Citizen suit enforcement

• Author: Jeffrey G. Miller/Ann Powers/Nancy Long Elder/Karl S. Coplan
• Pages: 791-858

791

CHAPTER XI:

CITIZEN SUIT ENFORC EMENT

A. INTRODUCTION

When Congress began to enact the modern array of environmental stat-

utes in the early 1970s, neither the federal nor the state governments had

good track records in enforcing the environmental protections that had

existed earlier. Moreover, President R ichard M. Nixon was not viewed by

the Democrat-controlled Congress as an aggressive environmental advocate

or enforcer. erefore, when Congress enacted environmental measures, it

routinely made them enforceable by ordina ry citizens as well as by the fed-

eral government. e rst such measure was § 304 of the Clean A ir Act

(CAA), 42 U.S.C. §7604, enacted in 1970. A s Congress enacted subse-

quent environmental statutes, except for the Federal Insecticide, Fungicide,

and Rodenticide Act (FIFRA), it inserted citizen suit provisions, copied

almost verbatim from the CA A citizen su it provision, starting with §505

of the Clean Water Act (CWA) in 1972. Similar enforcement provisions

were commonly included in much of the social welfare legislation of the

1970s. Although dierences have developed in t he citizen suit provisions as

they have been amended separately since the original enactments, they still

remain very similar in approach, structure, and wording to t he CAA citiz en

suit provision. Precedent, therefore, often is transferable from one statute to

the next.

Generally, the citizen suit provisions authorize any person to commence

an action in an appropriate district court against the U.S. Environmen-

tal Protection Agency (EPA) to compel it to perform a mandatory duty or

against a member of the regulated public alleged to be in violation of the stat-

ute. Although the statutes do not preempt common-law remedies, general ly

they do not provide causes of action for damages. Plainti s may, however,

assert common-law claims for damages by way of pendant jurisdiction in

citizen suits. For most, but not all violations, suit may be commenced only

after the citizen ha s given 60 days’ prior notice to EPA, t he state, and the

violator. Moreover, suit may not be commenced if EPA or the state has begun

and is diligently pursuing an enforcement action. If a citizen is barred from

bringing an action by a government suit in federal court, however, the citizen

792 Water Pollution Control, 2d Edition

may intervene in that action. Courts are authorized to enjoin violations and

to assess civil penalties for violations. Courts may also award attorneys and

expert witness fees to successful plaintis.

Even though Congress was ca reful to include these “private attorney gen-

eral” provisions in the environmental statutes, it did not intend that they

replace government enforcement. Indeed, one of the reasons it enacted them

was to enable citizens to goad government to undertake its primary enforce-

ment responsibility. us, the prior notice provision is designed to both

encourage and allow government to assume its enforcement role. e prior

notice and bar from government enforcement are also the result of t he ten-

sion between those in the enacting Congress who favored citizen enforce-

ment and those who opposed it altogether, usually under the guise that it

would ood the courts with litigation.

e citizen suit provisions of all the environmental statutes were used

initially to force EPA to carry out its mandatory duties and only later to

enforce the statutes against violating members of the regulated public. Citi-

zen plaintis have sued the regulated public more often under the citizen

suit provision of the CWA than under the citizen suit provisions of any of

the other environmental statutes. Indeed, in the mid-1980s when the Reagan

Administration virtually disma ntled EPA’s enforcement program, the Natu-

ral Resources Defense Council Inc. (NRDC) launched a program of citizen

enforcement under the CWA, in which it soon en listed the participation of

a dozen other environmental advocacy groups. It chose to enforce the CWA,

because it was much easier for citizens to enforce than were the other statutes.

A national pollutant discha rge elimination system (NPDES) permit clearly

sets forth a discharger’s obligations under the CWA and its discharge moni-

toring reports (DMRs) clea rly showed whether it was in compliance with

them. Both permits and DMRs were publicly ava ilable. Moreover, DMR s

could be introduced as evidence of violation and soon became prima facie

evidence of violations.

As a consequence, there is a rich body of case law under §505. For the

most pa rt, the issues raised in judicial opinions under the section addre ss

one of the followi ng issues. W ho is a proper plainti ? Who is a proper

defendant? What violations may be enforced against? What prior notice

must be given? What government enforcement action wil l bar a citizen suit?

In what suits may citizens intervene? Wh at remedies may be applied? W hat

attorneys fees may be awarded? e remainder of the chapter is organized

around these issues.

Citizen Suit Enforcement 793

is chapter primarily addresses suits against the regulated public for vio-

lating the CWA, rather than suits against EPA for not performing its manda-

tory duties under the Act. Nevertheless, we have seen several cases against

EPA throughout the book and, in any event, many of the issues are common

to both types of suits.

B. WHO IS A PROPER PLAINTIFF?

Section 505(a) authorizes “any citizen” to bring suit. “Citizens” are dened

in §505(g) to mean “persons having an interest which is or may be adversely

aected.” “Person” is dened in § 502(5). Various issues have arisen over

whether di erent organizations qualif y as “persons” entitled to sue. States,

for instance, have been held to be authorized to bring citizen su its, although

they have recourse in their own courts to enforce their own environmen-

tal requirements. is is not surprising, since the denition of “person” in

§502(5), includes “State.” Department of Energy v. Ohio, 503 U.S. at 607.

Although corporations are also included within the denition of “person” in

§502(5), they initially had dicu lty in achieving standing , since they suer

economic injuries which are often not within the zone of interest protected

by the environmental statutes. See Citizens Coordinating Comm. on Friend-

ship Heights v. Washington Metro. Area Transit Auth., 765 F.2d 1169, 15 ELR

20652 (D.C. Cir. 1985). Later the zone-of-interest test was held not to apply

to the environmental st atutes such a s t he Endangered Species Act, which

authorize “any person” to sue, without limitation. See Bennett v. Spear, 520

U.S. 154, 27 ELR 20824 (1997). Oddly, Justice Antonin Scalia wrote both

opinions. Does Bennett v. Spear apply to the CWA citizen suit, which denes

a “citizen” who may sue as a “person or persons having an interest which is or

may be adversely aected”?

Legislative histor y tells us that the denition of “citizen” in §505(g) was

supposed to embody the constitutional requirements for standing enunci-

ated in Sierra Club v. Morton, 405 U.S. at 727, discussed in Chapter III. Of

course, the U.S. Supreme Court’s concept of standing has not been static

since Sierra Club was decided in 1972. Not surprisingly, most of the litiga-

tion over who is a proper plainti ha s revolved around who had standing to

bring a citizen suit.

As we learned in Chapter III, the Court’s view of constitutional stand-

ing requires that the plainti: (1) suer an injury-in-fact (one that is legally

protected, that is act ual or imminent); (2) that is caused by the action com-

plained of; and (3) is likely to be redressed by a favorable decision. Two of