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Citizen Environmental Lawsuits After Gwaltney: the Thrill of Victory Or the Agony of Defeat? Charles N

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Citizen Environmental Lawsuits After Gwaltney: the Thrill of Victory Or the Agony of Defeat? Charles N William Mitchell Law Review Volume 15 | Issue 2 Article 2 1989 Citizen Environmental Lawsuits after Gwaltney: The Thrill of Victory or the Agony of Defeat? Charles N. Nauen Follow this and additional works at: http://open.mitchellhamline.edu/wmlr Recommended Citation Nauen, Charles N. (1989) "Citizen Environmental Lawsuits after Gwaltney: The Thrill of Victory or the Agony of Defeat?," William Mitchell Law Review: Vol. 15: Iss. 2, Article 2. Available at: http://open.mitchellhamline.edu/wmlr/vol15/iss2/2 This Article is brought to you for free and open access by the Law Reviews and Journals at Mitchell Hamline Open Access. It has been accepted for inclusion in William Mitchell Law Review by an authorized administrator of Mitchell Hamline Open Access. For more information, please contact [email protected]. © Mitchell Hamline School of Law Nauen: Citizen Environmental Lawsuits after Gwaltney: The Thrill of Vict CITIZEN ENVIRONMENTAL LAWSUITS AFTER GWALTNEY: THE THRILL OF VICTORY OR THE AGONY OF DEFEAT? CHARLES N. NAUENt INTRODUCTION ......................................... 327 I. CITIZEN LAWSUIT BACKGROUND ................... 328 II. FUNDAMENTALS OF A CWA CITIZEN SUIT (33 U.S.C. § 1365) .......................................... 332 A. Standing to Sue ............................... 332 B. Notice ........................................ 333 C. Lack of Diligent Prosecution .................... 336 D. Statute of Limitations .......................... 338 E. Penalties ...................................... 340 III. THE GWALTNEY DECISION ......................... 341 A. Prelude to Gwaltney .......................... 341 B. The Gwaltney Opinion ........................ 344 C. Lower Courts' Responses ........................ 348 D. Gwaltney Aftermath ........................... 349 CONCLUSION ........................................... 351 INTRODUCTION Environmental law is a vast and complicated subject which has undergone significant growth and change in recent years. One important aspect of this change has been increasing in- volvement of private citizens, both as individuals and as organ- ized groups,' in the development and enforcement of t Mr. Nauen is a partner in the Minneapolis law firm of Opperman & Paquin, practicing in the areas of commercial and class action litigation. Mr. Nauen has liti- gated several citizen environmental lawsuits in Minnesota and Wisconsin on behalf of Atlantic States Legal Foundation, Inc. and Citizens for a Better Environment. Wil- liam L. Roberts, a second-year law student, provided research assistance for this article. 1. A few of the groups most active in citizen lawsuits are Friends of the Earth, the Chesapeake Bay Foundation, Atlantic States Legal Foundation, The Sierra Club, and Citizens for a Better Environment. Raymond Proffitt has been one of the indi- viduals active in pursuing citizen enforcement suits. See Proffitt v. Commissioners, Township of Bristol, 754 F.2d 504 (3d Cir. 1985); Proffitt v. Lower Bucks County Joint Mun. Auth., No. 86-7220 (E.D. P. May 12, 1988). Published by Mitchell Hamline Open Access, 1989 1 William Mitchell Law Review, Vol. 15, Iss. 2 [1989], Art. 2 WILLIAM MITCHELL LA W REVIEW [Vol. 15 environmental laws. The increase in citizen environmental lawsuits is one manifestation of this development. Originating in the Clean Air Act Amendments of 1970,2 citi- zen suit provisions can now be found in a wide array of envi- ronmental laws.3 The most significant of those laws are the Clean Air Act 4 (CAA), the Clean Water Act 5 (CWA), the Re- source Conservation and Recovery Act 6 (RCRA), and the Comprehensive Environmental Response, Compensation, and Liability Act 7 (CERCLA). Among these, the Clean Water Act has seen by far the most citizen lawsuits in recent years. 8 This article is designed to serve two main purposes. First, it will give the reader an introduction to the fundamentals in liti- gating a citizen lawsuit, including the major legal issues and major practical problems. This discussion will take place predominantly in the context of the Clean Water Act, although the unique features of each of the above acts will be discussed. Second, this article will discuss the recent United States Supreme Court decision in Gwaltney of Smithfield v. Chesapeake Bay Foundation.9 Gwaltney answered some questions about citi- zen environmental lawsuits but left other questions open and, in some cases, increased confusion about central issues in such lawsuits. This article will discuss the situation leading up to Gwaltney, the Gwaltney holding, and issues left open or confused by the Gwaltney decision. I. CITIZEN LAWSUIT BACKGROUND The grandparent of all environmental citizen lawsuits is Sec- 2. See 1970 U.S. CODE CONG. & ADMIN. NEWS 5356. 