*1 FRIENDS OF THE EARTH, INC., LAIDLAW et al. (TOC),
ENVIRONMENTAL SERVICES INC. No. 98-822. October Argued January 1999 Decided *5 Ginsburg, J., Court, Rehnquist, the opinion delivered in which J., Stevens, C. O’Connor, Kennedy, and Souter, Breyer, JJ., and joined. Stevens, J., Kennedy, J., post, p. and post, p. filed con- curring J., opinions. Scalia, Thomas, filed a in which dissenting opinion, J., joined, post, p. 198.
Bruce Terris J. With cause for petitioners. argued Carolyn James Pravlik and Smith him on the briefs were Chandler, S. Jr.
Jeffrey P. Minear United States cause for the argued curiae as amicus him on the With of support petitioners. Attorney Waxman, Assistant brief were Solicitor General Deputy Wallace, and General Solicitor General Schiffer, David C. Shilton. A. Cockrill
Donald the cause respondent. argued Newberger, H. Stuart briefs With him on the were Clifton Taylor, Henry Barbara Elgarten, H. Gant, E. Scott S. and Hamilton.* J. Cali- for the State of *Briefs of amici reversal were filed curiae urging Nixon, Missouri, General of (Jay) Jeremiah W. Attorney by
fornia et al. and William P. Bindbeutel Solicitor, Layton, Joseph James R. State Loekyer, General, Attorney General Bryan, J. Bill Attorneys Assistant General, Walston, Attorney Roderick E. California, of Chief Assistant Masouredis, Frank, General, and Linus M. Richard Attorney Assistant their General, Attorneys respec- by and General Deputy Attorney Pryor Brady M. Jane Arkansas, of Dela- follows: Mark tive States of Mike Illinois, Ryan E. M. Granholm ware, Michigan, of James of Jennifer Mexico, Spitzer Eliot of Patricia A Madrid of New Moore of Mississippi, Sheldon Whitehm.se Carolina, Easley F. York, Michael of North New Gregoire Tennessee, and Christine Island, Paul G. Summers Rhode Echeverría; by John D. the Environment Washington; for Americans for Matzzie, Wolfman, and Brian Colette G. by and for Public Citizen et al. Shapiro. Steven R. State for the curiae urging affirmance were filed amici Briefs Condon, Kenneth General, Charles M. Attorney and by of South Carolina General; Alliance of for the Woodington,
P. Attorney Senior Assistant S. DuBoff, M. Kenneth Scott by Automobile Manufacturers et al. Kauf- Amundson, Conrad, Case, man, Henry, J. Jan Robin David R. Walker S. Hottel; of Sanitation and Deborah Ann for the California Association Briscoe; Inc., by Claiborne and John for Hercules Agencies by Louis F. Frattarelli; Legal for Washington Joel Schneider and Peter L. and D. Kamenar. Popeo al. Daniel J. and Paul by Foundation et Cities et al. curiae were filed for California amici Briefs of Inc., Jarvis; Council, et al. W. Defense Rick for the Natural Resources Nicholas; Foun- Pacific Legal David A and for the by Michael Axline M. Hopper. Robin L. Rivett Reed et dation al. *6 opinion delivered the of the Court. Ginsburg
Justice presents question concerning important This case an operation provisions of the citizen-suit of the Clean Water Congress Act. authorized the federal district courts person entertain Clean Act “a or Water suits initiated adversely persons having may an interest which is or §§1365(a),(g). impel affected.” 33 U. com- S. C. To future pliance may injunc- prescribe with the aAct, district court alternatively, additionally tive relief in such suit; a may impose penalties payable court States the United 1365(a). § Treasury. In the suit Act citizen Clean Water injunctive us, now before the District Court determined that inappropriate relief was the in- defendant, because the after litigation, compliance stitution of the achieved substantial Supp. with the discharge permit. terms of its 956 F. (SC 1997)* pen- did, The court assess a civil however, alty $405,800. Id., at 610. The “total deterrent effect” penalty of the adequate would be to forestall future vio- taking lations, the court reasoned, into account required plaintiffs defendant “will be reimburse significant legal amount of has, itself, fees and incurred significant legal expenses.” Id., at 610-611. Appeals
The Court of vacated the District Court’s order. (CA4 1998). 149F. 3d 303 appel- moot, The case became complied late court folly once the declared, defendant with permit appeal the terms of its and the failed to “[C]ivil equitable denial penalties payable to the relief government,” Appeals stated, the Court of not re- “would any injury dress at 307. Id., Plaintiffs have suffered.” Nor attorneys’ were Appeals noted, order, fees in Court plaintiffs qual- because absent relief on the merits, could ify prevailing parties. Id., n. 5. judgment Appeals.
We reverse the Court appellate concluding court erred in suitor’s citizen claim for civil must when the be dismissed as moot *7 litigation, of the has defendant, albeit after commencement compliance. directing of suit on In dismissal come into incorrectly grounds Appeals con- of mootness, of Court bring g., e. see, suit, case law on initial to flated our Environment, U. S. 83 Better 523 Steel Co. Citizens for (1998), postcommencement mootness, with our case law on g., City 455 S. Mesquite Castle, Inc., U. see, v. Aladdin’s e. of allegedly voluntary defendant’s cessation A ordinarily a to moot case. does suffice unlawful conduct poten- mispereeived Appeals the remedial also Court may al- penalties. serve, as an tial of civil Such injunction, and future violations ternative to an to deter thereby injuries prompted a suitor citizen redress the litigation. to commence
I A (Act), Congress Act also 1972, enacted Clean Water Act, Pollution Control 86 Stat. known as the Federal Water § seq. 402 of 33 U. C. 1251 et Section 816, amended, S. § provides by the issuance, for the Act, 33 U. S. C. Agency of the Environmental Protection Administrator (EPA) Dis- States, of Pollutant or authorized National (NPDES) charge System permits. NPDES Elimination discharge pollutants, permits impose on the limitations monitoring reporting require- and establish related safety of the improve ments, in order the cleanliness permit Noncompliance constitutes Nation’s waters. with 1342(h). § violation of the Act. 505(a) § any limitation a suit to enforce Act, Under by any permit may brought de- “citizen,” in an NPDES be having is person persons an interest which fined as “a or 1365(a), §§ (g). may adversely C. affected.” Sixty days initiating however, suit, before a citizen give alleged violation would-be notice of the must alleged oc- violation EPA, to the the State in which 1365(b)(1)(A). § “[T]he alleged curred, and the violator. op purpose alleged give of notice it an violator portunity bring complete compliance itself with the into unnecessary Act and thus ... render a citizen suit.” Gwalt ney Bay Chesapeake Foundation, Ltd. v. Smithfield, (1987). Accordingly, Inc., 484 U. S. we have held 505(a) § statutory standing lack citizens under to sue complaint for violations that have the time the ceased *8 Id., filed. at 56-63. The Act also bars a citizen from suing already if the EPA or commenced, has State “diligently prosecuting,” and is an enforcement action. 1365(b)(1)(B). § U.S.C. proceed-
The Act authorizes district courts in citizen-suit ings injunctions to enter penalties, and to assess civil which 1365(a). § payable Treasury. are to the United In States determining any penalty, the amount of the district court must take into account “the seriousness of the violation (if or resulting any) violations, the economic benefit from any history any good-faith violation, violations, such comply applicable requirements, efforts with the the eco- impact penalty nomic on the violator, and such other 1319(d). § justice may require.” matters as addition, In “may court litigation (including award costs of reasonable attorney fees) expert and any prevailing witness sub- stantially prevailing party, whenever the court determines 1365(d). § such appropriate.” award is B In defendant-respondent Laidlaw Environmental (TOC), bought Services Inc., a hazardous waste incinerator facility in Roebuck, South Carolina, included waste- (The water plant. changed company treatment has since Safety-Kleen (Roebuck), its name to simplicity Inc., but for we will refer throughout.) Shortly to it as “Laidlaw” after acquired facility, Department Laidlaw the South Carolina (DHEC), acting and under of Health Environmental Control 1342(a)(1), § permit granted an Laidlaw NPDES 33 U. S. C. authorizing company discharge into the treated water Tyger permit, effective on River. The which became North discharge January placed 1,1987, on sev- limits Laidlaw’s including particular rele- pollutants river, eral into the —of extremely mercury, pollutant. an toxic vance to this case— toxicity, temperature, regulated permit flow, The also imposed facility, monitor- pH from the and of the effluent ing obligations. reporting began discharge permit, Laidlaw it received its
