Barg Coffin Lewis & Trapp, LLP Articles

October 2003

Standing For Citizens To Redress Wholly Past Acts Under Federal Environmental Statutes After Steel Co. v. CBE

By Rick Coffin and Brett Henrikson

Introduction

A key issue for the regulated community is whether citizen suits may be maintained for wholly past violations of federal environmental statutes -- i.e. violations that have been rectified at the time the lawsuit is filed. Plaintiffs face two primary jurisdictional hurdles to maintaining citizen suits for wholly past violations: statutory jurisdiction and constitutional jurisdiction. This paper examines both hurdles and looks specifically at implications for standing raised by the constitutional jurisdiction analysis in the United States Supreme Court's opinion in Steel Co. v. Citizens for a Better Envt., 523 U.S. 83 (1998) and its progeny.

Statutory Jurisdiction

The U.S. Supreme Court addressed statutory jurisdiction in the context of the Clean Water Act (CWA) in 1987. In Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, 484 U.S. 49, 57 (1987), the Court faced the issue of whether a person may maintain a citizen suit under CWA § 505(a)(1) for purely past violations. That provision authorizes citizen suits when the defendant "is alleged to be in violation" of CWA. The Supreme Court held that this statutory language did not encompass wholly past violations of CWA, but instead required good faith allegations of ongoing violations.

Gwaltney remains good law on the issue of statutory jurisdiction. See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 175 (2000). Courts still cite Gwaltney for the proposition that CWA § 505(a)(1) does not authorize citizen suits for wholly past violations. See, e.g., Natural Resources Defense Council v. Southwest Marine, Inc., 236 F.3d 985, 998 (9th Cir. 2000).

Gwaltney also still governs citizen suits under the similarly worded provisions -- containing "alleged to be in violation" - in other environmental statutes, such as the Resource Conservation and Recovery Act (RCRA), Safe Drinking Water Act (SDWA), and Toxic Substances Control Act (TSCA). RCRA § 7002(a)(1)(A) authorizes citizen suits against "any person … who is alleged to be in violation of any permit, standard, regulation, condition, requirement, prohibition, or order which has become effective pursuant to this chapter." Accordingly, courts have held that RCRA § 7002(a)(1)(A) does not authorize citizen suits for wholly past violations. See e.g., Chemical Weapons Working Group, Inc. v. U.S. Dept. of Defense, 2003 WL 1232579, *9 (10th Cir. 2003); Ascon Properties, Inc. v. Mobil Oil Co., 866 F.2d 1149, 1159 (9th Cir. 1989); see also, Meghrig v. KFC Western, Inc., 516 U.S. 479, 485-86 (1996) (holding that RCRA § 7002(a)(1)(B)'s "imminent and substantial endangerment" provision does not permit citizen suits for wholly past violations). SDWA contains a nearly identical citizen suit provision, which authorizes citizen suits "against any person … who is alleged to be in violation of" an SDWA requirement. 42 U.S.C. § 300j-8(a)(1). And courts have not surprisingly applied Gwaltney to require ongoing SDWA violations. See, e.g., Mattoon v. City of Pittsfield, 980 F.2d 1, 6 (1st Cir. 1992). Likewise, Gwaltney has been applied to the Toxic Substances Control Act citizen suit provision (TSCA § 20(a)). See, e.g., Brewer v. Ravan, 680 F. Supp. 1176, 1184 (M.D. Tenn. 1988).

In sum, citizen suits may not be maintained for wholly past violations of CWA, RCRA, TSCA, and SDWA as a matter of statutory jurisdiction.

Constitutional Jurisdiction

While the environmental statutes discussed above require ongoing violations as a matter of statutory jurisdiction, other environmental statutes do not have such limitations. The key environmental statutes in this regard are the Emergency Planning and Community Right-To-Know Act (EPCRA) and the Clean Air Act (CAA). Whether citizen suits may be maintained for wholly past violations of EPCRA and CAA turns largely on the constitutional doctrine of standing.

In apparent response to Gwaltney, Congress amended the CAA citizen suit provision in 1990. CAA § 304(a)(1) now permits a citizen suit "against any person … who is alleged to have violated (if there is evidence that the alleged violation has been repeated) or to be in violation of" emissions standards or government orders. This statutory provision thus purports to grant citizen suit jurisdiction for wholly past acts that have been repeated.

Lower courts appropriately construed Gwaltney as a statutory interpretation case, and thus several courts noted that the 1990 CAA amendments partially overturned Gwaltney with respect to CAA citizen suits. In particular, several cases held that the amended CAA § 304(a)(1) allows plaintiffs to bring citizen suits for wholly past acts as long as the violations have occurred more than once. See, e.g., Fried v. Sungard Recovery Servs., 916 F. Supp. 465, 467-68 (E.D. Pa. 1996) (applying rule and citing cases).

