Section 35 Citizen Suits

• Library: Environmental Law 2002 Supp Replacement chs

Many federal environmental statutes contain provisions that allow citizens to step into the shoes of the enforcing governmental agency in order to bring an enforcement-type action when the agency charged with enforcement is not performing its function. Citizen suits against confined animal feeding operations have primarily been filed under:

• 33 U.S.C. § 1365 of the Clean Water Act (CWA), 33 U.S.C. §§ 1251, et seq.

• 42 U.S.C. § 7604 of the Clean Air Act (CAA), 42 U.S.C. §§ 7401, et seq.; and

• 42 U.S.C. § 9659 of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), 42 U.S.C. §§ 9601, et seq

Under these statutes, any “person” with an interest that is or may be adversely affected by the alleged statutory violation may bring a citizen suit. 33 U.S.C. § 1365(a), (g); 42 U.S.C. §§ 7604(a), 9659(a). “[P]erson” is broadly defined under the statutes, 33 U.S.C. § 1362(5); 42 U.S.C. §§ 7602(e), 9601(21), and it is principally, although not exclusively, not-for-profit organizations that institute citizens suits.

In order to bring a citizen suit, the would-be plaintiff must satisfy certain jurisdictional requirements, including standing and notice. To establish standing to bring suit, the plaintiff must satisfy the following three-part test:

1. The plaintiff must have suffered an actual or threatened injury.

2. The injury must be fairly traceable to the alleged violator’s action or failure to act.

3. The injury must be capable of being redressed if the plaintiff prevails in the lawsuit

Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180–81 (2000). Additionally, under the CWA, CAA, and CERCLA, citizens do not have standing to bring suit if the government has already “commenced and is diligently prosecuting” a case against the defendant. 33 U.S.C. § 1365(b)(1)(B); 42 U.S.C. §§ 7604(b)(1)(B), 9659(d)(2).

Statutes that authorize citizen suits also typically require that written notice be sent a certain number of days (usually 60 days) before a lawsuit may be filed. See 33 U.S.C. § 1365(b); 42 U.S.C. §§ 7604(b), 9659(d); see also Hallstrom v. Tillamook County, 493 U.S. 20 (1989). The notice must enumerate the alleged violations and must be sent to the alleged violator, the state enforcement authority, and the Administrator of the Environmental Protection Agency. The purpose of the notice requirement is two-fold. First, it provides the enforcing agencies an opportunity to step in and enforce...