March 01, 2000
In a surprising departure from the trend it set in the 90s of increasing the stringency of the tests for standing, the Supreme Court has just decided a case that appears to water down standing requirements to such a degree that they are even easier to satisfy than they were in the heyday of United States v. Students Challenging Regulatory Agency Procedures ("SCRAP").1 In SCRAP, decided in 1970, a student group was permitted to obtain standing based on a speculative and indirect causal chain where the final link in the chain at least involved real harm to the environment (even if there might not have been very much such harm directly traceable to the defendant's proposed behavior).
But in Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc.2, the Supreme Court has now approved standing based on a causal chain, albeit one somewhat less speculative than in SCRAP, despite an unchallenged District Court finding that no environmental harm resulted from the challenged behavior. The Laidlaw majority reasoned that environmental standing was about harm to the human plaintiff and not harm to the environment and therefore sanctioned standing based on the plaintiffs' subjective averments of adverse impacts on their environmental enjoyment. Though dissents are often full of "Chicken Little" hyperbole, it is probably no exaggeration to say, as Justice Scalia does in his Laidlaw dissent, that if "subjective standing" takes root in other contexts or even in other environmental cases, the Supreme Court has created a "revolutionary new doctrine" in Laidlaw.3
The facts in Laidlaw are relatively simple. Laidlaw operated a wastewater treatment plant in Roebuck, South Carolina that held a Clean Water Act permit to discharge limited quantities of various pollutants into the North Tyger River. Laidlaw violated its permit limitations 489 times between 1987 and 1995, in particular by discharging too much mercury into the North Tyger. In the spring of 1992, Friends of the Earth and another environmental group took the preliminary steps necessary to commence a citizen suit against Laidlaw for its Clean Water Act violations. Apparently in order to take advantage of a defense that would bar such a citizen suit, Laidlaw contacted South Carolina state environmental authorities and asked them to bring suit against Laidlaw for violating its state-issued Clean Water Act permit. South Carolina was amenable to doing so and indeed simply signed off on a complaint drafted by counsel for Laidlaw. On the last day before Friends of the Earth could have brought suit without encountering at least a potential preclusion defense, Laidlaw and the State of South Carolina settled for $100,000 in civil penalties.4
Despite the availability of the preclusion defense, Friends of the Earth filed suit under the Clean Air Act in federal court. The District Court ruled that Friends of the Earth had standing "by the very slimmest of margins" and also rejected Laidlaw's preclusion defense by holding that South Carolina had not diligently prosecuted its enforcement action against the company.5 After the suit was commenced, but before judgment was rendered, Laidlaw violated its mercury-discharge limitations 13 more times. On January 22, 1997, about two years after Laidlaw's last mercury-discharge violation, the District Court entered judgment in favor of the environmental plaintiffs. It denied the plaintiffs' request for injunctive an declaratory relief, but awarded $405,800 in civil penalties to the United States, who participated as amicus curiae in favor of the environmental groups.6
Friends of the Earth appealed to the Fourth Circuit, but only on the ground that the penalty award was too small. Laidlaw cross appealed, arguing that Friends of the Earth lacked standing to bring the suit and asserting that the District Court's rejection of its preclusion defense was error. The Fourth Circuit assumed for the sake of argument that Friends of the Earth had standing, but ruled that the case became moot because Laidlaw had complied with the conditions of its permits before judgment was issued and that, given Friends of the Earth's decision only to appeal only the size of the penalty award, the only form of relief available (penalties) could not defeat mootness because such an award would not redress Friends of the Earth's alleged injuries. According to Laidlaw, after the Fourth Circuit ruled, but before certiorari was granted, its relevant wastewater plant in Roebuck, South Carolina was permanently closed, dismantled, and put up for sale. It was uncertain as a factual matter, however, whether Laidlaw continued to possess the Clean Water Act discharge permit under which it had operated.7
Majority's Holding and Analysis
In an opinion written by Justice Ginsburg, the Court concluded that the case was not moot and that Friends of the Earth did possess standing to bring it. Justice Stevens wrote separately to argue that voluntary discontinuance of the unlawful behavior should never be able to moot a case once a valid judgment has been rendered. Justice Kennedy wrote to emphasize that difficult separation of powers concerns based on interfering with the President's law enforcement powers are raised by citizens suits, but that such questions were not part of the current case. But both of those Justices concurred in the result. Justices Scalia and Thomas, in an opinion by Justice Scalia, dissented from the majority's analysis on virtually all issues.
Justice Ginsburg addressed the question of standing first, holding that the plaintiffs had demonstrated injury in fact, the first requirement of that doctrine, based on their allegations of subjective harm. "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 the water was polluted."8 The majority noted that the Court had upheld environmental standing based on the lessening of purely aesthetic values.9 (This suggests that the damage down by Laidlaw to standing doctrine can be contained perhaps by noting that aesthetic values, which are important to environmentalism and are unavoidably subjective, might not justify standing in non-environmental contexts.)
