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

I. 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.

II. 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.

III. 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.

IV. Mootness Applied to Citizen Suit Civil Penalty

Claims By the Federal Courts

A. 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 case, two local environmental groups sued a plant that produced pork products because the plant had discharged pollutants into the Pagan River in excess of its NPDES permit allowances.(42) Gwaltney of Smithfield, Ltd., the permit violator, argued that the court lacked subject matter jurisdiction to hear the suit because jurisdiction could only attach if permit violations were ongoing at the time the plaintiffs filed their initial complaint and defendants contended that the Gwaltney plant had stopped violating its permit several weeks before filing.(43) Both the district court and the court of appeals rejected this argument and concluded that citizen plaintiffs could bring suits under the Clean Water Act for any permit violations, past or present.(44) The Supreme Court then granted certiorari.(45) The Court rejected the lower courts' argument and held that citizens could not sue for wholly past NPDES permit violations under the Act.(46) Instead, citizens could bring suit only if they could make a "good faith allegation of continuous or intermittent violation" at the time of the complaint's filing.(47) The Court stated that the alternative would render section 505's notice requirement "gratuitous" and would "undermine the supplementary role envisioned for the citizen suit" by Congress.(48) The Court then remanded the case for a determination of whether the plaintiffs had made the necessary good faith showing of ongoing violations at the date of the complaint filing.

The Supreme Court went further, however, to end its opinion with a discussion of the mootness doctrine and its relationship to citizen suits. The Court said:

Petitioner also worries that our construction of [sections] 505 [33 U.S.C. [sections] 1365] would permit citizen-plaintiffs, if their allegations of ongoing noncompliance become false at some later point in the litigation because the defendant begins to comply with the [Clean Water] Act, to continue nonetheless to press their suit to conclusion. According to petitioner, such a result would contravene both the prospective purpose of the citizen suit provisions and the "'case or controversy" requirement of Article III. Long-standing principles of mootness, however, prevent the maintenance of suit when "there is no reasonable expectation that the wrong will be repeated." In seeking to have a case dismissed as moot, however, the defendant's burden "is a heavy one." The defendant must demonstrate that it is "absolutely clear that the allegedly wrongdoing behavior could not reasonably be expected to recur." Mootness doctrine thus protects defendants from the maintenance of suit under the Clean Water Act based solely on violations wholly unconnected to any present or future wrongdoing, while it also protects plaintiffs from defendants who seek to evade sanction by predictable "protestations of repentance and reform."(49)

This quote, though considered vague and confusing by many,(50) is important to the extent that it establishes that the Supreme Court envisioned a point at which the citizen suit ceased to be a valid "case or controversy" under the Constitution and would therefore be dismissed.

B. Gwaltney I on Remand - Mootness Confined to Injunctive Claims

The Supreme Court remanded the Gwaltney case to the Fourth Circuit Court of Appeals to assess whether the plaintiffs made good faith allegations of ongoing violations at the time of the complaint and whether they could demonstrate ongoing violations at trial.(51) To determine whether allegations at the time of the complaint were in good faith, the appellate court (in Gwaltney II) established a two-part test in which citizen-plaintiffs could prove an ongoing violation either:

(1) by proving violations that continue on or after the date the complaint is filed, or (2) by adducing evidence from which a reasonable trier of fact could find a continuing likelihood of a recurrence in intermittent or sporadic violations. Intermittent or sporadic violations do not cease to be ongoing until the date when there is no real likelihood of repetition.(52)

The court then remanded the case to the district court to determine whether the good faith allegation test had been met and to determine whether the plaintiffs could prove ongoing violations at trial.(53) The district court held for the plaintiffs on both issues.(54) The defendant again appealed to the appellate court (in Gwaltney III), claiming that there was insufficient evidence to support the lower court's finding.(55) The Gwaltney III court rejected these arguments, holding that the plaintiffs' allegations of ongoing violations were made in good faith and the plaintiffs had demonstrated ongoing violations at trial.(56) The court went on, however, to reason that plaintiffs' civil penalty claim would survive even if the plaintiffs had failed to prove ongoing violations at trial because civil penalty claims - unlike injunctive claims - could not become moot.(57) The court gave a number of reasons for its conclusion.

First, the court found that civil penalties did represent adequate redress for the citizen-plaintiffs. The court cited its previous decision in Sierra Club v. Simkins Industries, Inc.,(58) in which it said that "judicial relief of civil penalties, even if payable only to the United States Department of the Treasury, is causally connected to a citizen-plaintiffs injury. Such penalties can be an important deterrence against future violations."(59)

Second, the court reasoned that the case was not moot because mootness requires more than a "simple cessation of illegal activity."(60) Specifically, the fact that the defendant had not violated his NPDES permit in five years did not mean that a violation of that permit would not occur in the future. In this sense, the defendant's claim that future violations would not occur was the "protestations of repentance and reform" that the Supreme Court said in Gwaltney I would not satisfy a finding of mootness.(61)

