CWA there is diligent prosecution of an administrative action, collection of a penalty, and citizens do not file an action before institution of the agency action or within 120 days of sending proper notice.
Third, citizens may “commence” a case only by and large in the absence of government enforcement action. Unless precluded, forestalled, unconstitutional or otherwise unwise, the archetypal citizen suit provision allows “any person” to “commence a civil action on his own behalf” against either (1) “any person” who violates a legal prohibition or requirement, or (2) the U.S. Environmental Protection Agency (EPA) for failure “to perform any act or duty . . . which is not discretionary.” Each statute has its own temporal jurisdictional requirement as to when an action may be commenced. For example, the CWA requires good faith allegations of ongoing violations (that the polluter is “alleged to be in violation”), while the CAA allows for prosecution of past violations “if there is evidence that the alleged violation has been repeated,” and RCRA for past violations that “may present an imminent and substantial endangerment.”
Last, citizen suits face a banquet of constitutional and prudential challenges, including standing, mootness, preemption, sovereign immunity, the political question doctrine, claim and issue preclusion, and abstention.
Citizen suits comprise a significant portion of the judicial canon. Federal courts issued about 220 decisions in environmental civil cases in 2010, about 160 of which are environmental citizen suits. Of these, and as summarized below, nearly one-half are under the Clean Water Act (74), with the Resource Conservation Act (49), Clean Air Act (34), Endangered Species Act (32), and Comprehensive, Environmental Resource Compensation, Liability Act (25) also posting a significant number of judicial opinions, with 54 more cases involving a mash up of statutes. Given this distribution, I'll start with the Clean Water Act, before turning to the other statutes with citizen suit provisions. For sake of focusing the scope of this update, I've divided my discussion between “procedural” issues, including notice, preclusion, complaints, jurisdiction, attorney fees, and “substantive” decisions that reach the merits, although again, this is by no means a scientific distinction.
I. Clean Water Act Citizens may bring suit under the Clean Water Act to enforce effluent standards or limitations set by the EPA or the State if the violation adversely affects them. Citizen suits are barred under the act if diligent state or federal enforcement is underway. Sixty day notice must be given to the violator, the State, and the EPA before filing the suit. Similar to the other citizen suit provisions discussed, to remedy a violation the court may issue an injunction, impose penalties, and grant attorney's fees.
A. Procedural 1. Notice Assateague Coastkeeper v. Alan And Kristin Hudson Farm, 2010 WL 2924661 (D. Md. 2010)
Assateague Coastkeeper and other organizations and individuals brought a citizen suit against a poultry producing concentrated animal feeding operation, Alan and Kristin Hudson Farm, seeking penalties and injunctive relief under Clean Water Act (CWA) for illegal discharges of poultry manure. The farm filed motions to dismiss. The District Court, held that failure to adequately identify one of the multiple plaintiffs in notice given of the citizen suit required dismissal of that plaintiff, and the notice was not sufficient as to other named plaintiffs, whose addresses and phone numbers were not included. The allegations of the Farm's control over grower's concentrated animal feeding operation (CAFO) were sufficient to state a claim. The Farm's motions granted in part and denied in part.
City of Ashtabula v. Norfolk S. Corp., 633 F. Supp. 2d 519 (N.D. Ohio 2009)
The City of Ashtabula brought action against the owner of a coal dock facility, Norfolk S. Corporation, alleging a discharge of pollutants and contaminated water amounted to a violation of the CWA. The court determined that although the City provided timely and adequate notice of suit in the form of a letter for certain violations, their claim ultimately failed, and Norfolk's motion to dismiss was granted, because the City's letter did not provide adequate notice of all alleged violations.