Once waterway; repeatedly, pollutants Laidlaw’s various into the discharges permit. partic- exceeded the limits set technological experimenting fixes, despite with several ular, stringent consistently permit’s 1.3 meet the Laidlaw failed to billion) daily average mercury ppb (parts per on dis- limit charges. Laidlaw had District Court later found that mercury on 489 between violated the limits occasions Supp., and 1995. F. at 613-621. *9 the April plaintiff-petitioners 1992, Friends
On (FOE) Action Net- Earth Local and Environmental Citizens (referred (CLEAN) collectively opinion, in this Inc. to work, joined together plaintiff-petitioner Club, as Sierra with later “FOE”) necessary step institu- preliminary to the took the notifying They litigation. sent letter to Laidlaw tion against company of to a citizen suit the their intention file 505(a) requisite § expiration the of the under of the Act after 60-day Laid- period, e., after notice i. on or June lawyer DHEC DHEC to ask whether law’s then contacted against Dis- filing Laidlaw. The would consider a lawsuit request- reason trict Court later found that Laidlaw’s ing against bar FOE’s it was to that DHEC file a lawsuit through operation C. proposed of 33 U. S. citizen suit (SC 1995). 1365(b)(1)(B). § Supp. 470, DHEC 890 F. agreed company’s against law- Laidlaw; to file a lawsuit yer complaint filing paid and then drafted the for DHEC day 60-day the last no- 9,1992, fee. On June before FOE’s period expired, tice DHEC and Laidlaw reached a settle- requiring pay ment in $100,000 Laidlaw to and “ ” ‘every obliga- comply permit to make effort’ with its Id., tions. at 479-481. against June 12,1992,
On filed this suit Laid- FOE citizen 505(a) § noncomplianee alleging under Act, law with declaratory seeking injunctive permit the NPDES penalties. an relief and award of civil moved for Laidlaw summary judgment ground on the had that FOE failed demonstrating injury present fact, evidence in and therefore standing bring lacked III Record, Article the lawsuit. opposition Doe. No. 43. motion, to this submitted FOE deposition testimony affidavits and from members 41-51). (Exhs. organizations. Record, Doe. No. The record before the District affidavits Court also included organizations’ sup- from the members submitted FOE port injunctive preliminary of an earlier motion for relief. (Exhs. 5-10). examining Record, Doc. No. After evi- summary judg- dence, District Court denied Laidlaw’s “by finding very ment motion, of mar- slimmest —albeit gins” bring App. FOE had suit. —that (Tr. (June (CA4), pp. Hearing No. 97-1246 207-208 39-40 30,1993)). ground
Laidlaw also moved to dismiss the on the action the citizen suit was barred under 33 U. S. C. 1365(b)(1)(B) § prior against company. DHEC’s action *10 appearing joined .States, curiae, United as amicus FOE opposing in analysis the motion. After an of the extensive Laidlaw-DHEC settlement and under the circumstances which it was reached, the held District Court that DHEC’s against “diligently prosecuted”; action Laidlaw had not been consequently, pro- the court allowed citizen suit to FOE’s after Supp., record indicates
eeed. 890 F. at 499.1 The Court ren- but before the District suit, FOE initiated the discharge mercury judgment, dered violated Laidlaw Supp., permit F. at 621. The limitation in its 13 times. 956 committed 13 had District Court also found Laidlaw during period. monitoring reporting violations this and 10 mercury discharge Id., violation at 601. The last recorded January complaint long was filed in occurred after years judgment Id., two but about before was rendered. at 621. January judg- issued its 22, 1997,
On the District Court (SC). had Supp. ment. It that Laidlaw 956 F. found of its gained result a total economicbenefit of $1,092,581 mercury period noncompliance dis- extended with charge concluded, permit. in court Id., limit its at 603. The adequate in penalty $405,800 that a was however, civil 1319(d). § light guiding listed 33 U. S. C. factors Supp., particular, Court stated F. 610. In the District penalty taking appropriate that the lesser into account was reaching judgment's "total deterrent effect." will be determination, the court "considered that Laidlaw required plaintiffs significant reimburse amount legal grant Id., fees." declined to at 610-611. The court request injunction injunctive stating relief, FOE’s an inappropriate was been in substantial because "Laidlaw has compliance parameters permit with all since its NPDES August Id., least 1992.” at
1The District Court com noted that “Laidlaw drafted the state-court plaint itself, and settlement agreement, paid Sled the lawsuit against the Sling Further, fee.” 890 F. at 489. Supp., agreement “the settlement haste, between DHEC and Laidlaw into with unusual was entered without Ibid. The court giving the Plaintiffs to intervene.” opportunity found “most persuasive” imposing penalty the fact that “in $100,000 Laidlaw, calculate, recover, against or even to DHEC failed to the economic benefit its complying per that Laidlaw received with Id., mit.” at 491.
179 judg- penalty appealed FOE Court’s civil District arguing penalty inadequate, did not but ment, that the was injunctive Laid- appeal declaratory relief. the denial of or cross-appealed, things, arguing, among that FOE law other standing bring action lacked to and that DHEC’s the suit litiga- qualified diligent prosecution precluding as a FOE’s participate amicus tion. The United to States continued support curiae of FOE. July Appeals 16,
On for the Fourth Cir- 1998, Court of Ap- judgment. cuit of issued its 303. The F. 3d Court peals initially deciding had assumed without that FOE standing bring to but went on at n. action, id., appellate court hold the case had become moot. stated, first, that of the elements Article III —in- jury, every redressability persist at causation, —must stage review, Id., of at or else becomes moot. the action Citing Appeals Co., our of decision in Steel the Court only reasoned that the ease because “the had become moot remedy currently [FOE] penalties payable available to —civil any [FOE has] government not redress —would suffered.” 149 F. court therefore va- 3d, 306-307. The cated District order and remanded with instruc- Court’s Ap- tions dismiss footnote, the action. In a of Court peals added that “failure to relief on the merits FOE’s obtain [its] recovery precludes any claims attorneys’ or fees litigation only other costs because an award is available such to a ‘prevailing substantially prevailing party.’” Id., 1365(d)). § 307, 5 (quoting n. 33 U. S. C.
According Appeals Laidlaw, after the issued Court its granted decision but before this certiorari, the en- Court tire facility permanently incinerator in Roebuck closed, was put discharges up dismantled, sale, and all from facility permanently Respondent’s Suggestion ceased. Mootness 3. granted (1999),
We certiorari, U. to resolve the S. inconsistency between the Fourth in this decision Circuit’s *12 Appeals, of
case the decisions Courts and of several other per compliance with which have that a its held defendant’s litigation not moot mit after the commencement of does g., See, e. Atlantic claims for civil under the Act. Casting Legal Co., 116 Die Foundation, States Inc. v. Stroh (1997); (CA7), 522 U. 981 Natu denied, F. 3d cert. S. 814, 820 Rfg. and v. Council, ral Resources Inc. Texaco Defense (CA3 1993); Mktg., 493, F. 3d 503-504 Atlantic States Inc., Tanning Legal Corp., 993 Foundation, Pan American Inc. v. (CA2 1993); Legal F. 1020-1021 Atlantic States 2d Tyson Foods, 1128, 1135— Foundation, Inc., Inc. 897 F. 2d v. (CA11 1990).
II
A
case-or-controversy
limitation on fed
Constitution’s
judicial
underpins
authority,
eral
both our
Ill, §2,
Art.
standing
jurisprudence,
in
and our
but the two
mootness
quiries
respects
proper
differ in
critical to the
resolution
separately.
case,
Because
so we address them
Appeals
persuaded
Court of
had become
was
that the ease
deciding
simply
held,
moot and
so
assumed without
Eng
standing.
FOE
initial
had
See Arizonans
Official
(court
(1997)
may
Arizona,
lish v.
assume
43, 66-67
520 U. S.
standing
analyze
deciding
without
exists in order to
mootness).
Appeals
But because we hold that the Court
declaring
obligation to
moot,
erred in
we have an
case
standing
assure
Article
ourselves that FOE had
III
litigation.
question
outset of the
We therefore address
standing
turning
before
to mootness.
Lujan
504 U. S.
560-561
Wildlife,
Defenders (1992),
satisfy
require-
standing
we held
Ill’s
that, Article
(1)
“injury
an
ments,
must show it has suffered
(a)
(b)
or
particularized
fact” that
actual
is
concrete and
(2)
injury
conjectural
hypothetical;
imminent, not
fairly
challenged
defendant;
traceable to the
action of
(3)
likely,
merely speculative,
opposed
it is
that the
will be redressed
decision. An associ
a favorable
standing
bring
ation has
suit
behalf of its members
on
when its members
otherwise have
to sue in
would
right,
germane
their
to the
own
the interests at stake are
organization’s purpose, and neither the claim asserted nor
requested requires
participation
the relief
of individual
Washington
Apple
members in the lawsuit. Hunt v.
