Recent Trends in CAA Citizen Suits: Managing Risk in the Serengeti
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Recent Trends in CAA Citizen Suits:
Managing Risk in the Serengeti
Randy E. Brogdon and Mack McGuffey
H
aving been raised on a steady diet of Mutual of zen suits may be on the rise, and discusses how the Clean
Omaha’s Wild Kingdom, and later, the Animal Air Act practitioner can attempt to manage those risks.
Planet, it is not surprising that some of the Over the past five years, citizen suits under the Clean
concepts from these programs seeped into our Air Act (CAA) have increased dramatically and have creat-
legal practice. For a number of years, we have used an ed, for good reason, a great deal of uneasiness for industry.
example with our corporate clients to illustrate environ- Part of this increase in citizen suit activity is due to new,
mental compliance issues—something we call the rather novel legal theories, aided by “credible evidence”
“Serengeti Principle.” rules and the comprehensive permitting regime established
For those who skipped biology class, the Serengeti is an by the Title V operating permit program. As environmen-
enormous grasslands-dominated area in Africa just south of tal citizen groups have grown more sophisticated, they
the Tanzanian/Kenyan border. Due to the diversity and have become more and more adept at taking advantage of
number of large mammalian species that inhabit the area— these new tools to separate the easy prey from the pack.
literally millions of wildebeest, zebra, lions, elephants, chee- Although the CAA contains the first environmental
tahs, hyenas, leopards, giraffes, gazelles, among other citizen suit provision ever created, such suits were rare in
species—the Serengeti has been the subject of a multitude the CAA’s early days. Between the enactment of the
of studies on animal behavior, especially hunting behaviors CAA in 1970 and the CAA Amendments of 1990, there
of large predators. One might naturally assume that a were approximately thirty cases that generated reported
savannah filled with competing predators and millions of opinions, the majority of which dealt solely with proce-
prey targets would be characterized by nonstop chaos and dural issues. Only eight reported cases in that time period
carnage-filled hunts. Not exactly. For the most part, pred- reached the underlying merits of CAA citizen suits.
ators and prey animals in the Serengeti coexist rather Several factors minimized CAA citizen suit activity
peacefully; that is, until the hunger drive gets strong prior to 1990. Before the CAA Amendments, citizen suits
enough, or more importantly for purposes of the Serengeti could only be brought for ongoing violations, could only
Principle, a suitable target for predation manifests itself. achieve injunctive relief, and could only be proved
That is, although predators may be content to simply through expensive, fairly infrequent stack tests or other
lounge around napping most of the day, even in a sea of U.S. Environmental Protection Agency (EPA) reference
ungulates, they can become acutely interested in hunting methods. These barriers seemed to persuade most envi-
when they see an easy target—a young, inexperienced ronmental groups to stalk other game, namely those
gazelle, an impala slowed by age, a limping gnu. sources regulated by the Clean Water Act (CWA), under
What does the Serengeti have to do with environmen- which self-monitoring and reporting requirements provid-
tal compliance issues and citizen suits? Simply this: Just like ed readily available evidence of violations.
lions or leopards, environmental plaintiffs have limited The 1990 CAA Amendments altered this landscape in
resources to expend on targets, whether the targets are several ways. First, the Amendments added Title V, an
zebra or industrial sources. While environmental enforce- operating permit program that combined all applicable
ment agencies, activist groups, and industry generally exist requirements and emissions limitations for a facility into
together in relatively peaceful (if sometimes strained) coex- one document, making it easier for environmental groups
istence, that dynamic can quickly change when a company to ascertain the emissions limits for each source, and
creates the appearance of vulnerability. Minor chinks in broadening the types of potential violations that may sup-
the compliance armor can mean increased scrutiny and port a citizen suit. Significantly,Title V requires all per-
risks the unwanted attention of the environmental plaintiff. mittees to submit an annual compliance certification that
This article explores the history of citizen suits under the documents each and every deviation, excursion, or excess
Clean Air Act, discusses recent trends that indicate that citi- emission that occurred over the course of the entire year.
