OCTOBER TERM, 1999
Syllabus
FRIENDS OF THE EARTH, INC., ET AL.
v. LAIDLAW
ENVIRONMENTAL SERVICES (TOC), INC.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH
CIRCUIT
No. 98-822. Argued October 12, 1999-Decided January 12,2000
Defendant-respondent Laidlaw Environmental Services (TOC), Inc.,
bought a facility in Roebuck, South Carolina, that included a
wastewater treatment plant. Shortly thereafter, the South Carolina
Department of Health and Environmental Control (DHEC), acting under
the Clean Water Act (Act), 33 U. S. C. § 1342(a)(I), granted
Laidlaw a National Pollutant Discharge Elimination System (NPDES)
permit. The permit authorized Laidlaw to discharge treated water
into the North Tyger River, but limited, among other things, the
discharge of pollutants into the waterway. Laidlaw began to
discharge various pollutants into the waterway; these discharges,
particularly of mercury, an extremely toxic pollutant, repeatedly
exceeded the limits set by the permit.
On April 10, 1992, plaintiff-petitioners Friends of the Earth
and Citizens Local Environmental Action Network, Inc. (referred to
collectively here, along with later joined plaintiff-petitioner
Sierra Club, as "FOE"), notified Laidlaw of their intention to file
a citizen suit against it under the Act, 33 U. S. C. § 1365(a),
after the expiration of the requisite 60-day notice period. DREC
acceded to Laidlaw's request to file a lawsuit against the company.
On the last day before FOE's 60-day notice period expired, DREC and
Laidlaw reached a settlement requiring Laidlaw to pay $100,000 in
civil penalties and to make "every effort" to comply with its
permit obligations.
On June 12, 1992, FOE filed this citizen suit against Laidlaw,
alleging noncompliance with the NPDES permit and seeking
declaratory and injunctive relief and an award of civil penalties.
Laidlaw moved for summary judgment on the ground that FOE lacked
Article III standing to bring the lawsuit. After examining
affidavits and deposition testimony from members of the plaintiff
organizations, the District Court denied the motion, finding that
the plaintiffs had standing. The District Court also denied
Laidlaw's motion to dismiss on the ground that the citizen suit was
barred under § 1365(b)(I)(B) by DREC's prior action against the
company. After FOE initiated this suit, but before the District
Court rendered judgment on January 22, 1997, Laidlaw violated the
mercury discharge limitation in its permit 13 times and committed
13 monitoring and 10 reporting violations. In issuing its judgment,
the
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District Court found that Laidlaw had gained a total economic
benefit of $1,092,581 as a result of its extended period of
noncompliance with the permit's mercury discharge limit;
nevertheless, the court concluded that a civil penalty of $405,800
was appropriate. In particular, the District Court found that the
judgment's "total deterrent effect" would be adequate to forestall
future violations, given that Laidlaw would have to reimburse the
plaintiffs for a significant amount of legal fees and had itself
incurred significant legal expenses. The court declined to order
injunctive relief because Laidlaw, after the lawsuit began, had
achieved substantial compliance with the terms of its permit.
FOE appealed as to the amount of the District Court's civil
penalty judgment, but did not appeal the denial of declaratory or
injunctive relief. The Fourth Circuit vacated the District Court's
order and remanded with instructions to dismiss the action.
Assuming,
arguendo, that FOE initially had standing, the
appellate court held that the case had become moot once Laidlaw
complied with the terms of its permit and the plaintiffs failed to
appeal the denial of equitable relief. Citing
Steel Co. v.
Citizens for Better Environment, 523 U. S. 83, the court
reasoned that the only remedy currently available to FOE, civil
penalties payable to the Government, would not redress any injury
FOE had suffered. The court added that FOE's failure to obtain
relief on the merits precluded recovery of attorneys' fees or costs
because such an award is available only to a "prevailing or
substantially prevailing party" under § 1365(d). According to
Laidlaw, the entire Roebuck facility has since been permanently
closed, dismantled, and put up for sale, and all discharges from
the facility have permanently ceased.
Held: The Fourth Circuit erred in concluding that a
citizen suitor's claim for civil penalties must be dismissed as
moot when the defendant, after commencement of the litigation, has
come into compliance with its NPDES permit. Pp.180-195.
(a) The Constitution's case-or-controversy limitation on federal
judicial authority, Art. III, § 2, underpins both standing and
mootness doctrine, but the two inquiries differ in crucial
respects. Because the Fourth Circuit was persuaded that the case
had become moot, it simply assumed that FOE had initial standing.
See
Arizonans for Official English v.
Arizona,
520 U. S. 43,
66-67. But because this Court concludes that the Court of Appeals
erred as to mootness, this Court has an obligation to assure itself
that FOE had Article III standing at the outset of the litigation.
P. 180.
(b) FOE had Article III standing to bring this action. This
Court has held that to satisfy Article Ill's standing requirements,
a plaintiff must show "injury in fact," causation, and
redressability.
Lujan v.
De-
169
fenders of Wildlife, 504 U. S. 555, 560-561.
An association has standing to bring suit on behalf of its members
when its members would have standing to sue in their own right, the
interests at stake are germane to the organization's purpose, and
neither the claim asserted nor the relief requested requires
individual members' participation in the lawsuit.
Hunt v.
Washington State Apple Advertising Comm'n, 432 U. S. 333, 343. The
relevant showing for Article III standing is not injury to the
environment but injury to the plaintiff. To insist on the former
rather than the latter is to raise the standing hurdle higher than
the necessary showing for success on the merits in a citizen's
NPDES permit enforcement suit. Here, injury in fact was adequately
documented by the affidavits and testimony of FOE members asserting
that Laidlaw's pollutant discharges, and the affiants' reasonable
concerns about the effects of those discharges, directly affected
those affiants' recreational, aesthetic, and economic interests.
See,
e. g., Sierra Club v.
Morton, 405 U. S. 727, 735. These
submissions present dispositively more than the mere "general
averments" and "conclusory allegations" found inadequate in
Lujan v.
National Wildlife Federation, 497 U. S. 871, 888, or
the" 'some day' intentions" to visit endangered species halfway
around the world held insufficient in
Defenders of Wildlife.
504
(c) Laidlaw argues that FOE lacked standing to seek civil
penalties payable to the Government, because such penalties offer
no redress to citizen plaintiffs. For a plaintiff who is injured or
threatened with injury due to illegal conduct ongoing at the time
of suit, a sanction that effectively abates that conduct and
prevents its recurrence provides a form of redress. Civil penalties
can fit that description. Insofar as they encourage defendants to
discontinue current violations and deter future ones, they afford
redress to citizen plaintiffs injured or threatened with injury as
a result of ongoing unlawful conduct. The Court need not explore
the outer limits of the principle that civil penalties provide
sufficient deterrence to support redressability, because the civil
penalties sought here carried a deterrent effect that made it
likely, as opposed to merely speculative, that the penalties would
redress FOE's injuries-as the District Court reasonably found when
it assessed a penalty of $405,800.
Steel Co. is not to the
contrary. That case held that private plaintiffs may not sue to
assess penalties for wholly past violations, 523 U. S., at 106-107,
but did not address standing to seek penalties for violations
ongoing at the time of the complaint that could continue into the
future if undeterred, see
id., at 108. Pp. 185-188.
(d) FOE's civil penalties claim did not automatically become
moot once the company came into substantial compliance with its
permit. A defendant's voluntary cessation of a challenged practice
ordinarily does
170
Syllabus
not deprive a federal court of its power to determine the
legality of the practice.
City of Mesquite v.
Aladdin's
Castle, Inc., 455
U. S. 283, 289. If it did, courts would be compelled to leave
the defendant free to return to its old ways. Thus, the standard
for determining whether a case has been mooted by the defendant's
voluntary conduct is stringent: A case might become moot if
subsequent events make it absolutely clear that the allegedly
wrongful behavior could not reasonably be expected to recur.
United States v.
Concentrated Phosphate Export Assn.,
Inc., 393 U. S.
199, 203. The heavy burden of persuading the court that the
challenged conduct cannot reasonably be expected to recur lies with
the party asserting mootness.
Ibid. The Court of Appeals
incorrectly conflated this Court's case law on initial standing,
see,
e. g., Steel Co., with its case law on mootness, see,
e. g., City of Mesquite. Such confusion is understandable,
given this Court's repeated description of mootness as "the
doctrine of standing set in a time frame: The requisite personal
interest that must exist at the commencement of the litigation
(standing) must continue throughout its existence (mootness)."
E. g., Arizonans, 520 U. S., at 68, n. 22.
Careful reflection, however, reveals that this description of
mootness is not comprehensive. For example, a defendant claiming
that its voluntary compliance moots a case bears a formidable
burden. By contrast, it is the plaintiff's burden, in a lawsuit
brought to force compliance, to establish standing by demonstrating
that, if unchecked by the litigation, the defendant's allegedly
wrongful behavior will likely occur or continue and that the
threatened injury is certainly impending.
Whitmore v.
Arkansas, 495
U. S. 149, 158. The plain lesson is that there are
circumstances in which the prospect that a defendant will engage in
(or resume) harmful conduct may be too speculative to support
standing, but not too speculative to overcome mootness. Further, if
mootness were simply "standing set in a time frame," the exception
to mootness for acts that are "capable of repetition, yet evading
review" could not exist. See,
e. g., Olmstead v.
