18 ELR 10165 | Environmental Law Reporter | copyright © 1988 | All rights reserved

Opportunities for Environmental Enforcement and Cost Recovery by Local Governments and Citizen Organizations

Adam Babich and Kent E. Hanson

Editors' Summary: When citizens and local governments are confronted with problems of pollution and environmental contamination, one of their options is to use the courts to seek enforcement of environmental laws against polluters or to recover the cost of cleaning up the contamination. In this Article, or to recover the cost of cleaning up the contamination. In this Article, Mr. Babich and Mr. Hanson review the citizen suit provisions of the major federal environmental laws and CERCLA's cost recovery provisions, examine important legal issues arising under such provisions, and assess the practical effect on citizen suits of recent Supreme Court precedent in Tull v. United States and Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc. The authors conclude that citizen suits and cost recovery claims, though presently underutilized, can be an effective means of responding to past pollution, halting ongoing pollution, and perhaps deterring future violations.

Adam Babich is associated with the Denver, Colorado, law firm of McGuire, Cornwell & Blakey. He is a former Assistant Attorney General for the State of Colorado's CERCLA Litigation Section and a graduate of Yale Law School. Kent E. Hanson is counsel to McGuire, Cornwell & Blakey and the former First Assistant Attorney General of the State of Colorado's CERCLA Litigation Section. Mr. Hanson graduated from the University of Denver College of Law.

[18 ELR 10165]

As environmental law has matured, it has become obvious that efforts of environmental groups, local governments, and concerned citizens to secure strong federal statutes and regulations have little practical effect unless those statutes and regulations are enforced. Although federal and state authorities are charged with responsibility for enforcing existing environmental laws, lack of enforcement is a serious problem.1 Consequently, local governments and citizen organizations interested in improving the quality of the environment have begun to devote their efforts both to seeking new laws and precedents and to enforcing existing laws.2 Many federal environmental laws offer opportunities for such "citizen enforcement" (i.e., enforcement by citizen organizations, individual citizens, and state or local governments) of antipollution statutes, regulations, permits, and orders.3 These same laws provide for subsequent reimbursement by the polluter of costs and reasonable attorneys fees to the prosecuting citizen group or governmental unit. Generally, citizen enforcement provisions of environmental laws have been found to provide "fast, affordable, and effective" remedies to citizen enforcers.4 Additionally, under provisions of the federal Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA, or Superfund),5 local governments and citizens may recover the costs, including litigation costs, of responding to environmental contamination or threats of such contamination, (e.g., conducting cleanup of contaminated sites).6

Despite their efficacy and availability, federal citizen enforcement and cost recovery provisions tend to be underutilized.7 Environmental statutes and regulations are complex and many enforcement and cost recovery opportunities may be lost simply because the legal remedies are not familiar to those who might use them.8 This Article [18 ELR 10166] is designed to aid the public, local governments, and the legal community in recognizing and exploiting opportunities for citizen enforcement and cost recovery under federal environmental laws.9 The Article reviews generally the purposes, mechanics, and practicalities of citizen enforcement and cost recovery, especially in light of recent United States Supreme Court precedent providing a right to a jury in civil penalty cases and limiting citizen enforcement to cases in which a continuous or intermittent violation is alleged.

Citizen Enforcement and Cost Recovery Actions in General

Essentially every major piece of anti-pollution legislation enacted by Congress over the last 15 years, including statutes governing air and water pollution and management of hazardous wastes, provides for direct citizen enforcement by "private attorneys general"10 and for recovery of attorneys fees and costs.11 Congress set the pattern for citizen enforcement provisions in the beginning of the 1970s with the "citizen suit" provisions of the Clean Air Act12 and the Federal Water Pollution Control Act (FWPCA, also known as the Clean Water Act),13 two of the earliest federal environmental laws. These citizen suit provisions were intended to: (1) provide authority to abate pollution caused by violations of environmental laws; (2) encourage voluntary compliance with such laws;14 and (3) prod governmental agencies into more active enforcement of the law.15 CERCLA's provision for governmental and private recovery of the costs of responding to environmental contamination, although foreshadowed by a more limited governmental cost recovery provision of the FWPCA,16 is a departue from earlier environmental statutes that focus primarily on regulatory prevention of contamination.17 Congress intended the cost recovery provisions of CERCLA to promote prompt response to releases and threatened releases of hazardous substances,18 with the cost to be borne by those who profit from management and disposal of such hazardous chemicals rather than by taxpayers.19

The citizen suit provisions of the major environmental statutes authorize any "person"20 to bring suit against a person (including the United States or other governmental unit)21 who "is alleged to be in violation" of a requirement [18 ELR 10167] of the applicable law or implementing regulation, permit, or order.22 Citizen enforcement actions generally cannot be maintained unless notice of intent to file such suits is provided to the Environmental Protection Agency (EPA), the state, and the violator 60 days in advance of filing.23 This notice is intended to stimulate either governmental enforcement action or voluntary compliance.24 If EPA or the state is "diligently prosecuting" an action to require compliance, citizen enforcement is barred.25 Similarly, if the discharger voluntarily comes into complaiance (i.e., demonstrates that it is absolutely clear that violations will not recur) a citizen suit generally may not be brought solely for past violations.26 Cost recovery suits under CERCLA, in contrast, are not subject to either the 60-day notice limitation or the diligent prosecution bar.27 Moreover, CERCLA's cost recovery provisions are specifically designed to allow recovery of "past" response costs.28

The scope of citizen enforcement authority is generally broad, but varies in its details from statute to statute.29 Both § 304 of the Clean Air Act and § 505 of the FWPCA provide authority for citizens and local governments to enforce essentially every anti-pollution requirement of those Acts.30 Section 1449 of the Safe Drinking Water Act, authorizes, inter alia, citizen enforcement of requirements governing underground injection of pollutants and the quality of public drinking water.31 Citizens may enforce the Toxic Substances Control Act (TSCA) to remedy mismanagement of polychlorinated biphenyls.32 The Emergency Planning and Community Right-to-Know Act (EPCRA) authorizes citizen suits to force facilities to provide information about the types, amounts, locations, and manner of storage of their hazardous chemicals and the types, sources, and amounts of hazardous or toxic chemicals released into the environment.33 CERCLA § 310, the citizen suit (as opposed to the cost recovery) provision of CERCLA, allows citizen enforcement of, inter alia, cleanup standards and requirements that become effective under the Act for specific hazardous waste sites.34 Section 7002(a)(1)(A) of the Resource Conservation and Recovery Act (RCRA) provides citizen-plaintiffs with broad authority to enforce "any permit, standard, regulation, condition, requirement, prohibition or order" under the federal hazardous waste regulatory program and federally approved state programs.35 Additionally, in a departure from the usual pattern of citizen enforcement provisions, § 7002(a)(1)(B) of RCRA contains extremely broad authority for citizens to obtain remedial injunctions against any person whose past or present conduct with respect to hazardous or solid waste may present an "imminent and substantial endangerment" to health or the environment.36 [18 ELR 10168] This provision creates a statutory, federal cause of action for environmental public nuisances.37

The cost recovery provisions of CERCLA are found in §§ 107(a)(1)-(4)(A) & (B) of the Act.38 Section 107 authorizes suit by the federal government (or a state or Indian tribe), and by "any other person" to recover "response costs" from broad categories of liable parties.39 Recoverable response costs include the costs of such activities as emergency responses by local fire departments to situations involving hazardous substances, environmental sampling or monitoring, court actions to compel compliance with state or federal environmental laws or to abate environmental nuisances, provision of alternative water supplies to avoid public consumption of contaminated drinking water, and actual cleanup of hazardous substances.40 Despite some early confusion, it is now clear that actions for recovery of costs under CERCLA are not limited to sites identified by EPA on the National Priorities List41 and do not require prior approval by EPA or state governments.42

Special Issues

"Persons" Who May Bring Citizen Enforcement and Cost Recovery Suits

Under the citizen suit provisions of the major environmental statutes, citizen enforcement actions may be prosecuted by "any person."43 It is apparent from the face of most such statutes, including the Clean Air Act and the FWPCA, that Congress intended the definition of "person" to provide individual citizens, citizen organizations, and local governmental units with the authority to bring enforcement suits.44 Similarly, "person" is defined with respect to the private cost recovery provision of CERCLA, which authorizes suit by "any other person," to include individuals, corporations, associations, municipalities, commissions, and political subdivisions of states.45 However, local governments have also been held to qualify as "states" under CERCLA in actions for recovery of response costs and natural resource damages.46 The distinction is significant because in actions by "any other person" to recover costs under CERCLA, "persons" must prove that their response actions were "necessary" and [18 ELR 10169] "consistent" with federal regulations.47 In contrast, a local government suing to recover costs as a "state" must prove that costs were incurred responding to releases or threatened releases of hazardous substances; it is the defendant's burden to prove that such costs were incurred in a manner inconsistent with the regulations.48

