[ Ginsburg ]
[ Stevens ]
[ Kennedy ]
[ Scalia ]
FRIENDS OF THE EARTH, INCORPORATED, et al.,
PETITIONERS v. LAIDLAW ENVIRONMENTAL
SERVICES (TOC), INC.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FOURTH CIRCUIT
[January 12, 2000]
Justice Scalia, with whom Justice Thomas joins, dissenting.
The Court begins its analysis by finding injury in fact on the basis of vague affidavits that are undermined by the District Courts express finding that Laidlaws 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 standingthereby 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 Courts watered-down requirements for initial standing. I dissent from all of this.
Plaintiffs, as the parties invoking federal jurisdiction, have the burden of proof and persuasion as to the existence of standing. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992) (hereinafter Lujan); FW/PBS, Inc. v. Dallas, 493 U.S. 215, 231 (1990). The plaintiffs in this case fell far short of carrying their burden of demonstrating injury in fact. The Court cites affiants testimony asserting that their enjoyment of the North Tyger River has been diminished due to concern that the water was polluted, and that they believed that Laidlaws mercury exceedances had reduced the value of their homes. Ante, at 1011. These averments alone cannot carry the plaintiffs burden of demonstrating that they have suffered a concrete and particularized injury, Lujan, 504 U.S., at 560. General allegations of injury may suffice at the pleading stage, but at summary judgment plaintiffs must set forth specific facts to support their claims. Id., at 561. And where, as here, the case has proceeded to judgment, those specific facts must be
Typically, an environmental plaintiff claiming injury due to discharges in violation of the Clean Water Act argues that the discharges harm the environment, and that the harm to the environment injures him. This route to injury is barred in the present case, however, since the District Court concluded after considering all the evidence that there had been no demonstrated proof of harm to the environment, 956 F. Supp. 588, 602 (SC 1997), that the permit violations at issue in this citizen suit did not result in any health risk or environmental harm, ibid., that [a]ll available data fail to show that Laidlaws actual discharges have resulted in harm to the North Tyger River, id., at 602603, and that the overall quality of the river exceeds levels necessary to support recreation in and on the water, id., at 600.
The Court finds these conclusions unproblematic for standing, because [t]he relevant showing for purposes of Article III standing
is not injury to the environment but injury to the plaintiff. Ante, at 10. This statement is correct, as far as it goes. We have certainly held that a demonstration of harm to the environment is not enough to satisfy the injury-in-fact requirement unless the plaintiff can demonstrate how he personally was harmed. E.g., Lujan, supra, at 563. In the normal course, however, a lack of demonstrable harm to the environment will translate, as it plainly does here, into a lack of demonstrable harm to citizen plaintiffs. While it is perhaps possible that a plaintiff could be harmed even though the environment was not, such a plaintiff would have the burden of articulating and demonstrating the nature of that injury. Ongoing concerns about the environment are not enough, for [i]t is the reality of the threat of repeated injury that is relevant to the standing inquiry, not the plaintiff
Indeed, every one of the affiants deposed by Laidlaw cast into doubt the (in any event inadequate) proposition that subjective concerns actually affected their conduct. Linda Moore, for example, said in her affidavit that she would use the affected waterways for recreation if it were not for her concern about pollution. Record, Doc. No. 71 (Exhs. 45, 46). Yet she testified in her deposition that she had been to the river only twice, once in 1980 (when she visited someone who lived by the river) and once after this suit was filed. Record, Doc. No. 62 (Moore Deposition 23
24). Similarly, Kenneth Lee Curtis, who claimed he was injured by being deprived of recreational activity at the river, admitted that he had not been to the river since he was a kid, (Curtis Deposition, pt. 2, p. 38), and when asked whether the reason he stopped visiting the river was because of pollution, answered no, id., at 39. As to Curtiss claim that the river looke[d] and smell[ed] polluted, this condition, if present, was surely not caused by Laidlaws discharges, which according to the District Court did not result in any health risk or environmental harm. 956 F. Supp., at 602. The other affiants cited by the Court were not deposed, but their affidavits state either that they would use the river if it were not polluted or harmful (as the court subsequently found it is not), Record, Doc. No. 21 (Exhs. 7, 8, and 9), or said that the river looks polluted (which is also incompatible with the courts findings), ibid. (Exh. 10). These affiants have established nothing but subjective apprehensions.