Third, the court likened the plaintiffs to the government, noting that "a citizen action, like a government action, cannot become moot once there is assessment of civil penalties, so long as the penalties are for past violations that were part of or which contiguously preceded the ongoing violations."(62) The court cited United States v. ITT Rayonier, Inc.(63) as support for the premise that civil penalty claims by the government could never become moot.(64) The court then drew an analogy between the government in ITT Rayonier and the plaintiffs in Gwaltney III and concluded that the plaintiffs' claims should be treated similarly.(65)

Fourth, the court looked at the wording of section 309(d) of the Act, which provides that "[a]ny person who violates... [subsections of this Act]... shall be subject to a civil penalty ...."(66) The Court reasoned that this language "virtually obligated [the court] to assess penalties."(67)

Finally, the court concluded that this view was consistent with Gwaltney I because the Supreme Court in Gwaltney I barred citizens from bringing suits for violations "wholly unconnected with any present or future wrongdoing."(68) In Gwaltney III, however, the court said that the ongoing violations found by the lower court were considered present wrongdoing (determined as of the day of the complaint filing), so the limitation established by the Supreme Court did not apply.(69) For these reasons, the Gwaltney III court held that the claim for civil penalties was not moot.

C. Gwaltney III Followed

Gwaltney III's dicta that civil penalty claims do not become moot has been directly followed by the large majority of courts addressing the issue.(70) Many other courts support the holding in dicta.(71) only two Courts rejected Gwaltney III's reasoning and decided that injunctive claim mootness renders the entire citizen suit moot.(72)

A number of the courts that followed Gwaltney III adopted the reasoning that civil penalties should survive as a matter of sound public policy.(73) These courts reasoned that the alternative would minimize the deterrent effect of citizen suits on potential future violators and would discourage citizens from suing for permit violations.(74) Further, defendants would be encouraged to delay litigation if they knew that they could eventually kill the suit and suffer no liability by postponing the necessary corrections and then filing a motion for summary judgment.(75) These courts also added their own additional reasons for allowing civil penalty claims to survive mootness, including: 1) the Supreme Court's discussion of mootness was ambiguous,(76) 2) Gwaltney I did not apply to civil penalty claims because it did not specifically refer to them,(77) 3) the cases used as support in Gwaltney I deal only with injunctive relief,(78) and 4) the Court's ban on citizen suits for wholly past violations and its discussion of the "prospective nature" of citizen suits was only in the context of determining jurisdiction and did not restrict the types of relief that courts could subsequently grant.(79)

However, the conclusion that citizen suit civil penalty claims do not become moot once their accompanying injunctive claims become moot, though possible when Gwaltney III was decided, does not hold true today, because it conflicts with the Supreme Court's formulation of the standing requirements expressed in Lujan v. Defenders of Wildlife.(80) Lujan, decided in 1992, marked a significant departure by the Supreme Court from the notion that Congress could create statutory standing in the public at large. This directly impacts when civil penalty claims survive.

V. Lujan and Civil Penalty Claim Mootness

A. The Lujan Case

In Lujan v. Defenders of Wife,(81) several environmental groups brought suit against the Secretary of the Interior to prevent the Department of Interior (DOI) from implementing a regulation that would limit the scope of the Endangered Species Act (ESA).(82) The ESA states that "[e]ach Federal Agency shall, in consultation with and with the assistance of the Secretary, insure that any action authorized, funded, or carried out by such agency ... is not likely to jeopardize the continued existence of any endangered species or threatened species."(83) DOI may interpreted this provision to include actions of the government undertaken outside of the United States.(84) However, DOI subsequently chose to reinterpret the statute in 1983 and promulgated a regulation in 1986 that would limit application of the ESA to government actions with the borders of the United States or on the high seas.(85) The environmental groups then brought an action seeking a declaratory judgment invalidating the new regulation and an injunction to force the Secretary to restore the previous regulation.(86) The plaintiffs claimed that they had standing to bring the suit because two of their members would suffer injuries if the new regulation was implemented and because the regulation would decrease the protection afforded endangered species in other countries. This, in turn, would increase the likelihood that those species would become extinct and injure the group members' ability to see and enjoy them.(87)

The Court rejected the plaintiffs' claim, holding that they had failed to establish the necessary injury-in-fact and redressability to show standing.(88) First, the Court found the plaintiffs lacked threat of injury, because the two members that were threatened had no fixed or specific plans to return to the countries where they claimed they would be injuries.(89) Second, the Court found that, even if there was an adequate threat of injury, there was an insufficient showing that the plaintiffs' injuries would be redressed if the Court ordered the old regulation reinstated.(90) The Court asserted that there was no indication that either funding agencies or foreign projects would follow the reinstated regulation.(91)

The Court also used this opportunity to express its opinion on the constitutional limitations of Congress's ability to create citizen standing. The Court said:

To permit Congress to convert the undifferentiated public interest in executive officers' compliance with the law into an "individual right" vidicable in the courts is to permit Congress to transfer from the President to the courts the Chief Executive's most important constitutional duty, to "take Care that the Laws be faithfully executed." It would enable the courts, with the permission of Congress, "to assume a position of authority over the governmental acts of another and co-equal department," and to become virtually continuing monitors of the wisdom and soundness of Executive action."(92)

This opinion, written by Justice Scalia, is reminiscent of his Gwaltney I concurrence, in which he questioned the standing of citizens to bring suit under the Clean Water Act.(93) In Lujan, a majority of the Court for the first time analyzed congressionally imposed standing in light of the separation of powers doctrine and determined that it was beyond Congress's power to create sweeping citizen suit provisions that granted standing to the public, at large.(94) This conclusion plays an integral part in the argument that civil penalty claims must become moot with their corresponding injunctive claims because they lack sufficient standing.

