UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

FRIENDS OF THE EARTH,
INCORPORATED; CITIZENS LOCAL
ENVIRONMENTAL ACTION NETWORK,
INCORPORATED; SIERRA CLUB,
Plaintiffs-Appellants,

v.

LAIDLAW ENVIRONMENTAL SERVICES
(TOC), INCORPORATED,
Defendant-Appellee.

SOUTH CAROLINA CHAMBER OF
COMMERCE; ENVIRONMENTAL
MANAGEMENT ASSOCIATION OF SOUTH
CAROLINA; SOUTH CAROLINA
MANUFACTURERS ALLIANCE;
CALIFORNIA PUBLIC INTEREST
                                    No. 97-1246
RESEARCH GROUP; FLORIDA PUBLIC
INTEREST RESEARCH GROUP; ILLINOIS
PUBLIC INTEREST RESEARCH GROUP;
MASSACHUSETTS PUBLIC INTEREST
RESEARCH GROUP; PUBLIC INTEREST
RESEARCH GROUP IN MICHIGAN;
PUBLIC INTEREST RESEARCH GROUP OF
NEW JERSEY; OHIO PUBLIC INTEREST
RESEARCH GROUP; OREGON STATE
PUBLIC INTEREST RESEARCH GROUP;
WASHINGTON PUBLIC INTEREST
RESEARCH GROUP; UNITED STATES OF
AMERICA; SOUTH CAROLINA
DEPARTMENT OF HEALTH AND
ENVIRONMENTAL CONTROL,
Amici Curiae.
FRIENDS OF THE EARTH,
INCORPORATED; CITIZENS LOCAL
ENVIRONMENTAL ACTION NETWORK,
INCORPORATED; SIERRA CLUB,
Plaintiffs-Appellees,

v.

LAIDLAW ENVIRONMENTAL SERVICES
(TOC), INCORPORATED,
Defendant-Appellant.

SOUTH CAROLINA CHAMBER OF
COMMERCE; ENVIRONMENTAL
MANAGEMENT ASSOCIATION OF SOUTH
CAROLINA; SOUTH CAROLINA
MANUFACTURERS ALLIANCE;
CALIFORNIA PUBLIC INTEREST
                                                  No. 97-1261
RESEARCH GROUP; FLORIDA PUBLIC
INTEREST RESEARCH GROUP; ILLINOIS
PUBLIC INTEREST RESEARCH GROUP;
MASSACHUSETTS PUBLIC INTEREST
RESEARCH GROUP; PUBLIC INTEREST
RESEARCH GROUP IN MICHIGAN;
PUBLIC INTEREST RESEARCH GROUP OF
NEW JERSEY; OHIO PUBLIC INTEREST
RESEARCH GROUP; OREGON STATE
PUBLIC INTEREST RESEARCH GROUP;
WASHINGTON PUBLIC INTEREST
RESEARCH GROUP; UNITED STATES OF
AMERICA; SOUTH CAROLINA
DEPARTMENT OF HEALTH AND
ENVIRONMENTAL CONTROL,
Amici Curiae.

On Remand from the United States Supreme Court.
(S. Ct. No. 98-822)

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Submitted: January 12, 2000

Decided: July 16, 1998

Opinion on Remand Filed: March 10, 2000

Before WILKINS and HAMILTON, Circuit Judges,
and W. Craig BROADWATER, United States District Judge
for the Northern District of West Virginia, sitting by designation.

_________________________________________________________________

Remanded by unpublished opinion. Judge Wilkins wrote the opinion,
in which Senior Judge Hamilton and Judge Broadwater joined.

