Citizen Suits and Defenses Against Them - ALI CLE

461ALI-ABA Course of StudyEnvironmental LawCosponsored by the Environmental Law Instituteand the Smithsonian InstitutionFebruary 2 - 4, 2011Washington, D.C.Citizen Suits and Defenses Against ThemByJames R. MayWidener University School of LawWilmington, Delware

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463CITIZEN SUITS AND DEFENSES AGAINST THEMALI/ABA Course of StudyEnvironmental Law Course of StudyWashington, DCFebruary, 2011James R. May 1Professor of LawH. Albert Young Fellow in Constitutional LawWidener UniversityI. IntroductionWhat follows is a recap of major developments involving environmental citizen suit decisions undera variety of federal statutes in 2010.Citizen suits are a common attribute in the enforcement of federal environmental laws, historicallycomprising almost one-half of all civil enforcement actions. While statistical information is elusive for moststatutes, since 2003, under the Clean Water Act citizens have sent about 2,000 notices of intent to sue, filed325 complaints, and entered about 140 consent decrees, including 312, 52 and 2, respectively, in 2010. 2Environmental citizen suits share common attributes. First, except in rare circumstances, environmentalcitizen suitors must send a notice of intent to sue to appropriate persons at least 60 days before commencingan action. 3 The prototypical provision, section 505(b) of the CWA, provides: “No action may be commenced. . . prior to sixty days after the plaintiff has given notice of the alleged violation (i) to the Administrator, (ii) tothe State in which the alleged violation occurs, and (iii) to any alleged violator of the standard, limitation, ororder.” 4Citizen suit notice requirements are considerably more demanding than notice pleading under theFederal Rules of Civil Procedure. 5 Citizens must give notice in the manner prescribed by EPA. EPA rulesgenerally require notices of intent to sue to identify the specific standards and limitations the recipient of thenotice is alleged to be violating, the person responsible, the location of the alleged violation, the date or datesof such violation, and the full name and address of the person giving the notice. 6 Though it is questionablewhether advance notice is “jurisdictional,” there it must be perfected before commencing a citizen suit. 71Jim May is a Professor of Law and the H. Albert Young Fellow in Constitutional Law at Widener UniversitySchool of Law. This paper builds upon (but does its best not the repeat) prior ALI-ABA updates prepared by theauthor. More expansive versions of what’s here appeared in James R. May, Now More Than Ever: Trends inEnvironmental Citizen Suits at 30, 10 Widener L. Rev. 1 (2003), Now More Than Ever: Recent Trends inEnvironmental Citizen Suits, in Environmental Citizen Suits at Thirtysomething: A Celebration and Summit, 33 Envtl.L. Rep. 10,704 (2003), and The Availability of State Environmental Citizen Suits, 18 Nat. Resources & Env’t 53 (2004).2. EPA Office of General Counsel, Water Law Office Notices of Citizen Suit documents, Dec. 2010 (on file withauthor). Statistical information for citizen suits under other statutes since 2003 is not readily available.3. See, e.g., 33 U.S.C. § 1365(b)(1)(A) (2000) (CWA); 42 U.S.C. § 7604(b)(1)(A) (2000) (CAA); 16 U.S.C. §1540(g)(2)(A)(i) (ESA); 42 U.S.C. § 6972(b)(1)(A) (RCRA) (ninety days for violating certain solid waste requirements); 42U.S.C. § 9659(d)(1) (2000) (CERCLA); 42 U.S.C. § 300j-8(b) (2000) (SDWA); 42 U.S.C. § 11046(d) (2000) (EPCRA).But see 16 U.S.C. § 1540(g)(2)(C) (2000) (ESA) (notice not required if action “posing a significant risk to the well-beingof any species”). See also 42 U.S.C. § 6972(a)(1)(B) (2000) (RCRA) (notice, but not delay, required for illegal disposal ofstatutory hazardous wastes amounting to “imminent and substantial endangerment”).4. 33 U.S.C. § 1365(b) (2000).5. Fed. R. Civ. P. 4 (general civil “notice” pleading). See, e.g., Nat’l Parks Conservation Ass’n v. Tenn. ValleyAuth., 175 F. Supp. 2d 1071, 1077 (E.D. Tenn. 2001); Torres Maysonet v. Drillex, S.E., 229 F. Supp. 2d 105, 107-08(D.P.R. 2002).6. See 40 C.F.R. §54.3(b) (2002) (CAA); id. § 135.3(a) (CWA). Some statutes, like the ESA, lack a notice rulecounterpart.7. Hallstrom v. Tillamook County, 493 U.S. 20, 33 (1989). Professor Coplan concludes that notice is notjurisdictional, and describes why it matters to citizen suitors. Karl S. Coplan, Is Citizen Suit Notice Jurisdictional andWhy Does it Matter?, 10 Widener L. Rev. 49 (2003) (noting that the “jurisdictional” nature of notice “implicates the1

