Reversed and remanded by Supreme Court

on January 12, 2000.
PUBLISHED

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.

Appeals from the United States District Court

for the District of South Carolina, at Columbia.

Joseph F. Anderson, Jr., District Judge.

(CA-92-1697-3-17)

 2
Argued: March 5, 1998

Decided: July 16, 1998

Before WILKINS and HAMILTON, Circuit Judges, and

BROADWATER, United States District Judge for the

Northern District of West Virginia, sitting by designation.

_________________________________________________________________

Vacated and remanded by published opinion. Judge Wilkins wrote the

opinion, in which Judge Hamilton and Judge Broadwater joined.

_________________________________________________________________

COUNSEL

ARGUED: Bruce J. Terris, TERRIS, PRAVLIK & WAGNER,

Washington, D.C., for Appellants. Donald Alan Cockrill,

OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C.,

Greenville, South Carolina, for Appellee. ON BRIEF: Carolyn Smith

Pravlik, TERRIS, PRAVLIK & WAGNER, Washington, D.C.; James

S. Chandler, Jr., SOUTH CAROLINA ENVIRONMENTAL LAW

PROJECT, Pawleys Island, South Carolina, for Appellants. 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

Carolina, for Amici Curiae Chamber of Commerce, et al. Charles C.

Caldart, 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 Compliance Assurance, UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Washington, D.C., for Amicus Curiae United

States. Carlisle Roberts, Jr., Samuel L. Finklea, III, William A.

 3
Ready, III, SOUTH CAROLINA DEPARTMENT OF HEALTH

AND ENVIRONMENTAL CONTROL, Columbia, South Carolina,

for Amicus Curiae Department of Health.

_________________________________________________________________

OPINION

WILKINS, Circuit Judge:

Plaintiffs Friends of the Earth, Inc. (FOE), Citizens Local Environmental Action Network, Inc. (CLEAN), and Sierra Club appeal an

order of the district court penalizing Laidlaw Environmental Services

(TOC), Inc. (Laidlaw) for violations of a National Pollutant Discharge

Elimination System (NPDES) permit, arguing that the district court

abused its discretion by imposing what Plaintiffs assert was an inadequate penalty. Laidlaw cross appeals, claiming, inter alia, that Plaintiffs 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 Department of Health and Environmental Control

(DHEC) diligently prosecuted a prior action regarding the same violations, see 33 U.S.C.A. § 1365(b)(1)(B) (West 1986). We conclude

that this action is now moot; accordingly, we vacate the order of the

district court and remand with instructions to dismiss.

I.

Plaintiffs brought this enforcement action against Laidlaw1 pursuant to the citizen-suit provision of the Federal Water Pollution Control

Act, see 33 U.S.C.A. § 1365(a)(1) (West 1986 & Supp. 1998), alleging ongoing violations by Laidlaw of an NPDES permit and seeking

imposition of monetary penalties as well as declaratory and injunctive

relief and attorneys' fees and costs. After a seven-day hearing, the

district court ruled that the prior suit by DHEC that Laidlaw alleged

barred the current action had not been "diligently prosecuted" within

the meaning of § 1365(b)(1)(B)2 and therefore would not serve to bar

_________________________________________________________________

1 FOE and CLEAN initiated the suit, and Sierra Club subsequently

joined as an additional plaintiff. See Fed. R. Civ. P. 21.

2 Section 1365(b)(1)(B) provides that a citizen suit under the Federal

Water Pollution Control Act may not be commenced when the "State has

commenced and is diligently prosecuting a civil ... action in a court of

the ... State to require compliance." 33 U.S.C.A. § 1365(b)(1)(B).

 4
the present suit. See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs.

(TOC), Inc., 890 F. Supp. 470, 498 (D.S.C. 1995). Following a bench

trial, the district court found that Laidlaw had committed numerous

permit violations and imposed a penalty of $405,800. See Friends of

the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc. , 956 F. Supp. 588,

600-01, 610 (D.S.C. 1997). However, because the court found that

Laidlaw's violations had not harmed the environment and that

Laidlaw had been in substantial compliance for several years at the

time of the issuance of its final order, the court denied Plaintiffs'

request for declaratory and injunctive relief. See id. at 611. In a separate order, the court stayed the time for a petition for attorney's fees

until the time for appeal had expired or, if either party appealed, until

the appeal was resolved. This appeal followed.

II.

The Constitution provides that "[t]he judicial Power" of the federal

courts of the United States extends only to specified "Cases" and

"Controversies." U.S. Const. art. III, § 2, cl. 1; see In re Pruett, 133

F.3d 275, 278 (4th Cir. 1997). "The doctrine of standing has always

been an essential component of [the] case or controversy requirement

of federal jurisdiction." Marshall v. Meadows , 105 F.3d 904, 906 (4th

Cir. 1997). In order to have standing, a plaintiff must have suffered

an actual or threatened injury in fact; the injury must have been

caused by the defendant's complained-of conduct; and the injury must

be redressable by the relief sought. See Steel Co. v. Citizens for a Better Env't, 118 S. Ct. 1003, 1016-17 (1998). Moreover, these elements

must continue to exist at every stage of review, not merely at the time

of the filing of the complaint. See Arizonans for Official English v.

Arizona, 117 S. Ct. 1055, 1068 (1997); Suarez Corp. Indus. v.