Palm Beach County Envtl. Coal. v. Florida, 651 F. Supp. 2d 1328 (S.D. Fla. 2009)
Palm Beach County Environmental Coalition (PBCEC) brought suit against various developers, as well as state and federal officials and agencies. They alleged that the construction of a natural gas pipeline segment would result in the release of noxious gasses and deteriorate the overall quality of life in violation of the CWA, and numerous other state and federal law. PBCEC required the filing of an amended complaint, as well as an emergency motion for temporary injunctive relief in order to enjoin further construction related to the pipeline. The court denied the motion, and most of the Defendants filed motions to dismiss the amended complaint. The court granted the defendants motions to dismiss as they pertained to the CWA claims against the state agencies and officers on the basis of their 11th Amendment sovereign immunity, and as they pertained to those claims against the federal agencies and officers because the Plaintiffs failed to comply with federal notice requirements. Additionally, the court dismissed the claims against the developers under the CWA because they found they had a lack of jurisdiction under 15 U.S.C. §717r(d), which granted original jurisdiction in the matter to the controlling federal circuit court.
Coal. for a Sustainable Delta v. City of Stockton, 2009 U.S. Dist. LEXIS 74353 (E.D. Cal. 2009)
Five local water districts, the Coalition for a Sustainable Delta, alleged the City of Stockton illegally discharged pollutants in violation of the CWA. The City moved to dismiss, claiming that the Coalition had failed to meet CWA requirements of pre-suit notice because of a vague and unsupported, yet timely letter. The court disagreed, explaining that the Coalition need only inform the alleged polluters of what their alleged violations are, but need not argue their point at that time.
Duggan Family P'ship, LLP v. City of Jeffersonville, 2009 WL 1560045 (M.D. Ga. 2009)
The Duggan Family Partnership brought a citizen suit against the City of Jeffersonville alleging that increased storm water and contaminated runoff from their adjacent treatment facility caused substantial erosion on their property, and posed a serious threat to several animal populations. The City filed a motion to dismiss, and the Court granted because the notice sent to them regarding the alleged violations failed to provide the nature of the alleged violation, as well as the activity alleged to constitute a violation. While the notice letter specifically states that it is in reference to an alleged CWA violation, it does not specify the specific standard or limitation of the CWA that was allegedly violated, nor does it provide a specific activity alleged to constitute the violation. Additionally, the court found that the notice letter was sent less than sixty days prior to the filing of the claims against the City, and was thus further deficient on that basis.
Rock Creek Alliance v. United States Forest Serv., 703 F. Supp. 2d 1152 (D. Mont. 2010)
A coalition of environmental advocacy groups, the Rock Creek Alliance, brought an action seeking review under the APA of federal agency actions and associated planning documents relating to the approval of a proposed copper and silver mining operation which would run throughout a national forest. Amongst many other claims, the Alliance alleged that by increasing the amount of rock sediment in nearby creeks, they will consequently raise turbidity standards beyond acceptable state limits, and thus the USFS would violate the CWA. However, because the Alliance failed to provide any type of pre-suit notice of the CWA claims whatsoever, they were dismissed.
Gulf Restoration Network v. Hancock County Dev., LLC, 2009 WL 259617 (S.D. Miss. 2009)
The Gulf Restoration Network (GRN), environmental groups, brought suit against land developers, Hancock County Development LLC, alleging that they engaged in a great deal of land clearing, dumping, and construction on approximately 700 acres of wetlands without required dredge and fill, and discharge permits. Hancock moved to dismiss, claiming an insufficiency of pre-suit notice, but ultimately failed. The court determined that the GRN may bring a Clean Water Act citizen suit claim against Hancock because their pre-suit notice provided adequate information for Hancock to identify the dates of alleged violations, the standards allegedly violated, and the locations of alleged violations.
See also, Delaware County Safe Drinking Water Coalition Inc. v. EPA, 68 ERC 1871 (3d Cir. 2008) (failure to provide notice of two NDD claims); (notice allegations about failure to comply with section 404 and other provisions too general); Building and Construction Trades Council of Buffalo, New York and Vicinity v. Downtown Development Inc., 62 ERC 1385 (2d Cir. 2006) (failure to provide 60 days' notice for CWA claims).