Like CAA, EPCRA purports to authorize citizen suits for wholly past violations -- in EPCRA's case, for failure to submit a required form by the respective mandatory deadline, regardless of whether the form is later submitted. See EPCRA § 326(a)(1). Many courts distinguished Gwaltney and the CWA citizen suit provisions from the EPCRA context and construed EPCRA as authorizing citizen suits for wholly past reporting violations. See, e.g., Delaware Valley Toxics Coalition v. Kurz-Hastings, Inc., 813 F. Supp. 1132, 1141 (E.D. Pa. 1993); Williams v. Leybold Technologies, Inc., 784 F. Supp. 765, 767-68 (N.D. Cal. 1992); Atlantic States Legal Foundation, Inc. v. Whiting Roll-Up Door Mfg. Corp., 772 F. Supp. 745, 749-50 (W.D.N.Y. 1991).

The landscape of environmental citizen suit jurisdiction changed dramatically in 1998 with the Supreme Court's decision in Steel Co. v. Citizens for a Better Envt., 523 U.S. 83 (1998). In Steel Co., defendant steel manufacturer allegedly violated EPCRA by failing to make required environmental reporting. Upon receiving plaintiff environmental group's notice of intent to sue, defendant came into compliance by submitting all of the overdue reports to the relevant agencies. Thus, there were no ongoing violations of EPCRA at the time the lawsuit was actually filed. In the lawsuit, plaintiff sought: a declaratory judgment that defendant violated EPCRA; an injunction requiring defendant to open to inspection its facility and records and to provide plaintiff copies of future reports; civil penalties payable to the Treasury; and attorney's fees and costs.

On appeal, the Supreme Court addressed the issue of whether EPCRA permitted citizen suits for wholly past violations. At the outset of the opinion, the Court dismissed the relevance of Gwaltney on the basis that constitutional jurisdiction needed to be addressed as a threshold issue before turning to statutory jurisdiction. In Gwaltney, constitutional jurisdiction was not at issue because plaintiffs in that case also alleged continuing violations. Thus, the Court in Steel Co. immediately turned its focus to constitutional jurisdiction.

Based on the "case or controversy" requirement in Article III of the U.S. Constitution, plaintiffs must have standing in order to bring a lawsuit in federal court. Standing has three components: injury in fact to the plaintiff, causation of that injury by defendant's challenged conduct, and a likelihood that the requested relief would redress that injury. The Court set aside the first two prongs and focused initially on the redressability test.

The Court determined that plaintiff's suit failed the redressability test and thus the plaintiff lacked standing to bring the EPCRA citizen suit. The relief sought -- declaratory relief, injunctive relief, civil penalties payable to the Treasury, attorney's fees, and costs -- did not serve to reimburse plaintiff for the losses caused by the late reporting, or to eliminate any effects of that late reporting upon plaintiff. Declaratory relief, attorney's fees, and costs could never by themselves create standing. While the Court conceded that civil penalties paid to the plaintiff "might be viewed as a sort of compensation or redress," the penalties at issue in Steel Co. went only to the Treasury. Injunctive relief could only give rise to redressability if plaintiff "had alleged a continuing violation or the imminence of a future violation."

Thus Steel Co. stands for the proposition that constitutional jurisdiction, i.e. standing, must be satisfied before turning to statutory jurisdiction. In the context of wholly past violations, injunctive and declaratory relief, civil penalties paid to the Treasury, and litigation costs cannot redress a plaintiff's injury and thus do not confer standing. However, the Supreme Court appears to have left open the question of whether civil penalties paid to plaintiff would confer standing for wholly past violations.

Apart from its express application to EPCRA citizen suits, Steel Co. also impacts CAA citizen suit jurisdiction. However, at least one court has failed to recognize the application of Steel Co. to the CAA context. In U.S. v. American Elec. Power Serv. Corp., 137 F. Supp. 2d 1060 (S.D. Ohio 2001), plaintiffs brought a citizen suit under CAA. The court did not address constitutional jurisdictional issues, but instead moved directly to the statutory jurisdiction issues. The court followed Fried, holding that the 1990 CAA amendments had overruled Gwaltney and permitted CAA citizen suit claims against wholly past violations. The court did not acknowledge the relevance of or even cite to Steel Co. As in Gwaltney, plaintiffs in American Electric alleged both continuing and past violations and, as a result, defendants may have neglected to raise the issue of constitutional jurisdiction. Nonetheless, the court could have raised the issue sua sponte.

Other courts have more appropriately recognized that Steel Co. fundamentally changed CAA citizen suit jurisdiction. The key case in this regard is L.E.A.D. v. Exide Corp., 1999 WL 124473 (E.D. Pa. 1999). There, plaintiffs filed a citizen suit under a variety of federal and state environmental statutes, including the federal CAA. The alleged violations included both wholly past violations (of a rescinded federal permit) as well as continuing violations (of a valid state permit). Plaintiffs requested several forms of relief: declaratory relief, mandatory injunctive relief, prohibitory injunctive relief, civil penalties (to be either paid to the U.S. Treasury or used for beneficial mitigation projects pursuant to CAA § 304(g)(2)), attorney's fees, and other litigation costs. Defendant moved for summary judgment on several grounds.