L.
c.,
527 U. S.
581, 594, n. 6. Standing admits of no similar exception; if a
plaintiff lacks standing at the time the action commences, the fact
that the dispute is capable of repetition yet evading review will
not entitle the complainant to a federal judicial forum. See,
e.
g., Steel Co., 523 U. S., at 109. Standing doctrine ensures,
among other things, that the resources of the federal courts are
devoted to disputes in which the parties have a concrete stake. Yet
by the time mootness is an issue, abandonment of the case may prove
more wasteful than frugal. Courts have no license to retain
jurisdiction over cases in which one or both of the parties plainly
lacks a continuing interest, see,
e. g., Arizonans, 520 U.
S., at 67, but the foregoing examples highlight an important
differ-
171
fence between the two doctrines, see generally
Honig v.
Doe, 484 U. S.
305, 329-332 (REHNQUIST, C. J., concurring).
Laidlaw's argument that FOE doomed its own civil penalty claim
to mootness by failing to appeal the denial of injunctive relief
misconceives the statutory scheme. Under § 1365(a), the district
court has discretion to determine which form of relief is best
suited to abate current violations and deter future ones. See
Weinberger v.
Romero-Barcelo, 456 U. S. 305, 313.
Denial of injunctive relief does not necessarily mean that the
district court has concluded there is no prospect of future
violations to deter. Indeed, it meant no such thing in this case;
the District Court denied injunctive relief, but expressly based
its award of civil penalties on the need for deterrence. A district
court properly may conclude that an injunction would be too
intrusive, because it could entail continuing and burdensome
superintendence of the permit holder's activities by a federal
court. See
City of Mesquite, 455 U. S., at 289. Both
Laidlaw's permit compliance and the facility closure might moot
this case, but only if one or the other event made it absolutely
clear that violations could not reasonably be expected to recur.
Concentrated Phosphate Export Assn., 393 U. S., at 203.
These are disputed factual matters that have not been aired in the
lower courts; they remain open for consideration on remand. Pp.
189-194.
(e) This Court does not resolve FOE's argument that it is
entitled to attorneys' fees on the theory that a plaintiff can be a
"prevailing party" under § 1365(d) if it was the "catalyst" that
triggered a favorable outcome. Although the Circuits have divided
as to the continuing validity of the catalyst theory following
Farrar v.
Hobby, 506 U. S. 103, it would
be premature for this Court to address the question here. The
District Court stayed the time for a petition for attorneys' fees
until the time for appeal had expired or until any appeal was
resolved. Thus, when the Fourth Circuit addressed the availability
of counsel fees, no order was before it either denying or awarding
fees. It is for the District Court, not this Court, to address in
the first instance any request for reimbursement of costs,
including fees. Pp. 194-195.
149 F.3d
303, reversed and remanded.
GINSBURG, J., delivered the opinion of the Court, in which
REHNQUIST, C. J., and STEVENS, O'CONNOR, KENNEDY, SOUTER, and
BREYER, JJ., joined. STEVENS, J.,
post, p. 195, and KENNEDY,
J.,
post, p. 197, filed concurring opinions. SCALIA, J.,
filed a dissenting opinion, in which THOMAS, J., joined,
post, p. 198.
172
Counsel
Bruce J. Terris argued the cause for
petitioners. With him on the briefs were
Carolyn Smith
Pravlik and
James
Jeffrey P. Minear argued the cause for the United States as
amicus curiae in support of petitioners. With him on the brief were
Solicitor General Waxman, Assistant Attorney General Schiffer,
Deputy Solicitor General Wallace, and David C. Shilton.
Donald A. Cockrill argued the cause for respondent.
With him on the briefs were Stuart H. Newberger, Clifton S.
Elgarten, Scott E. Gant, Henry H. Taylor, and Barbara
J.
Hamilton.
*
*Briefs of
amici curiae urging reversal were filed for
the State of California et al. by
Jeremiah W (Jay) Nixon,
Attorney General of Missouri,
James R. Layton, State
Solicitor,
Joseph P. Bindbeutel and
William J.
Bryan, Assistant Attorneys General,
Bill Lockyer,
Attorney General of California,
Roderick E. Walston, Chief
Assistant Attorney General,
Richard M. Frank, Assistant
Attorney General, and
Linus Masouredis, Deputy Attorney
General, and by the Attorneys General for their respective States
as follows:
Mark Pryor of Arkansas,
M. Jane Brady of
Delaware,
James E. Ryan of Illinois,
Jennifer M.
Granholm of Michigan,
Mike Moore of Mississippi,
Patricia A. Madrid of New Mexico,
Eliot Spitzer of
New York,
Michael F.
Easley of North Carolina,
Sheldon Whitehouse of Rhode Island,
Paul G.
Summers of Tennessee, and
Christine O.
Gregoire of Washington; for Americans for the Environment by
John D. Echeverria; and for Public Citizen et al. by
Colette G.
Matzzie, Brian Wolfman, and
Steven R.
Shapiro.
Briefs of
amici curiae urging affirmance were filed for
the State of South Carolina by
Charles M. Condon, Attorney
General, and
Kenneth P. Woodington, Senior Assistant
Attorney General; for the Alliance of Automobile Manufacturers et
al. by
Scott M. DuBoff, Kenneth S.
Kaufman, Robin S.
Conrad, David R. Case, J. Walker Henry, Jan
Amundson, and
Deborah Ann Hottel; for the California
Association of Sanitation Agencies by
Louis F.
Claiborne and
John Briscoe; for Hercules Inc., by
Joel Schneider and
Peter L. Frattarelli; and for the
Washington Legal Foundation et al. by
Daniel J.
Popeo and
Paul D. Kamenar.
Briefs of
amici curiae were filed for 40 California
Cities et al. by
Rick W Jarvis; for the Natural Resources
Defense Council, Inc., et al. by
Michael Axline and
David
A. Nicholas; and for the Pacific Legal Foundation et al. by
Robin L. Rivett and
M. Reed Hopper.
173
JUSTICE GINSBURG delivered the opinion of the Court. This case
presents an important question concerning the operation of the
citizen-suit provisions of the Clean Water Act. Congress authorized
the federal district courts to entertain Clean Water Act suits
initiated by "a person or persons having an interest which is or
may be adversely affected." 33 U. S. C. §§ 1365(a), (g). To impel
future compliance with the Act, a district court may prescribe
injunctive relief in such a suit; additionally or alternatively,
the court may impose civil penalties payable to the United States
Treasury. § 1365(a). In the Clean Water Act citizen suit now before
us, the District Court determined that injunctive relief was
inappropriate because the defendant, after the institution of the
litigation, achieved substantial compliance with the terms of its
discharge permit. 956 F. Supp. 588, 611 (SC 1997). The court did,
however, assess a civil penalty of $405,800.
Id., at 610.
The "total deterrent effect" of the penalty would be adequate to
forestall future violations, the court reasoned, taking into
account that the defendant "will be required to reimburse
plaintiffs for a significant amount of legal fees and has, itself,
incurred significant legal expenses."
Id., at 610-611.
The Court of Appeals vacated the District Court's order.
149 F.3d
303 (CA4 1998). The case became moot, the appellate
court declared, once the defendant fully complied with the terms of
its permit and the plaintiff failed to appeal the denial of
equitable relief. "[C]ivil penalties payable to the government,"
the Court of Appeals stated, "would not redress any injury
Plaintiffs have suffered."
Id., at 307. Nor were attorneys'
fees in order, the Court of Appeals noted, because absent relief on
the merits, plaintiffs could not qualify as prevailing parties.
Id., at 307, n. 5.
We reverse the judgment of the Court of Appeals. The appellate
court erred in concluding that a citizen suitor's claim for civil
penalties must be dismissed as moot when the
174
defendant, albeit after commencement of the litigation, has come
into compliance. In directing dismissal of the suit on grounds of
mootness, the Court of Appeals incorrectly conflated our case law
on initial standing to bring suit, see,
e. g.,
Steel Co. v.
Citizens for Better Environment,
523 U. S. 83
(1998), with our case law on postcommencement mootness, see,
e.
g., City of Mesquite v.
Aladdin's Castle, Inc., 455 U. S. 283 (1982). A
defendant's voluntary cessation of allegedly unlawful conduct
ordinarily does not suffice to moot a case. The Court of Appeals
also misperceived the remedial potential of civil penalties. Such
penalties may serve, as an alternative to an injunction, to deter
future violations and thereby redress the injuries that prompted a
citizen suitor to commence litigation.
I A
In 1972, Congress enacted the Clean Water Act (Act), also known
as the Federal Water Pollution Control Act, 86 Stat. 816, as
amended, 33 U. S. C. § 1251
et seq. Section 402 of the Act,
33 U. S. C. § 1342, provides for the issuance, by the Administrator
of the Environmental Protection Agency (EPA) or by authorized
States, of National Pollutant Discharge Elimination System (NPDES)
permits. NPDES permits impose limitations on the discharge of
pollutants, and establish related monitoring and reporting
requirements, in order to improve the cleanliness and safety of the
Nation's waters. Noncompliance with a permit constitutes a
violation of the Act. § 1342(h).
