CITIZEN PARTICIPATION IN U.S. ENVIRONMENTAL ENFORCEMENT

 

VAN HEUVELEN, R.I.1 and BREGGIN, LINDA K. 2

 

 

1    Director of Civil Enforcement, United States Environmental Protection Agency 401 M Street, S.W., Washington, D.C. 20436.

 

2   Special Assistant, Office of Enforcement, United States Environmental Protection Agency, 401 M Street, S.W., Washington, D.C. 20436.

 

 

SUMMARY

 

This paper examines and assesses the advantages and disadvantages of the roles that private citizens play in the enforcement of federal environmental laws in the United States.  One of the fundamental goals of environmental enforcement in the United States is to achieve wide­spread compliance with environmental laws and regulations among the members of the regulated community.  The government has only limited resources with which to achieve its compliance goals.  Therefore, the government consistently must look for methods by which to leverage its existing resources, in order to foster compliance without expending large amounts of its limited resources.  In general, citizen participation in environmental enforcement has assisted the government in reaching its goals with respect to compliance while at the same time allowing the government to conserve its resources.

Citizen suits, however, do present certain challenges for the government.  This paper places particular emphasis on citizen suits filed in federal court against alleged violators of the environmental laws.  Citizen suits are the form of citizen involvement in environmental enforcement that can potentially create the greatest difficulties for the government, as these suits provide citizens with the opportunity to act in a prosecutorial role, one that is traditionally reserved for government enforcement personnel.  Although there are inherent tensions in a system that requires the government to share enforcement authority with private citizens, citizen suits in the United States have augmented government enforcement efforts in the past and are likely to do so in the future.  In general, citizen participation in the environmental enforcement process promotes compliance with the law and effectively supports the United States' environmental enforcement efforts.

 

 

1          BACKGROUND

 

            Government enforcement of the United States' environmental laws is achieved through a cooperative effort between federal, state, and local governments.  The United States Environmental Protection Agency (EPA) is the federal agency with primary responsibility for enforcing U.S. environmental laws, although other federal agencies also enforce environmental statutes.'

EPA is based in Washington, D.C. and includes an Office of Enforcement which directs and advises the other offices within EPA on enforcement matters.  The Office of Enforcement also oversees the handling of enforcement cases, and develops and implements national enforcement policy.  Ten EPA Regional offices are responsible for carrying out enforcement activities on a day-to-day basis.  These regional offices oversee and financially support state enforcement programs, as well as implement federal enforcement programs.  In addition to EPA Headquarters and the Regional offices, EPA also has a National Enforcement Investigations Center (NEIC) located in Denver, Colorado.  NEIC provides technical expertise to the Agency and manages an investigative unit that assigns investigators to work in the regional offices.

In addition to EPA, the Department of Justice plays an integral role in federal enforcement.  The Department of Justice is responsible for handling enforcement cases in the federal courts.  The cases are developed by EPA legal and program offices and are then referred to the Department of Justice.  After receiving a case referral from EPA, the Department of Justice determines whether the case should be filed in federal court.  If a complaint is filed in federal court, the Department of Justice represents the government in the action against the alleged violator.  EPA continues to work closely with the Department during all stages of the litigation.

A large portion of environmental enforcement in the United States is handled by state governments rather than by EPA and other federal entities.  The federal environmental laws authorize state governments to implement federal environmental programs in their states, but generally state programs first must be approved by the federal government for consistency with federal requirements.  The states implement the national laws and regulations by issuing their own rules and permits.  In turn, states may delegate authority for enforcing environmental laws to their county and city governments.  In addition, many states have independently authorized environmental programs to regulate the disposal of pollutants into the air, water and land.

Even if a state has been delegated authority to implement a federal enforcement program, the federal government retains the ability to take enforcement measures.  As a matter of policy, if a state fails to respond to a significant enforcement concern in a "timely and appropriate" manner, EPA will take enforcement action.  EPA also will step in when there is a violation of an EPA order or consent decree, or in the event that a particular case involves issues of national concern or precedent.  In addition, EPA assists states that have been delegated authority to implement federal programs by providing training to state personnel, reviewing state enforcement strategies, and overseeing state inspection programs.2

In addition to the government entities that handle environmental enforcement, private citizens play an important role in enforcing the United States environmental laws.  Citizens -participate in several ways.  First, citizens assist the government in identifying violations of the laws.  Second, citizens can provide comments on settlements between the government and violators of the environmental laws that are reached in enforcement cases.  Third, citizens can bring enforcement actions on their own against alleged violators of the environmental laws.

Citizens also may bring actions against the government for its failure to perform mandatory duties that are required under federal environmental statutes. 3

This paper will focus primarily on the role of citizens in bringing enforcement actions against alleged violators, because this powerful form of citizen participation in enforcement has been formally established by Congress in the federal environmental laws.  In addition, citizen suits can present unique challenges for government enforcement personnel who, absent specific statutory authority, traditionally have exclusive authority to bring enforcement actions.  However, before examining citizen suits in detail, a few words should be said about the valuable role that citizens can play in detecting violations, and the role that citizens play in approving settlements in enforcement cases.

 

2          CITIZENS' ROLE IN IDENTIFYING VIOLATIONS

 

            Citizen involvement in identifying violations of the environmental laws is an integral part of environmental enforcement in the U.S., and serves to assist the government in achieving compliance with the environmental laws and regulations.  Citizens are often the most able witnesses to observe and identify violations of the law or conditions which may present a threat to the human or natural environment in the vicinity of their homes or work places.  Because citizens are in close and constant proximity to sources of pollution they are often the best sources of information.  Citizens are particularly likely to detect quickly any new sources of pollution or changes in emissions and discharges in the areas in which they live and work.