The court recognized that, in light of Steel Co., it must first address the issue of constitutional jurisdiction before addressing the merits of the summary judgment motion. The court then conducted a thorough analysis of the three prongs of standing. Injury in fact and causation posed no obstacles to plaintiffs. As to redressability, the court recognized the tension between Steel Co. and CAA § 304(a)(1)'s citizen suit provision allowing suits for wholly past acts but concluded that they could be reconciled:

we find that the two concepts can be reconciled where past violations may meet the redressability requirement of standing only if they have the possibility of being repeated in the future. In other words, a plaintiff may assert random past violations of the CAA and satisfy the redressability requirement by a presumption that there is a potential ongoing compliance problem or a possibility that such violations may be repeated.

1999 WL 124473, at *15. On this basis, the court determined the plaintiffs lacked standing with respect to a portion of their CAA claims because the violations associated with those claims could not be repeated. In particular, plaintiff lacked standing for the CAA claims associated with violations of the federal permit that had been rescinded prior to the lawsuit. Those wholly past violations could not be redressed by any of the requested relief, including civil penalties for mitigation projects. On the other hand, plaintiffs did have standing to challenge past violations of the valid state permit, because the past violations had been repeated and had continued after the filing of the lawsuit.

Another recent CAA citizen suit case applying Steel Co. is Berry v. Farmland Industries, Inc., 114 F. Supp. 2d 1150 (D. Kan. 2000). In Berry, the court addressed on motion for summary judgment whether plaintiffs had standing to pursue two CAA citizen suit claims. The relevant CAA claim related to alleged reporting violations that were corrected after notice but before the filing of the lawsuit. In contrast to Steel Co., plaintiffs alleged that future violations were imminent. However, the court determined that plaintiffs failed to demonstrate imminence, and therefore the claim was squarely barred by Steel Co. Plaintiffs apparently did not even attempt to argue that CAA § 304 conferred jurisdiction over wholly past violations.

In light of Steel Co., the more appropriate approach appears to be the one taken in L.E.A.D. and Berry. Courts must address whether plaintiffs have constitutional standing, in particular, whether the relief sought satisfies the redressability test of standing.

Steel Co. has foreclosed EPCRA citizen suits challenging wholly past acts given the scope of relief available to plaintiffs under that statute. The question remains whether any relief available under CAA would satisfy the redressability test.

Since CAA does not authorize civil penalties payable directly to plaintiffs, the only CAA relief that could possibly satisfy the redressability requirement would be the civil penalties for beneficial mitigation projects under CAA § 304(g)(2). That provision authorizes courts to award up to $100,000 to "be used in beneficial mitigation projects which are consistent with [CAA] and enhance the public health or the environment. The court shall obtain the view of the Administrator in exercising such discretion and selecting any such projects." The L.E.A.D. court rejected the argument that such an award would satisfy redressability, stating that "such generalized relief does not sufficiently redress the injuries specifically enumerated by the Plaintiffs." 1999 WL 124473, *16 n. 15. That court did, however, determine that penalties under the Pennsylvania clean air statute either paid to the state clean air fund or used to prevent air pollution in the county of the violation would satisfy the redressability prong because "the payment of penalties to the Clean Air Fund in Pennsylvania will directly remedy the effects of harm in the Plaintiffs' neighborhood." Id. Given the L.E.A.D. holding regarding Pennsylvania law, there appears to be no reason why the "beneficial mitigation projects" under CAA § 304(g)(2) could not be similarly localized so as to redress directly a plaintiff's injuries. If a court fashioned such a particularized mitigation project, it might satisfy the requirements for redressability. Therefore, plaintiffs might be able to maintain a citizen suit for wholly past CAA violations if they request civil penalties to be used for a localized mitigation directly responsive to the alleged injury.

Conclusion

Citizen suits for wholly past violations of CWA, RCRA, TSCA, and SDWA are foreclosed as a matter of statutory jurisdiction because the relevant statutes only authorize citizen suits where a defendant "is alleged to be in violation." Even where environmental statutes purport to convey citizen suit standing to pursue wholly past violations, the plaintiff must meet constitutional standing requirements, including the requirement for redressability. Courts have determined that the relief available to plaintiffs under CAA and EPCRA does not satisfy constitutional standing requirements. However, no court has squarely addressed whether civil penalties used for a localized mitigation project under CAA § 304(g)(2) could remedy a plaintiff's injuries in a manner sufficient to justify standing to challenge wholly past violations.

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This article was presented at the California Bar Association Yosemite Conference, October 16-19, 2003.

These materials are provided for information purposes only and are not intended as and cannot be considered legal advice. Before taking action based upon this information, you should consult your legal counsel.

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