Community participation in environmental protection.

• Author: Mullikin, Thomas Stowe

I.

INTRODUCTION

Much has been written in recent years concerning the erosion of citizens' rights to file suits alleging environmental harm against industry. An article in Bergen, New Jersey's Record newspaper typifies these writings: "You don't need a chainsaw to damage the environment. A gavel and a black robe can be far more effective." (1) Of course, commentary such as this tends to shed more heat than light on the subject by condemning integral decision-makers and shifting focus away from substantive issues. The purpose of this article, however, is to approach the issue in a manner that illuminates the role of citizen participation in environmental protection rather than descending into argument. Analyzed herein are the two primary vehicles which citizens have successfully used to seek redress for alleged environmental harm: (1) citizen suits under the major environmental bodies of law; and (2) civil rights Title VI actions for environmental justice. Finally, the Collaborative Compact Model is proposed and analyzed. This model provides a progressive alternative to citizen suit litigation by promoting a partnership between a community and an industry that can effectively address and rectify a community's environmental concerns.

II.

ORIGINS OF CITIZEN SUIT PROVISIONS

One of the basic features of our nation's environmental protection system is the right of citizens to sue in federal court to force industry to comply with environmental standards. Congress included citizen suit provisions in major environmental laws, such as the Clean Water Act2 ("CWA") and the Clean Air Act, (3) to enable citizens to act as "private attorneys general" and to supplement the government's limited enforcement resources. (4) These provisions ensure the rigorous enforcement of environmental laws when states do not or will not address serious pollution problems in good faith. Citizen suits have been a narrow, but very important, statutory remedy.

It is important to note that these provisions authorize citizens to complement government action, not to compete with or replace it. For example, section 505 of the CWA authorizes any citizen to commence a civil action against a person or entity "alleged to be in violation" of an effluent standard or limitation. (5) The citizen-plaintiff must provide notice of the alleged violation to the Administrator of the U.S. Environmental Protection Agency, to the enforcement agency of the state where the alleged violation occurs, and to the alleged violator at least sixty days before he may file suit. (6) The 60-day notice requirement allows for the industry to come into compliance and provides the government with an opportunity to act in lieu of the citizen-plaintiff to avoid multiple lawsuits.

As indicated in the Senate Report on the Federal Water Pollution Control Act Amendments of 1972 (7) ("FWPCA"), "[t]he Committee intends the great volume of enforcement actions to be brought by the State" and that citizen suits are proper only "if the Federal, State, and local agencies fail to exercise their enforcement responsibility." (8) Further, citizen suits are to "ignite agency enforcement" and to act as an "alternative enforcement mechanism absent agency enforcement." (9) Thus, a citizen suit is not authorized unless the state has failed or declined to take action or has not "diligently prosecuted" a claim after receipt of the 60-day notice. (10)

Congress' aversion to the duplicative actions that can result from simultaneous or subsequent citizen suits is also illustrated by the "diligent prosecution" provision of the CWA. (11) This provision mandates that no citizen suit may be undertaken "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." The meaning of these provisions could not be clearer - citizen suits are barred when the state has commenced and is diligently prosecuting a civil action in court to require compliance. Further, the relief authorized under the CWA includes injunctive relief and penalties that are payable to the U.S. Treasury, not to the private citizens. This eliminates the financial incentive that might otherwise encourage competitive litigation and supports the premise that "private attorneys general" actions are meant to complement government action, rather than to compete with or replace it.

Further, courts have expressed a clear aversion to multiple suits. "Duplicative actions aimed at exacting financial penalties in the name of environmental protection at a time when remedial measures are well underway do not further [our] goal. They are, in fact, impediments to environmental remedy efforts." (12) Similarly, the U.S. Supreme Court has often described the role of citizen suits as supportive and has recognized that state agencies administering the FWPCA are to be given significant discretion. The Court noted in one case that the bar on citizen suits during governmental enforcement action clearly indicates "that the citizen suit is meant to supplement rather than supplant governmental action." (13)

III.

