An Overview of Citizen Suits Affecting the Mineral and Energy Industries

Chapter 7 Cite as 20 Energy & Min. L. Inst. ch. 7 (2000) An Overview of Citizen Suits Affecting the Mineral and Energy Industries Timothy W. Gresham 1 Eric R. Thiessen 2 Penn, Stuart & Eskridge Abingdon, Virginia Synopsis 7.01. Introduction... 222 7.02. The Scheme of Citizen Suit Statutes... 224 7.03. Comparison with the Administrative Procedures Act... 226 7.04. Jurisdictional Issues... 227 [1] Constitutional Requirements... 227 [a] Standing... 228 [i] Injury in Fact... 230 [ii] Causation... 233 [iii] Redressability... 234 [b] Prudential Considerations... 237 [i] Generally Shared Grievances... 237 [ii] Third Party Rights/Associational Standing... 238 [iii] Zone of Interests... 239 [c] Mootness... 240 [d] Ripeness... 242 [2] Federal or State Jurisdiction... 242 [a] Federal Jurisdiction over State Regulations... 242 [b] Abstention... 243 [3] Venue... 244 [4] Eleventh Amendment Immunity... 245 7.05. Elements of a Citizen Suit Action... 246 [1] Parties... 246 [a] Plaintiffs... 246 [b] Operator as Defendant... 247 [c] Regulator as Defendant... 247 [2] Violation of Law... 248 1 Shareholder, Penn, Stuart & Eskridge; B.A., Morehead State University; J.D., University of Tennessee. 2 Associate, Penn, Stuart & Eskridge; B.A., Washington and Lee University; J.D. with Honors, Drake University Law School.

7.01 ENERGY & MINERAL LAW INSTITUTE 7.06. Additional Limitations... 250 [1] Notice and Delay Requirements... 250 [2] Preemption... 252 [a] Government Preemption... 253 [b] Administrative Proceedings... 253 [c] Timing... 255 [d] Administrative Exhaustion... 255 7.07. Intervention... 256 [1] Statutory Citizen Intervention... 256 [2] Government Intervention... 257 [3] Other Parties... 258 7.08. Remedies... 258 [1] Injunctions... 258 [a] Preliminary Injunction... 258 [b] Permanent Injunction... 260 [2] Civil Penalties... 260 [3] Damages... 262 [a] SMCRA... 262 [b] Response Costs... 263 [4] Attorney s Fees... 264 [5] Alternatives to Citizen Suits... 265 7.09. Additional Defenses... 265 [1] Statute of Limitations... 266 [2] Issue and Claim Preclusion... 267 7.10. Conclusion... 268 7.01. Introduction. Since the late 1960s, Congress has enacted numerous statutes mandating strenuous and pervasive environmental obligations respecting all aspects of business. The mineral and energy industries have not been excepted from such regulation. Today they are among the most regulated sectors of the United States economy. For the mineral and energy industries, environmental laws and regulations require the permitting of operations and facilities; require the control, monitoring and reporting of air and water discharges; and impose strict limitations on the generation, use and disposal of solid wastes. Failure to comply with these requirements can result in the enforcing federal or state agency bringing actions for injunctive relief and for administrative, civil and criminal remedies and penalties. Concerned that federal agencies were insufficiently motivated to enforce existing environmental laws, in 1970 Congress enacted as part of 222

CITIZEN SUITS 7.01 the Clean Air Act (CAA), 3 a provision allowing any person to sue an operator alleged to be in violation of CAA s emission standards. 4 The provision also permitted suit against the Administrator of the Environmental Protection Agency (EPA) for failure to carry out any duties under the CAA, which are not discretionary. 5 Congress intended this citizen suit provision to motivate the governmental agencies to bring enforcement and abatement proceedings. 6 Congress was apparently pleased with the citizen suit provision, as it included a virtually identical provision in the next major environmental statute it enacted, 7 the Federal Water Pollution Control Act. 8 Since then Congress has included a citizen suit provision in virtually every federal environmental protection statute. 9 This chapter provides a general overview of citizen suits. Not every environmental statute discussed in this chapter directly regulates the mineral and energy industries, but courts have interpreted the citizen suit provisions of these statutes similarly. Therefore, judicial interpretation of a provision in one statute is likely to apply to another. The chapter is intended to serve as a sort of primer for the mineral and energy or environmental lawyer s defense of such a case, should one be threatened or filed. The chapter first explains the basic scheme of citizen suit statutes, comparing and contrasting them to the provisions of the Administrative Procedures Act (APA). 10 It next identifies and explains the requirements for bringing and maintaining citizen suits in federal court, as constitutional and prudential issues have 3 42 U.S.C. 7401-7671q. 4 42 U.S.C. 7604(a)(1). 5 42 U.S.C. 7604(a)(2). 6 See S. Rep. No. 91-116, at 35-36. 7 Friends of the Earth v. Carey, 535 F.2d 165, 172 (2d Cir. 1976). 8 33 U.S.C. 1251-1356. Today this Act is more commonly referred to as the Clean Water Act (CWA). 9 See, e.g., Toxic Substances Control Act (TSCA), 15 U.S.C. 2619; Endangered Species Act (ESA), 16 U.S.C. 1540(g); Surface Mining Control and Reclamation Act (SMCRA), 30 U.S.C. 1270; Resource Conservation and Recovery Act (RCRA), 42 U.S.C. 6972; Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. 9659; Emergency Planning and Community Right to Know Act (EPCRA), 42 U.S.C. 11046. 10 See discussion infra 7.02-7.03. 223