Under § 505(a) of the Act, a suit to enforce any limitation in
an NPDES permit may be brought by any "citizen," defined as "a
person or persons having an interest which is or may be adversely
affected." 33 U. S. C. §§ 1365(a), (g). Sixty days before
initiating a citizen suit, however, the would-be plaintiff must
give notice of the alleged violation to the EP A, the State in
which the alleged violation oc-
175
curred, and the alleged violator. § 1365(b)(1)(A). "[T]he
purpose of notice to the alleged violator is to give it an
opportunity to bring itself into complete compliance with the Act
and thus ... render unnecessary a citizen suit."
Gwaltney of
Smithfield, Ltd. v.
Chesapeake Bay Foundation, Inc.,
484 U. S. 49, 60
(1987). Accordingly, we have held that citizens lack statutory
standing under § 505(a) to sue for violations that have ceased by
the time the complaint is filed.
Id., at 56-63. The Act also
bars a citizen from suing if the EPA or the State has already
commenced, and is "diligently prosecuting," an enforcement action.
33 U. S. C. § 1365(b)(1)(B).
The Act authorizes district courts in citizen-suit proceedings
to enter injunctions and to assess civil penalties, which are
payable to the United States Treasury. § 1365(a). In determining
the amount of any civil penalty, the district court must take into
account "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, the economic impact of the penalty on the
violator, and such other matters as justice may require." §
1319(d). In addition, the court "may award costs of litigation
(including reasonable attorney and expert witness fees) to any
prevailing or substantially prevailing party, whenever the court
determines such award is appropriate." § 1365(d).
B
In 1986, defendant-respondent Laidlaw Environmental Services
(TOC), Inc., bought a hazardous waste incinerator facility in
Roebuck, South Carolina, that included a wastewater treatment
plant. (The company has since changed its name to Safety-Kleen
(Roebuck), Inc., but for simplicity we will refer to it as
"Laidlaw" throughout.) Shortly after Laidlaw acquired the facility,
the South Carolina Department
176
of Health and Environmental Control (DHEC), acting under 33 U.
S. C. § 1342(a)(1), granted Laidlaw an NPDES permit authorizing the
company to discharge treated water into the North Tyger River. The
permit, which became effective on January 1, 1987, placed limits on
Laidlaw's discharge of several pollutants into the river,
including-of particular relevance to this case-mercury, an
extremely toxic pollutant. The permit also regulated the flow,
temperature, toxicity, and pH of the effluent from the facility,
and imposed monitoring and reporting obligations.
Once it received its permit, Laidlaw began to discharge various
pollutants into the waterway; repeatedly, Laidlaw's discharges
exceeded the limits set by the permit. In particular, despite
experimenting with several technological fixes, Laidlaw
consistently failed to meet the permit's stringent 1.3 ppb (parts
per billion) daily average limit on mercury discharges. The
District Court later found that Laidlaw had violated the mercury
limits on 489 occasions between 1987 and 1995. 956 F. Supp., at
613-621.
On April 10, 1992, plaintiff-petitioners Friends of the Earth
(FOE) and Citizens Local Environmental Action Network, Inc. (CLEAN)
(referred to collectively in this opinion, together with later
joined plaintiff-petitioner Sierra Club, as "FOE") took the
preliminary step necessary to the institution of litigation. They
sent a letter to Laidlaw notifying the company of their intention
to file a citizen suit against it under § 505(a) of the Act after
the expiration of the requisite 60-day notice period, i.
e.,
on or after June 10, 1992. Laidlaw's lawyer then contacted DHEC to
ask whether DHEC would consider filing a lawsuit against Laidlaw.
The District Court later found that Laidlaw's reason for requesting
that DHEC file a lawsuit against it was to bar FOE's proposed
citizen suit through the operation of 33 U. S. C. § 1365(b)(1)(B).
890 F. Supp. 470, 478 (SC 1995). DHEC agreed to file a lawsuit
against Laidlaw; the company's law-
177
yer then drafted the complaint for DHEC and paid the filing fee.
On June 9, 1992, the last day before FOE's 60-day notice period
expired, DHEC and Laidlaw reached a settlement requiring Laidlaw to
pay $100,000 in civil penalties and to make "'every effort'" to
comply with its permit obligations.
Id., at 479-481.
On June 12, 1992, FOE filed this citizen suit against Laidlaw
under § 505(a) of the Act, alleging noncompliance with the NPDES
permit and seeking declaratory and injunctive relief and an award
of civil penalties. Laidlaw moved for summary judgment on the
ground that FOE had failed to present evidence demonstrating injury
in fact, and therefore lacked Article III standing to bring the
lawsuit. Record, Doc. No. 43. In opposition to this motion, FOE
submitted affidavits and deposition testimony from members of the
plaintiff organizations. Record, Doc. No. 71 (Exhs. 41-51). The
record before the District Court also included affidavits from the
organizations' members submitted by FOE in support of an earlier
motion for preliminary injunctive relief. Record, Doc. No. 21
(Exhs. 5-10). After examining this evidence, the District Court
denied Laidlaw's summary judgment motion, finding-albeit "by the
very slimmest of margins"-that FOE had standing to bring the suit.
App. in No. 97-1246
(CA4), pp. 207-208 (Tr. of Hearing 39-40
(June 30, 1993)).
Laidlaw also moved to dismiss the action on the ground that the
citizen suit was barred under 33 U. S. C. § 1365(b)(1)(B) by DHEC's
prior action against the company. The United States, appearing as
amicus curiae, joined FOE in opposing the motion. After an
extensive analysis of the Laidlaw-DHEC settlement and the
circumstances under which it was reached, the District Court held
that DHEC's action against Laidlaw had not been "diligently
prosecuted"; consequently, the court allowed FOE's citizen suit to
pro-
178
ceed. 890 F. Supp., at 499.1 The record indicates that after FOE
initiated the suit, but before the District Court rendered
judgment, Laidlaw violated the mercury discharge limitation in its
permit 13 times. 956 F. Supp., at 621. The District Court also
found that Laidlaw had committed 13 monitoring and 10 reporting
violations during this period.
Id., at 601. The last
recorded mercury discharge violation occurred in January 1995, long
after the complaint was filed but about two years before judgment
was rendered.
Id., at 621.
On January 22, 1997, the District Court issued its judgment. 956
F. Supp. 588 (SC). It found that Laidlaw had gained a total
economic benefit of $1,092,581 as a result of its extended period
of noncompliance with the mercury discharge limit in its permit.
Id., at 603. The court concluded, however, that a civil
penalty of $405,800 was adequate in light of the guiding factors
listed in 33 U. S. C. § 1319(d). 956 F. Supp., at 610. In
particular, the District Court stated that the lesser penalty was
appropriate taking into account the judgment's "total deterrent
effect." In reaching this determination, the court "considered that
Laidlaw will be required to reimburse plaintiffs for a significant
amount of legal fees."
Id., at 610-611. The court declined
to grant FOE's request for injunctive relief, stating that an
injunction was inappropriate because "Laidlaw has been in
substantial compliance with all parameters in its NPDES permit
since at least August 1992."
Id., at 611.
1 The District Court noted that "Laidlaw drafted the state-court
complaint and settlement agreement, filed the lawsuit against
itself, and paid the filing fee." 890 F. Supp., at 489. Further,
"the settlement agreement between DHEC and Laidlaw was entered into
with unusual haste, without giving the Plaintiffs the opportunity
to intervene."
Ibid. The court found "most persuasive" the
fact that "in imposing the civil penalty of $100,000 against
Laidlaw, DHEC failed to recover, or even to calculate, the economic
benefit that Laidlaw received by not complying with its permit."
Id., at 491.
179
FOE appealed the District Court's civil penalty judgment,
arguing that the penalty was inadequate, but did not appeal the
denial of declaratory or injunctive relief. Laidlaw cross-appealed,
arguing, among other things, that FOE lacked standing to bring the
suit and that DHEC's action qualified as a diligent prosecution
precluding FOE's litigation. The United States continued to
participate as
amicus curiae in support of FOE.
On July 16, 1998, the Court of Appeals for the Fourth Circuit
issued its judgment.
149 F.3d
303. The Court of Appeals assumed without deciding that FOE
initially had standing to bring the action,
id., at 306, n.
3, but went on to hold that the case had become moot. The appellate
court stated, first, that the elements of Article III
standing-injury, causation, and redressability-must persist at
every stage of review, or else the action becomes moot.
Id.,
at 306. Citing our decision in
Steel Co., the Court of
Appeals reasoned that the case had become moot because "the only
remedy currently available to [FOE]-civil penalties payable to the
government-would not redress any injury [FOE has] suffered." 149 F.
3d, at 306-307. The court therefore vacated the District Court's
order and remanded with instructions to dismiss the action. In a
footnote, the Court of Appeals added that FOE's "failure to obtain
relief on the merits of [its] claims precludes any recovery of
attorneys' fees or other litigation costs because such an award is
available only to a 'prevailing or substantially prevailing
party.'"
Id., at 307, n. 5 (quoting 33 U. S. C. §
1365(d)).