B. Why Lujan's Limitation on Congressionally Created Standing

Renders Civil Penalty Claims Moot

Under the Lujan construction of standing, plaintiffs must establish that they have some particular injury beyond just a public injury and that the court can redress this particular injury with some action. As stated, Gwaltney III and the courts that have followed it have held that civil penalties adequately redress citizen plaintiffs' injuries in two ways: first, by deterring the defendant, himself, from violating an NPDES permit again in the future (and thereby again injuring the plaintiffs) and, second, by deterring all NPDES permit holders (including the defendant) from violating their permits in the future. However, neither position sustains redressability under Lujan.

In the first instance, plaintiffs cannot show adequate redress by a favorable decision against the defendant, because they cannot show that such a decision would make the defendant "likely" to not injure the plaintiffs in the future. In order for an injunctive claim to become moot, the defendant has already had to demonstrate to the court that there is "no reasonable expectation that the wrong win be repeated."(95) Accordingly, future offensive behavior on the defendant's part cannot be said to be "likely"; the defendant may illegally discharge pollutants again in the future or he may not. If he does, those discharges may injure the plaintiffs, specifically, or they may not (future injuries to other people who were not plaintiffs in the action would not be relevant to this determination). It is, at best, speculative and, at worst, contradictory for a court to determine that a defendant cannot be reasonably expected to violate his current permit in the future (thereby mooting the injunctive claim) and at the same time determine that the defendant is likely to violate a permit unless the court assesses civil penalties (thereby sustaining the civil penalty claim). Speculation is insufficient to sustain redressability; adequate redress must be likely to result from a favorable decision.(96) The Supreme Court has stated that the Article III "case or controversy" limitation requires that the case be a "real and substantial controversy admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts."(97) This constitutional burden is not met by the plaintiffs demonstrating that some possibility exists that the defendant will violate a subsequent NPDES permit. Thus, adequate redressability is not established individually for the plaintiffs.(98)

The Gwaltney III court and the other lower courts also interpreted civil penalties to redress plaintiffs' injuries by arguing that the plaintiffs are seeking civil penalties so that all of the NPDES permit holders in the United States will be less likely to violate their permits. Here, too, the claim cannot stand because there is inadequate redressability. Specifically, redressability fails because the citizens' role in the suit violates the separation of powers doctrine by infringing on the role of the Executive.(99) Civil penalties do not go to the plaintiffs but to the United States Treasury.(100) Therefore, when the citizens are only seeking civil penalties, they are no longer acting on behalf of themselves but are instead acting on behalf of the government and the public at large. The Supreme Court has repeatedly said that this violates the Constitution.(101) Until Lujan, it was believed that such standing could be created in private citizens by Congress through statutory citizen suit provisions.(102)

Lujan, however, dispatched this notion.(103) Therefore, even if the Clean Water Act expressly gives citizens standing to seek civil penalties, adequate standing still does not exist because such a grant is beyond Congress's power. Since Gwaltney III was decided prior to Lujan, the Gwaltney III court could have concluded that the citizen suit provision of the Clean Water Act created this generalized redressability and prevented civil penalty claim mootness. However, courts that followed Gwaltney IV's holding after Lujan cannot use the same reasoning, because they can find neither traditional redressability nor congressionally created redressability. Accordingly, adequate standing ceases to exist and the civil penalty claim becomes moot.

C. Other Justifications for Civil Penalty Claim

Survivability Are Unpersuasive

The post-Gwaltney III courts have supported the holding that civil penalties do not become moot in citizen suits with five principal arguments. The first argument is that allowing civil penalty claims to become moot would weaken the deterrent effect of the Clean Water Act.(104) Without doubt, this is a laudable and important cause. However, public policy considerations are irrelevant to the determination of constitutional redressability. The Supreme Court stressed this point when it said that "policy arguments supporting even useful `political inventions' are subject to the demands of the Constitution which defines powers and, with respect to this subject, sets out just how those powers are to be exercised."(105) It is a point that the Supreme Court has expressed on numerous occasions.(106) Accordingly, the only correct way to determine whether adequate redressability exists for civil penalty claims is under the traditional constitutional criteria discussed above, and these criteria demonstrate that citizen-plaintiffs have no personal stake in civil penalty collection.

