Steel Company v. Citizens for Better Environment

PETITIONER:Steel Company
RESPONDENT:Citizens for Better Environment
LOCATION:Randon Bragdon’s Dental Office

DOCKET NO.: 96-643
DECIDED BY: Rehnquist Court (1986-2005)
LOWER COURT: United States Court of Appeals for the Seventh Circuit

CITATION: 523 US 83 (1998)
ARGUED: Oct 06, 1997
DECIDED: Mar 04, 1998

ADVOCATES:
David A. Strauss – Argued the cause for the respondent
Irving L. Gornstein – Argued the cause for the United States, as amicus curiae, by special leave of court, supporting the respondent
Sanford M. Stein – Argued the cause for the petitioner

Facts of the case

In 1995, Citizens For A Better Environment, a environmental protection organization, filed an enforcement action for relief under the Emergency Planning And Community Right-To-Know Act of 1986’s (EPCRA) Citizen-Suit Provision. Citizens alleged that the Chicago Steel And Pickling Company had violated the EPCRA by failing to file timely toxic-and hazardous-chemical storage and emission reports since 1988. Ultimately, Chicago Steel filed all of the overdue forms with the relevant agencies by the time the complaint was acted on. Arguing this fact and that the EPCRA does not allow suit for purely historical violations, Chicago Steel filed a motion to dismiss, contending that Citizens’ allegation of untimeliness in filing was not a claim upon which relief could be granted. The District Court agreed. In reversing, the Court of Appeals concluded that the EPCRA authorizes citizen suits for purely past violations.

Question

Does an environmental organization have standing to bring suit against companies that fail to meet the Emergency Planning And Community Right-To-Know Act Of 1986’s deadlines for filing toxic-and hazardous-chemical storage and emission reports? Does the EPCRA authorize suits for purely past violations?

William H. Rehnquist:

We’ll hear argument now in Number 96-643, Steel Company, also known as Chicago Steel and Pickling Company, v. Citizens for a Better Environment.

Mr. Stein.

Sanford M. Stein:

Mr. Chief Justice and may it please the Court:

This case involves the 60-day notice period in the citizens provision of the Emergency Planning and Community Right to Know Act, and whether that period is intended to operate as a cure, thereby obviating a citizen’s suit, or whether citizens may sue for wholly past violations even after cure.

As found by this Court in Gwaltney v. Chesapeake Bay Foundation, and again in Hallstrom v. Tillamook County, the overriding congressional purpose of environmental citizen provisions is to prompt compliance with environmental laws.

Litigation ought to be used as a last resort, when other methods have failed.

On receiving a 60-day notice under EPCRA, the Steel Company, a small manufacturing company, came into complete compliance, filing the 15 forms required, all within the cure period.

The respondent, Citizens for a Better Environment, sued anyway.

They alleged no current or ongoing violations.

Sandra Day O’Connor:

Let me ask you a question, please, if I may, Mr. Stein.

What if it were the EPA that were coming in asking for penalties to be imposed after the fact of a cure, so to speak, after the forms were actually filed, but the EPA then comes in and says, well, they should have been filed on X date and they weren’t, and they’ve now filed them, but we want a penalty for every day of the nonfiling.

Under the statutory scheme, is that permissible?

Sanford M. Stein:

Yes, Justice O’Connor, under our reading of the statute the EPA’s enforcement policy comes under section 325 of the statute, a wholly different section than section 326, the citizen provision.

Sandra Day O’Connor:

Well, the citizen’s suit provision I suppose is designed to be a sort of private attorneys general approach, and to let citizens pick up the slack if the EPA doesn’t do it, and is there any reason why the citizens suit shouldn’t have the same authority, then, to come in and seek a penalty for the failure to file on time?

Sanford M. Stein:

Yes.

Several reasons, as we see it.

First of all, section 326 is far more limited, giving citizens a more limited enforcement and assistance role than the EPA’s authority under section 325.

In the citizen provision, a citizen may commence a suit upon the failure to complete or submit the forms.

The Sixth Circuit, in analyzing the same language in the United Musical case, found that it was the failure that Congress was looking for.

EPA’s authority is far broader than that.

Also, section 326(c) of the statute specifically points out that citizens are able to invoke the court’s jurisdiction in the evidence of an enforcement or an injunctive remedy, and then at that time the court can apply penalties if it has jurisdiction through 326, section 326(c).

In that respect, the citizen provision of EPCRA is very similar to the citizen provision of the Clean Water Act that this Court analyzed in Gwaltney.

In Gwaltney, the Court found many reasons to find that Congress did not expect… intend citizens to sue for wholly past violations, but one of the most convincing was section 505(a) of the Clean Water Act.

There, also, the Court found that before a citizen could invoke the court’s jurisdiction it had… there had to be some kind of injunctive or abatement remedy that it was seeking and then, and only then, would the Court be willing to address penalties relative to a citizens’ action.

Beyond that, and further answering, we think that if… even if the court below were somehow correct that they can seek wholly past violations, we think it fails the Article III standing test because on that date any injury that would befall a citizen had been fully cured.

Anthony M. Kennedy:

What about the attorneys fees and costs that the claimant might have incurred in investigating the claim and filing it?

Sanford M. Stein:

Justice Kennedy, the costs that they incur investigating are also costs that they cannot recover if the EPA comes in under the… under EPCRA.

They are barred from suing if EPA comes in under the–

Anthony M. Kennedy:

They can recover those costs if the violation is not cured after 60 days and the suit proceeds and they prevail, can they–

Sanford M. Stein:

–If they prevail, then they can assert a likelihood for fees–

Anthony M. Kennedy:

–Well, but then it seems to me there may be a… you have a statutory argument.

I don’t see the Article III argument.

Sanford M. Stein:

–I think the Court has ruled that penalties alone have to… do not give a party standing.

They have to be… a standing has to accrue as an underlying part of the plaintiff’s claim and just investigation costs and fees are a byproduct of the litigation.

Anthony M. Kennedy:

And what is the proposition… what is a case for that?

Sanford M. Stein:

Diamond v. Charles.

Also, Lewis v. Continental Bank.

Anthony M. Kennedy:

That was just whether or not there was an interest in being a prevailing party per se.

I’m not sure if it said that Congress couldn’t create a cause of action for attorneys fees or investigatory, preparatory fees legitimately and in good faith incurred.

Sanford M. Stein:

I think there was language.

I don’t know if it said the Congress could not, but here I don’t think Congress did.

I mean, it was… well, there’s some addressed–

Anthony M. Kennedy:

Well, then it’s not an Article III question.

It’s just a statutory question.

Sanford M. Stein:

–We believe the statutory question here is far more important than… and… than the Court could rule completely under the statute, because under the plain language of that… it is the completion and submission of the forms, the failure of that action, that gives rise to a citizen action, and that’s what United Musical found, that’s what the district court found.

The–

Ruth Bader Ginsburg:

So on your view, then, if the compliance came after the 60-day period, let’s say the time sequence is 60-day period runs, suit is filed on day 70, the defendant comes into total compliance, files all the back forms, the suit would be moot at that point, if I follow your reasoning.

Sanford M. Stein:

–Justice Ginsburg, at that point, mootness principles would apply and the burden would shift to the defendant to show why mootness would apply and why there would be no likelihood of a recurring violation such as to relieve the court of its jurisdiction.

But whereas mootness will lie after the complaint is filed, if it is filed with Article III authority for standing, mootness standing is the plaintiff’s burden.

