Can Courts Stop Citizens from Prosecuting Criminal Cases under the Clean Water Act?

Author:Hannah Gardenswartz
Position:J.D. Candidate, Washington College of Law 2020.
Fall 2018
can courtS Stop citizenS from proSecuting
criminal caSeS unDer the clean water act?
Hannah Gardenswartz*
The citizen suit provision in the Clean Air Act1 was copied
almost verbatim into the Clean Water Act, with one key
If the Administrator or State has commenced and is
diligently prosecuting a civil or criminal action in a
court of the United States or a State to require compli-
ance with the standard, limitation, or order, but in any
such action in a court of the United States any person
may intervene as a matter of right.2
The addition of “or criminal” opens up a new possibility for
intervention under the Clean Water Act that was not available
under the Clean Air Act. This Article argues that citizens have
a right to intervene in criminal actions brought by the govern-
ment under the Clean Water Act; however, doing so would be
so disruptive to the penal system that a court could not allow
intervention in this context.
The Clean Air Act incorporated the rst modern citizen suit
provision in 1970. Since then, almost all major environmental
statutes—including the Clean Water Act—have included citizen
suit provisions.3 The citizen suit provisions were designed so
that if the government should fail to bring a case, the public is
guaranteed the right to seek enforcement of the statute.4 The
Senate Committee on Public Works specically allowed for
intervention by both the public – at the court’s discretion – and
the Environmental Protection Agency’s (EPA) Administrator.5
The House of Representative’s bill did not include a provision
for citizen suits, but the Senate amendment authorized citizen
suits against violators, government agencies, and the EPA
Administrator.6 In the end, Congress knew that the provision for
citizen suits was far-reaching, but the provision was included
anyway because it was necessary to ensure that the Clean Air
Act was enforced.7
The citizen suit provisions of the Clean Water Act were
expressly modeled on the Clean Air Act, but with the unusual
addition that citizens may intervene in criminal cases. 8 However,
the legislative history is silent on why Congress chose to modify
the Clean Air Act citizen suit provision to potentially allow
citizen intervention in criminal cases.9 Public interest groups
took advantage of the ability to participate in the enforcement
of the Clean Water Act, and private civil enforcement quickly
exceeded federal civil enforcement.10 In some years private
Clean Water Act litigation has equaled overall civil enforcement
by both the state and federal governments.11 While the doctrine
of standing has been used to limit private litigation,12 the citizen
suit provisions and the ability to intervene in cases has pushed
public participation in Clean Water Act civil enforcement action.
Because of a large amount of public participation in the civil
realm, it is surprising that there are no cases where citizens have
intervened in criminal cases.
If interventions in criminal cases were to be allowed, the
procedure for doing so would be modeled on the Federal Rules
of Civil Procedure (“Civil Rules”) and Federal Rules of Criminal
Procedure (“Criminal Rules”). The court would be able to inter-
pret the rules for intervenors and the rules for victims together
to create a procedure for citizen intervention in criminal cases.
The Civil Rules already provide the procedure for inter-
venors. Civil Rule 24(a)(1) requires that courts must permit
intervention if a federal statute gives citizens the unconditional
right.13 A party has a right to intervene only if the intervenor
shows timeliness, an interest regarding the action, a practical
impairment of the party’s ability to protect that interest, and an
inadequate representation by the parties to the suit.14
Under the Criminal Rules, victims have a right to participate
in the prosecution of a crime.15 Victims have a right to be given
“reasonable, accurate, and timely notice” of public proceedings
in the case and be heard at public hearings regarding release,
pleas, or sentencing.16
If intervenors are allowed in criminal Clean Water Act
cases, it will be difcult for the intervening party to show inad-
equate representation by the prosecution. Once the intervenor
clears that hurdle, the participation allowed could be similar to
the participation rights of victims. 17
The difference between civil cases and criminal cases is
more likely to be the factor that allows for intervention in one
context and precludes it in the other. The government brings
criminal cases on behalf of the people18—this is one of the den-
ing elements of how criminal cases are prosecuted.19 Criminal
cases are treated as offenses against the community at large,
and the community then brings the case, not the victim.20 Under
the Clean Water Act, citizens are only able to intervene in cases
being brought by the government because the case centers on an
*J.D. Candidate, Washington College of Law 2020.
12 Sustainable Development Law & Policy
offense against the community at large.21 In this way, the civil
environmental law cases are similar in purpose to criminal law
One of the biggest distinctions between civil cases and
criminal law cases is the type of remedy or penalty that may
be sought.22 In criminal law, the remedy may be punitive and
may include incarceration as a punishment for behavior the
community deems to be wrong.23 In Clean Water Act citizen
suits, citizens are only allowed to seek injunctive relief for ongo-
ing violations.24 Because citizens are strictly limited in what
remedies they are allowed to seek, allowing them to use the
criminal justice system would be inconsistent with the Court’s
Legislative history shows that the purpose of the Clean
Air Act and Clean Water Act citizen suit provisions is to give
citizens the ability to bring cases when the government fails to
do so. The legislative history of the Clean Water Act does not
directly address why Congress choose to allow intervention in
the criminal context, yet the plain meaning of the Act directly
states that citizens would have a right to intervene in criminal
cases. Further, the legislative and judiciary branches already
provide a specic set of rules that require the courts to give
citizens the right to intervene in the civil cases. Therefore, on
plain reading of the statues and legislative history, citizens may
intervene in Clean Water Act criminal cases. While the statute’s
purpose aligns with that of the criminal system, courts could not
allow citizens to intervene and use the penalties of the criminal
justice system.