Furthermore, given the limited resources available to the government for use in inspecting facilities owned by the regulated community, reports from the public can be of considerable assistance in identifying violations.  Although many EPA enforcement actions are based on data that the regulated community is required by statute to submit to the government, detection of violations through inspections and other means that do not involve self-disclosure is a crucial element of a successful enforcement program.  EPA is responsible for ensuring compliance in an extremely large regulated community.  However, due to budgetary constraints, EPA is able to employ only a limited number of federal enforcement inspection personnel.  For example, EPA has a total of approximately 1850 technical personnel that are trained to inspect facilities.  In addition, by the end of this year EPA expects to have a total of 76 criminal investigators and nearly 50 civil investigators. 4 Individual states also employ their own inspectors.

To maintain the confidence of the public, the government is committed to following up on reports received from citizens, and many citizen reports are difficult to verify and, therefore, do not lead to enforcement actions.  Nevertheless, citizen reports of violations and environmental threats are valuable and outweigh the cost of processing the information that is provided to EPA and the states.  At this time, statistics are not available on the total number of citizen reports that are received each year by Headquarters, the Regional offices, and the state environmental agencies, or the number of reports that lead to prosecutions, civil or criminal convictions or the imposition of civil penalties.  However, anecdotal information is available.  Recently, in the case of United States v. Goodner Brothers Aircraft, Inc., No. 90-20031-01 (W.D. Ark. 1991) a citizen's tip led to the conviction of the owner of an aircraft refurbishing company under two federal statutes.  A citizen observed that two men were dumping creamy beige toxic-smelling waste into a ravine located on a nearby farm.  The owner of the farm assured the citizen that he was aware of the activity and that there was no cause for concern.  Nevertheless, the citizen reported the violation to EPA.  EPA investigators were able to establish that the owner of the farm was dumping waste containing paint removers and old paint from his aircraft refurbishing business into three pits on the farm.  A total of approximately 25 tons of waste had been dumped in violation of the Comprehensive Environmental Response, Compensation and Liability Act and the Resource Conservation and Recovery Act. 5

In addition to producing concrete enforcement benefits such as producing leads for enforcement cases, citizen participation in identifying violations has certain other less tangible but equally valuable results.  Citizen participation helps to make environmentally responsible behavior part of the fabric of United States' society, and inspires citizens to believe that they can play a significant role in maintaining a clean and safe environment through their own actions and through reporting those individuals and corporations that do not respect and adhere to the environmental laws.  This yields enormous benefits in the context of citizens finding responsive action from democratic government.

Furthermore, citizen participation in reporting violations can have a significant deterrent effect on polluters.  If potential violators know that they not only have to be concerned about the government detecting their violations but that citizens, including the average citizen who lives or works next door, are also on the look out for illegal emissions and discharges, potential violators are further encouraged to comply with the environmental laws.  Therefore, increased deterrence also results from citizen participation in detecting violations.

Accordingly, EPA encourages active citizen participation in identifying and reporting potential violations of the environmental laws through several means.  As a general matter, decisions can be made to make information available to the public that citizens could not normally obtain or that would require substantial time and effort to obtain.  For example, EPA makes available to the public its list of significant violators of the Clean Air Act.  More formal ways of encouraging citizen participation also exist.  For example, EPA publications are made readily available to the public which outline the steps that private citizens should take when they believe that they have detected a violation of the environmental laws.  The EPA publications emphasize the importance of documenting all observations in writing and, if appropriate, documenting the potential violations on film.  These EPA publications also provide guidance as to what may constitute a violation under each of the major environmental laws. 6

EPA publications instruct citizens to pay particular attention to unusual odors; unusually flavored or colored drinking water; new and unusual air emissions (particularly dark air emissions); emissions that burn or sting the eyes, mouth, nose or skin; colored discharges into streams; dead animals or fish in the area of suspected pollution; and dumping of garbage in unusual places or at unusual times.  EPA publications also provide contact persons and phone numbers within the government to whom potential violations should be reported. 7

In addition, citizen participation in identifying violations is encouraged through certain statutory provisions in the federal environmental laws.  Section 109(d) of the Comprehensive Environmental Response, Compensation and Liability Act provides that citizens who furnish information to EPA that leads to the arrest and conviction of any person for a criminal violation of the statute may be given a monetary reward of up to $10,000." 8 EPA anticipates giving the first two awards under the program within the next month.  Congress recently added a similar provision to the Clean Air Act which provides that awards may be given for furnishing information that leads to either a criminal conviction or a civil judicial or administrative penalty. 9

Finally, EPA currently is in the process of establishing a Paid Informant Program.  The program would allow EPA to pay individuals for providing information and evidence regarding criminal violations of the environmental laws.  EPA is often in the position during the course of an investigation where obtaining critical information or evidence from an individual is essential for establishing a strong enforcement case.  In some cases, obtaining this information or evidence, which is not otherwise readily available, may depend upon making a payment to an individual in exchange for the information or evidence.  The EPA program will be modeled on the programs developed by other federal law enforcement agencies.

 

3          CITIZEN PARTICIPATION IN SETTLEMENTS

 

            Citizens also play a role in enforcement by commenting on settlements reached between the government and alleged violators in environmental enforcement actions.  This form of citizen involvement augments the government's limited resources and helps to ensure that appropriate levels of compliance are achieved through enforcement settlements, and that proper steps are taken by violators to correct any damage caused by their violations.

Regulations issued by the Department of Justice mandate that 30 days must be provided for citizens to comment on the terms of any proposed settlement in a federal civil judicial action to enjoin discharges of pollutants into the environment, before the government formally will agree to final entry of the decree in federal court. 10 The comments received by the Department of Justice are filed in federal court.  The Department of Justice reserves the right to withdraw or withhold its consent to the proposed settlement if the comments received disclose facts or considerations which indicate that the proposed settlement is "inappropriate, improper, or inadequate." In addition, individual statutes also contain provisions that provide the public with an opportunity to participate in settlements. 11

Citizen comments on settlements have yielded, on occasion, changed terms, such as an increase in the amount of the penalties paid by a defendant.  For example, in the case of United States v. Exxon Corp,, in which the Exxon tanker "Valdez" spilled over 11 million gallons of crude oil into Prince William Sound after striking a reef, Alaskan citizens played a key role in the settlement process.  Citizens were invited to comment on both the civil and criminal settlements in the case and testified before the Alaskan legislature which had the authority to reject the civil settlement.  The first proposed settlement on the criminal charges was rejected by the Federal District Judge.  The legislature also rejected the first proposed civil settlement.  The settlement that was ultimately reached required Exxon to pay at least $900 million. 12

Alaskan citizens influenced the terms of the settlement directly and indirectly through their active participation in the settlement process.  For example, in response to comments from one group, the National Trust for Historic Preservation, a provision was added to the settlement which provided that funds could be used to restore archeological sites.  In addition, the high-level of interest from the citizens undoubtedly helped shape the government's settlement position, and encouraged the government to seek high penalties from Exxon.