_________________________________________________________________

COUNSEL

Bruce J. Terris, Carolyn Smith Pravlik, TERRIS, PRAVLIK &
WAGNER, Washington, D.C.; James S. Chandler, Jr., SOUTH CAR-
OLINA ENVIRONMENTAL LAW PROJECT, Pawleys Island,
South Carolina, for Appellants. Donald Alan Cockrill, Kristofer K.
Strasser, Jack D. Todd, OGLETREE, DEAKINS, NASH, SMOAK &
STEWART, P.C., Greenville, South Carolina, for Appellee. Deborah
Ann Hottel, MCNAIR LAW FIRM, P.A., Columbia, South Carolina;
Thomas S. Mullikin, MULLIKIN LAW FIRM, Camden, South Caro-
lina, for Amici Curiae Chamber of Commerce, et al. Charles C. Cal-
dart, David A. Nicholas, NATIONAL ENVIRONMENTAL LAW
CENTER, Boston, Massachusetts, for Amici Curiae California Public
Interest, et al. Lois J. Schiffer, Assistant Attorney General, James F.
Simon, Deputy Assistant Attorney General, Martin W. Matzen,
Thomas A. Mariani, Jr., Julie B. Kaplan, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C.; Susan Lepow,
Associate General Counsel, Richard Witt, Office of General Counsel,
David Drelich, Senior Attorney, Office of Enforcement and Compli-
ance Assurance, UNITED STATES ENVIRONMENTAL PROTEC-
TION AGENCY, Washington, D.C., for Amicus Curiae United
States. Carlisle Roberts, Jr., Samuel L. Finklea, III, William A.
Ready, III, SOUTH CAROLINA DEPARTMENT OF HEALTH

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AND ENVIRONMENTAL CONTROL, Columbia, South Carolina,
for Amicus Curiae Department of Health.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

WILKINS, Circuit Judge:

Appellants Friends of the Earth, Inc., Citizens Local Environmental
Action Network, Inc., and Sierra Club appealed an order of the dis-
trict court penalizing Laidlaw Environmental Services (TOC), Inc.
(Laidlaw) for violations of a National Pollutant Discharge Elimination
System permit, arguing that the district court abused its discretion by
imposing what Appellants assert was an inadequate penalty. Laidlaw
cross-appealed, claiming, inter alia, that Appellants lacked standing
to institute this action because they suffered no injury in fact and that
this suit should have been barred because the South Carolina Depart-
ment of Health and Environmental Control diligently prosecuted a
prior action regarding the same violations, see 33 U.S.C.A.
§ 1365(b)(1)(B) (West 1986).

In a previous order, this court concluded that this action was moot.
See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc.,
149 F.3d 303, 306-07 (4th Cir. 1998), rev'd, 120 S. Ct. 693 (2000).
We reasoned that the district court had denied Appellants' request for
equitable relief and Appellants had not appealed that ruling, leaving
civil penalties payable to the government as the only remedy available
to redress Appellants' alleged injuries. See id. at 306. Relying on Steel
Co. v. Citizens for a Better Environment, 523 U.S. 83 (1998), we held
that this remedy would not redress any injury Appellants had suffered
and therefore that the action no longer presented an Article III case
or controversy. See Friends of the Earth, 149 F.3d at 306-07. Con-
cluding that the action had become moot, we vacated the order of the
district court and remanded with instructions to dismiss this action.

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See id.; Arizonans for Official English v. Arizona, 520 U.S. 43, 71-72
(1997) (explaining that "[v]acatur is in order when mootness occurs
through happenstance--circumstances not attributable to the parties--
or . . . the unilateral action of the party who prevailed in the lower
court" (internal quotation marks omitted)).

The Supreme Court granted certiorari and reversed, holding that
Appellants had standing to institute this suit and the fact that only
civil penalties remained to redress the Appellants' alleged injury did
not moot the action. See Friends of the Earth, Inc. v. Laidlaw Envtl.
Servs. (TOC), Inc., 120 S. Ct. 693, 703-11 (2000). The Court noted,
however, that two other events might moot the case: Laidlaw's sub-
stantial compliance with its permit requirements and its closure of the
offending facility. See id. at 711. The Court also stated that even if
these events moot the action, it would be "far from clear that vacatur
of the District Court's judgment would be the appropriate response."
Id. at 711 n.6.

In light of the decision of the Supreme Court, we remand to the dis-
trict court for appropriate factual findings and a determination of
whether this action is moot and, if so, whether the previous district
court judgment should be vacated.

REMANDED

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