Standing

The definition of "person" does not resolve all questions as to an entity's authority to bring citizen enforcement or cost recovery actions under the federal environmental laws. In order to prevail in such suits a party must have "standing." The doctrine of standing requires that a party allege a "personal stake" in the outcome of the controversy sufficient to ensure that "the dispute sought to be adjudicated will be presented in an adversary context and in a form historically viewed as capable of judicial resolution."49 To demonstrate standing under federal citizen suit provisions, plaintiffs must prove that they have suffered or will suffer at least some injury that may be redressed by judicial action.50 In the case of a citizen organization or local government, the requirement of standing means that such organization or government must show that at least one of its members or citizens has been injured or is threatened with injury.51 The fact or threat of injury may be proven relatively simply by demonstrating lost use or diminished enjoyment of the natural resource at issue.52 Accordingly, the requirement of standing generally will not be a serious impediment to success on the merits of a citizen enforcement suit by a plaintiff with some involvement with the subject matter of the suit.53 In actions under CERCLA to recover response costs, the plaintiff may demonstrate standing by showing that it has incurred at least some costs of responding to releases or threatened releases of hazardous substances.54

Proof of Liability

Modern anti-pollution statutes and regulations generally require that dischargers perform extensive monitoring of their discharges and submit detailed reports to state or federal agencies.55 These reports are available to the public. Under established principles of federal law,56 such legally mandated reports constitute admissions that may be used by citizen enforcers to establish strict liability for violations of environmental statutes.57 Violators generally have [18 ELR 10170] been unsuccessful in avoiding summary judgment by challenging the accuracy of data in such reports.58 Similarly, it has proven difficult for dischargers to avoid liability by asserting that exceedances of permit limitations were due to uncontrollable, and thus in some instances permissible, "upsets," i.e., unintentional and temporary failure to comply with technology-based permit limitations due to circumstances beyond the reasonable control of the permittee.59 Consequently, proof of liability in a carefully selected citizen enforcement action is extremely straightforward, and often accomplished through summary judgment.60

Cost recovery actions under CERCLA do not require proof of any wrongdoing on the part of defendants.61 Rather, to establish strict, joint and several liability under CERCLA, the plaintiff must prove only that there has been a release, or a threatened release, which has caused the incurrence of response costs; that the release was of a hazardous substance, from a facility; and that the defendant falls within one of the broad categories of responsible parties declared liable by Congress in CERCLA § 107(a).62 Congress' list of liable parties under CERCLA is sufficiently broad to include every party with any significant involvement with the hazardous substances at a site, i.e., the past or current owner of a facility, the operator of a facility, the person who arranged for transport of the hazardous substances, and the transporter of such substances.63 Accordingly, proof of liability is often accomplished through summary judgment.64

The "Diligent Prosecution" Bar to Citizen Enforcement

To avoid needless duplication of enforcement efforts, Congress has prohibited citizen enforcement actions where the government is already "diligently" prosecuting an action "in court" to achieve compliance with the applicable environmental requirement.65 The meaning of diligent prosecution "in court" is the subject of a split in the circuit courts.66 Federal courts generally have permitted citizen suits to be prosecuted where the governmental agency has brought only an administrative, as opposed to judicial, enforcement action.67 However, recent amendments to the [18 ELR 10171] FWPCA provide that where the government has issued a final order with respect to a violation and where the discharger has paid a penalty for that violation in an administrative proceeding, the discharger is not liable for an additional civil penalty for the violation in a citizen enforcement action, unless the citizen suit was filed prior to commencement of the administrative proceeding or within 120 days of a notice of intent to sue submitted prior to commencement of the proceeding.68 Similarly, citizen suits under EPCRA are barred if EPA is diligently pursuing an administrative order or civil action.69 In addition, citizen actions to abate imminent and substantial endangerments under RCRA § 7002(a)(1)(B)70 may not be brought if EPA or the state is diligently pursuing abatement under RCRA §§ 700371 or 7002(a)(1)(B) or pursuing cleanup under CERCLA.72

Agency action will not bar citizen suits unless taken before filing of the citizen enforcement action.73 There is no reason to believe that either EPA or the states will devote their limited enforcement budgets to attempting to preclude all citizen suits.74 Accordingly, although the "diligent prosecution" bar to citizen suits may make one or another specific violation unattractive for citizen enforcement, the provision should not hinder establishment of an active and successful citizen enforcement program. There is no "diligent prosecution" bar to recovery of response costs under CERCLA.

Available Remedies

Neither environmental citizen suit provisions nor CERCLA's cost recovery authority provides for compensation of private parties for personal injury or property damage.75 However, the costs of actions taken to prevent, mitigate, clean up, or otherwise respond to actual or threatened environmental contamination are potentially recoverable response costs under CERCLA.76 Moreover, under court rulings that local governments fall within CERCLA's definition of "state[s]," local governments may recover damages for injury to natural resources resulting from released hazardous substances.77 Additionally, federal courts generally have discretion, pursuant to the doctrine of pendent jurisdiction, to entertain claims under state statutory or common law in conjunction with citizen suit and cost recovery claims arising from the same "nucleus of operative fact."78

All environmental citizen suit provisions authorize courts to enter mandatory injunctive relief.79 Additionally, under FWPCA § 505(a), RCRA § 7002(a), CERCLA § 310(c), and EPCRA § 326(c) courts may assess substantial civil penalties.80 Penalties under the FWPCA, RCRA, and CERCLA are authorized up to $25,000 per day, per violation.81 EPCRA provides for penalties up to $10,000 or $25,000 per day, per violation, depending on the offense.82 Second or subsequent violations under CERCLA or EPCRA may result in penalties of up to $75,000 per day, per violation.83 Although such penalties accrue to the United States Treasury, rather than to the citizen enforcer,84 assessment of penalties may be invaluable in deterring future offenses and encouraging violators to settle citizen suits, rather than litigate in an effort to postpone compliance. Settlements have often involved contributions to environmentally beneficial projects in lieu of penalties.85

CERCLA § 107, governing cost recovery actions, provides for reimbursement to plaintiffs of past response costs, i.e., costs already incurred in responding to actual or threatened contamination.86 Moreover, once a plaintiff has incurred some such costs, a court may enter a declaratory judgment establishing a cleanup plan for the site at issue, including standards and requirements that must be met at the site, and declaring the defendant liable for the plaintiff's future costs of implementing that plan, or of compelling and overseeing the defendant's implementation of [18 ELR 10172] the plan.87 Once the court, by declaratory judgment, has established the standards and requirements that must be met at the site, the court may enter an appropriate injunction under CERCLA § 310, governing citizen suits.88 Moreover, CERCLA cost recovery claims may be brought in conjunction with claims for injunctive relief under other environmental citizen suit provisions, including RCRA § 7002's imminent and substantial danger provision.89 Thus, CERCLA's cost recovery authority and environmental citizen suit provisions may be used together to obtain expeditious cleanup at the cost of the polluter.

Recovery of Attorneys Fees and Costs

Federal citizen suit provisions generally provide that the citizen-plaintiff may recover attorneys fees and costs where "appropriate."90 Recovery of reasonable attorneys fees is not considered difficult in citizen enforcement cases, since the precedent for such recovery is relatively well established and based on clear statutory language. The law requires that the plaintiff achieve at least "some success on the merits" and not "trivial … or purely procedural" success.91 This standard will not be difficult to meet in most citizen suits since liability generally is readily established.92 When a party has prevailed on only some of multiple claims, attorneys fees are appropriate only for the prevailing claims.93 However, a successful party is entitled to attorneys fees for advancing alternative arguments, even if only one of those alternatives prevails.94

Attorneys fees should be awarded for the number of hours reasonably spent, multiplied by a reasonable hourly rate that reflects factors such as the novelty and complexity of the issues, and the skill and experience of counsel.95 This calculation results in a "lodestar" amount that is strongly presumed to be the appropriate award.96 Courts will not enhance the lodestar based on factors such as the difficulty of the issues presented or the special skill of counsel, since these factors should already have been reflected in the billing rate and number of hours used to calculate the lodestar.97 However, under certain circumstances adjustments to the lodestar are permitted.98 For example, it may be appropriate to consider the contingent nature of the recovery in determining whether the lodestar should be adjusted.99

Attorneys fees in CERCLA cost recovery cases are recoverable as costs of "enforcement activities" under the same standard as for recovery of other response costs under the Act.100 Accordingly, plaintiff must prove that its attorneys fees were "necessary" and "consistent" with federal regulations.101 This standard may not differ markedly from the "appropriate" standard under citizen suit provisions except that recovery may be limited to the actual costs of legal representation incurred by the plaintiff. When a local government has brought a cost recovery suit as a "state," it is the defendant's burden to show that attorneys fees were incurred in a manner inconsistent with federal regulations.102

Recent United States Supreme Court Precedent

The United States Supreme Court recently issued two decisions, Tull v. United States103 and Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc.,104 that alter the legal framework of citizen enforcement actions. Although the opinions change the rules governing citizen suits, neither adversely affects the viability of citizen enforcement in general. The opinions do not address cost recovery suits under CERCLA.

