Steel Company v. Citizens for Better Environment Page 16

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Audio Transcription for Oral Argument - October 06, 1997 in Steel Company v. Citizens for Better Environment

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--