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Hudson River Sloop Clearwater v. Consolidated Rail Corp.

Citation: 14 ELR 20627
No. No. 82-CV-1307, 591 F. Supp. 345/21 ERC 1316/(N.D.N.Y., 07/02/1984)

The court holds that state administrative enforcement bars a citizen suit under the Federal Water Pollution Control Act (FWPCA) even though plaintiff had no right to intervene in the state action and the state action was slow to bring about compliance. The court first rules that plaintiff environmental organization has standing to bring the action. The complaint alleges generalized injuries to the economic, aesthetic, and other interests of plaintiff's members. Without deciding whether that is sufficient to establish standing, the court notes that plaintiff's submission of affidavits detailing the specific injuries allegedly suffered by two individual members satisfies even the strictest relevant interpretation of the standing requirement. The court next rules that a state administrative enforcement proceeding that could lead to civil or criminal penalties or injunctive relief is the equivalent of a court action and capable of barring a § 505 citizen suit, even if citizen intervention is not allowed in the proceeding. The plain language of § 505(b)(1)(B) mandates a right of intervention in federal court actions, but not in state court actions. By inference, a right of intervention in state administrative proceedings would not be necessary for them to be the equivalent of state court actions. Finally, the court rules that the state administrative enforcement action was diligently prosecuted. The lack of substantial penalties does not belie diligent prosecution because the primary goal of FWPCA enforcement is compliance with effluent limitations, which was achieved as a result of the state action. While the state was "little more than sluggish" in the pace of its efforts to bring about compliance with the administrative consent order, final compliance has been achieved. The only purpose to be served by allowing the citizen suit is imposition of additional penalties, which is secondary to the FWPCA purpose already satisfied.

Counsel for Plaintiff
Anthony Z. Roisman, Susan J. Vogel
Trial Lawyers for Public Justice
2000 P St. NW, Suite 611, Washington DC 20036
(202) 463-8600

Counsel for Defendant
John Jenchura, Abbi L. Cohen
Consolidated Rail Corp.
1138 Six Penn Center Plaza, Philadelphia PA 19103
(215) 977-4000