In order to encourage citizen participation in settlements, Congress created the Technical Assistance Grant Program (TAG Program) as part of the 1986 amendments to the Comprehensive Environmental Response, Compensation and Liability Act.  The purpose of the TAG Program is to foster community involvement by assisting citizens who live near hazardous waste sites to understand cleanup activities, better articulate local concerns, and participate more effectively in the cleanup process.

The TAG Program provides funds for citizen groups to hire independent technical advisors to help them understand and comment on the technical aspects of cleanup decisions that directly affect their members' health, economic well-being, or enjoyment of the environment.  Such technical factors may include analytical profiles of conditions at a site, the nature of the wastes involved, and the types of technology available for performing the necessary cleanup actions.

Grants of up to $50,000 are available to community groups for the purpose of hiring technical advisors, such as epidemiologists and geo-hydrologists, to help citizens understand and interpret site-related technical information.  The group, however, must cover 20 percent of the total costs of the project.  The use of grant funds must be budgeted by the community group to cover the entire cleanup period.  On average, cleanups last six years.  Only one TAG Grant may be given for each site on the National Priorities List, which is the list published by EPA of the most serious abandoned hazardous waste sites nationwide that have been identified for possible remedial cleanup.  TAG Grants may not be used to develop new information about a site, such as additional sampling of wastes.

The TAG Program has awarded 90 grants, totaling $4.5 million, to grassroots community groups.  The TAG Grant Program has become increasingly successful with over half of the grants awarded in the last eighteen months.

It should be noted that in addition to the advantages of citizen participation, certain disadvantages also exist.  The primary disadvantage that can result from public participation in settlements is unnecessary delays in entering final enforceable settlements in court.  For example, in U.S. v. Amoco Chemical Company et al. (known as the BRIO Refinery Site), comments from the public resulted in substantial delay in entering a final and enforceable settlement in court.

The case involved a 56 acre abandoned chemical refinery outside of Houston, Texas.  Based on concerns about the impact of the government's selected hazardous waste incineration remedy, which was to be implemented in the settlement, the citizens who lived next to the Site actively fought the settlement that was agreed upon by the government and the parties allegedly responsible for the contamination.  The consent decree memorializing the settlement was lodged in federal court in August of 1989, and citizens were given 30 days to comment on the settlement.  The citizens who lived near the site believed that there was evidence of adverse health effects among the neighborhood residents as a result of the contamination at the site, and submitted over 100 comments, incorporating several thousand pages of records and documents, many of which stated that the remedy agreed upon by the government and the alleged violators was inadequate.  The comment period was extended twice due to the number of comments submitted.  The sheer volume of comments and the technical complexity of the site remedy required over a year's effort to read, summarize, analyze and respond.

Although some minor changes were made in the consent decree, the remedy was not changed.  In December of 1990, the government ultimately asked that the court enter the consent decree in its original form.  The citizens then attempted to intervene and become formal parties to the proceeding and litigate the question of whether the remedy was adequate.  The court finally approved the entry of the consent decree in April of 1991.  The citizens then unsuccessfully appealed the court's decision to the court of appeals.  In short, admittedly in unusual circumstances, the public participation process delayed remedy implementation by nearly two years.

Despite the delays that can be caused by public comment, citizen participation provides the public with the opportunity to carefully evaluate the remedies that are chosen to address Pollution in their communities.  Although public comments may not always produce information that results in a modification of a settlement, citizen participation and the threat of serious challenge increases the pressure on violators to obey the environmental laws, and increases their level of public accountability.  Citizen participation also helps to hold the government accountable to the public and provides the government with negotiating leverage, because a settlement must be reached that will be acceptable not only to the governmental regulators, but also to the public.  Further, the openness of the process which comes with public accountability yields an aura of integrity and respectability which is critical to maintaining the efficacy of the enforcement program.

 

4          CITIZEN SUITS

 

            Citizen suits against alleged violators of the environmental laws present far more complicated issues with respect to citizen involvement in enforcement.  Despite the problems that can arise, however, citizen suits have proven overall to be a successful compliment to government environmental enforcement activity and have served to assist the government in increasing compliance levels in the regulated community.

 

4.1     Overview and Purpose of Citizen Suits

 

Most of the current United States environmental statutes include citizen suits provisions.  These are statutory provisions that allow private citizens, as opposed to a state or the federal government, to sue polluters for violations of environmental laws in the federal district courts.  These provisions also allow citizens to sue the government in the federal courts of appeals for failing to take nondiscretionary acts that are mandated by statute.

Citizen suits provisions originated in the Clean Air Act of 1970 and subsequently were adopted in most other environmental statutes, including the Clean Water Act, the Resource Conservation and Recovery Act, the Toxic Substances Control Act and the Comprehensive Environmental Response Compensation and Liability Act." Only the Federal Insecticide Fungicide and Rodenticide Act does not include citizen suits provisions.

The scope of authority granted under citizen suits provisions is worded differently under

each federal statute.  The statutes generally provide that citizens may sue for violations of any

statutory standard, limitation, or condition and for violation of orders issued by EPA. 14  In addition, some statutes grant additional authority.  For example, the Resource Conservation and Recovery Act also authorizes citizens to bring suits to correct imminent and substantial endangerment to health or the environment.