The second argument advanced by the courts that follow Gwaltney IV's holding is that civil penalties should not become moot because they are comparable to money damages to the plaintiffs and so collection of those penalties keeps the controversy alive.(107) This argument amounts to skirting the issue of constitutionality with the unfounded assumption that civil penalties are analogous to money damages. If the citizens were seeking money damages, then adequate redressability would exist and there would be no mootness. However, this argument is unsound because the plaintiffs receive none of the civil penalties ultimately awarded.(108) Further, the plaintiffs cannot even anticipate that the government will spend the collected money on a project in their area or on one that has anything to do with keeping the nation's waters clean. Therefore, the assumption cannot be made that civil penalties are the equivalent of money damages.

The third argument of the lower courts is that civil penalties must survive in citizen suits because they survive in government suits when the injunctive claim becomes moot.(109) The analogy is again unjustified because the roles of the government and private citizens under the Constitution are fundamentally different. First, the government is empowered and exists to serve the interests of the public, so it can seek civil penalties in furtherance of the public good. Citizens cannot act purely in this role.(110) Second, a difference exists with respect to civil penalties because, in the government's case, those penalties do represent monetary damages that the government receives for its own use. Citizens, on the other hand, are seeking damages for the benefit of a third party. Both reasons justify the survival of government civil penalty claims without justifying the survival of citizen suit civil penalty claims.

The fourth argument forwarded by the courts is that civil penalties must be assessed against a defendant even in a citizen suit because the language of the Clean Water Act imposing civil penalties is mandatory language that virtually requires courts to assess civil penalties when specific violations have been shown.(111) The problem with this argument is that it, like the public policy arguments, has no bearing on the constitutional issues of standing or mootness. The legal power of the Clean Water Act comes from Congress, and Congress cannot act beyond the confines of the Constitution. The Constitution as interpreted in Lujan limited the power of Congress to create citizen suit standing; it a fortiori limits the Clean Water Act's ability to create standing. Therefore, the Act's provisions are irrelevant to the determinations of standing and mootness.

The final argument forwarded by these courts is that they should be able to interpret the Clean Water Act to require civil penalties because nothing in Gwaltney I precludes them from doing so.(112) This argument fails, however, because the post-Gwaltney III courts interpret Gwaltney I in a way that is inconsistent with the subsequent holding of the Supreme Court in Lujan. In Lujan, the court discussed the limitations of Congress's ability to create statutory standing when the minimum requirements of Article III were not met.(113) This limitation closed the door on arguments that citizens could be given a legal interest under the Act's citizen suit provisions to seek civil penalties and promote the public goal of cleaner water. In other words, it closed the door on the survivability of civil penalty claims in citizen suits once the accompanying injunctive claim had become moot. To construe Gwaltney I otherwise, as these courts do, creates a conflict between Gwaltney I and Lujan. Conversely, if Gwaltney I is interpreted to say that the entire citizen suit becomes moot when the injunctive claim becomes moot, then there is no conflict with Lujan. Such an interpretation would also be more consistent with the wording of the Gwaltney I opinion. There the Supreme Court did not say that only the injunctive claim becomes moot but rather that the suit would become Moot.(114) The logical inference, particularly in light of Lujan, is that this phrase should be interpreted to include both injunctive claims and civil penalty claims.(115)

D. Civil Penalty claim Reliance on the Injunctive Claim

This Comment's rebuttal to the arguments of the post-Gwaltney III courts and their interpretation of Gwaltney I raises the question of whether citizens should ever be able to seek civil penalties under the Clean Water Act - even when there is an existing injunctive claim. If it is true that citizens lack the minimum showing of redressability for a civil penalty claim, as this Comment asserts, then the answer would seem to be that they cannot. This conclusion would then contradict the holding of Gwaltney I, because there the court "effectively approved" of citizens' ability to seek civil penalties as long as those penalties were not for wholly past violations.(116) However, Gwaltney I and the thesis of this Comment do not conflict, because citizens can proceed with a claim without adequate standing (here, a civil penalty claim) if that claim is derived from a claim for which citizens do have adequate standing (an injunctive claim). This point was expressed by the Supreme Court in Sierra Club v. Morton(117) when it said:

[I]njury is what gives a person standing to seek judicial review under the statute, but once review is invoked, that person may argue the public interest in support of his claim.... It was in [this] sense that the `standing' of the appellant .... existed only as a representative of the public interest.(118)