The Right to Jury

In Tull, the Supreme Court held that defendants in civil penalty cases brought by the federal government under the FWPCA are entitled to jury trials.105 The rationale of the Court's ruling is arguably applicable to citizen enforcement actions.106 The Court, however, ruled that defendants are entitled to jury trials only on the issue of liability. The [18 ELR 10173] amount of penalties will continue to be set by the trial court.107 This limitation in the Court's ruling makes the option of demanding a jury significantly less attractive for defendants, especially since in most citizen enforcement cases involving penalties liability issues are extremely straightforward and capable of resolution by summary judgment or directed verdict.108 To the extent that demands for jury trials complicate or delay citizen enforcement actions, it is the defendant who ultimately will be liable for any resulting increase in costs or attorneys fees.

The decision in Tull affects only claims for penalties. Accordingly, the decision has no impact upon those environmental citizen suit provisions that provide only for injunctive relief and recovery of costs and fees.109 Because penalties in citizen enforcement actions are awarded to the United States government, not the citizen enforcer, a citizen-plaintiff may wish to forego a penalty claim to avoid the risk of a jury trial. Countervailing considerations, however, are that penalty claims may deter future violations and provide additional "leverage" in settlement negotiations and may result in settlements involving contributions from defendants to environmentally beneficial projects.110

The Requirement of an Allegation of Current Violation

The Court in Gwaltney resolved a split in the circuits by ruling that the FWPCA does not authorize citizen enforcement actions for "wholly past" violations.111 The Court recognized, however, that because violations of the Act may occur intermittently, a discharger might exceed discharge limitations on the date that notice of intent to bring suit is provided and yet, without having addressed the underlying problem, be within such limitations at some points during pendency of the lawsuit.112 Thus, a requirement that citizen-plaintiffs prove a "current" violation would have introduced substantial uncertainty into the citizen enforcement process. The Gwaltney decision, however, avoids imposing any additional requirements of proof on citizen enforcers.

Relying primarily on language of the FWPCA's citizen suit provision authorizing suit against any person "alleged to be in violation," the Court ruled that the interest of citizen-plaintiffs is primarily "forward-looking."113 This forward-looking interest encompasses continuous and intermittent violations.114 The Court noted that:

Congress' use of the phrase "alleged to be in violation" reflects a conscious sensitivity to the practical difficulties of detecting and proving chronic episodic violations of environmental standards.115

Striking a balance to preserve the forward-looking perspective of the statute without imposing new burdens of proof upon the plaintiff, the Gwaltney Court required that acitizen enforcement complaint under the FWPCA contain a good faith allegation of continuous or intermittent violations.116 The decision, however, does not require that the plaintiff prove that allegation. To the contrary, it is the defendant's burden to prove that it is "absolutely clear" that the violation cannot reasonably be expected to recur and that the plaintiff's action is therefore moot.117

Expressing an unusual view of the standing doctrine, Justice Scalia asserted in a concurring opinion to Gwaltney that, even if no proof of an ongoing state of violation is needed to survive a motion for dismissal, "such evidence would still be required to establish the plaintiff's standing."118 According to the concurrence, because the FWPCA provides a remedy only for an ongoing state of violation, if the violation has ceased there is no "remediable injury in fact," and thus no standing.119 However, the question to be addressed when determining a plaintiff's standing to sue is not whether the plaintiff will ultimately prevail120 but whether that plaintiff has a personal stake in the lawsuit's outcome.121 Thus the doctrine requires that a plaintiff have suffered an injury that may be redressed by judicial action, that is, an injury that "fairly can be traced to the challenged action of the defendant."122 Nonetheless, the Gwaltney concurrence attempted to stretch the requirement of an injury that may be redressed by judicial action to require plaintiffs to prove, under the facts of the specific case at issue, that they are entitled to a remedy for their injuries.123

[18 ELR 10174]

Justice Scalia's opinion did not address plaintiff's personal stake in the outcome of the case, nor did it assert that plaintiff had not suffered an injury to an interest protected by provisions of the FWPCA that are enforceable by the courts. Rather, the analysis of the concurrence rests entirely upon the possibility that the plaintiff in Gwaltney did not manage to get its case before a court quickly enough to present a live controversy. As recognized by the majority of the Supreme Court, such a situation is properly analyzed under the rubric of mootness, with a "heavy" burden of proof resting on the defendant.124 Although the existence of the standing argument relied on by the concurrence was acknowledged by the Supreme Court's majority opinion, it was neither accepted nor explicitly rebutted.125 The Court noted that allegations of standing must be proven at trial on the merits, but did not hold that such allegations of standing must include an allegation of a continuous or intermittent violation.126 Indeed, by ignoring the conclusion of the concurrence that the Court's remand order should require consideration of the actual existence of a continuing state of violation127 and by adopting a mootness analysis that rests the burden of proof on the defendant, the majority implicitly rejected Justice Scalia's argument on standing.

By prohibiting citizen suits for wholly past violations, the Court diminished the deterrent potential of the FWPCA and similarly worded statutes.128 However, by declining to increase the citizen's burden of proof under such statutes, the Court proserved the ability of local governments and citizen organizations to enforce environmental laws effectively against the multitude of current violators.

Conclusion

Despite an increase in citizen enforcement activity under the FWPCA, citizen suit and cost recovery provisions of federal environmental laws generally continue to be underutilized. Enough actions have been brought, however, to provide sufficient precedent to assess realistically the strengths and weaknesses of specific cases. Recent United States Supreme Court decisions do not pose inordinate new obstacles to success in carefully selected cases. Accordingly, citizen suits and actions to recover costs of responding to environmental contamination can be expected to provide affordable and effective remedies to plaintiffs who wish to take advantage of them.

1. The vagaries of federal environmental enforcement and problems of noncompliance with environmental laws are well documented. See, e.g., Note Toxic Waste Litigation, 99 HARV. L. REV. 1458, at 1474 & n.47 (1986); DIMENTO, ENVIRONMENTAL LAW AND AMERICAN BUSINESS, DILEMMAS OF COMPLIANCE 19-25, 139-142 (1986). See also Roisman, The Role of the Citizen in Enforcing Environmental Laws, 16 ELR 10163 (July 1986).

2. Fadil, Citizen Suits Against Polluters: Picking Up the Pace, 9 HARV. ENVTL. L. REV. 23 (1985). See also Meier, Citizen Suits" Become a Popular Weapon in the Fight Against Industrial Polluters, Wall St. J., Apr. 17, 1987, at 17, col. 4.

3. See § 7002 of the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. § 6972, ELR STAT. RCRA 033-34; § 326 of the Emergency Planning and Community Right-to-Know Act (EPCRA), 42 U.S.C. § 1104, ELR STAT. EPCRA 011-012; § 310 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA, or Superfund), 42 U.S.C. § 9659, ELR STAT. 44072-73; § 505 of the Federal Water Pollution Control Act (FWPCA, also known as the Clean Water Act), 33 U.S.C. § 1365; § 304 of the Clean Air Act, 42 U.S.C. § 7604; § 12 of the Noise Control Act, 42 U.S.C. § 4911; § 1449 of the Safe Drinking Water Act (SDWA), 42 U.S.C. § 300j-8, ELR STAT. 41120; § 11(g) of the Endangered Species Act (ESA), 16 U.S.C. § 1540(g), ELR STAT. ESA 025-026; § 20 of the Toxic Substances Control Act (TSCA), 15 U.S.C. § 2619, ELR STAT. TSCA 027-028; § 520 of the Surface Mining Control and Reclamation Act (SMCRA), 30 U.S.C. § 1270, ELR STAT. SMCRA 044-045; § 105(g) of the Marine Protection, Research, and Sanctuaries Act, 33 U.S.C. § 1415(g); § 16 of the Deepwater Port Act, 33 U.S.C. § 1515; of the Deepwater Port Act, 33 U.S.C. § 1515; § 23 of the Ourter § 23 of the Outer Continental Shelf Lands Act, 43 U.S.C. § 1349; § 215 of the Hazardous Liquid Pipeline Safety Act, 49 U.S.C. § 2014. See generally, J. MILLER, CITIZEN SUITS: PRIVATE ENFORCEMENT OF FEDERAL POLLUTION CONTROL LAWS (1987).

4. Fadil, Citizen Suits Against Polluters: Picking Up the Pace, 9 HARV. ENVTL. L. REV. 23, 53 (1985).

5. 42 U.S.C. §§ 9601-9675, ELR STAT. 44005-44081.

6. CERCLA § 107(a)(1)-(4)(A) & (B), 42 U.S.C. § 9607(a)(1)-4(A) & [B), ELR STAT. 44024.

7. A common question addressed by commentators is why more such suits have not been brought. See, e.g., Sandler, Citizen Suit Litigation, ENVIRONMENT, Mar. 1981, at 39; R. STEWART & J. KRIER, ENVIRONMENTAL LAW AND POLICY 547 (2d ed. 1978); Fadil, Citizen Suits Against Polluters: Picking Up the Pace, 9 HARV. ENVTL. L. REV. 23, 29 & n.35, 53-81. There has recently been a dramatic increase in the number of citizen suits filed under the FWPCA. See, e.g., Meier, "Citizen Suits" Become a Popular Weapon in the Fight Against Industrial Polluters, Wall St. J., Apr. 17, 1987, at 17, col. 4. However, citizen enforcement actions under the other environmental statutes are relatively few and far between. See J. MILLER, CITIZEN SUITS: PRIVATE ENFORCEMENT OF FEDERAL POLLUTION CONTROL LAWS 12 (1987).

