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Sierra Club v. Elk Run Coal Co.

ELR Citation: 40 ELR 20032
Nos. No. 2:10-00673, (S.D. W. Va., 11/23/2010)

A district court dismissed a motion to dismiss environmental groups' citizen suit against five coal companies alleging thousands of violations of the CWA and SMCRA in West Virginia. Because EPA entered into a consent decree with the companies, the defendants argued that the groups' CWA claims are precluded by EPA's diligent prosecution. The consent decree, however, allows for citizen suits for violations that have occurred after the decree's date of lodging. In fact, EPA likely considered the threat of future citizen suits necessary to achieve compliance. To ignore the government's determination that the consent decree does not preclude future citizen suits would not only be unjust to the groups, it would completely undermine the government's discretion in drafting the decree's terms.