The relief that can be obtained also varies under each statute.  Citizen suits provisions generally provide citizens with an action for prospective injunctive relief.  Originally, only the Clean Water Act provided that penalties could be imposed in citizen suit.15 Legislative amendments to the Resource Conservation and Recovery Act and the Clean Air Act now provide that penalties may be imposed in citizen suits under those statutes. 16  Penalties also may be imposed under the citizen suits provisions of the Comprehensive Environmental Response Compensation and Liability Act and the Emergency Planning and Community Right to Know Act.17

Nevertheless, the statutes are relatively similar in nature and the authorizing provisions of one statute are representative of the citizen suits, provisions in the other environmental statutes.  For example, Section 304 of the Clean Air Act provides:

any person may commence a civil action on his own behalf -

 

(1)    against any person (including (i) the United States, and (ii) any other governmental instrumentality or agency to the extent permitted by the Eleventh Amendment to the Constitution) who is alleged to be in violation of (A) an emission standard or limitation under this chapter or (B) an order issued by the Administrator or a State with respect to such a standard or limitation,

 

(2) against the Administrator where there is alleged a failure of the Administrator to perform any act or duty under this chapter which is not discretionary with the Administrator, or

 

(3) against any person who proposes to construct or constructs any new or modified major emitting facility without a permit required under part C of subchapter I of this chapter (relating to significant deterioration or air quality) or part D of subchapter I of this chapter (relating to nonattainment) or who is alleged to be in violation of any condition of such permit.

 

The district courts shall have jurisdiction, without regard to the amount in controversy or the citizenship of the parties, to enforce such an emission standard or limitation, or such an order, or to order the Administrator to perform such act or duty, as the case may be, and to apply any appropriate civil penalties (except for actions under paragraph (2)).  The district courts of the United States shall have jurisdiction to compel (consistent with paragraph (2) of this subsection) agency action unreasonably delayed, except that an action to compel agency action referred to in section 7607(b) of this title which is unreasonably delayed may only be filed in a United States District Court within the circuit in which such action would be reviewable under section 7607(b) of this title.  In any such action for unreasonable delay, notice to the entities referred to in subsection (b)(1)(A) of this section shall be provided 180 days before commencing such action."'

 

The intent of Congress in enacting citizen suits provisions in most of the federal environmental laws was two-fold.  First, Congress intended that citizen suits would impel government action.  The Senate Report on the Clean Air Act of 1970 states: "Government initiative in seeking enforcement under the Clean Air Act has been restrained.  Authorizing citizens to bring suits for violations of standards should motivate governmental agencies charged with the responsibility to bring enforcement and abatement proceedings." 19

Second, citizen suits also were intended to augment federal and state enforcement activity.  This objective was based in part on the understanding that there always will be a finite amount of resources available for government enforcement.  For example, with respect to the Clean Air Act citizen suits provisions, Senator Edmund Muskie, a principal author of the original Clean Air Act, stated that "it is too much to presume that, however well staffed or well intentioned these enforcement agencies, they will be able to monitor the potential violations" under the Clean Air Act. 20  Similarly, Senator Gary Hart stated: "In legislation of this type, we will find very likely noncompliance which in number or degree are far beyond the capacity of the Government to respond to."21

More recently, the author of amendments to the Resource Conservation and Recovery Act citizen suits provision, Senator George Mitchell, explained that his amendment allowing citizens to sue to abate imminent and substantial endangerments to health or the environment was needed on the following grounds:

 

Only EPA can sue to abate an imminent hazard under current law.  If EPA does not act, the endangerment continues.  In light of the thousands of known hazardous waste sites across this country, this simply does not make sense.  The Environmental Protection Agency clearly does not have the resources to deal with all of these sites, nor do the States.  Citizen suits to abate imminent hazards can expect the national effort to minimize these very real threats to our well-being. 22

 

The federal courts also have recognized that citizen suits provisions were intended, in part, to supplement government enforcement efforts.  In NRDC v. Train, the court held that "the citizen suits provision reflected a deliberate choice by Congress to widen citizen access to the courts as a supplemental and effective assurance that the Act would be implemented and enforced.23

 

4.2       Citizen Suits in Practice

 

While United States' laws authorize citizen suits to be brought by an individual or his or her attorney, in practice these are typically filed by one of several nonprofit organizations that have taken the lead in developing and litigating citizen suits.  For example, the Natural Resources Defense Council has played a key role in bringing citizen suits under the Clean Water Act.  In addition, nonprofit groups such as the Sierra Club Legal Defense Fund, the Environmental Defense Fund, the Chesapeake Bay Foundation, Trial Lawyers for Public Justice, and the Atlantic States Legal Foundation also bring numerous actions under the citizen suits provisions of the environmental laws.  Some private law firms also dedicate substantial portions of their practices to litigating citizen suits.

Most of the early citizen suits filed during the 1970s were brought to compel government

agencies to take actions that they had failed to take but that were required by statute. 24 Few suits were brought to enforce environmental laws against alleged violators in the years immediately following the enactment of the citizen suits provisions.  For example, one study found that from 1978 to 1982 less than ten citizen suits were brought annually under the Clean Water Act. 25

During the 1980s, the focus of citizen suits shifted and an increasing number of actions were brought under the citizen suits provisions against alleged violators of the environmental laws.  Some commentators have argued that the increase in citizen suits filed against alleged violators can be attributed to a decline in the number of enforcement actions filed by the government.  Although a decline in federal enforcement may explain the increase in the number of citizen suits filed in the early 1980s, citizen suits continue to be filed against alleged violators despite the fact that enforcement levels have consistently increased over the last few years.  For example, in fiscal year 1991 EPA imposed a record number of fines and referred a record number of cases to the Department of Justice for filing.

Suits under the Clean Water Act for violations of national pollutant discharge elimination system (NPDES) permits are the most common.  Clean Water Act suits are particularly popular because information on violations is readily available to the public in the form of discharge monitoring reports that the regulated community is statutorily required to submit to EPA.  One report estimated that by 1987, there were more than 100 filings per year under the Clean Water Act citizen suits provisions, and more than 800 cases were pending in the federal courts.  In addition, hundreds of other cases were pending under the citizen suits provisions of other statutes. 26  The United States Department of Justice estimates that in fiscal year 1991 a record number of fines were imposed in citizen suits brought under the Clean Water Act.  Specifically, $4,998,132.62 in fines were imposed in fiscal year 1991, as compared to $2,930,196.56 in fiscal year 1990 and $325,241.65 in 1989.  By way of comparison, only $164,000 in fines were imposed in Clean Water Act citizen suits in fiscal year 1986.