8. For example, RCRA, governing management of solid and hazardous waste, occupies over 100 pages in the United States Code Annotated and is implemented by over 400 pages of regulations. 42 U.S.C. §§ 6901-6987, ELR STAT. RCRA 001-046; 40 C.F.R. §§ 260-280.3. Proposed and final additions and modifications to these regulations appear regularly in the Federal Register. Moreover, even when purporting to analyze the "plain language" of statutory provisions, courts interpreting environmental statutes frequently must delve into the extensive legislative history that usually accompanies such statutes.

9. The focus of this Article is enforcement and cost recovery by citizens and local governments against polluters who violate environmental laws and regulations or otherwise contaminate the environment. Citizen organizations and local governments should also be aware of other kinds of legal action available to them. For example, they may seek damages and injunctive relief in actions against polluters under state statutory or common law. Inadequate regulatory practices may generally be challenged if the federal government has violated its statutory authority, ignored its statutory duties, or violated required administrative procedures. See, e.g., the Clean Air Act §§ 304(a)(2) & 307, 42 U.S.C. §§ 7604(a)(2) & 7607; the Administrative Procedure Act, 5 U.S.C. §§ 500-559, ELR STAT. ADMIN. PROC. 003-007; the National Environmental Policy Act, 42 U.S.C. §§ 4321-4370a, ELR STAT. NEPA 001-014. In addition, some environmental statutes authorize citizens to petition the government to take particular action. See, e.g., TSCA § 21 (citizens may petition federal agencies for the issuance, amendment, or repeal of certain agency rules or orders governing toxic substances); CERCLA § 104(i)(6)(B), 42 U.S.C. § 9604(i)(6)(B), ELR STAT. 44018-44019 (authorizing petitions requesting the Agency for Toxic Substances and Disease Registry to conduct a health assessment regarding exposures to released hazardous substances). Also, citizens may seek information from the federal government under the Freedom of Information Act. 5 U.S.C. § 552, ELR STAT. ADMIN. PROC. 011-013.

10. See, e.g., Middlesex County Sewerage Authority v. National Sea Clammers Association, 453 U.S. 1, 11 ELR 20684 (1981) (noting congressional intent to provide for enforcement by "private attorneys general"). These provisions have resulted largely from congressional displeasure with the level of enforcement achieved by EPA. See Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 106 S. Ct. 3088, 3095-3096, 16 ELR 20801, 20805 (1986).

11. See supra note 3.

12. Clean Air Act § 304, 42 U.S.C. § 7604.

13. FWPCA § 505, 33 U.S.C. § 1365.

14. See Student Public Interest Research Group of New Jersey, Inc. v. P.D. Oil & Chemical Storage, Inc., 627 F. Supp. 1074, 16 ELR 20517 (D.N.J. 1986); Student Public Interest Research Group of New Jersey, Inc. v. AT&T Bell Laboratories, 617 F. Supp. 1190, 15 ELR 21051 (D.N.J. 1985) (recognizing the deterrent purpose of citizen suit provisions).

15. Baughman v. Bradford Coal Co., 592 F.2d 215, 218 (3d Cir.), cert. denied, 441 U.S. 961 (1979); 116 CONG. REC. 33104 (remarks of Sen. Hart), reprinted in 1 ENVIRONMENTAL POLICY DIVISION OF THE CONGRESSIONAL RESEARCH SERVICE, A LEGISLATIVE HISTORY OF THE CLEAN AIR ACT AMENDMENT OF 1970, 93rd Cong., 2d Sess. 629 (Comm Print. 1974) at 355; S. REP. No. 1196, 91st Cong., 2d Sess. 36-39, reprinted in Natural Resources Defense Council, Inc. v. Train, 510 F.2d 692, 723, 5 ELR 20046, 5 ELR 20696 (D.C. Cir. 1975). Indeed, a series of citizen suits brought by the Natural Resources Defense Council (NRDC) in the early 1980s resulted in a reevaluation by EPA of its enforcement of the FWPCA. Miller, Private Enforcement of Federal Pollution Control Laws, Part III, 14 ELR 10407, 10424-25 (Nov. 1984).

16. See FWPCA § 311, 33 U.S.C. § 1321.

17. CERCLA contains both a traditional citizen suit provision, CERCLA § 310, 42 U.S.C. § 9659, ELR STAT. 44072-73, and innovative provisions for recovery of governmental and private response costs, CERCLA § 107, 42 U.S.C. § 9607, ELR STAT. 44024.

18. The term "hazardous substance" is defined to include most substances regulated by the major federal environmental statutes. CERCLA § 101(14), 42 U.S.C. § 9601(14), ELR STAT. 44005-06. In addition, EPA may designate additional "hazardous substances" under CERCLA. CERCLA § 102(a), 42 U.S.C. § 9602(a), ELR STAT. 44009. EPA has published a list of designated hazardous substances at 40 C.F.R. § 302.4, table 302.4.

19. Walls v. Waste Resource Corp., 761 F.2d 311, 318, 15 ELR 20438 (6th Cir. 1985). See also United States v. Shell Oil Co., 605 F. Supp. 1064, 15 ELR 20337 (D. Colo. 1985); United States v. Reilly Tar & Chemical Corp., 546 F. Supp. 1100, 1112, 12 ELR 20954 (D. Minn. 1982).

20. The FWPCA is somewhat unusual in authorizing "any citizen" to bring suit. FWPCA § 505(a), 33 U.S.C. § 1365(a). However, the Act goes on to specify that "the term 'citizen' means a person or persons having interest which is or may be adversely affected." FWPCA § 505(g), 33 U.S.C. § 1365(g).

21. Most of the major environmental statutes waive the sovereign immunity of the United States with respect to actions to compel compliance. See, e.g., California v. Walters, 751 F.2d 977, 15 ELR 20291 (9th Cir. 1985). See generally, Stever, Perspectives on the Problem of Federal Facility Liability for Environmental Contamination, 17 ELR 10114 (Apr. 1987). This waiver has generally not been interpreted to encompass claims for civil penalties. Id. However, a broad new waiver, found in CERCLA § 120(a)(4), 42 U.S.C. § 9620(a)(4), ELR STAT. 44051-52, applicable to facilities not on the national priorities list, arguably waives immunity for penalty claims under state statutes concerning removal or remedial action. In contrast, Congress has generally refrained in environmental citizen suit provisions from abrogating the Eleventh Amendment immunity of the several states. See, e.g., RCRA § 7002(a)(1)(A), 42 U.S.C. § 6972(a)(1)(A), ELR STAT. RCRA 033-034, authorizing suit "against any person (including (a) the United States, and (b) any other governmental instrumentality or agency, to the extent permitted by the eleventh amendment to the Constitution)." But see EPCRA § 326, 42 U.S.C. § 11046, ELR STAT. EPCRA 011-012 (authorizing enforcepeals suits against state governments). However, the Court of Appeals for the Third Circuit recently held that Congress, pursuant to its commerce power under Article I of the Constitution, successfully abrogated the states' Eleventh Amendment immunity in the 1986 amendments to CERCLA's cost recovery provisions. United States v. Union Gas Co., 832 F.2d 1343, 18 ELR 20046 (3d Cir. 1987), cert. granted 56 U.S.L.W. 3877 (1988). Accord Wickland Oil Terminals, Inc. v. Asarco, Inc., 654 F. Supp. 955, 17 ELR 20688 (N.D. Cal. 1987).

22. See supra note 3.

23. There has been extensive litigation as to the effect of violation of the 60-day notice provisions of environmental citizen suit provisions, with varying results. See generally Note, Notice by Citizen Plaintiffs in Environmental Litigation, 79 MICH. L. REV. 299 (1980); Miller, Private Enforcement of Federal Pollution Control Laws, Part II, 14 ELR at 10063-67 (Feb. 1984). The best practice is to commply with notice provisions in the first instance. However, in some cases, citizen suit provisions may not require 60 days' prior notice. See RCRA § 7002(b)(1)(A), 42 U.S.C. § 6972(b)(1)(A), ELR STAT. RCRA at 033 (authorizing citizens to bring actions for enforcement of RCRA's hazardous waste provisions immediately after providing notice); Dedham Water Co. v. Cumberland Farms Dairy, Inc., 805 F.2d 1074, 1082-84, 17 ELR 20223, 20227-28 (1st Cir. 1986). RCRA § 7002(b)(2)(A) requires 90 days' notice of actions to abate imminent and substantial endangerments except in actions respecting violations of RCRA's hazardous waste provisions. 42 U.S.C. § 6972(b)(2)(A), ELR STAT. RCRA 033-034. In addition to 60 days' notice of intent to sue, RCRA § 7002(b)(2)(F), 42 U.S.C. § 6972(b)(2)(F), and the FWPCA § 505(c)(3), 33 U.S.C. § 1365(c)(3), notice of intent to sue, RCRA § 7002(b)(2)(F), 42 as amended by the Water Quality Act of 1987, Pub. L. No. 100-4, 101 Stat. 7 (1987), require service of citizen enforcement complaints on the United States Attorney General and EPA.

24. Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., 108 S. Ct. 376, 382, 18 ELR 20142, 20145 (1987); Baughman v. Bradford Coal Co., 592 F.2d 215, 9 ELR 20147 (3d Cir.), cert, denied, Coal Co., 592 F.2d 215, 9 ELR 20147 (3d Cir.), cert. denied, 441 U.S. 961 (1979).

25. Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., 108 S. Ct. 376, 382 n.3, 18 ELR at 20145 n.3 (1987); Friends of the Earth v. Consolidated Rail Corp., 768 F.2d 57, 15 ELR 20674 (2d Cir. 1985); Baughman v. Bradford Coal Co., 592 F.2d 215, 9 ELR 20147 (3d Cir.), cert. denied, 441 U.S. 961 (1979). See also Note, Administrative Preclusion of Environmental Citizen Suits, 1 U. OF ILL. L. REV. 163 (1987); Polebaum & Slater, Preclusion of Citizen Environmental Enforcement Litigation by Agency Action, 16 ELR 10013 (Jan. 1986). If a separate citizen suit is barred by diligent state or agency action "in a court," citizens may intervene in that action as a matter of right. See, e.g., Clean Air Act § 304(b)(1)(B), 42 U.S.C. § 7604(b)(1)(B). See also notes 64-73, infra.

26. Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., 108 S. Ct. 376, 383-384, 18 ELR 20142 (1987). Based on language, present in most citizen suit provisions, liniting jurisdiction to present in most citizen suit provisions, limiting jurisdiction to an action against a person "alleged to be in violation" of the applicable law, the Gwaltney Court held that actions under the FWPCA for wholly past violations cannot be maintained. See note 113 and accompanying text, infra. The rationale of Gwaltney has no to citizen suit provisions such as EPCRA § 326, 42 U.S.C. § 11046, ELR STAT. EPCRA 011-012, AND RCRA § 7002(a)(1)(B), 42 U.S.C. § 6972(a)(1)(B), ELR STAT. RCRA 033, which omit the "alleged to be in violation" jurisdictional limitation.

27. Idaho v. Howmet Turbine Component Co., 814 F.2d 1376, 17 ELR 20659 (9th Cir. 1987); Dedham Water Co. v. Cumberland Farms Dairy, Inc., 805 F.2d 1074, 1082, 17 ELR 20223, 20227 (1st Cir. 1986) (60 days' notice not required for private cost recovery suit under CERCLA).

28. United States v. Northeastern Pharmaceutical & Chemical Co., 810 F.2d 726, 17 ELR 20603 (8th Cir. 1986); United States v. Shell Oil Co., 605 F. Supp. 1064, 15 ELR 20337 (D. Colo. 1985). Such actions, however, are not limited to recovery of past costs. Provided that a plaintiff has incurred at least some past costs, a declaratory judgment as to the defendant's liability for future costs is specifically authorized. CERCLA § 113(g)(2), 42 U.S.C. § 9613(g)(2), ELR STAT. 44042. See also Jones v. Inmont Corp., 584 F. Supp. 1425, 1430, 14 ELR 20485, 20487 (S.D. Ohio 1984); State ex rel. Brown v. Georgeoff, 562 F. Supp. 1300, 1316 (N.D. Dhio 1983).

29. See generally, Miller, Private Enforcement of Federal Pollution Control Laws, Part I, 13 ELR 10309, 10320-21 (Oct. 1983).

30. See Clean Air Act § 304, 42 U.S.C. § 7604; FWPCA § 505, 33 U.S.C. § 1365.

31. SDWA § 1449, 42 U.S.C. § 300j-8, ELR STAT. 41120.

32. TSCA § 20, 15 U.S.C. § 2619, ELR STAT. TSCA 027-028.

33. EPCRA § 326(a)(1), 42 U.S.C. § 11046(a)(1), ELR STAT. EPCRA 011-012.

34. 42 U.S.C. § 9659, ELR STAT. 44072-73.

35. 42 U.S.C. § 6972(a)(1)(A), ELR STAT. RCRA 033.

36. 42 U.S.C. § 6972(a)(1)(B), ELR STAT. RCRA 033. RCRA § 7002(a)(1)(B) authorizes suit against:

any person … who has contributed or who is contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment …

Id. The phrase "may present an imminent and substantial endangerment" is not limited to emergency situations. Indeed, as noted in United States v. Conservation Chemical Co.:

An endangerment means a risk of a harm…. An endangerment is "imminent" and actionable when it is shown that it presents a threat to human health or the environment, even if it may not eventuate or be fully manifest for a period of many years — as may be the case with drinking water contamination, cancer, and many other effects.

619 F. Supp. 162, 194, 16 ELR 20193, 20205 (W.D. Mo. 1985), quoting S. REP. No. 284, 98th Cong., 1st Sess., at 59 (Oct. 28, 1984) (emphasis added). As recognized by the court in United States v. Waste Industries, Inc., 734 F.2d 159, 14 ELR 20461 (4th Cir. 1984), the term "imminence" applies "to the nature of the threat rather than identification of the time when the endangerment initially arose." Id. at 166, 14 ELR at 20463, quoting REPORT ON HAZARDOUS WASTE DISPOSAL, COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE, H.R. COMM. PRINT No. 96-1FC 31, 96th Cong., 1st Sess., at 32 (1979).

37. RCRA's imminent and substantial endangerment provisions were intended "to act as a codification of 'common law public nuisance remedies.'" Middlesex City Board of Chosen Freeholders v. New Jersey, 645 F. Supp. 715, 722, 17 ELR 20475, 20477-78 (D.N.J. 1986). Accordingly, these provisions do not require that plaintiffs demonstrate a violation of the statute in order to prevail.

38. 42 U.S.C. § 9607(a)(1)-(4)(A) & (B), ELR STAT. 44024.

39. Liable parties are listed in § 107(a)(1)-(4) of CERCLA. They are:

(1) the owner and operator of a vessel or a facility,

(2) any person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of,

(3) any person who by contract, agreement, or otherwise arranged for disposal or treatment, or arranged with a transporter for transport for disposal or treatment, of hazardous substances owned or possessed by such person, by any other party or entity, at any facility or incineration vessel owned or operated by another party or entity and containing such hazardous substances, and

(4) any person who accepts or accepted any hazardous substances for transport to disposal or treatment facilities, incineration vessels or sites selected by such person, from which there is a release, or a threatened release which causes the incurrence of response costs, of a hazardous substance….

42 U.S.C. § 9607(a)(1)-(4), ELR STAT. 44024.

40. The term "response" is defined by CERCLA § 101(25), 42 U.S.C. § 9601(25), ELR STAT. 44007, to mean "removal" and "remedial action." "Removal" includes "such actions as may be necessary taken in the event of the threat of release of hazardous substances" and "such actions as may be necessary taken in the event of threat of release of hazardous substances" and "such actions as may be necessary to monitor, assess, and evaluate the release or threat of release of hazardous substances." CERCLA § 101(23), 42 U.S.C. § 9601(23), ELR STAT. 44007. The term "remedial action" includes "actions consistent with a permanent remedy" such as confinement, neutralization, or cleanup of hazardous substances. CERCLA § 101(24), 42 U.S.C. § 9601(24), ELR STAT. 44007. The terms "removal" and "remedial action" include "enforcement activities related thereto." CERCLA § 101(25), 42 U.S.C. § 9601(25), ELR STAT. 44007.

41. See, e.g., New York v. Shore Realty Corp., 759 F.2d 1032, 15 ELR 20358 (2d Cir. 1985). Allied Towing v. Great Eastern Petroloum Corp., 642 F. Supp. 1339, 1349 (E.D. Va. 1986); New York v. General Electric Co., 592 F. Supp. 291, 14 ELR 20719 (N.D.N.Y. General Electric Co., 592 F. Supp. 291, 14 ELR 20719 (N.D.N.Y. 1984).

42. Wickland Oil Terminals v. Asarco, Inc., 792 F.2d 887, 892, 16 ELR 20754 (9th Cir. 1986); Cadillac Fairview/California, Inc. v. Dow Chemical Co., Nos. 86-6464, -6733, 18 ELR 20470 (9th Cir. 1988). See also 50 Fed. Reg. 47912, 47934 (1985) (regulations governing private response actions, set forth in 40 C.F.R. § 300.71, do not require government approval of a response action unless the responding party wishes EPA, rather than a liable party, to reimburse its costs or the response is taken by a liable party to comply with an EPA administrative order or a consent decree).

43. See supra notes 3 and 20.

44. For example, the term "person" is defined by FWPCA § 502(5) to mean:

an individual, corporation, partnership, association, State, municipality, commission, or political subdivision of a State, or any interstate body.

33 U.S.C. § 1362(5). Similarly, § 304(a) of the Clean Air Act, 42 U.S.C. § 7604(a), authorizes "any person" to bring suit. Section 302(e) of that act defines "person" to include:

An individual, corporation, partnership, association, State, municipality, political subdivision of a State, and any agency, department, or instrumentality of the United States and any officer, agent, or employee thereof.