Justice Scalia challenged this finding in dissent by pointing out that there was no evidence of a nexus between what was deterring individuals such as Kenneth Lee from using the North Tyger and Laidlaw's behavior. In other words, it simply does not follow that the river looked and smelled polluted and thus Lee's injury was the result of Laidlaw's mercury discharges.10 The majority simply brushed this concern aside by noting, however, that they saw "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."11 (While it is discouraging that a majority of the Supreme Court has effectively held that even pollution that may cause none of the ill effects complained of by plaintiffs will justify an action against that polluter, another way to limit the reach of Laidlaw is to read it narrowly only to hold that where a toxic chemical is released into an individual's immediate surroundings, that individual will possess standing to sue for such discharges if a private right of action of some kind exists to mitigate such pollution.)
The majority also rejected Laidlaw's argument that Friends of the Earth could not demonstrate redressability because the civil penalties at stake were payable to the government.12 Specifically, the majority reasoned that redressability existed because a penalty award would deter future unlawful conduct of a similar nature by Laidlaw.13 The majority did, however, recognize that "there may be a point at which the deterrent effect of a claim for civil penalties becomes so insubstantial or so remote that it cannot support citizen standing. [But the] fact that this vanishing point is not easy to ascertain does not detract from the deterrent power of such penalties in the ordinary case."14 The Court has nevertheless left open the possibility that citizen standing will not be held to exist in every case where civil penalties are available as a deterrent.
Shifting from considering standing to mootness, the majority noted that Laidlaw's and the Fourth Circuit's argument from Steel Company v. Citizens for a Better Environment15 was inapposite. In Steel Company, the Court held that an environmental plaintiff lacked standing because the conduct being complained of had terminated before suit was brought. Despite statements in cases such as Arizonans for Official English v. Arizona16 that mootness is "the doctrine of standing set in a time frame," the Court held that the requirements for standing and mootness do not always overlap. In particular, the Court ruled that there was no counterpart in standing doctrine to the exception to mootness for "voluntary cessation" — in other words, voluntary cessation does not moot a case, but under Steel Company, it does deprive a plaintiff a standing. Given this important difference, the majority held that the Fourth Circuit erred by confusing standing with mootness and that the voluntary cessation by Laidlaw here, even if it would have been effective to deprive a plaintiff of standing under Steel Company, was insufficient to trigger mootness.17
Assuming that Laidlaw on remand could carry its burden of proof under "voluntary cessation" doctrine to show that it was clear that its violations would not recur, the Supreme Court left open that possible defense to Laidlaw.18 In addition, except by signaling that it disapproved of the `collusive' behavior of South Carolina authorities and Laidlaw, the Court did not address in any way Laidlaw's argument that the District Court had erred by rejecting its preclusion defense on the basis of South Carolina's previous enforcement action. Finally, the Court expressly declined to consider whether Friends of the Earth would be entitled to attorney's fees because it was the "catalyst" for an award of penalties to the United States.19
Justice Scalia's Dissent
Justice Scalia's own words summarize his dissent best: "The Court begins its analysis by finding injury in fact on the basis of vague affidavits that are undermined by the District Court's express finding that Laidlaw's discharges caused no demonstrable harm to the environment. It then proceeds to marry private wrong with public remedy in a union that violates traditional principles of federal standing — thereby permitting law enforcement to be placed in the hands of private individuals. Finally, the Court suggests that to avoid mootness one needs even less of a stake in the outcome than the Court's watered-down requirements for standing. I dissent from all of this."20
The essence of Justice Scalia's concerns that the injury-in-fact prong of standing analysis has been undermined by Laidlaw is sketched above. Justice Scalia also explored at length what he thought was wrong with the majority's analysis on the facts of this case of standing's redressability prong and mootness. Justice Scalia made three points about the majority's rulings regarding redressability: (1) this case should have fallen under the well-established rule in Linda R.S. v. Richard D.21 that individuals lack standing to force the public prosecution of others because indirect benefits of this nature should not be considered since the direct function of prosecutions is for the state itself to right the wrongs done to it;22 (2) the benefits to the plaintiffs were wholly speculative, even more speculative than those approved in Simon v. Eastern Ky. Welfare Rights Org.,23 which held that denying a tax deduction to hospitals that refused to treat indigents was unlikely to ensure that such hospitals would serve indigents in order to obtain the deduction in the future, or in Linda R.S., which held that it was unlikely that prosecution for nonpayment of child support would result in the payment of such support;24 and (3) in an echo of his dissent in Morrison v. Olson,25 which held that the Independent Counsel statute was constitutional, Justice Scalia noted that it violated the separation of powers to permit courts to intrude on the power of the Executive by turning over law enforcement powers to private citizens and by authorizing law enforcement activity by those who have a narrow focus and lack a need to prioritize pursuing serious violations over pursuing those that are merely colorable.26