State
*13
Advertising Comm’n,
The relevant III of Article injury injury however, is to the environment but to the plaintiff. upon To insist than the latter former rather (as part standing inquiry as in the dissent essence 199-200) post, higher does, at is to raise the hurdle necessary showing than the on the merits in an for success alleging noncompliance permit. action Fo- with an NPDES cusing properly injury plaintiff, on to the Court District found that had FOE to estab- demonstrated sufficient (Tr. (CA4), standing. App. lish at 207-208 No. 97-1246 39-40). Hearing example, Kenneth Lee For FOE member Curtis averred in affidavits he lived a half-mile from that facility; occasionally Laidlaw’s that he drove over the North Tyger polluted; River, and that it looked and smelled and camp, that he would picnic like to and near fish, swim, and the river between 8 and 15 downstream from the facil- miles he do so did when he was but would not ity, teenager, because he was concerned water was polluted by (Exhs. 42). 41, Record, Laidlaw’s Doc. No. 71 discharges. Curtis reaffirmed these statements in extensive deposition like to For he testified he would testimony. example, fish in he as a but that he the river at a used specific spot boy, would not do so now of his concerns about Laidlaw’s because Ibid. 33). (Exh. 52-53; Exh. discharges. to similar effect. Other members evidence presented that she lived CLEAN member Patterson attested Angela before two miles from the Laidlaw facility; operated walked, waded in birdwatched, she facility, picnicked, of the natural River because the North along Tyger activ- area; that she no in these beauty longer engaged about ities in or near the river because she was concerned harmful effects and that she and from discharged pollutants; her a home the river husband would like to near purchase *14 so, but did not intend to do because of Laidlaw’s dis- part 10). (Exh. Record, 21 member Doc. No. CLEAN charges. Pruitt lived from Judy averred that she mile one-quarter fish, hike, Laidlaw’s and would like to facility picnic along ac- River, North but has from those refrained Tyger 7). Ibid. (Exh. of the POE tivities because discharges. Linda lived 20 miles from member Moore attested that she Roebuck, south of and would use the North River Tyger Roebuck and the it for recreational land pur- surrounding contained were she not that the water concerned poses (Exhs. Record, 45,46). harmful Doc. No. 71 pollutants. hike, that she would her testified at Moore deposition, length in the river were and drive near or swim, boat, picnic, camp, (Exh. Ibid. her not for concerns about illegal discharges. 72). Lee at- 29, 36-37, 62-63, CLEAN member Gail had a home, tested that her is near Laidlaw’s facility, which the facil- lower value than similar homes located farther from accounted and that she believed the discharges ity, pollutant (Exh. 9). discrepancy. for some of Record, Doc. No. Sharp Sierra Club he member Norman averred that had approximately canoed miles downstream Laidlaw facility Tyger would like canoe in the North River discharge point, closer to Laidlaw’s but did not do so because pollut- he was concerned that water contained harmful (Exh. 8). ants. Ibid.
These sworn as the District deter statements, Court adequately mined, documented in fact. have held We allege injury plaintiffs adequately that in fact environmental they they per when aver use the affected area and are sons “for whom the aesthetic and recreational values of the activity. challenged area will be lessened” Sierra Morton, Club v. 405 S. U. See also Defend (“Of ers S., course, 504 U. at 562-563 the desire Wildlife, species, purely to use or observe an animal even for esthetic purposes, undeniably cognizable purposes interest for standing.”). Lujan
Our
Federation,
decision in
v. National Wildlife
(1990),
contrary.
Laidlaw if had next even FOE penal- injunctive standing to seek civil seek it lacked relief, injury but redressabil- ties. Here the asserted defect is ity. private plaintiffs, penalties Civil to offer no redress argues, they paid Government, Laidlaw because are to the plaintiff standing and therefore a can never have to citizen seek them. right plaintiff
Laidlaw is demonstrate to insist that a must standing sought. g., separately e. See, for each form relief Lyons, plain- (notwithstanding S., at 109 the fact that standing standing pursue damages, tiff had to he lacked relief); pursue injunctive Casey, see 518 U. S. also Lewis (1996)(“[Standing gross.”). dispensed 343, 358, n. is not facing ongo- wrong plaintiffs But it is to maintain that citizen ing penalties. violations have civil never seek recognized
haveWe on civil numerous occasions that “all penalties have some deterrent effect.” Hudson v. United (1997); States, 522 g., Department U. 93, 102 also, S. see e. (1994). Revenue Mont. Ranch, 767, 778 v. Kurth 511 S.U. specifically, Congress More has found that civil Clean promote Water Act cases do more than immediate compliance limiting the defendant’s economicincentive to delay permit they its limits; attainment of deter future also congressional judi violations. This determination warrants respect. history cial legislative attention “The Gongress Act reveals that court to con wanted the district sider the need for deterrence, retribution and in addition [The penalties.... imposed restitution, when it district may] by basing pen court seek to deter future violations alty on impact.” its economic States, Tull v. United 422-423 scarcely
It can who is in- that, doubted jured illegal or faces the due con- threat of future ongoing effectively duct suit, at the time of a sanction that *17 186 prevents provides a its recurrence
abates conduct and description. To penalties fit that form of Civil can redress. they discontinue encourage defendants to the extent that committing future them from current violations and deter injured they plaintiffs are citizen who ones, afford redress to ongoing consequence un- a or threatened with conduct. lawful availability argues rather than is
The dissent that it the any particular imposition penalties of civil that deters the continuing pollute. at 207-208. This polluter Post, to from ways. argument First, it overlooks mark two misses the imposition; interdependence availability a of the that it will has it is credible threat no deterrent value unless Congress to con- Second, it is reasonable for be carried out. bring penalties in fact an does clude that actual award civil significant quantum over and above with it a of deterrence by prospect penalties. A what achieved the mere of such is may may by the exist- polluter not be would-be or dissuaded remedy once hit in on books, ence of a but a defendant again.2 surely polluting pocketbook its will think before twice may point recognize which the deter- there at We penalties so insubstan- of a claim for becomes rent effect standing. support citizen or it cannot tial so remote that easy vanishing point to ascertain is not fact that this power such deterrent does not detract from the ordinary Frankfurter’s observations in the case. Justice pen work for civil that there was little deterrent suggests The dissent by Laidlaw brought against the lawsuit alties to do this case because top “near the DHEC of deterrence to already pushed had level Post, spe Court’s ignores This the District suggestion graph.” DHEC was far too Laidlaw and finding penalty agreed by cific that the thus noncompliance, low to remove Laidlaw’s economic benefit from F. inadequate Supp. was deter future violations. 491-494, 497-498 (SC 1995). when one re look farfetched begins especially And fee, lawsuit, paid filing calls prompted that Laidlaw itself the DHEC 176-177, 178, n. 1. supra, and drafted See complaint. nearly years ago, made in Court, different context
hold true here as well: adaptation policy of means “How to effectuate —the
legitimately sought intractable ends—is of most one legislative problems. proscribed conduct Whether triple damages qui or to be deterred tarn action or merely by injunction, prosecution, criminal or de *18 by contract, some, fense to actions or of these all, in legisla in remedies matter within the combination, is a range Judgment ef ture’s of the deterrent choice. on armory can weapons fect of the the law various in the of lay Tigner Texas, 310 little claim to scientific basis.” (1940).3 141, 148 prin- explore In this case we need not limits of the outer ciple sup- penalties provide that to civil sufficient deterrence port redressability. sought by penalties Here, civil FOE likely, as carried with them a effect that made it deterrent opposed merely penalties speculative, to would re- that the injuries by pre- abating dress FOE’s violations and current venting reasonably future ones—as found the District Court penalty Supp., when it a at $405,800. assessed of 956 F. 610-611. reasoning
Laidlaw contends that our in of decision plaintiffs Steel Co.directs the have no conclusion that citizen standing penalties disagree. seek to civil the Act. We under standing Steel Co.established that citizen suitors lack to seek penalties violations that abated the time have suit. specifically S., 523 U. at 106-107. We noted in allegation any case that complaint there was no continuing or imminent for such violation, no basis allegation appeared an Id., to at see also 108; exist. Gwalt (“the ney, sought S., at 59 to addressed harm 3In Tigner Court rejected to a statu equal protection challenge an tory provision from the exempting agricultural producers reach Texas antitrust laws. not in the future, or the
the citizen suit lies in the present unlike short, In held that Steel Co. past”). private plaintiffs, to assess Government, the Federal not sue penalties may case in that did not but our decision violations, wholly past for violations the issue of to seek reach standing and that could at the time of the are complaint ongoing future if continue into the undeterred.4 met, the dissent is not redressability requirement In that the insisting D., That 410 U. S. heavily relies on Linda R. S. v. Richard S., mother of an out-of- misplaced. reliance is In Linda R. sorely a criminal attorney bring child filed suit a district wedlock to force support. failure to child prosecution against pay absentee father for Id., this ex to seek that the mother lacked finding remedy, special drew to “the status traordinary the Court attention id., its limited prosecutions system,” carefully criminal our nonenforcement holding challenge [the of] context “unique statute,” id., Furthermore, the relief redressability, criminal at 617. which, successful, sought in R. if would automati prosecution Linda S.—a *19 term, id., 618, cally at with jail land the father in for a fixed delinquent scarcely remedy predictably negative earning power effects on his —would the regard, the lack In this Court plaintiff’s support payments. of child whereby ‘keeps contrasted “the civil model the defendant the contempt to com keys jail may the in his own be released whenever he pocket’ contention, at plies post, with his The legal obligations.” Ibid. dissent’s 204, is, R. S. to “precisely that the exists here” as in Linda same situation least, the say extravagant. S.,
Putting R. broader aside its reliance on Linda the dissent’s mistaken charge citizen carry “grave that suits for civil under the Act penalties 202, implications for to us over- governance,” post, democratic at seems Certainly drawn. the the dis- Federal Executive Branch does not share sent’s authority view that such its to enforce the law. In dissipate suits fact, Department the of citizen suit from the Justice has endorsed this Court, outset, FOE submitting amicus of in the District support briefs 177, the As we Appeals, Court of Court. See at 179. supra, this already noted, 175, supra, have Government retains the at the Federal power to a own 38 undertaking foreclose citizen its action. suit 1365(b)(1)(B). § U. S. C. a opposes And if the Branch particular Executive suit, citizen the to “intervene statute allows the Administrator of the EPA as a matter of views to the attention right” and the Government’s bring 1365(c)(2). § of the court.