McGraw, 125 F.3d 222, 228 (4th Cir. 1997). Otherwise, the action

becomes moot. See United States Parole Comm'n v. Geraghty, 445

U.S. 388, 397 (1980) (explaining that mootness has been described as

"the doctrine of standing set in a time frame: The requisite personal

interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness)" (internal quotation marks omitted)). The continued presence of these elements

ensures that the plaintiff has "such a personal stake in the outcome of

the controversy as to assure that concrete adverseness which sharpens

the presentation of issues." Baker v. Carr , 369 U.S. 186, 204 (1962).

 5
Here, we focus on the continued existence of the third element,

redressability.3 Because Plaintiffs have not appealed the denial of

declaratory and injunctive relief, the only potential relief that may be

available to redress their claimed injuries is the civil penalty imposed

upon Laidlaw, which would be paid to the United States Treasury.

See Atlantic States Legal Found., Inc. v. Tyson Foods, Inc., 897 F.2d

1128, 1131 n.5 (11th Cir. 1990). Such penalties, however, cannot

redress any injury suffered by a citizen plaintiff. See Steel Co., 118

S. Ct. at 1018-19.

In Steel Co., the Supreme Court held that a plaintiff lacked standing to prosecute a private enforcement action under the citizen-suit

provision of the Emergency Planning and Community Right-ToKnow Act of 1986, see 42 U.S.C.A. § 11046(a)(1) (West 1995),

because the relief requested could not redress the injury plaintiff had

allegedly suffered. See Steel Co., 118 S. Ct. at 1017-20. In particular,

the Court noted that any civil penalties imposed would be payable to

the United States Treasury and not to the plaintiff and therefore that

the penalties would not benefit the plaintiff. See id. at 1018-19. The

Court reasoned that

although a suitor may derive great comfort and joy from the

fact that the United States Treasury is not cheated, that a

wrongdoer gets his just deserts, or that the nation's laws are

faithfully enforced, that psychic satisfaction is not an

acceptable Article III remedy because it does not redress a

cognizable Article III injury.

_________________________________________________________________

3 Laidlaw claims that Plaintiffs were never injured by its permit violations because the violations caused no harm to the environment. Laidlaw

also asserts that even if Plaintiffs had been injured by the violations in

the past, they no longer have any stake in prosecuting this action because

Laidlaw has been in compliance with its permit for several years. For

purposes of this appeal, we assume without deciding that Plaintiffs had

standing to initiate this action and have proven a continuous injury in

fact. See Arizonans for Official English, 117 S. Ct. at 1068 (deciding the

case on the basis of mootness without first determining whether appellants had "standing to appeal because the former question, like the latter,

goes to the Article III jurisdiction of this Court and the courts below, not

to the merits of the case").

 6
Id. at 1019.4 Applying the reasoning of Steel Co., we conclude that

this action is moot because the only remedy currently available to

Plaintiffs--civil penalties payable to the government--would not

redress any injury Plaintiffs have suffered. We therefore vacate the

order of the district court and remand with instructions to dismiss this

action.5 See Arizonans for Official English, 117 S. Ct. at 1071.

VACATED AND REMANDED

_________________________________________________________________

4 Prior to Steel Co., which was decided after the district court rendered

its decision in the case at bar, this court had held that because "penalties

can be an important deterren[t] against future violations," they could

redress a private plaintiff's injury from violations even though the penalties are not paid to the plaintiff. Sierra Club v. Simkins Indus., Inc., 847

F.2d 1109, 1113 (4th Cir. 1988). Because Steel Co. constitutes "a superseding contrary decision of the Supreme Court," we are required to follow it. Hoffman v. Hunt, 126 F.3d 575, 584 (4th Cir. 1997) (internal

quotation marks omitted), cert. denied, 66 U.S.L.W. ___ (U.S. May 26,

1998) (No. 97-1322).

5 Plaintiffs' failure to obtain relief on the merits of their claims precludes any recovery of attorneys' fees or other litigation costs because

such an award is available only to a "prevailing or substantially prevailing party." 33 U.S.C.A. § 1365(d) (West Supp. 1998); cf. Farrar v.

Hobby, 506 U.S. 103, 111 (1992) (explaining that "to qualify as a prevailing party, a civil rights plaintiff must obtain at least some relief on

the merits of his claim"); S-1 & S-2 v. State Bd. of Educ., 21 F.3d 49, 51

(4th Cir. 1994) (en banc) (per curiam) (adopting the dissenting opinion

reported at 6 F.3d 160, 168-72 (4th Cir. 1993), wherein Judge Wilkinson

concluded that Farrar dictates that civil rights plaintiffs who obtained a

judgment against a defendant that was subsequently vacated by this court

on mootness grounds were not "prevailing part[ies]" entitled to an award

of litigation costs). But see Gwaltney of Smithfield, Ltd. v. Chesapeake

Bay Found., Inc., 484 U.S. 49, 67 n.6 (1987) (citing 1971 legislative history for the proposition that an award of litigation costs could be allowed

under § 1365(d) when a case becomes moot because the defendant violator voluntarily came into compliance with the law, but not discussing the

1987 amendment to § 1365(d) requiring a plaintiff to be a "prevailing or

substantially prevailing party" to receive an award of litigation costs).

 7