Private Enforcement of Federal Pollution Control Laws Part II

Jeffrey G. Miller

Editors Summary: In the second of a three-part series, Mr. Miller analyzes the mechanics of bringing a citizen suit and the remedies available to the successful plaintiff under 11 federal environmental statutes. He examines the conditions precedent to citizen suits, the rights of government and citizen enforcers to intervene in each other's suits, security requirements that courts may impose on citizen suit plaintiffs, and the extent to which the citizen enforcer can obtain the same remedies available to the government. The analysis draws on the statutory language, legislative history, agency regulations, and court decisions and leads the author to a number of recommendations for making the citizen suit provisions better serve the purposes Congress had in mind in enacting them.

Mr. Miller is a partner in the Washington, D.C. firm of Bergson, Borkland, Margolis & Adler. He was an EPA enforcement official for 10 years, finishing his government career as head of EPA's enforcement program.

[14 ELR 10063]

Introduction

This is the second of a three-part series on citizen suits under 11 federal environmental statutes.¹ These statutes generally allow citizens access to the federal courts to enforce the requirements of the statutes against those responsible either for pollution violations or for reluctant or tardy government implementation.² Part I of this series³ outlined and evaluated the use of citizen suits to date, and considered who can be parties and what causes of action are available. It analyzed who could be a plaintiff and the standing requirements that apply to plaintiffs; considered who could be a defendant, the extent to which sovereign immunity shielded the United States from suit, and the extent to which doctrines of vicarious liability apply against those not ordinarily considered liable; outlined actionable violations; and evaluated the extent to which the savings clauses in the environmental statutes preserve the federal common law of nuisance, private rights of action, and use of general jurisdictional statutes. This part of the series analyzes the mechanics of bringing a citizen suit and the remedies available to the successful litigant. Part III of this series will discuss the award of attorneys fees; tactics, strategies, and problems for plaintiffs and defendants in suits under these sections; and common defenses to citizen suits.

Conditions Precedent to Suit

The citizen suit sections generally provide that an action may not be commenced (1) unless the prospective plaintiffs have given 60 days notice of the alleged violations to the responsible federal and state agencies and to the prospective defendants or (2) if the federal or state agency has commenced and is diligently prosecuting a specified enforcement action. When citizen suit is barred by such government action, most of the statutes allow citizen intervention by right if the government action is in federal court. Conversely the United States may intervene by right in any citizen suit to which it is not already a party. If the plaintiffs seek a temporary restraining order or a preliminary injunction, the court may require the posting of a bond or other security.

The 60-Day Notice

As with most other aspects of the citizen suit sections, Clean Air Act § 304 sets the pattern for the 60-day notice requirement. The wording differences in this requirement among the various statutes are few and reflect structural differences between them. Statutes that envision little or no state role do not require that notice be given to implementing [14 ELR 10064] state agencies,⁴ and statutes that give implementing roles to two federal agencies may require notice to both agencies.⁵ Most of the sections require that notice be given in accordance with implementing regulations.⁶ Some, but not all, of the contemplated regulations have been promulgated.⁷ Many of the sections forego notice where the violations alleged are of hazardous pollutant regulations, involve an emergency, or meet other specified criteria.⁸

The purpose of the notice requirement was to provide the government a last opportunity to perform its enforcement function before private attorneys general step into the breach. Because the 60-day notice period is too short, as a practical matter, for government to enforce, the requirement does not satisfy its purpose. There are a number of situations where strict application of the notice requirement would frustrate legitimate and meritorious citizen actions. There has been a considerable amount of litigation and judicial confusion over the consequences of the failure by plaintiffs to fully observe the requirement. Some cases have treated the requirement as jurisdictional and have automatically dismissed cases where the full 60-day notice period was not required. Others have allowed prematurely filed cases to proceed, but only after staying the proceedings for the full notice period. The Supreme Court has hinted that the latter practice is incorrect. Most courts have considered actual notice for 60 days to be constructive compliance with the requirement, even though not all technical aspects of regulations regarding the provision notice have been met. Because the notice requirement does not serve its intended purpose, has led to considerable judicial uncertainty, and can block legitimate actions, rectifying changes in the requirement are appropriate.

The bar against the initiation of citizen suits if government enforcement action has been filed in court and is being diligently pursued was also intended to provide the government with the opportunity to perform its enforcement function. Unfortunately, it is not worded with sufficient clarity to determine exactly what actions are barred by a particular government action. And it is also unclear why some government actions, e.g., criminal actions, should bar citizen suits and why other actions, e.g., administrative penalty actions with rights for citizen intervention, should not bar citizen suits. This part of the citizen suit provision should also be amended.

* Purpose. The purpose behind the 60-day notice requirements is clearly to enable and encourage the government to perform its enforcement role.⁹ The notice requirements were adopted, in part, to counter those who opposed citizen suit provisions, purportedly fearing that citizens would flood courts with suits and interfere with the proper enforcement role of the excecutive branch.¹⁰ Early Senate versions of Clean Air Act § 304 required only 30 days notice before suit. The notice period was not lengthened to 60 days until the conference committee, when those opponents had to be placated.¹¹

* Effectiveness in Triggering Federal Enforcement. In practice the notice requirement neither prevents flooding the courts with citizen suits nor causes government to perform its enforcement role.If government responded to notices of citizen suit by filing enforcement actions, the courts would see just as many suits as if citizens were allowed to proceed to court without prior notification. And if the federal government wanted to perform its enforcement role after receiving notice of citizen suits, as a practical matter it could institute a judical action within 60 days only in the most exceptional circumstances. The time necessary for the Environmental Protection Agency (EPA) to investigate a case, prepare it for referral, and move the case through its own bureaucracy for referral to the Department of Justice (DOJ) almost always will take much longer than 60 days.¹² Under the memorandum of understanding that governs the conduct by DOJ of most of EPA's civil litigation, DOJ then has 60 days to file a case referred to it by EPA before it must explain the reasons [14 ELR 10065] for its delayed action. And it can take no action for another 90 days before EPA may assume DOJ has declined to file the case and EPA attorneys may do so.¹³ These bureaucratic delays are compounded under the Safe Drinking Water Act (SDWA), whose federal enforcement authority is so structured that EPA could not take enforcement action within 60 days after receiving notice of citizen suit even if it had surmounted all of these problems.¹⁴

The exceptions to the notice requirement do not form a coherent pattern consistent with the purpose of notice. Exceptions for emergencies or for imminent threats to health or safety, as contained in Endangered Species Act (ESA) § 11(g), Surface Mining Control and Reclamation Act (SMCRA) § 520, and Outer Continental Shelf Lands Act (OSCLA) § 23, are not antagonistic to that purpose.Violations of hazardous or toxic pollutant standards, which allow avoidance of the notice requirement under Clean Air Act § 304 and Clean Water Act § 505, might be thought to create an imminent threat, but often will not. And no imminent threat is likely to follow from most violations of the Resource Conservation and Recovery Act's (RCRA's) Subtitle C regulations, Clean Water Act new source performance standards, or Clean Air Act administrative orders, all of which are exempted from the notice requirement. Thus the notice requirements do not, indeed cannot, serve their intended purpose of sparing the courts and triggering federal enforcement, and some of the requirements contain exceptions which are antagonistic to those purposes.

At the same time, the notice requirements have the potential to interfere substantially with the effective use of the citizen suit sections. If, for instance, the plaintiff seeks to enjoin an emergency situation about to occur as a result of the violation of one of the statutes, he cannot file suit until 60 days after notice unless the case fits one of the narrow exceptions. The harm sought to be enjoined may have occurred before the passage of the 60-day period. In other situations, the defendant may change its position during the 60-day period in reliance on government representations that its actions are legal. Even if the government is proven wrong during the course of a citizen suit, that shift of position may affect the balance of equities for the purpose of framing an injunction. If these circumstances occur where the government has already announced its intentions not to enforce or where the prospective defendant or the government conceals the alleged violation to gain time, frustration is added to futility.

* Judicial Application. Some courts have treated the 60-day notice requirement as jurisdictional. On group has woodenly applied the requirement and automatically dismissed cases where 60 days notice has not been provided.¹⁵ Others also have dismissed cases, but with lengthy, although not altogether persuasive, explanations.¹⁶ Perhaps the most persuasive case for automatic dismissal of actions not strictly adhering to the 60-day notice requirement is made in a student note that carefully analyzes the legislative history of § 304 of the Clean Air Act to conclude that the purpose of the notice requirement is reflected in its clear wording, which cannot fairly be read to require anything short of a full 60-day notice period before filing a complaint.¹⁷

But most courts try to avoid strict adherence to the 60-day notice requirement. The deficiencies in the requirement discussed above may underly this inclination, but they are never articulated in the opinions. Instead the courts treat strict adherence to the requirement as irrational formalism, rely on another jurisdictional base not requiring prior notice, or find substantial compliance under the circumstances of the case.

The Third Circuit is the leading proponent of the irrational formalism school, reasoning that it is senseless and [14 ELR 10066] a poor use of judicial resources to dismiss a case for failure to adhere to the 60-day notice requirement, because the plaintiff may then give notice properly and refile the case 60 days later. This reasoning has been adopted by courts beyond the Third Circuit. The Third Circuit prefers the practice of treating the complaint as a notice and allowing the case to proceed if the government has not taken enforcement action in 60 days.¹⁸ Other courts have found that the savings clauses of the citizen suit sections preserve jurisdiction under 28 U.S.C. § 1331 and other general grants of jurisdiction requiring no prior notice.¹⁹ This rationale not only obviates the 60-day notice requirement but robs the citizen suit provisions of any vitality.²⁰ The Supreme Court has held, however, that the citizen suit sections of the Clean Water Act and Marine Protection, Research, and Sanctuaries Act (MPRSA) eliminate use of general grants of jurisdiction for violations of those statutes.²¹ There is little doubt the same reasoning applies to the other environmental statutes.²²

Courts have found constructive or substantial compliance with the 60-day notice requirement under a broad range of circumstances. Notification of appropriate officials of all defendants, but not the particular officials specified in EPA's regulations, has been held to be substantial compliance.²³ Notification of the government defendant's attorney rather that the government defendant also has been held to be substantial compliance.²⁴ Failure to list one of the defendants on the notice, when its chief officer nevertheless was served a copy, did not invalidate the notice.²⁵ Failure to satisfy the letter of EPA's notification regulations, promulgated after notice was given, did not invalidate notice when defendants were fairly warned.²⁶ Where EPA was notified it would be sued to require it to resume federal enforcement of the Ohio national pollutant discharge elimination system (NPDES) permit program under § 402 of the Clean Water Act,²⁷ because of Ohio's alleged failures in administration and enforcement of the program, the notice sustained a complaint that also asked that EPA be ordered to commence proceedings to revoke approval of Ohio's program. The court found the "notice fairly informs the defendant of the nature of its complaint even though the plaintiff has new expanded the scope of the relief which it seeks."²⁸ But notification of the defendant that plaintiff intended to sue to prevent construction of a specified dam was held not to be substantial compliance as to part of the complaint filed to prevent construction of two other dams.²⁹ Actual notice of intent to sue was held to satisfy the requirement, especially when the government indicated that notice was irrelevant because its position was clear and not affected by the threat of suit.³⁰ Other courts, in dismissing suits filed with no notice or insufficient notice, have left the door open to consider constructive notice.³¹

In addition to validating technical defects in actual notice of 60 days duration, the substantial compliance concept has also been used to justify proceeding with cases where less than 60 days notice was given³² or no notice was given at all.³³ This application is a perversion of the [14 ELR 10067] notice concept and disregards the statutory requirements.

There are inherent conflicts between strict application of the notice requirement and the realities of litigation. Few lawyers will devote protracted attention at the notice stage to digging out all relevant facts and all possible legal theories. This will not normally be done until it is known that the notice has not had its intended effect and litigation is necessary. When this work is finally done, the complaint may vary from the notice, containing somewhat different legal theories or new facts. Indeed, the facts may have changed during the notice period. Should a new notice be required before suit is filed? If so, suit may be indefinitely postponed by a series of new notices, particularly if the continuing differences result from changing facts. This would unduly inhibit citizen suits.³⁴ A variant of the question is whether another notice is required before a plaintiff can amend its complaint to add a new cause of action unearthed by discovery or otherwise.It would seem axiomatic that once suit is filed, the normal rules of civil procedure prevail, but the only court to consider the issues ruled to the contrary.³⁵

For all its problems, prior notice was deliberately made a prerequisite to suit by Congress as an act of political compromise to secure enactment of the citizen suit sections. As such, it should be viewed as a jurisdictional requirement. The Supreme Court has hinted in dicta that it would do so, noting that "Plaintiffs invoking these provisions first must comply with specified procedures … including in most cases 60 days' prior notice to potential defendants."³⁶ Some may read "in most cases" to allow avoidance of the 60-day requirement in egregious circumstances. The better reading, however, is that the cases where the requirement is avoided are those specifically exempted by the provisions themselves. Treating the requirement as jurisdictional means strict adherence to the time period specified, but allows some flexibility in interpreting what constitutes satisfactory notice, particularly in the absence of implementing regulations. Thus, the concept of constructive or substantial compliance is appropriate to avoid harsh results from inconsequential defects in actual notice of 60 days duration but not from the failure to give a full 60 days notice. A hard case is where less than 60 days notice is given because the defendant has acted illegally to conceal its actions from plaintiff to make 60 days notice impossible if the complained of action is to be enjoined and where it is also clear that notice will not prompt the desired government action.³⁷

The notice requirement is not without value. It does serve to avoid needless litigation by alerting the prospective defendant, allowing it to avoid suit by either complying with the violated requirement, convincing the complainants that suit is not warranted, or reaching an early settlement. The disparity between the number of notices and the number of cases filed indicates that this winnowing out of unnecessary cases does take place during the 60-day period.³⁸ It should be noted that in the passage cited above³⁹ the Supreme Court attempted to reformulate the notice requirement from one requiring notice to the implementing agencies and the potential defendants to one requiring "prior notice to potential defendants." This may reflect the Court's recognition that the notice requirement does not serve the intended purpose of prompting enforcement by the government but may serve other purposes by goading the alleged violator into action. But unless the Court can rewrite legislaitve history, there is not a hint in it that the legislative purpose of the notice requirement was other than prompting government enforcement.⁴⁰

Although the notice provision is in many ways a troublesome and cumbersome requirement, it does produce some useful results. And, because the provision was the result of a political compromise, the chance of deleting it is slim. A minor change, however, would be useful. Suit should be allowed without notice to restrain an event that would otherwise occur before the expiration of the 60-day notice period, as long as the need for immediate filing is not a result of the plaintiffs' dilatoriness. In addition, if courts begin to abandon the notion of substantial or constructive compliance, the provisions should be amended to make it clear that if timely notice is in fact given and is sufficient to alert the implementing agency to the violation, technical defects in the notice should not lead to dismissal of the suit.

Timely and Diligent Government Enforcement

Since the purpose of the notice requirement is to encourage [14 ELR 10068] government enforcement, it is no surprise that the sections bar a citizen suit if the federal or state implementing agency has commenced and is diligently prosecuting a civil action in court to "require compliance" with the violated requirement. The failure of the sections to indicate that the bar only applies when the government enforces against the alleged violator who was the object of the citizen suit notice leaves the door open to sophistic arguments. If the requirement allegedly violated was one of universal applicability, e.g., a regulation rather than a permit, a defendant could argue that a government suit against another defendant to enforce the same requirement raises the bar against citizen suits to enforce that requirement against others. That conclusion is so contrary to obvious legislative intent as to fall of its own weight.