189 B bring to standing III that under Article Satisfied FOE had question of mootness. action, this we turn only finding this The of mootness in conceivable for basis voluntary achievement case is Laidlaw’s conduct—either its by August compliance of with its NPDES substantial permit facility. of the or its more recent shutdown Roebuck voluntary of a It is well settled “a cessation defendant’s challenged practice deprive federal court its does City power practice.” legality to determine Mesquite, “[I]f courts would S., did, U. compelled ‘[t]he be to leave . defendant. . free return ways.’” (citing Id., his old States v. 289, n. 10 United (1953)). Co., W. T. Grant In accordance 345 U. S. principle, with we have announced de- standard termining whether a case has mooted the defend- been voluntary might ant’s stringent: conduct is “A become case subsequent absolutely ifmoot events made it clear allegedly wrongful reasonably ex- behavior could not be pected Phosphate to recur.” v. Concentrated United States Export “heavy Assn., Inc., 393 The challenged persua[ding]” burden of con- court that again reasonably expected up duct cannot lies to start party asserting with the Ibid. mootness. Appeals disposition by justified Court its mootness plaintiffs
reference to Co., Steel which held citizen lack wholly past seek violations. relying Appeals Co., on Steel confused moot Court *20 standing. ness with given understandable, The confusion is repeated this Court’s statements that the doctrine moot ness standing can be described as set in a “the doctrine requisite personal time frame: The interest that must exist at litigation (standing) commencement of the must con (mootness).” throughout tinue its existence Arizonans for English, (quoting 520 S.,U. 22 States 68, n. United Official (1980), Geraghty, Parole Comm’n v. 388, 397 in turn The Who Constitutional Monaghan, Adjudication: quoting (internal (1973)) Yale L. J. When, quotation omitted). marks on the
Careful reflection exceptions long-recognized however, of mootness mootness, reveals that the description As as set in time is not a frame” “standing comprehensive. a noted, that its defendant claiming voluntary compli just ance a burden showing moots case bears formidable behavior is clear absolutely allegedly wrongful to recur. Concentrated could not reasonably expected Phosphate Export Assn., contrast, S., 393 U. at 203. By a it is the lawsuit to force plaintiff’s brought compliance, that, if un burden to establish demonstrating by standing checked the defendant’s wrongful litigation, allegedly “threat will occur or and that the continue, behavior likely v. Arkan Whitmore ened certainly [is] impending.” sas, (1990) (citations 149, 158 495 U. and internal S. quotation Lyons, omitted). noted, marks we held Thus, in already a lacked initial to seek an injunction a because the enforcement of chokehold against policy police threat he could not that he faced a realistic credibly allege S., from the at 105-110. Elsewhere arising policy. in the noted morato however, we opinion, eitywide rium on chokeholds —an action that diminished police surely slim likelihood that individual already particular any would be not have mooted an other choked by police —would wise valid the moratorium relief, claim for because injunctive Id., its les terms was not permanent. plain in which son of these cases is that there are circumstances resume) (or that a defendant will prospect engage conduct harmful be too may speculative support standing, but not too overcome mootness. speculative
Furthermore, set in if mootness were “standing simply time that arises when the frame,” mootness exception defendant’s repeti- unlawful activity “capable allegedly for exam- tion, When, review,” could not exist. yet evading *21 pie, mentally challenging patient a a files lawsuit disabled postcom- segregated her confinement in a her institution, plaint community-based program to a will not moot transfer (1999), 594, action, C., Olmstead v. L. 527 S. n. U. standing despite the fact initial that she would have lacked Standing complaint had she filed the ad after the transfer. standing exception; mits of no similar if lacks dispute the time the action fact that the commences, the capable repetition yet evading will entitle the review complainant judicial Co., to a federal forum. See Steel (“ exception disputes capable S.,U. 109 ‘the mootness yet dispute repetition evading review... will not revive ”) (quoting became moot which before the action commenced’ (1991)). Geary, Renne v. S. acknowledged
We the distinction between mootness standing recently most in Steel Co.: injunctive argues
“The . that the United States . . relief does constitute is a remediation because ‘there [future] presumption when defendant voluntarily activity response illegal has ceased its litigation,’ complaint is even if that occurs before a ‘pre- This filed.... a sword makes out of a shield. sumption’ applied Government refers to has been who, refute assertion of mootness a defendant complaint alleges present when sued in a or threat- injury, activity.... complained-of ened It is ceases the pre- unacceptable an immense and stretch to call the sumption allegation of into service as a for the substitute present injury upon or threatened which initial must be at S., based.” 523 U.
Standing among things, ensure, doctrine other functions that the scarce resources courts are federal devoted disputes parties those in which the have a concrete stake. In contrast, issue, time mootness is an the case has here) (as brought litigated, years. been often To *22 192 may prove stage the case at more
abandon
an advanced
frugal.
argument
wasteful
from
than
This
sunk costs5 does
jurisdiction
not license courts to
over cases in which
retain
continuing
parties plainly
interest,
one or both of the
lack a
parties
plaintiff pursuing
or a
a
as when
have settled
nonsurviving
g.,
v. Ode
See,
claim has died.
e. DeFunis
curiam)
(1974)
(non-class-action
gaard,
(per
Weinberger v. Romero-Barcelo, 456 U. S. injunctive necessarily Denial of relief does not mean that the prospect of district court has future concluded there no penalties Indeed, violations for it meant no civil deter. injunc- thing in such The District denied case. Court expressly tive based its relief, but award on Supp., the need for at 610-611. As deterrence. See 956 F. *23 post, notes, the aim to 205, dissent federal courts should “ framing required ensure The of relief no broader than precise Schlesinger the Comm. to facts.’” v. Reservists Stop War, 222 the 418 In accordance with 208, this aim, a district court in a Water Act citizen suit Clean may properly injunction an an conclude that would be exces sively remedy, continuing intrusive entail because could superintendence permit a holder’s federal activities permit process court—a burdensome holder to court City Mesquite, (although alike. See at 289 S., 455 U. of voluntary challenged practice defendant’s of cessation “[s]uch important does not case, moot the is an abandonment bearing question factor on the a exer whether court should power enjoin renewing cise its the defendant from practice”). supplemental suggestion
Laidlaw also in a asserts, of facility, mootness, that the closure of its Roebuck which took place Appeals after decision, the Court of issued mooted its facility closure, case. The Laidlaw’s earlier achieve- like compliance permit requirements, ment substantial with its might only ease, moot the if but —we once more reiterate — absolutely one other these events made it clear that reasonably permit expected Laidlaw’s violations could not be Phosphate Export recur. Assn., S., Concentrated compliance 203. The effect of both Laidlaw’s and the fa- cility prospect on a of future violations is dis- closure puted points example factual matter. out, FOE —and does appear Laidlaw retains its contest—that Laidlaw 194 in the been aired issues have not
NPDES These permit. on remand.6 lower remain for consideration courts; they open C fees on FOE it is entitled to attorneys’ argues for pur that a be can “prevailing party” theory 1365(d) that trig §C. if it was the of 38 U. S. “catalyst” poses review, under a favorable outcome. In the decision gered con Circuit Court of noted that its precedent Appeals Hobby, Farrar (1992), 103 our decision in 506 U. S. strued 3d, at n. 5 307, of that 149 F. rejection theory. require C., & S-2 v. State Bd. Ed. N. S-1 21 F. 3d (citing County, Foreman v. Dallas (en banc)). (CA4 1994) Cf. (CA5 1999) dicta, F. that “[a]fter 3d (stating, Farrar . . . the of the catalyst theory continuing validity doubt”). in serious
Farrar
awarded
that a civil
acknowledged
rights plaintiff
nominal
under
damages may
party”
“prevailing
*24
§
cat
S.,
U. S. C.
506
case
no
1988.
