Pros and Cons of Citizen Enforcement: Citizen Suits: A Defense Perspective

Theodore L. Garrett

Mr. Garrett is a partner at the law firm of Covington & Burling in Washington, D.C.

The recent wave of citizen suits has prompted criticisms that many of the suits are unfounded, will not improve environmental compliance, and may improperly invade the prosecutorial power of the government. There are sound reasons why enforcement often is not pursued or is handled informally by the government; these factors frequently are not considered by citizen groups. The following are some observations from a defense perspective.

Several environmental statutes authorize citizens to file suits seeking compliance against companies allegedly in violation of a federal statute, regulation, or permit. The Clean Water Act¹ also allows citizens to seek the imposition of penalties and to recover attorneys fees.² Since the Clean Water Act requires permittees to monitor their effluents and report the results, the Act provides an ideal opportunity for citizen suit litigation. Since 1982, hundreds of citizen suits have been filed, and these suits may be changing the face of environmental enforcement. A number of the cases raise substantial issues.

The Impact on EPA

Legitimate concern on the part of permittees over citizen suits could have the unfortunate effect of hampering Environmental Protection Agency (EPA) and state administration and enforcement. As to the former, the threat of citizen suits is likely to delay the issuance of National Pollution Discharge Elimination System (NPDES) permits. In the past, few permits have been the subject of formal adjudicatory hearings. Immediately apparent issues have been resolved in negotiations. It has been understood that future compliance problems could be dealt with informally. The prospect of citizen suits is likely to compel permittees to adopt a more formal, legalistic approach in future permit proceedings, to assure that a permit is thoroughly justified in all respects.

Under several environmental statutes, EPA has the option of pursuing enforcement action either by bringing a suit in federal court or by issuing an administrative order.³ It is generally more expeditious for EPA to proceed by means of an administrative order, where the facts so warrant. Although a court action by the government clearly bars a citizen suit arising from the same facts, citizen groups have argued with some success that administrative orders do not afford protection against a citizen suit.⁴ If citizen groups prevail in this argument, industry parties may be less inclined voluntarily to enter into such administrative orders. This result would undercut enforcement efforts.

In the face of the rising tide of citizen suit litigation, EPA and the states have chosen to maintain a low profile, declining to get involved. EPA has resisted efforts of defendants to bring it into citizen suits as a necessary party. EPA and state agencies have not offered to provide testimony in citizen suits as to the background of the development of permits and the nature and seriousness of violations. As a result, it may be difficult or impossible to develop facts critical to an understanding of key issues concerning liability and the relief sought. A persuasive case can be made that EPA and state permit writers have an obligation to come forward to present these facts.

Unrealistic Enforcement

Because environmental programs are still being developed, many federal requirements are not on a sound footing. Citizen suits seeking to impose strict liability in these circumstances may miss the mark and be terribly unfair to both the defendant and the regulatory agencies. For example, in the absence of EPA effluent limitations guidelines regulations, a large number of the permits issued to industrial dischargers under the Clean Water Act were based on ad hoc judgments as to limitations achievable through the use of appropriate technology.⁵ Often these permit limitations are subsequently found to be unachievable due to unrealistic predictions or technical errors. In [16 ELR 10163] the past, these situations have been handled informally through the exercise of enforcement discretion, rather than the more burdensome process of permit modification. In citizen suits, however, plaintiffs have sought to impose strict liability and penalties, ignoring the underlying circumstances and the enforcement agency's reasonable resolution of the matter.

Technology-based requirements under the Clean Water Act are based on statistical calculations premised on the assumption that even the best performing plants will not be able to achieve compliance 100 percent of the time. This fact is reflected in both the ad hoc limits and permits based on EPA's regulations. Normal variations in analytical results can lead to incorrect reports of violations. EPA and state permit writers deal with these issues through the exercise of enforcement discretion. Citizen suits ignore these factors, however, and seek to impose penalties in situations not intended to be the subject of enforcement actions.

Penalties For Past Violations

Citizen suits seeking penalties for past violations are controversial. In several cases, citizen groups have sued companies that are in compliance with applicable environmental requirements. Nonetheless, plaintiffs claim that citizens may seek penalties for violations allegedly occurring only in the past. Provisions of the Clean Water Act and some judicial decisions support the argument that a citizen suit may be commenced only against a company in violation at the time suit is commenced.⁶

What is the purpose served by suits purely to collect penalties for past violations? Citizen plaintiffs argue that such suits serve as a "lesson" for other companies and improve compliance with environmental laws. But what is the lesson if companies coming into compliance are rewarded with litigation? Defendants argue persuasively that citizen groups should focus their attention on compliance rather than penalties.

The delays and costs of citizen suits are of concern to defendants. It sould be in the interest of all parties to resolve citizen suits — like any litigation — promptly and fairly. Given the sparse judicial precedent in this area and the magnitude of the penalties sought by plaintiffs, however, it is not surprising that litigation has often been protracted. Defendants have expressed concern that plaintiffs' demands are unrealistic and that the suits will involve trial costs and fees out of proportion to their merits. As this area of the law develops and matures, one hopes that cases will be resolved in a more expeditious and cost-effective manner.

Conclusion

Litigation will always be an important facet of the government's enforcement strategy. Well-founded citizen suits can serve as a prod to government efforts as well as private compliance. Citizen suits are not a panacea, however. In the past decade, it has become increasingly apparent that America suffers from a litigation explosion that has clogged the courts and raised significant issues of public policy. A successful environmental program should be based on voluntary cooperation between rsegulated industry and federal and state agencies, rather than litigation.

1. The Clean Water Act is the popular name of the Federal Water Pollution Control Act, 33 U.S.C. §§ 1251-1376, ELR STAT. 42101.

2. Section 505, 33 U.S.C. § 1365, ELR STAT. 42147.

3. See, e.g., Clean Water Act § 309(a), 33 U.S.C. § 1319(a), ELR STAT. 42130.

4. Compare Friends of the Earth v. Consolidated Rail Corp., 768 F.2d 57, 15 ELR 20674 (2d Cir. 1985), with Baughman v. Bradford Coal Co., 592 F.2d 215, 9 ELR 20147 (3d Cir.), cert. denied, 441 U.S. 961 (1979).

5. See Clean Water Act § 402(a)(1), 33 U.S.C. § 1342(a)(1), ELR STAT. 42141. See also American Petroleum Institute v. Environmental Protection Agency, 16 ELR 20610 (5th Cir. Apr. 18, 1986) resolving industry challenges to such ad hoc permits.

6. See Hamker v. Diamond Shamrock Chemical Co., 756 F.2d 392, 15 ELR 20385 (5th Cir. 1985).