Second, the 1990 CAA Amendments adopted new moni-
Mr. Brogdon is a partner and Mr. McGuffey is an associate toring and reporting requirements. For the first time, the
with Troutman Sanders, L.L.P. They may be reached emissions limits listed in each source’s Title V permit easily
at randy.brogdon@troutmansanders.com and mack. could be compared with actual emissions data in the
mcguffey@troutmansanders.com, respectively. obligatory compliance reports to determine whether a
17 • Natural Resources & Environment • American Bar Association • Winter 2006 • Volume 20 • Number 3
“Recent Trends in CAA Citizen Suits: Managing Risk in the Serengeti” by Randy E. Brogdon and Mack McGuffey, published in Natural Resources & Environment,
Volume 20, No. 3, Winter 2006 © 2006 by the American Bar Association. Reproduced by permission. All rights reserved. This information or any portion thereof may not be
copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.citizen suit is viable. Third, the Amendments authorized rule increased the stringency of existing standards was not
citizens to seek not only injunctive relief, but also to seek ripe for review. See Clean Air Implementation Project v.
an award of civil penalties if prevailing in a citizen suit. EPA, 150 F.3d 1200, 1205 (D.C. Cir. 1998) (stating that
Even though the civil penalties, if awarded, must be paid until an enforcement action is brought on the basis of
to the United States Treasury, the availability of civil credible evidence, “there are too many imponderables . . . .
penalties as a remedy nevertheless increases the incentive [making it] impossible for us to decide now what impact
to file citizen suits under the CAA because the penalties the rule will have.”).
can be earmarked for environmental projects of special The rule also has the potential to alter the burden of
interest to a particular environmental constituency. proof in CAA enforcement actions. Prior to the credible
Further, the threat of penalties offers additional leverage to evidence rule, EPA and citizen plaintiffs were required to
persuade companies to settle prior to trial. prove a source’s noncompliance by producing the results
These changes effectively evened the score between from the uniform and scientifically proven reference tests.
CAA and CWA citizen suits by removing the barriers to With the credible evidence rule in place, however, plain-
CAA suits that previously had rendered them less attrac- tiffs can simply present virtually any conceivable indica-
tive in the eyes of often resource-limited environmental tion of noncompliance (be it parametric data, computer
groups. However, the CAA modeling, continuous monitoring
Amendments did not stop there—in reports now required in most Title V
addition to the changes listed above, permits, or even visible observations)
the Amendments also authorized citi- and attempt to shift the burden to the
zens to sue for past repeated viola- defendant source to prove that such
tions. Because CWA citizen suits The credible evidence rule evidence is not credible. For exam-
remain limited to circumstances ple, sources will now be forced to
involving ongoing violations, sources has the potential to explain away anomalies in operational
regulated by the CAA now appear to performance if an environmental
be the more tantalizing herd to those dramatically reduce the plaintiff can formulate an argument
in search of easy prey. that such variation indicates increased
The 1990 Amendments also levels of emissions.
enabled a final change to the CAA level of certainty a source The credible evidence rule also has
regulatory regime that perhaps would the potential to dramatically reduce
have the greatest impact on the via- can enjoy with respect to the level of certainty a source can
bility of citizen suits. More particu- enjoy with respect to its compliance.
larly, Congress inserted the words its compliance. Under the old reference test regime,
“any credible evidence” into the pro- compliance with the applicable refer-
vision of the CAA that lists the spe- ence test generally assured a source
cific factors that may be considered that it was in compliance with its
in assessing penalties. Inspired by this emission limits and shielded from any
new provision, EPA extended the enforcement action. In contrast, the
application of this phrase in 1997 by endorsing the use of credible evidence rule now allows environmental plaintiffs
“any credible evidence” to prove emissions violations in to allege noncompliance in an increasingly large number
what has become the “credible evidence rule.” Although of ways—if one type of evidence indicates a source is in
EPA insisted that the new rule merely refined an “eviden- compliance with its limits, the would-be plaintiff simply
tiary issue” and therefore did not materially affect the can switch to another type of evidence and try again.
