Citizen Suits to Enforce Federal Environmental Laws
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Citizen Suits to
Enforce Federal
Environmental Laws
By Eugene C. McCall Jr. and Ryan W. Trail
Introduction n’t doing enough to keep up with environmentalist and made this
Of the departures made by pol- the several decades of significant committee his bully pulpit. “Before
lution statutes from other federal industrial and population expansion Ed Muskie, there was no national
laws, one of the most significant that occurred in the U.S. beginning environmental policy; there was no
was the creation of a formal role for after World War II and the associat- national environmental movement;
regular citizens to be included. ed wastes that these industries and there was no national environmen-
Several reasons could be given for the populace generated. tal consciousness.” (Leon G. Billings
this approach. For example, by the Sen. Edmund Muskie was one of writing on Edmund Muskie, from
late 1960s, the Cuyahoga River in the principal authors of the plethora the Edmund S. Muskie Foundation,
Ohio was regularly, and literally, of environmental laws that were available at http://muskiefounda-
catching fire due to discharge of passed by Congress, beginning with tion.org/founder.html.)
untreated industrial wastes into the the Clean Air Act (CAA) (42 U.S.C. § The CAA was the first federal
river. The smog in Los Angeles was 7401 et seq.) in 1970. Muskie was environmental statute to include
PHOTO BY GEORGE FULTON
so intense that airline passengers placed on the Public Works provisions for citizen enforcement.
would see a brown haze as they Committee as punishment by then A citizen suit provision followed in
approached the city and their eyes Democratic majority leader Lyndon the Clean Water Act (CWA) (33
and lungs would immediately begin Baines Johnson because he refused U.S.C. § 1251 et seq.) in 1972; the
burning as they stepped off the to commit to support a rules change Resource Conservation and
plane. Similar examples of pollution measure Johnson sought. Muskie Recovery Act (RCRA) (42 U.S.C. §
were occurring throughout America. was a conservationist when he 6901 et seq.) in 1976; the
Clearly the federal government was- entered the Senate, but became an Comprehensive Environmental
July 2011 35Response, Compensation and roots and/or ad hoc groups which gives the agency a chance to take
Liability Act (CERCLA, also known coalesce around particular issues. In action, as the entire premise of a cit-
as Superfund) (42 U.S.C. § 9601 et South Carolina we have several well izen suit is that the agency is not
seq.) in 1980; and in most of the established, sophisticated and doing its job. The statutes bar a citi-
other federal environmental related notable “local” groups, including zen from suing if the EPA or the
laws passed in this era. the Coastal Conservation League, state has already commenced, and is
The so-called citizen suit provi- the League of Women Voters, the “diligently prosecuting,” an enforce-
sions included in these statutes South Carolina Environmental Law ment action. 33 U.S.C. §
allow individuals to bring an action Project and the newly located 1365(b)(1)(B) (a similar provision is
against violators instead of relying Charleston office of the Southern contained in other environmental
on government action and to sue Environmental Law Center, all in statutes). However, action by the
the government for failing to per- the coastal area, and Upstate Forever industry to simply stop the viola-
form a non-discretionary act. The in the Upstate. tion or by the agency to prosecute
courts have largely recognized the industry will not necessarily pre-
Congress’ intent to promote public The 60-day notice letter clude a citizen suit.
action to help implement these Sixty days before initiating a cit- In practical terms, sending a cit-
environmental laws. See Natural Res. izen suit, a would-be plaintiff must izen suit notice letter is like pulling
Def. Council v. Train, 510 F. 2d 692 give notice of the alleged violation a fire alarm in a crowded restaurant:
(D.C. Cir. 1975). Muskie said it to the U.S. Environmental it generally creates widespread panic
allowed “regular people” to enforce Protection Agency (EPA), the state and usually quick action. The notice
environmental laws. But generally, in which the alleged violation must be sent to the U.S. Attorney
regular people don’t sue; it takes occurred and the alleged violator. General and the Administrator of
environmental advocates, some- “[T]he purpose of the notice to the the EPA as well as to the state and
times even zealots. These advocates alleged violator is to give it an the violator, so there is top-down
come primarily in two main forms: opportunity to bring itself into com- pressure to explain why the lower-
(1) the established national environ- plete compliance with the Act and down agency person wasn’t doing
mental groups with permanent legal thus … render unnecessary a citizen his or her job. For the violator, if it
staff, like the Sierra Club, Friends of suit.” Gwaltney of Smithfield, Ltd. v. weren’t there before, the potential
the Earth or National Resources Chesapeake Bay Found., Inc., 484 U.S. violation is now plastered on the
Defense Council; or (2) local, grass- 49, 60 (1987). The notice letter also center of every bureaucrat’s radar
“
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36 South Carolina Lawyerscreen who maybe should have TOC burned hazardous waste. Circuit vacated and remanded with
already been taking a hard look. To understand the implications instructions to dismiss, finding that
of Laidlaw, a brief background of the case was moot. 149 F.3d at 305.