According to Laidlaw, after the Court of Appeals issued its
decision but before this Court granted certiorari, the entire
incinerator facility in Roebuck was permanently closed, dismantled,
and put up for sale, and all discharges from the facility
permanently ceased. Respondent's Suggestion of Mootness 3.
We granted certiorari, 525 U. S. 1176 (1999), to resolve the
inconsistency between the Fourth Circuit's decision in this
180
case and the decisions of several other Courts of Appeals, which
have held that a defendant's compliance with its permit after the
commencement of litigation does not moot claims for civil penalties
under the Act. See,
e. g., Atlantic States Legal Foundation,
Inc. v.
Stroh Die Casting Co., 116 F. 3d 814, 820
(CA7), cert. denied, 522 U. S. 981 (1997);
Natural
Resources Defense Council, Inc. v.
Texaco Rfg. and Mktg.,
Inc., 2 F.3d
493, 503-504
(CA3 1993);
Atlantic States Legal
Foundation, Inc. v.
Pan American Tanning Corp., 993 F.
2d 1017, 1020-1021
(CA2 1993);
Atlantic States Legal
Foundation, Inc. v.
Tyson Foods, Inc., 897 F.2d
1128,1135
1136 (CAll 1990).
II A
The Constitution's case-or-controversy limitation on federal
judicial authority, Art. III, § 2, underpins both our standing and
our mootness jurisprudence, but the two inquiries differ in
respects critical to the proper resolution of this case, so we
address them separately. Because the Court of Appeals was persuaded
that the case had become moot and so held, it simply assumed
without deciding that FOE had initial standing. See
Arizonans
for Official English v.
Arizona, 520 U. S. 43, 66-67 (1997)
(court may assume without deciding that standing exists in order to
analyze mootness). But because we hold that the Court of Appeals
erred in declaring the case moot, we have an obligation to assure
ourselves that FOE had Article III standing at the outset of the
litigation. We therefore address the question of standing before
turning to mootness.
In
Lujan v.
Defenders of Wildlife, 504 U. S. 555, 560-561
(1992), we held that, to satisfy Article Ill's standing
requirements, a plaintiff must show (1) it has suffered an "injury
in fact" that is (a) concrete and particularized and (b) actual or
imminent, not conjectural or hypothetical; (2) the injury is fairly
traceable to the challenged action of the defendant; and
181
(3) it is likely, as opposed to merely speculative, that the
injury will be redressed by a favorable decision. An association
has standing to bring suit on behalf of its members when its
members would otherwise have standing to sue in their own right,
the interests at stake are germane to the organization's purpose,
and neither the claim asserted nor the relief requested requires
the participation of individual members in the lawsuit.
Hunt
v.
Washington State Apple Advertising Comm'n, 432 U. S. 333, 343
(1977).
Laidlaw contends first that FOE lacked standing from the outset
even to seek injunctive relief, because the plaintiff organizations
failed to show that any of their members had sustained or faced the
threat of any "injury in fact" from Laidlaw's activities. In
support of this contention Laidlaw points to the District Court's
finding, made in the course of setting the penalty amount, that
there had been "no demonstrated proof of harm to the environment"
from Laidlaw's mercury discharge violations. 956 F. Supp., at 602;
see also
ibid. ("[T]he NPDES permit violations at issue in
this citizen suit did not result in any health risk or
environmental harm.").
The relevant showing for purposes of Article III standing,
however, is not injury to the environment but injury to the
plaintiff. To insist upon the former rather than the latter as part
of the standing inquiry (as the dissent in essence does,
post, at 199-200) is to raise the standing hurdle higher
than the necessary showing for success on the merits in an action
alleging noncompliance with an NPDES permit. Focusing properly on
injury to the plaintiff, the District Court found that FOE had
demonstrated sufficient injury to establish standing. App. in No.
97-1246
(CA4), at 207-208 (Tr. of Hearing 39-40). For
example, FOE member Kenneth Lee Curtis averred in affidavits that
he lived a half-mile from Laidlaw's facility; that he occasionally
drove over the North Tyger River, and that it looked and smelled
polluted; and that he would like to fish, camp, swim, and picnic in
and near
182
the river between 3 and 15 miles downstream from the facility,
as he did when he was a teenager, but would not do so because he
was concerned that the water was polluted by Laidlaw's discharges.
Record, Doc. No. 71 (Exhs. 41, 42). Curtis reaffirmed these
statements in extensive deposition testimony. For example, he
testified that he would like to fish in the river at a specific
spot he used as a boy, but that he would not do so now because of
his concerns about Laidlaw's discharges.
Ibid. (Exh. 43, at
52-53; Exh. 44, at 33).
Other members presented evidence to similar effect.
CLEAN member Angela Patterson attested that she lived two miles
from the facility; that before Laidlaw operated the facility, she
picnicked, walked, birdwatched, and waded in and along the North
Tyger River because of the natural beauty of the area; that she no
longer engaged in these activities in or near the river because she
was concerned about harmful effects from discharged pollutants; and
that she and her husband would like to purchase a home near the
river but did not intend to do so, in part because of Laidlaw's
discharges. Record, Doc. No. 21 (Exh. 10). CLEAN member Judy Pruitt
averred that she lived one-quarter mile from Laidlaw's facility and
would like to fish, hike, and picnic along the North Tyger River,
but has refrained from those activities because of the discharges.
Ibid. (Exh. 7). FOE member Linda Moore attested that she
lived 20 miles from Roebuck, and would use the North Tyger River
south of Roebuck and the land surrounding it for recreational
purposes were she not concerned that the water contained harmful
pollutants. Record, Doc. No. 71 (Exhs. 45, 46). In her deposition,
Moore testified at length that she would hike, picnic, camp, swim,
boat, and drive near or in the river were it not for her concerns
about illegal discharges.
Ibid. (Exh. 48, at 29, 36-37,
62-63, 72). CLEAN member Gail Lee attested that her home, which is
near Laidlaw's facility, had a lower value than similar homes
located farther from the facility, and that she believed the
pollutant discharges accounted
183
for some of the discrepancy. Record, Doc. No. 21 (Exh. 9).
Sierra Club member Norman Sharp averred that he had canoed
approximately 40 miles downstream of the Laidlaw facility and would
like to canoe in the North Tyger River closer to Laidlaw's
discharge point, but did not do so because he was concerned that
the water contained harmful pollutants.
Ibid. (Exh. 8).
These sworn statements, as the District Court determined,
adequately documented injury in fact. We have held that
environmental plaintiffs adequately allege injury in fact when they
aver that they use the affected area and are persons "for whom the
aesthetic and recreational values of the area will be lessened" by
the challenged activity.
Sierra Club v.
Morton,
405 U. S. 727,
735 (1972). See also
Defenders of Wildlife, 504 U. S., at
562-563 ("Of course, the desire to use or observe an animal
species, even for purely esthetic purposes, is undeniably a
cognizable interest for purposes of standing.").
Our decision in
Lujan v.
National Wildlife
Federation, 497
U. S. 871 (1990), is not to the contrary. In that case an
environmental organization assailed the Bureau of Land Management's
"land withdrawal review program," a program covering millions of
acres, alleging that the program illegally opened up public lands
to mining activities. The defendants moved for summary judgment,
challenging the plaintiff organization's standing to initiate the
action under the Administrative Procedure Act, 5 U. S. C. § 702. We
held that the plaintiff could not survive the summary judgment
motion merely by offering "averments which state only that one of
[the organization's] members uses unspecified portions of an
immense tract of territory, on some portions of which mining
activity has occurred or probably will occur by virtue of the
governmental action." 497 U. S., at 889.
In contrast, the affidavits and testimony presented by FOE in
this case assert that Laidlaw's discharges, and the affiant
members' reasonable concerns about the effects of
184
those discharges, directly affected those affiants'
recreational, aesthetic, and economic interests. These submissions
present dispositively more than the mere "general averments" and
"conclusory allegations" found inadequate in
National Wildlife
Federation. Id., at 888. Nor can the affiants' conditional
statements-that they would use the nearby North Tyger River for
recreation if Laidlaw were not discharging pollutants into it-be
equated with the speculative "'some day' intentions" to visit
endangered species halfway around the world that we held
insufficient to show injury in fact in
Defenders of
Wildlife. 504 U. S., at 564.
Los Angeles v.
Lyons, 461 U. S. 95 (1983),
relied on by the dissent,
post, at 199, does not weigh
against standing in this case. In
Lyons, we held that a
plaintiff lacked standing to seek an injunction against the
enforcement of a police chokehold policy because he could not
credibly allege that he faced a realistic threat from the policy.
461 U. S., at 107, n. 7. In the footnote from
Lyons cited by
the dissent, we noted that "[t]he reasonableness of Lyons' fear is
dependent upon the likelihood of a recurrence of the allegedly
unlawful conduct," and that his "subjective apprehensions" that
such a recurrence would even
take place were not enough to
support standing.
Id., at 108, n. 8. Here, in contrast, it
is undisputed that Laidlaw's unlawful conduct-discharging
pollutants in excess of permit limits-was occurring at the time the
complaint was filed. Under
Lyons, then, the only
"subjective" issue here is "[t]he reasonableness of [the] fear"
that led the affiants to respond to that concededly ongoing conduct
by refraining from use of the North Tyger River and surrounding
areas. Unlike the dissent,
post, at 200, we see nothing
"improbable" about the proposition that a company's continuous and
pervasive illegal discharges of pollutants into a river would cause
nearby residents to curtail their recreational use of that waterway
and would subject them to other economic and aesthetic harms. The
proposition is en-
185
tirely reasonable, the District Court found it was true in this
case, and that is enough for injury in fact.