U.
involved
was not
alytic effect.
that the issue
presented
Recognizing
Farrar,
for this
of
Court’s decision in
several Courts Appeals
concluded that Farrar
have
did not
expressly
repudiate
Marbley
Bane,
224,
F. 3d
234
See
v.
57
catalyst
theory.
Harrisburg Housing Authority,
Baumgartner
(CA2 1995);
v.
Shalala,
(CA3
Zinn
21
541,
1994);
F. 3d
v.
35 F. 3d
546-550
(CA7
1994); Little Rock School Dist.
Pulaski
273, 276
v.
County Special
#1,
(CA8
Sch.
2
260,
17
263,
F. 3d
n.
Dist.
Kilgour
Pasadena,
(CA9
1994);
1007, 1010
1995);
v.
53 F. 3d
6We note that
it is
from
far
clear that vacatur of the District Court’s
judgment
on
would be
to a
mootness
appropriate response
finding
of
appeal
about
lost
brought
voluntary
party
conduct of the
in the District Court.
Bancorp
See Co. v. Bonner Mall
Mortgage
(1994) (mootness
Partnership,
195 (CA10 1994); Teska, 942, Beard v. 31 3d Morris v. F. 951-952 (CA11 1999). Other Beach, West Palm F. 3d 1207 1203, 194 Appeals apply the cata Courts have likewise continued lyst theory notwithstanding Farrar. Paris v. United States Housing Dept. Development, F. 2d and Urban (CA1 1993); Against Westerville Citizens Tax Waste v. (CA6 1993). City School, 985 F. 2d premature, be It would the con- however, for us to address tinuing validity catalyst theory the context separate case. The from the one District in an order Court, imposed penalties against stayed Laidlaw, which it petition the time attorneys’ for a for fees until the time appeal expired ap- party appealed, had or, if until the either peal (describing was resolved. 149 F. order 3d, See staying attorneys’ petition). the'opinion time ac- fees companying penalties, its order on the District Court stated only that “this court has considered that Laidlaw will re- quired significant plaintiffs to reimburse for a amount legal “potential fees,” and referred fee awards.” 956 Supp., Appeals F. at 610-611. Thus, when the Court of ad- availability dressed the case, of counsel fees in this no order awarding denying was before it either fees. It is for Court, District Court, not this in the first instance address any request including for reimbursement of fees. costs,
[*] [*] [*] For judgment of the United States stated, reasons Appeals Court of for the Fourth and the reversed, Circuit *25 proceedings case is remanded for further consistent with opinion.
It so ordered. is Justice Stevens, concurring.
Although the a sufficient reason Court has identified rejecting Appeals’ the Court of determination, mootness important is not be moot also to note that the case would
196
gone
absolutely
respondent had
out
even if it were
clear
permit
posed
of
threat of future
violations.
business
no
judgment requiring re-
The District
a valid
Court entered
pay
penalty
spondent
to the United
$405,800
a civil
of
respondent
postjudgment
of
could ret-
States. No
conduct
voluntary
roactively
judgment. A
of
invalidate that
record
postjudgment compliance
justify a decision that
that would
any
injunctive
unnecessary,
relief
or even a decision that
injunctive
is now
would not warrant
moot,
claim for
relief
money judgment.
vacation
the valid
petitioners’
penalties would
Furthermore,
for civil
claim
respondent’s
absolutely
not be
even if
clear that
moot
it were
reasonably
expected
because
could
to recur
violations
compliance
permit
respondent
with its
achieved substantial
requirements
petitioners
complaint
be
their
but
after
filed
judgment.
the District
As the Courts
fore
Court entered
(other
below)
uniformly
Appeals
con
than
have
the court
voluntary
polluter’s
postcomplaint
an
cessation of
cluded,
alleged violation will
citizen-suit claim for civil
not moot a
penalties
claim for
even if it is sufficient to moot a related
injunctive
declaratory
is consist
This conclusion
relief.*
Act,
ent with the
which at
structure
Water
Clean
liability
permit
the time a
viola
taches
1319(d)
§
(“Any person
violates
tion occurs.
who
33
C.
U. S.
Inc.,
351,
Assn. v.
F.
356
Contracting,
Lake
Dresel
138
3d
*Comfort
(CA8 1998);
Foundation,
Casting
Stroh Die
Legal
Atlantic States
Inc. v.
Co.,
(1997);
Natural
(CA7),
denied,
814,
116 F. 3d
cert.
[certain permit provisions of the certain conditions Act or .”). limitations] subject penalty It be .. shall to civil penalties, which, of civil also consistent with the character analysis, equated purposes for be with mootness should declaratory punitive damages injunctive rather than with or 422-423 States, relief. See Tull 481 U. S. v. United postcomplaint No one contends that a defendant’s punitive damages; penal conduct could moot a claim for way. ties should be treated the same by the moot The cases cited in its discussion of Court injunctive declaratory requests ness issue all or involved Lyons, only Angeles Los one, relief. In 461 U. S. (1983), damages, did the and in that case the seek opinion inability injunctive makes it clear that the obtain impact damages Id., relief would have claim. no on the precedent, jurispru in 6, 109. n. There is no either our any provides dence, aware, or in other of which amI any support suggestion posteomplaint de factual velopments injunctive might declara moot a claim for or tory monetary relief could either moot a claim for relief retroactively money judgment. invalidate a valid
Justice Kennedy, concurring. questions
Difficult and fundamental are raised when we public private ask whether litigants, exactions of fines delegation power might Executive which inferable respon- from the permissible authorization, are in view of sibilities committed to the Executive Article II of the presented Constitution of questions the United States. petition identify in the for certiorari did these issues particularity; Appeals with and neither the de- Court ciding parties briefing the case nor the before this their specific Court subject. my devoted attention to view these matters are best reserved for a later case. With join opinion observation, I of the Court. *27 whom Justice Scalia,
Justice with Thomas joins, dissenting. by finding injury begins analysis in fact
The Court its by vague the on the of that are undermined basis affidavits express finding discharges Laidlaw’s District that Court’s then caused no environment. It demonstrable harm to the proceeds remedy marry wrong public in a private with to principles federal stand- union that traditional of violates ing thereby placed permitting in the law enforcement to be — Finally, suggests private of the Court hands individuals. to of a stake in the avoid mootness one needs even less requirements for outcome than the Court’s watered-down standing. initial I dissent from all of this.
1—1 jurisdiction, parties invoking have Plaintiffs, as the federal proof persuasion of the burden as to existence standing. Lujan 555, 561 504 U. S. v. Wildlife, Defenders of (1992)(hereinafter Lujan); FW/PBS, Dallas, 493 Inc. v. plaintiffs 215, 231 in this case fell far short of The demonstrating carrying injury in fact. their burden of testimony asserting enjoy- Court that their cites affiants’ Tyger to ment of the been diminished due North River has they polluted, and that “be- “concern” that the water was mercury lieved” that Laidlaw’s exceedances had reduced value of their These averments Ante, homes. at 181-183. carry plaintiffs’ demonstrating alone cannot burden of they particularized” have suffered a “concrete and in- jury, Lujan, allegations injury S., at 560. General may summary judgment pleading stage, suffice at the but at plaintiffs “specific support facts” their must set forth to pro Id., has where, here, claims. at 561. And the case “ judgment, specific ‘supported ceeded those facts must ” ibid, adequately (quoting trial,’ evidence adduced at Bellwood, 441 U. Village Gladstone, 91, 115, Realtors S. (1979)). are n. 31 affidavits themselves case, woefully “specific vague allegations short on facts,” and they injury are do make undermined the evidence ad- duced at trial.
