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Citizens for a Better Environment v. The Steel Co.

Dismissal for want of jurisdiction of plaintiff's action brought under Emergency Planning and Community Right-To-Know Act`s citizen-suit provision does not result in loss of jurisdiction for defendant seeking attorneys fees; defendant not entitled to attorneys fees as "prevailing party" where plaintiff's suit not frivolous, unreasonable or brought in bad faith.

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The full case caption appears at the end of this opinion.

Easterbrook, Circuit Judge. The Steel Companymissed reporting deadlines established by theEmergency Planning and Community Right-To-KnowAct, 42 U.S.C. sec.sec. 11001-50. Notified of itsdefault by Citizens for a Better Environment(CBE), The Steel Company quickly furnished allrequired documents. Nonetheless CBE filed suitunder the Act’s citizen-suit provision. 42 U.S.C.sec.11046(a)(1). The Act authorizes a civilpenalty of $25,000 per day per report fortardiness, 42 U.S.C. sec.11045(c), and by thecomplaint’s calculations The Steel Company couldhave owed more than $537 million. The SteelCompany replied that CBE is not entitled to pursuesuch a claim. A panel of this court rejected thisargument without discussing CBE’s standing, 90F.3d 1237 (7th Cir. 1996), but the Supreme Courtunanimously reversed. Steel Co. v. Citizens fora Better Environment, 523 U.S. 83 (1998). SixJustices concluded that, even if delay indisclosure injured CBE, that injury could not beredressed given that any civil penalty would bepaid to the United States rather than a privateplaintiff; CBE therefore lacks a justiciablecontroversy with The Steel Company. 523 U.S. at102-10. Three Justices concluded that Congresshas authorized citizen suits only if thelitigation begins before the firm files allrequired reports; these three did not decidewhether CBE has standing. Id. at 131-34 (Stevens,J., joined by Souter & Ginsburg, JJ.).

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