Is 'diligent prosecution of an action in a court' required to preempt citizen suits under the major federal environmental statutes?

• Author: Dickinson, Derek

During the late 1960s and early 1970s, mainly in reaction to political pressures stemming from concerns about the degrading environment, Congress began to address the environmental and human health problems caused by growing urbanization and industrial development.(1) By enacting new and amending existing national environmental statutes using novel implementation and enforcement strategies,(2) Congress hoped to protect the environment and human health better than it had under previous laws.(3) Congress gave authority to private citizens to assume the government's enforcement position in order to help realize the desired goals.(4) The statutory provisions conferring this private enforcement authority are called "citizen suit provisions."(5)

Since 1970, Congress has included citizen suit provisions in almost all of the new national environmental statutes and major amendments.(6) Congress used the language of the first modern provision, section 304 of the Clean Air Act,(7) as a model for subsequent provisions.(8) Citizen suit provisions have provided an important and frequently used enforcement tool, allowing private parties to have significant influence in environmental enforcement actions and providing assistance to agencies that have limited resources.(9) The initiation of a citizen suit, however, may create problems for enforcement agencies by interfering with the agency's enforcement efforts and discretion.(10) Congress foresaw this problem. In fact, opponents of the provisions succeeded in including statutory limitations that restrict a private party's ability to bring a citizen suit under certain circumstances.(11) One statutory restriction, precluding citizen suits when an agency has already brought and is diligently prosecuting its own action, has generated much litigation(12) and is the focus of this Note.

After examining the current interpretations of the diligent prosecution restrictions and their respective strengths and weaknesses, this Note considers alternatives and then proposes a solution. This Note first briefly discusses the background and history of private enforcement, including the current statutory language and legislative history of the modern national environmental statutes and their citizen suit provisions. Next, this Note describes the confusion that exists among the various United States Courts of Appeals over the proper interpretation of the terms "in a court" and "diligence" contained in the diligent prosecution limitation on citizen suits. This Note then proposes that Congress amend the current statutory language so that courts are more clearly directed to permit diligent prosecution of agency actions to preempt citizen suits. This Note explains how such an approach effectively meets the overall goals of the statutes and protects important policy considerations. Alternatively, in the absence of a statutory amendment, this Note proposes a judicial standard for determining when diligent prosecution of agency actions suffices to preempt citizen suits. The proposed standard optimally balances the beneficial policy goals of preemption by agency actions and the arguments regarding statutory language.

BACKGROUND AND HISTORY OF PRIVATE PARTY ENFORCEMENT

"Private enforcement of federal statutes is not a new concept, unique to environmental law."(13) In the Anglo-American legal system, the concept of shared enforcement responsibilities between public officials and private citizens can be traced back over 600 years.(14) In 1388, England passed a water pollution statute in response to the public health problem created by the uncontrolled dumping of garbage into "Ditches, Rivers, and other Waters."(15) The 1388 statute had a dual enforcement system empowering both public officials and others who felt "grieved" to commence enforcement proceedings.(16) This practice of sharing enforcement power continued through the years in England by allowing private parties to bring qui tam actions.(17) Despite limited practicality,(18) the custom continued throughout the development of English law and well into the nineteenth century.(19) Eventually, English citizens began to abuse their private enforcement authority; this abuse, combined with the action's limited usefulness, led England ultimately to abolish qui tam actions.(20)

"[T]he American experience with qui tam proceedings generally paralleled that of England."(21) In fact, the American colonies adopted the concept and it continued well into the twentieth century;(22) however, some states experienced problems similar to those that occurred in England and some eventually passed procedural curbs on the commencement of qui tam suits.(23) Nonetheless, in general, American judicial attitudes toward qui tam actions were mixed, and the prevailing view by the middle of the twentieth century was that "[a]s the public agencies became more effective, the need for qui tam actions diminished."(25)

