Can Courts Stop Citizens from Prosecuting Criminal Cases Under the Clean Water Act?

Sustainable Development Law & Policy

Volume 19 Issue 1 Fall 2018: Jurisprudence in Article 3 Environmental Law

Hannah Gardenswartz American University Washington College of Law

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Recommended Citation Gardenswartz, Hannah (2018) "Can Courts Stop Citizens from Prosecuting Criminal Cases Under the Clean Water Act?," Sustainable Development Law & Policy: Vol. 19 : Iss. 1 , Article 3. Available at: https://digitalcommons.wcl.american.edu/sdlp/vol19/iss1/3

This Article is brought to you for free and open access by the Washington College of Law Journals & Law Reviews at Digital Commons @ American University Washington College of Law. It has been accepted for inclusion in Sustainable Development Law & Policy by an authorized editor of Digital Commons @ American University Washington College of Law. For more information, please contact [email protected]. CAN COURTS STOP CITIZENS FROM PROSECUTING CRIMINAL CASES UNDER THE CLEAN WATER AcT? Hannah Gardenswartz *

he citizen sui t prov ision in the Clean Air Act1 was copi ed by both th e state and federal governments. 11 While the doctrine almost verbatim into the C lean Water Act, with one key of standing has been used to limi t pri vate litigation, 12 th e citi zen Tchange: sui t provisions and the abili ty to intervene in cases has pushed publi c participation in C lean Water Act civil enforcement action. If the Admi nistrator or State has commenced and is Because of a large amount of publi c participation in the civil dili gently prosecutin g a civil or criminal acti on in a realm , it is surprisin g that there are no cases where citizens have court of the Uni ted States or a State to req ui re compli intervened in crimi na l cases. ance with the standard, limitati on, or order, but in any such action in a court of the Uni ted States any person IL R ULES G OVERNI NG I NTERVENTION may in tervene as a matter of right. 2 If interventions in criminal cases were to be all owed, the procedure fo r doing so would be modeled on the Federal Rules The additi on of"or criminal" opens up a new possibility for of Civil Procedure ("Civil Rules") and Federal Rules of Criminal intervention under the C lean Water Act that was not available Procedure ("Criminal Rul es"). The court would be abl e to in ter under the Clean Air Act. Thi s Article argues that citi zens have pret the rul es for intervenors and the rules for victims togethe r a ri ght to in tervene in criminal actions brought by the govern to create a procedure fo r citizen in tervention in criminal cases. ment under the C lean Water Act; however, doin g so would be The C iv il Rules already provid e the procedure for in ter so di sruptive to the penal system that a court could not allow venors. C ivil Rule 24(a)( I) req uires th at courts must permit intervention in thi s context. interventi on if a federal statute gives citi zens the un conditional right. 13 A party has a ri ght to intervene only if the in tervenor I. HISTORY O F T HE C LEAN A rn AcT shows timeliness, an interest regarding the action, a practical AND C LEAN W ATER ACT impairment of the party's ability to protect that interest, and an The Clean Air Act incorporated the fi rst modern citizen suit inadequate re presentati on by the parties to the suit. 14 provision in 1970. Since then, alm ost all major enviro nmental Under the Criminal Rules, victims have a ri ght to pa rticipate statutes- incl ud ing the C lean Water Act- have included citi zen in the prosecution of a crime. 15 Victims have a right to be given suit provisions. 3 The citi zen sui t provisions were designed so "reasonable, accurate, and timely noti ce" of publi c proceedin gs that if the government should fa il to bring a case, the publi c is in the case and be heard at publi c hearings regarding release, 1 guaranteed th e ri ght to seek enfo rcement of the statute. 4 The pleas, or sentencing. 6 Senate Committee on Public Works specifi ca ll y a ll owed fo r If intervenors are a ll owed in criminal C lean Water Act in tervention by both the public - at the court 's di screti on - and cases, it will be d iffic ult fo r the intervening party to show inad the Environmental Protecti on Agency's (EPA) Administrator.5 equate representation by the prosecution. Once the intervenor The House of Representati ve's bill did not include a provision clears that hurdle, the participation all owed could be similar to for citizen suits, but the Senate amendment authorized citi zen the parti cipati on rights of victim s. 17 suits again st violators, government agencies, a nd th e EPA Administrator.6 [n th e end, Congress knew that the provision fo r III. WH Y CIT IZENS C ANNOT I NTERVENE citizen suits was fa r-reaching, but the provision was included IN CRI M INAL C ASES anyway because it was necessary to ensure that the Clean Air The difference between civil cases and criminal cases 1s Act was enfo rced. 7 more likely to be the factor that all ows for intervention in one The citizen suit provisions of the C lean Wa ter Act were context and precludes it in the other. The government brings 18 expressly modeled on the C lean Ai r Act, but with the unusual criminal cases on behalf of the people - thi s is one of the defi n 19 addition that citizens may intervene in criminal cases. 8 However, ing elements of how criminal cases are prosecuted. Criminal the legislative hi story is si lent on why Congress chose to modi fy cases are treated as offenses again st the community at large, the Clean Air Act citizen sui t provision to potentia ll y a ll ow and the community then bri ngs the case, not the victim .20 Under citi zen in tervention in criminal cases.9 Pu bli c in terest groups the C lean Wa ter Act, citi zens are onl y able to intervene in cases took advantage of the abili ty to parti cipate in the enfo rcement be ing bro ught by the government because the case centers on a n of the Clean Water Act, and pri vate civil enfo rcement quickl y exceeded fe deral civil enfo rcement. 10 ln some years private Clean Water Act liti gati on has equaled overall civil enfo rcement *J.D. Candidate, Washington Coll ege of Law 2020.