The Court is correct that the District Court explicitly found standingalbeit by the very slimmest of margins, and as an awfully close call. App. in No. 971246 (CA4), p. 207208 (Tr. of Hearing 3940 (June 30, 1993)). That cautious finding, however, was made in 1993, long before the courts 1997 conclusion that Laidlaws discharges did not harm the environment. As we have previously recognized, an initial conclusion that plaintiffs have standing is subject to reexamination, particularly if later evidence proves inconsistent with that conclusion. Gladstone, 441 U.S., at 115, and n. 31; Wyoming v. Oklahoma, 502 U.S. 437, 446 (1992). Laidlaw challenged the existence of injury in fact on appeal to the Fourth Circuit, but that court did not reach the question. Thus no lower court has reviewed the injury-in-fact issue in light of the extensive studies that led the District Court to conclude that the environment was not harmed by Laidlaws discharges.
Inexplicably, the Court is untroubled by this, but proceeds to find injury in fact in the most casual fashion, as though it is merely confirming a careful analysis made below. Although we have previously refused to find standing based on the conclusory allegations of an affidavit Lujan v. National Wildlife Federation, 497 U.S. 871, 888 (1990), the Court is content to do just that today. By accepting plaintiffs vague, contradictory, and unsubstantiated allegations of concern about the environment as adequate to prove injury in fact, and accepting them even in the face of a finding that the environment was not demonstrably harmed, the Court makes the injury-in-fact requirement a sham. If there are permit violations, and a member of a plaintiff environmental organization lives near the offending plant, it would be difficult not to satisfy todays lenient standard.
The Courts treatment of the redressability requirementwhich would have been unnecessary if it resolved the injury-in-fact question correctlyis equally cavalier. As discussed above, petitioners allege ongoing injury consisting of diminished enjoyment of the affected waterways and decreased property values. They allege that these injuries are caused by Laidlaws continuing permit violations. But the remedy petitioners seek is neither recompense for their injuries nor an injunction against future violations. Instead, the remedy is a statutorily specified penalty for past violations, payable entirely to the United States Treasury. Only last Term, we held that such penalties do not redress any injury a citizen plaintiff has suffered from past violations. Steel Co. v. Citizens for Better Environment, 523 U.S. 83, 106107 (1998). The Court nonetheless finds the redressability requirement satisfied here, distinguishing Steel Co. on the ground that in this case the petitioners allege ongoing violations; payment of the penalties, it says, will remedy petitioners injury by deterring future violations by Laidlaw. Ante, at 14. It holds that a penalty payable to the public remedies a threatened private harm, and suffices to sustain a private suit.
That holding has no precedent in our jurisprudence, and takes this Court beyond the cases and controversies that Article III of the Constitution has entrusted to its resolution. Even if it were appropriate, moreover, to allow Article IIIs remediation requirement to be satisfied by the indirect private consequences of a public penalty, those consequences are entirely too speculative in the present case. The new standing law that the Court makeslike all expansions of standing beyond the traditional constitutional limitshas grave implications for democratic governance. I shall discuss these three points in turn.
In Linda R. S. v. Richard D., 410 U.S. 614 (1973), the plaintiff, mother of an illegitimate child, sought, on behalf of herself, her child, and all others similarly situated, an injunction against discriminatory application of Art. 602 of the Texas Penal Code. Although that provision made it a misdemeanor for any parent to refuse to support his or her minor children under 18 years of age, it was enforced only against married parents. That refusal, the plaintiff contended, deprived her and her child of the equal protection of the law by denying them the deterrent effect of the statute upon the fathers failure to fulfill his support obligation. The Court held that there was no Article III standing. There was no
Although the Court in Linda R. S. recited the logical nexus analysis of Flast v. Cohen, 392 U.S. 83 (1968), which has since fallen into desuetude, it is clear that standing was denied . . . because of the unlikelihood that the relief requested would redress appellants claimed injury. Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 79, n. 24 (1978). There was no logical nexus between nonenforcement of the statute and Linda R. S.s failure to receive support payments because [t]he prospect that prosecution will . . . result in payment of support was speculative, Linda R. S., supra, at 618that is to say, it was uncertain whether the relief would prevent the injury.1 Of course precisely the same situation exists here. The principle that in American jurisprudence . . . a private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another applies no less to prosecution for civil penalties payable to the State than to prosecution for criminal penalties owing to the State.
