Citizen suit enforcement

AuthorJeffrey G. Miller/Ann Powers/Nancy Long Elder/Karl S. Coplan
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.
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

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