Typically, plaintiff claiming injury an environmental due discharges argues in violation of the Clean Water Act discharges environment, harm the and that the harm injures environment him. This route barred *28 present in case, con however, since the District Court considering cluded after been all the evidence that there had proof environment,” “no demonstrated of harm to the (SC 1997), Supp. “permit F. 588, 602 at that violations any issue in in risk or this citizen suit did not result health “[a]ll harm,” ibid., environmental fail that available data ... discharges to show that Laidlaw’s actual have resulted Tyger harm River,” id., 602-603, to the North at and that quality necessary “the overall of the river exceeds levels support... water,” id., recreation in and on the 600. unproblematic
The Court finds these for stand- conclusions ing, showing “[t]he purposes because relevant for of Article standing... injury III is not to the environment but plaintiff.” Ante, to the correct, at 181. This statement is goes. certainly far as as We have held that demonstra- enough satisfy tion harm to the environment is not injury-in-fact requirement plaintiff demon- unless the can g., Lujan, personally supra, strate how he E. was harmed. In the course, however, normal a lack of demonstra- plainly ble harm to translate, the environment will as it does plaintiffs. into here, a lack of citizen demonstrable harm to possible perhaps plaintiff While it is that a could be harmed though even such a not, environment was would demonstrating articulating have the the na- burden of and injury. Ongoing ture of that “concerns” about the environ- “[i]t reality ment enough, are not of the threat of repeated injury standing inquiry, not that is relevant to the plaintiff’s Angeles subjective apprehensions,” Los Lyons, very 95, 107, least, At the S. n. support- present expect case, one would to see evidence decreasing ing regarding bald the affidavits’ assertions declining usage well as values, home recreational proposition Laidlaw’s improbable evidence for the that though to the are violations, environment, even harmless responsible Gladstone, somehow for these effects. Cf. supra, (noting at 115 could be established “convincing values was evidence” that decline in real estate conduct). here attributable to defendant’s Plaintiffs entirely rely attempt showing, have made at such a but no upon unexplained allegations unsupported affidavit “concern.” every deposed by
Indeed, Laidlaw one the affiants (in any inadequate) proposition cast into doubt the event subjective actually affected their conduct. “concerns” example, affidavit she Linda said in her Moore, for waterways it were use recreation if would the affected pollution. No. 71 Record, not for her concern about Doc. *29 (Exhs. 46). deposition she she testified in her that 45, Yet (when only she had been to the once in 1980 twice, river river) by someone who after visited lived and once (Moore Deposition suit was 62 23- Record, filed. Doe. No. 24). Similarly, claimed he was in- Curtis, Kenneth Lee who jured by being deprived activity river, at the of recreational admitted was “a that he had not been to the river since he (Curtis 38), Deposition, pt. p. kid,” 2, ibid. and asked when stopped visiting whether the reason he the river was because pollution, id., answered As to Curtis’s claim “no,” “looke[d] smell[ed] polluted,” that the river this condi- present, by surely tion, if caused Laidlaw’s dis- was not charges, according which to the District Court “did not any result 956 health risk environmental harm.” Supp., by F. were 602. The other affiants cited Court deposed, they but their affidavits state either that would (as polluted use the river if the court it were not or harmful (Exhs. not), subsequently 7, Record, found it is Doe. No. (which 9), polluted or said that the looks is also 8, and river 10). (Exh. incompatible findings), with the court’s ibid. “subjective nothing These affiants have established but apprehensions.” explicitly
The Court is correct the District Court standing “by very margins,” found slimmest —albeit (CA4), awfully and as App. “an close call.” in No. 97-1246 (Tr. (June 1993)). pp. Hearing 207-208 That 30, 39-40 finding, long however, 1993, cautious made in before was discharges court’s 1997 conclusion that Laidlaw’s did not recognized, harm previously the environment. As we have subject an plaintiffs standing initial conclusion that have is particularly proves to reexamination, if later evidence incon- sistent with Gladstone, atS., 115, conclusion. Wyoming 31; n. Oklahoma, 502 U. S. challenged injury appeal Laidlaw the existence of in fact on to the Fourth ques- Circuit, but that court did not reach the injury-in-fact tion. Thus no lower court has reviewed light issue in of the extensive that led the District studies Court to conclude that the harmed environment was not discharges. Laidlaw’s
Inexplicably, proceeds the Court is untroubled but this, to find though fact in the most casual fashion, as merely confirming analysis a careful made below. Al- though previously we have refused to find on based “conclusory allegations Lujan of an affidavit,” v. Na- (1990), tional Federation, 497 U. S. Wildlife Court is just content to today. By do accepting plain- *30 vague, tiffs’ contradictory, allegations and unsubstantiated “concern” about prove adequate injury environment as accepting and finding fact, them even in of a the face demonstrably environment was not harmed, the Court injury-in-fact makes the requirement a sham. If there are permit plaintiff violations, and a member of a environmental organization offending near the plant, lives it would be diffi- satisfy cult today’s not to lenient standard.
J—< i—f redressability requirement— treatment of the The Court’s unnecessary if it resolved which would have been correctly equally As injury-in-fact question cavalier. —is consisting petitioners allege ongoing above, discussed waterways and de- enjoyment of the affected of diminished injuries They allege property that these values. creased continuing But by permit violations. caused Laidlaw’s are recompense their remedy petitioners neither seek is In- injuries injunction against future violations. nor an past remedy statutorily specified "penalty” for stead, a Treasury. payable entirely to United violations, States Only redress Term, last we that such do held past any injury viola- suffered from citizen has Environment, Steel Co. v. Better tions. Citizens for finds the 106-107 nonetheless Court redressability distinguishing requirement here, satisfied allege petitioners ground this case Steel Co. on the says, ongoing penalties, payment will violations; remedy petitioners’ injury by deterring future violations penalty payable Ante, holds that a Laidlaw. at 185-186. It private suf- public harm, to the "remedies” threatened private fices to sustain a suit. holding precedent jurisprudence, and
That has no in our beyond takes this Court "cases controversies” Article to its III of the Constitution has entrusted resolution. appropriate, Even if it Article Ill’s moreover, were allow pri- requirement remediation to be indirect satisfied consequences public consequences penalty, vate those of a entirely speculative present are too in the case. The new expansions law that the Court makes—like all standing beyond limits—has the traditional constitutional grave governance. implications I shall dis- democratic points cuss these three in turn.
A (1973), plain R. D., Linda S. v. Richard 410U. S. 614 illegitimate sought, tiff, mother of an behalf of child, on her her similarly injunction self, child, and all situated, others an against discriminatory application of Art. 602 of the Texas Although provision Penal Code. made it a misde “any parent” support meanor for to refuse to his or her minor years age, only against children under 18 of it was enforced parents. married refusal, That contended, de prived equal protection her and her child of the of the law by denying upon them the statute deterrent effect father’s support obligation. failure to fulfill his Court standing. held that there was no Article III no There was relationship,” alleged “'direct’ it said, “between the “[tjhe sought adjudicated,” and the prospect claim to be since prosecution payment will, at least in the future, result support only speculative.” can, best, at at Id., termed “[Our cases] jurispru that, demonstrate in American private judicially cognizable dence at least, a citizen lacks a prosecution nonproseeution interest in the of another.” Id., at 619.
Although “logical the Court in Linda R. S. recited the (1968), analysis nexus” Flast Cohen, which has since into desuetude, fallen “it is clear that was denied . . . because of the unlikelihood that the relief re quested appellant’s injury.” would redress claimed Duke Study Group, Power Inc., Co. v. Carolina Environmental 69, n. “logical S. There was no nexus” between nonenforcement of the statute and Linda R. S.’sfail support payments ure to prospect “[t]he receive because prosecution payment “spec support” will... result in was supra, say, Linda R. ulative,” S., 618 — that is was uncertain prevent injury.1 whether the relief would Of
1The decision in Linda R. S. turn, today’s did not opinion imagina tively on suggests, the father’s if im inability pay short-term support prisoned. Ante, n. 4. only upon impris- The Court’s comment *32 princi- precisely
course the same situation exists here. private ple jurisprudence “in ... a citizen that American prosecution judicially cognizable interest in the lacks prosecution applies to nonproseeution of no less another” prosecution payable than to to the State penalties owing criminal to the State. though only purpose and opinion reads the
The Court’s as redressability the requirement to of the is assure effect that a court plaintiff the benefit the relief receive some of plaintiff were, a tort orders. That is not If it federal so. damages fearing repetition ask for tort could only well, paid on himself but to other victims theory damages least some de- would have at those preposterous terrent effect a suit is beneficial to him. Such because that is the business the “remediation” traditional Anglo-American specifically to the tailored courts relief plaintiff’s injury, any some of relief that has and not sort “generalized plaintiff. incidental as a benefit to Just satisfy citizenry grievance” that affects the entire cannot injury-in-fact aggrieves requirement though even it along everyone Lujan, S., at plaintiff else, 504 U. with see remedy all future generalized also a that deters 573-574, so satisfy activity against persons the re- cannot unlawful all (among requirement, though other mediation even deters against activity things) repetition particular unlawful particular plaintiffs. these traditionally against af prospective harm is
Thus, relief by way injunction, scope limited of which is forded of an Casey, scope injury. of the Lewis v. threatened (1996);Lyons, 105-107, at 357-360 461 U. S. by giving seeking an indi n. 7. that tradition overturn that, it would not contempt, for civil onment was unlike imprisonment then continued: The Court payment. condition the father’s upon release e., in the future”—i. will, upon at “The least prospect prosecution can, at of support completion imprisonment payment —“result S., S., R. Linda best, be termed only speculative.” power public remedy, vidual invoke Con gress precisely has done what have said it cannot do: we public convert an “undifferentiated interest” into an “indi right” Lujan, supra, 577; vidual vindieable in the courts. Co., Steel redress S.,U. at 106. The sort of scattershot today approved makes nonsense of our statement Schles *33 inger Stop War, Reservists Comm. S. (1974), requirement injury that the in fact “insures framing required precise of relief no broader than particularized injury today facts.” A claim of future has pursuing generalized penalties been made the vehicle for past showing violations, a and threshold in has fact a become lever that will move the world.