It must be proven at the… prior to the complaint being filed, and we don’t believe that they had standing in this case at the time the complaint was filed.

Antonin Scalia:

You’re asking us to read the provision in such a way that nobody would have an incentive to file suit.

If you say that… even when suit will properly lie, according to you, initially, that is, suit is filed before the defendant comes into compliance, you’re saying that suit will be washed out when the defendant complies.

Sanford M. Stein:

Not necess–

Antonin Scalia:

Why would anybody file a suit?

I can’t understand it.

Sanford M. Stein:

–Well, first of all, I think they may file for any number of reasons.

First of all, the Congress was interested in compliance, and interested in citizen enforcement.

If the suit, which we think is properly filed after the 60 days, because that’s the limit of the cure period… the burden on the defendant at that point is a heavy one to show that there’s no further likelihood of an intermittent or recurring violation, and there may be cases where it is mooted, and there may be cases where it is not, but I believe Congress–

Antonin Scalia:

Why shouldn’t we say that… I guess we don’t have to decide that issue in this case, but why couldn’t the situation be that so long as you have not filed before… after the 60-day period and before suit is filed against you, you are liable for the penalty that’s set forth in the civil provision.

Would that contradict your theory of this case?

Sanford M. Stein:

–If you’re filed before the suit was… before the suit was filed, but after the 60 days, I believe standing would not lie.

Antonin Scalia:

If you file after suit, and after the 60 days, if you come into compliance with the law after the suit is filed and after the 60-day period, why isn’t it reasonable to say that the Federal Government intended to give these private attorney generals the right to the penalties accruing?

Sanford M. Stein:

At that point the court would have jurisdiction, Justice Scalia, and the court could apply and determine–

Antonin Scalia:

You say it’s mooted as soon as–

Sanford M. Stein:

–Not necessarily.

No, I did not say it was… I don’t mean to convey that it’s mooted.

I do… I think that the burden severely shifts to the defendant at that point, and the defendant has a heavy burden under–

Antonin Scalia:

–The penalty alone cannot suffice to sustain a suit, the right to the penalty alone.

Sanford M. Stein:

–After… after filing, if the party did not cure within 60 days–

Mm-hmm.

Sanford M. Stein:

–And they did file after suit began.

Mm-hmm.

Sanford M. Stein:

And the court determines that there is reason for the court to retain jurisdiction, it is not moot in the court’s estimation because there is a possibility of further violations, or that the allegedly illegal conduct may continue.

Antonin Scalia:

Assume no possibility of further violations, it’s your position that the plaintiff’s entitlement to the penalty alone wouldn’t make any difference?

Sanford M. Stein:

The court at that time, after a suit is properly filed, would be able to assess whether its jurisdiction… whether the granting of penalties at that point would have some continuing effect, or some beneficial effect as to the defendant, but if it is mooted the court would lose jurisdiction, I would agree, and therefore the penalties would not apply.

David H. Souter:

Would the penalty ever go to anyone other than the Government?

Sanford M. Stein:

Not at all, Justice Souter.

Under section 325, the Government is the only party entitled to receive the penalties.

Ruth Bader Ginsburg:

But even if there were mootness, after the 60-day period ran as a result of compliance there would still be entitlement to attorney’s fees, would there not, because the mootness didn’t come about until after the case was in court.

Sanford M. Stein:

If the court were to retain jurisdiction after properly receiving it, then I assume the court could then address the question of anything within its jurisdiction, including whether or not the prevailing party was the plaintiff, the citizen organization in that case, and whether or not it should receive fees.

We do not have a problem with those issues after proper filing, meaning that there is a violation that is ongoing on the date that the complaint is filed.

Anthony M. Kennedy:

Well, you’re putting in this phrase, retain jurisdiction, and I… maybe Justice Scalia thought you answered his question.

I still… I’m still not sure of the answer to that question.

Let’s assume that after the 60 days has run, the suit is filed, then it’s cured, then it comes before the judge, the judge says there’s nothing more to do, I’m going to give no… I’m going to terminate my jurisdiction now, there’s no necessity for me to issue some ongoing injunction, but I am going to award attorney’s fees.

Can he do that?

Sanford M. Stein:

I believe, Justice Kennedy, he might be able to determine in that case that because the plaintiff brought the suit, and because it was cured after suit, and presumably the judge could at that point say that it was the action of suit that brought the defendant into compliance, he might be able to find that the plaintiff citizen organization at that time was the prevailing party or substantially prevailing party, as the statute reads, and award fees.

I think that would be a–

Anthony M. Kennedy:

Well, from the standpoint of mootness and Article III, the precise analysis would apply if the violation were cured before the 60 days.

Sanford M. Stein:

–If… I disagree, because before the 60 days… Congress gave a 60-day period to cure, and Congress gave citizens the right to sue in the event… going back to the statute, in the event cured… in the event there was a failure to comply.

That is the right that Congress gave citizens the opportunity to vindicate, if it is vindicated either under the statute or under Article III as we see it, but more strongly under the statute, because we think you can decide this under the statute.

Sandra Day O’Connor:

Well, what if it is before the 60-day period that the company files the reports, but the plaintiff believes and is prepared to show that the company is likely to be a repeat offender?

Sanford M. Stein:

Justice, in that situation it would be similar to Gwaltney, where the was a possibility, a likelihood of recurrence, and in that case the court could find that there was… that jurisdiction attaches, because–

Sandra Day O’Connor:

Even though it had been completed and filed, the forms?

Sanford M. Stein:

–Oh, we think under EPCRA it’s a very difficult standard to uphold, unlike the Clean Water Act in Gwaltney, where there was complicated–

Sandra Day O’Connor:

But you say that’s possible, and you don’t tie that to any language of the statute.

Sanford M. Stein:

–I find it theoretically possible, but only on reading the statute academically.

John Paul Stevens:

Isn’t the significant point there’s no such allegation in this case?

They don’t allege, if I remember the complaint, that there’s a likelihood you will not comply.

Sanford M. Stein:

That is correct.

They agree that the violation ceases on page 14 of their brief.

They acknowledge that the violation ceases on the filing of the forms.

This is a case–

John Paul Stevens:

The complaint does not allege a concern about future violations.

Sanford M. Stein:

–It does not, Justice Stevens.

This is a case about a wholly past violation, and that is the point, and under EPCRA, which is an information-gathering and information reporting statute, unlike the Clean Water Act that the Court was concerned with in Gwaltney, where there was… I think the Court said the episodic, chronic episodic instances of violation.

This is not likely to happen here because of some complicated, especially engineered piece of equipment that might fail.

Likelihood of recurrence is extremely remote.

A party would have to be completely asleep.

So the likelihood of recurrence, the likelihood of an intermittent injury here, and that’s what the Court must look at for a recurring violation, is very remote.

Ruth Bader Ginsburg:

Well, why… no, I mean, there was for 8 years no filing, and then it was called to their attention.

By the way, when there was a filing, was it for all the past years or only the most recent year?

Sanford M. Stein:

No, Justice Ginsburg, they filed all 15 forms that were due within the cure period and, as we pointed out both parties rely on the GAO report, that many small companies such as the Steel Company simply were not aware of their requirements, otherwise dutifully compliant with a host of complex environmental laws, and their unawareness… their nonfiling was an innocent unawareness.

But upon being given this information, the notice, they filed, and we think that’s part of the intent of Congress here.