7.02 ENERGY & MINERAL LAW INSTITUTE been at the forefront of many citizen-initiated environmental enforcement suits. 11 As citizen suits have resulted in several decisions dealing specifically with the issue of constitutional standing, the chapter discusses it in depth. 12 Many articles already have been written concerning standing issues in a general context. This chapter does not provide a detailed annotation and analysis of each Supreme Court decision on standing, but rather attempts to distill the important principles this line of authority has defined, and discusses how the practitioner may apply these principles as potential defenses in citizen suit actions. This area of the law remains somewhat in flux, and the Supreme Court and circuit courts of appeal will continue to further refine the parameters of citizens standing to bring environmental actions. Finally, the chapter examines the statutory prerequisites to filing citizen suits and explains other procedural defenses that apply to such suits. 13 7.02. The Scheme of Citizen Suit Statutes. Congress enacted citizen suit provisions to encourage public participation and to provide the public with a role in the enforcement of environmental protection laws. 14 However, they are designed to supplement, not supplant governmental enforcement. 15 While citizen suit provisions vary in language, most have an identical structure and provide for an analogous procedure. 16 They typically provide 11 See discussion infra 7.04. 12 See discussion infra 7.04[1][a], [b]. 13 The authors have limited discussion to federal citizen suit provisions and cases interpreting them. Many states have enacted equivalent or analogous provisions. For example, SMCRA requires primacy states to have a citizen suit provision in accordance with SMCRA. 30 U.S.C. 1253(a)(1); 44 Fed. Reg. 14965 (March 13, 1979); 47 Fed. Reg. 17269 (April 21, 1982); In re Permanent Surface Mining Reg. Litig., 14 Env t Rep. Cas. (BNA) 1083, 1088 (D.D.C. 1980). While some states may interpret their statutes similarly, one should consult the pertinent state s constitution, statutes and cases. 14 Friends of the Earth v. Carey, 535 F.2d 165, 172 (2d Cir. 1976). 15 Gwaltney of Smithfield v. Chesapeake Bay Found., 484 U.S. 49, 60 (1987). 16 The citizen suit provision of the CWA is typical: any citizen may commence a civil action on his own behalf (1) against any person (including (i) the United States, and (ii) any other governmental 224

CITIZEN SUITS 7.02 for two distinct actions. First, the statutes authorize a suit against any person who is allegedly violating the requirements of the statute or its regulations, to compel that person to comply with the statute or regulations. These compel compliance actions are limited to operators of facilities or to operations subject to the statute, and they may not be brought against the federal or state regulatory agency. 17 Second, the statutes authorize actions against the government official, usually the Administrator of the EPA, 18 where the plaintiff alleges that the agency has failed to carry out a non-discretionary duty. These are referred to as mandatory duty suits. Some statutes authorize mandatory duty suits against state governmental entities. 19 The differences in language of the provisions occur because of the differences in the substantive purposes of the statutes. For example, the CAA citizen suit provision permits suits alleging violations of emission standards or limitations or orders issued by the EPA or a state regarding the standards or limitations. 20 The SMCRA provision permits suits against government operators allegedly in violation of the Act or any rule, regulation, order, or permit issued pursuant thereto. 21 Despite these differences in language, the courts have consistently examined prior decisional authority interpreting a citizen suit provision of instrumentality or agency to the extent permitted by the eleventh amendment to the Constitution) who is alleged to be in violation... or (2) against the Administrator where there is alleged a failure... to perform any act or duty under this chapter which is not discretionary with the Administrator. 33 U.S.C. 1365(a). 17 Oklahoma Wildlife Fed n v. Hodel, 642 F. Supp. 569, 571-72 (N.D. Okla. 1986). 18 The Administrator of EPA is normally the named official in actions brought under TSCA, CWA, RCRA, CAA and EPCRA. ESA and SMCRA provide that suit is to be brought against the Secretary of the Interior. See discussion infra 7.06[1]. 19 E.g., SMCRA, 30 U.S.C. 1270 (a)(2)(providing that action may be filed against the Secretary or the appropriate State regulatory authority to the extent permitted by the eleventh amendment to the Constitution ); EPCRA, 42 U.S.C. 11046(a)(1)(C), (D)(allowing suits against the governor or commission of a state for certain reporting failures). 20 42 U.S.C. 7604(a)(1). 21 30 U.S.C. 1270(a)(1). Under SMCRA, plaintiffs cannot sue a private operator for violations of the Act itself. Id; see discussion infra 7.05[2]. 225

7.03 ENERGY & MINERAL LAW INSTITUTE one statute and applied that reasoning to similar provisions of other statutes. 22 7.03. Comparison with the Administrative Procedures Act. Section 702 of the Administrative Procedures Act (APA) provides for judicial review of agency action by a person suffering legal wrong or who is adversely affected or aggrieved by the agency action. 23 Section 702 provides a process for citizens to enforce environmental statutes against federal agencies, where the statutes do not include citizen suit provisions or other private remedies. 24 If agency action cannot be challenged through the statute s citizen suit provision, the action may be reviewable under the APA, if the plaintiff can meet the conditions for APA review. 25 A person aggrieved or adversely affected by agency action cannot use citizen suit provisions to circumvent judicial review under the APA, 26 nor have the environmental citizen suit provisions expressly or impliedly repealed the APA. 27 22 Compare Hallstrom v. Tillamook County, 493 U.S. 20, 26 (1989)(finding the notice and delay provision of RCRA jurisdictional), with Powder River Basin Resource Council v. Babbitt, 54 F.3d 1477, 1486 (10th Cir. 1995)(applying Hallstrom to notice and delay provision of SMCRA). 23 5 U.S.C 702. 24 See Lujan v. National Wildlife Fed n, 497 U.S. 871, 882 (1990)(APA provides for judicial review of final agency action under the National Environmental Policy Act (NEPA), 42 U.S.C. 4321, et seq. and the Federal Land Policy and Management Act (FLPMA), 43 U.S.C. 1701, et seq., as neither statute provides a private right of action to remedy violations of their provisions). 25 Lujan v. NWF, 497 U.S. at 882-883; Bennett v. Spear, 520 U.S. 154, 174-175 (1997). 26 Bennett, 520 U.S. at 173-174 (holding that 42 U.S.C. 1540(g)(1)(A), ESA s citizen suit provision, is available only to challenge governmental action as a regulated party, not to challenge the Secretary s implementation of the statute). 27 OXY USA, Inc. v. Babbitt, 122 F.3d 251, 258-259 (5th Cir. 1997). 226