 

4.3     Potential Disadvantages of Citizen Suits

 

The principal disadvantage of citizen suits is the potential for interference with government enforcement activities.  Citizen suits potentially could interfere with ongoing or planned enforcement actions.  In addition, citizens potentially could file ill-founded actions that the government normally would not choose to pursue, and which could establish unfavorable judicial precedent that could hinder the government's subsequent enforcement activities.

Although these concerns are not wholly without merit, in general, the problems that have arisen with respect to citizen suits have not proven to be a significant impediment to the government's enforcement efforts.  In enacting the citizen suits provisions, Congress attempted to alleviate the potential problems for the government through several mechanisms, including notice requirements and attorney fees awards.  These mechanisms have been successful for the most part, and the disadvantages that remain for the government are outweighed by the advantages that private enforcement activity brings to environmental enforcement in the United States.

 

4.3.1 Interference with Government Enforcement Activities

 

4.3.1.1 Pending Government Enforcement Actions

 

The citizen suits provisions in the federal laws typically constrain citizen participation in government enforcement efforts.  Typical of these provisions is Section 304(b)(1)(B) of the Clean Air Act which states:

 

No action may be commenced -

 

if the Administrator or State has commenced and is diligently prosecuting a civil action in a court of the United States or a State to require compliance with the standard, limitation, or order, but in any such action in a court of the United States any person may intervene as a matter of right. 27

 

The requirement that a citizen suit cannot be filed if the government already has instituted an enforcement action was intended to allow the government to perform its enforcement work without interruption from private citizens.  Senator Mitchell explained during the process of amending the Resource Conservation and Recovery Act that "[t]he provision is structured carefully . . . to insure that citizen suits do not interfere with ongoing Federal or State enforcement efforts." 28

In order to ensure that citizens are not unduly restricted from participating in environmental enforcement because of an existing government enforcement action, Congress provided under most of the citizen suit provisions that citizens can intervene in government enforcement actions as a matter of right.  Citizen intervention in government enforcement actions is governed by Rule 24(a) of the Federal Rules of Civil Procedure which requires that an intervener must have standing to sue and that intervention must be timely.

A citizen also may intervene as a matter of right in some cases, even when a citizen suit provision does not authorize such intervention.  In order to intervene as a matter of right, a citizen is required to have an interest relating to the property or transaction at issue in the litigation.  The disposition of the litigation also must be able potentially to impair or impede the citizen's ability to protect his or her interest. 29  Intervention as a matter of right is not permitted if the citizen's interest is adequately represented by existing parties.  If intervention is not permitted as a matter of right, a citizen still may intervene pursuant to Rule 24(b) of the Federal Rules of Civil Procedure which provides for permissive intervention.  Pursuant to this Rule, under certain circumstances, a citizen may be permitted to intervene if he or she has a claim or defense that has a question of law or fact in common with the government's action.

Some courts have interpreted the citizen suits provisions to bar citizen suits when a government administrative enforcement action is pending, if the administrative action closely resembles a judicial action.  First, courts examine whether the remedies available to the government in the administrative action are similar to those that would be available in a court action, particularly with respect to the imposition of penalties.  Second, courts examine whether the same procedures exist in the administrative proceeding as in a judicial proceeding, particularly with respect to whether citizens may intervene as a matter of right in the administrative proceeding. 30 Furthermore, some statutes provide that citizen suits are barred when the government has undertaken certain administrative enforcement activities. 31

The question of what constitutes "diligent prosecution" of an enforcement action by the government has been litigated in federal court on numerous occasions.  Courts generally [lave looked carefully at whether the government's activities actually constitute "diligent" enforcement.  For example, in Gardeski v. Colonial Sand and Stone Co., 32 a settlement was reached between the government and the violator in a Clean Air Act case brought for illegal emissions of dust and particles.  However, the consent order subsequently was violated by the defendant, and was not enforced by the state for two years while the state tried to seek voluntary compliance.  The court held that the government's actions in the case did not constitute diligent prosecution. 33

            Similarly, in New York Coastal Fisherman's Association v. New York Sanitation Department,34 the court ruled that the State was not diligently prosecuting the City of New York to force the cleanup of a city landfill, despite the existence of two consent orders, because a permanent plan to eliminate illegal leachate discharges from the Site had not materialized.

The courts undoubtedly will continue to wrestle with what type of government actions bar citizen suits.  Although it is particularly difficult to define "diligent prosecution," the courts have been on the right track in taking a close look at the government's activities before barring a citizen suit.  Although it is crucial not to interfere unduly with the government's enforcement efforts, often lack of diligent prosecution is a result of inadequate resources with which to follow through on enforcement cases.  Furthermore, it is preferable to err on the side of over-enforcement rather than under-enforcement.

 

4.3.1.2 Notice Requirements

 

A citizen suit may not be filed in court until notice has been provided to the responsible federal and state agencies, and to the alleged violator.  Citizen suits provisions typically provide for a 60 day waiting period after notice is provided before the action can be filed.  This period is provided to allow the government to step in, as the primary enforcer, and file suit.  In some instances, the notice period is longer than 60 days, and in other instances, such as emergency situations, the notice period is waived." 35 EPA has issued regulations which set out in detail, the manner in which notice must be served and the required content of the notice.  These regulations generally require that the notice include information that allows the alleged violator to know the standard that it allegedly has violated and the date, place, and nature of the violation. 36

Judicial interpretation of the notice provisions has varied over time.  Some courts initially interpreted the provisions liberally, ruling that the notice requirements did not need to be strictly adhered to prior to filing a suit. 37 However, the United States Supreme Court recently ruled that the notice provisions in the citizen suits provisions are mandatory and that a case should be dismissed if the notice requirements have not been met." 38 in most cases, however, the citizen usually can provide proper notice and refile the suit. 39