The concept is not unlike that of pendent jurisdiction, in which a principal federal claim may be used to bring a state law claim before a federal court. Therefore, this Comment's thesis does not infringe upon the citizen's ability to seek civil penalties so long as the civil penalty claim is tied to a present injunctive claim against the defendant. (1) 33 U.S.C. [subsection] 1251-1387 (1988 & Supp. V 1993). (2) 484 U.S. 49 (1987) Gwaltney I). (3) Id. at 66. (4) Chesapeake Bay Found., Inc. v. Gwaltney of Smithfield, Ltd., 890 F.2d 690, 696-97 (4th Cir. 1989) (Gwaltney III). Gwaltney I was originally remanded to the Fourth Circuit Court of Appeals for a determination of whether the plaintiffs had successfully established subject matter jurisdiction; however, that court, in Chesapeake Bay Foundation, Inc. v. Gwaltney of Smithfield, Ltd., 844 F.2d 170 (4th Cir. 1988) (Gwaltney II), did not directly address the Supreme Court's dicta on mootness. (5) See infra notes 70-79 and accompanying text. (6) 504 U.S. 555 (1992). (7) Id. at 561. (8) For example, Congress could create some form of property rights that gave plaintiffs a "personal stake" in civil penalty claims and allow citizen-plaintiffs to maintain Clean Water Act citizen suits. See generally Harold Feld, Saving the Citizen Suit. The Effect of Lujan v. Defenders and the Role of Citizen Suits in Environmental Enforcement, 19 Colum. J. Envtl. L. 141 (1994); George R. Rogers, Comment, Legislative Intent vs. Executive Non-Enforcement: A New Bounty Statute as a Solution to Executive Usurpation of Congressional Power, 69 Ind. L.J. 1257 (1993). (9) 33 U.S.C. [sections] 1251(a) (1988 & Supp. V 1993). (10) Id. [sections] 1342. (11) Id. (12) Id. [sections] 1319(a)(1) (1988). This section provides: Whenever ... the Administrator finds that any person is in violation of any condition ... in a permit .... he shall notify the person in alleged violation ...of such finding. If beyond the thirtieth day after the Administrator's notification the State has not commenced appropriate enforcement action, the Adminitrator shall issue an order requiring such person to comply with such condition ... or shall bring a civil action .... (13) Id. [sections] 1365(b). This section provides that "[n]o action may be commenced ... prior to sixty days after the plaintiff has given notice of the alleged violation (i) to the Administrator, (ii) to the State in which the alleged violation occurs, and (iii) to any alleged violator of the standard, limitation, or order ...." (14) Id. [sections] 1365(a). Under this provision, "any citizen may commence a civil action on his own behalf - (i) against any person ... who is alleged to be in violation of ... an effluent standard or limitation under this chapter ... and to apply any appropriate civil penalties under section 1319(d) of this title." (15) Cass R. Sunstein, What's Standing After Lujan?: Of Citizen Suits, "Injuries," and Article III, 91 Mich. L. Rev. 163, 193 (1992). (16) Gwaltney I, 484 U.S. 49, 60 (1987). (17) For example, citizens cannot bring suit "if the Administrator or State has commenced and is diligently prosecuting a civil or criminal action in a court of the United States, or a State to require compliance with the standard, limitation, or order ...." 33 U.S.C. [sections] 1365(b)(1)(b) (1988). Also, the EPA or the State may intervene in the citizen suit at any time. Id. [sections] 1365(c)(2). (18) Flast v. Cohen, 392 U.S. 83, 94-97 (1968). The Court has said that, for a case to be justiciable, it "must be definite and concrete, touching the legal relations of parties having adverse legal interests." Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240-41, rehg denied, 300 U.S. 687 (1937). (19) U.S. Const. art. III, [sections] 2, cl. 1. (20) The ripeness doctrine prevents courts from deciding questions until they are ripe for resolution. See Abbott Labs. v. Gardner, 387 U.S. 136, 148-56 (1967). (21) The political question doctrine holds that certain questions are better addressed by the executive or legislative branches, rather than the judicial branch. See United States v. Nixon, 418 U.S. 683, 692-97 (1977); Baker v. Carr, 369 U.S. 186, 208-37 (1962). (22) Flast, 392 U.S. at 95. (23) See, e.g., Franks v. Bowman Trans. Co., 424 U.S. 747, 753 n.5 (1976); Powell v. McCormack, 395 U.S. 486, 496 (1969); Baker, 369 U.S. at 204. (24) United States parole Comm'n v. Geraghty, 445 U.S. 388, 397 (1980). (25) Gwaltney I, 484 U.S. 49, 66 (1987); see also United States v. W.T. Grant Co., 345 U.S. 629, 633 (1953). (26) Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). (27) Id. (quoting Whitmore v. Arkansas, 495 U.S. 149, 155 (1990)). (28) Id. (quoting Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 41-42 (1976)). (29) Id. at 561 (quoting Simon, 426 U.S. at 38). (30) Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 472 (1982). (31) Sierra Club v. Morton, 405 U.S. 727, 734 (1972). (32) Section 505(g) defines a "citizen" as "a person or persons having an interest which is or may be adversely affected." 