Dear Ms. True:
I recently read Steve Zwick's article appearing in the March 10, 2000, edition of the Chicago Reader entitled "Surfin' Turf: Going door to door with Citizens for a Better Environment." While most of the article is devoted to the fund-raising techniques of Citizens for a Better Environment (CBE), a citizens' environmental group, in one section Mr. Zwick discusses CBE's litigation activities, including the plight it recently brought upon itself in an extremely costly lawsuit against a small minority-owned business on the southeast side of Chicago called the Steel Company. As the article suggests, CBE notified the Steel Company that it had overlooked certain obligations relative to notice of its chemical usage. However, CBE's notice was not charitable, it was in the form of a Notice of Intent to Sue the Steel Company, a requirement of the federal law which permits citizen organizations, such as CBE, to assist in enforcement of environmental laws. In accordance with the federal statutory purpose behind such notices, the Steel Company promptly corrected its error and the U.S. EPA was satisfied that there was no need to pursue the matter further. CBE however sued anyway, demanding hundreds of millions of dollars in fines, more than enough to bankrupt the Steel Company. It took no less than the Supreme Court of the United States to inform the CBE that it had no basis for this lawsuit, and now CBE laments, as reported in your article, that CBE is unable to recover its legal fees.
I have represented the Steel Company in this matter from its inception and argued its case successfully before the Supreme Court. While your article is correct that the Supreme Court's decision was split, it was only split on which way to deny CBE. Six justices found that CBE had no constitutional basis to bring suit against the Steel Company; the remaining three justices reasoned that there was no statutory basis for CBE's actions. Either way, it amounts to a unanimous decision for the Steel Company and against CBE.
Citizen enforcement of environmental laws, to the extent permitted by the Constitution and the law, can be helpful. But when citizen organizations have no constitutional basis to drag other hardworking citizens into court for no reason, then they too must pay the consequences of their actions. Today the Steel Company seeks a return of its legal fees under the same law that CBE used to sue the Steel Company in the first place. Certainly, some of the millions of dollars in contributions of which CBE boasts, as reported in your article, can and should be used to recompense the Steel Company for the hundreds of thousands of dollars in legal fees it spent to vindicate its rights against the CBE. We are all for protection of the environment, but no one, not even well-intentioned citizen organizations, is permitted to use the law at punishing costs to others, and then cry foul when asked to pay.
Very truly yours,
Sanford M. Stein
Wildman, Harrold, Allen & Dixon
Steve Zwick replies:
Mr. Stein contends that the EPA was "satisfied that there was no need to pursue the matter further" once CBE blew the whistle and the Steel Company cleaned up its act. In reality, the EPA was more than satisfied with CBE's decision to sue for penalties, and it filed briefs and arguments to that effect when CBE went before the Seventh Circuit Court of Appeals and again when it went before the Supreme Court. The federal Department of Justice and 15 state's attorneys general also took CBE's side both times. And all the Supreme Court said in its decision was that if there are fines to be collected and paid into the U.S. Treasury for past violations--which the Steel Company's violations were when the suit was filed, though not when CBE blew the whistle--then the government itself has to file the suit. This was not the understanding when CBE filed its case, one reason it went all the way to the Supreme Court. Furthermore, government has drastically scaled back its enforcement activities in the past eight years, partly on the assumption that less government gives citizens' groups like CBE more room to exercise their "private attorneys general" mandate. The tragedy of the Supreme Court's ruling is that it means citizens' groups don't always have the legal standing to exercise that power--which is bad news for all of us.