SC Lawyer, July 2011, #1. Citizen Suits to Enforce Federal Environmental Laws.

• Author: By Eugene C. McCall Jr. and Ryan W. Trail

South Carolina BAR Journal

2011.

SC Lawyer, July 2011, #1.

Citizen Suits to Enforce Federal Environmental Laws

South Carolina Lawyer July 2011 Citizen Suits to Enforce Federal Environmental Laws By Eugene C. McCall Jr. and Ryan W. Trail Introduction

Of the departures made by pollution statutes from other federal laws, one of the most significant was the creation of a formal role for regular citizens to be included. Several reasons could be given for this approach. For example, by the late 1960s, the Cuyahoga River in Ohio was regularly, and literally, catching fire due to discharge of untreated industrial wastes into the river. The smog in Los Angeles was so intense that airline passengers would see a brown haze as they approached the city and their eyes and lungs would immediately begin burning as they stepped off the plane. Similar examples of pollution were occurring throughout America. Clearly the federal government wasn't doing enough to keep up with the several decades of significant industrial and population expansion that occurred in the U.S. beginning after World War II and the associated wastes that these industries and the populace generated.

Sen. Edmund Muskie was one of the principal authors of the plethora of environmental laws that were passed by Congress, beginning with the Clean Air Act (CAA) (42 U.S.C. § 7401 et seq.) in 1970. Muskie was placed on the Public Works Committee as punishment by then Democratic majority leader Lyndon Baines Johnson because he refused to commit to support a rules change measure Johnson sought. Muskie was a conservationist when he entered the Senate, but became an environmentalist and made this committee his bully pulpit. "Before Ed Muskie, there was no national environmental policy; there was no national environmental movement; there was no national environmental consciousness." (Leon G. Billings writing on Edmund Muskie, from the Edmund S. Muskie Foundation, available at http://muskiefoundation.org/founder.html.)

The CAA was the first federal environmental statute to include provisions for citizen enforcement. A citizen suit provision followed in the Clean Water Act (CWA) (33 U.S.C. § 1251 et seq.) in 1972; the Resource Conservation and Recovery Act (RCRA) (42 U.S.C. § 6901 et seq.) in 1976; the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA, also known as Superfund) (42 U.S.C. § 9601 et seq.) in 1980; and in most of the other federal environmental related laws passed in this era.

The so-called citizen suit provisions included in these statutes allow individuals to bring an action against violators instead of relying on government action and to sue the government for failing to perform a non-discretionary act. The courts have largely recognized Congress' intent to promote public action to help implement these environmental laws. SeeNatural Res. Def. Council v. Train, 510 F. 2d 692 (D.C. Cir. 1975). Muskie said it allowed "regular people" to enforce environmental laws. But generally, regular people don't sue; it takes environmental advocates, sometimes even zealots. These advocates come primarily in two main forms: (1) the established national environmental groups with permanent legal staff, like the Sierra Club, Friends of the Earth or National Resources Defense Council; or (2) local, grassroots and/or ad hoc groups which coalesce around particular issues. In South Carolina we have several well established, sophisticated and notable "local" groups, including the Coastal Conservation League, the League of Women Voters, the South Carolina Environmental Law Project and the newly located Charleston office of the Southern Environmental Law Center, all in the coastal area, and Upstate Forever in the Upstate.

The 60-day notice letter

Sixty days before initiating a citizen suit, a would-be plaintiff must give notice of the alleged violation to the U.S. Environmental Protection Agency (EPA), the state in which the alleged violation occurred and the alleged violator. "[T]he purpose of the notice to the alleged violator is to give it an opportunity to bring itself into complete compliance with the Act and thus render unnecessary a citizen suit." Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49, 60 (1987). The notice letter...