CITIZEN SUITS 7.04 7.04. Jurisdictional Issues. [1] Constitutional Requirements. The power of the federal courts to adjudicate any lawsuit is limited by Article III of the United States Constitution to cases and controversies. 28 The doctrines developed to ensure that the courts maintain this properly limited role are standing, mootness and ripeness. These doctrines have figured prominently in citizen suit litigation. Many of the recent decisions regarding these doctrines, especially standing, are the result of citizen suits and other challenges to agency action or inaction under various environmental statutes. 29 Some trace the increase in dismissals of citizen and other environmental suits for lack of standing to the influence of Justice Scalia. 30 In 1983, Justice Scalia (then a judge of the United States Court of Appeals for the D.C. Circuit) wrote that the doctrine of standing is a crucial and inseparable element of the separation of powers principle and assists the Judicial Branch in maintaining its limited role under the Constitution. 31 Then Judge Scalia disagreed with the expansive view of the judiciary s role in environmental suits expressed in Calvert Cliffs Coordinating Commission v. Atomic Energy Commission. 32 Since his arrival at the Supreme Court, he has put his thesis into practice as the author of the majority opinions in Steel Co. v. Citizens for a Better 28 U.S. Const. art. III, 2, cl. 1. The Supreme Court has explained that this limitation: defines with respect to the Judicial Branch the idea of separation of powers on which the Federal Government is founded. The several doctrines that have grown up to elaborate that requirement are founded in concern about the proper and properly limited role of the Courts in a democratic society. Allen v. Wright, 468 U.S. 737, 750 (1984)(quoting Warth v. Seldin, 422 U.S. 490, 498 (1975)(internal quotations omitted)). 29 See Steel Co. v. Citizens for a Better Env t, 523 U.S. 83 (1998); Bennett, 520 U.S. 154; Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992); Lujan v. National Wildlife Fed n, 497 U.S. 871 (1990). 30 See, e.g., William Glberson, Novel Antipollution Tool Is Being Upset by Courts, N.Y. Times, June 5, 1999, at A10. 31 Antonin Scalia, The Doctrine of Standing as an Essential Element of the Separation of Powers, 17 Suffolk U.L. Rev. 881, 881 (1983)(hereinafter Scalia ). 32 Id. at 884-885; see Calvert Cliffs Coordinating Comm n v. Atomic Energy Comm n, 449 F.2d 1109 (D.C. Cir. 1971). 227

7.04 ENERGY & MINERAL LAW INSTITUTE Environment, 33 Bennett v. Spear, 34 Lujan v. Defenders of Wildlife, 35 and Lujan v. National Wildlife Federation. 36 [a] Standing. Standing, the most important of these doctrines, 37 focuses on the party seeking to get his complaint before a federal court and not on the issues he wishes to have adjudicated. 38 While standing includes judicially imposed prudential considerations that may be expanded or abrogated by statute, 39 Congress may not reduce or expand the underlying case or controversy requirement of the Constitution. 40 The Constitution requires, at a minimum, that the plaintiff has suffered: an injury in fact an invasion of a legally-protected interest which is... concrete and particularized... and... actual or imminent, not conjectural or hypothetical.... Second, there must be a causal connection between the injury and the conduct complained of the injury has to be fairly... trace[able] to the challenged action of the defendant and not... th[e] result [of] the independent action of some third party not before the Court.... Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. 41 In other words, a party must demonstrate an injury in fact that is fairly traceable to the actions of the defendant and that the injury will be likely redressed by the court. 42 33 Steel Co. v. Citizens for a Better Env t, 523 U.S. 83 (1998). 34 Bennett v. Spear, 520 U.S. 154 (1997). 35 Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992). 36 Lujan v. National Wildlife Fed n, 497 U.S. 871 (1990). 37 FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 230 (1990). 38 Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 38, (1976)(quoting Flast v. Cohen, 392 U.S. 83, 99 (1968)). 39 Bennett, 520 U.S. at 162. 40 Id.; see Sierra Club v. Simkins Indus., Inc., 847 F.2d 1109, 1113 (4th Cir. 1988)(creation of a citizen suit provision does not, itself, establish Article III standing). 41 Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561 (1992)(cites omitted). 42 Bennett, 520 U.S. at 162. 228

CITIZEN SUITS 7.04 The party invoking federal jurisdiction has the burden of establishing standing. 43 Since standing is jurisdictional, it may be raised at any time, even on appeal. 44 It may be raised on remand, even if previously considered. 45 Courts may and should consider standing sua sponte, if it appears standing is doubtful. 46 [E]ach element [of standing] must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e. with the manner and degree of evidence required at the successive stages of the litigation. 47 If challenged prior to trial by a motion to dismiss, general factual allegations of injury resulting from the defendant s conduct may suffice, as the court presumes that the allegations include the necessary supporting facts. 48 However, [t]o prevail on a Federal Rules of Civil Procedure 56 motion for summary judgment... mere allegations of injury are insufficient. Rather, a plaintiff must establish that there exists no genuine issue of material fact as to justiciability.... 49 Finally, at trial the plaintiff must present sufficient proof of the jurisdictional facts. 50 Because of the varying levels of proof required, when standing is challenged plays a significant role in the decisions. For example, in Bennett the Court upheld standing against a challenge at the pleading stage. 51 In United States v. Students Challenging Regulatory Agency Practices (SCRAP), 52 the Court 43 Defenders of Wildlife, 504 U.S. at 561. 44 Sierra Club v. Cedar Point Oil Co., 73 F.3d 546, 555 n.22 (5th Cir. 1996). 45 Public Interest Research Group of New Jersey, Inc. v. Magnesium Elektron, Inc., 123 F.3d 111, 117 (3d Cir. 1997). But see, CPC Int l, Inc. v. Northbrook Excess & Surplus Ins. Co., 46 F.3d 1211 (1st Cir. 1995). 46 Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., 484 U.S. 49, 70 (1987)(Scalia, J., concurring). 47 Defenders of Wildlife, 504 U.S. at 561. 48 Bennett, 530 U.S. at 168; Defenders of Wildlife, 504 U.S. at 561; Lujan v. NWF, 497 U.S. at 889. 49 Department of Commerce v. United States House of Representatives, 525 U.S. 316, 119 S. Ct. 765, 772 (1999). 50 Defenders of Wildlife, 504 U.S. at 561. 51 Bennett, 520 U.S. at 168. 52 United States v. Students Challenging Regulatory Agency Practices (SCRAP), 412 U.S. 669 (1973). 229