stringency of existing emissions limits, the credible evi- Under the credible evidence regime, all emissions data can
dence rule reversed the twenty-five-year practice of rely- become “fair game” in a lawsuit.
ing solely on “reference test methods” as valid and appro- Moreover, recent technological advances have also
priate evidence of CAA violations. expanded the types of evidence now available to plaintiffs
Despite EPA’s beliefs, many commentators and industry under the credible evidence rule. For instance, the devel-
representatives have pointed out that such a drastic change opment of continuous emissions monitoring systems
in the rules regarding admissible evidence inevitably will (CEMS) that record sources’ compliance on a continual
have a substantial impact on the effective stringency of basis provides much more potential evidence than the rela-
existing standards, particularly in light of the fact that the tively infrequent monitoring programs that were the stan-
existing standards were set based on data originating from dard only a few years ago. Technological advances have
reference tests and on the assumption that those tests increased the risk to sources in a variety of other ways.
would be used to determine compliance. However, when The arrival and expansion of the Internet, for example, has
Industry groups formally challenged the credible evidence greatly facilitated the task of obtaining, analyzing, and dis-
rule, the D.C. Circuit held that in the absence of an tributing compliance information, reducing the cost of
underlying enforcement action, the issue of whether the obtaining the evidence necessary to pursue a citizen suit.
18 • Natural Resources & Environment • American Bar Association • Winter 2006 • Volume 20 • Number 3
“Recent Trends in CAA Citizen Suits: Managing Risk in the Serengeti” by Randy E. Brogdon and Mack McGuffey, published in Natural Resources & Environment,
Volume 20, No. 3, Winter 2006 © 2006 by the American Bar Association. Reproduced by permission. All rights reserved. This information or any portion thereof may not be
copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.The combination of these two technological develop- rather than focus on emissions of regulated pollutants,
ments now allows environmental groups to gain access to many environmental groups have begun concentrating on
actual emissions data, analyze it quickly for any potential surrogates of pollution, such as opacity (which measures
violations, and then share it with the rest of the world at the degree to which emissions reduce the transmission of
will and at very little expense. Moreover, the legal docu- light and obscure the view of an object in the back-
ments necessary for pursuing such claims, such as com- ground), especially where those surrogates are continually
plaints, other pleadings, and depositions, can also be shared monitored. For, example, to ensure compliance with
with other environmental groups around the country to opacity limits, many sources operate continuous opacity
facilitate the filing of identical claims in other jurisdic- monitor systems (COMS), which are a type of CEMS,
tions. In other words, the complaint from a successful suit and measure opacity in six-minute increments. The
filed in California can now be downloaded, e-mailed, resulting stream of information on opacity levels is then
slightly edited, and filed in New York against a completely transmitted to the local environmental agency and avail-
different defendant by a completely different plaintiff, all able to the public upon request.
for the cost of the paper, filing fees, and the extra ink Unfortunately, COMS are not always accurate. Specks
required to change the names on the complaint. of dirt clinging to the lens of the monitor, the condensa-
Certainly, many would argue that these changes are tion of water vapor in exhaust gases, stuck shutters, or cal-
generally for the better; a more ibration problems can dramatically
involved citizenry, equipped with affect whether the reading on any
more accurate and readily available given six-minute interval accurately
information, will be able to aid gov- Regardless of the motives reflects the amount of pollution being
ernmental agencies in maintaining a emitted from the source. Even so,
cleaner environment for the benefit under the credible evidence rule, such
of this generation and those to come. or merits behind individual readings may now be accepted as evi-
Nevertheless, the new powers avail- dence of a violation of an opacity
able to today’s environmental plaintiff citizen suits, regulated standard by regulatory agencies and in
can be, and on occasion have been, courts of law.
abused. Regardless of the motives or sources must be aware of The following four-step hunting
merits behind individual citizen suits, technique has been adopted by envi-
regulated sources must be aware of ronmental groups across the country
the increased risk and variety of such the increased risk and variety in their ongoing efforts to force the
suits to avoid becoming the easy tar- installation of new pollution controls
get, the limping gnu. of such suits to avoid at industrial sources. Step One: obtain
the publicly available excess emissions
New Hunting Grounds becoming the easy target. reports for a plant. Step Two: locate
the high opacity measurements that
As citizen suits have become easier are certain to have occurred (either
to file and cheaper to litigate, envi- accurately through normal variation
ronmental groups have been able to in a source’s operations, or inaccurate-
file more suits more often. Currently, a new “notice of ly through malfunctions such as those described above).