The notice requirements of the citizen suits provisions have served the important function of preventing citizen suits from interfering with planned government enforcement activities.  Notice also provides the government with the opportunity to determine whether it, rather than a private citizen, should file a case.  The legislative history of the first citizen suits provisions states that the purpose of the notice requirement is "to further encourage and provide for agency enforcement . . . .The time between notice and filing of the action should give the administrative enforcement office an opportunity to act on the alleged violation." 40  In Friends of the Earth v. Potomac Electric Power Co., the court explained that "[t]he purpose of the notice provision is to allow the Administrator and other officials to rectify inaction, and thus obviate the need for judicial recourse." 41

The notice provisions also have provided the government with the opportunity to stay apprised of citizen suits activity and use the information to gauge its own enforcement priorities and agenda.  For example, in May of 1984 after more than 200 citizen suits had been filed under the Clean Water Act in the previous year, the Administrator of EPA directed that the Agency examine the implications of the large number of filings.  In a press conference the Administrator reportedly stated that "he was particularly troubled that the suits are being brought in areas where EPA's own enforcement 'should be more vigorous' or where violations have been overlooked because companies are on compliance schedules." 42

The one disadvantage of the notice requirements is the length of the waiting period.  In an emergency situation, 60 days may be too long a period of time to wait for formal initiation of proceedings.  In practice, however, 60 days generally is not enough time for the government to develop and file a new enforcement action.  It often takes months for EPA to investigate carefully and develop an enforcement case.  A formal litigation report also must be prepared to accompany each case that is sent to the Department of Justice for filing in federal court.  Furthermore, a formal agreement between EPA and the Department of Justice provides that the Department has up to 60 days after it receives a referral from EPA within which to file a case. 43 Nevertheless, it should be noted that citizens often do not file their suits immediately after the 60 day waiting period has expired, but instead continue negotiations with the alleged violator.  The government may be involved in these negotiations and is not foreclosed even after the 60 days has expired from taking its own enforcement measures.  Furthermore, the government always is permitted to intervene as a matter of right in any citizen suit.  Thus, if the government is unable to bring its own action prior to the filing of a citizen suit, it may intervene in the citizen suit. 44

 

4.3.2       Mechanisms for Deterring Nonmeritorious Suits

 

               The concern that citizens may bring ill-founded cases that establish bad precedent for future enforcement actions by the government has been largely unfounded.  For the most part, the citizen suits provisions successfully were crafted to deter unwarranted citizen suits, and suits generally have not been brought for minor violations of the laws. 45  Citizen suits often have set valuable precedent, and some commentators have concluded that citizens have sought and obtained higher civil penalties than the government for the same violations." 46

Although it is difficult to determine with any certainty the reasons that nonmeritorious suits have not been a significant problem, factors that may have deterred the filing of unnecessary citizen suits include the following: 1) attorney fee awards may be granted by the courts against citizens who bring ill-founded suits; 2) several citizen suits provisions provide that the courts can require the citizens to post bond; 3) citizens cannot recover damages under the citizen suits provisions.

 

In drafting the citizen suits provisions, Congress took steps to deter citizens from bringing nonmeritorious suits by providing that costs, including expert witness and attorney fees, can be awarded both for and against citizens in appropriate circumstances.  The award of attorney fees is an exception to the general American rule that each party must pay its own litigation costs, regardless of which party prevails in the litigation.  See Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240 (1975).

The provisions for the award of attorney fees serve, therefore, to deter citizens from bringing nonmeritorious suits, but also to encourage citizens to bring strong cases that they may not otherwise be able to afford to litigate.  As explained by one court, Congress' goal was to authorize fee awards "which are adequate to attract competent counsel, but which do not produce windfalls to attorneys." 47

Typical of the attorney fees provisions is the following language found in the Clean Air Act:

 

The court, in issuing any final order in any action brought pursuant to subsection (a) of this section, may award costs of litigation (including reasonable attorney and expert witness fees) to any party, whenever the court determines such award is appropriate." 48

 

Another statutory mechanism that may have assisted in deterring citizens from bringing frivolous suits is the language found in several of the citizen suits provisions that enables courts to require citizens to post bond in suits brought for injunctive relief.  These provisions typically provide:

 

The court may, if a temporary restraining order or preliminary injunction is sought, require the filing of a bond or equivalent security in accordance with the Federal Rules of Civil Procedure." 49

 

Although there is no legislative history on these provisions, at least one commentator has concluded that the provisions were included "as part of a package to mollify critics of citizen suits who feared they would flood the courts with ill-founded cases." 50

Frivolous suits also may have been deterred because there is no right of private recovery in the citizen suits provisions.  Civil penalties recovered against violators must be deposited in the United States Treasury. 51 Citizens however, still are able to recover damages caused by a violator through other statutory and common law remedies, but citizen suits do not provide a vehicle by which citizens can obtain damages.  However, it should be noted that citizen suit settlements may require that, in lieu of paying civil penalties, a violator sponsor an environmental project, the benefits of which may inure directly to the citizens who brought the action.

In sum, citizen suits have not unduly interfered with the United States government's enforcement activities.  For the most part, citizen suits have created favorable precedent and have been brought for significant violations of the law.  This lack of interference may be attributable, in part, to the structure and mechanisms set out in the citizen suits provisions.  Although a certain amount of government resources must be allocated to tracking citizen suits activity, this has not been unduly burdensome and has allowed the government to assess its own enforcement priorities.

 

5          CONCLUSION

 

            Citizen participation in the enforcement of environmental laws in the United States has proven to be quite successful.  Although undoubtedly cases exist in which citizen participation has hindered or interfered with government enforcement efforts, the disadvantages of citizen participation are outweighed by the numerous advantages.  The resources available for environmental enforcement are perennially limited, and it is unlikely that the government will ever be able to enforce the laws against every violator.  Thus, citizen participation has been a welcome supplement to the government's enforcement efforts.  Citizen enforcement efforts, like the government's own enforcement activities, also have served to deter potential violators and increase levels of compliance.

