71 The Alabama Lawyer 196 (2010). Environmental Citizen Suits in Alabama- A Look Back and a Glance Forward.

• Author: By Michael D. Freeman and Thomas R. Head, III

Alabama Lawyer

2010.

71 The Alabama Lawyer 196 (2010).

Environmental Citizen Suits in Alabama- A Look Back and a Glance Forward

Environmental Citizen Suits in Alabama- A Look Back and a Glance ForwardBy Michael D. Freeman and Thomas R. Head, IIII. Introduction

The last couple of years have seen changes in the legal landscape governing environmental citizen suits in Alabama and elsewhere. Landmark judicial opinions and recent legislation have resulted in noteworthy changes to the circumstances under which citizens may sue and their attorneys recover a fee. While these changes add clarity to some contested issues, other unsettled issues remain, both for the individuals and groups filing such lawsuits and for the businesses, boards and agencies that defend them.

Consider some common scenarios. Suppose you get a call from a client who just received a letter from the Alabama Department of Environmental Management (ADEM) notifying them of water discharge permit violations (at least according to the ADEM). The client wants advice. Now suppose you represent a farmer who believes the company next door has violated the terms of one of its permits and polluted his irrigation source. The advice you give both these clients should entail different considerations than it did a couple of years ago and knowing these considerations is important to you and your client.

II. Citizen Suits and Their Limits

Most federal environmental statutes authorize private citizens and interest groups to sue individuals and companies in federal court for violating those laws. These statutes clearly contemplate that state and federal agencies shall have primary enforcement authority. Citizen enforcement simply serves as a "backup." If your client is a potential defendant, conventional wisdom holds that you are better off facing a government enforcement action than being sued in federal court by a citizen plaintiff. The reasons vary depending on the circumstances, but major drivers behind the preference for administrative enforcement action include: (1) avoiding having to defend two actions (governmental enforcement action may bar citizen suits in some cases), (2) avoiding a citizen suit in federal court which can be expensive and difficult to win, especially in situations where the regulated entity is required to self-report violations to regulatory agencies, and (3) avoiding exposure to attorney's fees incurred by the citizen's counsel in prosecuting the federal court action.

Although statistics are hard to come by, far and away most citizen suits are brought under the Clean Water Act (CWA), the Resource Conservation and Recovery Act (RCRA) and the Clean Air Act (CAA). While there are some differences, the typical citizen suit provision authorizes "any person" to sue an alleged violator (or the governmental agency responsible for regulating the alleged violator), and contains the following features: (1) a requirement that the plaintiff give notice to the alleged violator, the EPA and the State in which the alleged violation occurred beforefiling suit, (2) a provision authorizing attorney's fees to prevailing parties and (3) a prohibition on bringing a citizen suit if the EPA or the State is already addressing the alleged violation.

Pre-lawsuit Notice

The CAA was the first environmental law to authorize citizen suits, and served as the model for the notice provisions that were included in later environmental statutes, such as the CWA and RCRA. The citizen suit provision in the CAA states that "any person" can bring an action "against any person . . . who is alleged to have violated . . . or to be in violation of . . . an emission standard or limitation under this chapter . . ." 42 U.S.C. § 7604(a). But the CAA further provides that "[n]o action may be commenced prior to 60 days after the plaintiff has given notice of the violation (1) to the Administrator [of the U.S. Environmental Protection Agency], (2) to the State in which the violation occurs, and (3) to any alleged violator of the standard . . .". The only exception to this 60-day notice requirement is when "hazardous" pollutants are implicated. See42 U.S.C. § 7404(b), 33 U.S.C. § 1365(b), and 42 U.S.C. § 6972(c). The CAA, CWA and RCRA each allow suit to be brought immediately after notice is given when "hazardous" pollutants are involved.

EPA regulations generally detail what the "60-day notice letter" must include. For example, before a CWA citizen suit can be brought, a notice letter must be sent that includes:

(1) sufficient information to permit the recipient to identify the specific standard, limitation or order alleged to have been violated, (2) the activity alleged to constitute a violation, (3) the person or persons responsible for the alleged violation, (4) the location of the alleged violation, (5) the date or dates of such violation, (6) the full name, address and telephone number of the person giving notice, and (7) the name, address and telephone number of the legal counsel, if any, representing the person giving the notice.

While the Eleventh Circuit held in 1991 that the 60-day notice requirement is a mandatory condition precedent to the filing of a citizen suit under the CWA, it was not until a decade later that a federal court in Alabama considered what constitutes "sufficient" notice. In Atwell v. KW Plastics Recycling Division, the district court applied a "strict interpretation of all aspects of environmental statute notice requirements." 173 F. Supp. 2d 1213 (M.D. Ala. 2001). Citing to the Supreme Court's decision in Hallstrom v. Tillamook County, 493 U.S. 20,110 S. Ct. 304, 107 L. Ed. 2d 237 (1989), the court found that the CWA notice provision embodied a legislative intent to strike a balance between encouraging citizen enforcement of environmental regulations and avoiding burdening the federal courts with excessive numbers of citizen suits. Requiring strict compliance, the court reasoned, serves this purpose in two important ways: (1) notice allows government agencies to take responsibility for enforcing environmental regulations, thus obviating the need for citizen suits, and (2) notice gives the alleged violator an opportunity to bring itself into complete compliance with the Act and thus likewise render unnecessary a citizen suit. The court explained that while the language of the regulation clearly requires something less than a thoroughly detailed account of every possible allegation, this does not relieve the plaintiff of the duty to provide as much information as possible-meaning that a plaintiff must provide enough information to allow both the alleged violator and the appropriate regulatory agencies to identify the pertinent aspects of the alleged violations without undertaking an extensive investigation of their own.

The United States District Court for the Northern District of Georgia questioned Afwe/Zls' strict interpretation of citizen suit notice requirements in Carney v. Gordon County, 2006 U.S. Dist. LEXIS 82634 (N.D. Ga. 2006). Observing that "much of the argument about the kind and form of notice mandated by the statute and regulations is a semantical [sic] debate, and a court's use of particular language does not necessarily reflect the practical effect of that language," the court in Carney simply required the notice to be "sufficiently specific to inform the alleged violator about what it is doing wrong, so that it will know what corrective actions will avert a lawsuit." Id. at *16.

More recently, the Eleventh Circuit construed the CAA's notice provision in affirming the dismissal of a citizen suit for failing to comply with statutory notice requirements. In National Parks and Conservation Ass'n v. Tennessee Valley Auth., 502 F.3d 1316 (Uth Cir. 2007), the notice letter alleged, when read literally, that TVA's Colbert Plant had violated all of the requirements of Subpart Da of the federal New Source Performance Standards every day since 1983. In reviewing the notice letter, the Eleventh Circuit observed that...