42. U.S.C. § 7602(e).

TSCA § 20 fails to define the term "person." 15 U.S.C. § 2619, ELR STAT. TSCA 027-028. Since the citizen suit provision of TSCA is virtually identical to the corresponding provisions of environmental laws that do define the term "person" should be interpreted consistently with the definitions provided in those Acts. Moreover, EPA has clarified by regulation that TSCA's citizen suit provision authorizes suit by state and local governmental entities as well as by individual citizens and citizen organizations. See 40 C.F.R. § 704.3 (defining "person" to include associations, corporations, and governmental units) and 40 C.F.R. § 702.60 (noting that any "person" may bring a citizen suit). Consistent with familiar principles of statutory construction, EPA's interpretation of TSCA is entitled to substantial deference. Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 14 ELR 20507 (1984); Aluminum Co. v. Central Lincoln Peoples' Util. Dist., 467 U.S. 380, 390 (1984).

45. CERCLA § 101(21), 42 U.S.C. § 9601(21), ELR STAT. 44006.

46. City of New York v. Exxon Corp., 633 F. Supp. 609 (S.D.N.Y. 1986); Mayor of Boonton v. Drew Chemical Corp., 621 F. Supp. 663, 16 ELR 20328 (D.N.J. 1985). See generally Maraziti, Local Governments: Opportunity to Recover for Natural Resource Damages, 17 ELR 10036 (Feb. 1987).

47. In order to be recoverable under CERCLA, private response costs must be consistent with the National Contingency Plan (NCP). CERCLA § 107(a)(1)-(4)(B), 42 U.S.C. § 9607(a)(1)-(4)(B), ELR STAT. 44024. Governmental costs must be "not inconsistent" with the NCP in order to be recovered from liable parties. CERCLA § 107(a)(1)-(4)(A), 42 U.S.C. § 9607(a)(1)-(4)(A), ELR STAT. 44024. The NCP is codified at 40 C.F.R. Part 300.

48. New York v. Shore Realty Corp., 648 F. Supp. 255, 263, 17 ELR 20588 n.5 (E.D.N.Y. 1986). See also United States v. Northeastern Pharmaceutical & Chemical Co., 810 F.2d 726, 747-748, 17 ELR 20603 (8th Cir. 1986); United States v. Ward, 618 F. Supp. 884, 899 (E.D.N.C. 1985).

49. Sierra Club v. Morton, 405 U.S. 727, 732, 2 ELR 20192, 20193 (1972), quoting Flast v. Cohen, 392 U.S. 83 (1968).

50. The doctrine of standing is rooted in "both constitutional limitations on federal court jurisdiction and prudential limitations on its exercise." Warth v. Seldin, 422 U.S. 490, 498 (1975). To allow plaintiffs to maintain suit without showing that they personally have suffered actual or threatened injury would be inconsistent with Article III of the United States Constitution. Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 99 (1979); Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 72, 8 ELR 20545 (1978). Moreover, even where constitutional standing is present, prudential principles may bar litigants who: (1) do not assert injuries that are peculiar to themselves or to a distinct group of which they are a part; (2) do not assert their own legal interests, but instead assert those of third parties; or (3) assert injuries to interests which are not arguably within the zone of interests to be protected or regulated by the relevant statute. Gladstone, Realtors v. Village of Bellwood, 441 U.S. at 100. However:

Congress may, by legislation, expand standing to the full extent permitted by Art. III, thus permitting litigation by one who otherwise would be barred by prudental standing rules. In no event, however, may Congress abrogate the Art. III minima: A plaintiff must always have suffered a distinct and palpable injury to himself that is likely to be redressed if the requested relief is granted.

Id. (citations and quotation marks omitted).

51. See, e.g., Sierra Club v. SCM Corp., 747 F.2d 99, 107, 14 ELR 20890, 20893-94 (2d Cir. 1984); Connecticut Fund for the Environment v. Job Plating Co., 623 F. Supp. 207, 16 ELR 20496 (D. Conn. 1985); Sierra Club v. Aluminum Co. of America, 585 F. Supp. 842, 14 ELR 20663 (N.D.N.Y. 1984).

52. The Court in Friends of the Earth v. Consolidated Rail Corp., 768 F.2d 57, 61, 15 ELR 20674, 20676 (2d Cir. 1985), upheld standing of a citizen orgainzation to sue for FWPCA violations where affidavits established that one member of the organization passed the river at issue regularly and found the pollution offensive to his aesthetic values; and it was shown that another member's children swam in the river, son fished in the river, and family picnicked along the river. See also Sierra Club v. Morton, 405 U.S. 727, 735, 738, 2 ELR 20192, 20194 (1972) (interest alleged to have been injured may reflect aesthetic, conservational, and recreational, as well as economic, values); Sierra Club v. SCM Corp., 747 F.2d 99, 107, 14 ELR 20890, 20894 (2d Cir. 1984); Student Public Interest Research Group of New Jersey, Inc. v. P.D. Oil & Chemical Storage, Inc., 627 F. Supp. 1074 (D.N.J. 1986); Connecticut Fund for the Environment v. Job Plating Co., 623 F. Supp. 207, 16 ELR 20596 (D. Conn. 1985); Chesapeake Bay Foundation v. Bethlehem Steel Corp., 608 F. Supp. 440, 15 ELR 20785 (D. Md. 1985). Courts also have upheld standing under citizen suit provisions for economic, rather than environmental, injuries, rejecting arguments that economic injuries are not "arguably with the zone of interests" protected by environmental statutes. Locust Lane v. Swatara Township Authority, 636 F. Supp. 534, 16 ELR 20364 (M.D. Pa. 1986); Michigan v. City of Allen Park, 501 F. Supp. 1007, 11 ELR 21023 (E.D. Mich. 1980), aff'd, 11 ELR 21057 (6th Cir. 1981). See also supra note 50.

53. See infra note 126.

54. See Jones v. Inmont Corp., 584 F. Supp. 1425, 1430, 14 ELR 20485, 20486 (S.D. Ohio 1984); Pinole Point Properties, Inc. v. Bethlehem Steel Corp., 596 F. Supp. 283, 291, 15 ELR 20173, 20176 (N.D. Cal. 1984).

55. See, e.g., FWPCA § 308, 33 U.S.C. § 1318; Clean Air Act § 110(a)(2)(F), 42 U.S.C. § 7410(a)(2)(F); SDWA §§ 1413(a)(2) and 1421(b)(1)(C), 42 U.S.C. §§ 300g-2(a)(2), and 300h(b)(1)(C), ELR STAT. 41104, 41108; RCRA §§ 3002(a), 3003(a) and 3004(a), 42 U.S.C. §§ 6922(a), 6923(a) and 6924(a), ELR STAT. RCRA 011; EPCRA §§ 311-313, 42 U.S.C. §§ 11021-11023, ELR STAT. EPCRA 005-008.

56. See Garner v. United States, 424 U.S. 648, 665 (1976); Shapiro v. United States, 335 U.S. 1, 17, 35 (1948).

57. See, e.g., Sierra Club v. Union Oil Co., 813 F.2d 1480, 17 ELR 20547 (9th Cir. 1987), vacated on other grounds 56 U.S.L.W. 3607 (1988). The court in Connecticut Fund for the Environment v. Upjohn Co., 660 F. Supp. 1397, 1409, 17 ELR 21137, 21146 (D. Conn. 1987), stated:

Under the FWPCA, compliance is a matter of strict liability and a defendant's intention to comply or good faith attempt to do so does not excuse a violation…. "One purpose of these new [effluent] requirements [of the FWPCA] is to avoid the necessity of lengthy fact finding investigations, and negotiations at the time of enforcement. Enforcement of violations of requirements under the FWPCA should be based on relatively narrow fact situations requiring a minimum of discretionary decision making or delay" [1972 U.S. CODE CONG. & ADMIN. NEWS 3668, at 3730] …. Thus, the factfinding process for determining compliance is a simple one — it involves comparing the reported discharges to the applicable effluent limitations to determine in which instances the discharges exceeded the allowable limits. See also Public Interest Research Group v. CP Chemicals, Inc., No. 87-1789 (D.N.J. Nov. 25, 1987). The courts in Union Oil, 813 F.2d at 1490, 17 ELR at 20553, and Upjohn, 660 F. Supp. at 1417-18, 17 ELR at 21146, rejected the excuse that violations were de minimis, i.e., trivial. But see Sierra Club v. Shell Oil Co., 817 F.2d 1169, 1174, 17 ELR 20767, 20770 (5th Cir. 1987), cert. denied, 108 S. Ct. 501 (1987) (apparently holding that "occasional, minor discharges in the face of permit compliance rates exceeding 95%" are de minimis).