Citizen participation also serves to increase the public's awareness of environmental issues, and increases citizens' sense of responsibility for ensuring compliance with the environmental laws.  Citizens' access to the court system also serves as a safety valve, guaranteeing the opportunity to seek redress in a judicial forum for environmental offenses.  Wide spread environmental compliance in the regulated community and responsible environmental practices by the general public only can be achieved if citizens believe that they are expected to play a role in protecting the environment.  Citizen participation in environmental enforcement helps to achieve these goals.

 

 

NOTES

 

  1. For example, the National Oceanic and Atmospheric Administration (NOAA) administers parts of the Ocean Dumping Act and the Coastal Zone Management Act.  NOAA also is responsible for enforcing the natural resource damage provisions of the Comprehensive Environmental Response Compensation and Liability Act and the Oil Pollution Act.  The Department of Interior (DOI) administers wildlife statutes such as the Endangered Species Act and the Migratory Bird Treaty Act.  DOI also enforces natural resource damages provisions under the Comprehensive Environmental Response Compensation and Liability Act.  In addition, the United States Coast Guard enforces portions of the Oil Pollution Act.

 

  1. The role of the states in enforcement can not be understated, and is highlighted by the fact that approximately 70 percent of all enforcement actions are taken by states rather than by the federal government.  Furthermore, as of 1988, between 80 and 90 percent of all inspections were conducted by state government personnel.  See Environmental Enforcement A Citizen's Guide, U.S. EPA March 1990 at 2.

 

  1. Citizens also are authorized to review in federal court regulations adopted by EPA which are not consistent with federal law.  See, e.g. Section 704 of Administrative Procedure Act, 5 U.S.C. Section 704; Section 113 of the Comprehensive Environmental Response Compensation and Liability Act, 42 U.S.C. Section 9613.

 

  1. The Pollution Prosecution Act of 1990 directed the Agency to hire 50 additional civil investigators by 1991 and to have a total of 200 criminal investigators on board by 1995.

 

  1. The convictions under the Resource Conservation and Recovery Act subsequently were overturned on appeal, because the regulations that were violated had not been issued in accordance with proper procedures.  See United States v. Goodner, No. 91-2466 (June 4, 1992).

 

  1. See The Public's Role in Environmental Enforcement, U.S. EPA, March 1990; Environmental Enforcement A Citizen's Guide, U.S. EPA, March 1990.

 

  1. Id.

 

  1. 42 U.S.C. Section 9609(d); 40 C.F.R. Part 303 (1991).

 

  1. 42 U.S.C. Section 7413(f).

 

  1. 28 C.F.R. Section 50.7 (1991).

 

  1. See, e.g., Section 7003(d) of the Resource Conservation and Recovery Act, 42 U.S.C. Section 6973(d); Section 122(d)(2) of the Comprehensive Environmental Response Compensation and Liability Act, 42 U.S.C. Section 9622(d)(2).

 

  1. No. A-91-082-CV (D.C. Alaska 1991); see also Environment Reporter, May 3, 1991 at 4; Environment Reporter, October 11, 1991 at 1553.

 

  1. Clean Air Act, 42 U.S.C. Section 7604; Federal Water Pollution Control Act, 33 U.S.C. Section 1365; Marine Protection, Research and Sanctuaries Act (Ocean Dumping Act), 33 U.S.C. Section 1415(g); Noise Control Act, 42 U.S.C. 491 1; Endangered Species Act, 16 U.S.C. Section 1540(g); Safe Drinking Water Act, 42 U.S.C. Section 300j-8; Solid Waste Disposal Act (as amended by the Resource Conservation and Recovery Act), 42 U.S.C. Section 6972; Toxic Substances Control Act, 15 U.S.C. Section 2619; Surface Mining Control and Reclamation Act, 30 U.S.C. Section 1270; Comprehensive Environmental Response Compensation and Liability Act, 42 U.S.C. Section 9659; Emergency Planning and Community Right to Know Act, 42 U.S.C. Section 11046.

 

  1. See J. Miller and Environmental Law Institute, Citizen Suits: Private Enforcement of Federal Pollution Control Laws 7 n. 20 (1987).

 

  1. 33 U.S.C. Section 1365(a).

 

  1. 42 U.S.C. Section 6972(a); 42 U.S.C. Section 7604(a).

 

  1. 42 U.S.C. Section 9659; 42 U.S.C. Section 11046.

 

  1. 42 U.S.C. Section 7604.

 

  1. Friends of the Earth v. Carey, 535 F.2d 165, 172 (2d Cir. 1976) (quoting S. Rep. No. 91­1196, 91st Cong. 2d Sess. 35-36 (1970)).

 

  1. See NRDC v. Train, 510 F.2d 692, 727 (D.C. Cir. 1975) (quoting A Legislative History of Clean Water Act Amendments of 1970 at 280-81).

 

  1. Id. at 730.

 

  1. D. Riesel, Citizen Suits, and the Award of Attorneys Fees in Environmental Litigation, American Law Institute-American Bar Association course materials at 838 n.6 (June 20-24, 1988) (quoting 130 Cong.  Rec. 59151 (daily ed.  July 25. 1984)).

 

  1. NRDC v. Train, 51 0 F.2d at 700.

 

  1. See, e.g., NRDC v. Train, 519 F.2d 287 (D.C. Cir. 1975); New England Legal Foundation v. Costle, 632 F.2d 936 (2d Cir. 1980), supplemental opinion, 666 F.2d 30 (2d Cir. 1981).

 

 

  1. See Environmental Law Institute, Citizen Suits: An Analysis of Citizen Enforcement Action Under EPA-Administered Statutes 111-10 (1984).

 

  1. See L. Jorgenson & J.J. Kimmel, Environmental Citizen Suits: Confronting the Corporation (1988); see also Environmental Law Institute, Citizen Suits: An Analysis of Citizen Enforcement Actions Under EPA-Administered Statutes (1984).

 

  1. 42 U.S.C. Section 7604(b)(1)(B).