New Manchester Resort & Golf, the corporate owner of undeveloped wetlands, filed suit against neighboring property owner, Douglasville Development, alleging that sediment-laden storm water discharges and placement of fill material in stream that passed through wetlands violated Clean Water Act, and asserted state law claims for nuisance, trespass, and negligence. Resort & Golf moved for partial summary judgment and Douglasville Development moved for summary judgment and to exclude expert testimony. The District Court held that Resort & Golf suffered injury-in-fact for standing purposes under the CWA and in its state claims except for the claims regarding Douglasville Development's placement of fill material into the stream because there was no evidence of injury. Also, the injuries found were traceable to the adjacent landowner. Resort & Golf's intent to sue letter did not provide adequate notice to the upstream landowner under the CWA that it was in violation of its permit conditions by ignoring monitoring and reporting requirements. Summary Judgment was precluded on Resort & Golf's CWA claims because genuine issue of material fact existed regarding whether Douglassville Development used the best management practice to prevent and minimize erosion and sedimentation in the stream. The court further found that the county water and sewer authority (WSA) was not a “state,” within meaning of Clean Water Act; but even if county WSA was a state, its actions did not bar plaintiff's civil suit. Summary judgment was also precluded on the on the nuisance, trespass, and negligence claims because genuine issue of material fact existed as to scope of drainage easement and actual damages wetlands owner suffered. Resort & Golf's motion was denied and Douglassville Development's motion was granted in part and denied in part.
Black Warrior Riverkeeper, Inc. v. Cherokee Mining, LLC, 637 F. Supp. 2d 983 (N.D. Ala. 2009)
Black Warrior Riverkeeper, a non-profit corporation, brought a citizen suit against the owner/operator of a coal mine, Cherokee Mining, LLC, regarding alleged violations of their NPDES permit. However, before the issues could reach the court, Cherokee Mining agreed to and executed an administrative consent order from the Alabama Department of Environmental Management (ADEM) that both penalized them financially, and forced them to make operational changes to prevent future violations. Subsequently, Cherokee Mining filed motions to dismiss due to res judicata, and lack of jurisdiction. The court granted, holding that because the issues were resolved to the satisfaction of the ADEM, and the Riverkeeper had no clear basis on which they could conclude that there would be ongoing violations, they this lacked standing to proceed.
United States v. Metro. St. Louis Sewer Dist., 569 F.3d 829 (8th Cir. 2009)
A business trade association moved to intervene in an enforcement action against the agency that manages St. Louis' sewer and wastewater system by the United States and the State of Missouri under the CWA. The court here affirmed the lower court's denial, holding that only citizens whose suits are displaced by governmental enforcement actions are entitled under the CWA to intervene as of right. Furthermore, the organization could not articulate a concrete or particularized injury, and as such lacked standing to bring a claim here. Finally, the organization could not establish a substantial enough interest under general principles of intervention to be allowed to do so here.
Pollack v. United States Dep't of Justice, 577 F. 3d 736 (7th Cir. 2009)
The Pollacks brought an action alleging that the discharge of bullets from a government gun range into Lake Michigan violated environmental laws. The lower court granted the government's motion to dismiss for lack of standing, and on appeal the court here held that because the Pollacks did not seem to be concretely affected in any way by the shooting activities, and merely sought the satisfaction of enforcing federal law, they lacked standing to pursue the claim.
City of Newburgh v. Sarna, 690 F. Supp. 2d 136 (S.D.N.Y. 2010)
The City of Newburgh alleged that Sarna, the defendant land developers, and a nearby town were responsible for the discharge of unfiltered storm water runoff from a residential development, into an adjacent reservoir. Newburgh sought a preliminary injunction compelling the defendants to install numerous measures to prevent the alleged continued flow of unfiltered runoff. Both defendants filed a cross motion to dismiss, or in the alternative, for summary judgment. The court ultimately denied Newburgh's motion, but granted the motion as it pertained to the nearby town. They held that on top of the fact that the NYSDEC was already engaged in administrative proceedings regarding the matter, Newburgh's required letter of notice of suit failed to adequately notify the nearby town, and the City failed to clearly show a threat of irreparable harm. However, the court did determine that the Sarna were still a potentially liable party, and thus the motion to dismiss was denied as it pertained to them.