Laidlaw argues next that even if FOE had standing to seek
injunctive relief, it lacked standing to seek civil penalties. Here
the asserted defect is not injury but redressability. Civil
penalties offer no redress to private plaintiffs, Laidlaw argues,
because they are paid to the Government, and therefore a citizen
plaintiff can never have standing to seek them.
Laidlaw is right to insist that a plaintiff must demonstrate
standing separately for each form of relief sought. See,
e.
g., Lyons, 461 U. S., at 109 (notwithstanding the
fact that plaintiff had standing to pursue damages, he lacked
standing to pursue injunctive relief); see also
Lewis v.
Casey, 518 U.
S. 343, 358, n. 6 (1996) ("[S]tanding is not dispensed in
gross."). But it is wrong to maintain that citizen plaintiffs
facing ongoing violations never have standing to seek civil
penalties.
We have recognized on numerous occasions that "all civil
penalties have some deterrent effect."
Hudson v.
United
States, 522 U. S.
93, 102 (1997); see also,
e. g., Department of Revenue of
Mont. v.
Kurth Ranch, 511 U. S. 767, 778
(1994). More specifically, Congress has found that civil penalties
in Clean Water Act cases do more than promote immediate compliance
by limiting the defendant's economic incentive to delay its
attainment of permit limits; they also deter future violations.
This congressional determination warrants judicial attention and
respect. "The legislative history of the Act reveals that Congress
wanted the district court to consider the need for retribution and
deterrence, in addition to restitution, when it imposed civil
penalties .... [The district court may] seek to deter future
violations by basing the penalty on its economic impact."
Tull v.
United States, 481 U. S. 412, 422-423
(1987).
It can scarcely be doubted that, for a plaintiff who is injured
or faces the threat of future injury due to illegal conduct ongoing
at the time of suit, a sanction that effectively
186
abates that conduct and prevents its recurrence provides a form
of redress. Civil penalties can fit that description. To the extent
that they encourage defendants to discontinue current violations
and deter them from committing future ones, they afford redress to
citizen plaintiffs who are injured or threatened with injury as a
consequence of ongoing unlawful conduct.
The dissent argues that it is the
availability rather
than the
imposition of civil penalties that deters any
particular polluter from continuing to pollute.
Post, at
207-208. This argument misses the mark in two ways. First, it
overlooks the interdependence of the availability and the
imposition; a threat has no deterrent value unless it is credible
that it will be carried out. Second, it is reasonable for Congress
to conclude that an actual award of civil penalties does in fact
bring with it a significant quantum of deterrence over and above
what is achieved by the mere prospect of such penalties. A would-be
polluter mayor may not be dissuaded by the existence of a remedy on
the books, but a defendant once hit in its pocketbook will surely
think twice before polluting again.2
We recognize that there may be a point at which the deterrent
effect of a claim for civil penalties becomes so insubstantial or
so remote that it cannot support citizen standing. The fact that
this vanishing point is not easy to ascertain does not detract from
the deterrent power of such penalties in the ordinary case. Justice
Frankfurter's observations for
2 The dissent suggests that there was little deterrent work for
civil penalties to do in this case because the lawsuit brought
against Laidlaw by DHEC had already pushed the level of deterrence
to "near the top of the graph."
Post, at 208. This
suggestion ignores the District Court's specific finding that the
penalty agreed to by Laidlaw and DHEC was far too low to remove
Laidlaw's economic benefit from noncompliance, and thus was
inadequate to deter future violations. 890 F. Supp. 470, 491-494,
497498 (SC 1995). And it begins to look especially farfetched when
one recalls that Laidlaw itself prompted the DHEC lawsuit, paid the
filing fee, and drafted the complaint. See
supra, at
176-177, 178, n. 1.
187
the Court, made in a different context nearly 60 years ago, hold
true here as well:
"How to effectuate policy-the adaptation of means to
legitimately sought ends-is one of the most intractable of
legislative problems. Whether proscribed conduct is to be deterred
by qui tam action or triple damages or injunction, or by
criminal prosecution, or merely by defense to actions in contract,
or by some, or all, of these remedies in combination, is a matter
within the legislature's range of choice. Judgment on the deterrent
effect of the various weapons in the armory of the law can lay
little claim to scientific basis." Tigner v. Texas,
310 U. S. 141, 148 (1940).3
In this case we need not explore the outer limits of the
principle that civil penalties provide sufficient deterrence to
support redressability. Here, the civil penalties sought by FOE
carried with them a deterrent effect that made it likely, as
opposed to merely speculative, that the penalties would redress
FOE's injuries by abating current violations and preventing future
ones-as the District Court reasonably found when it assessed a
penalty of $405,800. 956 F. Supp., at 610-611.
Laidlaw contends that the reasoning of our decision in
Steel
Co. directs the conclusion that citizen plaintiffs have no
standing to seek civil penalties under the Act. We disagree.
Steel Co. established that citizen suitors lack standing to
seek civil penalties for violations that have abated by the time of
suit. 523 U. S., at 106-107. We specifically noted in that case
that there was no allegation in the complaint of any continuing or
imminent violation, and that no basis for such an allegation
appeared to exist.
Id., at 108; see also
Gwaltney,
484 U. S., at 59 ("the harm sought to be addressed by
3 In
Tigner the Court rejected an equal protection
challenge to a statutory provision exempting agricultural producers
from the reach of the Texas antitrust laws.
188
the citizen suit lies in the present or the future, not in the
past"). In short,
Steel Co. held that private plaintiffs,
unlike the Federal Government, may not sue to assess penalties for
wholly past violations, but our decision in that case did not reach
the issue of standing to seek penalties for violations that are
ongoing at the time of the complaint and that could continue into
the future if undeterred.4
4 In insisting that the redressability requirement is not met,
the dissent relies heavily on
Linda R. S. v.
Richard
D., 410 U. S.
614 (1973). That reliance is sorely misplaced. In
Linda R.
S., the mother of an out-ofwedlock child filed suit to force a
district attorney to bring a criminal prosecution against the
absentee father for failure to pay child support.
Id., at
616. In finding that the mother lacked standing to seek this
extraordinary remedy, the Court drew attention to "the special
status of criminal prosecutions in our system,"
id., at 619,
and carefully limited its holding to the "unique context of a
challenge to [the nonenforcement of] a criminal statute,"
id., at 617. Furthermore, as to redressability, the relief
sought in
Linda R. S.-a prosecution which, if successful,
would automatically land the delinquent father in jail for a fixed
term,
id., at 618, with predictably negative effects on his
earning power-would scarcely remedy the plaintiff's lack of child
support payments. In this regard, the Court contrasted "the civil
contempt model whereby the defendant 'keeps the keys to the jail in
his own pocket' and may be released whenever he complies with his
legal obligations."
Ibid. The dissent's contention,
post, at 204, that "precisely the same situation exists
here" as in
Linda R. S. is, to say the least,
extravagant.
Putting aside its mistaken reliance on
Linda R. S., the
dissent's broader charge that citizen suits for civil penalties
under the Act carry "grave implications for democratic governance,"
post, at 202, seems to us overdrawn. Certainly the Federal
Executive Branch does not share the dissent's view that such suits
dissipate its authority to enforce the law. In fact, the Department
of Justice has endorsed this citizen suit from the outset,
submitting
amicus briefs in support of FOE in the District
Court, the Court of Appeals, and this Court. See
supra, at
177, 179. As we have already noted,
supra, at 175, the
Federal Government retains the power to foreclose a citizen suit by
undertaking its own action. 33 U. S. C. § 1365(b)(1)(B). And if the
Executive Branch opposes a particular citizen suit, the statute
allows the Administrator of the EPA to "intervene as a matter of
right" and bring the Government's views to the attention of the
court. § 1365(c)(2).
189
B
Satisfied that FOE had standing under Article III to bring this
action, we turn to the question of mootness.
The only conceivable basis for a finding of mootness in this
case is Laidlaw's voluntary conduct-either its achievement by
August 1992 of substantial compliance with its NPDES permit or its
more recent shutdown of the Roebuck facility. It is well settled
that "a defendant's voluntary cessation of a challenged practice
does not deprive a federal court of its power to determine the
legality of the practice."
City of Mesquite, 455 U. S., at
289. "[I]f it did, the courts would be compelled to leave '[t]he
defendant ... free to return to his old ways.'"
Id., at 289,
n. 10 (citing
United States v.
W T. Grant Co.,
345 U. S. 629,
632 (1953)). In accordance with this principle, the standard we
have announced for determining whether a case has been mooted by
the defendant's voluntary conduct is stringent: "A case might
become moot if subsequent events made it absolutely clear that the
allegedly wrongful behavior could not reasonably be expected to
recur."
United States v.
Concentrated Phosphate Export
Assn., Inc., 393
U. S. 199, 203 (1968). The "heavy burden of persua[ding]" the
court that the challenged conduct cannot reasonably be expected to
start up again lies with the party asserting mootness.