B just my plaintiff’s As I have it view a discussed, is that public penalty desire to benefit from the deterrent effect of a past conduct can never con- suffice to establish a case or troversy of the sort known to our law. deterrent effect Such speak, “speculative is, so to as a matter of law.” Even if present were not so, however, the deterrent effect in the surely case speculative would as matter of fact. recognizes, satisfy The Court Article course, III, that to “likely,” opposed “merely speculative,” it must be as Lujan, plaintiffs’ injury, a favorable decision will redress supra, at 561. at ante, Further, See Court 180-181. recognizes penalties that not all deterrent effects all “explore will though meet this it declines to standard — adequate outer limits” of con- deterrence, ante, at 187. It present cludes, however, that in the case “the civil sought by FOE carried with them deterrent effect” that “likely [rather speculative” than] satisfied the standard. explain Ibid. opinion why There is little in the Court’s believes this is so.
The Court cites the District conclusion that the Court’s penalties imposed, pro- along anticipated awards, with fee 187; 956 F. “adequate Ante, deterrence.”
vided absolutely believe, how- Supp., no reason to at 611. There prevent adequate an in- this meant ever, that “deterrence occur.” jury plaintiffs would otherwise to these (much general not even deterrence statute does mention plaintiff) particular as harm to the less deterrence of future fixing consider court should one of the elements that the (That in, come if penalty. can of the element amount category matters of “such other all, last, under the residual 1319(d).) § justice may require.” The statute C. require of the “the seriousness does to consider court (if any) resulting violations, violation or the economicbenefit any good- any history violations, from the of such violation, requirements, applicable comply with the faith efforts to impact penalty [and] on the violator....” the economic Supp., The District meticu- F. at 601. Court Ibid.; see 956 *34 (a) (e) through portion lously the of discussed, in subsections spec- Penalty,” opinion one of those entitled each its “Civil (f) “Other factors, ified then —under subsection entitled and May Require,” “1. Laidlaw’s it discussed Matters As Justice Reopener “2. Recent Clause,” Failure to Avail Itself of the Mercury History,” Ever-Changing Compliance The “3. portion of Limit.” There is whatever —in this no mention degree opinion anywhere deterrence else—of plain- necessary particular prevent to these future harm opinion Court’s final Indeed, tiffs. neither the District (which statement) “adequate nor contains deterrence” question dealing preliminary opinion its earlier with the against Laidlaw previous whether lawsuit South Carolina’s suit, citizen “diligent prosecution” would bar constituted § 1365(b)(1)(B), any displayed awareness see 33 U. S. C. necessary plaintiffs was deterrence of future support standing. quote opinion however, The did, District earlier Court’s which approval passage a District case with from Court “ diseourag- began: penalties pollution ‘Civil to deter seek ing future function, violations. To serve this the amount of penalty high enough polluters the civil must be to insure that simply doing penalty cannot absorb the as a cost of busi ” App. Duffryn quoting ness.’ 122, PIRG Powell Termi (NJ 1989). Supp. nals, Inc., 720 1158, 1166 F. the Dis When Penalty” trict Court concluded the section its “Civil opinion together, “[t]aken with the statement that this court penalty, potential believes the above awards, fee and Laid- litigation expenses provide law’sown direct indirect ade quate under case,” deterrence the circumstances of this Supp., obviously general harking it F. was back to (and statutorily prescribed statement of what the factors justice may require” “as which in this case did not factors, deterrence) particularized generalized include or even were designed to achieve. It meant no more than that the court penalty prescribed believed the civil had the statu met tory standards. points Court previously out that we have said “‘all penalties effect,”’ have some ante, deterrent at 185 (1997)).
(quoting States, Hudson v. United 522 U. S. unquestionably general That is polluters true: As a matter, as a discharge class are deterred violating from limits availability penalties. of civil However, none of the cases single cites Court focused on the deterrent effect of a imposition particular on a lawbreaker. Even they less did question particular focus on the whether that (if any) ized enough deterrent effect in was to redress the *35 jury of a citizen required by in the sense Article III. They penalties pursued by government, all involved the by Department id., citizens. See at 96; Revenue Mont. of of (1994); v. Kurth 511 Ranch, U. S. 773 Tull v. United States, 412, 414 U. S. necessary inquiry
If the Court had undertaken the into significant plaintiffs’ injury whether deterrence of the feared “likely,” it something was would have had to reason like this: Strictly speaking, polluter by penalty no is deterred a for
past penalty pollution; of a he is deterred the fear pollution. virtually if nonexistent That fear will be future polluter prospective that all emissions violators knows given pass; an emis- are a free it will be substantial under reg- program which is here, sions such as federal scheme ularly notoriously higher when and it be even enforced; will regularly prospective polluter subject enforced such object charges program public has, here, as been pollution injunction; surely it will be near and a suit for polluter top graph prospective here, when, of the past already subjected penalties to state for the has been rely pollution. plaintiffs The on must deterrence which marginal present in case is the increase in the penalties be achieved Laidlaw’s fear future will past adding conduct. federal for Laidlaw’s marginal say zero; I cannot that this increase is for certain entirely say speculative but I can for certain plaintiffs’ make the difference between these whether it will going plaintiffs’ un suffering in the future these "likely” so is do fact, In the assertion that it will harmed. entirely speeulativeness of that result is farfetched. The greater speeulativeness we found excessive much than the Rights Organization, Ky. Simon v. Eastern Welfare 501(c)(3) § (1976), denying where held that we hospitals tax that refused charitable-deduction status to sufficiently likely indigents to assure future treat was not standing. indigent plaintiffs support treatment found greater speeulativeness we it is than And much supra, D., discussed excessive in Linda R. Richard S. v. prosecution prospect “[t]he where we said that 203-204, [for payment support can, nonsupport] . . result will. only speculative,” best, S., at 618. termed suggests, within sum, if this as the Court is, ease standing, impossible to it is central core of "deterrence” imagine possibly be. could what the “outer limits” expressed “outer limits” reluctance to define those Court’s *36 disguise only promulgated a to the fact serves has revolutionary permit the new doctrine of that will body public penalties civil be handed to entire to over by private enforcement interests.
C Article II of the commits it to the President Constitution faithfully to “take the Laws II, Care that Art. executed,” § provides specific persons 3, and all ex- methods which ercising significant power appointed, executive to be are §2. correctly II, Art. As concurrence Kennedy’s Justice conformity legislation question observes, the the argued with Article I, Court, II has not been like the —and do not address But no less III, II, it. Article than Article consequences government, has for the see structure of our Schlesinger, noting at is worth the S., 222, and it changes today’s in that structure which decision allows.