7.04 ENERGY & MINERAL LAW INSTITUTE upheld standing, stating that the defendants could have tested the veracity of plaintiffs allegations by filing a motion for summary judgment. 53 [i] Injury in Fact. Standing requires an injury to a legally protected interest. Economic interests have long been recognized as legally protected interests supporting standing. 54 Later, the Court specifically held that noneconomic, aesthetic and environmental interests were legally protected interests that could support standing. 55 However, the mere existence of a legally protected interest does not provide standing. The interest must be injured or adversely impacted by the action of the defendant and the plaintiff must be among those persons affected. 56 Parties asserting injuries to noneconomic, aesthetic, environmental, conservational, or recreational interests must allege and prove that they would be affected in any of their activities or past times by the challenged governmental or private action. 57 The injury must be particularized, meaning the injury must affect the plaintiff in a personal 53 Id. at 689-690. 54 Association of Data Processing Service Orgs. v. Camp, 397 U.S. 150 (1970); Barlow v. Collins, 397 U.S. 159 (1970). 55 Sierra Club v. Morton, 405 U.S. 727 (1972). Other legally protected interests held sufficient to support standing include the observation of wildlife, Lujan v. Defenders of Wildlife, 504 U.S. 555, 562-563 (1992)(endangered species); Japan Whaling Ass n v. American Cetacean Soc., 478 U.S. 221 (1986)(whales); Animal Legal Defense Fund v. Glickman, 154 F.3d 426 (D.C. Cir. 1998)(animals in captivity); the use of natural resources, Public Interest Research Group of New Jersey, Inc. v. Magnesium Elektron, Inc., 123 F.3d 111 (3d Cir. 1997)(use of waterway or land adjacent to waterway); and access to information, Steel Co. v. Citizens for a Better Env t, 523 U.S. 83, 118 S. Ct. 1003, 1018 (1998)(court assumed that access to information was legally protected interest); Federal Election Comm n v. Akins, 524 U.S. 11, 118 S. Ct. 1777 (1998)(obtaining and sharing information from political group is legally protected interest); Sierra Club v. Simkins Industries, Inc., 847 F.2d 1109, 1113 (4th Cir. 1988)(failure to monitor and report discharges injured ability to know the extent of pollution). This is not an exhaustive list of legally protected interests, which Congress can create. The question is whether Congress has given the plaintiff a right personally. Scalia, at 885. 56 Sierra Club v. Morton, 405 U.S. 727, 734-735 (1972). 57 Id. at 735. The Court rejected Sierra Club s argument that its special interest in the environment gave it standing to argue the public interest, but held that once a party establishes his or her standing, he or she can argue the public interest. Id. at 735-736. 230

CITIZEN SUITS 7.04 and individual way. 58 The injury must also be actual or imminent. Plaintiffs, who in the past had observed endangered or threatened wildlife and their habitat in foreign countries, but had no immediate plans to return, had no standing to challenge agency actions or regulations that might affect that wildlife or habitat, as they alleged no actual or imminent injury. 59 Procedural injuries are treated somewhat differently. A procedural injury exists if a person is provided a procedural right designed to protect a concrete or legally protected interest. 60 For example, a person living adjacent to a proposed federal dam would have standing to challenge the permitting agency s failure to prepare an environmental impact statement (EIS), while a person living across the country from the proposed dam would not. 61 A procedural injury is not subject to the same immediacy and redressability requirements. 62 The example above illustrates this. The building of the dam, which is the action that will damage or injure the plaintiff s interest, may not occur for many years; however, the procedural injury, namely the failure to prepare the EIS, has already occurred. Additionally, requiring the completion of an EIS does not ensure that the remedy stopping or modifying the construction of the dam will ever occur. The injury need not be significant. An identifiable trifle is enough. 63 However, some recent cases appear to require more than a mere trifle. These recent decisions demonstrate the necessity of specifically alleging injury in fact and providing factual support for the allegations. For example, in Public Interest Research Group of New Jersey, Inc. v. Magnesium 58 Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). 59 Id. 60 Id. at 572-573. The Court rejected the lower court s view of procedural injury. The Court of Appeals for the Eighth Circuit had reasoned that the ESA citizen suit provision provided a procedural right in all persons and permitted any person to sue to enjoin governmental violations of ESA, whether the person suffered any discrete injury resulting from the violation or not. Id. at 571-572. 61 Id. at 572 n.7. 62 Id. 63 Public Interest Research Group v. Powell Duffryn Terminals, Inc., 913 F.2d 64, 71 (3d Cir. 1990)(quoting United States v. Students Challenging Regulatory Agency Practices (SCRAP), 412 U.S. 669, 689, n.14 (1973)). 231