The Courts opinion reads as though the only purpose and effect of the redressability requirement is to assure that the plaintiff receive some of the benefit of the relief that a court orders. That is not so. If it were, a federal tort plaintiff fearing repetition of the injury could ask for tort damages to be paid, not only to himself but to other victims as well, on the theory that those damages would have at least some deterrent effect beneficial to him. Such a suit is preposterous because the remediation that is the traditional business of Anglo-American courts is relief specifically tailored to the plaintiff
Thus, relief against prospective harm is traditionally afforded by way of an injunction, the scope of which is limited by the scope of the threatened injury. Lewis v. Casey, 518 U.S. 343, 357360 (1996); Lyons, 461 U. S, at 105107, and n. 7. In seeking to overturn that tradition by giving an individual plaintiff the power to invoke a public remedy, Congress has done precisely what we have said it cannot do: convert an undifferentiated public interest into an individual right vindicable in the courts. Lujan, supra, at 577; Steel Co., 523 U.S., at 106. The sort of scattershot redress approved today makes nonsense of our statement in Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 222 (1974), that the requirement of injury in fact insures the framing of relief no broader than required by the precise facts. 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.
As I have just discussed, it is my view that a plaintiff
The Court recognizes, of course, that to satisfy Article III, it must be likely, as opposed to merely speculative, that a favorable decision will redress plaintiffs injury, Lujan, supra, at 561. See ante, at 9. Further, the Court recognizes that not all deterrent effects of all civil penalties will meet this standardthough it declines to explore the outer limits of adequate deterrence, ante, at 16. It concludes, however, that in the present case the civil penalties sought by FOE carried with them a deterrent effect that satisfied the likely [rather than] speculative standard. Ibid. There is little in the Courts opinion to explain why it believes this is so.
The Court cites the District Courts conclusion that the penalties imposed, along with anticipated fee awards, provided adequate deterrence. Ante, at 6, 16; 956 F. Supp., at 611. There is absolutely no reason to believe, however, that this meant deterrence adequate to prevent an injury to these plaintiffs that would otherwise occur. The statute does not even mention deterrence in general (much less deterrence of future harm to the particular plaintiff) as one of the elements that the court should consider in fixing the amount of the penalty. (That element can come in, if at all, under the last, residual category of such other matters as justice may require. 33 U.S.C. § 1319(d).) The statute does require the court to consider the seriousness of the violation or violations, the economic benefit (if any) resulting from the violation, any history of such violations, any good-faith efforts to comply with the applicable requirements, [and] the economic impact of the penalty on the violator . . . . Ibid; see 956 F. Supp., at 601. The District Court meticulously discussed, in subsections (a) through (e) of the portion of its opinion entitled Civil Penalty, each one of those specified factors, and thenunder subsection (f) entitled Other Matters As Justice May Require, it discussed 1. Laidlaws Failure to Avail Itself of the Reopener Clause, 2. Recent Compliance History, and 3. The Ever-Changing Mercury Limit. There is no mention whateverin this portion of the opinion or anywhere elseof the degree of deterrence necessary to prevent future harm to these particular plaintiffs. Indeed, neither the District Courts final opinion (which contains the adequate deterrence statement) nor its earlier opinion dealing with the preliminary question whether South Carolinas previous lawsuit against Laidlaw constituted diligent prosecution that would bar citizen suit, see 33 U.S.C. § 1365(b)(1)(B), displayed any awareness that deterrence of future injury to the plaintiffs was necessary to support standing.
