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E-M:/ US Supreme Court supports citizen standing in lawsuit

Enviro-Mich message from anne.woiwode@sfsierra.sierraclub.org

 Laidlaw decision, US Supreme Court
 Those plugged into other, national environmental listserves may have 
 already heard about this, but a MAJOR decision was handed down by the US 
 Supreme Court regarding citizens suits against violators of environmental 
 laws where citizens suit provisions are included (in this case the Clean 
 Water Act). This will be of interest to Michigan environmentalists in 
 particular because where Michigan's administration declines to act to 
 enforce laws like the Clean Water Act the use of citizen's suits is 
 becoming one of the most important tools for bringing violators into 
 compliance with the law. 
 Below are excerpts from a summary prepared by Sierra Club's litigation 
 Today, the Sierra Club and co-plaintiffs Friends of the Earth and Clean 
 (Citizens Local Environmental Action Network) won a huge victory in the 
 U.S. Supreme Court case entitled FOE v. Laidlaw Environmental Services. 
 In a 7-2 ruling, the Supreme Court overturned an appeals court decision 
 that had dismissed the Clean Water Act citizen suit, originally filed in 
 1992, on the grounds that the suit was moot because Laidlaw had ceased 
 violating the terms of its permit; the appeal court had also ruled that 
 plaintiffs were not entitled to attorneys' fees even if their suit had 
 prompted the polluter's 11th hour compliance.  
 The Supreme Court severely cut back on a 1998 decision (entitled Steel 
 Company v. CBE) in which the Court first suggested that citizen plaintiffs 
 might lack standing to seek civil penalties for pollution violations (on 
 the grounds that monetary penalties go to the U.S. Treasury so don't 
 directly redress the citizen plaintiff's injury).  In Laidlaw today, 
 however, the Court made clear that the rule in Steel Company was only of 
 limited application and would not apply in a broadside manner to all 
 instances in which citizens seek civil penalties. Indeed, the majority 
 opinion today strongly argued, in contradiction of the rationale in Steel 
 Company, that civil penalties could indeed redress the plaintiff's harm by 
 deterring the polluter from future violations.
 The majority opinion, written by Justice Ginsburg, was not a complete 
 victory.  Under today's decision, once a defendant polluter ceases its 
 violations, the case is not automatically moot, but it nonetheless might 
 be moot.  The good news is that the decision has strong language about the 
 very heavy burden the defendant bears to establish mootness; the defendant 
 must prove that it is absolutely certain that it won't resume its 
 violations in the future (an especially heavy burden when the polluter 
 *voluntarily* comes into compliance). 
 Bottom line evaluation:  this was a huge victory, in large part because 
 the Court did not follow what Laidlaw and arch-conservative allies argued 
 was the natural logic of the Court's earlier decisions; namely, that a 
 suit is automatically moot if a company ceases its violations or even that 
 citizens can never request imposition of civil penalties.  The fact that 
 the majority decision includes conservative Justices Rehnquist, O'Connor, 
 and Kennedy suggests that the Court may have less tendency than feared to 
 directly cut back on citizen suit enforcement of environmental laws.  
 The case still leaves defendants with some incentive for delay, but not 
 very much since the polluter has long odds and a difficult burden to 
 establish mootness and dismissal.  Plaintiffs still have some degree of 
 uncertainty and risk that their enforcement cases could be dismissed years 
 after commencement, but citizen suits still retain vitality after this 
 The decision can be found on the Web at: 

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