Congress gave citizen enforcement in two stages, first with a notice and cure period, and then, and only then, if a party will not heed or cannot heed, for whatever reason, and come into compliance, then Congress gave citizens a very powerful weapon at the end of that 60 days, which was the opportunity to invoke the court’s jurisdiction and seek penalties.

John Paul Stevens:

Mr. Stein, can I ask you, with regard to attorneys fees and the like, they ask in their complaint for all costs in connection with the investigation and prosecution of this matter, including fees, attorneys fees and expert witness fees.

Now, do you agree that the statute authorizes the award of the investigation costs before suit was filed, or when they were trying to make up their mind whether to file suit?

Sanford M. Stein:

I believe, Justice Stevens, they’re entitled to those fees if they’re a prevailing party, but not if they are not… if they can’t bring suit because the defendant cured in the cure period.

John Paul Stevens:

I’m asking, if they are a prevailing party, you agree they get the pre-suit investigation.

Sanford M. Stein:

The court would be able to look into… that would be a subject before the court if they are a prevailing party in a citizens’ suit, not if, as here, there was a cure–

Stephen G. Breyer:

But the statute says under (f) that the court may award costs of litigation.

Stephen G. Breyer:

That’s what the statute says, so I guess they are entitled to investigatory costs only if those are part of the costs of litigation.

Is that right?

I mean, what we’re… I mean, what I would interpret the question to be is, is there something special here by way of costs that are being awarded in this case that are not normally present whenever a statute provides a winning party with costs of litigation?

Sanford M. Stein:

–And we believe not, Justice Breyer.

We believe this is a normal investigation cost that if the EPA should step in barring them from a citizens’ suit within a 60-day period, they would not be entitled to those costs.

They’re only entitled to those costs as the prevailing or substantially prevailing party, and the question is, is, if there is no suit, if cure occurs during the first stage of the congressionally mandated two-stage citizen action period, is that a cost of litigation or is that a normal cost of their activities, which are to assert their interest on behalf of their members.

So we think their costs come into it if a party is not able to take heed of the 60-day notice period and not able to cure within that period.

At that point, Congress… the congressional goal is satisfied, and the congressional goals achieved.

Compliance was achieved with this law.

The citizens have information that they… the Congress entitled them to have.

David H. Souter:

Mr. Stein, may I ask you this question: one of the arguments that is being made here is that if standing is not found, with the opportunity to go forward with penalties and, of course, get counsel fees and investigatory fees and so on as a result of that, no one is going to have really an incentive… no citizen is going to have an incentive ever to commence one of these proceedings.

My question… with that in mind my question is this: is there any requirement that when a citizens organization starts the 60-day period running it must then have concluded that it can prove a case, or could a citizens group simply come forward and say, we don’t know of any reason why this particular company should not have been filing these reports.

It looks to us as thought they’re covered by the law.

So we’re going to put them on notice that we think they should comply and simply wait and see what happens.

In that latter instance if, at the end of 60 days, there hadn’t been any compliance, then at that point the citizens organization could decide whether to go ahead and in effect make an investment in legal fees and investigatory fees to see whether it would really be worthwhile to bring action.

So that’s why I ask the question.

Can they simply put them on notice, as it were, on the basis of a good faith claim that they ought to be filing, or is there some requirement in the statute or regulations to the effect that they must in effect be ready to establish probable cause, or some such thing, for a violation before they even give the notice that starts the 60 days running?

Sanford M. Stein:

I’m aware of no provision in the statute that would require the latter.

I believe it is… the intent of the notice is precisely as you have formulated it, to put the party on notice that they may be out of compliance and that they have 60 days to cure, but if at the end of that period they don’t, the court’s jurisdiction could be invoked against them.

David H. Souter:

So nobody has to make a big investment to get the 60 days running?

Sanford M. Stein:

I don’t believe so, as, importantly, most of this information is readily available through public filings on the Internet.

This is… despite what the Seventh Circuit said, it is not a huge task, we don’t believe, to investigate these various instances of innocent unawareness, as the case was here, at least investment of cost, particularly for an organization that is devoted, and has 180,000 dues-paying members, devoted to this particular task.

But to be precise, we do not believe it is a very costly or time-intensive activity on behalf of the citizen organization.

David H. Souter:

Well, if that’s so, maybe these organizations could just send out standard notices to everybody.

Sanford M. Stein:

Perhaps, Justice Kennedy, it would be a good idea to help get the word out, because as I say, smaller companies that do not have huge environmental staffs that are able to keep track of all of this have unfortunately gotten caught in this.

It would not hurt.

We were happy to obtain this information.

The Steel Company obtained it, and the first thing they did is, as a dutifully compliant company, compliant with a host of complex laws, said how do we comply, and how fast can we do it, and can we get in within the cure period, and they did, so there is no history here of a company that is trying to dodge or skirt the law.

It’s quite the contrary.

Antonin Scalia:

Why isn’t an adequate explanation of the 60-day cure period that that’s the period provided so that EPA itself might come in, instead of having the private plaintiffs do it?

Sanford M. Stein:

It’s perfectly adequate.

In fact, quite… as specifically set forth in the statute, section 326(e) says that a citizen’s suit is barred.

The citizen organization is barred if EPA decides to assert its authority to enforce this law within the 60-day period.

We believe… and Hallstrom v. Tillamook looked at this.

We believe that that is one of the primary purposes of the notice, to prompt compliance, or enforcement by EPA or compliance by the alleged violator, that it is EPA’s primary role to enforce these statutes and, as stated by Congress, by saying that if EPA comes into it… the case and brings an administrative or judicial action within that period, the citizen organization is barred from its complaint.

Antonin Scalia:

Had that provision not existed I would… I think it would be a very strong argument that the only possible reason for the 60-day period is to give the defaulting company an opportunity to make good, and if the company makes good, then suit cannot be brought after the 60 days, but there is another explanation for the 60 days, as you said.

It’s to allow EPA to come in.

Sanford M. Stein:

But Your Honor, the same provision, the same opportunity for the EPA to come in and bar citizen action existed under the Clean Water Act when it was analyzed by Gwaltney, and the Court found the same reasoning.

The reason for the notice to EPA is to give it a chance to come in, and the reason for the notice to the alleged violator is for the alleged violator to cure.

The Court answered the question, what else could be the purpose of the notice to the alleged violator?

William H. Rehnquist:

In Gwaltney, though, the case turned on fairly specific language in that act, the present tense of to be in violation, and the Seventh Circuit said they thought the language of this act was different.

Sanford M. Stein:

Mr. Chief Justice, Gwaltney used the to be in violation formula, and EPCRA uses the failure to do formulation.

Beyond that, there are not a whole lot of differences between the two provisions.

To be in violation and failure to do are both infinitive phrases.

Failure and violation are both nouns, no temporal limitation.

This is a information-gathering statute.

Antonin Scalia:

There is a temporal… to be in violation, you’re currently in violation.

Sanford M. Stein:

And failure to… and the citizens can–

Antonin Scalia:

Failure to do means you may have failed to do it in the past, and you failed to do it.

Sanford M. Stein:

–In Gwaltney–

Antonin Scalia:

Even though you later made good that failure, you did fail to do it.

Sanford M. Stein:

–In Gwaltney, the argument was advanced that to be in violation also could have a temporal limitation–

Antonin Scalia:

That was a bad argument.

This isn’t a bad argument.

[Laughter]

Sanford M. Stein:

–Well, we submit that failure to do is, as used here is forward-looking also, and Gwaltney studied the legislative history of the Clean Water Act… there’s very little of it here in EPCRA… and the Clean Air Act, the templates that were used for citizen provisions, and found that citizen provisions are intended to be forward-looking.

