Also known as: wholly-past violations · past violations
Written by attorneys — see sources below.
A completed breach of legal requirements that has ended before suit is filed and poses no continuing or imminent threat. Such violations do not support claims for civil penalties in citizen suits because no ongoing harm exists to redress.
Indigent litigants sue a state court administrator in federal court seeking refunds of filing fees collected over prior years in violation of federal waiver rules. The complaint also requests an injunction against future collections. The court dismisses the refund claims because they seek retroactive monetary relief from the state treasury for completed past violations.
An environmental group sues a company under EPCRA for failing to file required reports in previous years. No ongoing or future violations are alleged. The court dismisses the action for lack of standing because the violations are wholly past and civil penalties payable to the government cannot redress the plaintiffs' injury.
Citizens for a Better Environment, an association of individuals interested in environmental protection, sued Steel Company, a small manufacturing company located in Chicago, alleging that Steel Company had failed since 1988 to complete and submit the annual hazardous-chemical inventory forms and toxic-chemical release forms required by the Emergency Planning and Community Right-To-Know Act of 1986. The forms must list the name and location of the facility, the name and quantity of each specified chemical on hand, the waste-disposal method employed, and the annual quantity of toxic chemicals released into each environmental medium, with inventory forms due each March 1 and release forms due each July 1. In 1995 the association sent the required 60-day notice to Steel Company, the EPA Administrator, and Illinois authorities, accurately alleging that Steel Company had never filed the required forms. Upon receiving the notice, Steel Company filed all of the overdue forms with the appropriate agencies. The EPA took no enforcement action, and after the waiting period expired the association filed its complaint in federal district court. The complaint, brought on behalf of the association and its members, sought a declaratory judgment that Steel Company had violated EPCRA, authorization for periodic inspections of Steel Company's facility and records at Steel Company's expense, an order compelling Steel Company to provide the association with copies of all compliance reports submitted to the EPA, civil penalties of $25,000 per day for each violation, and an award of the association's investigation and litigation costs including reasonable attorney and expert witness fees. The district court agreed with Steel Company on both points and dismissed the complaint. The United States Court of Appeals for the Seventh Circuit reversed, and the Supreme Court granted certiorari to resolve a conflict with the Sixth Circuit's decision in a factually indistinguishable case.
View caseEnvironmental groups sue a company under the Clean Water Act alleging repeated permit violations. Affidavits show members continue to avoid recreational use of nearby waters due to current discharges. The court holds that penalties remain available because the violations are not wholly past and deterrence can redress the ongoing injury.
Laidlaw Environmental Services acquired a hazardous waste incinerator facility in Roebuck, South Carolina in 1986 that included a wastewater treatment plant. Shortly thereafter, it obtained an NPDES permit effective January 1, 1987 authorizing limited discharges of pollutants including mercury into the North Tyger River. Laidlaw repeatedly exceeded the permit limits, violating the mercury discharge limit on 489 occasions between 1987 and 1995. On April 10, 1992, Friends of the Earth and Citizens Local Environmental Action Network sent Laidlaw a 60-day notice letter of their intent to file a citizen suit under the Clean Water Act. On June 9, 1992, the South Carolina Department of Health and Environmental Control reached a settlement with Laidlaw requiring payment of a $100,000 civil penalty. On June 12, 1992, FOE filed its federal citizen suit seeking declaratory and injunctive relief plus civil penalties. After a bench trial the District Court found the violations, imposed a $405,800 penalty, awarded litigation costs to FOE, and denied injunctive relief because Laidlaw had achieved substantial compliance since August 1992. The Fourth Circuit assumed without deciding that FOE initially had standing but held that the case had become moot because civil penalties payable to the government would not redress any injury FOE had suffered. The Supreme Court granted certiorari; after the Fourth Circuit decision but before argument the entire Roebuck facility was permanently closed, dismantled, and placed for sale with all discharges permanently ceased.
View caseA violation qualifies as wholly past when it has fully ended before the complaint is filed and no facts support an allegation of continuing or imminent future violations. The court then lacks jurisdiction over claims for civil penalties because such penalties cannot redress the plaintiffs' injury.
Supporting sources
The Eleventh Amendment bars retroactive monetary relief from the state treasury that compensates for past violations. It does not bar prospective injunctive relief ordering future compliance even when that relief incidentally requires state expenditures.
No. When violations are wholly past, the deterrence effect of penalties payable to the government does not provide the required redress for a private plaintiff. Standing requires an ongoing or imminent violation that penalties can deter.
Supporting sources