* Criminal Bars. There are significant additions to the basic bar under some of the statutes. Clean Water Act § 505, RCRA § 7002, ESA § 11(g),and MPRSA § 105(g) also bar citizen suits if a criminal action has been commenced and is diligently prosecuted. MPRSA § 105(g) and ESA § 11(g) bar suits if administrative civil penalty assessment proceedings have been initiated. Toxic Substances Control Act (TSCA) § 20 bars citizen suits if administrative compliance proceedings have been initiated. And MPRSA § 105(g) bars suits if permit revocation or suspension hearings have been commenced. These variants are in some respects inconsistent with the intent and wording of the citizen suit sections. The variants aside, the deference to state enforcement interferes with the full enjoyment of the jurisdiction granted by the sections. And there remain questions whether a government enforcement action that a defendant attempts to use as a shield in a citizen suit case is being diligently prosecuted and is being prosecuted in a court.

The criminal prosecution bars to citizen suit are curious additions and are antagonistic to the intent of the sections. Criminal prosecutions are brought to punish past violations, not to secure injunctions to prevent future violations. But citizen suits are authorized to seek injunctions to prevent future violations, not to punish for past violations. The two are not redundant or incompatible. Should a five-year old criminal prosecution for a one-day violation forever bar citizen suit to assure future compliance when the violation persists or recurs?⁴¹

The wording of some of the sections compounds the basic irrationality of the criminal prosecution bar. In Clean Water Act § 505(b)(1)(B) and RCRA § 7002(b)(1)(B), the bar attaches with a "criminal action … to require compliance." Applied literally this would never amount to a bar since no criminal action seeks to require compliance, but only seeks to punish for past noncompliance. A basic feature of the citizen suit sections is an antidote to the bar: citizens may intervene by right in the government action which triggers the bar. Did Congress really intend to allow private citizens to act with the United States Attorney as co-counsel in criminal prosecutions under the Clean Water Act, RCRA, ESA, and MPRSA? The only context in which the criminal prosecution bar to citizen suit appears reasonable is under Clean Water Act § 505 and there only to the extent that the suit seeks penalties for the past violations which are the subject of the criminal prosecution.⁴² These bars should be eliminated.

MPRSA § 105(g) and ESA § 11(g) bar citizen suits if administrative civil penalty proceedings have been initiated and are being diligently prosecuted. Since such proceedings only punish isolated instances of past noncompliance,⁴³ they share the same infirmities as the criminal action bar. They too should be eliminated.

* Federal or State Proceedings. Except for SDWA § 1449, the citizen suit sections of all the environmental statutes with state roles bar citizen suits if the federal government has commenced a civil suit in either federal or state court or the state government has commenced a civil suit in state or federal court. Giving similar treatment to governmental suits in all four of these situations appears a nice bit of federalist symmetry. It is, however, a hollow gesture which, if it has real meaning, is to the detriment of the intent and spirit of the citizen suit provisions. State governments may and do commence civil enforcement actions in both state and federal courts utilizing the jurisdiction of the provisions to enforce the federal statutes in federal court and pendent jurisdiction to enforce state law. But where is the reciprocity? Few states have citizen suit provisions that the federal government can utilize to gain entry to state courts.⁴⁴ Even if state courts accorded jurisdiction to the federal government, they have no jurisdiction to enforce the federal environmental statutes. That jurisdiction is conferred by the statutes on federal courts. Even if these hurdles were surmounted, few federal prosecutors would voluntarily subject themselves to the jurisdiction of state courts. The one temptation to do so might be the hope of escaping intervention by citizens. As discussed below, the statutes confer on citizens the right to intervene in actions commenced in federal courts, but do not attempt to do so for actions commenced in state courts. Indeed, Congress has no more power to require state courts to allow intervention by citizens in environmental enforcement cases than it does to require them to adopt the Federal Rules of Civil Procedure.⁴⁵ SDWA § 1449 avoids this potential temptation by barring citizen suits only if federal or state enforcement actions are commenced in federal court. The omission of a bar from enforcement action in state court is entirely out of character [14 ELR 10069] for SDWA, which is more oriented toward state implementation than any of the other statutes.

* Action in court. The final questions regarding the prior enforcement bar to citizen suits relate to what constitutes commencement and diligent prosecution of an action in a federal or state court. A number of defendants have attempted to equate state administrative actions with state court actions. They are aided in this by some very fuzzy legislative history to Clean Air Act § 304. In Senate debates on § 304, Senator Muskie stated that the purpose of the notice requirement was to "trigger administrative action." He thought that citizens would be satisfied if they could "trigger such administrative action" and that "where enforcement was not triggered, that is, enforcement action by the administrative agency was not triggered, then it seemed to us the citizen ought to be able to pursue the judicial remedy."⁴⁶ It is unclear whether he meant the initiation of administrative enforcement proceedings, judicial enforcement proceedings by an administrative agency, or both. Although the Senate committee report is ambiguous as well, it is less so.⁴⁷ And the conference committee report is not at all in doubt: "If an abatement action is pending and is being diligently pursued in a United States or State court, such [citizen suit] action cannot be commenced but any party in interest may intervene as a matter of right."⁴⁸

The Third Circuit was the first court to consider the question. In Baughman v. Bradford Coal Co.,⁴⁹ it held that administrative enforcement bodies should be considered "court[s]" for the purpose of the citizen suit sections if the "powers and characteristics" of those bodies "make such a classification necessary to achieve statutory goals." From the legislative history, it deduced that the purpose of the sections was to secure effective enforcement but that Congress, concerned that their use might clog the courts, included the notice and bar mechanisms to prevent that result. If administrative enforcement authority is comparable to judicial authority, it can achieve the statutory goal of effective enforcement and address the congressional concern of not clogging the courts. To determine whether administrative authority was comparable to judicial authority in a suit brought under Clean Air Act § 304, the court compared state administrative authority to the civil authority conferred on federal courts in Clean Air Act § 113. That authority is to mandate compliance by injunction, to assess civil penalties of up to $25,000 per day of violation, and to permit citizens to intervene by right. The Third Circuit found the authority of the administrative agency at issue, the Pennsylvania Environmental Hearing Board, to fall short of this benchmark. The Board had no authority to enjoin violations, could assess penalties only up to $10,000 per violation plus $2,500 per day of violation, and lacked authority to permit citizen intervention by right.⁵⁰

In Gardeski v. Colonial Sand & Stone Co.,⁵¹ Judge Sofaer followed the holding in Baughman v. Bradford Coal Co. and, finding that the New York Department of Environmental Conservation (DEC) had injunctive authority, held that its enforcement proceedings were "court" proceedings for the purposes of Clean Air Act § 304. He further held, however, that the administrative proceedings at issue did not bar the citizen suit because they had not been diligently prosecuted. See also Love v. New York State Department of Environmental Conservation,⁵² in which the court appears to have assumed, with no analysis, that New York DEC proceedings are court proceedings. But it found the administrative consent order at issue no bar to the suit, because citizen plaintiffs had no opportunity to intervene in the proceedings leading up to the order, the order did not address all the violations alleged by the citizens, and the DEC did not diligently enforce the order.Finally, in Sierra Club v. SCM Corp.,⁵³ another district court held that a consent order entered by the New York DEC did not bar a citizen suit because citizens had been afforded no opportunity to intervene in the proceedings resulting in the order. The holding is a curious one, coming in a section entitled "Diligent Prosecution," which does not address diligent prosecution or whether DEC proceedings are court proceedings.

The reasoning and conclusions of these cases are troubling. The Third Circuit in Baughman v. Bradford Coal Co. developed a logical comparison to determine whether administrative proceedings were court proceedings for the purposes of Clean Air Act § 304. Did the administrative agency have the same powers to enforce the Act as do federal courts: power to issue injunctions, power to assess penalties of up to $25,000 per day of violation, and power to permit citizen intervention by right? But in finding the Pennsylvania Environmental Hearing Board lacked all three authorities, it overlooked the fact that the Pennsylvania administrative agencies have what might be termed, and what Judge Sofaer later held to be, injunctive powers. Indeed, the administrative order at issue contained both penalties and an "injunctive" requirement to comply with the Clean Air Act by construction of a new, complying facility and closure of the existing, noncomplying facility by a date certain.⁵⁴ The court [14 ELR 10070] apparently looked no further than the statutory section cited in the administrative order, a section authorizing the assessment of penalties. The court ignored other sections conferring "administrative injunctive" authority.⁵⁵ In Gardeski, Judge Sofaer held that the New York DEC had the injunctive authority that the Pennsylvania agencies lacked. In fact, the authorities of the New York and Pennsylvania agencies are very similar and, if anything, Pennsylvania's is stronger than New York's.⁵⁶ Moreover, the opinion seriously overstates the powers of the New York DEC, e.g., "DEC also has the power to impose civil penalties … DEC may impose criminal penalties."⁵⁷ The sections cited to support these propositions, however, only authorize the DEC to request the Attorney General to institute court proceedings for the imposition of civil or criminal sanctions.⁵⁸ In addition, the opinion never addresses the other two legs of the Baughman v. Bradford Coal Co. test: the amount of penalties that can be assessed and citizen intervention by right. The Sierra Club and Love opinions sidestep much of the equivalent authority analysis and focus largely on intervention and diligent prosecution.

These cases' precedential value on whether administrative enforcement bars citizen suits is limited. All four decisions hold or assume that administrative action may be considered court action for the purposes of the citizen suit sections, but all four also hold that the administrative actions at issue do not bar citizen suits. None of the opinions considers all of the pertinent legislative history. None looks to what can be learned from citizen suit sections in other statutes.

Developments in administrative law have undoubtedly blurred the distinction between courts and administrative agencies. Some of the bureaucrats in the latter are even called Administrative Law Judges and Judicial Officers. Nonetheless, administrative agencies are not courts and, with articulated exceptions, the bar is invoked only by court action. If Sen. Muskie was not entirely clear on the issue, other legislative history was more so.⁵⁹ A comparison of the sections makes it clear that Congress, despite Sen. Muskie's initial fuzziness, used the word "court" advisedly. It not only created a bar when civil enforcement action is commenced in federal and state courts, it extended the bar to apply when a number of specific federal administrative actions have been commenced.⁶⁰ Its ability to differentiate between judicial and administrative actions and to pick and choose among the various types of administrative actions that bar citizen suits is thereby definitely demonstrated. It did not choose to bar citizen suits because of the commencement and diligent prosecution of the vast majority of possible federal administrative enforcement actions or of any state administrative enforcement action. Courts should therefore avoid inquiring whether administrative agencies are courts or are invested with judicial power. The strong presumption for the purposes of the citizen suit sections must be that they are not.

* Diligent Prosecution. The Gardeski opinion considers the question of diligent prosecution, although in the unfortunate context of an administrative action. In that case a consent order had very quickly been entered with penalties for violating the order. But the order was almost immediately violated and not enforced for two years, the state preferring to seek "voluntary" compliance. The court held this not to be diligent prosecution. The court in the SCN case commented favorably on this aspect of the Gardeski opinion.⁶¹ The SCN court views a consent order as ordinarily constituting commencement and diligent prosecution of an action. But failure to monitor compliance with the order or to enforce against noncompliance with the order or new violations of the underlying statute, regulation, or permit would rebut this presumption. The Love decision reflects similar judicial concern that only active enforcement bars citizen suits. Being zealous managers of their dockets, courts are likely to be very good judges of what constitutes diligent prosecution.

As an interesting post note, the state argued in Gardeski that the citizens suit would interfere with its enforcement program.The unfounded arrogance of regulatory agencies and their ineffectiveness in enforcement led to the emphasis on citizen participation, including citizen suit provisions, in environmental legislation. The state's argument in this case displayed the same arrogance, just as its protracted failure to enforce its own order displayed [14 ELR 10071] the same ineffectiveness. The court responded to the argument with candor: "Complete deference to agency enforcement strategy, adopted and implemented internally and beyond public control, requires a degree of faith in bureaucratic energy and effectiveness that would be alien to common experience."⁶² The court found the argument without merit in any event. There was no interference with the state's policy: it could continue to pursue whatever course it chose. If it had not enforced its order, the likely cause was its conclusion that its resources were better employed elsewhere. Why should it complain if another stepped in with the resources to fill the void?

Intervention

Rights of Intervention

The antidote to barring citizen suits when government enforcement action is taken is to permit citizen intervention in the government action. All of the environmental statutes permit intervention by right in civil actions filed in federal court, except MPRSA § 105(g) and ESA § 11(g). Clean Water Act § 505, RCRA § 7002, and Deepwater Port Act (DPA) § 16 appear to permit intervention in criminal action filed in federal courts. In addition, TSCA § 20 permits intervention in administrative enforcement proceedings. Conversely, all citizen suit sections permit the United States to intervene by right in a citizen suit. The intervention provisions are supplemented by an order of the Attorney General establishing Department of Justice policy to provide an opportunity for public comment on proposed consent decrees for injunctive relief regarding pollution control. Prior to submittal of a consent decree to the court for approval, DOJ will consider and file with the court, together with the government's response, such comments as are submitted. Moreover, DOJ reserves the right to withdraw from the consent decree as a result of comments submitted.⁶³

Alternative rights of intervention are found in EPA regulations that forbid approval of state Clean Water Act §§ 402 and 404, RCRA § 3005 and SDWA § 1422 permit programs unless the state permits intervention by right in civil and administrative enforcement proceedings or provides other citizen participation in enforcement.⁶⁴ These regulations were promulgated as a result of judicial reversal of EPA's approval of the Illinois water pollution permit program because it lacked provision for public participation in state enforcement.⁶⁵ While the decision is questionable on the merits,⁶⁶ it does illustrate a potential tension in the environmental statutes between the policy of state implementation and the policy of citizen participation, a potential which becomes actual when a state desires to implement a program but does not share the policy of citizen participation. Because state implementation is more basic to the federalist bureaucratic system than citizen participation, it can be expected to prevail in the long run in the event of a protracted conflict. Indeed, EPA is less than zealous in disapproving state programs which do not comply with its requirements.⁶⁷

Rule 24 of the Federal Rules of Civil Procedure governs intervention in federal civil actions. Where intervention is authorized by citizen suit sections, it is by right under Rule 24(a).⁶⁸ Where intervention is not specifically [14 ELR 10072] authorized by statute, it may still be granted by right under Rule 24(a) if the potential intervenor has an interest in "property or transaction" at issue, disposition of the litigation may impair his ability to protect that interest, and that interest is not already adequately represented. In addition, intervention may be granted in the court's discretion under Rule 24(b) if issues of law or fact are common to the case at bar and the potential intervenor's claim. Environmental groups have been allowed to intervene under Rule 24(b) to protect their views of the interpretation of the federal environmental laws.⁶⁹ If intervention is not authorized by statute, environmental parties are not accorded intervention by right under Rule 24(a), simply because they seek to protect environmental interests or to enforce environmental laws. They must rely instead on less certain permissive intervention under Rule 24(b).⁷⁰

Limits on Intervention

Even where intervention is authorized by a citizen suit section, intervention is not automatic. The requirements for intervention in both the citizen suit sections and Rule 24(a) must still be met. Under the citizen suit sections, intervention is only authorized in enforcement actions prosecuted by the government, not in actions brought against the government.⁷¹ Under Rule 24(a), the intervenor must have standing and intervention must be timely. The same rules of standing apply to intervenors under the citizen suit sections as apply to plaintiffs under the sections.⁷²

Wright and Miller comment that timeliness is inherently a flexible concept that must be left to the discretion of the courts, and suggest it should be liberally applied to intervention by right to prevent serious harm to intervenors.⁷³ Ordinarily, the most important factors weighing against timeliness are prejudice to the existing parties and delay in the conclusion of litigation. The latter leads to special reluctance to allow intervention after judgment.⁷⁴ These factors are reflected in cases decided under the citizen suit provisions. Environmental cases are especially complicated in this regard by the federal government's practice of frequently filing complaints in civil environmental cases simultaneously or nearly simultaneously with a proposed consent decree. This could seriously constrict the right to intervene and the scope of intervention, potentially precluding the intervenor from the possibility both of discovery of and participation in the negotiations leading to settlement. The government has argued that citizens are adequately protected by the DOJ policy of noticing proposed consent decrees prior to entry.⁷⁵ This, of course, cures none of the constrictions noted. Courts have been aware of this dilemma, and have consistently allowed intervention at the "eleventh-hour" despite objections based on timeliness.⁷⁶ And they have accorded intervenors their procedural rights, despite resulting inconvenience to the other parties, who thought they had a settlement.⁷⁷ As one court commented, intervention was created by Congress

in recognition of the fact that the agencies involved might not always prosecute to the fullest extent possible or protect all interests. It would seem to be a frustration of the clear intent of Congress to allow a complaint and consent decree to be simultaneously filed with the consent decree to become effective at an early date and then object to intervention on the basis of timeliness. In this manner the citizen intervention provision could be rendered nugatory.⁷⁸

The solution is clear: the government should file the suit first and then proceed with litigation and/or settlement discussions, assuring an opportunity for intervention before the eleventh hour.⁷⁹

The Scope of Citizen Suit Intervention Provisions

A cluster of issues revolves around the lack of specificity in the intervention provisions. The wording of Clean Air Act § 304(b)(1)(B) is typical: "in any such action in a court of the United States any person may intervene as a matter of right." What is "such action" in which a citizen may intervene? It could be: (1) any government civil [14 ELR 10073] action to enforce the provisions of the statute; (2) a government civil action, filed after a notice of citizen suit, to enforce the provision of the statute alleged in the notice to have been violated, against the defendant alleged in the notice to have violated the provision; or (3) a government civil action, filed after a notice of citizen suit, to enforce the provision of the statute alleged in the notice to have been violated by any defendant. Who is the "any person" who may intervene? It could be the person giving notice of citizen suit, or any person whether or not showing a previous interest in the violation. How may a person intervene? It could be as a co-plaintiff enforcer with the government, or as a sympathetic co-defendant. Legislative history does not address any of these issues. But the intervention provisions were to prevent the exclusion from the enforcement process of those giving notice of citizen suits who are subsequently barred from filing the citizen actions because of government civil enforcement actions. This suggests that intervention should be limited to persons giving notice of citizen suits as co-plaintiff enforcers in government civil actions against defendants named in the notice for violations alleged in the notices.