7.04 ENERGY & MINERAL LAW INSTITUTE Elektron, Inc., 64 the plaintiffs failed to prove standing by alleging their enjoyment of the Delaware River was lessened, because they knew the defendant was discharging pollutants into tributaries of the Delaware River. 65 In denying standing, the Third Circuit Court of Appeals held that the plaintiffs failed to allege in the complaint or in the affidavits filed in support of standing, any injury to the Delaware River. 66 Plaintiffs did not counter defendant s affidavits that no injury to the Delaware River resulted from defendant s operations. 67 The Fourth Circuit Court of Appeals in Friends of the Earth, Inc. v. Gaston Copper Recycling Corp. 68 took a similar view. Members of the plaintiff organization alleged in affidavits that they used, recreated, fished and swam in various waterways allegedly polluted by the defendant. While recognizing recreational and economic interests were legally protected interests, the court of appeals held plaintiff did not prove the waters were actually, or in imminent threat of being, adversely affected by pollution. 69 The court found no evidence showing that the waters used by plaintiff s members were adversely affected by any pollution, much less the defendant s discharges. [T]he members concerns, standing alone, simply fail to establish that their legally protected interests were... adversely affected. 70 64 Public Interest Research Group of New Jersey, Inc. v. Magnesium Elektron, Inc., 123 F.3d 111 (3d Cir. 1997). 65 Id. at 120. 66 Id. at 121. 67 Id. This case also illustrates the importance of when standing is challenged. In Magnesium Elektron, the court of appeals decided the standing issue after the district court had adjudicated the merits of the CWA violations. Based on the defendant s evidence, the district court found the Delaware River had suffered no harm. The Third Circuit held, based on that finding, that plaintiff had failed to prove injury in fact. In Natural Resources Defense Council, Inc. v. NVF Co., No. 97-496-SLR, 1998 U.S Dist. LEXIS 9790 (D. Del. 1998)(unpublished), the district court distinguished Magnesium Elektron, partly because the defendant challenged plaintiffs allegations of injury in fact on a motion to dismiss, when the court was bound to accept the plaintiff s allegations as true. Id. at *27-29. 68 Friends of the Earth, Inc. v. Gaston Copper Recycling Corp., 179 F.3d 107 (4th Cir. 1999). 69 Id. at 113. 70 Id. at 114. 232

CITIZEN SUITS 7.04 [ii] Causation. The injury in fact must be fairly traceable to the challenged action and not the result of the action of parties not before the court. 71 A plaintiff cannot show causation by merely alleging or proving the defendant violated regulations or discharged pollutants exceeding the permit limits. 72 However, plaintiff need not prove causation with absolute scientific rigor. 73 Nor is the causation element equivalent to tort causation. 74 The causal relationship between the injury in fact and the challenged action does not have to be direct. 75 Still, the more attenuated, the less likely the injury will be fairly traceable to defendant s conduct. 76 The defendant s actions need not be the sole cause of the plaintiff s injury. 77 When the challenged conduct is a private action or is government action directly affecting the plaintiff, the causation element involves a generally straightforward analysis. When the challenged action is an agency s rule or regulation, however, the inquiry is somewhat more difficult, as the rule or regulation seldom affects the plaintiff directly. 78 Since the injury must be fairly traceable to the defendant s conduct and not from the independent action of some third party not before the court, 79 courts in citizen suits challenging rules or regulations requiring or 71 Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 41-42 (1976). 72 Public Interest Research Group v. Powell Duffryn Terminals, Inc., 913 F.2d 64, 72 (3d Cir. 1990). 73 Id. 74 Id. 75 United States v. Students Challenging Regulatory Agency Practices (SCRAP), 412 U.S. 669, 688 (1973). 76 Friends of the Earth, Inc. v. Gaston Copper Recycling Corp., 179 F.3d 107 (4th Cir. 1999)(plaintiffs concerns about pollution of waterways not fairly traceable to defendant s discharges where no evidence shows any effluent discharged by defendant in the waterways); Friends of the Earth v. Crown Central Petroleum Corp., 95 F.3d 358 (5th Cir. 1996)(concern over pollution of lake is not fairly traceable to defendant s discharge violations occurring 18 miles and several tributaries away); Florida Audubon Soc. v. Bentsen, 94 F.3d 658 (D.C. Cir. 1996)(threat of pollution from increased farming, not fairly traceable to grant of tax credits for production of ethanol derivative). 77 Powell Duffryn, 913 F. 2d at 72-73. 78 Lujan v. Defenders of Wildlife, 504 U.S. 555, 561-562 (1992). 79 Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 38, 41-42 (1976). 233

7.04 ENERGY & MINERAL LAW INSTITUTE permitting actions by a third party must concentrate on the coercive nature of the rule or regulation. 80 [iii] Redressability. The third aspect of standing addresses the likelihood that the injury will be redressed by a favorable decision. 81 This element has received increased interest recently. 82 In Steel Co. the Supreme Court held plaintiffs lacked standing to maintain a citizen suit under EPCRA, where the defendant was in full compliance with EPCRA at the time plaintiff filed suit. 83 The EPCRA citizen suit provision, like virtually all citizen suit provisions, requires the potential plaintiff to notify the alleged violator and federal and state regulators of the intent to file suit and to wait 60 days before filing. 84 The notice and delay provisions give the government the opportunity to commence its own compliance action and the alleged violator the opportunity to comply. If either event occurs, the need for a citizen suit never arises. 85 In Steel Co., the plaintiffs alleged the defendant had not filed reports required by EPCRA, but plaintiffs did not allege any continuing violation of EPCRA. Between the filing of the notice and suit, defendant filed the required reports. The Court, in reversing the lower court, held plaintiffs lacked standing, as none of the remedies sought would redress the plaintiffs alleged injury in fact. 86 First, the Court held declaratory relief unavailable and useless, as the defendant did not dispute that it had not filed the reports or that the failure violated EPCRA. Declaratory judgment was worthless 80 Defenders of Wildlife, 504 U.S. 561-562. 81 Id. at 561 (quoting Simon at 38). 82 In Steel Co. v. Citizens for a Better Env t, 523 U.S. 83 (1998), Justice Stevens, concurring in the judgment, called redressability a judicial creation of the past 25 years. Id., 118 S. Ct. at 1027. Justice Scalia, writing for the majority, disagreed, stating that redressability has been ingrained in our jurisprudence from the beginning. Id., 118 S. Ct. 1017 n.5. 83 Id., 118 S. Ct. 1003. 84 42 U.S.C. 11046(d). 85 Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49, 60 (1987). 86 The Court assumed, without deciding, that plaintiffs alleged a concrete injury in fact, satisfying Article III. Steel Co., 523 U.S. 83, 118 S. Ct. at 1018. 234