Failure… understand… I’ll try and make clear… I hope I make clear that failure to do is the operant… the condition before a citizen’s suit can be brought.

In the absence of the failure, a citizen’s suit is not permitted, so failure to do is a phrase which talks about inaction.

In the absence of inaction, the presence of action, a citizen’s suit is barred.

United Musical found that.

Stephen G. Breyer:

I would like you to go back for a minute to this costs, getting your cost.

What is your response to the following fairly simple argument that has to do with whether their injury is redressable, which I take it is the standing question?

You’d say, well, how did this hurt you, their violation?

Answer: you are an environmental group.

The violation hurt you in that you were forced to live in a world without information, or you had to spend some money to cure the lack of information, and the spending of money involved putting the company on notice, and then they cured it.

And so what we do in this statute is, we don’t allow you in respect to past violations… we don’t completely help you out, but we help you a little.

Either they will be stopped in their tracks by the court because they didn’t comply, or if they did comply, we will give you back some of the money you spent getting them to comply, and therefore we are redressing your harm, not all of it, but some of it.

Sanford M. Stein:

Your Honor, if it were that simple, it might be easier, but they are not asking for their attorneys fees alone.

They’re asking for $537 million in penalties.

Stephen G. Breyer:

But I have to worry about a different question.

I take it one of the questions that I’d have to answer in this case is whether there is standing, and the reason you argue there is not is because their injury is not redressable insofar as they were injured, it was redressed.

This lawsuit doesn’t redress it.

Hence my question.

Is the lawsuit aimed at redressing a different part of their injury, namely, the cost of investigating the matter and bringing it to the attention of the company, and the lawsuit gives them some of that money back.

Sanford M. Stein:

At the time the complaint was filed, they had no injury.

Their costs are a byproduct of their litigation.

Every party who had some cost–

Stephen G. Breyer:

You’re saying the statute does not give them back their cost except insofar as they are related to this litigation, which took place as part of the litigation decision, not as the other decision?

Sanford M. Stein:

–That is correct.

Stephen G. Breyer:

And how do I look that up?

Sanford M. Stein:

You find it in the statute, which says that they are entitled to receive their cost if they are the prevailing or substantially prevailing party, but since they can’t get to court because there is no standing on the day the complaint was filed, they don’t have the opportunity to prevail, Congress gave the defendant in this case, who should not be a defendant, the opportunity to cure, obviating the suit.

And when Gwaltney studied this it said, you know, the citizens don’t get their pre-investigation costs if EPA were to come in either, so the Congress was not necessarily that interested in those costs, only in the event a party could not heed the 60-day notice, could not come into compliance, we have severe costs, then they could get those extraordinary costs as being the substantially prevailing party.

Mr. Chief Justice, I’d like to reserve the balance of my time.

William H. Rehnquist:

Very well, Mr. Stein.

Mr. Strauss, we’ll hear from you.

David A. Strauss:

Thank you, Mr. Chief Justice, and may it please the Court:

Let me begin with the language of section 326 of EPCRA, the citizen’s suit provision, both what it is and what it is not.

Section 326 provides that a citizen may bring a suit for a failure to complete and submit a form under section 312, or under section 313.

That citizen’s suit provision does not occur, that form of citizen’s suit provision does not occur anywhere else.

The kind of citizen’s suit provision that was before the Court in Gwaltney used the term, alleged to be in violation.

David A. Strauss:

That provision is ubiquitous throughout citizen’s suit provisions that Congress has enacted.

Alleged–

Stephen G. Breyer:

I have three statutes that use the word, occur.

One is CERCLA, one is RCRA, and one is TOSCA, and they all use in the venue provision the word occurred, and then in the liability provision… they’re rather parallel to this one, aren’t they?

David A. Strauss:

–The venue provision uses the word occur, Justice Breyer.

Yes.

David A. Strauss:

What I’m focusing on is the provision that authorizes citizen’s suits, which in those three statutes contains the phrase, alleged to be in violation.

Stephen G. Breyer:

Right, and so they’re parallel to this one.

David A. Strauss:

No, this statute does not contain the phrase, alleged to be in violation.

Stephen G. Breyer:

Well, in violation of–

David A. Strauss:

It says, failure to complete and submit a form.

The alleged to be in violation formulation, which is the formulation that the Court held in Gwaltney, a case with facts somewhat parallel to this, led to the conclusion for which petitioners contend.

That formulation does not occur in this statute.

What this statute contains is the phrase, failure to complete and submit a form under section 312 and section 313.

The evidence that this is a deliberate choice by Congress is really quite overwhelming.

In the very same public law that enacted EPCRA, Congress also enacted the Superfund amendments.

The Superfund amendments contain a citizen’s suit provision.

That citizen’s suit provision used the alleged to be in violation formulation.

EPCRA used a different one.

John Paul Stevens:

–It couldn’t have used that language here.

I mean, if he complies… well, anyway, I’m sorry.

I’ll withdraw my question.

David A. Strauss:

Justice Stevens, then they could have used that language.

Alleged to be in violation, had it been used in EPCRA, would lead quite logically–

Ruth Bader Ginsburg:

Mr. Strauss, the violation here, the only requirement is that you file a form, so then it’s logical to talk about failure to file or submit a form.

In the other statutes, perhaps more encompassing, there would be a reason to use language, alleged to be in violation, because there were many things that could violate the statute.

David A. Strauss:

–Well, Justice Ginsburg, there’s… the requirement in EPCRA is that you file a form by a certain date, and what the statute says is, failure to complete and submit a form under sections 312 and 313.

Sections 312 and 313 contain deadlines, and it seems to us that if you do not you are guilty of a failure to complete and submit a form under section 312 if you don’t meet the deadlines in 312.

Sandra Day O’Connor:

Well, you don’t have to read it that way.

I mean, it does possibly suggest to you that if the form is completed and filed, it meets the requirement regardless of when.

David A. Strauss:

Then I think–

Sandra Day O’Connor:

It’s a little… it’s open to that interpretation, isn’t it?

David A. Strauss:

–Well, Justice O’Connor, then I don’t know why the language about under that section would be in the statute, failure to complete and submit a form under section 312.

In fact, I’m–

Sandra Day O’Connor:

Because 312 is the statute that says the forms will be filed.

David A. Strauss:

–Well, I’m actually… I’m actually omitting a part of the statute.

It says, failure to complete and submit an inventory form under section 312, so the reference to section 312 wasn’t even needed to say which form they had in mind.

And not only that, Justice O’Connor, but it’s quite clear from the structure of the statute and from the purposes of the statute that timeliness is not an incidental requirement.

Timeliness is at the core of what the statute is about.

Sandra Day O’Connor:

Well, but the 60-day notice provision has to be factored in, too.

It must have been there for a purpose.

David A. Strauss:

Well, absolutely, Justice O’Connor, and Mr. Stein referred to it as a 60-day cure provision, which is a curious reference for a number of reasons.

Here’s one.

The Clean Air Act contained the phrase, alleged to be in violation.

After this Court’s decision in Gwaltney, Congress… it also has a notice period.

After Gwaltney, this Court amended, or the Congress amended the Clean Air Act to include the phrase, or to have violated, making it clear that Gwaltney was not to apply to the Clean Air Act, but Congress left the notice period intact in the Clean Air Act.

Ruth Bader Ginsburg:

But wasn’t it more than that?

Wasn’t it simply that they didn’t… that they violated it on one occasion, but wasn’t there something built into that amending language that suggests that the person was a repeat violator?

