Mootness and citizen suit civil penalty claims under the Clean Water Act: a post-Lujan reassessment.

• Author: Werner, Matthew M.

1. Introduction

   Over the past twenty-one years, the citizen suit provision of the Federal Water Pollution Control Act (the Clean Water Act)(1) has become a powerful means by which citizen groups can prosecute parties who illegally pollute the nation's waterways. The extent of private citizens' rights to enforce the conditions of the Clean Water Act when the government does not pursue compliance remains an open question. The Supreme Court over the last six years has issued a number of decisions in an attempt to define the citizens' role. The first case was Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc. (Gwaltney I).(2) In Gwaltney I, the Court limited the federal subject matter jurisdiction of citizen suits under the Clean Water Act so that citizens could not bring a suit against a pollution discharger for wholly past violations of the discharger's National Pollutant Discharge Elimination System (NPDES) permit. The court also mentioned in dicta that a suit for ongoing violations would become moot if the discharger could show that after the filing of the complaint the violations had stopped and there was no reasonable chance of any future permit violations.(3) The court then remanded the case for a determination as to whether violations were ongoing. On remand, the Fourth Circuit Court of Appeals (in Gwaltney III) chose to interpret Gwaltney I's dicta narrowly and stated in dicta that mootness applied only to injunctive relief and not to claims for civil penalties.(4) In other words, once civil penalties attach to a valid permit violation, the discharger's proof that violations could not reasonably be expected to recur does not render the entire suit moot. The large majority of federal courts have followed Gwaltney III's lead, concluding that this interpretation is the most harmonious with the language and the goals of the Clean Water Act.(5)

   This Comment analyzes the arguments of Gwaltney III and the federal courts that have followed the Fourth Circuit's lead. It then compares the positions of those courts with the Supreme Court's holding regarding constitutional standing requirements in Lujan v. Defenders of Wildlife.(6)

   This Comment concludes that while the Fourth Circuit correctly decided Gwaltney III, based on then-existing law, the courts that adopted Gwaltney III's holding following the decision in Lujan are in error because the mootness arguments used in Gwaltney III are no longer valid. Under Lujan, citizen civil penalty claims alone cannot survive mootness because plaintiffs lack sufficient standing in that they cannot show redressability. This showing requires that the plaintiffs prove that a favorable court decision would be "likely" to redress plaintiffs' injury.(7) Once defendants show that violations have stopped and will not recur - a showing that is required to moot injunctive relief claims - citizen - plaintiffs can only establish an injury to a general public interest in clean water and not injury to any individual interest of the citizens. Civil penalties, paid into the United States general fund, do not redress citizen - plaintiffs' environmental injury. Without redressability, then, the plaintiffs no longer have sufficient standing (as they did at the inception of the suit), and their claim becomes moot. The post-Gwaltney III courts cannot overcome this conclusion because their justifications for survival of civil penalty claims are based primarily on public policy and interpretations of the Clean Water Act, neither of which is relevant to the determination of constitutional standing. Therefore, civil penalty claims in citizen suits become moot once the injunctive claims to which they were initially attached become moot.

   This is not to say that Congress could not legislate the survival of these civil penalty claims. Congress could do so in a number of ways.(8) It is to say, however, that the current construction of the Clean Water Act's citizen suit provision conflicts with the Supreme Court's interpretation of the Constitution's Article III limitations.

2. Citizen Suit Provisions Under the Clean Water Act

   Congress enacted the Clean Water Act in 1972 "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters."(9) The Act prohibits any party from discharging any form of pollution into the waters of the United Sates except as specifically authorized under the Act's NPDES permit program.(10) These permits specify the amount of various pollutants that may be legally discharged from various point sources over various periods of time.(11)

   If a party violates the conditions of its NPDES permit, it may be subject to an enforcement action by the Environmental Protection Agency (EPA) or by some other administrative agency.(12) Should the EPA or comparable state agency fail to act, private citizens may, after giving notice,(13) bring a civil suit for injunctive relief, civil penalties, and attorneys' fees.(14) Congress added the citizen suit provision to the Clean Water Act to "address[] the fear that statutory commitments would be threatened by bureaucratic failure."(15) However, citizens have a limited role in enforcement, as their right to prosecute violators is secondary to that of the government.(16) Accordingly, citizens cannot sue for every violation of the Clean Water Act.(17)

   The Clean Water Act cannot and does not allow citizens to become prosecutors who can sue for injury to the common good. Citizens, therefore, must still meet constitutional mootness and standing requirements. The mootness and standing doctrines must be examined to address why citizen suit civil penalty claims under the Clean Water Act cannot survive the mooting of their corresponding injunctive claims.