Ibid.
The Court of Appeals justified its mootness disposition by
reference to
Steel Co., which held that citizen plaintiffs
lack standing to seek civil penalties for wholly past violations.
In relying on
Steel Co., the Court of Appeals confused
mootness with standing. The confusion is understandable, given this
Court's repeated statements that the doctrine of mootness can be
described as "the doctrine of standing set in a time frame: The
requisite personal interest that must exist at the commencement of
the litigation (standing) must continue throughout its existence
(mootness)."
Arizonans for Official English, 520 U. S., at
68, n. 22 (quoting
United States Parole Comm'n v.
Geraghty, 445
U. S. 388, 397 (1980), in turn
190
quoting Monaghan, Constitutional Adjudication: The Who and When,
82 Yale L. J. 1363, 1384 (1973)) (internal quotation marks
omitted).
Careful reflection on the long-recognized exceptions to
mootness, however, reveals that the description of mootness as
"standing set in a time frame" is not comprehensive. As just noted,
a defendant claiming that its voluntary compliance moots a case
bears the formidable burden of showing that it is absolutely clear
the allegedly wrongful behavior could not reasonably be expected to
recur.
Concentrated Phosphate Export Assn., 393 U. S., at
203. By contrast, in a lawsuit brought to force compliance, it is
the plaintiff's burden to establish standing by demonstrating that,
if unchecked by the litigation, the defendant's allegedly wrongful
behavior will likely occur or continue, and that the "threatened
injury [is] certainly impending."
Whitmore v.
Arkansas, 495
U. S. 149, 158 (1990) (citations and internal quotation marks
omitted). Thus, in
Lyons, as already noted, we held that a
plaintiff lacked initial standing to seek an injunction against the
enforcement of a police chokehold policy because he could not
credibly allege that he faced a realistic threat arising from the
policy. 461 U. S., at 105-110. Elsewhere in the opinion, however,
we noted that a citywide moratorium on police chokeholds-an action
that surely diminished the already slim likelihood that any
particular individual would be choked by police-would not have
mooted an otherwise valid claim for injunctive relief, because the
moratorium by its terms was not permanent.
Id., at 101. The
plain lesson of these cases is that there are circumstances in
which the prospect that a defendant will engage in (or resume)
harmful conduct may be too speculative to support standing, but not
too speculative to overcome mootness.
Furthermore, if mootness were simply "standing set in a time
frame," the exception to mootness that arises when the defendant's
allegedly unlawful activity is "capable of repetition, yet evading
review," could not exist. When, for exam-
191
pIe, a mentally disabled patient files a lawsuit challenging her
confinement in a segregated institution, her postcomplaint transfer
to a community-based program will not moot the action,
Olmstead v.
L. c.,
527 U. S. 581, 594, n. 6
(1999), despite the fact that she would have lacked initial
standing had she filed the complaint after the transfer. Standing
admits of no similar exception; if a plaintiff lacks standing at
the time the action commences, the fact that the dispute is capable
of repetition yet evading review will not entitle the complainant
to a federal judicial forum. See
Steel Co., 523 U. S., at
109 (" 'the mootness exception for disputes capable of repetition
yet evading review ... will not revive a dispute which became moot
before the action commenced''') (quoting
Renne v.
Geary, 501 U.
S. 312, 320 (1991)).
We acknowledged the distinction between mootness and standing
most recently in
Steel Co.:
"The United States ... argues that the injunctive relief does
constitute remediation because 'there is a presumption of [future]
injury when the defendant has voluntarily ceased its illegal
activity in response to litigation,' even if that occurs before a
complaint is filed .... This makes a sword out of a shield. The
'presumption' the Government refers to has been applied to refute
the assertion of mootness by a defendant who, when sued in a
complaint that alleges present or threatened injury, ceases the
complained-of activity .... It is an immense and unacceptable
stretch to call the presumption into service as a substitute for
the allegation of present or threatened injury upon which initial
standing must be based." 523 U. S., at 109.
Standing doctrine functions to ensure, among other things, that
the scarce resources of the federal courts are devoted to those
disputes in which the parties have a concrete stake. In contrast,
by the time mootness is an issue, the case has been brought and
litigated, often (as here) for years. To
192
abandon the case at an advanced stage may prove more wasteful
than frugal. This argument from sunk costs 5 does not license
courts to retain jurisdiction over cases in which one or both of
the parties plainly lack a continuing interest, as when the parties
have settled or a plaintiff pursuing a non surviving claim has
died. See,
e. g., DeFunis v.
Odegaard, 416 U. S. 312 (1974)
(per curiam) (non-class-action challenge to
constitutionality of law school admissions process mooted when
plaintiff, admitted pursuant to preliminary injunction, neared
graduation and defendant law school conceded that, as a matter of
ordinary school policy, plaintiff would be allowed to finish his
final term);
Arizonans, 520 U. S., at 67 (non-class-action
challenge to state constitutional amendment declaring English the
official language of the State became moot when plaintiff, a state
employee who sought to use her bilingual skills, left state
employment). But the argument surely highlights an important
difference between the two doctrines. See generally
Honig v.
Doe, 484 U. S. 305, 329-332 (1988) (REHNQUIST, C. J.,
concurring).
In its brief, Laidlaw appears to argue that, regardless of the
effect of Laidlaw's compliance, FOE doomed its own civil penalty
claim to mootness by failing to appeal the District Court's denial
of injunctive relief. Brief for Respondent 1417. This argument
misconceives the statutory scheme. Under § 1365(a), the district
court has discretion to determine which form of relief is best
suited, in the particular case, to abate current violations and
deter future ones. "[A] federal judge sitting as chancellor is not
mechanically obligated to grant an injunction for every violation
of law."
5 Of course we mean sunk costs to the judicial system, not to
the litigants.
Lewis v.
Continental Bank Corp.,
494 U. S. 472
(1990) (cited by the dissent,
post, at 213), dealt with the
latter, noting that courts should use caution to avoid carrying
forward a moot case solely to vindicate a plaintiff's interest in
recovering attorneys' fees.
193
Weinberger v.
Romero-Barcelo, 456 U. S. 305, 313
(1982). Denial of injunctive relief does not necessarily mean that
the district court has concluded there is no prospect of future
violations for civil penalties to deter. Indeed, it meant no such
thing in this case. The District Court denied injunctive relief,
but expressly based its award of civil penalties on the need for
deterrence. See 956 F. Supp., at 610-611. As the dissent notes,
post, at 205, federal courts should aim to ensure "'the
framing of relief no broader than required by the precise facts.'''
Schlesinger v.
Reservists Comm. to Stop the War,
418 U. S. 208,
222 (1974). In accordance with this aim, a district court in a
Clean Water Act citizen suit properly may conclude that an
injunction would be an excessively intrusive remedy, because it
could entail continuing superintendence of the permit holder's
activities by a federal court-a process burdensome to court and
permit holder alike. See
City of Mesquite, 455 U. S., at 289
(although the defendant's voluntary cessation of the challenged
practice does not moot the case, "[s]uch abandonment is an
important factor bearing on the question whether a court should
exercise its power to enjoin the defendant from renewing the
practice").
Laidlaw also asserts, in a supplemental suggestion of mootness,
that the closure of its Roebuck facility, which took place after
the Court of Appeals issued its decision, mooted the case. The
facility closure, like Laidlaw's earlier achievement of substantial
compliance with its permit requirements, might moot the case,
but-we once more reiterate-only if one or the other of these events
made it absolutely clear that Laidlaw's permit violations could not
reasonably be expected to recur.
Concentrated Phosphate Export
Assn., 393 U. S., at 203. The effect of both Laidlaw's
compliance and the facility closure on the prospect of future
violations is a disputed factual matter. FOE points out, for
example-and Laidlaw does not appear to contest-that Laidlaw retains
its
194
NPDES permit. These issues have not been aired in the lower
courts; they remain open for consideration on remand.6
C
FOE argues that it is entitled to attorneys' fees on the theory
that a plaintiff can be a "prevailing party" for purposes of 33 U.
S. C. § 1365(d) if it was the "catalyst" that triggered a favorable
outcome. In the decision under review, the Court of Appeals noted
that its Circuit precedent construed our decision in
Farrar
v.
Hobby, 506
U. S. 103 (1992), to require rejection of that theory. 149 F.
3d, at 307, n. 5 (citing
S-l &
S-2 v.
State
Bd. of Ed. of N. c.,
21 F.3d
49, 51
(CA4 1994) (en bane)). Cf.
Foreman v.
Dallas County, 193 F. 3d 314, 320
(CA5 1999)
(stating, in dicta, that "[a]fter
Farrar ... the continuing
validity of the catalyst theory is in serious doubt").
Farrar acknowledged that a civil rights plaintiff awarded
nominal damages may be a "prevailing party" under 42 U. S. C. §
1988. 506 U. S., at 112. The case involved no catalytic effect.
Recognizing that the issue was not presented for this Court's
decision in
Farrar, several Courts of Appeals have expressly
concluded that
Farrar did not repudiate the catalyst theory.
See
Marbley v.
Bane, 57 F.3d
224, 234
(CA2 1995);
Baumgartner v.