Domino v. Didion Ethanol, LLC, 670 F. Supp. 2d 901 (W.D. Wis. 2009)
Domino, a property owner, brought a citizen suit Didion Ethanol, LLC, an ethanol producer, alleging CWA and NPDES permit violations. Didion moved to amend its answer, and Domino cross-moved for partial summary judgment, seeking a declaration that they have standing, and a determination that Didion violated certain provisions of its wastewater discharge permit. The court ultimately denied Didion's motion to amend, and granted the cross-motion in part, holding that genuine issues of fact precluded only one of Domino's claims (related to unlawful zinc discharge) from summary judgment on both the issue of standing, and whether or not it constituted a violation.
West v. Johnson, 2010 WL 2516056 (W.D. Wash. 2009)
West brought a pro se citizen suit in which the he alleged that various municipalities, federal and state agencies and officers, and one private company, violated the CWA. Here, the state defendants moved to dismiss, and the court granted same. They held that because the defendants asserted immunity from CWA claims under the 11th Amendment, a legitimate argument for dismissal, in failing to respond to the motion West tacitly conceded that the movant's argument has merit. Furthermore, the federal defendant motion for dismissal was granted because West failed to demonstrate that in addition to his enjoyment of the affected waters, there was any possible way for the court to sufficiently redress his claims, and as such he lacked standing. Finally, the court denied West's motion to amend his complaint because in his supporting documents he sought to assert additional claims against parties he has no private right of action against, and to assert new claims against the parties he has here failed to adequately match.
See also, United States v. Metropolitan St. Louis Sewer District, 69 ERC 1012 (8th Cir. 2009) (lack of associational standing in CWA civil enforcement action); NRDC v. EPA, 67 ERC 1662 (9th Cir. 2008) (standing to bring NDD claims for failure to promulgate ELGs and NSPS for stormwater discharges from construction and development industries); Friends of the Earth Inc. v. Gaston Copper Recycling Corp., 65 ERC 1999 (4th Cir. 2008) (remand finding of standing due to death of standing affiant); Alliance for Environmental Renewal Inc. v. Pyramid Crossgates Co., 61 ERC 1983 (2d Cir. 2006) (remanding dismissal on standing ground, holding constitutional standing steps ahead of merits of whether salt is pollutant); American Canoe Association Inc. v. Louisa Water & Sewer Commission, 59 ERC 1481 (6th Cir. 2004) (upholding associational standing due to recreational and aesthetic injury). Ailor v. Maynardville, 58 ERC 1590 (6th Cir. 2004) (property owners lack standing to challenge city's discharge violations); Florida Public Interest Research Group Citizen Lobby Inc. v. EPA, 59 ERC 1166 (11th Cir. 2004) (upholding standing to challenge EPA failure to perform NDD).
3. Preclusion and Diligent Prosecution Davis v. Jackson, 2010 WL 2836688 (M.D. Fla. 2010)
The Eleventh Amendment barred a couple from maintaining an CWA action for injunctive relief ordering a director of a state water management agency to take actions to restore an estuary to compliance with previous water quality standards and physical dimensions. The relief sought was retrospective, even though the couple may have continued to suffer effects. Thus, the Eleventh Circuit's exception to the Eleventh Amendment for prospective relief was not applicable.
Ohio Valley Environmental Coalition, Inc. v. HobetMin., LLC, 2010 WL 2739990 (S.D. W. Va. 2010)
Three environmental groups, collectively the Ohio Valley Environmental Coalition, Inc. (OVEC), brought action against the coal mining company under the citizen suit provisions of Clean Water Act (CWA) and Surface Mine Control and Reclamation Act (SMCRA). OVEC's alleged violations of effluent limits for selenium in the state permit, and performance standards, terms, and conditions of surface mining permit. OVEC moved for summary judgment, and company moved to dismiss for failure to state claim upon which relief could be granted. The District held that West Virginia Department of Environmental Protection (WVDEP) was not diligent in its state prosecution against coal mining company, and thus, it was appropriate for groups to bring action against company under citizen suit provisions of CWA and SMCRA. The claim was not moot because there was a realistic prospect that entry of consent decree in WVDEP's state prosecution against company would not eliminate continued violations of permit. The WVDEP was not a necessary party to action nor was it an indispensable party to the action. Younger and Colorado River abstention from exercise of federal jurisdiction was not appropriate in this instance. The court also found that the company failed to comply with permits; and thus injunctive relief, the scope and terms of which to be determined after trial, was appropriate.