Fail 2018 11 2 1 offense against the community at large. Jn this way, the civil IV. CONCLUSION environmental law cases are similar in purpose to criminal law Legislative history shows that the purpose of the Clean cases. Air Act and Clean Water Act citizen suit provisions is to give One of the biggest distinctions between civil cases and citizens the ability to bring cases when the government fails to criminal law cases is the type of remedy or penalty that may do so. The legislative history of the Clean Water Act does not 22 be sought. Jn criminal law, the remedy may be punitive and directly address why Congress choose to allow intervention in may include incarceration as a punishment for behavior the the criminal context, yet the plain meaning of the Act directly 23 community deems to be wrong. In Clean Water Act citizen states that citizens would have a right to intervene in criminal suits, citizens are only allowed to seek injunctive relief for ongo cases. Further, the legislative and judiciary branches already ing violations.24 Because citizens are strictly limited in what provide a specific set of rules that require the courts to give remedies they are allowed to seek, allowing them to use the citizens the right to intervene in the civil cases. Therefore, on criminal justice system would be inconsistent with the Court's plain reading of the statues and legislative history, citizens may precedent. intervene in Clean Water Act criminal cases. While the statute's purpose aligns with that of the criminal system, courts could not allow citizens to intervene and use the penalties of the criminal justice system.

