are germane to the organization’s purpose, and
(3) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.

Injury

 The majority held that the question isn’t whether the environment is injured, but whether Friends’ members were injured. Environmental plaintiffs establish injury if they claim, with some degree of specificity, that their “aesthetic and recreational values are lessened” by the challenged conduct. Here, Friends’ members’ allegations that they suffer consequences on a day to day basis were sufficient to establish injury, as opposed to the insufficiently injured plaintiffs in Lujan, who tried to establish injury based on uncertain future plans to visit an area. Here is an example of properly pleaded injury:
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For example, FOE member Kenneth Lee Curtis averred in affidavits that he lived a half-mile from Laidlaw’s facility; that he occasionally drove over the North Tyger River, and that it looked and smelled polluted; and that he would like to fish, camp, swim, and picnic in and near the river between 3 and 15 miles downstream from the facility, as he did when he was a teenager, but would not do so because he was concerned that the water was polluted by Laidlaw’s discharges. (528 U.S. 181-182)
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It's worth noting that according to the majority, the plaintiffs don't need to show that the environment was harmed, or that environmental harm is what caused lessened their "aesthetic and recreational values."

Redressability 

The majority held that civil penalties, even though the penalty is paid to the government, and even for violations entirely in the past, could still redress Friends’ injury. Civil penalties encourage defendants to stop current violations and avoid future violations. In a previous case, the Court held that private citizens couldn’t sue for wholly past violations, but they can for ongoing and threatened future violations.

Did Laidlaw's subsequent compliance render Friends' case moot?

Just because Laidlaw stopped violating its permit does not mean the District Court couldn’t rule on the case. Otherwise a defendant could stop violating the law while its case was active and then start again when the case ended; that would be stupid. Voluntary cessation - where a defendant decides to halt challenged conduct - would make a case moot only if the defendant could make it absolutely clear that the violation could not reasonably be expected to recur. 

The burden of proof is an important difference between standing and mootness: the plaintiffs must demonstrate standing, but the defendants must demonstrate mootness. Abandoning cases to mootness too easily would waste court time and resources. Establishing mootness is a “heavy” burden, requiring Laidlaw make it absolutely clear that its permit violations could not reasonably be expected to recur; even Laidlaw’s assertion that it closed the plant did not obviously make the case moot. 

There will be cases where current compliance would mean that plaintiffs would not have standing to begin the case were they to initiate it now because they could not show a current injury, but nonetheless, the compliance does not render the case moot because defendants cannot meet the burden of demonstrating that their violations could not reasonably be expected to recur. Thus, mootness is not simply standing in a different time frame. Justices Scalia and Thomas have big problems with this idea.

Whether the closure was sufficient to moot the case is something the parties could fight out on remand.

What about attorney’s fees?

Whether Friends is entitled to attorneys’ fees isn’t ripe because the District Court hadn’t actually decided whether they were or they weren’t.

JUSTICES WHO AGREE

What does Justice Stevens have to say?

Justice Stevens writes to point out that post-judgment conduct cannot retroactively invalidate the judgment. Here, even if Laidlaw closed the facility, it wouldn’t moot the case because the closure would have come after the judgment. Stevens believes that civil penalties should be treated like punitive damages, which can’t be avoided by good post-complaint behavior.

What does Justice Kennedy have to say?

Justice Kennedy writes to say he’s troubled by citizens enforcing civil penalties for the executive, but thinks that’s something the court should consider in some future case.

JUSTICES WHO DISAGREE

Why do Justices Scalia and Thomas disagree?

Justices Scalia and Thomas think that Friends’ affidavits are too vague and that standing should show some harm to the environment. They think that environmental plaintiffs should have to show harm to the environment and show how the environmental harm injures their members. They do not accept that harm can befall the plaintiffs if there is no environmental harm (and despite the massive mercury discharges, the trial record doesn’t establish that the discharges harmed the North Tyger River.) When the District Court found that there was no environmental harm, it should have reconsidered and rejected Friends’ standing affidavits.
Dissent in a nutshell: 
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By uncritically accepting vague claims of injury, the Court has turned the Article III requirement of injury in fact into a mere pleading requirement, and by approving the novel theory that public penalties can redress anticipated private wrongs, it has come close to making the redressability requirement vanish. The undesirable and unconstitutional consequence of today’s decision is to place the immense power of suing to enforce the public laws in private hands. (528 U.S. 215)
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The dissenting justices do not believe that a private injury can be redressed by a public remedy. In their view, Friends does not benefit from Laidlaw paying a fine, the proper remedy to address their harm would be an injunction. The record supplies insufficient evidence to support the majority’s conclusion that the civil penalties for past violations will deter future violations. Moreover, allowing private individuals to enforce civil penalties gives ordinary citizens too much power over permit violators, often resulting in environmental benefit projects. Takes away government prosecutorial discretion.
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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. (528 U.S. 204)
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Finally, Scalia and Thomas believe that the court had no business ruling on the difference between standing and mootness, if there was standing (which, again, they don’t believe there was), then there wasn’t mootness because the voluntary cessation doctrine allows for mootness only if it is absolutely clear that the violations could not reasonably be expected to recur - which is a question for remand. The standard for mootness shouldn’t be less than the standard for standing, a genuine controversy must exist throughout.


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