The District Courts earlier opinion did, however, quote with approval the passage from a District Court case which began:
The Court points out that we have previously said
If the Court had undertaken the necessary inquiry into whether significant deterrence of the plaintiffs feared injury was likely, it would have had to reason something like this: Strictly speaking, no polluter is deterred by a penalty for past pollution; he is deterred by the fear of a penalty for future pollution. That fear will be virtually nonexistent if the prospective polluter knows that all emissions violators are given a free pass; it will be substantial under an emissions program such as the federal scheme here, which is regularly and notoriously enforced; it will be even higher when a prospective polluter subject to such a regularly enforced program has, as here, been the object of public charges of pollution and a suit for injunction; and it will surely be near the top of the graph when, as here, the prospective polluter has already been subjected to state penalties for the past pollution. The deterrence on which the plaintiffs must rely for standing in the present case is the marginal increase in Laidlaws fear of future penalties that will be achieved by adding federal penalties for Laidlaws past conduct.
I cannot say for certain that this marginal increase is zero; but I can say for certain that it is entirely speculative whether it will make the difference between these plaintiffs suffering injury in the future and these plaintiffs going unharmed. In fact, the assertion that it will likely do so is entirely farfetched. The speculativeness of that result is much greater than the speculativeness we found excessive in Simon v. Eastern Ky. Welfare Rights Organization, 426 U.S. 26, 43 (1976), where we held that denying §501(c)(3) charitable-deduction tax status to hospitals that refused to treat indigents was not sufficiently likely to assure future treatment of the indigent plaintiffs to support standing. And it is much greater than the speculativeness we found excessive in Linda R. S. v. Richard D., discussed supra, at 67, where we said that the prospect that prosecution [for nonsupport] will . . . result in payment of support can, at best, be termed only speculative, 410 U.S., at 618.
In sum, if this case is, as the Court suggests, within the central core of deterrence standing, it is impossible to imagine what the outer limits could possibly be. The Court's expressed reluctance to define those outer limits serves only to disguise the fact that it has promulgated a revolutionary new doctrine of standing that will permit the entire body of public civil penalties to be handed over to enforcement by private interests.
Article II of the Constitution commits it to the President to take Care that the Laws be faithfully executed, Art. II, §3, and provides specific methods by which all persons exercising significant executive power are to be appointed, Art. II, §2. As Justice Kennedys concurrence correctly observes, the question of the conformity of this legislation with Article II has not been arguedand I, like the Court, do not address it. But Article III, no less than Article II, has consequences for the structure of our government, see Schlesinger, 418 U.S., at 222, and it is worth noting the changes in that structure which todays decision allows.
By permitting citizens to pursue civil penalties payable to the Federal Treasury, the Act does not provide a mechanism for individual relief in any traditional sense, but turns over to private citizens the function of enforcing the law. A Clean Water Act plaintiff pursuing civil penalties acts as a self-appointed mini-EPA. Where, as is often the case, the plaintiff is a national association, it has significant discretion in choosing enforcement targets. Once the association is aware of a reported violation, it need not look long for an injured member, at least under the theory of injury the Court applies today. See supra, at 15. And once the target is chosen, the suit goes forward without meaningful public control.2 The availability of civil penalties vastly disproportionate to the individual injury gives citizen plaintiffs massive bargaining powerwhich is often used to achieve settlements requiring the defendant to support environmental projects of the plaintiffs choosing. See Greve, The Private Enforcement of Environmental Law, 65 Tulane L. Rev. 339, 355359 (1990). Thus is a public fine diverted to a private interest.
To be sure, the EPA may foreclose the citizen suit by itself bringing suit. 33 U.S.C. § 1365(b)(1)(B). This allows public authorities to avoid private enforcement only by accepting private direction as to when enforcement should be undertakenwhich is no less constitutionally bizarre. Elected officials are entirely deprived of their discretion to decide that a given violation should not be the object of suit at all, or that the enforcement decision should be postponed.3 See §1365(b)(1)(A) (providing that citizen plaintiff need only wait 60 days after giving notice of the violation to the government before proceeding with action). This is the predictable and inevitable consequence of the Court's allowing the use of public remedies for private wrongs.
