Is a citizen plaintiff's claim to assess civil penalties moot once the defendants obtain an NPDES permit and are reasonably unlikely to commit future violations of the Clean Water Act? Mississippi River Revival, Inc., West Side River Watch, Inc. and Mississippi Corridor Neighborhood Coalition, Inc. v. the City of Minneapolis; the City of St. Paul, No. 99-1596 DDA/FLN, No. 99-1597 DDA/FLN (D. Minn., May 2, 2001). Yes. U. S. District Judge Donald Alsop dismissed cases brought by Mississippi River Revival, Inc., West Side River Watch, Inc, and Mississippi Corridor Neighborhood Coalition, Inc. against the cities of Minneapolis and St. Paul. The Minnesota Pollution Control Agency delayed action for eight years on the cities' permits under the National Pollution Discharge Elimination System (NPDES) requirements of the Clean Water Act, prompting the plaintiff organizations to sue the cities in October 1999. (The Clean Water Act prohibits discharge of stormwater into the Mississippi River unless the discharger complies with NPDES requirements.) Finally, the MPCA issued the NPDES permits to Minneapolis and St. Paul on December 1, 2000. Judge Alsop concluded that "deterrence is the sole purpose underlying civil penalties, É [and therefore] a claim to assess civil penalties is moot if civil penalties no longer will deter the defendant from violating the CWA." Slip Op. at 5. Although a number of federal appeals courts have held otherwise, Judge Alsop found that these decisions conflict with the decision of the U. S. Supreme Court in Friends of the Earth, Inc. v. Laidlaw Envt'l Servs. (TOC), Inc., 528 U.S. 167, 186 (2000), which held that civil penalties under the Clean Water Act only provide redress to citizen plaintiffs to the extent that the penalties "encourage defendants to discontinue current violations and deter them from committing future ones." Thus, although it would appear that it was the plaintiffs' lawsuit that finally prompted the MPCA to issue the NPDES permits to the cities, the court ruled that the lawsuit is moot and therefore the plaintiffs would not be entitled to relief under the Clean Water Act.
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