33 U.S.C. [sections] 1365(g). (33) Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 38 (1976). (34) Public Interest Research Group of N.J., Inc. v. New Jersey Expressway Auth., 822 F. Supp. 174, 180 (D. N.J. 1992). (35) Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992); see also Duke Power Co. v. Carolina Envtl. Study Group, Inc., 438 U.S. 59, 75 n.20 (1978); Simon, 426 U.S. at 38. (36) Lujan, 504 U.S. at 567; Simon, 426 U.S. at 44-45. (37) United States Parole Comm'n v. Geraghty, 445 U.S. 388, 397 (1980) (quoting Henry Monaghan, Constitutional Adjudication. The Who and When, 82 Yale L.J. 1363, 1384 (1973)). (38) See Rosetti v. Shalala, 12 F.3d 1216, 1224 n.19 (3d Cir. 1993) ("both [the standing and mootness] doctrines require the plaintiff to show the same personal stake in the outcome of the litigation"); Garden State Broadcasting L.P. v. F.C.C., 996 F.2d 386, 394 (D.C. Cir. 1993) ("[m]ootness and standing are related concepts"); Rocky v. King, 900 F.2d 864, 866 (5th Cir. 1990) ("mootness doctrine requires that the controversy posed by the plaintiff's complaint be `live' not only at the time the plaintiff files the complaint but also throughout the litigation process"). (39) See infra note 115. (40) The Third Circuit explained the distinction well: We note that many judicial opinions discussing case or controversy principles do not mention the personal stake requirement, but instead refer to more specific, discreet elements of standing or mootness, such as the need to demonstrate "injury in fact" that can be fairly traced to challenged conduct. In reviewing these familiar elements of a case or controversy, courts are merely referring to constituent components of the more general, overarching requirement that a plaintiff have a personal stake in the outcome of the litigation. The difference in language does not reflect a difference in the substance of the constitutional standard. Rosetti, 12 F.3d at 1224 n.18. (41) 484 U.S. 49, 66-71 (1987). (42) Id. at 53. (43) Id. at 54. (44) See Chesapeake Bay Found., Inc. v. Gwaltney of Smithfield, Ltd., 611 F. Supp. 1542 (E.D. Va. 1985), aff'd, 791 F.2d 304 (4th Cir. 1986), rev'd, 484 U.S. 49 (1987) (Gwaltney I). (45) Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 479 U.S. 1029 (1987). (46) Gwaltney I, 484 U.S. at 55-56. (47) Id. at 64. (48) Id. at 60. (49) Id. at 66-67 (citations omitted). (50) See, e.g., Jeffrey G. Miller, Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc.: Invitation to the Dance of Litigation, 18 Envtl. L Rep. (Envtl. L. Inst.) 10,098, 10,103 (1988); Reed D. Benson, Note, Clean Water Act Citizen Suits After Gwaltney: Applying Mootness Principles in Private Enforcement Actions, 4 J. Land Use & Envtl L. 143, 157 (1988). (51) Gwaltney I, 484 U.S. at 67. (52) Gwaltney II, 844 F.2d 170, 171-72 (4th Cir. 1988). (53) Id. (54) Chesapeake Bay Found, Inc. v. Gwaltney of Smithfield, Ltd., 688 F. Supp. 1078, 1078. 79 (E.D. Va. 1988), aff'd in pan, rev'd in part, 890 F.2d 690 (1989) (Gwaltney III). (55) Gwaltney III, 890 F.2d 690, 693 (4th Cir. 1989). (56) Id. (57) Id. (58) 847 F.2d 1109 (4th Cir. 1998), cert. denied, 491 U.S. 904 (1989). (59) Gwaltney III, 890 F.2d at 695 (quoting Simkins Indus., Inc., 847 F.2d at 1113). (60) Id. at 696-97 (citing City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283, 289 (1982); United States v. W.T. Grant Co., 345 U.S. 629, 632 (1953)). (61) This was just the type of "predictable `protestations of repentance and reform" that the Supreme Court said in Gwaltney I would not sustain mootness. See supra note 49 and accompanying text. (62) Gwaltney III, 890 F.2d at 697. (63) 627 F.2d 996 (9th Cir. 1980). (64) Gwaltney III, 890 F.2d at 696-97. (65) Id. (66) 33 U.S.C. [sections] 1319(d) (1988) (emphasis added). (67) Gwaltney III, 890 F.2d at 697. (68) Id. (quoting Gwaltney I, 484 U.S. 49, 67 (1987)). (69) Id. (70) See Natural Resources Defense Council, Inc. v. Texaco Refining & Mktg., Inc., 2 F.3d 493, 503 (3d Cir. 1993); Atlantic States Legal Found., Inc. v. Pan Am. Tanning Corp., 993 F.2d 1017, 1021 (2d Cir. 1993); Atlantic States Legal Found., Inc. v. Tyson Foods, Inc., 897 F.2d 1128, 1135-36 (11th Cir. 1990); Public Interest Research Group of N.J., Inc. v. Elf Atochem N. Am., Inc., 817 F. Supp. 1164, 1174 (D. N.J. 1993); Atlantic States Legal Found., Inc. v. Omnicology, Inc., 1993 WL 216701 (N.D.N.Y. June 16, 1993); Public Interest Research Group of N.J., Inc. v. New Jersey Expressway Auth., 822 F. Supp. 174 (D. N.J. 1992). (71) See Public Interest Research Group of N.J., Inc. v. Hercules, Inc., 830 F. Supp. 1525, 1537 (D. N.J. 