1 42 U.S.C. § 7604(b)(1)(B) (2012) (“If the Admini strator or State has com -
menced and is di ligently prosecuting a civi l action in a court of the Un ited
States or a State t o require compliance w ith the standard, l imitation, or order,
but in any such act ion in a court of the United St ates any person may inte r-
vene as a matter of r ight.”).
2 33 U.S.C § 1365(b)(1)(B) (2012) (emphasis add ed).
3 Mark Seidenfeld & Jan na Satz Nugent, “The Frie ndship of the People:”
Citizen Participation in Environmental Enforcement, 73 geo. waSh. l. rev.
269, 283-84 (2005).
4 S. Rep. No. 91-1196 at 21 (Sept. 17, 1970) (guarante eing the public the
right to seek “v igorous enforcement,” should the fe deral, state, or local
governments fa il to bring a case); see also Friends of the Ea rth v. Carey, 535
F.2d 165, 173 (2d Cir. 1976) (“[T]he very purp ose of the citizens’ libera l right
of action is to sti r slumbering agencies an d to circumvent bureaucr atic inac-
tion that inte rferes with the schedule d satisfaction of the federa l air quality
goa ls.” ).
5 S. Rep. No. 91-1196 at 56 (Sept. 17, 1970) (“Where the S ecretary is not
automatically a p arty to the action , he must intervene to pre sent evidence
and argume nt on the merits of the petit ion. Others may also inte rvene at the
court’s discretion.”).
6 See Conf. Rep. No. 91-1783 at 55-56 (Dec. 17, 1970) (retain ing the
Senate’s citizen suit prov ision during the recon ciliation process, but wit h
limitation s as to the cases that cou ld be brought by citizens aga inst the EPA
7 See 91 Cong. Rec. 19223 (June 10, 1970); S. Rep. No. 91-1196 at 36-39
(Sept. 17, 1970).
8 Nat. Resources Def. C ouncil v. Train, 510 F.2d 692, 699 (D.C. Cir. 1974)
(“The citizen s uits provision of section 505 was explic itly modeled on the
provision enacte d in the Clean Air Ame ndments of 1970.”).
9 See, e.g., S. Rep. No. 92-414 at 79-82 (discussing th e citizen suit provision
but not mentioning c itizen intervent ion in criminal ca ses).
10 Seidenfeld & Nugent, su pra note 3, at 285.
11 Id.
12 See, e.g., Friends of the Ea rth v. Laidlaw Envtl. Serv., Inc., 528 U.S. 167,
184-88 (2000) (limit ing Article III sta nding to injury to t he plaintiff, not
injury to t he environment); Steel Co. v. Citizens for a Bet ter Env’t, 523 U.S.
83, 108-10 (1998) (nding that bec ause the citizen group a lleges only a past
infract ion, injunctive relief wil l not redress the injur y, and that because the
relief sought would not rem edy the alleged injury, the cit izens lack standi ng).
13 feD. r. civ. p. 24(a)(1).
14 See, e .g., United States v. Oregon, 913 F.2d 576, 587 (9th Cir. 1990).
15 18 U.S.C. § 3771 (2012); feD. r. crim. p. 60.
16 feD. r. crim. p. 60(a)(1) , (a)(3).
17 The Crime Vic tims’ Rights Act denes “cr ime victim” as “a pers on
directly or prox imately harmed as th e result of the commission of a Feder al
offense.” 18 U.S.C. § 3771(e) (2012). However, an environm ental crime may
be a crime wit hout a victim or the part y with interest seek ing to may not be
the crime vic tim. As such, the norm al rules for victim pa rticipation would
not be applicable to the pa rty seeking to i ntervene.
18 Samuel W. Buell, Why Do Pro secutors Say Anything? The C ase of Corpo-
rate Crime, 96 n.c.l. re v. 823, 840 (2018) (“[P]rosecutor s seem to share an
abiding and rea sonable belief that . . . their “client ” is the public . . . .Prosecu-
tors act with a du ciary-like concept of thei r relationship to the com munities
in which they work—’your ofcia ls know your best interes ts’. . . .”).
19 But see id. (noting t hat until the 19th cent ury, victims often ha d the bur-
den of directly pr osecuting crimi nal cases, and, thou gh uncommon, victi ms
are still some times allowed to privately pro secute cases in Englan d).
20 See Criminal Law, blacKS law Dictionary (10th eD. 2014) (dening
crimin al law as “the body of law deni ng offenses against the c ommunity at
21 33 U.S.C § 1365(b)(1)(B) (2012).
22 See Henry M. Har t Jr., The Aims of Criminal Law, 23 law anD contem p.
probS., 401, 404 (1958) (“What distinguishe s a criminal from a c ivil sanction
and all that dis tinguishes it, it is vent ured, is the judgme nt of community
condemnatio n which accompanies and ju sties its imposition.”).
23 See id. at 405 (dening cri me as “conduct which, if duly shown t o have
taken place, wi ll incur a formal and sole mn pronouncement of the mor al
condemnatio n of the community.”).
24 Gwaltney of Smith eld, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49,
59 (1987); United States v. City of Toledo, 867 F. Supp. 595, 597 (N.D. Ohio
1994). But see Friends of the Ea rth v. Laidlaw Envtl. Serv., Inc., 528 U.S.
167, 181 (2000) (holding that if t he defendant continues to v iolate a statute
after the cit izen suit has commenc ed, then the plaintif f has standing to sue for
penalties to be p aid the U.S. because of the deter rent effect of those penalt ies).