The only courts to explicitly address any of these issues have held that intervention is limited to plaintiff intervenors, co-enforcing with the government and may not be in aid of the defendant.⁸⁰ While this is in conformity with the logic of the section, it is contrary to the plain wording of the provision. The provision does not contain any restriction on which side of the case an intervenor may appear. Moreover, the section requires a "plaintiff" to provide prior notice of suit, but permits "any person" to intervene. This juxtaposition indicates that Congress was aware of the difference between plaintiffs and other parties to a suit and could easily have limited intervention to plaintiff intervenors if it so chose.

In a similar vein, the plain wording of the statute suggests that intervention is permitted by any person, not just those giving notice of citizen suit. But the plain wording also may restrict the cases in which intervention is permitted. Intervention is permitted "in any such action," which refers to "a civil action … to require compliance with the standard, limitation, or order," which in turn refers to the standard, limitation or order alleged to be violated in the notice of violation. Interpreting this to permit intervention in an action enforcing a standard alleged to have been violated against a defendant other than that named in the notice while literally possible, would be wholly irrational. Thus the wording of the citizen suit provisions suggests that intervention may be by (1) any person, (2) on any side of the case, (3) in a government civil action filed after notice of citizen suit to enforce the provision alleged to have been violated against the defendant alleged to have violated the provision. It is doubtful that this is precisely what Congress envisioned when it authorized citizen suits and intervention because it does not coincide with the purpose of citizen suits as a whole or of the apparent purposes of citizen intervention. The provision in citizen suits authorizing intervention is in need of careful amendment.

Expanding Rights of Intervention

Where commencement of a citizen suit is barred by enforcement other than by a suit filed by the government in federal court, i.e., by a federal administrative action or a state judicial action, further citizen participation by intervention is thwarted except under TSCA § 20. This is antagonistic to the purpose behind citizen suits and intervention and could be easily cured when the action barring citizen suit is federal administrative enforcement.The provisions could grant intervention by right in both federal administrative and judicial proceedings as TSCA § 20 does. Of course, the federal agencies also could grant intervention in such proceedings in their regulations. A more difficult impediment to intervention is the bar to citizen suit by an action filed in state court. The federal government is unlikely to file an action in state court solely to avoid citizen intervention, but this possibility could be avoided with a few strokes of the congressional pen.⁸¹ But when state actions are filed in state courts, intervention is governed by state law and the possible thwarting of further citizen participation in enforcement is only partially curable. Where the federal statute calls for approval of state programs, one condition for approval could be intervention by right in state enforcement actions.⁸² Alternatively, the provisions could bar citizen suits in federal courts because of the pendency of state court actions only if intervention is granted by right in the state court system or was in fact granted in the particular state case.⁸³

[14 ELR 10074]

Bonds and Other Security

Six of the 11 citizen suit sections have identical provisions that the "Court may, if a temporary restraining order or preliminary injunction is sought, require the filing of a bond or equivalent security in accordance with the Federal Rules of Civil Procedure."⁸⁴ There is no legislative history to explain why the provision does not appear in the other statutes. Indeed, there is no legislative history illuminating the provision. It probably was included in Clean Air Act § 304 as part of a package to mollify critics of citizen suits who feared they would flood the courts with ill-founded cases. If so, even a cursory analysis reveals it to be a hollow gesture. Rule 65(c) of the Federal Rules of Civil Procedure already provides that no temporary restraining order or preliminary injunction may issue without posting by the applicant of such security as the court deems sufficient to cover the defendant's costs and damages if the order or injunction is ultimately found to have been wrongfully granted. Under Rule 65(c), no security can be required of the United States. If anything, the citizen suit security provision weakens Rule 65(c), making the requirement of security as well as the amount of security, discretionary.

Rule 65(c) on its face is a mandatory requirement for security and is usually so interpreted.⁸⁵ Its purpose is clearly to protect the restrained party from damages caused by a wrongfully issued order or injunction, for in the absence of security, such damages are not recoverable unless the suit was maliciously pursued, without good cause.⁸⁶

But courts do not always hold that security is mandatory under Rule 65(c). During the 1970s they developed a narrow exemption to allow indigents and public interest groups, without posting security, to seek injunctive relief requiring the government to properly administer public programs.⁸⁷ The reasoning was clear: Congress had granted rights or other benefits to the plaintiff classes which could not effectively be pursued if security had to be posted. Over time, the exemption was extended to indigent and non-indigent plaintiffs in "noncommercial" cases against private parties, particularly where the plaintiffs sought to enforce rights or other benefits conferred by federal statute.⁸⁸ The reasoning was the same. In these cases courts have balanced the potential damage to defendants against the strength of the plaintiffs' case and their ability to vindicate their legal rights if required to post bond. Citizen suits under the environmental statutes clearly fit the rationale of the basic exemption for suits against the government and of the expanded exemption for "noncommercial" suits against private parties. The discretionary nature of the security provision in the citizen suit sections strengthens this conclusion. Indeed, private defendants can hardly complain if they are denied security in a citizen suit case. Plaintiffs in such cases are merely surrogate attorneys general, enforcing federal law in the absence of government enforcement. If the government had enforced, the private defendants would have been barred from receiving security by Rule 65(c).

If security is required in citizen suits, courts have considerable discretion in establishing the amount of security. They clearly may require no security where defendant is unlikely to suffer damages.⁸⁹ But courts also have used this discretion to require only nominal security by citizen suit plaintiffs, often as little as $1.00.⁹⁰

Security should not be allowed in citizen suits for potential damage to third parties not covered by the order sought in the suit. Damages that may result from a restraining order or preliminary injunction can fall not only on the restrained or enjoined party, but also on third parties.The third parties may be either specific and identified or broad classes of unidentified parties. Third party damages often occur when suit is brought to compel the government to regulate under an environmental statute or to regulate in a new way. The affected third parties, i.e., those newly regulated, may or may not intervene. Either the government or the intervenors may seek security to protect the third parties. Security should be granted in neither case. Rule 65(c) requires security only "for payment of such costs and damages as may be incurred or suffered by any party who is found to have been wrongfully … restrained." (Emphasis added). Quite simply, the private parties are not those restrained in this situation and are not entitled to security under the Rule.⁹¹

[14 ELR 10075]

Remedies

The citizen suit sections deal with remedies only in passing. Under MPRSA § 105(g) and ESA § 11(g), citizens are authorized to bring actions "to enjoin" violations and courts are granted jurisdiction "to enforce" the requirements alleged to be violated. Citizens are authorized to bring actions "to restrain" violations under OSCLA § 23 and TSCA § 20 and "to compel compliance" with the statute under SMCRA § 520, but none of these three sections explicitly addresses the powers of courts. Under Clean Air Act § 304, Clean Water Act § 505, SDWA § 1449, RCRA § 7002 and DPA § 16, courts are granted jurisdiction "to enforce" the requirements alleged to be violated and under the Noise Control Act (NCA) § 12 they are granted jurisdiction "to restrain" violations, but none of these six sections explicitly addresses the type of action citizens may bring.

Injunctions

The primary remedy available under the sections is injunctive. The content of injunctions and the standards on which they are issued should not depend on whether the plaintiff is a citizen enforcer or the designated government enforcement agency. This is clear from the legislative history,⁹² is recognized by the courts,⁹³ and is necessary for the proper implementation of the statutes. If citizen enforcers had access to lesser injunctive remedies than government enforcers or were subject to greater burdens to obtain injunctive remedies, citizen suit provisions would not perform their intended functions. Citizen plaintiffs would not be real private attorneys general. Indeed, it would be highly advantageous for violating polluters to be enforced against by citizen enforcers rather than by the government, particularly if the government is subsequently bound by the result of the citizen suit.

* Common Law Background. There is not a developed body of case law on the use of injunctions in citizen suits. To understand that use, an examination must be made of the role played by injunction in environmental enforcement generally. In addition, an examination must be made of the impact that providing injunctive relief by statute has on several common issues regarding injunctions generally.

As administered by courts in equity, the granting of injunctive relief involves great judicial discretion. To secure an injunction the plaintiff generally must show that it is threatened by an injury without an adequate remedy at law. Decisions on requests for injunctions generally turn on balancing the equities: the hardship on the defendant if the injunction is granted against the hardship on the plaintiff if it is denied. Public policy and the good faith of the parties are also factors to be weighed in the balance.

Citizen suit plaintiffs can gain a wider range of injunctive relief than was available in equity courts. Equity courts expressed reluctance to issue injunctions which are mandatory rather than prohibitory, which enjoin the commission of a crime, or which are difficult to enforce. Some of these general principles have undergone considerable erosion. The reluctance of courts in equity to act where there is a remedy at law has diminished since the merger of law and equity. This, together with a growing awareness of the limitations of criminal sanctions, has reduced the reluctance to enjoin violations of a statute, particularly in a nuisance or regulatory context.⁹⁴ Statutes prescribing injunctive relief to enforce their requirements reverse the common law tenets that equity is not available where there is an adequate remedy at law and that it will not enjoin the commission of a crime. The extent to which such changes affect the manner in which a court balances equities in fashioning a remedy, however, remains uncertain.

At common law injunctions generally are not available to restrain violation of a criminal statute.⁹⁵ This follows both from the concept that equity is not available when there is an adequate remedy at law and that criminal defendants are entitled to a trial by jury and other procedural safeguards.⁹⁶ At the same time, the fact that an act creating a nuisance is illegal does not preclude an injunction restraining the nuisance. As discussed at some length by the Supreme Court in In re Debs,⁹⁷ this exception has developed considerable force with regard to restraining the obstruction of public highways and waterways. Thus it is not surprising that the court in United States v. Republic Steel Corp.⁹⁸ found injunctive relief available to require removal of pollutants obstructing navigation under §§ 10 and 13 of the Rivers and Harbors Act of 1899 (the "Refuse Act"), although only criminal remedies were provided for violations of § 13 and the injunctive relief provided for § 10 did not fit the facts of the case. Following this lead, courts soon fashioned injunctive relief under these sections to enjoin the discharge of [14 ELR 10076] pollutants⁹⁹ and a nascent EPA relied on such injunctive power to fashion a water pollution abatement program¹⁰⁰ prior to enactment of the Federal Water Pollution Control Amendments of 1972 with their sophisticated NPDES permit and enforcement program. The avoidance of the old common law prohibition against enjoining the commission of a crime was particularly important to establish for the enforcement of the environmental statutes, because most violations of those statutes are both civil and criminal offenses. Strict application of the common law principle would effectively foreclose injunctive enforcement.

* Prohibitory Mandatory Injunctions. The differences in the wording of the various citizen suit provisions on relief raise the question of whether there are substantive differences as well. The main arguable difference is that authorization "to restrain" violations may justify only prohibitory injunctions, whereas authorization "to compel compliance" or "to enforce" the statutes support mandatory injunctions. Prohibitory injunctions merely prohibit specific conduct, e.g., do not discharge effluent in violation of permit conditions, while mandatory injunctions order positive action, e.g., construct treatment facilities by a date certain to treat effluent to meet permit conditions.

The argument that the citizen suit sections which authorize actions "to restrain" violations support only prohibitory injunctions is strengthened by the fact that statutes containing those sections llso authorize the government only to seek injunctions "to restrain" violations, e.g., NCA §§ 11(c) and 12(a). Other statutes allow both citizens and the government "to enforce" or "to enforce compliance," e.g., Clean Water Act §§ 505(a) and 309(b). Because courts traditionally have regarded mandatory injunctions as more drastic remedies than prohibitory injunctions, they may be reluctant to issue mandatory injunctions without clear statutory authority. A number of considerations cut against this, however. In cases under environmental statutes, prohibitory injunctions in fact will be more drastic remedies than mandatory injunctions if their effect is to require the immediate cessation of commercial, manufacturing, or other productive operation rather than allowing those operations to continue while solving pollution control problems on a court-ordered schedule.¹⁰¹ Moreover, the distinction between mandatory and prohibitory injunctions can be overcome by issuing an order to prohibit the complained of conduct unless mandated positive action is taken, e.g., "do not discharge effluent in violation of permit conditions unless complying with a schedule to construct treatment facilities to meet those conditions."

* Statutory Injunctions. Once a violation of a statute has been proven, thus establishing that an injunction may be issued, there remain questions of whether an injunction should issue and, if so, what form it should take. At common law both questions have been left to the discretion of the court, balancing all of the equities of the particular case. The extent to which statutory provisions for injunctions to enforce against violations of the statutes affect this discretion has not been settled. At one extreme it can be argued that Congress has removed all discretion: upon finding a violation, the court must issue an injunction and must immediately restrain the violation. At the other extreme it can be argued that Congress has not altered the courts' traditional discretion one iota. A more reasonable anlysis suggests that once a violation has been proven, the court must require compliance, but that it retains considerable discretion in how to do so.

The First Circuit adopted a position close to the first extreme in Romero-Barcelo v. Brown¹⁰² in fashioning injunctive relief for the unpermitted discharge of bombs into the Caribbean during practice runs by Navy pilots. The court below had found that although the discharges were unpermitted and hence illegal, they did not result in environmental harm. Balancing the national defense need for practice bombing against the lack of environmental harm, the court ordered the Navy to apply for a permit and to comply with the National Environmental Policy Act (NEPA). The First Circuit, relying on Tennessee Valley Authority v. Hill,¹⁰³ held that the lower court had erred in undertaking a traditional balancing of the parties' competing interests, since Congress had decided priorities in the area of water pollution. By prohibiting the discharge of pollutants without a permit, Congress had struck the balance and had removed much of the court's discretion. Other courts have held that statutorily authorized injunctions to enforce statutory requirements should be issued automatically on proof of violation, without balancing the equities.¹⁰⁴

The Clean Water Act makes it unlawful to discharge pollutants from point sources without permits or in violation of the terms of permits. The logic of the First Circuit's [14 ELR 10077] decision might require immediate cessation of a discharge in technical violation of even the most unimportant permit term. This conclusion would lead to untenable results¹⁰⁵ and is out of line with developing case law.