Finally, I offer a few comments regarding the Courts discussion of whether FOEs claims became moot by reason of Laidlaws substantial compliance with the permit limits. I do not disagree with the conclusion that the Court reaches. Assuming that the plaintiffs had standing to pursue civil penalties in the first instance (which they did not), their claim might well not have been mooted by Laidlaws voluntary compliance with the permit, and leaving this fact-intensive question open for consideration on remand, as the Court does, ante, at 23, seems sensible.4 In reaching this disposition, however, the Court engages in a troubling discussion of the purported distinctions between the doctrines of standing and mootness. I am frankly puzzled as to why this discussion appears at all. Laidlaws claimed compliance is squarely within the bounds of our voluntary cessation doctrine, which is the basis for the remand. Ante, at 23.5 There is no reason to engage in an interesting academic excursus upon the differences between mootness and standing in order to invoke this obviously applicable rule.6
Because the discussion is not essentialindeed, not even relevantto the Court's decision, it is of limited significance. Nonetheless, I am troubled by the Court's too-hasty retreat from our characterization of mootness as the doctrine of standing set in a time frame. Arizonans for Official English v. Arizona, 520 U.S. 43, 68, n. 22 (1997). We have repeatedly recognized that what is required for litigation to continue is essentially identical to what is required for litigation to begin: There must be a justiciable case or controversy as required by Article III. Simply stated, a case is moot when the issues presented are no longer live or the parties lack a legally cognizable interest in the outcome. Powell v. McCormack, 395 U.S. 486, 496 (1969). A Court may not proceed to hear an action if, subsequent to its initiation, the dispute loses its character as a present, live controversy of the kind that must exist if [the Court is] to avoid advisory opinions on abstract propositions of law. Hall v. Beals, 396 U.S. 45, 48 (1969) (per curiam). See also Preiser v. Newkirk, 422 U.S. 395, 401 (1975); Steffel v. Thompson, 415 U.S. 452, 459, n. 10 (1974). Because the requirement of a continuing case or controversy derives from the Constitution, Liner v. Jafco, Inc., 375 U.S. 301, 306, n. 3 (1964), it may not be ignored when inconvenient, United States v. Alaska S. S. Co., 253 U.S. 113, 116 (1920) (moot question cannot be decided, [h]owever convenient it might be), or, as the Court suggests, to save sunk costs, compare ante, at 17, with Lewis v. Continental Bank Corp., 494 U.S. 472, 480 (1990) ([R]easonable caution is needed to be sure that mooted litigation is not pressed forward solely in order to obtain reimbursement of sunk costs).
It is true that mootness has some added wrinkles that standing lacks. One is the voluntary cessation doctrine to which the Court refers. But it is inaccurate to regard this as a reduction of the basic requirement for standing that obtained at the beginning of the suit. A genuine controversy must exist at both stages. And just as the initial suit could be brought (by way of suit for declaratory judgment) before the defendant actually violated the plaintiff
Part of the confusion in the Courts discussion is engendered by the fact that it compares standing, on the one hand, with mootness based on voluntary cessation, on the other hand. Ante, at 19. The required showing that it is absolutely clear that the conduct could not reasonably be expected to recur is not the threshold showing required for mootness, but the heightened showing required in a particular category of cases where we have sensibly concluded that there is reason to be skeptical that cessation of violation means cessation of live controversy. For claims of mootness based on changes in circumstances other than voluntary cessation, the showing we have required is less taxing, and the inquiry is indeed properly characterized as one of
In sum, while the Court may be correct that the parallel between standing and mootness is imperfect due to realistic evidentiary presumptions that are by their nature applicable only in the mootness context, this does not change the underlying principle that
* * *
By uncritically accepting vague claims of injury, the Court has turned the Article III requirement of injury in fact into a mere pleading requirement, Lujan, 504 U.S., at 561; and by approving the novel theory that public penalties can redress anticipated private wrongs, it has come close to mak[ing] the redressability requirement vanish, Steel Co., supra, at 107. The undesirable and unconstitutional consequence of todays decision is to place the immense power of suing to enforce the public laws in private hands. I respectfully dissent.