intent” to file a citizen suit (a procedural prerequisite for Step Three: staple the printout to a complaint citing the
filing a citizen suit in court) is filed every day, and three citizen suit provision of the CAA (and file corresponding
out of every four reported environmental decisions begin press release). And, finally, Step Four: move for summary
as a citizen suit. Environmental groups today also are fil- judgment and/or seek a settlement.
ing more suits in which environmental agencies have Successful or not, execution of this procedure brands
reviewed the emissions data submitted by an industrial the unlucky target as “dirty,” regardless of how well a plant
source and affirmatively decided that no enforcement is operated or how careful a source is in monitoring and
actions are warranted. This approach is in stark contrast to controlling its emissions. For example, a coal-fired electric
early suits which generally were filed merely to supple- utility recently was sued by an environmental group for
ment the enforcement activities of state or federal envi- exceedances of its opacity limit that amounted to less than
ronmental agencies. And, citizen suits are also becoming 1 percent of its operating time. In fact, the percentage of
more common at the local level. exceedances dropped to one-tenth of 1 percent once the
This increased volume and reduced per-suit cost also exemptions in the source’s permit (excess emissions that
has produced a great deal of diversity in the causes of occurred during startup, shutdown, or malfunction) were
action alleged in modern citizen suits. The types of factored in. To put this level of performance in perspec-
actions filed by environmental groups have begun to tive, EPA (and most states) generally do not consider
expand, now reaching well beyond the traditional suit for enforcement of opacity exceedances to be a priority until
enforcement of established emissions limits. Significantly, the exceedances represent more than 5 percent of operat-
19 • Natural Resources & Environment • American Bar Association • Winter 2006 • Volume 20 • Number 3
“Recent Trends in CAA Citizen Suits: Managing Risk in the Serengeti” by Randy E. Brogdon and Mack McGuffey, published in Natural Resources & Environment,
Volume 20, No. 3, Winter 2006 © 2006 by the American Bar Association. Reproduced by permission. All rights reserved. This information or any portion thereof may not be
copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.ing time after taking into account all applicable exemp- recent attempts by various environmental groups to join
tions, and even then only if the exceedances surpass the EPA in filing lawsuits under the CAA’s New Source
applicable standard by 15 percent or more. Although Review (NSR) program. In the late 1990s, EPA began its
EPA’s enforcement policy is manifested in a comprehen- NSR Enforcement Initiative against various industries,
sive written guidance document that acknowledges that a including wood products, petroleum refineries, and coal-
certain de minimis number of opacity exceedances are nor- fired electric utilities. The initiative began with the
mal, even at very well-run plants, most Title V permit request for millions of pages of documents under CAA
conditions do not contain a defined de minimis exemption § 114, which the agency then boiled down into allega-
for such exceedances. As such, the environmental plaintiff tions that certain projects should not have been initiated
is not bound by these enforcement policies. without first obtaining preconstruction permits and
Regardless of actual performance, an opacity citizen suit installing expensive “best available control technologies.”
paints an industrial source as a “dirty plant,” forces the EPA’s initiative met with some success. For example, in
owner to engage in extensive, complex environmental litiga- the coal-fired utility sector alone, EPA spurred nine utili-
tion and, potentially, leaves the owner liable for civil penal- ties into settlements that together exceeded $5.5 billion.
ties of up to $32,500 per day, per violation. The penalties Although recent court decisions have cast doubt on the
associated with opacity claims can add merit of EPA’s litigation claims, envi-
up fast. For a source whose COMS ronmental groups continue to ride on
register high-opacity readings for 3 the coattails of EPA’s analysis, filing
percent of its operating time during a citizen suits that make nearly identi-
year, the maximum civil penalty avail- Even if a citizen suit cal allegations to those claimed by
able in a citizen suit could theoretically EPA as part of its NSR Enforcement
(based on the per exceedance legal challenge is unsuccessful, Initiative.