Harrisburg
Housing Authority, 21 F.3d
541, 546-550
(CA3 1994);
Zinn v.
Shalala,
35 F.3d
273, 276
(CA7 1994);
Little Rock School Dist. v.
Pulaski County Special Sch. Dist., #1,
17
F.3d 260, 263, n. 2
(CA8 1994); Kilgour v.
Pasadena, 53 F.3d
1007, 1010
(CA9 1995);
6We note that it is far from clear that vacatur of the District
Court's judgment would be the appropriate response to a finding of
mootness on appeal brought about by the voluntary conduct of the
party that lost in the District Court. See
U. S.
Bancorp
Mortgage Co. v.
Bonner Mall Partnership, 513 U. S. 18 (1994)
(mootness attributable to a voluntary act of a nonprevailing party
ordinarily does not justify vacatur of a judgment under review);
see also
Walling v.
James V. Reuter, Inc., 321 U. S. 671 (1944).
195
Beard v.
Teska, 31 F.3d
942, 951-952 (CAlO 1994);
Morris v.
West Palm
Beach, 194 F.3d
1203, 1207 (CAll 1999). Other Courts of Appeals have likewise
continued to apply the catalyst theory notwithstanding
Farrar.
Paris v.
United States Dept. of Housing and Urban
Development, 988 F.2d
236,
238 (CA1 1993);
Citizens Against Tax Waste
v.
Westerville City School, 985 F.2d
255, 257
(CA6 1993).
It would be premature, however, for us to address the continuing
validity of the catalyst theory in the context of this case. The
District Court, in an order separate from the one in which it
imposed civil penalties against Laidlaw, stayed the time for a
petition for attorneys' fees until the time for appeal had expired
or, if either party appealed, until the appeal was resolved. See
149 F. 3d, at 305 (describing order staying time for attorneys'
fees petition). In the opinion accompanying its order on penalties,
the District Court stated only that "this court has considered that
Laidlaw will be required to reimburse plaintiffs for a significant
amount of legal fees," and referred to "potential fee awards." 956
F. Supp., at 610-611. Thus, when the Court of Appeals addressed the
availability of counsel fees in this case, no order was before it
either denying or awarding fees. It is for the District Court, not
this Court, to address in the first instance any request for
reimbursement of costs, including fees.
***
For the reasons stated, the judgment of the United States Court
of Appeals for the Fourth Circuit is reversed, and the case is
remanded for further proceedings consistent with this opinion.
It is so ordered.
JUSTICE STEVENS, concurring.
Although the Court has identified a sufficient reason for
rejecting the Court of Appeals' mootness determination, it is
important also to note that the case would not be moot
196
STEVENS, J., concurring
even if it were absolutely clear that respondent had gone out of
business and posed no threat of future permit violations. The
District Court entered a valid judgment requiring respondent to pay
a civil penalty of $405,800 to the United States. No post judgment
conduct of respondent could retroactively invalidate that judgment.
A record of voluntary post judgment compliance that would justify a
decision that injunctive relief is unnecessary, or even a decision
that any claim for injunctive relief is now moot, would not warrant
vacation of the valid money judgment.
Furthermore, petitioners' claim for civil penalties would not be
moot even if it were absolutely clear that respondent's violations
could not reasonably be expected to recur because respondent
achieved substantial compliance with its permit requirements after
petitioners filed their complaint but before the District Court
entered judgment. As the Courts of Appeals (other than the court
below) have uniformly concluded, a polluter's voluntary
postcomplaint cessation of an alleged violation will not moot a
citizen-suit claim for civil penalties even if it is sufficient to
moot a related claim for injunctive or declaratory relief. * This
conclusion is consistent with the structure of the Clean Water Act,
which attaches liability for civil penalties at the time a permit
violation occurs. 33 U. S. C. § 1319(d) ("Any person who
violates
*Comfort Lake Assn. v. Dresel Contracting, Inc.,
138 F.3d
351, 356 (CA8 1998); Atlantic States Legal Foundation, Inc. v.
Stroh Die Casting Co.,
116 F.3d
814, 820 (CA7), cert. denied, 522 U. S. 981 (1997); Natural
Resources Defense Council v. Texaco Refining & Mktg., Inc.,
2 F.3d
493, 502-503 (CA3 1993); Atlantic States Legal Foundation, Inc.
v. Pan Am. Tanning Corp.,
993 F.2d
1017, 1020-1021 (CA2 1993); Atlantic States Legal Foundation,
Inc. v. Tyson Foods, Inc.,
897 F.2d
1128, 1134-1137 (CA111990); Chesapeake Bay Foundation, Inc. v.
Gwaltney of Smithfield, Ltd.,
890 F.2d
690, 696-697 (CA4 1989). Cf. Powell v. McCormack,
395 U. S. 486, 496, n. 8
(1969) ("Where several forms of relief are requested and one of
these requests subsequently becomes moot, the Court has still
considered the remaining requests").
197
[certain provisions of the Act or certain permit conditions and
limitations] shall be subject to a civil penalty ... "). It is also
consistent with the character of civil penalties, which, for
purposes of mootness analysis, should be equated with punitive
damages rather than with injunctive or declaratory relief. See
Tull v.
United States, 481 U. S. 412, 422-423
(1987). No one contends that a defendant's postcomplaint conduct
could moot a claim for punitive damages; civil penalties should be
treated the same way.
The cases cited by the Court in its discussion of the mootness
issue all involved requests for injunctive or declaratory relief.
In only one,
Los Angeles v.
Lyons, 461 U. S. 95 (1983), did
the plaintiff seek damages, and in that case the opinion makes it
clear that the inability to obtain injunctive relief would have no
impact on the damages claim.
Id., at 105, n. 6, 109. There
is no precedent, either in our jurisprudence, or in any other of
which I am aware, that provides any support for the suggestion that
postcomplaint factual developments that might moot a claim for
injunctive or declaratory relief could either moot a claim for
monetary relief or retroactively invalidate a valid money
judgment.
JUSTICE KENNEDY, concurring.
Difficult and fundamental questions are raised when we ask
whether exactions of public fines by private litigants, and the
delegation of Executive power which might be inferable from the
authorization, are permissible in view of the responsibilities
committed to the Executive by Article II of the Constitution of the
United States. The questions presented in the petition for
certiorari did not identify these issues with particularity; and
neither the Court of Appeals in deciding the case nor the parties
in their briefing before this Court devoted specific attention to
the subject. In my view these matters are best reserved for a later
case. With this observation, I join the opinion of the Court.
198
SCALIA, J., dissenting
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
Court's express finding that Laidlaw's 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 standing-thereby 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 Court's watered-down
requirements for initial standing. I dissent from all of this.
I
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 Laidlaw's mercury
exceedances had reduced the value of their homes.
Ante, at
181-183. 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 "
'supported adequately by the evidence adduced at trial,'"
ibid. (quoting
Gladstone, Realtors v.
Village of
Bellwood, 441 U.
S. 91, 115, n. 31 (1979)). In this case, the affidavits
themselves are
199
woefully short on "specific facts," and the vague allegations of
injury they do make are undermined by the evidence adduced at
trial.
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 Laidlaw's
actual discharges have resulted in harm to the North Tyger
River,"
id., at 602-603, 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 181. 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's subjective
apprehensions,"
Los Angeles v.
Lyons, 461 U. S. 95, 107, n. 8
(1983). At the very least, in
200
SCALIA, J., dissenting
the present case, one would expect to see evidence supporting
the affidavits' bald assertions regarding decreasing recreational
usage and declining home values, as well as evidence for the
improbable proposition that Laidlaw's violations, even though
harmless to the environment, are somehow responsible for these
effects. Cf.
Gladstone, supra, at 115 (noting that standing
could be established by "convincing evidence" that a decline in
real estate values was attributable to the defendant's conduct).
Plaintiffs here have made no attempt at such a showing, but rely
entirely upon unsupported and unexplained affidavit allegations of
"concern."
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
2324). 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,"
ibid.
(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 Curtis's claim that the
river "looke[d] and smell[ed] polluted," this condition, if
present, was surely not caused by Laidlaw's 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,
201
8, and 9), or said that the river looks polluted (which is also
incompatible with the court's findings),
ibid. (Exh. 10).
These affiants have established nothing but "subjective
apprehensions."
The Court is correct that the District Court explicitly found
standing-albeit "by the very slimmest of margins," and as "an
awfully close call." App. in No. 97-1246
(CA4), pp. 207-208
(Tr. of Hearing 39-40 (June 30, 1993)). That cautious finding,
however, was made in 1993, long before the court's 1997 conclusion
that Laidlaw's 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
Laidlaw's 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 to day's lenient standard.
202
SCALIA, J., dissenting
II
The Court's treatment of the redressability requirementwhich
would have been unnecessary if it resolved the injury-in-fact
question correctly-is 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 Laidlaw's 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, 106-107 (1998). The Court nonetheless finds the
redressability requirement satisfied here, distinguishing
Steel
Co. on the ground that in this case petitioners allege ongoing
violations; payment of the penalties, it says, will remedy
petitioners' injury by deterring future violations by Laidlaw.
Ante, at 185-186. 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 Ill's 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 makes-like
all expansions of standing beyond the traditional constitutional
limits-has grave implications for democratic governance. I shall
discuss these three points in turn.