Standing and mootness the CWA and wastewater discharge The Supreme Court reversed the
Once the 60 days has passed permits is necessary. The CWA’s ini- Fourth Circuit’s ruling, holding that
from the sending of the notice letter, tial goal was to restore the chemical, the plaintiffs had standing and that
the citizen may file a suit. The physical and biological integrity of the case was not rendered moot by
Constitution’s Article III case-or-con- the nation’s waters to a level of the permit holder’s subsequent com-
troversy limitation on federal judicial “fishable and swimmable” through pliance with the permit limits or
authority requires that the plaintiff the use of available technologies to even its shutting down the facility.
have standing and that the case not achieve effluent limitations on dis- 528 U.S. at 167.
be moot. The Supreme Court held charges. The CWA also contained an The Supreme Court’s broad
that to satisfy Article III standing ultimate goal of achieving “zero dis- interpretation of injury states that
requirements, a plaintiff must show charge” of pollutants into waters of “[h]ere, injury in fact was adequately
injury in fact, causation and redress- the U.S. After almost 40 years of documented by the affidavits and
ability. Lujan v. Defenders of Wildlife, CWA requirements, we’ve come a testimony of FOE members asserting
504 U.S. 555, 560-561 (1992). long way towards, but amazingly that Laidlaw’s pollutant discharges,
Standing progressed (or regressed) still haven’t met, the initial goal of and the affiants’ reasonable concerns
from the early days of the statutes to “fishable and swimmable” waters. about the effects of those discharges,
the ultimate in 1981, where the The ultimate goal of “zero dis- directly affected those affiants’ recre-
Palila (an endangered species of bird) charge” is still a long way away. The ational, aesthetic, and economic
was listed as the lead plaintiff in a regulatory process to achieve these interests.” Id. at 169. The district
Ninth Circuit citizen suit. There were goals was to issue every discharger a court found that DHEC had not dili-
a few human plaintiffs too, but the National Pollutant Discharge gently prosecuted Laidlaw. As soon
case is always listed as Palila v. Elimination System (NPDES) Permit as FOE filed the suit, Laidlaw drafted
Hawaii Dept. of Land and Natural with effluent limitation require- a state court complaint and settle-
Resources, and the Ninth Circuit actu- ments. The CWA requires monthly ment agreement, filed the lawsuit
ally begins the opinion, “This action self-reporting of compliance, or lack against itself, and paid the filing fee.
was brought on behalf of an endan- thereof, by the permit holder to EPA The settlement agreement was
gered bird.” Palila (Psittirostar or the authorized state agency, reached with “unusual haste” so the
bailleui), an endangered species v. Haw. which in South Carolina is the plaintiffs did not have the opportu-
Dep’t of Land and Natural Res., 639 Department of Health and nity to intervene. The district court
F.2d 495, 495 (9th Cir. 1981). Environmental Control (DHEC), by found “most persuasive” that in
Courts generally began tighten- means of a Discharge Monitoring imposing a $100,000 penalty, DHEC
ing up on citizen plaintiffs after Report (DMR). So assuming it has did not recover or even calculate the
Palila, and the Fourth Circuit seems permit violations, the industry has economic benefit that Laidlaw had
never to have seen a citizen suit to hang out its dirty laundry each received by not complying with its
plaintiff that it liked. Even the month for the agency and citizens permit. Id. at 178.
Ninth Circuit had a change of heart to see. The CWA is a strict liability Laidlaw complained that even if
(or perhaps just change in person- statute, and courts have awarded FOE otherwise had standing, because
nel) and said in 2004 that endan- summary judgment based on infor- the penalties go to the government
gered species could not sue for their mation in DMRs, or the lack of and because FOE did not get an
own protection. Cetacean DMRs. The Ninth Circuit in Sierra injunction, FOE did not obtain any
Community v. U.S., 386 F.3d 1169 Club v. Union Oil Co., 813 F.2d 1340 redress. Here the Court found that
(9th Cir. 2004) (suit brought in the (9th Cir. 1987), held that DMRs civil penalties provide sufficient
name of whales, dolphins and por- were conclusive evidence, not prima deterrence to the industry. “[T]he
poises that had allegedly been facie evidence, of violation. penalties would redress FOE’s injuries
harmed by Navy sonar). Laidlaw did in fact have numer- by abating current violations and
ous violations of mercury limits in preventing future ones.” Id. at 187.