Most courts have attempted to fashion equitable remedies for violations of environmental statutes to fit the circumstances of the case and have cautioned EPA not to seek or expect draconian judicial orders.¹⁰⁶ They have specifically refused to shut down violating operations where cessation of business would not appreciably help alleviate the environmental damage at issue,¹⁰⁷ or where additional time would allow the violator to correct the violation,¹⁰⁸ where the prayed for relief would cause more harm than good,¹⁰⁹ or would be impossible to perform.¹¹⁰ Even in cases where the requested remedy is less drastic than shutdown, courts have refused to order relief that would bankrupt the defendant.¹¹¹ Of course, they have not been reluctant to shut down operations where there is no other means of compliance.¹¹² In short, most courts have resorted to a balancing of equities in determining whether to issue an injunction and its contents. The factors they have considered are varied, including: the technical feasibility of compliance;¹¹³ the financial feasibility of compliance, its effect on the future of the operation, and the importance of the operation;¹¹⁴ the existence or nonexistence of a threat to public health;¹¹⁵ the ability of the court to manage the remedy sought;¹¹⁶ and whether the violation was caused in part by reliance on government action or inaction.¹¹⁷ The latter can be particularly frustrating in a citizen suit.¹¹⁸

But the fact that courts do not lightly order the cessation of violating operations does not mean they have reverted to the traditional balancing of equities test, unaffected by the enactment of the environmental statutes. As the Supreme Court noted in Virginian Ry. v. System Federation No. 40:

[14 ELR 10078]

Courts of equity may, and frequently do, go much further both to give and withhold relief in furtherance of the public interest than they are accustomed to go when only private interests are involved.¹¹⁹

By enacting the environmental statutes, Congress established the public interest in a clean environment. That public interest must be taken into account in balancing the equities, making it unnecessary to determine whether there is irreparable injury or an adequate remedy at law.

Against this background the Supreme Court rightly reversed the First Circuit's Romero-Barcelo v. Brown decision, sub nom. Weinberger v. Romero-Barcelo.¹²⁰ It held that the Clean Water Act does not require an injunction for any and all statutory violations but permits courts to order the relief necessary to secure compliance, including, but not limited to cessation of the polluting activity. By holding that courts should order the relief necessary to secure compliance, it may be inferred that the requirements of the Clean Water Act and its provision for statutory relief affect the balancing of equities in fashioning appropriate relief. Unfortunately, the Court failed to address the issue with any specificity. Moreover, as Justice Stevens rightly pointed out in his dissent, the holding is based on a mischaracterization of the First Circuit's opinion. The Court characterized the First Circuit's opinion as imposing an absolute duty on the district court to mechanically apply an injunction for every violation of law. The First Circuit's narrower holding was that the traditional balancing of equities undertaken by the district court was in error because it disregarded the congressional ordering of priorities in the area.

The failure of the Court's opinion to address explicitly the issue of how statutory mandates and statutorily authorized injunctions affect the traditional balancing of equities leaves it open to be interpreted as holding that courts have no mandatory duty to enjoin statutory violations. As Justice Stevens' dissenting opinion notes, this could lead to judicial rewriting of the prohibitions in the underlying statute. This is not idle speculation. The Fourth Circuit's implicit statement in State Water Control Board v. Train,¹²¹ that it would not order municipalities to construct secondary treatment without the offer of federal construciton grant funds essentially rewrites Clean Water Act § 301(b)(2), which requires such construction with no such condition. The Supreme Court's indication that courts should consider water quality effects of violations in fashioning remedies and not be governed solely by the integrity of the regulatory structure established by Congress is equally dangerous. It ignores the fact that Congress consciously and explicitly abandoned earlier regulatory approaches based on water quality effects in favor of requiring that more uniform effluent control technology standards be met.Can courts rewrite the Act by refusing to order compliance with those standards in the absence of a water quality effect? The failure to submit monitoring reports or to comply with other non-substantive permit conditions can seldom be shown to adversely effect water quality, but the wide-spread failure to comply with such conditions could lead to a breakdown in the regulatory structure. It is doubtful that Congress intended courts to enjoin these types of violations only if irreparable harm, the inadequacy of legal sanctions, and a balancing of equities could be shown. That would substitute common law for congressional mandates.

The better view lies between these two positions. The question is not whether violations of the statutes should be enjoined, but how they should be enjoined. Injunctive relief should be available almost automatically to remedy statutory violations, but the precise nature of the remedy should reflect the equities of the case. Moreover, balancing the equities in fashioning a remedy should be heavily weighed by the public policy determinations Congress has already made for the courts as well as by the environmental harm or lack thereof, the effects of an injunction or the defendant. The Supreme Court may have intended this result when it concluded the Clean Water Act permitted judicial discretion to rely on remedies "other than immediate prohibiting injunction" and to "order relief that will result in compliance with the Act." If so, it sufficiently obfuscated that intention to make it difficult for intelligent observers to discern.¹²²

* Forms of Injunctive Relief. Injunctions can take a number of forms to reflect the equities of the case. Most injunctions under the environmental statutes require schedules of compliance to meet the requirements being violated.¹²³ Some allow additional time to secure government action on requests for permits or variances.¹²⁴ An occasional shutdown order will be issued where compliance cannot be achieved¹²⁵ or other statutory objectives are paramount.¹²⁶

Injunctions ordering restoration of the environment to its pre-violation condition are commonplace under Clean Water Act § 404, which prohibits dredge or fill activity in navigable waters, including wetlands, without or in violation of a permit. These decisions normally consider the reasonableness and feasibility of the restoration requested and the financial ability of the defendant to perform it, weighed against the incremental environmental benefit of restoration the defendant could better afford.¹²⁷ The use of restorative remedies under § 404 is explained by its origins in the Refuse Act and the traditional [14 ELR 10079] willingness of courts to order removal of obstructions to waterways under that Act and previous authorities.¹²⁸ All these injunctions were issued in cases brought by the government. The government enforcement sections in the Clean Water Act, RCRA, and SMCRA all authorize "appropriate" relief, which could include restoration from damage caused by violation of the Acts. The government apparently seldom pursues such remedies, except for violations of Clean Water Act § 404, for there are few reported cases where they are at issue.¹²⁹ In any event, because the citizen suit provisions authorize relief only "to restrain" violations or "to enforce" statutory requirements rather than to grant "appropriate" relief, restoration orders are probably not authorized by them. Were such orders pursued more by the government, there could be a serious disparity between relief available to government and citizen enforcers.

Injunctive orders under the environmental statutes are enforced by contempt proceedings in the same manner as other equitable decrees. It is noteworthy, however, that a number of courts have appointed monitors, receivers, and administrators to determine remedies in detail and to assure that injunctive relief is accomplished.¹³⁰ This has occurred when fault lies with the defendant rather than with physical, technological, or financial impossibility. In each case violations of the decree were repeated and serious and the defendants appeared to be incompetent or unwilling to comply. In most cases the defendant was a public body, for which contempt proceedings are not particularly appropriate. The receivership remedy is a particularly appropriate device to keep the judge from becoming mired in complex technical issues that may need constant attention.

The most troublesome injunctions to enforce have been those ordering government regulatory agencies to perform mandatory duties, such as promulgating regulatory standards by specified dates. Such suits have been frequently brought under citizen suit provisions and have resulted in injunctions (both by consent and otherwise) ordering promulgation of the missing regulations by dates certain.¹³¹ EPA's demonstrated inability to comply with such orders and its never-ending reasons for noncompliance, from insufficient resources to Office of Management and Budget interference, have left the courts seemingly unable to enforce their mandates. Sanctions used against government defendants in contempt elsewhere might be effective in this context.¹³² Perhaps financial or other sanctions against responsible government officials would produce the desired result.¹³³

Temporary restraining orders or preliminary injunctions may be issued under many of the citizen suit sections. Although variously stated by the different circuits, four factors are generally considered in excercising judicial discretion to order temporary or preliminary relief:

1. The significance of the threat of irreparable harm to plaintiff if the injunction is not granted;

2. The state of the balance between this harm and the injury that granting the injunction would inflict on defendant;

3. The probability that plaintiff will succeed on the merits; and

4. The public interest.¹³⁴

Courts have used the same criteria in cases brought by both governmental and citizen enforcers to restrain confirmed violations of the environmental statutes¹³⁵ and there is no indication such cases raise issues warranting different consideration.

Penalties

The only section to authorize the assessment of penalties in citizens suit actions is Clean Water Act § 505. In the absence of such specific authorization, no penalties may be assessed.¹³⁶ Under § 505 any penalties that are assessed must be paid to the federal treasury rather than to the citizen enforcers.¹³⁷ This is easily circumvented in negotiated settlements, however, by trading penalties requested in federal claims for damages alleged in pendent state claims. It is not altogether clear under § 505 whether penalties can be assessed for past or only for future violations. Courts have indicated in other contexts that § 505 relief [14 ELR 10080] is "purely prospective,"¹³⁸ Suggesting that penalties are authorized only for future violations. But § 505 authorizes the assessment of "any appropriate penalties" under § 309(d), the government enforcement section. That section authorizes penalties for past as well as prospective violations For penalties to serve as an effective inducement for compliance, they must be available for past as well as future violations. If they were available only for future violations, regulated industry could minimize cash outlays and financial liability by refusing to comply until the day an action was filed. Both the wording of § 505 and policy considerations lead to the conclusion that penalties for both past and future violations may be assessed in citizen enforcement actions just as they are in government enforcement actions.

The omission of authority to assess penalties in most of the citizen suit sections is not explained in their legislative history or elsewhere. It probably is a silent concession to opponents of citizen suits who feared, among other things, that it would be misused by venal citizen enforcers. Since courts, not plaintiffs, assess penalties and penalties are paid to the Treasury rather than to plaintiffs, this fear is not well founded. Indeed, there is no evidence that the penalty provision in Clean Water Act § 505 has led to abuses. On the other hand, the inability to assess penalties in a citizen suit action creates a serious disparity between citizen and government enforcement. This results in both theoretical and practical deficiencies. In theory, citizen enforcement is a surrogate for government enforcement where and when the latter does not materialize. Where the remedies available for citizen enforcement are less than those available to government enforcement, however, citizen enforcement is not a true surrogate and may greatly benefit its targets and open a door to abuse of the provision. The resulting disparity means that a polluter doubly benefits from lax government enforcement. Not only does it escape government action, but when it is finally sued by a citizen it escapes any penalty for its violations. This results in lessening the citizen plaintiffs' bargaining leverage in reaching settlements and probably bars the government from later seeking a penalty except as an intervenor in the citizen suit. If citizens are empowered to be private attorneys general to enforce the law in the absence of government enforcement, citizens should have all the judicial remedies available that are available to government enforcers, including penalties.

Consent Decrees

Most enforcement cases are settled by negotiated consent decrees, whether brought by government or citizen enforcers. Consent decrees generally recite the plaintiffs' allegations, the defendants' denial of the allegations, agreement that entry of the decree does not represent any finding of fact or ruling of law, agreement to the jurisdiction of the court, a schedule for compliance with the standards allegedly violated, reporting requirements on compliance with the schedule, penalties for past noncompliance,¹³⁹ agreed upon penalties for violations of the consent decree, a force majeure clause, and a termination date or provision.¹⁴⁰

Consent decrees are by their nature contracts, but have attributes of both contracts and judicial actions. Like contracts, they are the result of negotiation and compromise. They are interpreted as contracts: upon their plain meaning and within their "four corners," unless ambiguous. Like contracts, they are specifically enforceable. At the same time, they are final judicial orders and, in the case of citizen suits, the power to enter consent decrees is derived from the statute being enforced.¹⁴¹

In considering entry of a consent decree the court makes no finding of facts or rulings on the merits.¹⁴² Instead, it must determine that the consent decree is (1) the result of good faith bargaining rather than collusion;¹⁴³ (2) fair, just and equitable;¹⁴⁴ and (3) in the case of a suit enforcing a statute, including a citizen suit, consistent with the statute being enforced.¹⁴⁵ The court must find that the consent decree represents a reasonable resolution of the violations alleged, though not necessarily the optimum resolution. This is inherent in the fact that a consent decree is a result of negotiation and compromise.¹⁴⁶ The decree may include obligations undertaken by the defendant not required by the statute being enforced.¹⁴⁷

[14 ELR 10081]

Because citizen suits affect the rights and interests of many nonparties, including the government enforcer, a court requested to enter a consent decree in such a case should provide for public notice and opportunity to comment, particularly if the consent decree and the complaint are filed simultaneously or nearly simultaneously, thus effectively precluding full scale intervention. This is doubly so, because citizen plaintiffs are acting as private attorneys general, and the Justice Department's policy is to provide notice and opportunity to comment.¹⁴⁸ Such procedures are common in private Title VII actions.¹⁴⁹

If noticeand opportunity to comment produce comments adverse to entry of the consent decree, the court may still enter it.¹⁵⁰ Similarly, a consent decree may be entered over the objection of an intervenor.¹⁵¹ Should the entry of a consent decree be appealed, the standard of review is abuse of discretion.¹⁵²

There are a number of cases in which motions to intervene have been filed after proposal or entry of a consent decree. Where motions were filed long after entry of the decree, courts have routinely denied them as untimely.¹⁵³ However, where motions were filed shortly after entry of the decree, courts have allowed intervention, especially where simultaneous or near simultaneous filing of complaint and consent decree would otherwise frustrate intervention.¹⁵⁴

Consent decrees may be modified. The normal method of modification is by agreement of the parties (much like amending a contract), subject to approval by the court, utilizing the same review criteria applying to the original entry of the decree.¹⁵⁵ Consent decrees, being final court orders, may also be modified by the court over the objection of a party (1) under Rule 60(b), upon a showing that the decree is no longer equitable, or (2) under the court's continuing equitable jurisdiction, upon a showing that circumstances have so changed that the decree no longer serves its purpose or is unequitable. In either situation, modification without the consent of both parties is an extraordinary action and the moving party bears a heavy burden to justify it. The movant must show that new circumstances cause a grevious wrong that could not have been anticipated and that the moving party is in good faith.¹⁵⁶ It is not enough for the defendant to demonstrate by a study commissioned after entry of a consent decree that the terms of the decree are not the most cost effective manner for it to achieve compliance.¹⁵⁷ It should also be recognized that a request to modify a consent decree will not necessarily be a good defense against an action to enforce the decree.¹⁵⁸

A decree in an enforcement action effectively ends the matter at issue, precluding subsequent suits by others.

It is established law that when a governmental entity litigates a matter involving diffused public rights … private citizens are bound by the results …. If such were not the case, the number of times a matter could be subject to relitigation would be limited only by the number of citizens available to relitigate the matter.¹⁵⁹

Citizen suits, for instance, cannot be maintained in the face of a completed judicial enforcement action for the same violations. This is true whether an enforcement action is concluded by a decree after full litigation or by consent decree. Because plaintiffs in citizen suits are private attorneys general, surrogate governmental entities when government fails to enforce, it also must be true whether the enforcer is a government entity or a citizen suit plaintiff. If such were not the case, the defendant would have little incentive to settle citizen suit cases by consent decrees and courts would waste their time in trying the cases. The far-reaching finality of decrees in citizen suit cases underlines the need discussed above for notice and opportunity to comment on the entry of consent decrees in citizen suit cases, particularly where complaints and consent decrees are filed about the same time.

The far-reaching finality of decrees in enforcement cases clearly precludes actions for the violations complained of in the underlying complaint and of similar violations occurring prior to entry of the decree. But what of similar violations occurring after entry of the decree? Most decrees in these actions have compliance schedules premised on continuing noncompliance until the end of the schedule. Unless there is an alleged failure of the plaintiff to enforce such a decree, it should preclude further action on those violations. Any other result would have the same consequence as allowing multiple suits on [14 ELR 10082] the violations alleged in the complaint underlying the decree.