58. Most courts have rejected defendant's claims of numerical errors in such monitoring reports. Sierra Club v. Union Oil Co., 813 F.2d 1480, 1491, 17 ELR 20547, 20553-54 (9th Cir. 1987), vacated on other grounds, 56 U.S.L.W. 3607 (1988); Connecticut Fund for the Environment v. Upjohn Co., 660 F. Supp. 1397, 1416, 17 ELR 21137, 21145-46 (D. Conn. 1987); Chesapeake Bay Foundation v. Bethlehem Steel Corp., 652 F. Supp. 620, 17 ELR 20623 (D. Md. 1987); Locust Lane v. Swatara Township Auth., 636 F. Supp. 534, 16 ELR 20364 (M.D. Pa. 1986); Atlantic States Legal Foundation v. Al Tech Specialty Steel Corp., 635 F. Supp. 284, 289, 17 ELR 20125, 20128 (N.D.N.Y. 1986); Student Public Interest Research Group of New Jersey, Inc. v. P.D. Oil & Chemical Storage, Inc., 627 F. Supp. 1074, 16 ELR 20517 (D.N.J. 1986). But see Friends of the Earth v. Facet Enterprises, Inc., 618 F. Supp. 532, 536, 15 ELR 20106 (W.D.N.Y. 1984) (denying summary judgment where evidence of typographical errors in monitoring reports gave rise to a question of fact). The Court in Upjohn stated:

If an entity reports a pollution level in excess of the Permit limits, it is strictly liable, as Congress has manifested an intention that the courts not reconsider the effluent discharge levels reported.

660 F. Supp. at 1417, 17 ELR at 21146. The Upjohn Court, however, expressly left open the situation in which the inaccuracy is alleged to result from clerical and typographical mistakes. Id. at n.33.

59. See, e.g., Sierra Club v. Union Oil Co., 813 F.2d 1480, 1486 (9th Cir. 1987), Vacated on other grounds, 56 U.S.L.W. 3607 (1988); Connecticut Fund for the Environment v. Upjohn Co., 660 F. Supp. 1397, 17 ELR 21137 (D. Conn. 1987); Chesapeake Bay Foundation, Inc. v. Bethlehem Steel Corp., 652 F. Supp. 620, 17 ELR 20623 (D. Md. 1987); Student Public Interest Research Group of New Jersey, Inc. v. Jersey Central Power, 642 F. Supp. 103, 17 ELR 20350 (D.N.J. 1987); Atlantic States Legal Foundation v. Al Tech Specialty Steel Corp., 635 F. Supp. 284, 17 ELR 20125 (N.D.N.Y. 1986). An "upset" is defined by EPA for purposes of the FWPCA in 40 C.F.R. § 122.41(n)(1). Although a federal district court in Chesapeake Bay Foundation v. Bethlehem Steel Corp., 608 F. Supp. 440, 15 ELR 20785 (D. Md. 1985), denied plaintiffs' motion for summary judgment for certain exceedences alleged by defendant in an affidavit to be upsets, the court in a later ruling granted summary judgment as to the same violations that defendant demonstrated were upsets under the terms of the permit at issue. 652 F. Supp. 620, 17 ELR 20623. An "upset" does not include violations caused by "operational error, improperly designed treatment facilities, inadequate treatment facilities, lack of preventive maintenance, or careless or improper operation." 42 C.F.R. § 122.41(n)(1).

60. See supra note 58. See also National Wildlife Federation v. Consumers Power Co., 657 F. Supp. 989, 17 ELR 20801 (W.D. Mich. 1987).

61. New York v. Shore Realty Corp., 759 F.2d 1032, 15 ELR 20358 (2d Cir. 1985); United States v. Northeastern Pharmaceutical & Chemical Co., Inc., 810 F.2d 726, 17 ELR 20603 (8th Cir. 1986), cert. denied, 108 S. Ct. 146 (1987); United States v. Chem-Dyne Corp., 572 F. Supp. 802, 805, 13 ELR 20986 (S.D. Ohio 1983) (CERCLA provides for strict liability).

62. See, e.g., New York v. Shore Realty Corp., 759 F.2d 1032, 15 ELR 20358 (2d Cir. 1985); United States v. South Carolina Recycling and Disposal, Inc., 653 F. Supp. 984, 17 ELR 20847 (D.S.C. 1984); United States v. Conservation Chemical Co., 589 F. Supp. 59, 62, 14 ELR 20207, 20208-09 (W.D. Mo. 1984).

63. See supra note 39.

64. See supra note 61.

65. See supra note 3. See also Connecticut Fund for the Environment v. Contract Plating Co., 631 F. Supp. 1291, 16 ELR 20667 (D. Conn. 1986).

66. Compare Sierra Club v. Chevron U.S.A., Inc., 834 F.2d 1517, 18 ELR 20237 (9th Cir. 1987) and Friends of the Earth v. Consolidated Rail Corp., 768 F.2d 57, 15 ELR 20674 (2d Cir. 1985) (administrative agencies are not "courts" under the plain language of citizen suit provision, so administrative enforcement will never bar citizen suit) with Baughman v. Bradford Coal Co., 592 F.2d 215, 9 ELR 20147 (3d Cir.), cert. denied, 441 U.S. 961 (1979) (administrative agencies may, under certain circumstances, be deemed courts for purposes of the diligent prosecution bar of citizen suit provisions). See also Maryland Waste Coalition v. SCM Corp., 616 F. Supp. 1474, 16 ELR 20158 (D. Md. 1985) (discussing the split and following the Second Circuit). It has been argued, based on relatively sparse legislative history, that citizen suit provisions should be interpreted as granting courts discretion to dismiss actions where only administrative enforcement is underway. Polebaum & Slater, Preclusion of Citizen Environmental Enforcement Litigation by Agency Action, 16 ELR 10013 (Jan. 1986). Normally, however, motions to dismiss are not granted as a matter of discretion. See, e.g., Jacobson v. Coughlin, 523 F. Supp. 1247 (D.C.N.Y. 1981), aff'd, 688 F.2d 815 (2d Cir.), cert. denied, 459 U.S. 834 (1982) (court may not dismiss complaint unless it appears beyond doubt that plaintiff can prove no set of facts that would entitle it to relief). It can be expected, however, that in fashioning injunctive relief under the citizen suit provisions, courts will consider the status of administrative enforcement as well as all equities involved. See Weinberger v. Romero-Barcelo, 456 U.S. 305, 12 ELR 20538 (1982).

67. Even courts following Baughman, supra note 66, in holding that administrative agencies may under certain circumstances be deemed "courts" within the meaning of citizen suit provisions, generally have not held specific instances of agency enforcement to bar citizen suits. Baughman held to be deemed a "court," a tribunal must have the power to award relief substantially equivalent to that which may be awarded by federal courts. Id. at 219. Consequently, the Baughman court held that a citizen suit was not barred by agency action before the Pennsylvania Environmental Hearing Board. See also Student Public Interest Research Group of New Jersey, Inc. v. Fritzsche, Dodge & Dodge & Olcott Inc., 759 F.2d 1131, 14 ELR 20450 (3d Cir. 1985) (holding that an administrative proceeding before EPA does not bar citizen enforcement); Proffitt v. Township of Bristol, 754 F.2d 504, 15 ELR 20209 (3d Cir. 1985). But see Profitt v. Rohm & Haas, 668 F. Supp. 436, 441 (E.D. Pa. 1987) (dismissing a citizen suit where EPA had stipulated to a stay of enforcement of the defendant's permit and amended the permit accordingly).

68. Water Quality Act of 1987 (amending the Clean Water Act) § 314(a)(6)(B), Pub. L. No. 100-4, 101 Stat. 7 (1987).

69. EPCRA § 326(e), 42 U.S.C. § 11046(e), ELR STAT. EPCRA 011-012.

70. 42 U.S.C. § 6972(a)(1)(B), ELR STAT. RCRA 033.

71. 42 U.S.C. § 6973, ELR STAT. RCRA 034.

72. RCRA § 7002(b)(2)(B) and (C), 42 U.S.C. § 6972(b)(2)(B) and (C), ELR STAT. RCRA 034.

73. Chesapeake Bay Foundation v. American Recovery Co., 769 F.2d 207, 16 ELR 20056 (4th Cir. 1985); Connecticut Fund for the Environment v. Upjohn Co., 660 F. Supp. 1397, 1404, 17 ELR 21137, 21139 (E. Conn.1987); Sierra Club v. Simkins Industries, 617 F. Supp. 1120, 1125, 15 ELR 21012, 21014 (D. Md. 1985).

74. Indeed, the time required for the EPA and United States Justice Department bureaucracies to prepare and file an enforcement case is generally much longer than 60 days. Miller, Private Enforcement of Federal Pollution Control Laws, Part II, 14 ELR 10063, 10064 (1984).

75. See, e.g., Walls v. Waste Resource Corp., 761 F.2d 311, 316, 15 ELR 20438, 20439 (6th Cir. 1985).

76. CERCLA §§ 101(23), (24), & (25) and 107(a)(1)-(4)(D), 42 U.S.C.

76. CERCLA §§ 101(23), (24), & (25) and 107(a)-(4)(D), 42 U.S.C. §§ 9601(23), (24), & (25) and 9607(a)(1)-(4)(D), ELR STAT. 44007, 44024.

77. See supra note 46.

78. See United Mine Workers of America v. Gibbs, 383 U.S. 715 (1966). See generally, Kenison & Babich, Pendent Claims and the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, W. NAT. RESOURCE LITIGATION COMMENTARY, Wtr. 1986, at 16.