ENDNOTES

42 U.S.C. § 7604(b)(l)(B) (2 01 2) (" If the Administra tor or State has com infraction, inj un cti ve reli ef w ill not redress the injury, and th at because th e me nced and is diligently prosecuting a civil action in a court o f th e Unite d reli ef sought would not remedy th e all eged injury, the citi zens lack standing). States o r a State to require complia nce with the sta nda rd, limitation, or o rd er, 13 Fm R. C1 v. P. 24(a)(I). but in any such action in a court o f the United States any person may inte r 14 See, e.g., United tales v. Oregon, 9 13 F.2 d 576, 587 (9 th Cir. 1990). vene as a matte r of right."). 15 18 u.s.c. § 377 1 (2012); F ED. R. CR IM. P. 60. 2 33 U.S.C § 1365(b)(l)(B) (2 01 2) (emphasis added). l6 FED. R. CRIM. P. 60(a)( I), (a)(3). Mark Seidenfeld & Janna Satz N ugent, '"The Friendship oft he People:" 17 The Crime Vi ctims' Ri ghts Act defin es "crime victim" as "a person Citizen Participation in En vironmental Enforcement, 73 G EO. WAS H. L. R Ev. directly or prox imately harmed as the result of the commission ofa Federal 269, 283-84 (2005). offense." 18 .S.C. § 3771(e) (2 01 2). However, an environmental crime may 4 S. Re p. o. 9 1- 11 96 at 2 1 (Sept. 17, 1970) (gua ranteeing the publi c the be a crime w ithout a victim or the party w ith interest seeking to may not be rig ht to seek " vi gorous en fo rcement," should the fede ra l, state, or local the crime victim . As such, the normal rules fo r victim participati on woul d gove rnme nts fa il to bring a case); see also Frie nds of the Earth v. Carey, 535 not be applicable to the party seeking to intervene. F.2d 165, 173 (2d C ir. 1976) ("[T]he ve ry purpose of the c iti zens' liberal right 18 Samuel W. Buell , Why Do Prosecutors Say Any thing? Th e Case of Corpo of action is to stir slumbering agenc ies and to circumve nt bureaucratic inac rate Crime, 96 N.C. L. R Ev. 823, 840 (2 01 8) ("[P)rosecutors seem to share an tion that inte rfe res w ith the scheduled sati sfa ction o f the fe deral air qua lity abiding and reasonable belief that . . . the ir "client" is the public . . . . Prosecu goals."). tors act with a fiduciary-like concept of th eir relationship to th e communities 5 S. Re p. o. 9 1-11 96 at 56 (Sept. 17, 1970) (" Where the Secretary is not in which they work- 'your officia ls know yo ur best interests' . ..."). automatica ll y a party to the action, he must interve ne to present ev idence 19 But see id. (noting that until the 19th century, victims oft en had the bur a nd argume nt on the merits of th e petition. Others may a lso intervene at the de n of directly prosecuting criminal cases, and, though uncommon, victim s court's discretion." ). are still sometimes all owed to privately prosecute cases in England). 6 See Conf. Re p. No. 91-1 783 at 55-56 (Dec. 17, 1970) (reta ining th e 20 See Criminal Law, BLACK'S LAW D1 CTI ON ARV (!Orn ED. 2014) (defining Senate's c iti zen suit provision during the reconciliati on process, but w ith criminal law as " th e body of law defining offen ses aga in st the community at limitations as to the cases that could be broug ht by c iti zens again st the EPA large"). Administrator). 21 33 U. S.C § 1365(b)(l)(B) (2 01 2). 7 See 91 Cong. Rec. 19223 (June I 0, 1970); S. Rep. No. 9 1- 11 96 at 36-39 22 See Henry M. Hart Jr., Th e Aims of Criminal Law, 23 LAW AN D CONTEMP. (Se pt. 17, 1970). PROBS., 401 , 404 (1958) (" What di sting ui shes a criminal from a civil sancti on 8 Nat. Resources Def. Council v. Train, 510 F.2d 692, 699 ( D.C. Cir. 1974) and all that di stinguishes it, it is ventured, is the judgment of community ("The citizen suits prov ision of secti o n 505 was explicitly modeled on the condemnation which accompanies and justifies its impositi on."). provision e nacted in the Clean Air Amendments of 1970."). 23 See id. at 405 (defining crime as "conduct which, if duly shown to have 9 See, e.g. , S. Rep. No. 92-414 at 79-82 (discussing the c iti zen suit provision taken place, will incur a formal and sole mn pronouncement of th e moral but not me ntioning c iti zen intervention in criminal cases). condemnation of th e community."). JO Seidenfeld & Nugent, supra note 3, at 285. 24 Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc. , 484 U.S. 49, 11 Id. 59 (1987); United tates v. City of Toledo, 867 F. Supp. 595, 597 ( .D. Ohio 12 See, e.g. , Fri ends o f the Earth v. La idlaw Envtl. Serv. , Inc., 528 U.S. 167, 1994). But see Friends of the Earth v. La idlaw Envtl. Serv. , In c., 528 U.S. 184-88 (2000) (limiting Article Ill sta nding to injury to the pl a intiff, not 167, 181 (2000) (holding that ifthe defendant continues to violate a statute injury to the environment); Steel Co. v. Citi zens for a Better Env't, 523 U. S. after the citizen suit has commenced, then the plaintiff has standing to sue for 83, 108-10 (1998) (finding that because the citizen group alleges only a past penalties to be paid the U.S. because of the deterrent effect of those penalties).

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