It might be thought at first blush that the government has a special status to bring an enforcement action even though a citizen suit has already apparently resolved the matter at issue. After all, the statutes provide the government with primary enforcement responsibility. And government enforcement may be necessary in such situations to protect the public against poor results from collusive actions or underfinanced and underrepresented citizen plaintiffs. But Congress made the determination that partially effective citizen enforcement is better than no government enforcement. Because government enforcers have the authority and responsibility to enforce in the first instance, citizen plaintiffs must notify government enforcers of proposed citizen suits to allow timely government enforcement, and government enforcers may intervene in citizen suits by right (subject, of course, to a timeliness requirement), government enforcers have little to complain of if they do not like the results of citizen suits. Indeed, all of those factors should estop attempted government revision of the results of completed citizen enforcement suits. Moreover, an attempted government enforcement action after the conclusion of a citizen suit would necessarily impugn the integrity of the court entering the decree, for the court was to have guarded against collusion and assured that the decree was a reasonable resolution of the allegations made. If government enforcers were allowed to sit on their hands on the sidelines, watching what citizen enforcers could do and then take "a second bite at the apple," the resolution of citizen suits would be of little moment and defendants would have little incentive to settle them. This would undermine the viability of citizen enforcement and thereby lessen the incentives created by Congress for compliance with the environmental laws.

Conclusion

The first two parts of this series have examined the law regarding the initiation and prosecution of citizen suits to enforce the federal environmental statutes. The last part will discuss strategy and tactics for plaintiffs and defendants in citizen suit enforcement cases and will analyze the case law that has interpreted the provision of attorneys fees in citizen suits.

1. Clean Air Act § 304, 42 U.S.C. § 7604, ELR STAT. 42256; Federal Water Pollution Control Act [hereinafter cited as the Clean Water Act] § 505, 33 U.S.C. § 1365, ELR STAT. 42147; Marine Protection, Research, and Sanctuaries Act (MPRSA) § 105(g), 33 U.S.C. § 1415(g), ELR STAT. 41865; Noise Control Act (NCA) § 12, 42 U.S.C. § 4911, ELR STAT. 41505; Endangered Species Act (ESA) § 11(g), 16 U.S.C. § 1540(g), ELR STAT. 41832:6; Deepwater Port Act (DPA) § 16, 33 U.S.C. § 1515, ELR STAT. 41709; Resource Conservation and Recovery Act (RCRA) § 7002, 42 U.S.C. § 6972, ELR STAT. 41921; Toxic Substances Control Act (TSCA) § 20, 15 U.S.C. § 2619, ELR STAT. 41348; Safe Drinking Water Act (SDWA) § 1449, 42 U.S.C. § 300j-8, ELR STAT. 41116; Surface Mining Control and Reclamation Act (SMCRA) § 520, 30 U.S.C. § 1270, ELR STAT. 42421; Outer Continental Shelf Lands Act (OCSLA) § 23, 43 U.S.C. § 1349(a), ELR STAT. 42466.

2. For a general outline of the citizen suit provisions, see Part I of this series, 13 ELR 10309, 10311-13 (1983).

3. 13 ELR 10309 (1983).

4. See NCA § 12, TSCA § 20, MPRSA § 105(g), ESA § 11(g), DPA § 16, and OCSLA § 23.

5. under NCA § 12 notice must be given to both the Environmental Protection Agency (EPA) and the Federal Aviation Administration where aircraft noise is at issue. But under MPRSA § 105(g), notice may be given to either EPA or the Secretary of the Army. Because EPA and the Corps of Engineers have separate responsibilities under different sections of MPRSA, notice to either alone does not effectively warn the responsible part of government of a violation. The section should either specify which federal agency must be notified of violations of each of the Act's various sections or require that both be notified of all violations.

6. MPRSA § 105(g), ESA § 11(g), and OCSLA § 23 do not contemplate implementing regulations.

7. The sections for which regulations have been promulgated and their respective regulations: are Clean Air Act § 304, 40 C.F.R. pt. 54; Clean Water Act § 505, 40 C.F.R. pt. 135; NCA § 12, 40 C.F.R. pt. 210; and RCRA § 7002, 40 C.F.R. pt. 254. There have not been implementing regulations promulgated for TSCA § 20, SDWA § 300j-8, DPA § 16, or SMCRA § 520.

8. Section 304 of the Clean Air Act exempts violations of national emission standards for hazardous air pollutants under § 112, 42 U.S.C. § 7412(c), ELR STAT. 42215-16, and of EPA administrative orders issued under § 113, 42 U.S.C. § 7413(a), ELR STAT. 42216, from the 60-day notice requirement. Clean Water Act § 505 exempts violations of new source performance standards and toxic pollutant standards promulgated under §§ 306 & 307(a), 33 U.S.C. §§ 1316 & 1317(a), ELR STAT. 42128:1 & 42129-30, from the requirement. Under RCRA § 7002 violations of any requirements of its Subchapter C hazardous waste management program are not subject to 60 days prior notice. ESA § 11(g) does not require prior notice when an emergency poses significant risk to a species. Under SMCRA § 520 and OCSLA § 23 the notice is not required where the alleged violation constitutes an immediate threat to the health or safety of the plaintiff or would affect his or her legal interest.

9. The notice requirement was added "to further encourage and provide for agency enforcement …. The time between notice and filing of the action should give the administrative enforcement office an opportunity to act on the alleged violation. S. REP. NO. 1196, 91st Cong., 2d Sess. 36-39, reprinted in Natural Resources Defense Council, Inc. (NRDC) v. Train, 510 F.2d 692, 723, 5 ELR 20046, 20063 (D.C. Cir. 1975). Senator Muskie said in the Senate debates on September 21, 1970 that notice of citizen suits would "trigger" governmental enforcement and Senator Hart said the following day that such notice would "have the effect of prodding" government enforcement. NRDC v. Train, 510 F.2d at 728-29, 5 ELR at 20066-67.

10. See, for instance, Senator Hruska's remarks in the Senate debates on September 21, 1970, reprinted in NRDC v. Train, 510 F.2d at 726-27, 5 ELR at 20065-66.

11. See H.R. REP. NO. 1783, 91st Cong., 2d Sess. 55-56, reprinted in NRDC v. Train, 510 F.2d at 723, 5 ELR at 20063. See also note 8 to Part I of this series, 13 ELR at 10310.

12. See Corkin, A State's Eye View of Pollution Control, 1 HARV. ENVTL. L. REV. 333-44 (1976). The precise bureaucratic structures and bottlenecks described by Corkin no longer exist, but they are symptomatic of inbred delay in the system and have been replaced by others.

13. Memorandum of Understanding on Civil Enforcement Between the Department of Justice and the Environmental Protection Agency, 41 ENV'T REP. (BNA) FED. LAWS 2401-02. Protracted delays in filing cases referred by EPA for civil prosecution helped fuel a running battle between EPA and Department of Justice (DOJ) in the mid-1970s. The battle resulted in proposed amendments to the Clean Air Act giving EPA its own litigating authority. The memorandum of understanding (MOU) was a stopgap measure by the executive branch to prevent such legislative initiatives by demonstrating that EPA and DOJ could act cooperatively. The measure was a successful legislative ploy and was adopted by reference in the Clean Air Act Amendments of 1977, see 42 U.S.C. § 7605(b), ELR STAT. 42257; S. REP. NO. 127, 95th Cong., 1st Sess. 332-37; H.R. CONF. REP. NO. 564, 95th Cong., 1st Sess. 173-77, reprinted in 1977 U.S. CODE CONG. & AD. NEWS 1411-16, 1554-57. The MOU's success in producing prompt filing of cases and reducing friction between EPA and DOJ, however, has been less than complete.

14. See note 106 to Part I of this series, 13 ELR at 10320.

15. Biederman v. Scharbarth, 483 F. Supp. 809 (E.D. Wis. 1980); National Sea Clammers Ass'n v. City of New York, 12 ERC 1118 (D.N.J. 1978), rev'd, 616 F.2d 1222, 10 ELR 20155 (3d Cir. 1980), rev'd on other grounds sub nom. Middlesex Cty. Sewerage Auth. v. National Sea Clammers Ass'n, 453 U.S. 1, 11 ELR 20684 (1981); Illinois v. Rosing, 5 ELR 20717 (N.D. Ill. 1975); Loveladies Property Owners Ass'n v. Raab, 430 F. Supp. 276 (D.N.J. 1975), 547 F.2d 462 (3d Cir. 1976), cert. denied, 432 U.S. 906 (1977); Pinkney v. Ohio EPA, 375 F. Supp. 305, 4 ELR 20460 (N.D. Ohio 1974); Ventnor City v. Fri, 5 ELR 20029 (D.N.J. 1974); West Penn Power Co. v. Train, 378 F. Supp. 941, 4 ELR 20812 (W.D. Pa. 1974), aff'd on other grounds, 522 F.2d 302, 5 ELR 20557 (3d Cir. 1975), reh'g denied, 429 U.S. 873 (1976); and Puget Sound Air Pollution Control Agency v. U.S. Veterans Administration Hospital, 4 ELR 20010 (W.D. Wash. 1973). See also Porter County Chapter of the Izaak Walton League of America, Inc. v. Train, 548 F.2d 1298, 7 ELR 20251 (7th Cir. 1977), which held against environmentalists trying to avoid a procedural requirement in a Clean Water Act § 402 permit appeal. The Seventh Circuit noted that althouth Congress and EPA had been generous to pro bono petitioners, they were not excused from procedural rules and defaults. 548 F.2d at 1301, 7 ELR at 20251.

16. The leading case is City of Highland Park v. Train, 519 F.2d 681, 5 ELR 20408 (7th Cir.), cert. denied, 424 U.S. 927 (1975). See also Massachusetts v. U.S. Veterans Administration, 541 F.2d 119, 6 ELR 20666 (1st Cir. 1976). In that case, Massachusetts sued after giving 40 days notice. The court believed the citizen suit provision was "designed to supplement and expedite administrative action to abate violations of the Act …. Recourse to the courts is appropriate only when the administrative action taken is less than adequate." Id. at 121, 6 ELR at 20667. That is, of course, not entirely accurate, since only a judicial action can prevent the filing of a citizen suit. But in the case at hand, the Veterans Administration's (VA's) compliance with water pollution requirements at one of its facilities was delayed more by squabbles between the VA and the host town than by the VA's unwillingness or inability to comply. EPA and/or the state probably could have ended the matter administratively had they acted decisively. EPA, however, has never been able to effectively enforce against federal facilities and has never attempted to do so judicially. It should also be noted that the First Circuit did not close the door to the issue of "constructive compliance" with the notice provision, where "futility" could be shown. Id. at 121-22, 6 ELR at 20067-68.

17. Note, Notice by Citizen Plaintiffs in Environmental Litigation, 79 MICH. L. REV. 299 (1980).

18. Pymatuning Water Shed Citizens for a Hygenic Environment v. Eaton, 644 F.2d 995, 11 ELR 20790 (3d Cir. 1981) (no notice); National Sea Clammers Ass'n v. City of New York, 616 F.2d 1222, 10 ELR 20155 (3d Cir. 1980), rev'd sub nom. Middlesex County Sewerage Auth. v. National Sea Claimmers Ass'n, 453 U.S. 1, 11 ELR 20684 (1981) (no notice); Susquehanna Valley Alliance v. Three Mile Island Nuclear Reactor, 619 F.2d 231, 10 ELR 20235 (3d Cir. 1980) (two days notice); NRDC v. Callaway, 524 F.2d 79, 5 ELR 20640 (2d Cir. 1975) (less than 60 days notice); Conservation Society of Southern Vermont, Inc. v. Secretary of Transportation, 508 F.2d 927, 5 ELR 20068 (2d Cir. 1974), vacated and remanded on other grounds, 423 U.S. 809, 6 ELR 20068 (1975) (no notice, court not convinced the lack of notice was an absolute barrier to suit, but refused to reverse dismissal of action on other grounds); Village of Kaktovik v. Corps of Engineers, 9 ELR 20117 (D. Alaska 1978) (less than 60 days notice); Save Our Sound Fisheries Ass'n v. Callaway, 429 F. Supp. 1136, 7 ELR 20488 (D.R.I. 1977) (less than 60 days notice); Metropolitan Washington Coalition for Clean Air v. District of Columbia, 373 F. Supp. 1089, 4 ELR 20651 (D.D.C. 1974), rev'd on other grounds, 511 F.2d 809, 5 ELR 20335 (D.C. Cir. 1975); Riverside v. Ruckelshaus, 3 ELR 20043 (C.D. Cal. 1972). It is instructive to trace the evolution of the Third Circuit's views from strict adherence to the notice requirement in Loveladies Property Owners Ass'n v. Raab, 547 F.2d 462 (3d Cir. 1976), cert. denied, 432 U.S. 906 (1977), to hinting that notice might be satisfied by filing a complaint if the district court suspends proceedings for 60 days in National Sea Clammers, to the more permissive holdings in Pymatuning and Susquehanna.

19. National Sea Clammers Ass'n v. City of New York, 616 F.2d 1222, 10 ELR 20155 (3d Cir. 1980); NRDC v. Callaway, 524 F.2d 79, 5 ELR 20640 (2d Cir. 1975); Stream Pollution Control Board v. U.S. Steel Corp., 512 F.2d 1036, 5 ELR 20261 (7th Cir. 1975); Conservation Society of Southern Vermont, Inc. v. Secretary of Transportation, 508 F.2d 827, 5 ELR 20068 (2d Cir. 1974); Environmental Defense Fund, Inc. v. Alexander, 501 F. Supp. 742 (N.D. Miss. 1980), modified on other grounds sub nom. EDF v. Marsh, 651 F.2d 983, 11 ELR 21012 (5th Cir. 1981); Minnesota v. Callaway, 401 F. Supp. 524 (D. Minn. 1975), rev'd on other grounds sub nom. Minnesota v. Hoffmann, 543 F.2d 1198, 7 ELR 20066 (8th Cir.), appeal dismissed sub nom. Minnesota v. Alexander, 430 U.S. 977 (1976). See also Philadelphia Council of Neighborhood Organizations v. Coleman, 437 F. Supp. 1341 (E.D. Pa. 1977), aff'd mem. 578 F.2d 1375 (3d Cir. 1978); Loveladies Property Owners Ass'n v. Raab, 547 F.2d 462 (3d Cir. 1976), cert. denied, 432 U.S. 906 (1977).

20. The D.C. Circuit commented in one case that the citizen suit sections "may add little to the jurisdiction of federal courts as a practical matter." NRDC v. Train, 510 F.2d 692, 702, 5 ELR 20046, 20050 (D.C. Cir. 1974).

21. Middlesex County Sewerage Auth. v. National Sea Clammers Ass'n, 453 U.S. 1, 11 ELR 20684 (1981).

22. See Trauberman, Common Law Nuisance in Hazardous Waste Litigation: Has It Survived Milwaukee II?, 13 ELR 10043 (1983). See notes 124-141 and accompanying text in Part I of this series, 13 ELR at 10322-23.

23. California v. Dep't of the Navy, 431 F. Supp. 1271 (N.D. Cal. 1977), aff'd, 624 F.2d 885 (9th Cir. 1980). See also Montgomery Cty. Coalition v. Fri, 366 F. Supp. 261, 4 ELR 20182 (D.D.C. 1973).

24. National Wildlife Federation v. Coleman, 400 F. Supp. 705, 709-10, 5 ELR 20566 (S.D. Miss. 1975), rev'd on other grounds, 529 F.2d 359, 6 ELR 20344 (5th Cir. 1976), reh'g denied, 532 F.2d 1375, 6 ELR 20648, cert. denied, 429 U.S. 979 (1976).

25. Friends of the Earth v. Carey, 535 F.2d 165, 174-75, 6 ELR 20488, 20492-93 (2d Cir.), cert. denied, 429 U.S. 926 (1976). Similarly, where some but not all plaintiffs were named in the notice there was no infirmity. South Carolina Wildlife Federation v. Alexander, 457 F. Supp. 118, 8 ELR 20757 (D.S.C. 1978).