KEY QUESTION: DID THE STATE DILIGENTLY PROSECUTE?

The threshold issue in determining whether a citizen suit should be barred is whether the state "diligently prosecuted" the subject industry. An analysis of whether diligent prosecution has taken place neither encompasses de novo assessment of the agency's procedure in seeking enforcement and computing sanctions nor requires a comparison of the agency's activities with what the citizen group or the court may prefer. In fact, a heavy burden has been placed on citizens who allege that the state has not diligently prosecuted: "The court must presume the diligence of the State's prosecution of a defendant absent persuasive evidence that the State has engaged in a pattern of conduct in its prosecution of the defendant that could be considered dilatory, collusive or otherwise in bad faith." (14) Instead, to overcome the presumption that the state agency did prosecute diligently, citizen-plaintiffs must show that the actions by the state agency amounted to inaction. (15)

Diligence is the act of remedying the violations in any manner that the state decides. The mere fact that the state does not take the precise action that plaintiffs would prefer does not constitute lack of diligence. (16) Therefore, absent fraud or collusion, a citizen suit that visits identical issues in order to seek a remedy other than the state sought is inappropriate. While a citizen may be dissatisfied with an agency's ultimate resolution, the filing of a citizen suit out of dissatisfaction would impinge on federal and state agency authority and autonomy and create the possibility for duplicative actions. For example, the fact that the state "alleged fewer separate violations" and that it "sought a less substantial civil penalty" was not enough to overcome the presumption of "diligent prosecution." (17)

The Act authorizes injunctions and civil penalties which are payable to the U.S. Treasury. (18) In determining the amount of a civil penalty, the court must evaluate "the seriousness of the violation ... the economic benefit (if any) resulting from the violation, any history of such violations, any good-faith efforts to comply with the applicable requirements, the economic impact of the penalty on the violator, and such other matters as justice may require." (19) However, the First Circuit has held that diligent prosecution by a state agency does not require assessing any penalty at all. In North and South Rivers Watershed Assn. vs. Scituate, (20) the court explained that a decision otherwise would expand the "supplemental" role envisioned for such suits and would create a potentially intrusive role for citizens. (21) A citizen suit may not be brought merely to obtain attorneys' fees incurred in pursuit of a citizen suit when the agency has already remedied the problem causing the violations. (22) Since citizens suing under the FWPCA are deemed "private attorneys general," there is little left to do after the government has negotiated an agreement. (23)

IV.

STATE ENFORCEMENT AND SETTLEMENTS--WATER POLLUTION EXAMPLE

States are afforded the opportunity to establish their own water quality standards and discharge limits in individual permits they issue. (24) Many states have adopted more stringent standards than the federal limits require in an effort to achieve lower levels of pollution in their waters. (25) A number of states also encourage the development of innovative technologies to achieve lower levels of pollution. Such decisions may affect the method of enforcement by the state agencies. For example, a state agency may require that a company expend money for new equipment or implementation of new technology in lieu of a strict penalty. (26) In addition, states are afforded latitude in selecting the specific mechanisms of their enforcement program and are given great deference to proceed in a manner they consider to be in the best interests of all parties involved.

This shift in enforcement emphasis from federal to state agencies is clearly reflected in the 1987 amendments to the FWPCA. (27) The FWCPA created a program "to restore and maintain the chemical, physical, and biological integrity of the nation's waters." (28) In addition, the FWCPA recognizes Congress's vision that states would monitor the performance of their permitted industries and take administrative, civil and criminal enforcement action in response to violations as necessary to protect the quality of the waters within their jurisdictions. The extent of enforcement employed is often dependent upon the specific circumstances of each violation. Most violations are resolved through negotiations and the issuance of administrative and judicially approved consent agreements and orders. The orders provide for a compliance timetable...