Lead Opinion
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 injunc-tive 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.
The Court of Appeals vacated the District Court’s order.
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
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 EPA, the State in which the alleged violation oc
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 waste-water 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
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.
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. Laid-law’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).
On June 12,1992, FOE filed this citizen suit against Laid-law under § 505(a) of the Act, alleging noncomplianee 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, Doe. No. 43. In opposition to this motion, FOE submitted affidavits and deposition testimony from members of the plaintiff organizations. Record, Doe. 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-
On January 22, 1997, the District Court issued its judgment.
On July 16, 1998, the Court of Appeals for the Fourth Circuit issued its judgment.
306. Citing our decision in Steel Co., the Court of Appeals reasoned that the ease 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.”
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,
II
A
The Constitution’s case-or-controversy limitation on federal judicial authority, Art. Ill, §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 ease had become moot and so held, it simply assumed without deciding that FOE had initial standing. See Arizonans for Official English v. Arizona,
In Lujan v. Defenders of Wildlife,
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.
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
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). POE 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
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,
Our decision in Lujan v. National Wildlife Federation,
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
Los Angeles v. Lyons,
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,
We have recognized on numerous occasions that “all civil penalties have some deterrent effect.” Hudson v. United States,
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
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 may or 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.
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
“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 tarn 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.
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.
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,
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,
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.,
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-
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
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 14-17. 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.”
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 ease, 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.,
C
FOE argues that it is entitled to attorneys’ fees on the theory that a plaintiff can be a “prevailing party” for purposes of 38 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,
Farrar acknowledged that a civil rights plaintiff awarded nominal damages may be a “prevailing party” under 42 U. S. C. § 1988.
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
* * *
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.
Notes
The District Court noted that “Laidlaw drafted the state-court complaint and settlement agreement, Sled the lawsuit against itself, and paid the Sling fee.”
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.
In Tigner the Court rejected an equal protection challenge to a statutory provision exempting agricultural producers from the reach of the Texas antitrust laws.
In insisting that the redressability requirement is not met, the dissent relies heavily on Linda R. S. v. Richard D.,
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. 38 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).
Of course we mean sunk costs to the judicial system, not to the litigants. Lewis v. Continental Bank Corp.,
We 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,
Concurrence Opinion
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
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.
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,
Comfort Lake Assn. v. Dresel Contracting, Inc.,
Dissenting Opinion
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.
1 — 1
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,
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,”
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,
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, Doe. No. 62 (Moore Deposition 23-24). Similarly, Kenneth Lee Curtis, who claimed he was injured by being deprived of recreational activity at the river, admitted that he had not been to the river since he was “a kid,” 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.”
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,
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,
The Court’s treatment of the redressability requirement— which 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,
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.
In Linda R. S. v. Richard D.,
Although the Court in Linda R. S. recited the “logical nexus” analysis of Flast v. Cohen,
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,
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,
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
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 diseourag-
The Court points out that we have previously said “‘all civil penalties have some deterrent effect,”’ ante, at 185 (quoting Hudson v. United States,
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
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 speeulativeness of that result is much greater than the speeulativeness we found excessive in Simon v. Eastern Ky. Welfare Rights Organization,
In sum, if this ease 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”
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,
By permitting citizens to pursue civil penalties payable to the Federal Treasury, the Act does not provide a mechanism for individual relief in any traditional sense, but turns over to private citizens the function of enforcing the law. A Clean Water Act plaintiff pursuing civil penalties acts as a self-appointed mini-EPA. Where, as is often the case, the plaintiff is a national association, it has significant discretion in choosing enforcement targets. Once the association is aware of a reported violation, it need not look long for an injured member, at least under the theory of injury the Court applies today. See supra, at 198-201. And once the target is chosen, the suit goes forward without meaningful public control.
To be sure, the EPA may foreclose the citizen suit by itself bringing suit. 33 U. S. C. § 1365(b)(1)(B). This allows public authorities to avoid private enforcement only by accepting private direction as to when enforcement should be 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.
I — l H-i I — Í
Finally, I offer a few comments regarding the Courts 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
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,
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.,
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,
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,
* * *
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 today’s decision is to place the immense power of suing to enforce the public laws in private hands. I respectfully dissent.
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
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
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 doubtfiil 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.
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 P. 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.
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
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.
Concurrence Opinion
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.