A resurgence of qui tam actions occurred during the 1970s when concerned citizens and environmentalists attempted to bring such actions(26) under the provisions of the Rivers and Harbors Act of 1899.(27) Although the courts generally were not receptive to the argument that the Rivers and Harbors Act implicitly authorized private enforcement actions,(28) "the political climate in the early 1970s ... fostered strong Congressional interest in encouraging citizen participation in enforcement of federal environmental laws."(29) Congress eventually codified this interest through the citizen suit provisions of the modern environmental statutes.(30)

CITIZEN SUIT STATUTORY LANGUAGE AND LEGISLATIVE HISTORY

Statutory Language

Growing from the tradition of qui tam actions,(31) the first modern citizen suit provision in an environmental statute(32) was section 304 of the Clean Air Act Amendments of 1970 (CAA).(33) In subsequent environmental legislation, Congress tended to lift the section out of the CAA and include it in new statutes and amendments made to existing laws.(34) In fact, many courts have recognized the similarities between the statutes and have used case law for the CAA as persuasive authority in interpreting the language of the later statutes.(35) For this reason, and because citizen suit enforcement has concentrated on the Clean Water Act (CWA),(36) this Note considers and discusses the citizen suit provisions of the CAA(37) and the CWA.(38)

Generally, when interpreting a statutory provision, the starting point is the language of the statute itself.(39) For this Note, the specific language that will be analyzed is: "No action may be commenced ... if the [government] has commenced and is diligently prosecuting [an] action in a court."(40) The meaning of the statutory language or, more precisely, an indication of the congressional purpose for including the language, may be obtained by reviewing the provision's legislative history.(41)

A cursory review of the legislative history for the citizen suit provision indicates that the suits were viewed as inexpensive alternatives to government enforcement and as a means to encourage agencies to uphold the law.(42) In fact, various courts have found that in enacting the citizen suit provision, "Congress made clear that citizen groups [w]ere not to be treated as nuisances or troublemakers but rather as welcomed participants in the vindication of environmental interests."(43) Although a majority of Congress believed citizen suits to be a beneficial advance in enforcement of environmental laws, a close inspection of the legislative record reveals that a minority did not look so kindly upon granting such broad enforcement authority to mere private citizens.(44)

The majority position, aptly titled by one commentator as the Expansionist Approach,(45) viewed citizen suits as an aid to government enforcement. The majority advocated that citizen suits properly act "to both goad the responsible agencies to more vigorous enforcement of the antipollution standards and, if the agencies remained inert, to provide an alternative enforcement mechanism."(46) In addition, the followers of the Expansionist Approach justified citizen suits as providing assistance to overworked and underresourced agencies.(47)

The minority position, which has been called the Restrictive Approach,(48) viewed citizen suits as infringing upon agency discretion.(49) The advocates of this view thought that insisting on the need for alternative private enforcement denigrated the professionalism of responsible government agencies(50) and the granting of wide enforcement authority would flood the already clogged courts and cause agencies to expend scarce resources on frivolous claims.(51)

These competing views shaped the ultimate citizen suit provision, which, as a compromise, allowed citizen suits but required that specific limitations be satisfied.(52) The diligent prosecution restriction was one of these limitations.(53) The legislative history indicates that the purpose of the diligent prosecution limitation was to ensure that the agency acted in a manner that protected the citizens adequately.(54) As for the exact language of the diligent prosecution provision, particularly the terms "in a court" and "diligence," the legislative history is silent.

JUDICIAL INTERPRETATION AND IMPLEMENTATION

Introduction

Most courts hearing a citizen suit case begin their analyses with the proposition that the purpose of citizen suits is to "supplement, not supplant," government enforcement,(55) a view that the Supreme Court has adopted.(56) In addition, when interpreting the specific language of the diligent prosecution limitation, courts usually ask the same two questions: first, what is an action in a court, and second, what constitutes diligent prosecution?(57) It is in their answers to these questions that judicial opinions diverge greatly.(58)

Despite the seemingly obvious requirement of a court for the "action in a court" question,(59) courts addressing the issue...