26. Montgomery Environmental Coalition v. Fri, 366 F. Supp. 261, 4 ELR 20182 (D.D.C. 1973).

27. 33 U.S.C. § 1342, ELR STAT. 42141.

28. Rivers Unlimited v. Costle, 11 ERC 1681, 1683 (S.D. Ohio 1978).

29. South Carolina Wildlife Federation v. Alexander, 457 F. Supp. 118, 8 ELR 20757 (D.S.C. 1978).

30. Susquehanna Valley Alliance v. Three Mile Island Nuclear Reactor, 619 F.2d 231, 10 ELR 20235 (3d Cir. 1980).

31. Massachusetts v. U.S. Veterans Administration, 541 F.2d 119, 6 ELR 20666 (1st Cir. 1976); Biederman v. Scharbarth, 483 F. Supp. 809 (E.D. Wis. 1980).

32. Village of Kaktovik v. Corps of Engineers, 9 ELR 20117 (D. Alaska 1978).

33. O'Leary v. Moyer's Landfill, Inc., 516 F. Supp. 517, 11 ELR 21005 (E.D. Pa. 1981).

34. See Rivers Unlimited v. Costle, 11 ERC 1681, 1683 (S.D. Ohio 1978), in which plaintiffs gave notice of suit on one legal theory requesting particular relief but filed a complaint that also contained a related legal theory requesting similar but not identical relief. The court held that the notice was sufficient if it "fairly informs the defendant of the nature of its complaint even though the plaintiff has now expanded the scope of the relief which it seeks." Id. at 1683.

35. The Second Circuit affirmed dismissal of a Clean Air Act citizen suit to enforce the New York transportation control plan where some causes of action were moot and some were premature for failure to give supplemental 60-day notices. The circuit was sympathetic with the lower court's apparent frustration with loosely drafted pleadings and the holding may be limited to its facts. Council of Commuter Organizations v. Metropolitan Transportation Auth., 683 F.2d 663, 12 ELR 20784 (2d Cir. 1982).

36. Middlesex County Sewerage Auth. v. National Sea Clammers Ass'n, 453 U.S. at 14, 11 ELR at 20687.

37. See Save Our Sound Fisheries Ass'n v. Callaway, 429 F. Supp. 1136, 7 ELR 20488 (D.R.I. 1977). In this case the plaintiffs' opposition to proposed ocean dumping of dredged spoil in a particular location was well known to the government defendants. The latter proceeded with dumping without complying with a variety of statutory requirements that would have alerted plaintiffs of their intentions in sufficient time for plaintiffs to make timely notice before dumping began.Plaintiffs served notice on defendants as soon as they had knowledge of its intentions and the court held it to be constructive compliance, although less than 60 days before suit. "This Court cannot sanction such a transparent attempt to undermine Congressional policies and intention." Id. at 1144, 7 ELR at 20492. This case could be grounded on an estoppel or out-rageous conduct argument as well. Although assertion of lack of subject matter jurisdiction ordinarily cannot be estopped, see WRIGHT & MILLER, FEDERAL PRACTICE AND PROCEDURE § 3522 n.8 (1975) [hereinafter referred to as WRIGHT & MILLER], the general rule arose in the context of a removal issue, involving state and federal jurisdiction. The issue in cases like Save Our Sound Fisheries is different and is more analogous to that giving rise to the fraudulent concealment exception to the statute of limitations.

38. See Part I of this series, 13 ELR at 10313-14.

39. See supra text accompanying note 36.

40. Indeed, in developing the comparable requirement in Clean Air Act § 113 that EPA give notice of an alleged violation to the implementing state agency and the alleged violator 30 days prior to issuing an order to or filing an action against the violator, the sole purpose articulated in the legislative history is to encourage state enforcement. And in the enforcement provisions of the environmental statutes in which there is no state implementation role, no notice of violation is required, even to the alleged violator, e.g., NCA § 11, 42 U.S.C. § 4910, ELR STAT. 41505.

41. See Love v. New York State Department of Environmental Conservation, 529 F. Supp. 832, 844, 12 ELR 20571, 20575 (S.D.N.Y. 1981).

42. See Part I of this series, 13 ELR at 10319, and the discussion on penalties in this part of the article. Clean Water Act § 505 authorizes citizen suits to seek civil penalties for violations, although it is not settled whether penalties are authorized for past violations or only violations occurring after suit is filed.

43. See Love v. New York State Department of Environmental Conservation, 529 F. Supp. at 844, 12 ELR at 20575.

44. See Note, The Florida Environmental Protection Act of 1971: The Citizen's Role in Environmental Management, 2 FLA. ST. U.L. REV. 736, 743-44 (1974) for a discussions of how many state citizen suit provisions explicitly limit jurisdiction to suits in which citizens of the state are plaintiffs.

45. Justice Chase wrote that

The establishing [of] courts of justice, the appointment of judges, and the making [of] regulations for the administration of justice, within each state, according to its laws, on all subjects not entrusted to the federal government, appears to me to be the peculiar and exclusive province, and duty of the state Legislatures.

Calder v. Bull, 32 U.S. 386, 387 (1798).

46. Senate debates (Sept. 21, 1970), reprinted in NRDC v. Train, 510 F.2d at 728, 5 ELR at 20066.

47. The committee report stated that

If the agency had not initiated abatement proceedings following notice or if the citizen believed efforts initiated by the agency to be inadequate, the citizen might choose to file the action. In such case, the courts would be expected to consider the petition against the background of the agency action and could determine that such action would be adequate to justify suspension, dismissal, or consolidation of the citizen petition.

S. REP. NO. 1196, 91st Cong., 2d Sess. 36-39, reprinted in NRDC v. Train, 510 F.2d at 724, 5 ELR at 20064. Again, it is not explicitly stated whether the committee is thinking of administrative abatement proceedings or abatement proceedings initiated in court by an administrative agency. The subsequent conference committee report, see supra note 41, which discusses abatement proceedings in court, suggests the latter. The Senate committee's suggestion that consolidation may be appropriate supports this conclusion since consolidation of administrative and judicial proceedings would be inappropriate.

48. H.R. REP. NO. 1783, 91st Cong., 2d Sess. 55-56, reprinted in NRDC v. Train, 510 F.2d at 723, 5 ELR at 20063.

49. 592 F.2d 215, 9 ELR 20147 (3d Cir.), cert. denied, 441 U.S. 961 (1979).

50. Id. at 217-19, 9 ELR at 20148-49.

51. 501 F. Supp. 1159 (S.D.N.Y. 1980).

52. 529 F. Supp. 832, 12 ELR 20571 (S.D.N.Y. 1981).

53. 572 F. Supp. 828, 14 ELR 20183 (W.D.N.Y. 1983).

54. Baughman v. Bradford Coal Co., 592 F.2d at 217 n.2, 9 ELR at 20148 n.2.

55. The Court cited 35 PA. CONS. STAT. § 4009.1 (1977) but ignored §§ 4004(4-1) & 4006.

56. Both the Pennsylvania Department of Environmental Resources (DER) and the New York Commissioner of Environmental Conservation may issue orders requiring compliance with environmental regulations. 35 PA. CONS. STAT. § 4004(4.1) (1977), N.Y. ENVTL. CONSERV. LAW § 19-0509 (Consol. 1973). In both cases, the orders may be appealed, in Pennsylvania before the Environmental Hearing Board (EHB) and in New York before the Commissioner or his representative. 35 PA. CONS. STAT. § 4004(4.1) (1977), N.Y. ENVTL. CONSERV. LAW §§ 19-0505, 19-0507 (Consol. 1973). In both cases the appeals are conducted as formal hearings. 35 PA. CONS. STAT. § 4006 (1977), N.Y. ENVTL. CONSERV. LAW § 19-0507 (Consol. 1973). The powers of the Pennsylvania DER and EHB are broader than those of the New York Commissioner, however, because the Pennsylvania EHB may assess penalties for violations. 35 PA. CONS. STAT. § 4009.1 (1977). In both states the orders may be appealed to courts after administrative remedies have been exhausted. 35 PA. CONS. STAT. § 4004(4.1) (1977), N.Y. ENVTL. CONSERV. LAW § 19-0511 (Consol. 1973 & Supp. 1983). Both states provide that failure to obey the administrative orders is unlawful and punishable by civil or criminal penalties. 35 PA. CONS. STAT. §§ 4009, 4009.1, 4010 (1977 & Supp. 1982), N.Y. ENVTL. CONSER. LAW §§ 71-2103, 71-2105 (Consol. 1973 & Supp. 1983). Both also provide for judicial injunctive relief. All such enforcement of administrative orders is by courts in actions brought by state attorneys general. The penalties authorized in Pennsylvania are considerably higher. The EHB may assess penalties of up to $10,000, plus $2,500 for each day of violation. 35 PA. CONS. STAT. § 4009.1 (1977). In New York the courts can only assess penalties of between $250 and $2,500, plus $500 per day of violation. N.Y. ENVTL. CONSERV. LAW § 71-2103 (Consol. 1973 & Supp. 1983). In all, the powers of the administrative agencies in Pennsylvania are more comprehensive than in New York and their "injunctive order" powers are comparable.

57. Gardeski v. Colonial Sand & Stone Co., 501 F. Supp. at 1163.

58. N.Y. ENVTL. CONSERV. LAW §§ 71-2103, 71-2105 (Consol. 1973 & Supp. 1983).

59. See supra notes 46-48 and accompanying text.

60. TSCA § 20(b)(1)(B) bars citizen suits if proceedings have been commenced and diligently prosecuted for the issuance of an administrative order to require compliance pursuant to TSCA § 8(a)(2). The section also authorizes citizen intervention in the administrative proceeding. ESA §§ 11(g)(2)(A) and 11(g)(2)(B) bar citizen suit if administrative penalty or emergency proceedings have begun. MPRSA § 105(g) bars citizen suit if administrative penalty assessment or permit revocation or suspension proceedings have been initiated.

61. Sierra Club v. SCM Corp., 572 F. Supp. at 831 n.3, 14 ELR at 20184 n.3.

62. Gardeski v. Colonial Sand & Stone Co., 501 F. Supp. at 1168. See also the Second Circuit's lecture to Judge Duffy that in enacting the citizen suit provisions, "Congress made clear that citizen groups are not to be treated as nuisances or troublemakers but rather as welcomed participants in the vindication of environmental interests." Friends of the Earth v. Carey, 535 F.2d at 172, 6 ELR at 20489.

63. 28 C.F.R. § 50.7 (1983). The Assistant Attorney General for Land and Natural Resources may waive the provision at his discretion in the public interest.

64. Alternatively, state agencies may assure: (1) investigation of citizen complaints; (2) lack of opposition to permissive citizen intervention in state court or administrative enforcement proceedings; and (3) notice and an opportunity to comment on proposed settlements of state enforcement actions. 40 C.F.R. §§ 123.27(d), 233.28(d), 271.16(d), 145.13(d) (1983).

65. Citizens for a Better Environment v. EPA, 596 F.2d 720, 9 ELR 20092 (7th Cir. 1979). The plaintiff contended that the Clean Water Act § 101(e) requirements for public participation in federal and approved state programs required intervention rights in state law comparable to those in § 505 before EPA could approve a state water pollution permit program. The court did not rule on the comparability issue, but reversed EPA's approval of the Illinois program because EPA had not promulgated regulations regarding the degree of public participation required in state programs for federal approval and had not required any such provision for approval of the Illinois program.

66. The court held that Clean Water Act § 101(e), the "congressional declaration of goals and policy" on citizen participation, required EPA to promulgate regulations establishing the extent of public participation in enforcement that a state must provide before its § 402 permit program could be approved. Section 101(e) does provide that "The Administrator … shall develop and publish regulations specifying minimum guidelines for public participation" in the development, revision, and enforcement of regulations and programs. But § 101 is self-avowedly a hortatory section, stating national goals such as a desire to end all water pollution by 1985. It nowhere conditions approval of state § 402 permit programs on the prior promulgation of public participation regulations or on public participation in state enforcement: that notion is an invention of the Seventh Circuit. In denying a petition for rehearing, the court dealt with regulations EPA had promulgated to satisfy § 101(e) by holding that they were inadequate with regard to public participation in enforcement. In effect, the court engaged in judicial review of those regulations in a case where the regulations at issue were not challenged and in disregard of the jurisdictional requirements of § 509(b). See Note, Public Participation in State NPDES Enforcement: Questionable Basis, Good Policy, 6 COLUM. J. ENVTL. L. 185 (1980).

67. At the time these regulations were promulgated, EPA had approved state and territorial administration of 33 Clean Water Act § 402 permit programs. The regulations allowed those states one year to amend their programs to satisfy the new public participation requirements or two years if a statutory amendment was required. Since those regulations were promulgated EPA has not disapproved any state program for failure to satisfy the requirement. Yet the only state for which a notice appears in the Federal Register indicating an amendment to its program to meet the requirement is Illinois. 46 Fed. Reg. 24295 (1981). EPA's recently announced policy of interpreting requirements on state programs to facilitate rather than tightly control delegation of program responsibility to states emphasizes the probability that EPA will side with states in any conflict between citizen participation requirements and state implementation of programs.

68. Illinois v. Outboard Marine Corp., 619 F.2d 623, 10 ELR 20323 (7th Cir. 1980), vacated and remanded on other grounds, 453 U.S. 917 (1981), same case on remand, 680 F.2d 473, 12 ELR 20797 (7th Cir. 1982); Ohio ex rel. Brown v. Callaway, 497 F.2d 1235, 4 ELR 20492 (6th Cir. 1974); U.S. v. Republic Steel Corp., 15 ERC 1462 (N.D. Ill. 1980); U.S. v. Ketchikan Pulp Co., 74 F.R.D. 104, 7 ELR 20368 (D. Alaska 1977). See also U.S. v. Mid-State Terminals, Inc., 15 ERC 1372 (N.D. Ohio 1980). Wright and Miller, in commenting that courts have been hesitant to find unconditional statutory rights of intervention, indicated that Clean Water Act § 505 does not create such a right "in cases which are not based upon standards or limitations promulgated pursuant to the statute." WRIGHT & MILLER, supra note 37, at § 1906. Of course, § 505 creates a right to intervene only in cases brought to enforce "effluent standards or limitations"; but that term is defined in the section more broadly than Wright and Miller's statement implies. See id. § 3.382. The decision they cite, Stream Pollution Control Board v. U.S. Steel Corp., 62 F.R.D. 31, aff'd on other grounds, 512 F.2d 1036, 5 ELR 20261 (7th Cir. 1975), denies intervention in a case brought by the state alleging public nuisance and violation of a state regulation. The case did not allege a violation of the Clean Water Act, thus there were no grounds for intervention under § 505. It is difficult to tell whether the decision turned on this ground or lack of standing.

69. Commonwealth Edison Co. v. Train, 8 ERC 2162 (N.D. Ill. 1976), aff'd on other grounds, 649 F.2d 481, 10 ELR 20901 (7th Cir. 1980).

70. Stream Pollution Control Board v. U.S. Steel Corp., 512 F.2d 1036, 5 ELR 20261 (7th Cir. 1975), in which the circuit court affirmed the dismissal of a motion to intervene under Clean Water Act § 505 in a common law nuisance case. The remainder of the opinion is of questionable merit.

71. Commonwealth Edison Co. v. Train, 8 ERC 2162 (N.D. Ill. 1976), aff'd on other grounds, 649 F.2d 481, 10 ELR 20901 (7th Cir. 1980).

72. For cases where standing is examined in the context of intervention, see Illinois v. Outboard Marine Corp., 619 F.2d 623, 10 ELR 20323 (7th Cir. 1980); Ohio ex rel. Brown v. Callaway, 497 F.2d 1235, 4 ELR 20492 (6th Cir. 1974); U.S. v. Mid-State Terminals, Inc., 15 ERC 1372 (N.D. Ohio 1980); and U.S. v. Ketchikan Pulp Co., 74 F.R.D. 104, 7 ELR 20368 (D. Alaska 1977). For a discussion of standing under the citizen suit sections in general, see Part I of this series, 13 ELR at 10315-17.