464Second, government enforcement prior to commencement of the action may preclude the citizensuit. The prototypical provision precludes citizen suits when, prior to commencement of the citizen suit, astate or federal agency “commences” and is “diligently prosecuting” a civil or criminal action “in a Court ofthe United States,” 8 or under the CWA there is diligent prosecution of an administrative action, collection ofa penalty, and citizens do not file an action before institution of the agency action or within 120 days ofsending proper notice. 9Third, citizens may “commence” a case only by and large in the absence of government enforcementaction. Unless precluded, forestalled, unconstitutional or otherwise unwise, the archetypal citizen suitprovision 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) forfailure “to perform any act or duty . . . which is not discretionary.” 10Each statute has its own temporal jurisdictional requirement as to when an action may be commenced. 11 Forexample, the CWA requires good faith allegations of ongoing violations (that the polluter is “alleged to be inviolation”), 12 while the CAA allows for prosecution of past violations “if there is evidence that the allegedviolation has been repeated,” 13 and RCRA for past violations that “may present an imminent and substantialendangerment.” 14Last, citizen suits face a banquet of constitutional and prudential challenges, including standing,mootness, preemption, sovereign immunity, the political question doctrine, claim and issue preclusion, andabstention.Citizen suits comprise a significant portion of the judicial canon. Federal courts issued about 220decisions in environmental civil cases in 2010, about 160 of which are environmental citizen suits. 15 Of these,and as summarized below, nearly one-half are under the Clean Water Act (74), with the ResourceConservation Act (49), Clean Air Act (34), Endangered Species Act (32), and Comprehensive,Environmental Resource Compensation, Liability Act (25) also posting a significant number of judicialopinions, with 54 more cases involving a mash up of statutes. Given this distribution, I’ll start with the CleanWater Act, before turning to the other statutes with citizen suit provisions. For sake of focusing the scope ofthis 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 nomeans a scientific distinction.I. Clean Water ActCitizens may bring suit under the Clean Water Act to enforce effluent standards or limitations set bythe EPA or the State if the violation adversely affects them. Citizen suits are barred under the act if diligentstate or federal enforcement is underway. Sixty day notice must be given to the violator, the State, and theEPA before filing the suit. Similar to the other citizen suit provisions discussed, to remedy a violation thecourt may issue an injunction, impose penalties, and grant attorney’s fees.A. Proceduralproper procedure for raising notice objections, the means of curing notice defects, the question of waiver of noticeobjections, and the timing of raising notice objections”).8. See 33 U.S.C. § 1365(b)(1)(B) (2000) (CWA); 42 U.S.C. § 7604(b)(1)(B) (2000) (CAA); 16 U.S.C. §1540(g)(2)(A)(iii) (2000) (ESA); 42 U.S.C. § 6972(b)(1)(B) (2000) (RCRA).9. See 33 U.S.C. § 1319(g)(6)(B) (2000) (CWA). See also 16 U.S.C. § 1540(g)(2)(A)(ii) (2000) (ESA) (preclusion ifServices commence action to impose penalty).10. 42 U.S.C. § 7604(a) (2000).11. Randall S. Abate, Rethinking Citizen Suits for Past Violations of Federal Environmental Laws:Recommendations for the Next Decade of Applying the Gwaltney Standard, 16 Temp. Envtl. L. & Tech. J. 1 (1997); cf.Scott M. DuBoff & Scott W. Clearwater, Arguing for the Defense After Gwaltney, 18 Envtl. L. Rep. 10,123 (1988).12. 33 U.S.C. § 1365(a)(1) (2000) (CWA).13. 42 U.S.C. § 7604(a)(1) (2000) (CAA).14. 42 U.S.C. § 6972(a)(1)(B) (2000) (RCRA).15 These figures are hardly scientific, based on a Lexis search for cases brought as – and not simply referencing –citizen suits under one of the statutes cited infra note 4.2

4651. NoticeAssateague 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 poultryproducing concentrated animal feeding operation, Alan and Kristin Hudson Farm, seeking penalties andinjunctive relief under Clean Water Act (CWA) for illegal discharges of poultry manure. The farm filedmotions to dismiss. The District Court, held that failure to adequately identify one of the multiple plaintiffs innotice given of the citizen suit required dismissal of that plaintiff, and the notice was not sufficient as to othernamed plaintiffs, whose addresses and phone numbers were not included. The allegations of the Farm’scontrol over grower's concentrated animal feeding operation (CAFO) were sufficient to state a claim. TheFarm’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 courtdetermined that although the City provided timely and adequate notice of suit in the form of a letter forcertain violations, their claim ultimately failed, and Norfolk’s motion to dismiss was granted, because theCity’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 asstate and federal officials and agencies. They alleged that the construction of a natural gas pipeline segmentwould result in the release of noxious gasses and deteriorate the overall quality of life in violation of theCWA, and numerous other state and federal law. PBCEC required the filing of an amended complaint, as wellas an emergency motion for temporary injunctive relief in order to enjoin further construction related to thepipeline. The court denied the motion, and most of the Defendants filed motions to dismiss the amendedcomplaint. The court granted the defendants motions to dismiss as they pertained to the CWA claims againstthe state agencies and officers on the basis of their 11th Amendment sovereign immunity, and as theypertained to those claims against the federal agencies and officers because the Plaintiffs failed to comply withfederal notice requirements. Additionally, the court dismissed the claims against the developers under theCWA because they found they had a lack of jurisdiction under 15 U.S.C. §717r(d), which granted originaljurisdiction 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 dischargedpollutants in violation of the CWA. The City moved to dismiss, claiming that the Coalition had failed to meetCWA requirements of pre-suit notice because of a vague and unsupported, yet timely letter. The courtdisagreed, explaining that the Coalition need only inform the alleged polluters of what their alleged violationsare, 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 increasedstorm water and contaminated runoff from their adjacent treatment facility caused substantial erosion ontheir 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 thenature of the alleged violation, as well as the activity alleged to constitute a violation. While the notice letterspecifically states that it is in reference to an alleged CWA violation, it does not specify the specific standardor limitation of the CWA that was allegedly violated, nor does it provide a specific activity alleged toconstitute the violation. Additionally, the court found that the notice letter was sent less than sixty days priorto 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)3