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Chesapeake Bay Found. v. American Recovery Co.

ELR Citation: 16 ELR 20056
Nos. Nos. 85-1218, -1320, 769 F.2d 207/23 ERC 1150/(4th Cir., 08/05/1985)

The court dismisses as moot an appeal from district court decisions dismissing a citizen suit under the Federal Water Pollution Control Act (FWPCA) and denying citizen intervention in a subsequent federal enforcement suit, but notes that the citizen suit was neither barred by the government enforcement suit nor by lack of standing. The court first notes that the district court's rulings, which were not explained, were without basis. By agreement, citizen plaintiffs filed suit more than 60 days after notifying defendant and the federal government and before the government filed suit. The court reasons that under FWPCA §505(b)(1) government enforcement suits preclude citizen suits only if the government actions are filed before the expiration of the 60-day notice period or before the citizen suits are filed. District courts may prevent duplicative litigation by consolidating actions or allowing either citizens or the government to intervene in the other's suit. The court also concludes that plaintiffs have standing on the basis of their allegations that their members live in the vicinity of and use the polluted waters, thereby suffering harm to health, recreational, aesthetic, and environmental interests. The court observes that the district court had no basis on which to dismiss plaintiffs' suit and then to deny their motion to intervene in the government suit. However, it rules that the appeal is mooted by the signing of an agreement that settles the government's suit and is acceptable to plaintiffs.

Counsel for Appellants
James Thornton
Natural Resources Defense Council, Inc.
122 E. 42nd St., New York NY 10168
(212) 949-0049

Counsel for Appellees
Warren K. Rich
Niles, Barton & Wilmer
929 N. Howard St., Baltimore MD 21201
(301) 539-3240

Before WINTER, Chief Judge, and RUSSELL and SPROUSE, Circuit Judges.