David A. Strauss:

Yes, exactly so, Justice Ginsburg.

Alleged to have violated, if there is evidence that the violation has been repeated, but that could still be entirely in the past.

It could be a violation in the past, repeated in the past.

Antonin Scalia:

Such evidence would allow this suit to proceed anyway, on the theory that there’s likely to be a repetition.

Opposing counsel acknowledges that.

David A. Strauss:

I think that’s right, Justice Scalia.

What–

John Paul Stevens:

I don’t think… how you can agree with that, because the complaint doesn’t allege that.

David A. Strauss:

–Well, Justice Stevens, what we do in the complaint, we ask for an injunction that will allow us to look at their property in the records.

John Paul Stevens:

–and so forth, but you don’t allege there’s any risk of continuing violations.

David A. Strauss:

Justice Stevens, we don’t know.

We don’t know what the story is.

David A. Strauss:

All we know is, they didn’t file.

John Paul Stevens:

Then your burden, normally you have to make an allegation then try and prove it.

David A. Strauss:

Well, we don’t know whether they would or would not.

Antonin Scalia:

Well then, you don’t have any cause of action.

David A. Strauss:

Well–

Antonin Scalia:

If you must know something to bring a suit, and you don’t know it, you don’t have a suit.

David A. Strauss:

–Justice Scalia, we don’t see anywhere in the statute where it says this has to be a repeat violation.

It says there has to be a failure to submit a form under a section with a deadline, a deliberately chosen provision that differs from all other citizen’s suit provisions.

Ruth Bader Ginsburg:

But that’s fine.

You could allege that they didn’t do this on this one occasion.

You say that’s all that this statute required.

David A. Strauss:

That’s right.

Ruth Bader Ginsburg:

I thought the question was, are you asserting a continuing violation, or any reason to project that there might be one, and I think the… your answer candidly is, the statute didn’t require it and we didn’t plead it.

David A. Strauss:

What we pled was, what we asked for was authorization to inspect their property.

We may know down the road whether they are right in saying that they simply didn’t know about the statute and now they’ve gotten everything in order, or maybe that’s not the case.

We just don’t know.

This complaint was dismissed.

But the statute doesn’t contain any reference to repetition.

The statute says, a failure to complete and submit.

John Paul Stevens:

No, but it’s relevant to the question of standing, because we’re trying to focus on exactly what–

David A. Strauss:

Mm-hmm.

John Paul Stevens:

–your injury is, and if your injury is a fear of continuing violations, you could allege that and presumably prove it, if they were people who didn’t obey the law over and over again.

But here, the facts don’t seem to suggest that, and it’s not alleged in the complaint.

The only injury that you refer to in the briefs and all is a costs of investigation which you want to get reimbursed for, but you don’t allege in your complaint you have any costs of investigation, either.

David A. Strauss:

Well, we allege in the complaint that we undertook an investigation.

John Paul Stevens:

No.

You generally follow what happens in the environmental community.

I don’t think you allege you spent any money beyond your normal, routine expenses in investigating this company.

David A. Strauss:

Oh, absolutely, Justice Stevens.

We conducted an investigation of this company–

John Paul Stevens:

You don’t allege it, is what I’m saying.

David A. Strauss:

–I think we allege in there that we conducted an investigation of the company, but I’ll find the page reference.

Antonin Scalia:

If it would suffice for standing for everybody to get the costs of bringing the suit, gee, everybody would have standing for any suit at all.

David A. Strauss:

Justice Scalia, that’s–

You know–

David A. Strauss:

–That’s right, but that’s–

Antonin Scalia:

–whatever it cost you to bring the suit gives you standing to bring the suit.

David A. Strauss:

–Here’s why this statute is… here’s why this statute is different, Justice Scalia, and why that argument, which is, of course, right, does not apply, and the point Justice Kennedy and Justice Breyer made in their questions to my colleague.

In… before we could file the notice, we had to conduct an investigation to find out information that they, had they been complying with the law, would have made readily available.

Because they didn’t comply with the law and make this information available, we had to dig it out.

If we win the case, we’ll get the money back that will compensate us for doing work we only had to do because they didn’t give us the information.

Sandra Day O’Connor:

Well, isn’t that a simple matter?

As your opposing counsel said, it’s on the Internet whether or not they filed the report.

If the report had been filed, there it would be.

David A. Strauss:

Whether they filed the–

Sandra Day O’Connor:

So you find out they didn’t file it.

David A. Strauss:

–Whether they filed the report is on the Internet, Justice O’Connor.

What is not on the Internet is that they use and release large amounts of hydrochloric acid from their premises.

We can’t go on their premises.

We have to put… piece together from various… from tips from people in the community and various sources of information–

Sandra Day O’Connor:

Well, you don’t need much of that.

You know what the companies in the business–

–Is that–

–are doing.

The gist of the action is failure to file the report, not trying to show the report is untrue.

David A. Strauss:

–In this case they filed no report.

Because they filed no report, we had to dig out information that should have been publicly available.

The purpose of the act is to make this information available to us and our members.

It wasn’t, because they violated it.

William H. Rehnquist:

So you say you would have benefited had they filed their report, because you wouldn’t have had to dig out the information yourself.

David A. Strauss:

That’s right, Mr. Chief Justice, or the reverse of that, that because they didn’t file reports, we had to dig this information out.

William H. Rehnquist:

Why did you–

–You dug it out for some independent purpose, not just to try to show that their report might be false?

David A. Strauss:

Well, they filed no report.

We dug it out to determine whether they had failed to file a report.

This goes to the–

William H. Rehnquist:

Why do you need to dig it out in order to determine whether they failed to file a report?

David A. Strauss:

–Excuse me.

Whether they failed to file a report that they should have filed.

Whether they had on their premises the kind of substances that trigger the obligation to file a report.

David H. Souter:

Well, what is your answer to Mr. Stein’s point in responding to one of my questions that you didn’t have to dig at all?

If you had any reasonable suspicion that they should have filed a report, all you had to do was put them on the spot and say, we claim you should have, the 60 days are running, and if at the end of the 60 days they had not filed a report, then you could have… you would have had a basis for saying… or you could have made a decision at that point as to whether to invest something further into this investigation, but you didn’t have to do the digging, according to him, that you claim you did.

Is he wrong?

David A. Strauss:

Justice Souter, the notice provision says notice of the alleged violation.

I think if we sent the petitioner just a general notice that said, we think you’re violating EPCRA, with no specifics, they would be justified in coming in when we brought suit and saying, you didn’t give us 60 days’ notice of the alleged violation.

You have to tell us more than just, we think you’re violating the law.

John Paul Stevens:

Well, all you’d have to do is say, we think you’re discharging certain substances into the air, you’ve filed no report, and we think you have a duty to do so.

David A. Strauss:

Well, we have to determine that they are discharging or have on their premises certain substances, which it’s not easy to do.

It’s not easy to determine not only certain substances, but the quantities have to exceed certain thresholds.

John Paul Stevens:

You don’t have to know the details.

Even if it’s just an ounce there’s a duty to file… maybe there’s a minimum threshold.

David A. Strauss:

There’s a threshold.

They have to exceed the threshold.

Stephen G. Breyer:

What do you say about Mr. Stein’s answer to my question.