3. Mootness Doctrine and Its Relationship Standing

   For a claim to be heard by a federal court, it must be justiciable(18) and a valid "case or controversy" under the Constitution.(19) Justiciability consists of four doctrines: ripeness, political question, standing, and mootness. Courts have jurisdiction over a case only if the plaintiffs show that the issues involved are ripe,(20) that the case is not a political question,(21) and that they have standing. Even if these three initial doctrines are met, the court does not retain jurisdiction if the case becomes moot.(22) Mootness applies when a claim ceases to be a live controversy (the "live issue" requirement) or when the parties to the suit no longer have legal interests in the outcome (the "personal stake" requirement).(23) Functionally, the mootness doctrine ensures that the federal courts address only issues that they can successfully resolve or redress.(24) Mootness requires more than merely the defendant's cessation of the violating activity - the defendant must show that the activity, for one reason or another, cannot reasonably be expected to recur.(25)

   To establish standing, on the other hand, plaintiffs must show three elements: first, that the plaintiffs have suffered a "concrete and particularized"(26) injury-in-fact that is "actual or imminent;"(27) second, that the injury is fairly ... trace[able] to the challenged action of the defendant;"(28) and, third, that a favorable decision by the court is "likely" to redress the plaintiffs' injury.(29) These represent the "irreducible minimum[s]" of Article III standing.(30)

   The first element of standing, injury-in-fact, requires that the plaintiffs show the defendant's conduct has injured them particularly. The injury does not have to be economic; it can also include damage to the plaintiffs' aesthetic or environmental well-being.(31) However, under the Clean Water Act, the plaintiffs must suffer the injury themselves and cannot merely advance the injuries of others to be able to bring a citizen suit.(32) Nevertheless, for the purposes of this Comment, the injury-in-fact determination under the Act is not at issue.

   As to the second element of standing, the plaintiffs must establish that their injury is fairly traceable to the defendant's conduct.(33) Under the Clean Water Act, plaintiffs establish this element by showing that the defendant discharged pollution in violation of the NPDES permit, the pollutants entered a body of water used by plaintiffs, and the discharge contributed to the kinds of injuries that plaintiffs experienced.(34) Again, however, for the purposes of this Comment causation is not at issue.

   For the plaintiffs to establish the final element of standing, redressability, they must demonstrate that a favorable verdict by the court is likely to redress their injuries.(35) This standard requires that the possibility of redress rise above mere speculation.(36)

   Mootness and standing are integrally related concepts. As the Supreme Court has stated, mootness is "the doctrine of standing set in a time frame: The requisite personal interest that must exist at the commencement of litigation (standing) must continue throughout its existence (mootness)."(37) Many other courts have noted U& relationship.(38) This is not to say that timing is the only distinction between the mootness and standing doctrines. The mootness doctrine has other unique elements, such as the "capable of repetition yet evading review" exception.(39) However, the minimum elements of standing are also the minimum elements of the "personal stake" requirement of mootness doctrine.(40) The redressability element of standing, therefore, bears directly on whether a case is moot for lack of a personal stake. If court action is not likely to redress the plaintiffs' individual injuries (that is, injury that goes beyond harm to the general public), then the plaintiffs have lost a personal stake in the outcome of the case, and the case becomes moot.

4. Mootness Applied to Citizen Suit Civil Penalty

   Claims By the Federal Courts

   1. Gwaltney I - Citizen Suits Limited and Mootness Applied

      The Supreme Court first raised the potential mootness of citizen suits in Gwaltney I.(41) In this...