Chapter 22 - § 22.2 • PRIVATE CITIZEN-INITIATED STATUTORY LITIGATION

• Jurisdiction: Colorado

§ 22.2 • PRIVATE CITIZEN-INITIATED STATUTORY LITIGATION

Various statutory mechanisms are available to private citizens to compel compliance with legal obligations under federal or state environmental statutes. As discussed in this section, these mechanisms include, among other things, citizen suits, private cost recovery and contribution actions under CERCLA and litigation under NEPA.

§ 22.2.1—Citizen Suit Litigation

The major environmental statutes contemplate the use of, and expressly authorize the initiation of, suits by private citizens, generally referenced as "citizen suits,"¹ to enforce compliance with applicable statutory and regulatory requirements. Citizen suits filed pursuant to the federal statutory authorities have been used by citizens and non-governmental organizations with increasing frequency over the past few years and the trend will likely continue.² While government-initiated legal action remains the primary tool for enforcing compliance with federal and state environmental requirements, private citizen-initiated litigation continues to play an important role in environmental compliance. Citizen suits will become even more commonplace, regardless of whether they are used to achieve injunctive relief in place of lacking government enforcement or to supplement existing government enforcement efforts.

In fact, two types of lawsuits are generally authorized pursuant to statutory citizen suit authorities including enforcement actions against persons who violate environmental laws and regulations (e.g., permit violations) and actions to compel agencies to follow mandated statutory responsibilities. Typically, if such actions are directed against governmental agencies themselves, it is for failing to take non-discretionary action.³

The past few years have witnessed a proliferation of citizen suits as the Trump Administration has engaged in repeated efforts to roll back environmental regulatory requirements or amend regulatory programs considered to be unnecessary or too stringent.

Statutory Provisions

As noted above, citizen suit provisions are found in virtually all of the major substantive environmental statutes. Some of the more commonly invoked statutes include:

• Clean Air Act (CAA) § 304 (42 U.S.C. § 7604);
• Federal Water Pollution Control Act (FWPCA) § 505 (33 U.S.C. § 1365);
• Endangered Species Act (ESA) § 11 (16 U.S.C. § 1540(g));
• Resource Conservation and Recovery Act (RCRA) § 7002 (42 U.S.C. § 6972);
• Toxic Substances Control Act (TSCA) § 20 (15 U.S.C. § 2619);
• Safe Drinking Water Act (SDWA) § 1449(a) (42 U.S.C. §300j-8);
• Surface Mining Control and Reclamation Act (SMCRA) § 520 (30 U.S.C. § 1270); and
• Emergency Planning and Community Right-to-Know Act (EPCRA) § 326 (42 U.S.C. § 11046(a)).

Section 505 of the federal Clean Water Act (FWPCA)⁴ provides a representative example of a statutory citizen suit provision. Section 505 provides:

(a) Authorization; jurisdiction. Except as provided in subsection (b) of this section and section 309(g)(6) [33 USCS § 1319(g)(6)], any citizen may commence a civil action on his own behalf—
(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 Act [33 USCS §§ 1251 et seq.] 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 Act [33 USCS §§ 1251 et seq.] which is not discretionary with the Administrator.
The district courts shall have jurisdiction, without regard to the amount in controversy or the citizenship of the parties, to enforce such an effluent standard or limitation, or such an order, or to order the Administrator to perform such act or duty, as the case may be, and to apply any appropriate civil penalties under section 309(d) of this Act [33 USCS § 1319(d)].

(b) Notice. No action may be commenced—
(1) under subsection (a)(1) of this section—
(A) prior to sixty days after the plaintiff has given notice of the alleged violation (i) to the Administrator, (ii) to the State in which the alleged violation occurs, and (iii) to any alleged violator of the standard, limitation, or order, or
(B) 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 compliance with the standard, limitation, or order, but in any such action in a court of the United States any citizen may intervene as a matter of right.
(2) under subsection (a)(2) of this section prior to sixty days after the plaintiff has given notice of such action to the Administrator, except that such action may be brought immediately after such notification in the case of an action under this section respecting a violation of sections 306 and 307(a) of this Act [33 USCS §§ 1316, 1317(a)]. Notice under this subsection shall be given in such manner as the Administrator shall prescribe by regulation.

