Patrick G. Rowe
503.243.1651
 

Environmental Citizen Lawsuits

October 2012

Patrick G. Rowe
503.243.1651

Published in The Daily Journal of Commerce

A citizen suit is a lawsuit brought by a private citizen to enforce a law, usually one the person believes is being enforced inadequately. Such suits are particularly common in the environmental field. Many of these laws let ordinary citizens sue because of alleged violations. These suits can be brought against private parties and/or governmental entities for violating air, water, waste, endangered species, and mining laws, among others.

Many environmental laws enable private plaintiffs to: challenge actions (e.g., construction of a facility or environmental effects of operations), seek a remedy for alleged ongoing or historic pollution, seek penalties (payable to the government), seek court-ordered injunctive relief (e.g., stop the alleged violation), and seek recovery of attorney fees and costs. These lawsuits usually are not brought by individuals, but by environmental organizations.

Because governmental agencies cannot identify and pursue all environmental law violators, citizen suits can be useful, empowering anyone with an interest in environmental protection to demand that the law be enforced. But citizen suits also can overreach, making mountains out of molehills, while causing defendants to spend substantial time and money in defense.

Generally, before a citizen suit concerning enforcement of a federal environmental law can be initiated, a notice of intent to file the lawsuit must be provided to: the facility believed to be violating the environmental requirements, the state in which the facility is located, and the Environmental Protection Agency.  This notice provision is important because it provides the alleged violator an opportunity to assess whether it is in fact violating any law, and, if so, to come into compliance before facing a lawsuit. It also gives the regulatory agency the ability to assess whether it believes it should pursue an enforcement action for the alleged violations, thereby preventing the citizen from filing the suit. (Citizen suits are prohibited where the government is "diligently prosecuting" a case against the alleged violator for the alleged violations that are the subject of the would-be citizen suit.)

In Oregon, there are a number of environmental organizations that bring citizen suits on a fairly regular basis. One of the most common suits seeks to enforce the federal Clean Water Act. Under the CWA, violations can lead to penalties up to $37,500 per day (payable to the U.S. Treasury).

The first step that an environmental organization takes when contemplating a citizen suit under the CWA is to send a "Sixty-day Notice of Violations of the Clean Water Act." In this letter, the organization often contends that the recipient has violated or is violating the CWA by discharging pollutants and/or stormwater from a facility without (or in violation of) a National Pollutant Discharge Elimination System permit.

The typical letter references the penalty provision in the CWA that provides for civil penalties of up to $37,500 per day per violation. In the case of purported stormwater discharge violations, the organization often alleges that the recipient has violated the CWA on each day that it has rained 0.1 inches or more during any 24-hour period at any point during the last 5 years, and then attaches a list of dates on which it has rained that amount during this period.

Needless to say, given Oregon's climate, the number of days on which it has rained 0.1 inches or more over a 5-year period is in the 100s. At $37,500 per day per violation, such a letter can cause the recipient considerable distress as they become concerned about having to pay potentially millions of dollars in penalties – as well as the plaintiff's legal fees and costs, as well as their own. Permitting individual plaintiffs to request civil penalties ranging in the millions of dollars obviously provides plaintiffs significant leverage over alleged violators. Providing penalty authority to citizen plaintiffs has been the subject of considerable debate.

Supporters argue that the penalty provision increases the efficacy of the citizen suit program because, among other reasons, private parties will initiate citizen suits only if they have enforcement powers equivalent to the government, and that permitting citizens to seek penalties equivalent to what the government could seek ensures some consistency in enforcement and treats violators equally.  Opponents of allowing penalties in citizen suits argue that conferring this power on citizens invites abuse and threatens to undermine the traditional role of government, and in particular the law enforcement jurisdiction of the executive branch.

In many citizen suit settlements, the alleged violators avoid or minimize civil penalties by instead paying a sum of money to a third-party environmental organization (not related to the plaintiff) or to an otherwise environmentally beneficial project. This can be a "win-win", in that the defendant pays less than it might have in penalties, while the citizen plaintiff facilitates payment to an organization or project with a public interest.

Oftentimes, the best strategy when faced with the threat of a citizen suit is to attempt to address the contentious issues through discussions with the potential plaintiff and then employ creative problem solving before a lawsuit is filed.

There is no "one size fits all" strategy or a single set of solutions. The facts, parties, and circumstances of each case must be examined individually. Some cases are ripe for settlement; however, for others, litigation is the best path.

Patrick Rowe is a partner with the law firm of Sussman Shank LLP. He is a member of its Business Litigation and Environmental practice groups. Contact him at 503.227.1111 or prowe@sussmanshank.com.

Link to the online article:  http://djcoregon.com/news/2012/10/11/citizen-suits/

Related Practice Areas

Environmental

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