CITIZEN SUITS 7.04 to [plaintiff],... [and] to all the world. 87 Since the plaintiffs did not allege any continuing violations of EPCRA, the Court held injunctive or similar relief unavailable. 88 The Court also rejected the plaintiffs argument that its request for investigation and prosecution costs provided the plaintiffs with standing. 89 Obviously,... a plaintiff cannot achieve standing to litigate a substantive issue by bringing suit for the cost of bringing suit. 90 However, the most controversial holding was that the imposition of civil penalties would not redress the plaintiffs injuries, as the penalties were payable to the government, not the plaintiffs. The court rejected the argument that the payment of civil penalties by the defendant would serve as a deterrent and that the plaintiff had an interest in that deterrence: 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. 91 Since Steel Co., some defendants have argued that citizen plaintiffs can never prove redressability where civil penalties are sought, regardless of whether or not the defendant committed violations after suit was filed. Relying on Steel Co., at least two courts have found cases moot where the defendant was in compliance at the time of final judgment, leaving civil 87 Id., 118 S. Ct. at 1018. 88 Id., 118 S. Ct. at 1019-1020. The Court rejected the government s argument that injunctive relief would remedy the injury, because of a presumption of future injury when the defendant voluntarily ceases the activity, holding that this presumption arises only to refute assertions of mootness, not as a substitute for an allegation of present injury. Id., 118 S. Ct. at 1019-1020 (citing United States v. W. T. Grant Co., 345 U.S. 629, 632 (1953)). 89 The Court agreed that investigation costs incurred compiling the defendant s violations prior to suit, would support standing. However, 42 U.S.C. 11046(f) only allows the recovery of the costs of litigation. Id., 118 S. Ct. at 1019. 90 Id., 118 S. Ct. at 1019. 91 Id., 118 S. Ct. at 1018-1019 (emphasis in original). 235

7.04 ENERGY & MINERAL LAW INSTITUTE penalties as the only remedy. 92 However, decisions issued before Steel Co., have held that compliance achieved after suit does not moot an action for civil penalties. 93 Some courts have distinguished Steel Co., holding it applies only where the plaintiff does not allege or prove the existence of post complaint violations. In San Francisco Baykeeper v. Vallejo Sanitation and Flood Control Dist., 94 the district court held Steel Co. did not prevent an award of civil penalties for present and continuing violations. The court reasoned that Steel Co. did not overrule Gwaltney, 95 which only prohibited actions based on wholly past violations. 96 The Supreme Court granted certiorari in Friends of the Earth v. Laidlaw Environmental Services 97 on this issue. 98 It is difficult to predict what will be the Court s decision. Clearly, Gwaltney held that federal courts have no jurisdiction over citizen suits based solely on wholly past violations. 99 Equally clearly, the Court stated, citizens, unlike the Administrator, may seek civil penalties only in a suit brought to enjoin or otherwise abate an ongoing violation. 100 One problem is that Gwaltney s discussion of constitutional standing and mootness was brief and did not focus on the 92 See Friends of the Earth v. Laidlaw Envtl. Servs., Inc., 149 F.3d 303 (4th Cir. 1998), cert. granted, 119 S. Ct. 1111 (1999); Dubois v. United States Dep t of Agric., 20 F. Supp. 2d 263 (D.N.H. 1998), appeal stayed pending appeal of Laidlaw, No. 98-2364 (1st Cir. April 2, 1999). Mootness is discussed in more detail infra at Section 7.04[1][c]. 93 See Comfort Lake Ass n, Inc. v. Dresel Contracting, Inc., 138 F.3d 351 (8th Cir. 1998)(This decision was issued the day after Steel Co. A rehearing was requested, but was denied with no mention of Steel Co.); see also, Atlantic States Legal Found. v. Stroh Die Casting Co., 116 F. 3d 814, 820 (7th Cir. 1997), cert. denied 118 S. Ct. 442 (1997); Sierra Club v. Simkins Indus., Inc., 847 F.2d 1109, 1113 (4th Cir. 1988). 94 San Francisco Baykeeper v. Vallejo Sanitation and Flood Control Dist., 36 F. Supp. 2d 1214 (E.D. Cal. 1999). 95 Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., 484 U.S. 49 (1987). 96 San Francisco Baykeeper, 35 F. Supp. 2d at 1215. Accord National Resources Defense Council v. Southwest Marine, Inc., 28 F. Supp. 2d 584 (S.D. Cal. 1998), recon. granted and opinion aff d, 39 F. Supp. 2d 1235 (S.D. Cal. 1999). 97 Friends of the Earth v. Laidlaw Envtl. Servs., 149 F.3d 303 (4th Cir. 1998). 98 119 S. Ct. 1111 (1999). At the time of this writing, oral argument was set for October 12, 1999. 99 Gwaltney, 484 U.S. at 64. 100 Id. at 59. 236