73. WRIGHT & MILLER, supra note 37, at § 1916.

74. Delaware Valley Citizens' Council for Clean Air v. Pennsylvania, 11 ELR 20952 (E.D. Pa. 1981), aff'd, 674 F.2d 970, 12 ELR 20295 (3d Cir. 1982) (motion to intervene filed two-and-a-half years after entry of consent decree); U.S. v. U.S. Steel Corp., 548 F.2d 1232, 7 ELR 20294 (5th Cir. 1977).

75. U.S. v. Republic Steel Corp., 15 ERC 1462 (N.D. Ill. 1980).

76. U.S. v. Republic Steel Corp., 15 ERC 1462 (N.D. Ill. 1980) (complaint filed in February, consent decree filed on March 4 and noticed on March 20, motion to intervene filed on April 15 held to be timely). U.S. v. Ketchikan Pulp Co., 74 F.R.D. 104, 7 ELR 20368 (D. Alaska 1977) (motion to intervene filed two months after filing of complaint and consent decree held to be timely where intervenor requested background information to make comments and assess its legal position and commented and moved to intervene shortly after receiving the information). In the latter, the court also held there is no necessity to exhaust administrative remedies to exercise the statutory right of intervention.

77. The court in U.S. v. Ketchikan Pulp Co., 74 F.R.D. 104, 7 ELR 20368 (D. Alaska 1977), denied the government's motion to limit the scope of the intervention, but restricted discovery.

78. Id. at 107, 7 ELR at 20369.

79. "Intervention will necessarily require a reassessment of position upon which the original parties reached agreement only after comprehensive discussions. By choosing to negotiate agreement before commencing suit, however, those parties cannot foreclose intervention." U.S. v. Republic Steel Corp., 15 ERC at 1464.

80. U.S. v. U.S. Steel Corp., 548 F.2d 1232, 7 ELR 20294 (5th Cir. 1977); Commonwealth Edison Co. v. Train, 8 ERC 2162 (N.D. Ill. 1976), aff'd on other grounds, 649 F.2d 481, 10 ELR 20901 (7th Cir. 1980).

81. Since violations of federal environmental laws often also constitute violations of companion state laws, joint state and federal enforcement action is common. Although such actions are normally filed in federal court, it is conceivable that they could be filed in state court. The prospect of avoiding a troubling intervenor could be a positive incentive for this. The citizen suit sections should prohibit the federal government from filing suit in state court unless state law affords intervention to citizens by right.

82. A citizen group successfully challenged EPA's approval of Illinois' NPDES permit program under Clean Water Act § 402, ELR STAT. 42141, on the grounds that EPA had failed to establish guidelines to assess the adequacy of Illinois' provision for public participation in enforcement pursuant to the public participation requirements of § 101(e). Citizens for a Better Environment v. EPA, 596 F.2d 720, 9 ELR 20092 (7th Cir. 1979). The plaintiff contended that § 505 established the baseline to judge the states' provisions for citizen participation in enforcement and that intervention by right in state proceedings was required. Id. at 725 n.8, 9 ELR at 20094 n.8. The court did not rule on the question. EPA's regulations, however, now require that state § 402 programs either must provide for intervention as of right in civil or administrative enforcement or assure that the state will not oppose permissive intervention and provide other safeguards for citizen participants. 40 C.F.R. § 123.27(d) (1981). See also In re Permanent Surface Mining Regulation Litigation, 10 ELR 20208 (D.D.C. 1980), aff'd en banc, 653 F.2d 514, 11 ELR 20941 (D.C. Cir.), cert. denied, 454 U.S. 822 (1981), where the court held that state SMCRA programs had to provide for citizen suits, since approval was contingent on state sanctions being no less stringent than federal sanctions and that state procedural rights be similar to federal procedural rights.

83. In Baughman v. Bradford Coal Co., 592 F.2d 215, 9 ELR 20147 (3d Cir.), cert. denied, 441 U.S. 961 (1979), the court established benchmarks for considering state administrative action the equivalent of state judicial action for the purposes of barring citizen suits: penalties equal to federal penalties, adequate injunctive authority, and citizen intervention by right. But in finding administrative action equivalent to judicial action for that purpose, the court in Gardeski v. Colonial Sand & Stone Co., 501 F. Supp. 1159 (S.D.N.Y. 1980), ignored the intervention issue.

84. Clean Air Act § 304, Clean Water Act § 505, RCRA § 7002, SDWA § 1449, OCSLA § 23, SMCRA § 520.

85. WRIGHT & MILLER, supra note 37, at § 2954, p. 524 and cases cited in n.66; Reinders Bros. v. Rain Bird Eastern Sales Corp., 627 F.2d 44 (7th Cir. 1980); Hopkins v. Wallin, 179 F.2d 136 (3d Cir. 1949).

86. Benz v. Compania Naviera Hidalgo, S.A., 205 F.2d 944 (9th Cir.), cert. denied, 346 U.S. 885 (1953); Greenwood v. Duke Power Co., 107 F.2d 484 (4th Cir. 1939), cert. denied, 309 U.S. 667 (1940).

87. Wisconsin Heritages, Inc. v. Harris, 476 F. Supp. 300 (E.D. Wis. 1979); Bartels v. Biernat, 405 F. Supp. 1012 (E.D. Wis. 1975); Bass v. Richardson, 338 F. Supp. 478 (S.D.N.Y. 1971); Powelton Civic Home Owners Ass'n v. HUD, 284 F. Supp. 809 (E.D. Pa. 1968). See also WRIGHT & MILLER, supra note 37, at 530-31.

88. Wayne Chemical, Inc. v. Columbus Agency Service Corp., 567 F.2d 692 (7th Cir. 1977); Crowley v. Local No. 82, Furniture and Piano Moving, Furniture Store Drivers, 679 F.2d 978 (1st Cir. 1982), cert. granted, 103 S. Ct. 803 (1983); Olshock v. Village of Skokie, 401 F. Supp. 1219 (N.D. Ill. 1975); Ryan v. Shea, 394 F. Supp. 894 (D. Colo. 1974), aff'd, 525 F.2d 268 (10th Cir. 1975).

89. International Controls Corp. v. Vesco, 490 F.2d 1334 (2d Cir.), cert. denied, 417 U.S. 932 (1974); Continental Oil Co. v. Frontier Refining Co., 338 F.2d 780 (10th Cir. 1964); Ferguson v. Tabah, 288 F.2d 665 (2d Cir. 1961); Orleans Parish School Bd. v. Bush, 252 F.2d 253 (5th Cir.), cert. denied, 356 U.S. 969 (1958); Urbain v. Knapp Bros. Mfg. Co., 217 F.2d 810 (6th Cir. 1954), cert. denied, 349 U.S. 930 (1955).

90. Friends of the Earth v. Brinegar, 5 ELR 20223 (9th Cir. 1975) ($4.5-million bonding requirement reduced to $1,000); West Virginia Highlands Conservancy v. Island Creek Coal Co., 441 F.2d 232, 1 ELR 20160 (4th Cir. 1971) ($ 100); NRDC v. Morton, 337 F. Supp. 167, 2 ELR 20028 (D.D.C. 1971) ($1.00), aff'd on other grounds, 458 F.2d 827, 2 ELR 20029 (D.C. Cir. 1972); Environmental Defense Fund, Inc. v. Corps of Engineers, 331 F. Supp. 925, 1 ELR 20466 (D.D.C. 1971) ($1.00). See also Monarch Chemical Works, Inc. v. Exon, 452 F. Supp. 493, 8 ELR 20727 (D. Neb. 1978).

91. Powelton Civic Homeowners Ass'n v. HUD, 284 F. Supp. 809 (E.D. Pa. 1968). In that case plaintiffs secured a preliminary injunction against the Secretary of Housing and Urban Development preventing federal disbursements to the Philadelphia Redevelopment Authority (PRA) for a redevelopment project until affected citizens were heard. The court denied a motion by the PRA, a defendant in the case, to require posting of security under Rule 65(c), regardless of whether it might be damaged, because it was not the party restrained. Id. at 815. A subsequent motion by the federal defendants to require security for damages to the PRA and other nonrestrained defendant parties was also denied because the damages were not to restrained defendants. Id. at 839-41.

92. "The standards for which enforcementwould be sought either under administrative enforcement [in context meaning enforcement by the government] or through citizen enforcement procedures are the same. The participation of citizens in the courts seeking enforcement of air quality standards should not result in inconsistent policy." S. REP. NO. 1196, 91st Cong., 2d Sess. 36-39, reprinted in NRDC v. Train, 510 F.2d at 724, 5 ELR at 20064.

93. "Once a citizen suit to enforce an EPA-approved state implementation plan has been properly commenced, the district court is obligated, upon a showing that the state has violated the plan, to issue appropriate orders for its enforcement." Friends of the Earth v. Carey, 535 F.2d at 173, 6 ELR at 20490. See also Environmental Defense Fund, Inc. v. Lamphier, 714 F.2d 331, 13 ELR 21094 (4th Cir. 1983), in which the Fourth Circuit commented that "[u]nder the citizen suit provision of RCRA … the district court is authorized to enforce RCRA regulations or orders, presumably to the full extent of its legal and equitable powers." Id. at 337, 13 ELR at 21096. The court, however, qualifies its statement to apply where citizen plaintiffs are "genuinely acting as private attorneys general" rather than merely pursuing their own private remedies. The qualifier, however, is more properly addressed to whether the plaintiff has standing. Private plaintiffs with standing should have access to the same remedies as government enforcers.

94. WRIGHT & MILLER, supra note 37, at § 2942. Development in the Law — Injunctions, 78 HARV. L. REV. 994 (1968).

95. Bass Anglers Sportsman's Society of America v. Scholze Tannery, Inc., 329 F. Supp. 339, 345, 1 ELR 20359, 20361 (E.D. Tenn. 1971).

96. Insofar as private defendants seek to enjoin the violation of a statute, courts have also been reluctant to interfere with the discretion of the duly constituted prosecutor to determine whether and how to prosecute particular crimes. Id. at 345, 1 ELR at 20360.

97. 158 U.S. 564 (1894).

98. 362 U.S. 482 (1960).

99. See, e.g., U.S. v. Armco Steel Corp., 333 F. Supp. 1073, 1 ELR 20517 (S.D. Tex. 1971).

100. The Refuse Act Permit Program was established by Exec. Order No. 11574 (1970), under which the Corps of Engineers was to issue Refuse Act permits containing pollution abatement requirements established by EPA. The program was effectively halted by Kalur v. Resor, 335 F. Supp. 1, 1 ELR 20637 (D.D.C. 1971), which enjoined the issuance of such permits without compliance with NEPA. As a result, EPA increased civil injunctive actions under the Refuse Act, referring over 100 to the Justice Department from 1970 to 1972, and initiated an Abatement Commitment Letter Program under which it agreed to forebear civil prosecution under the Refuse Act against 180 dischargers that voluntarily undertook the same measures EPA would have required in a Refuse Act permit. See EPA, THE FIRST TWO YEARS, A REVIEW OF EPA'S ENFORCEMENT PROGRAM 8, 19-20 (1972).

101. An interesting example of this is U.S. v. Armco Steel Corp., 333 F. Supp. 1073, 1 ELR 20517 (S.D. Tex. 1971). This was a Refuse Act suit to halt discharges containing toxic wastes into the Houston ship channel. The pollution problem could have been solved either by properly treating the wastes prior to discharge or by disposing of the wastes through deep-well injection. Texas, which was impleaded, ordered Armco to use deep-well injection. EPA refused to allow injection unless 18 local abandoned oil and gas wells were first plugged to prevent reentry of the wastes to the surface. The court was unwilling to act as a mediator between two government agencies on the appropriate remedial measures and merely ordered immediate cessation of the discharge, the worst alternative from Armco's perspective.

102. 643 F.2d 835, 11 ELR 20391 (1st Cir. 1981), rev'd, 456 U.S. 305, 12 ELR 20538 (1982).

103. TVA v. Hill, 437 U.S. 153, 8 ELR 20513 (1978), in which the Court enjoined operation of the Tellico Dam under the ESA because it would endanger the beleaguered snail darter.

104. Environmental Defense Fund, Inc. v. Lamphier, 714 F.2d 331, 13 ELR 21094 (4th Cir. 1983); U.S. v. City of Painesville, 644 F.2d 1186, 11 ELR 20630 (6th Cir. 1981); Lloyd A. Fry Roofing Co. v. Air Pollution Variance Bd., 553 P.2d 800, 6 ELR 20754 (Colo. 1976).

105. For instance, cessation of discharge by a publicly owned treatment works (POTW) not meeting the terms and conditions of its permit would result in a public health emergency, as city residents would have no practicable way of safely disposing of their sanitary wastes. See Maryland v. Train, 415 F. Supp. 116, 6 ELR 20496 (D. Md. 1976), rev'd in part, 556 F.2d 575, 7 ELR 20443 (4th Cir. 1977), in which the court refused to order revocation of a permit to the City of Camden, New Jersey to dispose of sludge from its sewage treatment plant at sea because it literally had no alternative.

106. In holding that the 1972 Federal Water Pollution Control Act Amendments really did require POTWs to meet secondary treatment requirements by 1977, the Fourth Circuit admonished EPA:

Our holding … does not mean … severe sanctions will inevitably be imposed on municipalities who, despite good faith efforts are economically or physically unable to comply with the 1977 deadline. We fully expect that, in the exercise of its prosecutorial discretion, EPA will decline to bring enforcement proceedings against such municipalities. Furthermore, in cases where enforcement proceedings are brought, whether by EPA or by private citizens, the courts retain equitable discretion to determine whether and to what extent fines and injunctive sanctions should be imposed for violations brought about by good faith inability to comply with the deadline.

State Water Control Bd. v. Train, 559 F.2d 921, 927, 7 ELR 20571, 20573 (4th Cir. 1977). See also Friends of the Earth v. PEPCO, 419 F. Supp. 528, 535, 7 ELR 20090, 20093 (D.D.C. 1977).

107. In O'Leary v. Moyer's Landfill, Inc., 516 F. Supp. 517, 11 ELR 21005 (E.D. Pa. 1981), the court refused to enjoin further operation of a landfill found violating both the Clean Water Act and RCRA, since leachate would escape from the landfill even if it was no longer operating. Instead, the court ordered the landfill to develop and execute plans to stop leachate from escaping its boundaries. According to defendant's counsel, the continued operation of the landfill was the only source of revenue to correct the environmental harm it was found to have caused.

108. In Union Electric Co. v. EPA, 427 U.S. 246, 6 ELR 20570 (1976), the Court indicated, among other things, that federal enforcement under Clean Air Act § 113 could allow for "reasonable" time to comply. In U.S. v. Vertac Chemical Corp., 489 F. Supp. 870, 887, 10 ELR 20709, 20717 (E.D. Ark. 1980), the court cited the importance of continued operation of a plant to its employees and customers in giving it reasonable time to correct the problems at issue. And in perhaps the most celebrated environmental litigation, Reserve Mining Co. v. EPA, 514 F.2d 492, 5 ELR 20596 (8th Cir. 1975), 543 F.2d 1210, 7 ELR 20051 (8th Cir. 1976), the court of appeals reversed a district court shutdownorder and gave Reserve Mining a schedule to construct on-land disposal facilities before ordering it to cease discharging its taconite tailings to Lake Superior. These cases are especially significant in that the pollutants at issue were dioxin, found by the Vertac court to be the most acutely toxic substance synthesized by man, and asbestos, found by the Reserve Mining court to pose a danger of cancer in the Duluth, Minnesota water supply. If time to comply was given in these cases, it surely will be in others. See also Pymatuning Watershed Citizens for a Hygenic Environment v. Eaton, 506 F. Supp. 902, 11 ELR 20498 (W.D. Pa. 1980), aff'd, 644 F.2d 995, 11 ELR 20790 (3d Cir. 1981), and the confused and confusing opinion in U.S. v. Public Service Co. of Indiana, 12 ERC 1495 (S.D. Ind. 1977).