 

  1. D. Riesel, Citizen Suits, and the Award of Attorneys Fees in Environmental Litigation, American Law Institute-American Bar Association course materials (June 20-24, 1988)(quoting 130 Cong. Rec. 59150 (daily ed.  July 25, 1984)).

 

  1. In rare cases, non U.S. citizens have intervened in U.S. enforcement cases.  For example, in United States v. Hooker Chemicals and Plastics Corp., 101 F.R.D. 444 (1984), the Province         of Ontario and the Minister of the Environment moved to intervene in an ongoing enforcement action.  Ontario alleged that a threat existed to the health of persons drinking water or consuming fish caught in Lake Ontario and the Niagara River due to violations of the Clean Water Act and the Resource Conservation and Recovery Act by Hooker Chemical and Plastics Corporation in the United States.  The Court reasoned that Ontario's interest were not adequately represented by the United States Government in the action against the company, because the Government might place greater emphasis on protection of U.S. drinking water than on protection of Canadian drinking water.  Ontario was not permitted to pursue claims under the citizen suits provisions, however, but was permitted to pursue its common law nuisance claim.

 

  1. See, e.g., Student Public Interest Research Group of New Jersey, Inc. v. Fritzsche, Dodge & Olcott, 759 F.2d 1131, 1137 (3d Cir. 1985); Baughman v. Bradford Coal Co., 592 F.2d 215, 217 (3d Cir.), cert. denied, 441 U.S. 961 (1979).

 

  1. See, e.g., Emergency Planning and Community Right to Know Act, 42 U.S.C. Section 11046(e)(Barring citizen suits if EPA is diligently pursuing an administrative order); Clean Water Act, 33 U.S.C. Section 1319(g)(6)(B)(if government has issued a final order and violator has paid penalty in administrative proceeding violator is not liable for additional civil penalties in a citizen suit that is filed after commencement of administrative proceeding); Resource Conservation and Recovery Act, 42 U.S.C. Section 6972 (citizen suits barred if EPA or state is diligently pursuing abatement action or cleanup under Comprehensive Environmental Response Compensation and Liability Act).

 

  1. 501 F. Supp. 1159 (S.D.N.Y. 1980).

 

  1. See also Sierra Club v. SCM Corp. 572 F. Supp. 828, 831 n. 3 (W.D.N.Y. 1983)(existence of consent order usually indicates diligent enforcement but failure to monitor compliance and enforce consent order or to permit new violations to occur can counter this presumption).

 

  1. 772 F. Supp. 162 (S.D.N.Y. 1990).

 

  1. See, e.g., Resource Conservation and Recovery Act, 42 U.S.C. Section 6972(b)(2)(A); Clean Air Act, 42 U.S.C. Section 7604(b).

 

  1. See, e.g., 40 C.F.R. Part 135 (1991); 40 C.F.R. Part 254 (1991).

 

  1. Friends of the Earth v. Carey, 535 F.2d 165, 176 (2d Cir. 1976)("to require that precise formalistic notice be provided to each [state and local agency] is to erect wholly unrealistic barriers to citizen access to the courts as insured by Congress"); National Sea Clammers Assoc. v. City of New York, 616 F.2d 1222, 1226 (3d Cir. 1980), vacated on other -grounds, 453 U.S. 1 (1981)(adopting "pragmatic" approach to interpreting sixty day notice provision under which sixty days must elapse prior to district court action on complaint, as opposed to filing of complaint).

 

  1. Hallstrom v. Tillamook County, 493 U.S. 20, 31 (1989), reh'q denied, 493 U.S. 1037 (1990)(-'the notice and 60-day delay requirement are mandatory conditions precedent to commencing suit under the RCRA citizen suits provisions.... As a general rule, if an action is barred by the terms of a statute, it must be dismissed").

 

  1. Id. at 32.

 

  1. Natural Resources Defense Counsel, Inc. v. Train. 510 F.2d 692, 723 (D.C. Cir. 1975)(quoting S. Rep. No. 1196, 91st Cong., 2d Sess. 36-39).

 

  1. 546 F. Supp. 1357, 1361 (D.D.C. 1982); see also National Sea Clammers Association v. City of New York, 616 F.2d at 1226 ("The purpose behind the notice provision, as the legislative history makes clear, was to afford the Environmental Protection Agency an opportunity to remedy the alleged violation prior to judicial action").

 

  1. See Inside EPA, Vol. 5, No. 19, May 11, 1984, at 1, 6-7.

 

  1. See Memorandum of Understanding Between the Department of Justice and the Environmental Protection Agency, dated June 1977.

 

  1. See, e.g., Section 304(c)(2) of the Clean Air Act, 42 U.S.C. Section 7604 ("the Administrator, if not a party, may intervene as a matter of right at any time in the proceeding").

 

  1. See J. Miller, Citizen Suits: Private Enforcement of Federal Pollution Control Laws 13-14 (1987)(citing, Environmental Law Institute, Citizen Suits: An Analysis of Citizen Enforcement Actions Under EPA-Administered Statutes (1984)).

 

  1. See Rethinking Citizen Suits, 8 Temple Envtl.  L. & Tech.  J. 55, 66 (Fall 1989)(citinq Boyer & Meidinger, Privatizing Regulatory Enforcement: A Preliminary Assessment of Citizen Suits Under Federal Environmental Laws, 34 Buffalo L. Rev. 833, 835 (1985)).

 

  1. Save Our Cumberland Mountains v. Hodel, 857 F.2d 1516, 1521 (D.C. Cir. 1988)(quoting S. Rep. No. 101 1, 94th Cong., 2d Sess. 6 (1976)).

 

  1. 42 U.S.C. Section 7604(d).

 

  1. 42 U.S.C. Section 7604(d).

 

  1. J. Miller, Citizen Suits: Private Enforcement of Federal Pollution Control Laws 62 (1987).

 

  1. Under the 1990 Amendments to the Clean Air Act, penalties are deposited into a special fund in the U.S. Treasury for licensing and other services. The funds may be used by EPA to finance air compliance and enforcement activities.