Arguing on behalf of a better environment

For most of us, arguing is nothing new: We argue with our landlords, our spouses, the occasional traffic cop.

For David Strauss, arguing is nothing new either -- he just does it on a much grander scale than most: before the Supreme Court.

Strauss, the Harry N. Wyatt Professor in the Law School, most recently argued a case before the U.S. Supreme Court on its opening day, Oct. 6. It was his 15th argument before the high court.

The case, The Steel Co. v. Citizens for a Better Environment, has implications for the role citizens have played in helping enforce environmental laws during the past two decades. The company and industry leaders are challenging a citizen's ability to impose civil penalties under the Emergency Planning and Community Right to Know Act of 1986, known as EPCRA. Strauss is representing Citizens for a Better Environment, an environmental group based in the Midwest. Cass Sunstein, the Karl N. Llewellyn Distinguished Service Professor in the Law School and one of the nation's leading environmental law scholars, collaborated with Strauss in preparing CBE's arguments.

EPCRA is a reporting statute that requires companies to disclose to the public the toxic chemicals that they use, store, or release into the air. The U.S. Environmental Protection Agency estimates that toxic chemical releases have been reduced by almost 46 percent since the law was passed. Congress passed the law after a disaster in Bhopal, India, where hundreds of people died when a chemical company accidentally released cyanide into the air.

The Steel Co., located on the southeast side of Chicago, acknowledged that it did not file reports required by EPCRA, but it claimed that the law does not allow citizens to seek penalties that, if awarded, are paid to the federal treasury.

Many industry groups filed briefs with the Supreme Court in support of the Steel Company. They urged that firms should be permitted to correct violations by filing reports late, and not be subjected to large monetary penalties. Environmental groups, the federal government and several state attorneys general filed briefs in support of CBE's position.

The Court's decision in the case will not only affect enforcement under EPCRA, but will have implications for citizen enforcement under all other federal environmental laws, including the Clean Air Act and the Clean Water Act.

"Companies that use dangerous or toxic chemicals should not be able to evade the very basic legal obligation to keep their neighbors, and the public, informed about the chemicals they are using and risks that they are exposing people to," Strauss said, summarizing the argument he made to the Court.

"The Steel Co. says, basically, that a company can just sit back and not file any of the reports required by law until a group like CBE catches it and threatens to sue -- and then it can file seven years worth of delinquent reports and escape punishment. We don't believe that makes sense."

A Supreme Court decision on the case is expected by spring.