theory advanced by many environ- Another avenue of pursuit used
mental plaintiffs), amount to as much recently by environmental groups is
as $85,410,000, even though EPA’s it generally leads to to attack either the siting of a source
enforcement policy suggests that such before it is constructed, or the per-
performance does not warrant any significant delays in mitting of a source before it has
enforcement action. Moreover, such a begun operations. In other words,
source also will be responsible for the construction or instead of relying on the citizen suit
attorneys’ fees—both those hired by provision of the CAA to allege vari-
the source in its defense and those ous past violations, the environmental
hired by the plaintiff in pursuit of the operation of the source. group will seek to delay or prevent
source—because the CAA authorizes future action such as the construction
the environmental plaintiff to recover or operation of a new emissions
its fees if successful. source. Environmental groups begin
The ultimate injury, however, by joining in the public participation
often comes in the form of injunctive relief to reduce the or “notice and comment” process that almost always
surrogate for pollution (opacity) that may or may not have accompanies the permitting agency’s approval process for
any correlation to the actual amount of pollution being siting or permitting of a new emissions source. Then, if
emitted. Such injunctive relief may even result in an the environmental group disagrees with the decision of
incentive to increase emissions of actual pollutants. For the agency as to where a source will be located or what
instance, for coal-fired electric utilities, many high COMS limitations a source’s permit will contain, the environmen-
readings are simply a result of condensed water vapor tal group can file suit against the agency to block the pro-
(steam) that is introduced into the gas stream by other posed action.
pollution control equipment known as “scrubbers,” which Even if a citizen suit challenge is unsuccessful, it gener-
are designed to reduce emissions of SO2, a regulated pol- ally leads to significant delays in the construction or oper-
lutant. In order to comply with a demand that all high ation of the source. Making matters even more difficult
COMS readings be avoided, even those caused solely by are the sheer numbers of opportunities environmental
steam, a source that is under its SO2 limit may find it nec- groups have to challenge future industry plans. For exam-
essary to reduce operation of the scrubber to reduce the ple, a representative of the Sierra Club recently remarked
production of steam that could lead to high COMS read- with regard to the siting of a new power plant that the
ings—essentially trading emissions of a regulated pollutant company “needs approvals and favorable court decisions
for reductions in steam, all in the name of ensuring that on everything that is either being challenged or decided,”
measurements of a surrogate of pollution do not inaccu- but that “[f]or the opponents of those power plants, we
rately indicate an exceedance. only need to win on one.”These “kitchen sink” challenges
Another variety of citizen suit that transcends tradi- are becoming increasingly popular as environmental
tional enforcement of emissions limits can be seen in the groups continue to exploit new information and commu-
20 • Natural Resources & Environment • American Bar Association • Winter 2006 • Volume 20 • Number 3
“Recent Trends in CAA Citizen Suits: Managing Risk in the Serengeti” by Randy E. Brogdon and Mack McGuffey, published in Natural Resources & Environment,
Volume 20, No. 3, Winter 2006 © 2006 by the American Bar Association. Reproduced by permission. All rights reserved. This information or any portion thereof may not be
copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.nication technologies to become ever more involved in the greater the visibility, the easier the target and the greater
local regulatory activities. the prize for environmental groups seeking to make a state-
Environmental groups also have begun looking beyond ment to an industry or to appease its constituency.
the traditional CAA regulatory framework for opportuni- Once the risk is understood, there are several ways to
ties to block the siting of new industry or force the instal- reduce the chances of falling prey to a CAA citizen suit.
lation of additional pollution controls. The common law For example, it is extremely important to know your per-
of nuisance, for instance, has proved a fertile ground for the mits inside and out—every owner/operator of an emissions
pursuit of environmental litigation due to its amorphous source should continually evaluate and track the applicable
definition, which according to the Restatement of Torts gen- limitations in environmental statutes, regulations, and indi-
erally includes “almost anything unpleasant, harmful, or vidual permits. It is important for employees to understand
disagreeable.” Using this very flexible area of tort law, envi- these limits and to recognize how their performance will
ronmental plaintiffs have even filed suit for emissions that affect the source’s ability to comply with those limits.