Finally, as noted above, Justice Scalia argued that the majority was attempting to water down mootness doctrine as well by engaging in an extended comparison of mootness and standing where simple invocation of the "voluntary cessation" rule would have sufficed.27 Justice Scalia also took issue with Justice Stevens' concurrence, by arguing that a judgment providing retrospective relief such as damages at law could not be mooted by subsequent events, but that civil penalties were of a different character because they were equitable in nature and designed to deter future violations.28
This casenote has suggested several ways that Friends of the Earth could be read narrowly, but it is clear that if the case is not read in this way it works a genuine change in the law of standing as it has been carefully crafted throughout the 1990s. It also suggests that the Court may be rethinking its enthusiasm for what has been largely Justice Scalia's vision for standing doctrine. For instance, it is notable that Chief Justice Rehnquist and Justice O'Connor did not join Justice Kennedy's concurrence, which was to the effect that nothing in Laidlaw prejudges the question of whether it violates the separation of powers to authorize private enforcement of the laws. Of course, this is one of the very issues at stake in Vermont Agency of Natural Resources v. United States ex rel. Stevens, No. 98-1828, another case to be decided this term. Vermont Agency will likely establish whether the False Claims Act's qui tam provisions, which allow private "relators" to enforce claims for fraud against the government and to obtain a bounty by doing so, is constitutional. At oral argument in Vermont Agency, there were signs that Chief Justice Rehnquist and Justice O'Connor were backing away from Justice Scalia's view of standing doctrine, at least in the context of qui tam, which has a long common-law provenance. In fact, "[w]hen Rehnquist suggested the actions of the first Congress `maybe show that our irreducible minimum [of a constitutional case or controversy] isn't consistent with the understanding of framers,' Justice John Paul Stevens quipped, "Maybe the framers hadn't read Lujan."29 These hints that further, substantial changes in standing doctrine may be wrought this term should be watched with great care.
* Jeffrey Bossert Clark is an associate at Kirkland & Ellis (Washington, D.C.).
1. 412 U.S. 669 (1973). In SCRAP, the Supreme Court held that a student group had standing to challenge a railroad rate increase in review proceedings before the Interstate Commerce Commission. The student group alleged that it wished to camp, hike, fish, and sightsee at various natural sites and that the rate increase would impinge on those activities because it would increase the cost of shipping recyclable materials and therefore the cost of recyclable materials themselves, hence resulting in some increase in the number of non-recyclable materials, such as bottles and cans, in the natural areas the group wished to enjoy without interference from such debris. SCRAP is generally thought of as the high-water mark (or low point, depending on one's point of view) of standing doctrine.
2. 120 S. Ct. 693 (2000).
3. 120 S. Ct. at 719 (Scalia, J., dissenting).
4. See 120 S. Ct. at 701-02.
5. See id. at 702. The District Court noted that the settlement agreement had been entered into with such haste that Friends of the Earth did not even have an opportunity to intervene. See id. at 702 n.1.
6. See id. at 703.
7. See id.; see also id. at 711.
8. Id. at 704.
9. See id. at 705.
10. See id. at 714 (Scalia, J., dissenting).
11. Id. at 706.
12. See id. at 706. Redressability is the third requirement of standing. The majority apparently determined that traceability, the second requirement, was not at issue in the case, although what was effectively a traceability argument was perhaps the most powerful point made by Justice Scalia in dissent, although even he did not explicitly state his argument in such terms.
13. See id. at 706-07.
14. Id. at 707.
15. 523 U.S. 83 (1998).
16. 520 U.S. 43, 68 n.22 (1997).
17. Laidlaw, 120 S. Ct. at 708-10.
18. Id. at 711.
19. See id. at 711-12. Some lower courts have held that the Supreme Court eliminated the so-called catalyst theory in Farrar v. Hobby, 506 U.S. 103 (1992).
20. Id. at 713 (Scalia, J., dissenting).
21. 410 U.S. 614 (1973).
22. Laidlaw, 120 S. Ct. at 715-17 (Scalia, J., dissenting) ("A claim of particularized future injury has today been made the vehicle for pursuing generalized penalties for past violations, and a threshold showing of injury in fact has become a lever that will move the world.").
23. 426 U.S. 126 (1976) .
24. Laidlaw, 120 S. Ct. at 717-19 (Scalia, J., dissenting).
25. 487 U.S. 654 (1988). See Laidlaw, 120 S. Ct. at 719 (Scalia, J., dissenting) (once a citizen suit target is chosen by the plaintiffs "the suit goes forward without meaningful public control").
26. Laidlaw, 120 S. Ct. at 719-20 (Scalia, J., dissenting).
27. Id. at 720-22 (Scalia, J., dissenting).
28. See id. at 720 n.5 (Scalia, J., dissenting).
29. Steve France, Qui Tam Pop Quiz: A Surprise Order Asks Whether Whistleblowers Must Have Standing, ABA Journal 32 (Feb. 2000).