1993), aff'd in part, rev'd in part, 50 F.3d 1329 (3d Cir. 1995); Tobyhanna Conservation Ass'n v. Country Place Waste Treatment Facility, 769 F. Supp. 739, 744-45 (M.D. Pa. 1991); State Line Fishing & Hunting Club, Inc. v. City of Waskom, 754 F. Supp. 1104, 1111-12 (E.D. Tex. 1991); Public Interest Research Group of N.J. v. Star Enter., 771 F. Supp. 655, 665 (D. N.J. 1991). (72) See Atlantic States legal Found., Inc. v. Eastman Kodak Co., 933 F.2d 124, 127 (2d Cir. 1991) (holding that settlement and imposition of fines by the government mooted any subsequent action by citizen group); Massachusetts Pub. Interest Research Group v. ICI Americas, Inc., 777 F. Supp. 1032, 1035 (D. Mass. 1991) (holding that the relaxation of permit limitations makes "conduct that was impermissible before ... now permissible" and moots the citizen suit). (73) Texaco, 2 F.3d at 503; Pan Am., 993 F.2d at 1020-21; Tyson Foods, 897 F.2d at 1136; Elf Atochem, 817 F. Supp. at 1171-72. Several post-Gwaltney III law review articles have reached the same conclusion. See, e.g., Benson, supra note 50, at 156-64; Beverly M. Smith, The Viability of Citizens' Suits Under the Clean Water Act After Gwaltney of Smithfield v. Chesapeake Bay Foundation, 40 Case W. Res. L. Rev. 1, 57-58 (1989). (74) Texaco, 2 F.3d at 503; Pan Am., 993 F.2d at 1020-21; Tyson Foods, 897 F.2d at 1136; Elf Atochem, 817 F. Supp at 1171-72. (75) Tyson Foods, 897 F.2d at 1137. (76) Id. at 1134; Texaco, 2 F.3d at 503 n.7; Pan Am., 993 F.2d at 1020. (77) Tyson Foods, 897 F.2d at 1134; Texaco, 2 F.3d at 503; Pan Am., 993 F.2d at 1020. (78) Tyson Foods, 897 F.2d at 1134 n.11. (79) Id. at 1136 (quoting Public Interest Research Group of N.J., Inc. v. Carter-Wallace, Inc., 684 F. Supp. 115, 119 (D. N.J. 1988)). (80) 504 U.S. 555 (1992). (81) Id. (82) Id. at 557-58. (83) 16 U.S.C. [sections] 1536(a)(2) (1988). (84) Lujan, 504 U.S. at 558. (85) Id. at 558-59. (86) Id. at 565-66. (87) Id. at 563-64. The individual members' claims embodied plaintiffs' "animal" and vocational nexus theories. The plaintiff's further argued the "ecosystem" nexus theory to establish standing: Because all of the planet's ecosystems are interrelated, damage to one ecosystem in another country would eventually impact the ecosystems with which the plaintiffs' members were in direct contact, causing injury to the members. Id. at 565-66. (88) Id. at 566-569. (89) Id. at 566-68. The court also rejected the "nexus" theories, saying simply that they were "beyond the limit." Id. at 567. (90) Id. at 568. (91) Id. at 568-570. (92) Id. at 577 (citations omitted). (93) Gwaltney I, 484 U.S. 49, 67-71 (1987) (Scalia, J., concurring). Justice Scalia said: "If it is undisputed that the defendant was in a state of compliance when this suit was filed, the plaintiffs would have been suffering no remediable injury in fact that could support this suit." Id. at 70 (Scalia, J., concurring). (94) See Sunstein, supra note 15, at 165. Sunstein notes that, previous to this opinion, "[t]he apparently unanimous view of lower courts had been that a legislative grant of citizen standing was constitutional even without a showing of injury in fact." Id. at 165 n.10. (95) Gwaltney I, 484 U.S. at 66 (quoting United States v. W.T. Grant Co., 345 U.S. 629, 633 (1953)). The example given is a demonstration that the previously violating plant closed or modified its discharges with new equipment or procedures. (96) Lujan, 504 U.S. at 560-61 ("[the judgment] must be `likely,' as opposed to merely `speculative,' that the injury will be `redressed by a favorable decision,'" quoting Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 38, 43 (1976)). (97) Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 241, reh'g denied, 300 U.S. 687 (1937). (98) The Supreme Court addressed the relationship of speculativeness to standing in Los Angeles v. Lyons, 461 U.S. 95 (1983). In that case, the plaintiff, the recipient of a police chokehold, sought an injunction against the City of Los Angeles barring the use of chokeholds except when its police officers were under threat of immediate deadly force. The Court held that the plaintiff lacked standing to bring the suit, saying: We cannot agree that the "odds" that Lyons would not only again be stopped for a traffic violation but would also be subjected to a choke hold without any provocation whatsoever are sufficient to make out a federal case for equitable relief. ... ... Lyons's lack of standing [rests] on the speculative nature of his claim that he will again experience injury as the result of that practice even if continued. Id. at 108-10 (citations omitted). Although this case concerned injunctive relief, it still establishes the Court's willingness to find moot an action when there is an insufficient showing of redressability. (99) See supra text