Citizen Suits

• Pages: 321-358

CHAPTER 7

321

Citizen Suits

KARL S. COPLAN

I. History and Overview

Congress included the first citizen-suit provision in the Clean Air

Act Amendments of 1970.1 The Clean Air Act citizen-suit provi-

sion was included because of congressional frustration with the

underenforcement of the prior Clean Air Act scheme.2 Citizen-en-

forcement powers were seen both as a means of full enforcement

as well as a goad to effective governmental enforcement of the

regulatory scheme.3 Each of the subsequent major federal envi-

ronmental regulatory statutes similarly included a citizen-enforce-

ment provision, with the exception of the Federal Insecticide,

Fungicide, and Rodenticide Act (FIFRA).4 Thus, citizens now may

enforce important parts of the federal environmental regulatory

schemes governing air quality,5 water quality,6 solid and hazard-

ous waste disposal,7 contaminated-site cleanup,8 drinking water,9

community right to know,10 toxics,11 and protection of endangered

species.12

A. Kinds of Statutory Citizen Suits

1. Citizen-Enforcement Suits

In general, citizen-suit provisions allow individual citizens and non-

governmental organizations (as well as governmental entities) to

enforce compliance with regulatory standards in federal court, in-

322 CHAPTER 7

cluding requirements to obtain permits and to comply with permit

provisions and administrative orders. Remedies include injunctive

relief and, in most cases, assessment of civil penalties payable to

the U.S. Treasury. They do not include damages payable to plain-

tiffs. Environmental citizen-suit provisions also generally provide

for an award of attorneys’ fees. Prior to commencing suit, citizen

plaintiffs generally must provide advance notice of suit to the puta-

tive defendant, state environmental authorities, and the Environmen-

tal Protection Agency (EPA). A citizen may not bring suit if a

government enforcement agency already has commenced and is

diligently prosecuting its own enforcement action, or if the defen-

dant has come into compliance prior to the citizen suit. Citizen plain-

tiffs must satisfy statutory and constitutional standing requirements

as well.

In the 1980s and 1990s, citizen-enforcement cases seeking pen-

alties and injunctive relief for Clean Water Act (CWA) permit viola-

tions predominated. These cases were easy to investigate and bring

based on Discharge Monitoring Reports (DMRs) filed by the per-

mittees. As a result, much of the case law governing citizen suits

arose within the CWA permit-compliance context.

2. Mandatory Regulatory Duties

Citizen-suit provisions also generally provide for actions against the

EPA to force the agency to perform mandatory statutory duties, such

as to issue regulations setting standards by a statutory deadline. Much

of the early citizen-suit litigation in the 1970s was brought to compel

EPA compliance with these regulatory deadlines. Courts have held

that for a citizen to enforce a mandatory regulatory duty, there must

be a “date certain” deadline for agency action; otherwise, the timing

of the regulatory action is considered discretionary and beyond citi-

zen enforcement.13 In response to these decisions, Congress amended

Section 304 of the Clean Air Act to allow citizens to compel “agency

action unreasonably delayed”; however, Congress has not similarly

amended any other citizen-suit provisions.

3. Citizen Cleanup Remedies

Resource Conservation and Recovery Act (RCRA) Section 7002

provides for citizen-initiated cleanup remedies, even without regu-

Citizen Suits323

latory violations.14 Under this provision, a plaintiff may obtain a

court-ordered cleanup of a site where the past or present storage,

treatment, or disposal of solid or hazardous waste may present an

imminent and substantial endangerment to human health or the en-

vironment.15 This section provides a broad remedy. By its terms, it

is retroactive—that is, it provides a remedy for environmental dump-

ing that occurred before enactment of RCRA. The threshold for

obtaining relief is relatively low—the endangerment need not be

certain. And RCRA’s imminent and substantial endangerment rem-

edy includes petroleum-contaminated sites that are excluded from

coverage under the Comprehensive Environmental Response, Com-

pensation, and Liability Act (CERCLA).16 Citizens also may sue to

enforce CERCLA remedial orders issued by the EPA.17

B. Statutory Citizen-Suit Provisions

A number of federal environmental statutes provide for citizen en-

forcement.

Clean Air Act. Clean Air Act Section 304 provides for citizen

enforcement of “emission standard(s) or limitation(s)” under the act,

or any order issued by an administrator or state with respect to emis-

sion standards or limitations.18 Emission standards and limitations

include, among other things, Prevention of Significant Deteriora-

tion (PSD) requirements and nonattainment zone permits issued

under Title I of the Clean Air Act, implementation plan requirements

relating to transportation control measures, permits issued under

Clean Air Act Title V, and permits issued pursuant to state imple-

mentation plans.19 Citizens also may enforce the mandatory duties

of the EPA administrator under the act, as well as the Clean Air Act’s

requirement that operators obtain a permit for any new or modified

major emitting facility.20 Citizens may obtain injunctive relief as well

as awards of civil penalties to the U.S. Treasury.21 In addition, the

court may direct that up to $100,000 of a civil penalty award go to

environmental benefit projects in lieu of payment to the Treasury.22

Clean Water Act. Similarly to the Clean Air Act, CWA Section

505 provides for citizen enforcement of an “effluent standard or

limitation” set by the CWA, or an order issued with respect thereto.23

An “effluent standard or limitation” is defined to include any viola-

tion of the general prohibition against nonpermitted discharges of