He had a pretty good answer, I thought, that he said that the… as far as the harm goes in respect to your not having the report filed, well, that was cured, so this suit doesn’t aim to get you that, and as far as the costs go, in paragraph (e) of your complaint what you actually ask for is to award the plaintiff all of its investigation and prosecution costs and others as authorized by section 326(f), and then he says, if I read section 326(f) I’ll see that it authorizes litigation costs, pure and simple, and so it can’t help you redressing that kind of harm without opening the door to Article III being no limitation on the lawsuits.

David A. Strauss:

Justice Breyer, the statutory provision authorizes an award of litigation costs.

This Court has said actually that a more narrow provision authorizing just attorney’s fees that the work must be useful and of a type ordinarily necessary.

That’s the standard the court has used.

Antonin Scalia:

I don’t think attorney’s fees is narrower.

I think it’s broader.

Antonin Scalia:

I mean–

David A. Strauss:

Well, this says litigation costs–

–litigation costs is a–

David A. Strauss:

–Well, this says litigation costs… including attorney’s fees and expert witness fees… suggesting that it’s broader.

David H. Souter:

–Well, necessary to redress something, not necessary, as it were, in a circular fashion, merely to be in a position to claim attorney’s fees–

David A. Strauss:

Yes.

David H. Souter:

–or investigatory fees, so your claim is still tied to an obligation to come up with some injury that can be redressed by the suit, and number 1 there is no claim here that there’s any further redress that you can get for the past failures.

Everything that can be known is now known.

There is no allegation, as I read it, that in fact there is a likelihood of violation in the future.

Number 3, if you make your claim for the penalties, you don’t get one red cent of that penalty money, as I understand it, so that the only thing that you can obtain that you do not now have is the attorney’s fees or the investigatory fees, and they are tied, it seems to me, to litigation which has got to give you some other benefit.

In other words, they alone cannot under the statute justify it.

So I guess my problem is, if I construe the statute the way you want me to construe it, it seems to me there is a very serious Article III question, and it makes sense to construe the statute in a way which will not raise this Article III question.

What’s wrong with that argument?

David A. Strauss:

Let me first address the point about circularity, Justice Souter, because I do understand the circularity point, and here is why we are not making a circular argument about attorney’s fees.

One of the injuries they inflicted on us was not giving us information we and our members had a statutory right to.

As a result of that, we had to dig out that information ourselves.

If we win, we get our costs of digging that out, therefore our injury is redressed.

A suit under the Clean Water Act, you don’t have to clean up the water.

David H. Souter:

But you’re not saying, are you, that the statute gives you a statutory right to that independent of the section that refers to litigation costs?

David A. Strauss:

The litigation costs provision is the provision that gives us a right to that–

David H. Souter:

Okay.

David A. Strauss:

–To those expenses.

The reason it gives us a right to those expenses, to answer Justice Breyer’s question on that score, is, we couldn’t have signed a Rule 11 statement had we not conducted that investigation.

We couldn’t have signed a statement saying we believe they have hydrochloric acid on their premises had we not gone out and dug up that information.

John Paul Stevens:

You certainly could have at the time you filed your complaint, because they had already filed their reports which told you those facts.

David A. Strauss:

Well, but we had to–

John Paul Stevens:

That’s when you have to file your Rule 11 statement.

David A. Strauss:

–Well, but the complaint had to follow on a notice of the alleged violation, otherwise the complaint would be jurisdictionally barred.

John Paul Stevens:

In other words, Rule 11 applies at the time you file the complaint.

You had all the facts then.

David A. Strauss:

Well, that’s right, but then it’s a jurisdictional prerequisite to the complaint.

John Paul Stevens:

In fact, it also seems clear to me as we talk about it more that at the time you filed the complaint your principal injury, which was you were denied this information for a time when you were entitled to it, you had got the information by the time you filed the complaint.

David A. Strauss:

Justice Stevens, what the statute guarantees is timely information.

People who moved into petitioner’s neighborhood–

John Paul Stevens:

I understand.

David A. Strauss:

–in 1990 aren’t benefited by knowing in 1995 that they’ve been exposed–

John Paul Stevens:

You are not going to get any redress in this complaint for harms caused by your failure to have that information 3 months ago.

You don’t get a remedy for, we had to close our windows to keep the odors out, or something like that.

You don’t get relief for that.

David A. Strauss:

–No.

That is the injury.

That is the injury, Justice Stevens.

The redress–

John Paul Stevens:

–for which you are not redressed by this proceeding.

David A. Strauss:

–That injury… that injury that we did not have the information is redressed only to the extent that when we dug it out we will now get paid back for mitigating the injury they inflicted on us.

Ruth Bader Ginsburg:

Mr. Strauss, in attorney’s fees provisions, I mean, there are many in many statutes, and I had thought that the Congress tried more or less to be careful about when it is talking about litigation fees, that is, fees generated post complaint, and fees that happen because of investigation, fees at the agency level, and when Congress speaks of litigation fees, that generally has meant while you’re in court, and when it talks about fees before the agency or investigation, that’s for that earlier period.

But here, the term is litigation fees.

David A. Strauss:

It’s litigation costs, Justice Ginsburg, and I agree this would not apply to an agency proceeding, but the Court has made it clear that litigation costs or attorney’s fees include work that goes into developing the complaint, as, of course it would have to, investigation you have to do in order to develop, as in the Court’s words, the work associated with the development of the theory of the case, and the drafting of the initial pleadings.

That sort of pre-complaint work has to be covered by the term.

It’s an integral, indispensable part of litigation.

Antonin Scalia:

Yes, but you’re saying that this material is… I mean, it seems to me you’re arguing that it’s two different things.

First you’re arguing it is an independent damage and not associated with attorney’s fees because we wouldn’t have known what stuff was in the air.

Then, you get damages for this by calling it attorney’s fees, or litigation… which is it?

David A. Strauss:

The question–

Antonin Scalia:

Did you do this investigation in order to bring the lawsuit, in which case you can’t rely on that for standing, or, did you do it not in order to bring the lawsuit, in which case it’s not part of your cause of action?

David A. Strauss:

–As I understand the standing issue, Justice Scalia, the question is, are our injuries being redressed?

If we win this lawsuit, our injuries will be redressed.

They’ll happen to be redressed under a provision that says, litigation costs, but that’s immaterial to the Article III question.

Antonin Scalia:

It depends on why they were undertaken, why these investigations were undertaken.

Were they undertaken in order to bring this lawsuit?

Antonin Scalia:

In that case, the statute gives you a right to them, but I question whether you have standing–

David A. Strauss:

I think they were–

Antonin Scalia:

–have Article III standing.

On the other hand, were they conducted not in order to bring the lawsuit, but just because you wanted to know what was out there in Hyde Park, or wherever, in which case you clearly would have standing, but you have no cause of action under this statute.

David A. Strauss:

–Well, they were undertaken for both purposes, Justice Scalia.

What CBE does is to find out information about the communities and if someone is in violation of the law bring suit against them, but I don’t know why our purpose in doing this should be material to the redressability inquiry.

Our injury will get redressed.

The fact that it will get redressed under a litigation cost rubric, I don’t see where that bears on the Article III problem.

Antonin Scalia:

Because it relates to whether they constitute litigation costs.

If you would have done this stuff anyway, they’re not litigation costs, which is all that you’ve asked for.

David A. Strauss:

Well, that goes to the statutory question of whether they are litigation costs.

Stephen G. Breyer:

Another reason it relates is because, if you say that giving a person litigation costs is sufficient to create an Article III case, then there is virtually… I mean–

David A. Strauss:

Yes.

