   |
|
State & Local News Vol. 21, No. 4, Summer 1998
Environmental Law UpdateStephanie P. Brown is an attorney in the U.S. Environmental Protection Agency (EPA) Office of Enforcement and Compliance Assurance in Washington, D.C. Ms. Brown may be reached at (202) 564-2596 or brown.stephanie@epamail.epa.gov. The opinions expressed herein are those of the author and do not represent the view of U.S. EPA.
By Stephanie P. BrownBreathing new life into what may have become an oft conceded defense argument, in Steel Co. v. Citizens for a Better Environment, 118 S. Ct. 1003 (Mar. 4, 1998), the U.S. Supreme Court dismissed a citizen suit on the grounds that plaintiffs lacked constitutional standing to pursue their enforcement action. In Steel Co., plaintiffs sought to enforce compliance with the Emergency Planning and Community Right-to-Know Act ("EPCRA" or "SARA Title III"), which generally regulates manufacturing and certain industrial operations (e.g., hazardous waste facilities and electric generating utilities). The tenets expressed in Steel Co., however, portend a trend among federal courts to scrutinize citizen standing under other federal environmental statutes as well. The traditionally liberal view of standing applied in federal courts has resulted in active citizen prosecution against local governments, industry, and others under an array of federal environmental laws. In Steel Co, Citizens for a Better Environment (CBE) issued to an Illinois manufacturer, the Steel Company ("Steel"), the statutorily-required sixty-day advance notice of CBE's intent to sue. CBE alleged that for several years Steel had failed to comply with EPCRA's obligation to file hazardous chemical inventory and toxic chemical release reports. (Comparable to Clean Water Act discharge monitoring reports, these EPCRA reports are made available to the public and, thus, are vital to the ability of environmental groups and others to identify and prosecute noncomplying entities.) Following receipt of CBE's notice, Steel filed its overdue reports. At the end of the sixty-day period, however, CBE sued Steel in the U.S. District Court for Northern Illinois. CBE sought (1) a declaration of Steel's EPCRA violations, (2) orders compelling Steel to pay statutory civil penalties and CBE's costs, (3) an order requiring Steel to give CBE copies of its compliance reports, (4) authority for CBE to inspect Steel's records, and (5) any such further relief as the court deemed appropriate. Notably, the relief sought by CBE is typical of that requested by plaintiffs in environmental citizen suits. Steel moved for dismissal on the grounds that, among other things, EPCRA did not allow private enforcement actions where all violations had been corrected. The district court agreed with Steel. The Seventh Circuit Court of Appeals reversed. Steel appealed to the Supreme Court, which granted certiorari to resolve the conflict between the Sixth and Seventh Circuits with respect to whether EPCRA (like the Clean Water Act) forbids citizen prosecution for wholly historical violations. Surprisingly, the Supreme Court side-stepped the question on the merits and dismissed CBE's suit, finding that the plaintiffs did not possess constitutional Article III standing. First, the Court reaffirmed the general principle that Article III standing must be decided before the merits of a case are resolved. Writing for the Court, Justice Scalia noted that to establish constitutional standing, a plaintiff must demonstrate three elements: (1) "injury-in-fact"—a concrete, actual, or imminent harm suffered by the plaintiff; (2) "causation"—a fairly traceable connection between the plaintiff's injury and the defendant's alleged conduct; and (3) "redressibility"—a likelihood that the requested relief will redress the alleged injury. In Steel Co., plaintiffs failed to establish redressibility because "[n]one of the specific items of relief sought, and none that we can envision as ‘appropriate' under the general request, would serve to reimburse respondent for losses caused by the late reporting, or to eliminate any effects of that late reporting upon respondent." According to the Court, plaintiff's request for declaratory judgment was "worthless" inasmuch as there was no controversy regarding whether Steel had failed to file the reports or whether such failure constituted a violation. Second, because the civil penalties demanded would be paid to the U.S. Treasury, the Court found that such payment would not redress any harm suffered by the plaintiff. "Relief that does not remedy the injury suffered cannot bootstrap a plaintiff into federal court . . . ." Third, the Court determined that CBE's demand for payment of its investigation and prosecution costs did not substantiate redressibility because "a plaintiff cannot achieve standing to litigate a substantive issue by bringing suit for the costs of bringing suit." The Court reasoned that, although recovery of such costs unrelated to litigation would support Article III standing, the EPCRA provision upon which CBE relied provided for monetary relief only in the form of recovering litigation costs. Finally, the Court ruled that plaintiff's request for inspection authority and report copies was aimed at deterring future violations and would not remedy past wrongs. Notably, the Court indicated that an allegation of "continuing violation or the imminence of a future violation" would have remedied the alleged harm for purposes of Article III standing. The Court's decision in Steel Co. leaves unresolved the question of whether citizens can prosecute wholly historical EPCRA violations. Because the case was decided on constitutional (rather than statutory) grounds, it likely will eliminate citizen standing under other federal environmental statutes such as the Clean Water Act and Resource Conservation and Recovery Act (a/k/a RCRA) where a defendant has cured its violation prior to commencement of the citizen suit. Furthermore, in view of Steel Co.'s increased scrutiny to the principles of standing, an environmental defendant, including a local government, should not assume that a citizen plaintiff possesses constitutional standing and should urge the adjudicating federal court to scrutinize plaintiff's complaint in this regard.
|