are not regulated by the CAA at all, such as odors or car- Likewise, knowing the available exemptions to these limits
bon dioxide. Moreover, when the law of nuisance is com- is equally important to ensure such exemptions are only
bined with statutory claims under the relied upon when applicable and legal-
CAA citizen suit provision (such as an ly defensible. In today’s litigious cli-
opacity suit based on COMS read- mate, companies also must recognize
ings), the resulting chimera can be The greater the visibility, that assurances by state environmental
particularly unpredictable. In such a agencies that a source’s emissions per-
suit, COMS reports conceivably could formance is excellent, or even written
become the evidence of the nuisance,
the easier the target and EPA guidance that confirms those
forcing the source to either contradict assurances, provides little or no deter-
its own reports or argue that opacity the greater the prize for rence to the environmental plaintiff.
is not “unpleasant” or “disagreeable.” Because periodic emissions reports
Bypassing the CAA confers certain environmental groups seeking now provide the backbone of evi-
benefits on the environmental plaintiff. dence supporting future lawsuits,
By asserting claims outside of the CAA, companies must exercise extreme care
environmental groups may also obtain
to make a statement to to ensure that the reports are accurate,
remedies for damages that are not pro- and that any applicable exemptions
vided under the CAA. Under a tradi- an industry or to appease are clearly presented. Furthermore, it
tional CAA citizen suit, a citizen can is essential to build a record by aug-
only seek injunctive relief or civil its constituency. menting required monitoring and
penalties payable to the United States reporting requirements with addition-
Treasury. In common law nuisance al information that can be used to
claims, however, a citizen can request explain excess emissions events. For
that actual and punitive damages be awarded directly to the example, should a source be faced with a COMS report
citizen, typically, an adjacent landowner. For example, a dis- that indicates several excess opacity events, data/log books
trict court in Alabama recently awarded $20 million to indicating that those events were caused by a malfunction
landowners complaining of damage to property from air pol- of the COMS could mean the difference between winning
lution, $17 million of which were punitives. These types of a citizen suit or paying millions of dollars for losing one.
successful hunts certainly will draw the attention of environ- Finally, to cope with citizen suits regarding future activi-
mental groups looking for ways to obtain additional ties, such as siting or permitting a new plant, sources should
resources to fund additional lawsuits. investigate the possible delays such citizen involvement may
cause and incorporate additional time into the planning and
implementation process. Taking into account the delays
No More “Hakuna Matata” likely to result from permit appeals can help businesses make
In a recent environmental newsletter issued by Business better decisions when considering whether to construct a
and Legal Reports, environmental groups advised that over new emissions source, and can also ease the often tense rela-
the next several years,“litigation will be the tool of choice” tionship such projects may create with neighboring property
and that “industry leaders should brace themselves for owners and local activist groups.
increased litigation and citizen involvement in permit At the end of the day, it is important to remember that,
issues.” Although perhaps daunting to corporate leaders, this like the Serengeti, regulated industries and the environmental
is sound advice. First and foremost in dealing with the plaintiff can peacefully coexist and that the natural tension
increasing risk of citizen suits is to recognize that such suits between these entities can help ensure a healthy environ-
are on the rise and to take that risk seriously in the daily ment. But for each individual source, it is important to avoid
operation of any plant that emits anything that might be becoming the bottom of the food chain by appearing vul-
considered air pollution. It is important to remember that nerable in the sight of ever more sophisticated predators.
21 • Natural Resources & Environment • American Bar Association • Winter 2006 • Volume 20 • Number 3
“Recent Trends in CAA Citizen Suits: Managing Risk in the Serengeti” by Randy E. Brogdon and Mack McGuffey, published in Natural Resources & Environment,
Volume 20, No. 3, Winter 2006 © 2006 by the American Bar Association. Reproduced by permission. All rights reserved. This information or any portion thereof may not be
copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.You can also read