Section 505(c)(1) limits venue to the judicial district in which the alleged pollution source is located. Under § 505(c)(2), the EPA Administrator, if not already a party, may intervene by right. Section 505(d) awards litigation costs, including reasonable attorney and expert witness fees, to any party. Section 505(g) defines a citizen as any person having an interest that is or may be adversely affected.

Some citizen suit provisions may limit actions where the defendant is no longer "in violation" of the statute under which the citizen is suing. For example, in Board of County Commissioners v. Brown Group Retail, Inc.,⁵ the court allowed claims for unjust enrichment and negligence, but dismissed the plaintiff's citizen suit claim under § 6972(a)(1)(A) of RCRA because the defendant had sold the contaminated property 25 years earlier and could no longer be said "'to be in violation of any permit, standard, regulation, condition, requirement, prohibition, or order.'"⁶ The court based its ruling in part on similar language in the Clean Water Act.⁷ In some cases it may also be necessary to show imminent and substantial endangerment to human health or the environment.⁸ Additionally, independent of citizen suit limitations, a case may be moot where an alleged past violation is not likely to recur.⁹

For citizen suits filed pursuant to RCRA, for instance, most of the circuit courts at the federal level, including the Tenth Circuit, have adopted a broad reading of precisely when contamination "may present an imminent and substantial endangerment to health." 42 U.S.C. § 6972(a)(1)(b) (2020) (emphasis added). Note that the statute uses the term "may," rather than shall, which is critical to its reading. In the 2019 Seventh Circuit decision of Liebhart v. SPX Corp., 917 F.3d 952 (7th Cir. 2019), the court determined that RCRA's statutory text is "unequivocal" in granting authority for "the issuance of an injunction when there is but a risk of harm, a more lenient standard than the traditional requirement of threatened irreparable harm." Id. at 958 (quoting United States v. Price, 688 F.2d 204, 211-14 (3d Cir. 1982).¹⁰

Citizen suits may also be barred by a pending state administrative action if the state law in question is comparable to the federal law under which the citizen suit would be filed.¹¹

While the citizen suit provisions found in these and comparable statutes exhibit certain similarities, each citizen suit provision has its own particular procedural requirements that should be carefully considered before the initiation of a citizen suit pursuant to a particular statute or in the development of a defense strategy to respond to such a suit.

Sixty-Day Notice Requirement

Each of the major environmental statutes requires that notice be given to the defendant and the appropriate enforcement agency at least 60 days before the commencement of an action.¹² Federal regulations have been promulgated that set forth the requirements for service and the content of notices to file a suit pursuant to the major federal environmental statutes. These regulations require that the notice provide sufficient information to allow the alleged violator to determine the specific standard violated and the time, place, and manner of the violation, but the notice need not "list every specific aspect or detail of every alleged violation"¹³ and plaintiffs need not make FOIA requests to obtain specific detail for the notice.¹⁴ Practitioners should be aware that the 60-day notice requirement may be set aside in the case of violations alleging emergencies. Many of the statutes waive the 60-day notice requirement if the alleged violation, for example, involves a National Emissions Standard for Hazardous Air Pollutants under § 112 of the Clean Air Act or a toxic pollutant standard promulgated under §§ 306 and 307 of the Clean Water Act. Additionally, the 60-day notice requirement may be avoided in situations where a claim under a statute requiring such notice is embedded in a NEPA claim.¹⁵

Relief Available Under Citizen Suits

The citizen suit statutes generally authorize plaintiffs to initiate actions for prospective injunctive relief. Several federal statutes, including the Clean Water Act and RCRA, also authorize a district court hearing a citizen suit to impose appropriate civil penalties, which are payable to the United States. Note that attempts to get broader remedies under citizen suit provisions have generally failed, e.g., a claim for money damages resulting from a violation of an environmental statute. At the same time, some citizen suit settlements have required the defendants to fund environmental mitigation projects.

Practical Advice for Citizen Suit Plaintiffs

• Conduct a thorough investigation of the alleged violation or

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