CITIZEN SUITS 7.04 situation in Steel Co., where the imposition of civil penalties payable to the United States is the only remedy. 101 Counsel for plaintiffs in Laidlaw fear that Justice Scalia will use Laidlaw not only to expand Steel Co., but to further define injury in fact to include proof of actual harm. 102 However, the Court granted certiorari on the issues of mootness and attorneys fees, not injury in fact. 103 Justice Scalia in Gwaltney would have found subject matter jurisdiction had plaintiffs provided proof that the defendant was in fact in violation on the date suit was brought. 104 What complicates the situation in Laidlaw is that the district court denied declaratory and injunctive relief, and plaintiffs did not appeal those rulings to the court of appeals. 105 If nothing else, the decision should clarify the relationship between Steel Co. and Gwaltney. [b] Prudential Considerations. Besides the constitutional core requirements, the courts have developed several prudential limitations on standing. 106 These prudential considerations, unlike the constitutional requirements, may be expanded or abrogated by Congress. 107 [i] Generally Shared Grievances. Generally, courts will not adjudicate grievances shared equally by everyone or by a large class of citizens, where the grievances are more appropriately addressed by the other branches of government. 108 However, 101 The majority in Gwaltney did discuss standing and mootness. Id. at 65-67. However, Justices Scalia, Stevens and O Connor dissented from this portion of the majority opinion. In dissenting, Justice Scalia foreshadowed the decision in Steel Co.: If it is undisputed that the defendant was in a state of compliance when this suit was filed, the plaintiff s [sic] would have been suffering no remediable injury in fact that could support suit. Id. at 70. 102 See Steven France, What s It To You?, 85-0ct. A.B.A. J. 36 (1999). 103 Id. 104 Gwaltney, 484 U.S. at 69. 105 Friends of the Earth v. Laidlaw Envtl. Servs., 149 F.3d 303, 306 (4th Cir. 1998). 106 Allen v. Wright, 468 U.S. 737, 751 (1984). 107 Bennett v. Spear, 520 U.S. 154, 162 (1997). 108 Allen v. Wright, 468 U.S. at 751. 237

7.04 ENERGY & MINERAL LAW INSTITUTE the mere fact that an injury is shared by a large number does not prevent a court from adjudicating an otherwise appropriate case. 109 [ii] Third Party Rights/Associational Standing. The courts recognize a general prohibition against asserting the rights of third parties. However, that prudential consideration does not automatically prevent an association or group from filing suit on behalf of its members. Generally, citizen suits are filed not by individuals, but by environmental or public interest groups or associations on behalf of their members. An association may assert the rights of its members if (1) the individual members would have standing; (2) the interest sought to be protected is germane to the purposes of the association; and (3) the claim or relief requested will not require participation by the individual members. 110 Associational standing has been upheld where the plaintiff association is a state agency, if the members, individuals or companies, meet the indicia of membership. 111 Likewise corporate plaintiffs without members have standing to represent individuals, based on the indicia of membership. 112 An association can demonstrate standing in its own right, as virtually all the environmental statutes define person to include associations. 113 If the association cannot demonstrate standing, then at least one member must. 114 In Steel Co., the Court questioned in dicta whether an association could represent its members in a citizen suit under EPCRA. Because EPCRA, like nearly all environmental statutes, defines person to include association and permitted any person to commence a civil action on 109 The prohibition against adjudicating cases involving generalized grievances does not prevent a case where concrete injury has been suffered by many persons, as in mass fraud or mass tort litigation. Lujan v. Defenders of Wildlife, 504 U.S. 555, 572 (1992); Federal Election Comm n v. Akins, 524 U.S. 11, 24-25 (1998)(over the dissent of Justice Scalia, the Court held that injury in fact may be found where harm is concrete, though widely shared. Id. at 24. 110 Hunt v. Washington State Apple Advertising Comm n, 432 U.S. 333 (1977). 111 Id. at 344. 112 Friends of the Earth, Inc. v. Chevron Chem. Co., 129 F.3d 826, 829 (5th Cir. 1997). 113 See, e.g., SMCRA, 30 U.S.C. 1291(19). 114 Sierra Club v. SCM Corp., 747 F.2d 99 (2d Cir. 1984). 238

CITIZEN SUITS 7.04 his own behalf, the Court stated it is arguable that the statute permits respondent to vindicate only its own interests as an organization, and not the interests of its individual members.... 115 However, the Court assumed representational standing, as it did not affect the outcome. 116 [iii] Zone of Interests. The plaintiff s legally protected interest must fall within the zone of interests of the relevant statute. 117 Originally developed for challenges to agency action under the APA, 118 this prudential limitation has been extended to citizen suits as well. 119 As with any prudential limitation, it may be expanded or abrogated by Congress. 120 In Bennett, the Court held that enacting the citizen suit provision of the ESA abrogated the zone of interests test. 121 The Court relied on several factors in reaching that conclusion. First, the statute permits any person to file a civil suit. 122 The Court acknowledged the language s remarkable breadth compared to the language used in other citizen suit statutes. 123 Next, the Court remarked that the ESA dealt with the environment, a matter in which it is common to think all persons have an interest. 124 Finally, the purpose of citizen suit provisions is to encourage enforcement by private attorneys 115 Steel Co. v. Citizens for a Better Env t, 523 U.S. 83, 118 S. Ct. 1003, 1017 n.6 (1998). 116 Id. In Salmon v. Pacific Lumber Co., 30 F. Supp. 2d 1231 (N.D. Cal. 1998), the defendant made this same argument. The district court held that the argument, based on the Court s ruminations, ignored other Supreme Court precedent upholding associational standing. Id. at 1239-1240 Because an association must demonstrate it has a stake in the dispute in representing its members views, the court held the phrase on his own behalf did not abrogate associational standing. Id.; see Sierra Club v. Aluminum Co. of America, 585 F. Supp. 842, 845-849 (N.D.N.Y. 1984)( on his own behalf prevented class action suit under the CWA). 117 Association of Data Processing Serv. Orgs. v. Camp, 397 U.S. 150, 153, (1970). 118 5 U.S.C. 500 et seq. 119 Bennett v. Spear, 520 U.S. 154, 163 (1997). 120 Id. at 162. 121 Id. at 164. 122 16 U.S.C. 1540(g)(1). 123 Bennett, 520 U.S. at 164-165. 124 Id. at 165. 239

