§12.6 - Citizen Suits

• Jurisdiction: Washington

§12.6 CITIZEN SUITS

Section 505 of the CWApermits any citizen to commence a civil action

(1)	against any person (including (i) the United States, and (ii) any other governmental instrumentality or agency to the extent permitted by the eleventh amendment to the Constitution) who is alleged to be in violation of (A) an effluent standard or limitation under this chapter or (B) an order issued by the Administrator or a State with respect to such a standard or limitation, or
(2)	against the Administrator where there is alleged a failure of the Administrator to perform any act or duty under this chapter which is not discretionary with the Administrator.

33 U.S.C. §1365(a).

"Citizen suits are a proven enforcement tool. They operate as Congress intended—to both spur and supplement government enforcement actions. They have deterred violators and resulted in significant compliance gains." Clean Water Act Amendments of 1985, Senate Environment and Public Works Comm., S. Rep. No. 50, 99th Cong., 1st Sess. 28 (1985). The citizen suit provision has "the common central purpose of permitting citizens to abate pollution when the government cannot or will not command compliance." Gwaltney of Smithfield, Ltd. u. Chesapeake Bay Found., Inc.,484 U.S. 49, 62, 108 S.Ct. 376, 98 L.Ed.2d 306 (1987). "In those instances where, for whatever reason, the Government fails or declines to take action, the CWA allows citizens acting as private attorneys general to fill the void." Hudson River Fishermen's Ass'n v. Westchester Cnty.,686 F.Supp. 1044, 1052 (S.D.N.Y.1988).

The relief available to plaintiffs in a citizen suit includes injunctive relief, penalties of up to $37,500 per day per violation payable to the United States Treasury, and attorney fees and costs if the citizen is the prevailing or substantially prevailing party. 33 U.S.C. §1365(a), (d); 40 C.F.R. pts. 19, 27.

The federal district courts have jurisdiction, without regard to the amount in controversy or the citizenship of the parties. 33 U.S.C. § 1365(a). Sixty days prior to commencing action, the citizen must give notice of the alleged violation (1) to the EPA Administrator; (2) to the state in which the alleged violation occurred; and (3) to any alleged violator of the standard, limitation, or order. 33 U.S.C. §1365(b).

There are a number of strategies for defending against citizen suits, including challenging a plaintiff's standing to maintain the suit; examining whether the plaintiff has fulfilled the statutory prerequisites for notice; asserting that the alleged violations are not "ongoing"; and asserting that...