Laidlaw and the Clean Water Act its NPDES permit, but no adverse Laidlaw’s defense was that it
South Carolina has not experi- environmental impact was found. At had come into compliance and had
enced many citizen suits, but a sem- the district court level, Judge Joseph even shut down the TOC facility.
inal case that reinvigorated citizen Anderson Jr. imposed a penalty of However, the Court found that “[a]
suits throughout the nation arose $405,800 for these violations, but defendant’s voluntary cessation of a
here. In 1992, Friends of the Earth denied injunctive relief to FOE. challenged practice ordinarily does
brought a Clean Water Act citizen Friends of the Earth, Inc. v. Laidlaw not deprive a federal court of its
suit against Laidlaw Environmental Envtl. Services (TOC), Inc., 956 F.Supp. power to determine the legality of
Services Thermal Oxidation 588 (D.S.C. 1997), vacated as moot, the practice.” Id. at 169,170.
Corporation (TOC) for violations of 149 F.3d 303 (4th Cir. 1998), rev’ d, Shutting down the facility might
mercury limits in its wastewater. 528 U.S. 167 (2000). The Fourth normally render such a case moot,
July 2011 37but the Court found that there were (D. Or. 2005), the court found that against the EPA to force it to do
disputed factual matters that exceeding a monthly permit limit what the statutes said it should, but
remained open for consideration on constituted a separate violation for citizen suits cannot force the EPA to
remand. Id. Because Laidlaw had each day of the month in which the perform discretionary duties. See
other facilities, shutting down this limit was exceeded. This notwith- Sierra Club v. Train, 557 F.2d 485
one did not mean that Laidlaw standing, suits cannot be brought (5th Cir. 1977). More recently, the
would not have violations else- for wholly past violations. Gwaltney, Natural Resources Defense Council,
where. Additionally, Laidlaw kept 484 U.S. at 67. Inc. challenged the EPA’s Effluent
open its NPDES permit for TOC, so Affirmative as well as prohibi- Guidelines Plan. In 1992, the D.C.
it could have easily restarted the tive injunctions may be imposed by District Court entered a consent
facility if the case had gone away. the court. For example, in Palila the decree which, among other things,
court ordered the state to perma- established schedules for EPA to pro-
Relief and statute of limitations nently remove sheep and goats in pose and take final action on efflu-
No specific statute of limitations order to protect the bird’s critical ent limitations guidelines and stan-
is included in the citizen suit provi- habitat. Palila, 639 F.2d at 497-98. dards for several point source cate-
sions, but courts have applied a five- Attorney and expert witness fees gories. As an example, an amended
year statute of limitations for have regularly been awarded by the consent decree required EPA to take
actions seeking to enforce civil courts to plaintiffs who have pre- final action on the Concentrated
penalties. See Sierra Club v. Chevron vailed or substantially prevailed. U.S. Aquatic Animal Production (CAAP)
U.S.A., Inc. 834 F.2d 1517 (9th Cir. Pub. Interest Research Group v. Stolt effluent guidelines by June 30,
1987). With high per-violation Sea Farming, Inc., 301 F. Supp.2d 46, 2004. So even with bureaucracy
penalties (e.g., under the CWA a 50-51 (D. Me. 2004), (citing 33 U.S.C. forcing suits, “timely” in EPA terms
penalty of up to $37,500 per viola- §1365(d) in awarding $1.2 million in is almost on a geologic scale.
tion per day can be imposed) the attorney fees to the plaintiffs). Natural Resources Defense Council v.
costs can add up quickly. 40 C.F.R. § However, defendants generally have Reilly, No. 89-2980, 1991 U.S. Dist.
19.4 (2009). Many permits require not been awarded attorney fees, LEXIS 5334 (D.D.C. Apr. 23, 1991),
monthly or some other periodic even where they prevailed. modified sub nom. NRDC v. Whitman,
sampling frequency. In Oregon State No. 89-2980 (D.D.C. Jan. 31,
Pub. Interest Research Group v. Pacific Bureaucracy forcing 1992)(resulting in a consent decree
Coast Seafood, 374 F. Supp. 2d 902 Early on, citizen suits were filed that required the EPA to develop
new effluent limitation guidelines
for some confined animal feeding
operations); see also 69 Fed. Reg.
