Friends of the Earth v. Laidlaw Environmental Services: A resounding victory for environmentalists, its implications on future justiciability decisions, and resolution...

Georgetown Law Journal, Apr 2001 by Shults, Kristen M

INTRODUCTION

Friends of the Earth v. Laidlaw Environmental Services1 was a case many environmental groups feared would be the "death knell" for citizen enforcement suits under the Clean Water Act (CWA)2 and other environmental laws;3 instead, environmentalists are now claiming a resounding victory. On January

12, 2000, the Supreme Court held that organizations have standing to bring citizen suits for civil penalties payable to the government when an ongoing violation of a National Pollutant Discharge Elimination System (NPDES) permit is alleged.4 The Court also held that neither a permit holder's post-complaint compliance with permit limits, nor a facility shutdown, will render the action moot absent a showing that the violations could not reasonably be expected to recur.5

The Court's opinion is important for three reasons. First and foremost, the holding ensures that citizens will continue to have standing to bring enforcement suits for civil penalties when an ongoing violation is alleged. This holding is especially important in the environmental law context because nearly every major environmental statute contains a citizen-suit provision. The government does not have the resources to enforce environmental laws adequately and, therefore, cannot achieve nationwide compliance without the assistance of citizen suits.

Second, the decision in Laidlaw is significant because it appears that the Court is opening its doors to allow in more environmentalists by (1) signaling a shift toward a less formalistic and more pragmatic approach to the standing doctrine, and (2) moving toward an understanding that the mootness doctrine is prudential rather than constitutional. If these propositions are correct, then environmentalists will have less difficulty overcoming the standing and mootness hurdles in the future.

Third, the Laidlaw opinion suggests that citizen-suit enforcement provisions do not violate separation of powers. The decision implies that the Take Care Clause of Article II imposes both a power and a duty on the executive to enforce the laws, and that Congress can delegate this enforcement power to citizens when the executive fails to satisfy this duty.

Despite these conclusions, the Court left several important issues unresolved, including whether attorney's fees may be awarded under the catalyst theory. This issue is extremely important in the context of public interest law (including environmental law). If attorney's fees are only awarded when there is a final judgment on the merits, and not when a plaintiff succeeds in changing the defendant's behavior, then many attorneys will not risk taking on these cases. Thus, if the catalyst theory is no longer viable, the practical reality is that citizen suits will rarely be brought and the holding in Laidlaw, which vindicates the use of citizen-suits, will be seriously undermined.

Before discussing these issues, a summary of the Laidlaw case is necessary. The action commenced when Friends of the Earth and other environmental groups6 (collectively referred to as FOE) gave sixty-days notice7 to the state of

South Carolina and Laidlaw, an owner and operator of a hazardous-waste incinerator, of their intent to file a citizen suit under the Clean Water Act against Laidlaw.8 FOE alleged that Laidlaw was in violation of its NDPES permit by discharging mercury above allowable limits into the North Tyger River. Under the CWA, citizen suits are barred if the state diligently prosecutes the action before the expiration of the sixty-day notice period.9 Thus, in an attempt to bar the citizen suit, Laidlaw persuaded the state's Department of Health and Environmental Control (DHEC) to bring an enforcement action.10 Notably, DHEC's complaint was drafted, filed, and paid for by Laidlaw. On the last day before the sixty-day notice period expired, DHEC reached a settlement agreement with Laidlaw that required Laidlaw to pay $100,000 in civil penalties and to make every effort to comply with its permit obligations.11

Notwithstanding this agreement, FOE decided to file a complaint against Laidlaw seeking an injunction, civil penalties (which, under the CWA, are paid to the United States Treasury), and attorney's fees and costs. Laidlaw moved to dismiss the action, arguing that FOE could not bring suit because the state had already reached a settlement agreement with the company. The district court subsequently held that DHEC had not diligently prosecuted Laidlaw for its violations and therefore allowed FOE's lawsuit to proceed.12

The district court made several important findings of fact. First, the court found that Laidlaw had violated its NPDES mercury limits 489 times, including nine times after the complaint was filed, and that Laidlaw had violated its reporting and monitoring requirements numerous times.13 Second, no significant harm to the environment was demonstrated: In spite of Laidlaw's violations, the North Tyger River was attaining its water quality standards, and the overall quality of the river exceeded levels necessary to support fish, wildlife, and recreation.14 Third, Laidlaw had enjoyed an economic benefit of $1,092,581 as a result of its noncompliance.15