Stephen G. Breyer:

–expanded… it’s un… you know–

David A. Strauss:

No, I–

–Congress–

David A. Strauss:

–I–

Stephen G. Breyer:

–that’s the problem.

But if you read it the other way, it seems to make a certain amount of sense.

Those instances where the company might not comply in the future, you allege that, ask for an injunction, and there you have no standing problem.

David A. Strauss:

–Well, we–

Stephen G. Breyer:

In those cases where there’s no significant risk of that at all, you can’t.

David A. Strauss:

–We–

Stephen G. Breyer:

But of course, then, there wasn’t really a case.

David A. Strauss:

–We… well, we do ask for an injunction in this case.

We do ask for an injunction to look at their materials.

As for the question of the circularity and supporting any case, what’s different about this statute is that in order to bring this suit we have to remedy the injury that was inflicted on us in order to bring the suit.

Usually, litigants don’t have to do that.

William H. Rehnquist:

Thank you, Mr. Strauss.

David A. Strauss:

Thank you, Mr. Chief Justice.

William H. Rehnquist:

Mr. Gornstein, we’ll hear from you.

Irving L. Gornstein:

Mr. Chief Justice, and may it please the Court:

Our position is that EPCRA authorizes a citizen’s suit for failure to file timely reports when the reports are filed only after notice of an intended citizen’s suit.

Anthony M. Kennedy:

Do you also take the position in the case of suits against the Administrator?

If the Administrator is given 60 days’ notice, and then before the 60 days expires begins to take the corrective action, can the plaintiffs still sue and recover attorney’s fees?

Irving L. Gornstein:

They could not recover civil penalties for sure, against the Administrator.

The question would be whether there was a sufficient likelihood of recurrence to give them Article III standing.

That would be the issue–

Gee–

Irving L. Gornstein:

–in that sort of case, so–

Stephen G. Breyer:

–Well, if it’s that, then how do you run across the problem here that they haven’t alleged anything about recurrence?

Irving L. Gornstein:

–Well, I… first of all, I read the complaint a little differently to be ambiguous on that point at (5) of the Joint Appendix.

It says, the right to know about such releases and its interest in protecting and improving the environment and the health of its members have been, are being, and will be adversely affected by the defendant’s action in failing to provide timely and required information.

It doesn’t speak backwards, it doesn’t speak forwards.

It speaks in terms of the language of the statute there, and–

Stephen G. Breyer:

It sounds as if what it’s saying is their failure to file in the past will continue to hurt them in the future.

Irving L. Gornstein:

–Well, that’s one way of reading it, but they also seek an injunction that looks towards future compliance, it seems to me, that might sort out that ambiguity a little.

And beyond that, Justice Souter, even if this particular… to answer your complaint about the, shouldn’t we interpret this more narrowly in light of the constitutional question, even if this particular complaint doesn’t allege what is sufficient for a reasonable likelihood of occurrence, that wouldn’t mean that some plaintiffs couldn’t, and therefore this statute ought not to be interpreted more narrowly than it is, because certainly the–

David H. Souter:

Oh, I’m not suggesting the… or, I didn’t mean to suggest by my question that the statute should be interpreted so narrowly as to preclude standing if there were an allegation of either a continuing violation or the probability of a future violation, but I’m concerned about the interpretive question when there is no question of continuing violation in the sense that they file everything that can be filed with respect to the past, there is no allegation, and we’ll leave the question of ambiguity aside for the moment, of the likelihood of a future violation, there is no penalty that can be recovered that will go into the pocket of the private plaintiff, and the only thing which is in issue is the issue of attorney’s fees or investigatory fees for the time prior to the moment when litigation could be begun.

That’s the scenario in which it seems to me there is an Article III, a serious Article III question, and it’s on that scenario that I would suggest it might be wise to interpret the statute narrowly to avoid having to reach that issue.

Irving L. Gornstein:

–Well, let me just define the class of plaintiffs who have a cause of action here and then say why we think that there’s no Article III problem.

The class of plaintiffs who have standing are only those class of plaintiffs where the defendants files the report only after receiving notice of an intended citizen’s suit.

That is what this statute authorized.

We derive that not just from the plain language of the citizen’s suit provision, which says that you can sue for failure to file untimely reports, but by a contrast between the notice–

Sandra Day O’Connor:

It’s not in that language.

It doesn’t say that.

Failure to complete and submit reports under section so-and-so.

Irving L. Gornstein:

–Right, and the most natural reading of under in that context is that it incorporates the requirements from the reporting provisions so that they did not have to be repeated all over again in the citizen’s suit provision, and one of those requirements is that there has to be timely reports, so a failure to submit and complete reports under those reporting provisions encompasses a suit for the filing untimely reports just as it encompasses a suit for inaccurate information in those reports.

David H. Souter:

Well, it may, but do you agree that there is nothing further that can be done to redress the prior failure?

Irving L. Gornstein:

And that’s why the Article III question turns on the reasonable likely… the Article III standing question is whether there’s a reasonable likelihood of recurrence in that situation, and we submit that the voluntary cessation–

John Paul Stevens:

May I interrupt you there, because it’s quite important.

Irving L. Gornstein:

–Okay.

John Paul Stevens:

Then you’re saying the reasonable likelihood of recurrence is critical to the standing issue.

Irving L. Gornstein:

It is.

John Paul Stevens:

And that is not alleged here.

Irving L. Gornstein:

I–

John Paul Stevens:

And you say, well, it might be in other cases, but assume it were alleged in another case but not proved.

It’s a very difficult thing to prove, if you have a company like this with a history of just an inadvertence and so forth.

You are saying the plaintiff would have to prove there is a reasonable likelihood they would not file in the future.

Irving L. Gornstein:

–No.

There is–

John Paul Stevens:

They can allege it without proving it?

Irving L. Gornstein:

–There is a… no.

It has to be alleged that there is a sufficient likelihood of recurrence.

John Paul Stevens:

All right.

Irving L. Gornstein:

But there… the presumption would come that in this scenario where somebody files a report only after being given notice that he’s going to be sued, there should be a presumption that there is a sufficient likelihood of recurrence to give the plaintiff Article III standing–

Ruth Bader Ginsburg:

Why, any more than if the police engaged in a certain kind of tactic and were told that that’s not good to do, that they’re not going to do it any more?

There are many cases where it’s easy to allege continuing violation.

Irving L. Gornstein:

–Well, I think if this Court’s voluntary cessation cases do say that when someone comes into compliance only after the commencement of litigation there is a–

Ruth Bader Ginsburg:

But there is a commencement of litigation.

Irving L. Gornstein:

–I realize that, but I want to start with the principle that the Court has established–

William H. Rehnquist:

That’s not Article III.

That’s entitlement to an injunction.

Irving L. Gornstein:

–No, it’s an Article III doctrine that the Court?

Stephen G. Breyer:

It’s mootness, and in a case called mootness… there was a case under the Constitution.

There’s no argument.

Do you think those should be parallel?

If they’re parallel, I don’t know what that’s going to do to standing law.

I haven’t really thought that through.

It never occurred to me that those two things were parallel.

Irving L. Gornstein:

They are parallel in an Article III sense, Justice Breyer.

Stephen G. Breyer:

So in any case in which the possibility of recurrence prevents mootness, in any such case, a plaintiff would have standing despite the absence of any… of any ongoing violation.

That’s a pretty broad–

Irving L. Gornstein:

That there would be a prudential standing barrier at that point, because the Court has not carried on on its own the same rules at the standing stage, the same presumptions at the standing stage that it has employed at the mootness stage, but as an Article III matter, any time somebody comes into compliance only because someone has either told them, I’m going to sue you or somebody has filed a lawsuit, there’s a presumption.