accompanying note 89-90. (100) See infra note 108 and accompanying text. (101) See Lujan v. Defenders of Wildlife, 504 U.S. 555, 577 (1992); Fairchild v. Hughes, 258 U.S. 126, 129-30 (1922) (holding that the plaintiff established no case or controversy, as constitutionally required, because the general right "possessed by every citizen," to require government administration to be lawful "does not entitle a private citizen to institute in the federal courts a suit"); Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 475 (1982) ("the court has refrained from adjudicating `abstract questions of wide public significance' which amount to `generalized grievances,' pervasively shared and most appropriately addressed in the representative branches," quoting Warth v. Seldin, 422 U.S. 490, 499-500 (1975)). (102) See supra notes 92-93 and accompanying text. (103) Lujan, 504 U.S. at 576-78. (104) See supra text accompanying notes 59, 73-75. (105) Immigration & Naturalization Serv. v. Chadha, 462 U.S. 919, 945 (1983). (106) Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U.S. 464,484 (1982) ("To the extent the Court of Appeals relied on a view of standing under which the Art. III burdens diminish as the 'importance' of the claim on the merits increases, we reject that notion."); Sosna v. Iowa, 419 U.S. 393, 401 n.9 (1975) ("[A public policy] consideration would not itself justify any relaxation of the provision of Art III which limits our jurisdiction to 'cases and controversies ...... "); Flast v. Cohen 392 U.S. 83, 99 (1968) ("[standing] focuses on the party seeking to get his complaint before a federal court and not on the issues he wishes to have adjudicated"); Doremus v. Board of Educ., 342 U.S. 429, 435 (1952) '[standing) is not a question of motivation but of possession of the requisite financial interest that is, or is threatened to be, injured . . '). (107) Public Interest Research Group of N.J., Inc. v. Elf Atochem N. Am, Inc., 817 F. Supp. 1164, 1171 (D. NJ. 1993) "[c]ourts have generally treated civil penalties under the Clean Water Act as damages for [the purpose of determining mootness], such that even where a claim for injunctive relief is mooted by discontinuance of the challenged illegal conduct, claims for civil penalties survive"). (108) Gwaltney I, 484 U.S. 49,53 (1987) ("[i]f the citizen prevails in such an action, the court may order injunctive relief and/or impose civil penalties payable to the United States Treasury"); Middlesex County Sewerage Auth. v. National Sea Clammers Ass'n, 453 U.S. 1, 14 n.25 (1981) ("[u]nder the [Clean Water Act], civil penalties, payable to the Government, also may be ordered by the court"). (109) Eg. Gwaltney III, 890 F.2d 690,696 (4th Cir. 1989); Atlantic States Legal Found., Inc. v. Tyson Foods, Inc., 897 F.2d 1128, 1136 (llth Cir. 1990) (citing Gwaltney III with approval). (110) See supra text accompanying note 93. (111) Eg. Gwaltney III, 890 F.2d at 697; Natural Resources Defense Council, Inc. v. Texaco Refining & Mktg., Inc., 2 F.3d 493, 503 (3d Cir. 1993); Atlantic State Legal Found, Inc. v. Pan Am. Tanning Corp., 993 F.2d 1017, 1020-21 (2d Cir. 1993); Public Interest Research Group of N.J. v. Star Enter., 771 F. Supp. 655, 665 (D. N.J. 1991). (112) See supra notes 76-79 and accompanying text. (113) See supra note 94 and accompanying text. (114) Gwaltney I, 484 U.S. 49, 66-67 (1987); see supra note 49 and accompanying text. (115) Another potential argument that could be raised by opponents of citizen civil penalty claim mootness (although no court has yet addressed the issue), is that civil penalty claims should survive because they fall within the mootness exception of "capable of repetition, yet evading review.' See Southern Pac. Terminal Co. v. Interstate Commerce Comm'n, 219 U.S. 498, 515 (1911). To qualify for this exception, plaintiffs must meet two criteria: (1) the injury ceased quickly enough that complete litigation was impossible before it expired, and (2) there is a 'reasonable expectation" that the plaintiffs Will be subjected to the same injury in the future. Weinstein v. Bradford, 423 U. S. 147, 149 (1975) (per curiam). The rebuttal to this assertion is the same one advanced by this Comment against redressability (and for the application of mootness): If the defendant has already convinced the court that future violations cannot be reasonably expected to reoccur, then the court could not logically find a subsequent "reasonable expectation" that future violations would occur and, therefore, could not logically apply this mootness exception. (116) See, e.g., Gwaltney III, 890 F.2d 690, 696-97 (4th Cir. 1989) (interpreting the Gwaltney I holding to allow penalties for violations reasonably considered ongoing at the time of suit). (117) 405 U.S. 727 (1972). (118) Id. at 737. (119) See supra note 8.