22475 (Apr. 26, 2004).
The effect and effectiveness of
citizen suits
Most citizen suits are filed based
on violations of the Clean Water
Act. The reasons are fairly logical.
An industry may have hundreds of
stacks emitting various air pollu-
tants, but typically it will have only
one wastewater discharge. Air emis-
sion reporting requirements are
often just required annually, where-
as wastewater DMRs are submitted
monthly. Air emissions are often
computer calculated by use of raw
material consumption multiplied by
standard emission factors, so they
aren’t necessarily representative of
actual emissions. Air permits that
require measurement of actual emis-
sions are very limited, so determin-
ing whether a facility is in or out of
compliance has historically been
very difficult. However, wastewater
measurements are detailed and
plentiful. So, one can readily tell
38 South Carolina Lawyerwhether a facility is in compliance petroleum contamination from a deterred by prior EPA or state
with its NPDES permit. If there are former gas station that had been on enforcement actions, but where the
NPDES permit violations, the citizen site in 1988, spent $211,000 clean- EPA or state had filed suit, NRDC
plaintiff knows pretty much from ing it up, and then sued Meghrig did not pursue those violators. EPA
the start that his suit is a winner or, seeking to recover cleanup costs. concluded from this review that its
at the very least, will be a major KFC stated that the petroleum had own enforcement was somewhat lax
thorn that the plaintiff can leverage previously posed an “imminent and and subsequently placed more
against the violator. substantial endangerment to health emphasis on its water enforcement
Clean Air Act citizen suits may, or the environment.” Id. at 488 (cit- program. Reported in Miller, J.G.,
however, become more numerous in ing 42 U.S.C.A. § 6972(a)(1)(B)). The Citizen Suits: Private Enforcement of
the future. Before, there was a district court ruled that a RCRA citi- Federal Pollution Control Laws,
dearth of actual emission data and zen suit could not be used to recov- Environmental Law Institute (1987).
the cost of attempting to obtain er past costs as there was no immi- Industry often becomes comfort-
ambient air data at the fence line nent and substantial endangerment able with the EPA and DHEC.
yourself was too high. This, coupled at the time the suit was filed. The Industry learns the regulators’ toler-
with the vagaries of the wind and court didn’t comment on the chick- ance level, like you know a highway
weather, made it essentially impossi- en. The Ninth Circuit reversed, but patrolman likely won’t ticket you for
ble for plaintiffs to collect data. the Supreme Court agreed with the going five miles per hour over the
The 1990 Clean Air Act district court that the endangerment speed limit. But like you fear the
Amendments have significantly must exist at the time the suit is unknown when driving through a
changed the CAA landscape. For filed, and past cleanup costs were small town, industry fears the
large industries, all of their require- not recoverable. Id. at 488. unknown and the potentially serious
ments are now in one permit, mak- The EPA did a study in the mid- repercussions associated with citizen
ing it easier to review what emission 1980s of files reviewed by NRDC suits. You slow down, and industry
limits exist. The cost of measuring and resulting citizen suits. It found works harder to comply with its per-
air pollution has come down sub- that 10 to 15 percent of the files mits. In all, it’s a good thing.
stantially due to the rapid expan- reviewed by NRDC resulted in
sion of digital technologies, and notice letters, and where there were Eugene C. McCall Jr. and Ryan W.
civil penalties as well as injunctive a significant number of violations, Trail practice with McCall
relief can be sought in a CAA suit. NRDC filed suit. NRDC was not Environmental, P.A. in Greenville.
The EPA added by regulation that
“any credible evidence” can be used
to prove a violation. RCRA has his-
torically been the second most used
statute for citizen suits, but RCRA
suits have been much less frequent
than CWA suits. RCRA suits are typi-
cally based on soil and/or ground-
water contamination at the offend-
ing site, which may have migrated
or might be about migrate onto a
nearby property. In order to file a
RCRA suit, the plaintiff must allege
that there is an “imminent and sub-
stantial endangerment” to human
health or the environment. This is a
tough standard, because unlike a
wastewater DMR where the value is
either above or below the allowable
limit, under RCRA there is a subjec-
tive test, about which experts on
either side may differ.
Meghrig v. KFC Western, Inc., 516
U.S. 479 (1996), was one of the first
RCRA citizen suits. It taught plain-
tiffs that one can’t go after another
for contamination which is no
longer present. KFC purchased prop-
erty from Meghrig and operated a
KFC restaurant. KFC discovered
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