Now, that presumption, I hasten to add, can be rebutted.

William H. Rehnquist:

–What’s the presumption–

–What’s the argument for the presumption?

–based on?

Irving L. Gornstein:

The voluntary cessation cases that we’re relying on include United States v. W. T. Grant, City of Mesquite v. Aladdin’s Castle, and a whole series of cases.

Antonin Scalia:

Are they based on–

–All they show is that if there was originally standing, that there was… it was established that there was going to be a continuing violation.

That simply does not eliminate the prior established standing.

It’s a huge leap from that to say that in and of itself it establishes standing.

Irving L. Gornstein:

No, I don’t think it is a huge leap as an Article III matter, because as an Article III matter, the plaintiff at that stage of the litigation has to have a sufficient interest for Article III purposes to carry on the litigation.

If the… if it… let’s say things had been remedied 1 day after this litigation commenced, 1 day after, you would apply the voluntary cessation cases and you would say there is a presumption that there is a sufficient likelihood of recurrence to keep this case alive, and that could be rebutted only if the defendant has a heavy burden.

Antonin Scalia:

I would agree with that if the complaint alleged before the voluntary compliance occurred that this person was in violation and would continue in violation.

Irving L. Gornstein:

But we have a situation, though, where the person has cured that original violation, and the plaintiff at that point has the burden of showing that he has a continuing interest in the litigation.

The only way he gets there is through a presumption.

Stephen G. Breyer:

All right, but let’s allege it at least.

I mean, look, this seems like the simplest approach is also the best approach.

The simplest approach would say, in those instances where there’s some likelihood of recurrence, the lawsuit’s serving an excellent purpose.

The lawsuit is.

And in those cases where there is no likelihood whatsoever, the only purpose it’s suing is perhaps through the litigation cost thing to give them some of their money back.

Well, that would be the simple approach, and why not follow that simple approach?

Irving L. Gornstein:

Well, I think that there’s no problem with carrying over the idea that there has to be an allegation, but I think that the important point is that there has to be a presumption with that allegation–

Anthony M. Kennedy:

What’s the presumption based on?

Is it based on our judicial notice that there’s an empirical likelihood that when you violate something once, you’ll violate it again?

Irving L. Gornstein:

–It’s not an empirical likelihood, but a sufficient likelihood in the scenario where the person only comes into compliance after the commencement of litigation.

If somebody is coming into compliance–

Anthony M. Kennedy:

Why is that a likelihood here, when one of the problems is, is that this company just didn’t have notice of the statute?

Anthony M. Kennedy:

It just didn’t know about it?

Irving L. Gornstein:

–Well, that’s what the company asserts, Justice Kennedy, and that would be something that would–

Anthony M. Kennedy:

Isn’t this going to be a likelihood in a significant number of these early cases?

Irving L. Gornstein:

–Well, this is no longer at the–

Anthony M. Kennedy:

I don’t know what your presumption is based on.

Irving L. Gornstein:

–There’s no longer… we’re far distant from the time in which this statute was enacted at this point.

If the Court has–

William H. Rehnquist:

Thank you, Mr. Gornstein.

Mr. Stein, you have 4 minutes remaining.

Sanford M. Stein:

Relative to the term under, the term under appears 27 times in section 326, the citizen provision of EPCRA.

We assert in our briefs that under simply relates back, identifies the section of the statute that the citizen opportunity refers to.

William H. Rehnquist:

But isn’t it equally reasonable to think that it refers to in compliance with the provisions of, rather than just the statute by name?

Sanford M. Stein:

Mr. Chief Justice, Ardonesti v. INS says that the term under should be taken from the context of the statute, and the–

William H. Rehnquist:

I don’t think we need that case to tell us that.

[Laughter]

Sanford M. Stein:

–Well, in any event–

Antonin Scalia:

–what was the name of that case–

Sanford M. Stein:

–in the context of this statute, though, I think in the context of the history surrounding the statute, and the context of the way this Court has analyzed citizen suit provisions as being forward-looking, under simply is a relation back.

Again, they… respondent suggests that under means in accordance with, but at section 326(a)(1)(B)(iv), and again in section 321(a)(1)(C), Congress did use the in accordance with formulation, and therefore Congress knows how to say, in accordance with, if it wishes to incorporate the specific provisions of the related-to section, and it knows how to use under, as it did 27 times.

So we think the better reading, as the United Musical Court looked at it.

Under simply relates back, and did not get into what that Court–

Antonin Scalia:

–So you think if you filed a statement of emissions that was entirely wrong, all the elements and all the quantities are wrong, you’d… suit would not lie?

Sanford M. Stein:

–No, Justice Scalia.

We–

Antonin Scalia:

It would have been filed under that provision.

Sanford M. Stein:

–The… but it’s also–

Antonin Scalia:

It’s just not in compliance with it, that’s all.

Sanford M. Stein:

–No.

We think that the complete portion of the complete and submit language suffices for that.

A form would certainly not be complete–

Antonin Scalia:

It’s completed.

There’s no blank in the whole thing.

He just writes in the wrong elements and the wrong quantities.

Sanford M. Stein:

–But we think Congress would not give such an obviously glaring omission in a statute.

The complete language connotes some kind of completeness in terms of proper and accurately complete.

That’s what complete seems to me.

Stephen G. Breyer:

But the language certainly is open, and if it’s open, why wouldn’t it make a lot of sense to say, in the instance where there’s some reason to think they’ll do it again, they did it before, maybe they’ll do it again.

Or they didn’t do it before, maybe they won’t do it again.

In such a case, it authorizes the suit.

Sanford M. Stein:

It would be inconsistent to apply… if we’re talking about under, still, and the timeliness element, it would be inconsistent to apply the timely provisions of section 312 and 313, because Congress had readily available options which it used in other statutes.

It could have said, failure to complete and timely submit.

It could have said, failure to have completed and submitted.

It had many options.

It could have given the opportunity to–

John Paul Stevens:

Of course, it could have used the language it did in all these other statutes, too.

But what’s your response to his argument when Congress amended the other statute in response to Gwaltney they just didn’t adopt this route?

Sanford M. Stein:

–Well, by amending the Clean Air Act in 1970… 1990, to say that the… they can sue for a past violation in the event there is evidence of a repeated violation certainly doesn’t amend EPCRA.

It only amends the Clean Air Act, or any of the other statutes that use these various formulations in citizen’s suits.

United Musical drew strength from the fact that Congress amended the Clean Air Act but not EPCRA to say EPCRA must mean what the citizen’s 60-day cure periods mean in 17 other statutes, all 17 of which were cited in a footnote in Hallstrom.

So looking at the case as a whole, looking at the context, we think that–

Antonin Scalia:

A later Congress’ amendment doesn’t necessarily show what the earlier Congress meant, anyway.

I mean–

Sanford M. Stein:

–No.

Antonin Scalia:

–It’s as reasonable to think the amendment was meant to change what preexisted as it is to think that it was meant to confirm what preexisted, isn’t it?

Sanford M. Stein:

But we don’t think there’s any likelihood that Congress would have done that without citing any of that in its legislative history of the Clean Air Act.

William H. Rehnquist:

Thank you, Mr. Stein.

Sanford M. Stein:

Thank you.

William H. Rehnquist:

The case is submitted.

The honorable court is now adjourned until tomorrow at ten o’clock.