7.04 ENERGY & MINERAL LAW INSTITUTE general. 125 Based on these factors, the Court held Congress had expanded standing under the ESA to the fullest extent under Article III. 126 While the Court contrasted the ESA s citizen suit provision with the similar provisions in the CWA and the SMCRA, it seems unlikely that Congress abrogated the zone of interests test in the ESA, but not the CWA and SMCRA and the other environmental citizen suit provisions. First, the language having an interest which is or may be adversely effected, 127 which the court specifically referenced, is very similar to language the Court held revealed Congress s intent to expand standing in the Civil Rights Act of 1968. 128 Like the ESA, the CWA, SMCRA and the other environmental statutes deal with the environment, in which it is common to think all persons have an interest. 129 The purpose of all citizen suit provisions is to encourage enforcement by so-called private attorneys general. 130 Because of the obvious similarities in these statutes, there is no rational basis to believe Congress abrogated the zone of interests test under the ESA, but not the CWA, SMCRA and other statutes. [c] Mootness. It is not enough for the plaintiff to have standing and for the court to have a case or controversy when the case is filed; those conditions must continue throughout the litigation. 131 The doctrine of mootness ensures that continuation. An actual controversy must be extant at all stages of review, not merely at the time the complaint is filed. 132 Mootness has 125 Id. 126 Id. at 166. 127 30 U.S.C. 1270(a); 33 U.S.C. 1365(g). 128 See Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205 (1972)(statute permitting suit by any person injured by a discriminatory housing practice expanded standing to the fullest extent under Article III). 129 Bennett, 520 U.S. at 165. 130 Id. 131 Powder River Basin Resource Council v. Babbitt, 54 F.3d 1477, 1484-1485 (10th Cir. 1995). 132 Arizonans for Official English (AOE) v. Arizona, 520 U.S. 43, 67 (1997), quoting Preiser v. Newkirk, 422 U.S. 395, 401 (1975). 240

CITIZEN SUITS 7.04 been described as the doctrine of standing set in a time frame. 133 The doctrine of mootness contains two fundamental aspects. First, the controversy must remain live throughout the litigation. For example, if the defendant abated the violations that formed the basis of the suit, the controversy would no longer be live. 134 Second, the parties must maintain a personal stake in the litigation. 135 The loss of any element of standing during the litigation, including appeal, renders the matter moot and requires dismissal. 136 In Laidlaw, the court of appeals, relying on Steel Co., held that where the defendant at the time of judgment was no longer in violation and the only remaining remedy was civil penalties payable to the government, the claim was no longer redressable and therefore moot. The district court denied plaintiffs request for injunctive and declaratory relief, but plaintiffs appealed only the amount of the civil penalty awarded. 137 The Eighth Circuit and other courts have taken a contrary position. 138 Several courts have found citizen suits moot based on the actions of regulatory agencies after plaintiffs filed suit. For example, the termination of the permit and approval of an agreement between the defendant and the state mooted the plaintiffs request for injunctive relief. 139 Voluntary compliance by the operator does not, by itself, render the case moot, or operators would be virtually immune from citizen suits, as they could wait until suit is filed and then comply, avoiding any injunction or monetary 133 United States Parole Comm n v. Geraghty, 445 U.S. 388, 397 (1980)(quoting Monaghan, Constitutional Adjudication: The Who, and When, 82 Yale L.J. 1363, 1384 (1973)). 134 Comfort Lake Ass n, Inc. v. Dresel Contracting, Inc., 138 F.3d 351, 354-355 (8th Cir. 1998). This case distinguished mootness of a claim for injunctive relief from mootness of a claim for civil penalties. 135 Geraghty, 445 U.S. at 396. 136 AOE, 520 U.S. at 67. 137 Friends of the Earth v. Laidlaw Envtl. Servs., Inc., 149 F.3d 303, 306 (4th Cir. 1998), cert. granted, 119 S. Ct. 1111 (1999). 138 Comfort Lake Ass n, Inc. v. Dresel Contracting, Inc., 138 F.3d 351 (8th Cir. 1998); Natural Resources Defense Council v. Southwest Marine, Inc., 39 F. Supp. 2d 1235, 1242 (S.D. Cal. 1999)(collecting cases). 139 Comfort Lake, 138 F.3d at 355. 241

7.04 ENERGY & MINERAL LAW INSTITUTE sanction. For the court to dismiss a suit as moot based on voluntary compliance, the court must be convinced that it is absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur. 140 However, this exception does not apply where compliance is not voluntary but has resulted from the government s enforcement actions 141 or injunctions prohibiting further violations. 142 [d] Ripeness. Finally, for a suit to be a case or controversy it must be ripe for adjudication. Standing and ripeness are sometimes confused. 143 While standing focuses on whether the proper party is litigating the question, ripeness focuses on whether the question is being litigated at the proper time. 144 To determine if a case is ripe for adjudication, the court must evaluate (1) the fitness of the issues for judicial decision and (2) the hardship to the parties withholding court consideration. 145 A dispute is not ripe until the controversy has been reduced to more manageable proportions, and its factual components fleshed out, by some concrete action... in a fashion that harms or threatens to harm [the plaintiff]. 146 [2] Federal or State Jurisdiction. [a] Federal Jurisdiction over State Regulations. Virtually all the environmental citizen suit provisions specifically grant the federal district courts jurisdiction over compliance and mandatory duty suits. 147 Courts have divided, however, over whether federal jurisdiction 140 Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49, 66 (1987)(quoting United States v. Phosphate Export Ass n, Inc., 393 U.S. 199, 203 (1968))(emphasis added). 141 Comfort Lake, 138 F.3d at 355 (threat of further enforcement action by state). 142 Dubois v. United States Dep t of Agric., 20 F. Supp. 2d 263, 269 (D.N.H. 1998). 143 Wilderness Soc. v. Alcock, 83 F.3d 386, 389-390 (11th Cir. 1996). 144 Id. at 390. 145 Ohio Forestry Assoc. v. Sierra Club, 523 U.S. 726, 118 S. Ct. 1665, 1670 (1998)(citing Abbott Lab. v. Gardner, 387 U.S. 136, 148-149, (1967)). 146 Lujan v. National Wildlife Fed n, 497 U.S. 871, 891 (1990). 147 See e.g. CAA, 42 U.S.C. 7604(a); CWA, 33 U.S.C. 1365(a); SMCRA, 30 U.S.C. 1270(a). 242