By permitting pursue penalties payable citizens to civil to Treasury, provide Federal the Act does not a mechanism any individual relief in sense, traditional but turns over private enforcing citizens function of the law. A plaintiff pursuing Clean Water Act acts as self-appointed Where, case, mini-EPA. is often significant is a association, national it has discretion choosing targets. enforcement the association is Once reported aware of a long it need violation, not look for an injured theory member, at least under the applies today. Court supra, See at And once the 198-201. target goes meaningful is chosen, the suit forward without public availability penalties vastly control.2 The of civil dis 2The Court out points that the Government allowed intervene ante, suit, 4; 1365(c)(2), § citizen see n. U. C. this power S. but court,” ante, “bring Government’s views to the attention 4,n. is meager substitute for the power to decide whether prosecution Indeed, will occur. according Chief Executive of the United States ability par intervene does no more than him on a with John place *37 210 citizen to the injury gives plaintiffs individual
proportionate to achieve is often used massive bargaining power —which environmen the defendant settlements support requiring The Pri Greve, tal See choosing. projects plaintiffs’ L. Rev. Law, of Environmental Tulane vate Enforcement to a a fine diverted Thus is pri 355-359 public vate interest. itself the citizen suit sure,
To be the EPA foreclose by may 1365(b)(1)(B). This allows § pub suit. U. S. C. bringing lic by authorities avoid enforcement only accepting private be under direction as to when enforcement should private of Elected taken —which is no bizarre. less constitutionally that to decide ficials are of their discretion entirely deprived all, a of suit violation should not be the given object See the enforcement should be decision postponed.3 1365(b)(1)(A) wait § need citizen only (providing after notice of the to the violation days giving government action). and before with This is the predictable proceeding use of inevitable of the Court’s consequence allowing remedies public wrongs. private
I—l H-i I—Í I a few dis- offer comments the Courts Finally, regarding cussion of claims moot reason whether FOE’s became Laidlaw’s substantial with the limits. compliance permit I do not with the conclusion that the Court reaches. disagree had Assuming plaintiffs pursue pen- (which not), alties in the first their claim instance did they Public, who can it Q. intervene —whether the Government likes or not— 1365(b)(1)(B). § when the United States suit. files 3The Court observes that “the does Federal Executive-Branch not share view that dissipate authority dissent’s such suits its to enforce Ante, law,” since has “endorsed this from the citizen suit outset.” course, n. Of history in doubtfiil and long uninterrupted cases upon Presidential the constitu acquiescence approval light and can shed tional understanding. approval by What we have acquiescence here — single passing administration —does not mention. deserve well not have been mooted Laidlaw’s might voluntary with the fact-intensive compliance permit, leaving remand, consideration on Court question open does, ante, at 193-194, seems sensible.4 In this dis- reaching however, the Court in a discus- position, troubling engages *38 of sion the distinctions between the doctrines of purported and mootness. I am as to this standing frankly why puzzled discussion at all. Laidlaw’s claimed is appears compliance within the bounds of our cessation” doc- squarely “voluntary Ante, trine, which is the basis for the remand. 193.5 4 issues, In addition to the also compliance and there re plant-closure mains open question on remand the whether the current suit was fore closed because the earlier suit the State “diligently prosecuted.” was 1365(b)(1)(B). § See 33 U. S. C. Nothing opinion disposes in the Court’s the issue. The that Laidlaw opinion finding notes the District Court’s Ante, itself a played significant facilitating role in the action. State’s 1, 178, 186, n. n. 2. there is no But whatever between incompatibility a defendant’s facilitation of suit and the diligent prosecution State’s —as prosecutions of who felons confess their crimes and turn themselves regularly entirely rights prefer demonstrate. Laidlaw was within to its action; suit to state enforcement private prefer if had such and ence it would have been that a State act within 60 prudent given must — days suit, receiving 1365(b)(1)(A), § notice given of citizen see number of agencies cases state to make its handle —for Laidlaw sure case not through did fall the cracks. South Carolina’s interest in the action was not a feigned last It with minute contrivance. had worked Laidlaw in resolving problem many for undertaken years, previously and had an administrative resulting enforcement action in a consent order. 890 (SC 470, 1995). filed an amicus P. Supp. 476 South Carolina has brief arguing allowing suits to state en despite ongoing citizen proceed forcement efforts “will provide opportunity citizens and federal judges to relitigate and actions of second-guess enforcement and permitting South Carolina and other States.” Brief for South Carolina as Amicus Curiae 5 Unlike Justice Stevens’ concurrence, for the Court opinion ap to pears recognize that a claim for is it is clear civil moot when that no future at the can hands defendant The occur. concurrence like traditional dam suggests penalties, remedies, ages injury. cannot be mooted absence threatened is analogy inapt. compensate Traditional are money damages payable ex- academic in an There is no reason interesting engage the differences between mootness standing cursus upon rule.6 in order to invoke this obviously applicable indeed, not even Because the discussion is not essential — decision, it is of limited relevant —to the Court’s significance. retreat I am the Court’s Nonetheless, too-hasty troubled by as “the doctrine from our characterization of mootness frame.” Arizonans Eng- in a set time for Official (1997). have re- Arizona, We lish v. 68, n. what is required litigation recognized peatedly is to what litiga- continue identical required essentially case or tion to There must abe justiciable controversy begin: stated, a ease is moot Article III. “Simply required by are no ‘live’ or when issues longer parties presented the outcome.” Powell lack a interest legally cognizable McCormack, A court may 395 U. S. *39 conduct, past for of which whether future harm is the harm subsists not; the (according threatened or civil are assessable to penalties privately Court) Where there is plaintiff, to deter threatened future harm to the proposition no threat to the he claim to deterrence. The plaintiff, has no true, moot holds of impossibility of violation does not the case future course, upon which do not rest civil-penalty government, for suits the is theory being prevented. the that some future harm particular 6 corrective to the attempts exposition The Court to its as a frame Ante, Circuit, standing.” Fourth which it claims “confused mootness with upon of rested nonjusticiability at 189. The Fourth Circuit’s conclusion view) correct, only remedy being (entirely my pur the belief that the injury. on civil appeal, sued would not redress FOE’s claimed penalties, (1998). 308, F. a conclu 149 3d 306 While this be characterized as might outset, from the standing pursue sion that FOE had no to civil penalties Circuit, characterized, as conclusion it can also be as the Fourth it was that, declaratory when to appeal judgment FOE declined denial (which injunction, and of the appealed inadequacy penalties only standing it had no moot. Given pursue) the case as a whole became private redress Court’s erroneous conclusion that civil can injury, it of both neither of necessi rejects course formulations —but them tates the Court’s academic the mootness and stand comparing discourse ing doctrines.
213 proceed subsequent if, initiation, an to its hear action controversy dispute present, loses “its as a live character advisory [the is] to avoid the kind that must exist if court opinions propositions v. 396 Beals, on abstract of law.” Hall (1969) curiam). (per U. v. New S. 48 also Preiser 45, See (1975); Thompson, kirk, 395, 401 422 S. 415 U. U. v. S. Steffel requirement a continu 452, 459,n. 10 Because ing controversy Constitution, case or derives from Liner (1964), may Inc., not be n. 301, 306, S. 3 Jafco, ignored Co., when Alaska S. inconvenient, United States v. S. (1920) (moot question be 113, decided, U. S. cannot “[hjowever be”), might sug convenient it the Court or, gests, compare ante, save “sunk with Lewis costs,” (“[Rea (1990) Corp., v. Continental Bank litigation sonable caution is needed to sure that mooted is be pressed solely forward obtain reimburse ... order to costs”). ment of sunk
It true that mootness has some added wrinkles that standing “voluntary lacks. One is the cessation” doctrine to which the Ante, Court refers. at 189. But it is inaccurate regard requirement aas reduction of the basic beginning genu that obtained at suit. A controversy just stages. ine must exist both And as the brought (by way declaratory initial suit be could suit judgment) actually plain before the defendant violated alleged rights, tiff’s so suit also the initial can continued *40 though stopped violating plain even the defendant has alleged rights. “voluntary tiff’s doctrine is cessation” nothing evidentiary more than an presumption that the con troversy alleged rights by reflected the violation of continues Similarly, to exist. Co., Steel 523 U. S., at 109. the fact that challenged we do not find cases moot when the conduct is “capable repetition, yet evading review” does demon requirements strate that standing for mootness and for differ. being <fWherethe conduct time has ceased for the recur, probability is a that it will
but there demonstrated controversy parties personal stake with a real-life between Honig Doe, v. 484 U. S. in the continues to exist.” outcome deleted). (1988) dissenting) (emphasis J., (Scalia, engen discussion is Part of the confusion in Court’s by compares standing, hand, dered the fact on the one that it voluntary cessation, the other with mootness based on on required showing Ante, it is “abso hand. at 190. The that lutely reasonably be ex clear” that the conduct “could not pected showing required for to recur” is not threshold particu heightened showing required in a mootness, but the category sensibly lar concluded of cases where we have skeptical of violation there is reason to be that cessation controversy. means cessation of live For claims mootness voluntary changes based on in other than ces circumstances showing required taxing, sation, the have is less we “ ‘standing inquiry properly characterized as one of is indeed ” supra, Arizonans, in n. 22 67, 68, set a time frame.’ See (case change jobs deprived plaintiff’s case mooted where relief”); prospective Spencer of “still vital claim (ease (1998) by petitioner’s Kemna, 523 mooted completion “throughout litigation, sentence, his since an suffered, with, must have be threatened likely actual to be re traceable the defendant and (internal by judicial quotation dressed a favorable decision” (ease omitted)); against supra, marks State Lewis, at 478-480 parties’ change mooted law that federal eliminated outcome). “personal stake” in the parallel may sum, while the Court be correct that imperfect between realistic and mootness is due to evidentiary presumptions applicable their that are nature only change in the the under- context, mootness this does not lying principle personal “‘[t]he requisite interest litigation must exist at . . must the commencement of the . throughout supra, Arizonans, continue existence its ....’” *41 (quoting Comm’n v. 68, n. States Parole United (1980)). Geraghty, 445 U. S.
[*] [*] [*] uncritically By injury, accepting vague the Court claims requirement has into turned Article III in fact pleading requirement,'’ Lujan, S., 561; “mere U. by approving theory public penalties the novel can anticipated private wrongs, redress close to it has come “mak[ing] redressability requirement vanish,” Co., Steel supra, at 107. The undesirable and unconstitutional conse quence today’s place power is to decision the immense suing public private respect to enforce the laws in hands. I fully dissent.