3. E.g., Toxic Substances Control Act, 15 U.S.C. § 2619(a)(1) (1982); Endan- gered Species Act of 1973, 16 U.S.C. § 1540(g) (1982); Surface Mining Control and Reclamation Act of 1977, 30 U.S.C. § 1270 (1982); Marine Protection, Research and Sanctuaries Act of 1972, 33 U.S.C. § 1415(g) (1982); Deepwater Port Act of 1974, 33 U.S.C. § 1515 (1982); Safe Drinking Water Act, 42 U.S.C. § 300j-8(a) (1982); Noise Control Act of 1972, 42 U.S.C. § 4911 (a) (1982); Outer Continental Shelf Lands Act, 43 U.S.C. § 1349 (1982). 4. 42 U.S.C. § 7401-7642 (1982 & Supp. IV 1986). 5. 33 U.S.C. § 1251-1376 (1982 & Supp. IV 1986). 6. 42 U.S.C. § 6901-6986 (1982 & Supp. IV 1986). 7. 42 U.S.C. § 9601-9659 (1982 & Supp. IV 1986). 8. See L. Jorgenson &J. Kimmell, Environmental Citizen Suits: Confronting the Corpo- ration, Special Report (BNA) at 19 and appendices (1988) (reporting that of the 1,209 citizen actions reviewed, 882 contained claims under the CWA, 265 contained claims under RCRA, and 71 contained claims under CERCLA). 9. 108 S. Ct. 376 (1987). http://open.mitchellhamline.edu/wmlr/vol15/iss2/2 2 Nauen: Citizen Environmental Lawsuits after Gwaltney: The Thrill of Vict 19891 CITIZEN'S ENVIRONMENTAL SUITS tion 304 of the Clean Air Act Amendments of 1970.10 Frus- trated by the failure of earlier efforts to achieve the goals of the CAA, I t Congress implemented a unique enforcement mecha- nism-citizen lawsuits. Section 304 authorized "any person"' 12 to commence a civil action against certain parties, including the United States Government and the Environmental Protec- tion Agency (EPA), for the purpose of achieving enforcement of the emission standards and limitations established pursuant to the CAA. Defining the proper role of citizen lawsuits in the CAA scheme 13 has been a difficult process. The Senate Committee responsible for the provision 14 stated: Government initiative in seeking enforcement of the Clean Air Act has been restrained. Authorizing the citizens to bring suits for violation of standards should motivate gov- ernmental agencies charged with responsibility to bring en- forcement and abatement proceedings.' 5 Thus, an important objective of citizen lawsuits was to en- courage enforcement of the CAA by government agencies. That is not to say, however, that citizen lawsuits are not de- sirable as an alternative enforcement mechanism. The United States Court of Appeals for the Second Circuit has declared that those pursuing citizen lawsuits "are not to be treated as nuisances or troublemakers but rather as welcome participants in the vindication of environmental interests."' 16 Further, the 10. 42 U.S.C. § 7604 (1982). 11. See Friends of the Earth v. Carey, 535 F.2d 165, 168 (2d Cir. 1976). 12. 42 U.S.C. § 7604(a) (1982). 13. The structure and operation of the CAA is a fascinating topic in itself. For purposes of this article, a brief description will suffice. While remaining faithful to the proposition that "the prevention and control of air pollution at its source is the primary responsibility of States and local governments," 42 U.S.C. § 7401 (a)(3), the 1970 amendments to the CAA called for much greater control by the federal govern- ment in the anti-pollution effort. The EPA was instructed to establish primary and secondary ambient air quality standards pursuant to 42 U.S.C. § 7409. Each state was obligated, in accordance with a timetable, to promulgate a plan for implementing these standards; each state's plan is subject to review and approval by the EPA. 42 U.S.C. § 7410 (1982). Once a state's plan is approved by the EPA, the state is re- quired to carry it out. Id. 14. The House version of the bill included no citizen suit provision. See Carey, 535 F.2d at 172 n.12 (citing Committee of Conference, H.R. CONF. REP. No. 1783, 91st Cong., 2d Sess. (1970)). 15. SENATE CoMMrrrEE ON PUBLIC WORKS, S. REP. No. 1196, 91st Cong., 2d. Sess. 35-36 (1970), quoted in Carey, 535 F.2d at 172. 16. Carey, 535 F.2d at 172. Published by Mitchell Hamline Open Access, 1989 3 William Mitchell Law Review, Vol. 15, Iss. 2 [1989], Art. 2 WILLIAM MITCHELL LAW REVIEW [Vol. 15 intent of Congress to encourage citizen lawsuits is shown in the explicit relaxation of common jurisdictional barriers and in the provision allowing recovery of attorney's fees. 17 Congress did not go as far as it might have, however, in en- couraging citizen suits under the CAA. Section 304 did not allow recovery of damages for emission standard violations, nor did it grant power to the federal district courts to assess civil penalties against violators.' 8 The best remedy for which a plaintiff can hope under section 304 is an injunction against a defendant to perform the act demanded by plaintiff. 19 This cautious approach to citizen lawsuits reflects Congress' balanc- ing of its desire for goading and supplementing EPA enforce- ment against the dangers of interference of EPA enforcement and abuse and overload of the courts through a flood of citizen lawsuits. 20 The citizen suit provision of the Clean Water Act 2 1 was modeled after section 304 of the CAA. 22 Accordingly, its 23 structure and operation are quite similar to that of the CAA.
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