St. Johns Riverkeeper, Inc. v. Jacksonville Elec. Authority, 2010 WL 745494 (M.D. Fla. 2010)
Jacksonville Electric Authority sought summary judgment on St. Johns Riverkeeper, Inc's allegations under the Clean Water Act for 200 instances of unauthorized discharges of untreated wastewater, or sanitary sewer overflows (SSOs), at various locations associated with the Electric Authority's wastewater treatment facilities. Genuine issues of material fact existed as to whether there was a continuing likelihood of a recurrence of unauthorized discharge of untreated wastewater into river by wastewater treatment facility despite the facility's remedial action to correct the cause of previous discharges. Therefore, summary judgment was precluded on facility's claim that the St. Johns Riverkeeper's action, brought pursuant to the Clean Water Act for ongoing violations, was moot. Notwithstanding the facility's declaration that the cause of each discharge identified in group's complaint was identified and fixed prior to suit, the facility acknowledged that the cause of the discharge may not have even been at the site of the actual discharge. Furthermore, the facility admitted that its ongoing improvement process had resulted in a downward trend of unauthorized discharges, not a fix beyond a reasonable probability.
Friends of Milwaukee's Rivers v. Milwaukee Metro. Sewerage, 556 F.3d 603 (7th Cir. 2009)
In response to certain sewer overflows, environmental organizations, collectively under Friends of Milwaukee's Rivers, brought this citizen suit against the defendant sewerage district. The case was initially dismissed in district court because the state itself had commenced and diligently prosecuted judicial and administrative enforcement actions against Milwaukee Metro. Sewerage. The case was then appealed, remanded, and dismissed again. Friends of Milwaukee's River appealed that second dismissal, but the court held, quite narrowly, that the district court did not clearly err in the decisive weight it gave to certain evidence in the determination of the diligence of state enforcement action, nor did it abuse its discretion in refusing to consider other evidence as public record and thus admit it under hearsay exceptions, and thus affirmed their judgment.
Sierra Club v. Powellton Coal Co., 662 F. Supp. 2d 514 (S.D. W. Va. 2009)
The Sierra Club brought a citizen suit action against a coalmine operator, Powellton Coal Company, alleging a breach of the effluent limitations in their discharge permits in violation of the CWA. Powelton moved for partial dismissal, but the court explained that while the West Virginia Department of Environmental Protection had properly commenced administrative proceedings, because they are not allowed to engage in such matters without the consent of the violating party, the state provision is not analogous enough to federal preclusion provisions, and as such the Sierra Club is not precluded from suit on those grounds. Furthermore, contrary to the Powelton's motion to dismiss, the court held that the Sierra Club's construction of the SMCRA does not suggest that it supercedes, amends, modifies, or repeals the CWA in any way. Thus, Powelton's motion to dismiss was denied.
Riverkeeper, Inc. v. Mirant Lovett, LLC, 675 F. Supp. 2d 337 (S.D.N.Y. 2009)
A non-profit conservation corporation, Riverkeeper, Inc., brought a citizen suit against the owner of a power plant, Mirant Lovett, LLC, alleging that by failing to implement environmental safeguards in a timely manner, they were in violation of the terms of their SPDES permit. Prior to this case, Mirant Lovett, LLC entered into a consent order which, although it did not modify their SPDES permit, did preclude any suits brought resulting from alleged damages up which occurred through 2004. Furthermore, because the power plant in question was unequivocally shut down and demolished, the Riverkeeper's claims for injunctive and declaratory relief were deemed moot. Additionally, because Mirant Lovett, LLC had filed for bankruptcy, all claims for civil penalties arising out of SPDES violations prior to October 2007 were barred as well. The court did hold however that the Riverkeeper adequately plead an injury in fact where it was able to show that the parties it represented had a stake in the enjoyment of the Hudson River, and as such has standing to bring any such claims arising from violations occurring after October of 2007.
Hernandez v. Esso Standard Oil Co., 597 F. Supp. 2d 272 (D.P.R. 2009)
Hernandez and other community residents brought a citizen suit against a local service station, Esso Standard Oil Co., and others alleging violations of state and federal environmental laws under the