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Daily Journal - Feb 9, 2000

By William Funderburk and Lisa Morelli

While members of environmental and other "public interest" groups may be celebrating the U.S. Supreme Court's recent ruling on standing and mootness, that ruling does not by any means ring the death knell for corporate and other regulated defendants facing citizen suits. What the court did is simply maintain the status quo.

In Friends of the Earth Inc. v. Laidlaw Environmental Services Inc., 120 S.Ct. 693 (2000), the Supreme Court issued a ruling regarding the ability of private citizens to bring suit against alleged polluters. In a 7-to-2 decision, the court held that a citizen -plaintiff 's claim for civil penalties under the Clean Water Act may be dismissed as moot when, after commencement of the litigation, the defendant has come into compliance with the act, but only if the defendant meets the "heavy burden" of showing that it is "absolutely clear" that the alleged wrongful conduct could not reasonably be expected to recur.

The court also held that plaintiff had standing to seek civil penalties, as opposed to injunctive relief, even though civil penalties under the Clean Water Act, as in most environmental statutes with citizen- suit provisions, are payable to the government, not the citizen- plaintiff. Finally, the court reaffirmed that the relevant inquiry for purposes of determining whether plaintiff had suffered an injury for standing purposes is whether plaintiff has suffered actual or threatened injury, not whether the environment itself has been injured.

Laidlaw is not the panacea the environmental plaintiffs' bar makes it out to be. The decision did not set any new standing standards, but simply negated some recent lower court decisions that held that citizen- plaintiffs must show some tangible injury to the environmental resource allegedly polluted to have standing to sue for discharge violations. The Supreme Court reaffirmed that the relevant inquiry for standing purposes is not injury to the environment, but injury to the plaintiff under the standards set forth in Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992).

Similarly, the court's ruling that citizen plaintiffs may maintain suit for civil penalties for wrongful conduct ongoing at the time of suit also accomplished little more than affirm fairly well-settled law. The court agreed that civil penalties, although paid to the government, may deter future violations, and so serves to redress the plaintiff's injury. This decision takes nothing away from the Supreme Court's decision last term where the court held that citizen-plaintiffs, unlike the government, may not sue to assess penalties for wholly past violations since such penalties would not redress any present, or threat of future, injury to plaintiff. The Supreme Court over 10 years ago established that citizens may not bring suits for wholly past violations.

Lastly, the court merely applied well-settled precedent in reiterating that, to find mootness based on a defendant's voluntary cessation of its alleged unlawful conduct, defendant must persuade the court that subsequent events make it "absolutely clear" that the challenged conduct cannot reasonably be expected to recur. The court's subsequent discussion of the distinctions between the doctrines of standing and mootness did not seem to alter the elements of a mootness challenge.

Citizen- plaintiffs should not be celebrating the Laidlaw decision so much as breathing a sign of relief that the court did not use the case to further limit a citizen's ability to bring suit under the Clean Water Act and other environmental statutes. On the other hand, to the extent the decision may encourage the filing of less meritorious suits by non mainstream "public interest" groups, the plaintiffs' bar should be concerned about potential abuses that will reflect poorly on all citizen- plaintiffs.

William Funderburk is a partner in the environmental group at the Los Angeles office of Stanzler Funderburk & Castellon. Lisa Morelli is a New Jersey attorney in private practice.

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