109. Maryland v. Train, 415 F. Supp. 116, 6 ELR 20496 (D. Md. 1976), rev'd in part, 556 F.2d 575, 7 ELR 20443 (4th Cir. 1977).

110. State Water Control Bd. v. Train, 559 F.2d 921, 7 ELR 20571 (4th Cir. 1977). In Friends of the Earth v. PEPCO, 419 F. Supp. 528, 7 ELR 20090 (D.D.C. 1977), the court refused to consider impossibility of compliance with a regulatory requirement in conjunction with a motion to dismiss, but indicated it could be considered in fashioning a remedy.

111. In U.S. v. American Capital Land Corp., 5 ELR 20705 (S.D. Miss. 1975), the court refused to order complete restoration of damage caused by unpermitted dredge and fill activity where it would bankrupt the defendant, no special environmental harm had been done, and the defendant was willing to undertake a lesser but still satisfactory remedial operation.

112. In Bicknell v. City of Boston, 5 ELR 20712 (Mass. Super. Ct. 1975), a state court ordered the shutdown of an incinerator not complying with state Clean Air Act requirements when it could not be feasibly made to comply, its emissions constituted a nuisance, and alternative means of trash disposal were available.

113. Union Electric Co. v. EPA, 427 U.S. 246, 6 ELR 20570 (1976); Friends of the Earth v. Carey, 535 F.2d 165, 6 ELR 20488 (2d Cir. 1976).

114. Union Electric Co. v. EPA, 427 U.S. 246, 6 ELR 20570 (1976); State Water Control Bd. v. Train, 559 F.2d 921, 7 ELR 20571 (4th Cir. 1977); U.S. v. Vertac Chemical Corp., 489 F. Supp. 870, 10 ELR 20709 (E.D. Ark. 1980). State Water Control Bd. strongly suggested that courts would not order cities to build sewage treatment plants in the absence of federal grants to do so. Contra U.S. v. Wayne County Dep't of Health, __ F.2d __, 19 ERC 2090 (6th Cir. 1983).

115. Pymatuning Watershed Citizens for a Hygenic Environment v. Eaton, 506 F. Supp. 902, 11 ELR 20498 (W.D. Pa. 1980), aff'd, 644 F.2d 995, 11 ELR 20790 (3d Cir. 1981); U.S. v. Vertac Chemical Corp., 489 F. Supp. 870, 10 ELR 20709 (E.D. Ark. 1980).

116. Illinois v. Costle, 9 ELR 20243 (D.D.C. 1979).

117. U.S. v. Pennsylvania Industrial Chemical Corp., 411 U.S. 655, 670-75, 3 ELR 20401, 20405-7 (1973) (exclusion of evidence that Corps of Engineers regulations misled defendant as to requirements under statute reversed); U.S. v. Kennebec Log Driving Co., 491 F.2d 562, 571, 4 ELR 20047, 20051 (1st Cir. 1973), cert. denied, 417 U.S. 910 (1973) (reliance on 75 years of government inaction a factor to be considered in fashioning relief); U.S. v. Martin, 517 F. Supp. 211, 11 ELR 20417 (D.S.C. 1981) (reliance on participation by government agents in project precludes subsequent claim it is illegal); California Tahoe Regional Planning Agency v. Sahara Tahoe Corp., 504 F. Supp. 753, 768-69 (D. Nev. 1980) (failure of federal and state government to act on application for permit and variance precludes immediate relief). It should be noted, however, that the general rule is that the United States is not subject to the defense of estoppel, see Annot., 27 A.L.R. FED. 702 (1976).

118. See California Tahoe Regional Planning Agency v. Sahara Tahoe Corp., 504 F. Supp. 753 (D. Nev. 1980).

119. 300 U.S. 515, 552 (1937).

120. 456 U.S. 305, 12 ELR 20538 (1982).

121. 559 F.2d 921, 7 ELR 20571 (4th Cir. 1977); contra U.S. v. Wayne County Dep't of Health, __ F.2d __, 19 ERC 2090 (6th Cir. 1983).

122. See Comment, Supreme Court Declares Injunctions Optional for FWPCA Violations, 12 ELR 10060 (1982).

123. U.S. v. Homestake Mining Co., 595 F.2d 421, 423, 9 ELR 20245, 20245-46 (8th Cir. 1979); U.S. v. City of Providence, 492 F. Supp. 602, 605, 10 ELR 20857, 20858 (D.R.I. 1980); U.S. v. City of Detroit, 476 F. Supp. 512, 516-17 (E.D. Mich. 1979); U.S. v. Ketchikan Pulp Co., 74 F.R.D. 104, 7 ELR 20368 (D. Alaska 1977); Commonwealth v. U.S. Steel Corp., 5 ERC 1565 (Pa. C.P. 1973).

124. California Tahoe Regional Planning Agency v. Sahara Tahoe Corp., 504 F. Supp. 753 (D. Nev. 1980).

125. Bicknell v. City of Boston, 5 ELR 20712 (Mass. Super. Ct. 1975).

126. U.S. v. City of Painesville, 644 F.2d 1186, 11 ELR 20630 (6th Cir. 1981).

127. U.S. v. Moretti, 526 F.2d 1306 (5th Cir. 1976); U.S. v. Sexton Cove Estates, Inc., 526 F.2d 1293, 6 ELR 20216 (5th Cir. 1976); Weiszmann v. Corps of Engineers, 526 F.2d 1302, 6 ELR 20219 (5th Cir. 1976); U.S. v. Sunset Cove, Inc., 514 F.2d 1089, 5 ELR 20407 (9th Cir.), cert. denied, 423 U.S. 865 (1975); U.S. v. Fleming Plantations, 9 ELR 20103 (E.D. La. 1978); U.S. v. American Capital Land Corp., 5 ELR 20705 (S.D. Miss. 1975).

128. See In re Debs, 158 U.S. 564 (1894), and U.S. v. Republic Steel Corp., 15 ERC 1462 (N.D. Ill. 1980).

129. Illinois v. Outboard Marine Corp., 619 F.2d 623, 10 ELR 20323 (7th Cir. 1980), vacated and remanded on other grounds, 453 U.S. 917 (1981), same case on remand, 680 F.2d 473, 12 ELR 20797 (7th Cir. 1982).

130. U.S. v. Wayne County Dep't of Health, __ F.2d __, 19 ERC 2090 (6th Cir. 1983); O'Leary v. Moyer's Landfill, Inc., 516 F. Supp. 517, 11 ELR 21005 (E.D. Pa. 1981); U.S. v. City of Providence, 492 F. Supp. 602, 10 ELR 20857 (D.R.I. 1980); Town of Greenwich v. DOT, 10 ELR 20178 (D. Conn. 1979); State v. Chem-Dyne Corp., 16 ERC 1854 (Ohio Ct. App. 12th App. Div. 1981).

131. A good example is the difficulty the court has had in forcing EPA to live up to its obligations under its consent decree with NRDC to issue effluent guidelines for toxic pollutants. Some of the more recent history of foot-dragging is recounted in Citizens for a Better Environment v. Gorsuch, 13 ELR 20975 (D.C. Cir. 1983). Perhaps sobered by Judge Flannery's continuing difficulty in this case, Judge Gesell commented when asked to set a schedule for the promulgation of regulations implementing RCRA: "The Court cannot appropriate funds; it cannot let out consulting contracts to develop the necessary information; it cannot hire personnel; and it cannot manage the agency's effort." Illinoisv. Costle, 9 ELR 20243, 20244 (D.D.C. 1979).

132. The appointment of the Mayor of Detroit as administrator to carry out the renovation of the Detroit sewage treatment plant in U.S. v. Wayne County Dep't of Health, __ F.2d __, 19 ERC 2090 (6th Cir. 1983), could serve as a model for making the EPA Administrator personally responsible for complying with court orders against EPA.

133. Pennsylvania assessed a $1.7-million penalty against a government contractor manufacturing munitions and the military officer overseeing it for various water pollution violations, although it ultimately dropped pursuit of the penalty against the officer. U.S. v. Pennsylvania Environmental Hearing Bd., 431 F. Supp. 747, 753, 7 ELR 20730 (M.D. Pa. 1977), 584 F.2d 1273, 8 ELR 20689 (3d Cir. 1978).

134. WRIGHT & MILLER, supra note 37, at § 2948 (1973).

135. U.S.v. Price, 523 F. Supp. 1055, 1066-67, 11 ELR 21047, 21051-52 (D.N.J. 1981), aff'd, 688 F.2d 204, 211, 12 ELR 21020, 21023 (3d Cir. 1982); U.S. v. Midwest Solvent Recovery, Inc., 484 F. Supp. 138, 10 ELR 20316 (N.D. Ind. 1980); Village of Kaktovik v. Corps of Engineers, 9 ELR 20117 (D. Alaska 1978).

136. Illinois v. Commonwealth Edison Co., 490 F. Supp. 1145, 1150-51, 10 ELR 20278, 20280-81 (N.D. Ill. 1980). In Environmental Defense Fund, Inc. v. Lamphier, 714 F.2d 331, 13 ELR 21094 (4th Cir. 1983), the court apparently assumed that a penalty claim by citizen enforcers under RCRA § 7002, voluntarily waived, was a valid claim.

137. Middlesex County Sewerage Auth. v. National Sea Clammers Ass'n, 453 U.S. at 4 n.3, 11 ELR at 20684 n.3. See also S. REP. NO. 414, 92d Cong., 2d Sess., reprinted in 2 HISTORY OF THE WATER POLLUTION CONTROL ACT AMENDMENTS OF 1972 at 1415, 1497 (1973).

138. Evansville v. Kentucky Liquid Recycling, Inc., 604 F.2d 1008, 1014, 9 ELR 20679, 20681 (7th Cir. 1979), cert. denied, 444 U.S. 1025 (1980). The analysis of the Fourth Circuit, however, in Menzel v. County Utilities Corp., 712 F.2d 91 (4th Cir. 1983), assumes that penalties are available in Clean Water Act § 505 cases for past violations. In the case below, the court had dismissed a count based on discharge without a permit on the theory that a subsequently obtained permit should be afforded retrospective effect. The Fourth Circuit overruled the dismissal, without discussing the fact that the only remedy left for that violation after the issuance of a permit is penalties for the past failureto secure one.

139. But only for citizen suits brought under Clean Water Act § 505.

140. defendants will not agree to open-ended consent decrees and courts are reluctant to clutter their dockets with matters that have no end. Termination is usually a period of time long enough after the scheduled compliance date to determine if compliance has been achieved and is permanent. See U.S. v. Rohm & Haas Co., 500 F.2d 167, 175, 4 ELR 20738, 20742 (5th Cir.), cert. denied, 420 U.S. 962 (1974).

141. For excellent discussions of the nature of consent decrees and many of the issues discussed below, see Citizens for a Better Environment v. Gorsuch, 13 ELR 20975 (D.C. Cir. 1983), and Stotts v. Memphis Fire Dep't, 679 F.2d 541 (6th Cir. 1982), cert. granted, 103 S. Ct. 2451 (1983). See also U.S. v. Homestake Mining Co., 595 F.2d 421, 9 ELR 20245 (8th Cir. 1979), and U.S. v. Ketchikan Pulp Co., 74 F.R.D. 104, 7 ELR 20368 (D. Alaska 1977).

142. Citizens for a Better Environment v. Gorsuch, 13 ELR at 20979; Stotts v. Memphis Fire Dep't, 679 F.2d at 552; U.S. v. Ketchikan Pulp Co., 430 F. Supp. 83, 86, 7 ELR 20369, 20370-71 (D. Alaska 1977).

143. Stotts v. Memphis Fire Dep't, 679 F.2d at 551; U.S. v. Ketchikan Pulp Co., 430 F. Supp. at 85-86, 7 ELR at 20370-71.

144. Citizens for a Better Environment v. Gorsuch, 13 ELR at 20979; Stotts v. Memphis Fire Dep't, 679 F.2d at 552-54; U.S. v. Ketchikan Pulp Co., 430 F. Supp. at 85-86, 7 ELR at 20370-71. In Stotts the Sixth Circuit listed a number of considerations bearing on this determination: (1) the complexity, expense, and duration of he underlying litigation; (2) the risks of litigation; (3) the resources of the defendant; (4) the extent to which the decree reflects the best recovery the plaintiffs could hope for; (5) the effects on nonparties; and (6) the objections raised by nonparties or class members.

145. Citizens for a Better Environment v. Gorsuch, 13 ELR at 20979; U.S. v. Ketchikan Pulp Co., 430 F. Supp. at 86, 7 ELR at 20370-71; U.S. v. U.S. Steel Corp., 6 ELR 20732 (N.D. Ala. 1976), aff'd on other grounds, 548 F.2d 1232, 7 ELR 20294 (5th Cir. 1977).

146. Stotts v. Memphis Fire Dep't, 679 F.2d at 554.

147. Citizens for a Better Environment v. Gorsuch, 13 ELR at 20978-80.

148. See supra note 63.

149. See Stotts v. Memphis Fire Dep't, 679 F.2d at 551-55.

150. Id. at 554.

151. U.S. v. Ketchikan Pulp Co., 430 F. Supp. at 85, 7 ELR at 20370.

152. Stotts v. Memphis Fire Dep't, 679 F.2d at 555.

153. See supra cases cited in note 74.

154. See supra cases cited in note 76.

155. These procedures can lead to real surprises. A good example is a recent experience of National Steel.

The company entered a comprehensive consent decree with EPA a few years ago to remedy air pollution violations. Under the decree, it abandoned efforts to obtain a compliance stretchout under the 1981 Clean Air Act amendments and, with EPA's encouragement, developed a bubble to substitute for and defer the compliance schedule in the consent decree. EPA and National Steel agreed to changes in the consent decree effectuating the bubble. These changes were challenged by the Natural Resources Defense Council (NRDC), which pointed out that the decree, by its very terms, could not be amended except as a result of legislative changes. NRDC prevailed in court. National Steel not only lost the benefit of its agreement with EPA, but not it must also pay a hefty penalty for violations of a decree that previously had been sanctioned by EPA.

Miller, The Decline and Fall of EPA Enforcement, ENVTL. ANALYST, Aug. 1983, at 3,3-4.

156. U.S. v. Swift & Co., 286 U.S. 106, 114-20 (1932); Stotts v. Memphis Fire Dep't, 679 F.2d at 560-64; Humble Oil & Refining Co. v. American Oil Co., 405 F.2d 803, 812-14 (8th Cir. 1969); Michigan v. City of Allen Park, 573 F. Supp. 1481, 1483-86 (E.D. Mich. 1983); U.S. v. City of Providence, 492 F. Supp. at 608-09, 10 ELR at 20859-60.

157. Michigan v. City of Allen Park, 573 F. Supp. at 1486.

158. See Commonwealth v. Bethlehem Steel Corp., 9 ERC 2014, 2018 (Pa. 1976). "The modification proceedings must be carried out on the polluter's time, not at the expense of the general public." This is analogous to holdings that an unsuccessful appeal from the terms of a permit will not insulate the source from enforcement of a requirement to meet permit requirements by a statutory deadline, U.S. Steel Corp. v. Train, 556 F.2d 822, 853-55, 7 ELR 20419, 20433-34 (7th Cir. 1977); and that application for a variance from the terms of a state implementation plan will insulate the source from enforcement for violation of the plan in the meantime, Connecticut v. Long Island Lighting Co., 535 F. Supp. 546, 12 ELR 20668 (E.D.N.Y. 1982).

159. Michigan v. City of Allen Park, 573 F. Supp. at 1484 n.5. See also Tacoma v. Taxpayers of Tacoma, 357 U.S. 320, 335-41 (1958). But see WRIGHT & MILLER, supra note 37, §§ 4448, 4449, 4452, 4458 (1981).