1. The decision in Linda R.S. did not turn, as todays opinion imaginatively suggests, on the fathers short-term inability to pay support if imprisoned. Ante, at 17, n. 4. The Courts only comment upon the imprisonment was that, unlike imprisonment for civil contempt, it would not condition the fathers release upon payment. The Court then continued: The prospect that prosecution will, at least in the future,i.e., upon completion of the imprisonmentresult in payment of support can, at best, be termed only speculative. Linda R. S., 410 U.S., at 618.
2. The Court points out that the government is allowed to intervene in a citizen suit, see ante, at 1718, n. 4; 33 U.S.C. § 1365(c)(2), but this power to bring the Governments views to the attention of the court, ante, at 18, n. 4, is meager substitute for the power to decide whether prosecution will occur. Indeed, according the Chief Executive of the United States the ability to intervene does no more than place him on a par with John Q. Public, who can intervenewhether the government likes it or notwhen the United States files suit. §1365(b)(1)(B).
3. The Court observes that the federal Executive Branch does not share the dissents view that such suits dissipate its authority to enforce the law, since it has endorsed this citizen suit from the outset. Ante, at 17, n. 4. Of course, in doubtful cases a long and uninterrupted history of presidential acquiescence and approval can shed light upon the constitutional understanding. What we have hereacquiescence and approval by a single Administrationdoes not deserve passing mention.
4. In addition to the compliance and plant-closure issues, there also remains open on remand the question whether the current suit was foreclosed because the earlier suit by the State was diligently prosecuted. See 33 U.S.C. § 1365(b)(1)(B). Nothing in the Courts opinion disposes of the issue. The opinion notes the District Courts finding that Laidlaw itself played a significant role in facilitating the States action. Ante, at 6, n. 1, 15, n. 2. But there is no incompatibility whatever between a defendants facilitation of suit and the States diligent prosecutionas prosecutions of felons who confess their crimes and turn themselves in regularly demonstrate. Laidlaw was entirely within its rights to prefer state suit to this private enforcement action; and if it had such a preference it would have been prudentgiven that a State must act within 60 days of receiving notice of a citizen suit, see §1365(b)(1)(A), and given the number of cases State agencies handlefor Laidlaw to to make sure its case did not fall through the cracks. South Carolinas interest in the action was not a feigned last minute contrivance. It had worked with Laidlaw in resolving the problem for many years, and had previously undertaken an administrative enforcement action resulting in a consent order. 890 F. Supp. 470, 476 (SC 1995). South Carolina has filed an amicus brief arguing that allowing citizen suits to proceed despite ongoing state enforcement efforts will provide citizens and federal judges the opportunity to relitigate and second-guess the enforcement and permitting actions of South Carolina and other States. Brief for South Carolina as Amicus Curiae 6.
5. Unlike Justice Stevens concurrence, the opinion for the Court appears to recognize that a claim for civil penalties is moot when it is clear that no future injury to the plaintiff at the hands of the defendant can occur. The concurrence suggests that civil penalties, like traditional damages remedies, cannot be mooted by absence of threatened injury. The analogy is inapt. Traditional money damages are payable to compensate for the harm of past conduct, which subsists whether future harm is threatened or not; civil penalties are privately assessable (according to the Court) to deter threatened future harm to the plaintiff. Where there is no threat to the plaintiff, he has no claim to deterrence. The proposition that impossibility of future violation does not moot the case holds true, of course, for civil-penalty suits by the government, which do not rest upon the theory that some particular future harm is being prevented.
6. The Court attempts to frame its exposition as a corrective to the Fourth Circuit, which it claims confused mootness with standing. Ante, at 19. The Fourth Circuits conclusion of nonjusticiability rested upon the belief (entirely correct, in my view) that the only remedy being pursued on appeal, civil penalties, would not redress FOEs claimed injury. 149 F.3d 303, 306 (1998). While this might be characterized as a conclusion that FOE had no standing to pursue civil penalties from the outset, it can also be characterized, as it was by the Fourth Circuit, as a conclusion that, when FOE declined to appeal denial of the declaratory judgment and injunction, and appealed only the inadequacy of the civil penalties (which it had no standing to pursue) the case as a whole became moot. Given the Courts erroneous conclusion that civil penalties can redress private injury, it of course rejects both formulationsbut neither of them necessitates the Courts academic discourse comparing the mootness and standing doctrines.