203
A
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 father's failure to fulfill his support
obligation. The Court held that there was no Article III standing.
There was no "'direct' relationship," it said, "between the alleged
injury and the claim sought to be adjudicated," since "[t]he
prospect that prosecution will, at least in the future, result in
payment of support can, at best, be termed only speculative."
Id., at 618. "[Our cases] demonstrate that, in American
jurisprudence at least, a private citizen lacks a judicially
cognizable interest in the prosecution or nonprosecution of
another."
Id., at 619.
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 appellant's 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. So'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
618-that is to say, it was uncertain whether the relief would
prevent the injury.l Of
1 The decision in
Linda R. S. did not turn, as today's
opinion imaginatively suggests, on the father's short-term
inability to pay support if imprisoned.
Ante, at 188, n. 4.
The Court's only comment upon the impris-
204
SCALIA, J., dissenting
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 Court's 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's injury,
and not
any sort of relief that has some incidental benefit
to the plaintiff. Just as a "generalized grievance" that affects
the entire citizenry cannot satisfy the injury-in-fact requirement
even though it aggrieves the plaintiff along with everyone else,
see
Lujan, 504 U. S., at 573-574, so also a generalized
remedy that deters all future unlawful activity against all persons
cannot satisfy the remediation requirement, even though it deters
(among other things) repetition of this particular unlawful
activity against these particular plaintiffs.
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, 357-360 (1996);
Lyons, 461 U. S, at 105-107, and n.7.
In seeking to overturn that tradition by giving an indi-
onment was that, unlike imprisonment for civil contempt, it
would not condition the father's release upon payment. The Court
then continued:
"The prospect that prosecution will, at least in the future"-i.
e., upon completion of the imprisonment-"result in payment
of support can, at best, be termed only speculative."
Linda R.
S., 410 U. S., at 618.
205
vidual 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.
B
As I have just discussed, it is my view that a plaintiff's
desire to benefit from the deterrent effect of a public penalty for
past conduct can never suffice to establish a case or controversy
of the sort known to our law. Such deterrent effect is, so to
speak, "speculative as a matter of law." Even if that were not so,
however, the deterrent effect in the present case would surely be
speculative as a matter of fact.
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 180-181. Further, the Court
recognizes that not
all deterrent effects of
all
civil penalties will meet this standard-though it declines to
"explore the outer limits" of adequate deterrence,
ante, at
187. 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 Court's opinion to explain why
it believes this is so.
The Court cites the District Court's conclusion that the
penalties imposed, along with anticipated fee awards, pro-
206
SCALIA, J., dissenting
vided "adequate deterrence."
Ante, at 178, 187; 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 goodfaith 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 then-under subsection (f)
entitled "Other Matters As Justice May Require," it discussed "1.
Laidlaw's Failure to Avail Itself of the Reopener Clause," "2.
Recent Compliance History," and "3. The Ever-Changing Mercury
Limit." There is no mention whatever-in this portion of the opinion
or anywhere else-of the degree of deterrence necessary to prevent
future harm to these particular plaintiffs. Indeed, neither the
District Court's final opinion (which contains the "adequate
deterrence" statement) nor its earlier opinion dealing with the
preliminary question whether South Carolina's 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 Court's earlier opinion did, however, quote with
approval the passage from a District Court case which began:
"'Civil penalties seek to deter pollution by discourag-
207
ing future violations. To serve this function, the amount of the
civil penalty must be high enough to insure that polluters cannot
simply absorb the penalty as a cost of doing business.'" App. 122,
quoting
PIRG v.
Powell Duffryn Terminals, Inc., 720
F. Supp. 1158, 1166 (NJ 1989). When the District Court concluded
the "Civil Penalty" section of its opinion with the statement that
"[t]aken together, this court believes the above penalty, potential
fee awards, and Laidlaw's own direct and indirect litigation
expenses provide adequate deterrence under the circumstances of
this case," 956 F. Supp., at 611, it was obviously harking back to
this general statement of what the statutorily prescribed factors
(and the "as justice may require" factors, which in this case did
not include particularized or even generalized deterrence) were
designed to achieve. It meant no more than that the court believed
the civil penalty it had prescribed met the statutory
standards.
The Court points out that we have previously said "'all civil
penalties have some deterrent effect,'"
ante, at 185
(quoting
Hudson v.
United States, 522 U. S. 93, 102 (1997)).
That is unquestionably true: As a general matter, polluters as a
class are deterred from violating discharge limits by the
availability of civil penalties. However, none of the cases
the Court cites focused on the deterrent effect of a single
imposition of penalties on a particular lawbreaker. Even
less did they focus on the question whether that particularized
deterrent effect (if any) was enough to redress the injury of a
citizen plaintiff in the sense required by Article III. They all
involved penalties pursued by the government, not by citizens. See
id., at 96;
Department of Revenue of Mont. v.
Kurth Ranch, 511 U. S. 767, 773
(1994);
Tull v.
United States, 481 U. S. 412, 414
(1987).
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
208
SCALIA, J., dissenting
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 Laidlaw's fear of future
penalties that will be achieved by adding federal penalties for
Laidlaw's 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 203-204, where we said that "[t]he
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"
209
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.
C
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 KENNEDY'S concurrence correctly observes, the question of
the conformity of this legislation with Article II has not been
argued-and 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 to day's 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- EP A. 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 198-201. And once the target is chosen, the suit
goes forward without meaningful public contro1.2 The availability
of civil penalties vastly dis-
2 The Court points out that the Government is allowed to
intervene in a citizen suit, see
ante, at 188, n. 4; 33 U.
S. C. § 1365(c)(2), but this power to "bring the Government's views
to the attention of the court,"
ante, at 188, 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
210
SCALIA, J., dissenting
proportionate to the individual injury gives citizen plaintiffs
massive bargaining power-which 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, 355-359 (1990). Thus is a
public fine diverted to a private interest.
To be sure, the EP A 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 undertaken-which 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.
III
Finally, I offer a few comments regarding the Court's discussion
of whether FOE's claims became moot by reason of Laidlaw's
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
Q. Public, who can intervene-whether 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 dissent's view that such suits dissipate its authority to
enforce the law," since it has "endorsed this citizen suit from the
outset."
Ante, at 188, 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 here-acquiescence and approval by a single
administration-does not deserve passing mention.
211
might well not have been mooted by Laidlaw's voluntary
compliance with the permit, and leaving this fact-intensive
question open for consideration on remand, as the Court does,
ante, at 193-194, 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. Laidlaw's claimed compliance is squarely within the bounds of
our "voluntary cessation" doctrine, which is the basis for the
remand.
Ante, at 193.5
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 Court's opinion disposes of the issue. The opinion notes the
District Court's finding that Laidlaw itself played a significant
role in facilitating the State's action.
Ante, at 178, n. 1,
186, n. 2. But there is no incompatibility whatever between a
defendant's facilitation of suit and the State's diligent
prosecution-as 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
prudent-given 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 handle-for Laidlaw to make sure its case
did not fall through the cracks. South Carolina's 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
212
SCALIA, J., dissenting
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 essential-indeed, not even
relevant-to 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
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 189. The Fourth Circuit's 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 FOE's 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 Court's
erroneous conclusion that civil penalties can redress private
injury, it of course rejects both formulations-but neither of them
necessitates the Court's academic discourse comparing the mootness
and standing doctrines.
213
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 192, 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.
Ante, at 189. 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's alleged rights, so also the initial suit
can be continued even though the defendant has stopped violating
the plaintiff's alleged rights. The "voluntary cessation" doctrine
is nothing more than an evidentiary presumption that the
controversy reflected by the violation of alleged rights continues
to exist.
Steel Co., 523 U. S., at 109. Similarly, the fact
that we do not find cases moot when the challenged conduct is
"capable of repetition, yet evading review" does not demonstrate
that the requirements for mootness and for standing differ. "Where
the conduct has ceased for the time being
214
SCALIA, J., dissenting
but there is a demonstrated probability that it will recur, a
real-life controversy between parties with a personal stake in the
outcome continues to exist."
Honig v.
Doe, 484 U. S. 305, 341 (1988)
(SCALIA, J., dissenting) (emphasis deleted).
Part of the confusion in the Court's 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 190. 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"
'standing set in a time frame.'" See
Arizonans, supra, at
67, 68, n. 22 (case mooted where plaintiff's change in jobs
deprived case of "still vital claim for prospective relief");
Spencer v.
Kemna, 523 U. S. 1, 7 (1998) (case
mooted by petitioner's completion of his sentence, since
"throughout the litigation, the plaintiff must have suffered, or be
threatened with, an actual injury traceable to the defendant and
likely to be redressed by a favorable judicial decision" (internal
quotation marks omitted));
Lewis, supra, at 478-480 (case
against State mooted by change in federal law that eliminated
parties' "personal stake" in the outcome).
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 "'[t]he requisite personal interest that must exist at the
commencement of the litigation ... must continue throughout its
existence .... '"
Arizonans, supra,
215
at 68, n. 22 (quoting
United States Parole Comm'n v.
Geraghty, 445
U. S. 388, 397 (1980)).
***
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 to day's
decision is to place the immense power of suing to enforce the
public laws in private hands. I respectfully dissent.
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