79. See supra note 3.

80. See, e.g., FWPCA § 505, 33 U.S.C. § 1365; RCRA § 7002(a), 42 U.S.C. § 6972(a), ELR STAT. RCRA 033; CERCLA § 310, 42 U.S.C. § 9659, ELR STAT. 44072; EPCRA § 326, 42 U.S.C. § 11046, ELR STAT. EPCRA 011-012.

81. FWPCA § 309(d), 33 U.S.C. § 1319(d); RCRA § 3008(a), (g), 42 U.S.C. § 6928!a), (g), ELR STAT. RCRA 019-020; CERCLA § 109, 42 U.S.C. § 9609, ELR STAT. 44031-32.

82. EPCRA § 325(b), (c), 42 U.S.C. § 11045(b), (c), ELR STAT. EPCRA 010-011.

83. CERCLA § 109(c), 42 U.S.C. § 9609(c), ELR STAT. 44032; EPCRA § 325(b)(3), 42 U.S.C. § 11045(b)(2), ELR STAT. EPCRA 011.

84. Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., 108 S. Ct. 376, 379, 18 ELR 20142 (1988).

85. See Stever, Environmental Penalties and Environmental Trusts, 17 ELR 10356 (Sept. 1987). Plaintiffs wishing to settle lawsuits for contributions in lieu of penalties should be aware that if inadequate provision for compliance and/or penalties is made, EPA may intervene in citizen suits. See, .g., RCRA § 7002(d), 42 U.S.C. § 6972(d). As amended by the Water Quality Act of 1987, Pub. L. No. 100-4, 101 Stat. 7 (1987), FWPCA § 505(c)(3) prohibits settlement of citizen suits by consent judgment prior to 45 days after receipt of a copy of the proposed consent judgment by the Attorney General. 33 U.S.C. § 1365(c)(3).

86. 42 U.S.C. § 9607(a)(1)-(4)(A) & (B), ELR STAT. 44024.

87. CERCLA § 113(g)(2), 42 U.S.C. § 9613(g)(2), ELR STAT. 44042; the Declaratory Judgment Act, 28 U.S.C. § 2201.

88. 42 U.S.C. § 9659, ELR STAT. 44072.

89. 42 U.S.C. § 6972(a)(1)(B), ELR STAT. RCRA 033.

90. See supra note 3. See generally, Note, Awards of Attorney's Fees in Environmental Litigation: Itizen Suits and the "Appropriate" Standard, 18 GA. L. REV. 307 (1984).

91. Ruckelshaus v. Sierra Club, 463 U.S. 680, 682, 688 n.9, 13 ELR 20664, 20666 n.9 (1983). RCRA § 7002(e), 42 U.S.C. § 6972(e), ELR STAT. RCRA 034; EPCRA § 326(f), 42 U.S.C. § 11046(f), ELR STAT. EPCRA 012; CERCLA § 310(f), 42 U.S.C. § 9659(f), ELR STAT. 44072-73, and FWPCA § 505(d), as amended by the Water Quality Act of 1987, Pub. L. No. 100-4, 101 Stat. 7 (1987), provide for recovery of costs of litigation, including attorneys fees, by the "prevailing or substantially prevailing party …."

92. See supra note 60 and accompanying text.

93. Hensley v. Eckerhart, 461 U.S. 424 (1983).

94. Id. at 434-435 (1983).

95. Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 106 S. Ct. 3088, 3097-98, 16 ELR 20801, 20806 (1986). Under Blum v. Stenson, 465 U.S. 886, 892-96 (1984), public interest organizations may recover attorneys fees at the prevailing market rate rather than the cost to the organization of salaried attorneys. The D.C. Circuit, however, has ruled that if an attorney has a customary billing rate, that rate is the presumptively reasonable rate to be used in computing a fee award. Save Our Cumberland Mountains, Inc. v. Hodel, 826 F.2d 43, 47 (D.C. Cir. 1987).

96. Blum v. Stenson, 465 U.S. 886, 897 (1984). See generally Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 106 S. Ct. 3088, 16 ELR 20801 (1986).

97. Id. at 3098, 16 ELR at 20806.

98. Blum v. Stenson, 465 U.S. 886, 898-901 (1984).

99. Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 107 S. Ct. 3078, 17 ELR 20929 (1987) (plurality opinion). In this Delaware Valley Citizens' Council opinion, five out of nine Supreme Court justices agreed that adjustment of the lodestar to reflect risk of loss is appropriate in some cases.

100. See CERCLA § 101(25), 42 U.S.C. § 9601(25), ELR STAT. 44007 (defining enforcement costs as costs of response).

101. CERCLA § 107(a)(1)-(4)(B), 42 U.S.C. § 9607(a)(1)-(4)(B), ELR STAT. 44024.

102. See supra note 48.

103. 107 S. Ct. 1831, 17 ELR 20667 (1987).

104. 108 S. Ct. 376, 18 ELR 20142 (1988).

105. See generally Openchowski, Changing the Nature of Federal Enforcement of Environmental Laws, 17 ELR 10304 (Aug. 1987). For a discussion of the effect of Tull on cases brought under CERCLA, see Slavitt, Jury Trial Rights Under CERCLA: The Effects of Tull v. United States, 18 ELR 10127 (Apr. 1988).

106. The court in Tull found that actions brought by the government to recover civil penalties are analogous to one type of common law action in debt and thus entail a right to trial by jury under the Seventh Amendment to the Constitution, 107 S. Ct. at 1836, 17 ELR at 20669-70. The court did not consider whether this analogy would apply to enforcement actions brought by citizens acting as private attorneys general to collect civil penalties under environmental statutes.

107. 107 S. Ct. at 1839-40, 17 ELR at 20671.

108. see supra note 60.

109. See, e.g., Clean Air Act § 304, 42 U.S.C. § 7604; TSCA § 20, 15 U.S.C. § 2619, ELR STAT. TSCA 027; SDWA § 1449, 42 U.S.C. § 300j-8, ELR STAT. 41120.

110. See supra note 85.

111. 108 S. Ct. 376, 385 (1987), 18 ELR 20142, 20146.

112. 108 S. Ct. at 385, 18 ELR at 20146.

113. 108 S. Ct. at 382, 18 ELR at 20145.

114. 108 S. Ct. at 385, 18 ELR at 20146. The Court defined a "continuous or intermittent violation" as "a reasonable likelihood that a past polluter will continue to pollute in the future," id. at 381, 18 ELR at 20144, and noted legislative history supporting citizen suits for "occasional or sporadic" violations. Id. at 384, 18 ELR at 20146.

115. 108 S. Ct. at 385, 18 ELR at 20146.

116. 108 S. Ct. at 385-86, 18 ELR at 20146.

117. 108 S. Ct. at 386, 18 ELR at 20147. This result was criticized by Justice Scalia's concurring opinion, which states:

I can think of no other context in which, in order to carry a lawsuit to judgment, allegations are necessary but proof of those allegations (if they are contested) is not.

108 S. Ct. at 387, 18 ELR at 20147. The effect of the majority's decision, however, is simply to reverse the burden of proof, which is not an unprecedented solution to problems of proof in environmental law. See, e.g., United States v. Wade, 577 F. Supp. 1326, 1332-34, 14 ELR 20096, 20097-98 (E.D. Pa. 1983).

118. 108 S. Ct. at 388, 18 ELR at 20148 (emphasis added).

119. Id.

120. The Supreme Court has clearly recognized that it is not "necessary to decide whether [plaintiffs' allegations of injury] will, ultimately, entitle them to any relief, in order to hold that they have standing to seek it." Baker v. Carr, 369 U.S. 186, 208 (1962).

121. The court in Baker v. Carr, 369 U.S. 186, 204 (1962) noted that the "gist of the question of standing" is:

Have the appellants alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions?

See also supra note 50.

122. Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 74, 8 ELR 20545 (1978); Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 41-43 (1976).

123. Since, under the analysis of the Gwaltney concurrence, an injury is "remediable" only if the plaintiff is entitled to prevail, the assertion of any affirmative defense in any action would raise an issue of standing. Because the burden of proving standing rests with plaintiffs, see United States v. SCRAP, 412 U.S. 669, 689-690, 3 ELR 20536 (1973), the concurrence would shift the burden of proof as to affirmative defenses to plaintiffs, even where Congress has clearly intended otherwise. Indeed, the Gwaltney case itself involved a situation in which Congress declined to require citizens to prove ongoing violations due to its "conscious sensitivity to the practical difficulties of detecting and proving chronic episodic violations …." 108 S. Ct. at 385, 18 ELR at 20146. It would be unusual, to say the least, for courts to apply a "stricter test for standing than for liability itself." Student Public Interest Research Group of New Jersey v. Georgia-Pacific Corp., 615 F. Supp. 1419, 1424, 16 ELR 20039 (D.N.J. 1985).

124. 108 S. Ct. at 386, 18 ELR at 20147.

125. Id. at 385-86, 18 ELR at 20146-47.

126. Id. The Court's unremarkable statement that plaintiffs must prove allegations of standing at trial if such allegations are challenged has caused some confusion. In Powers, A Citizen's View of Gwaltney, 18 ELR 10119, 10120 & n.13 (Apr. 1988), the author erroneously assumes that the majority's statement about proof of standing referred to proof of a violation of the FWPCA. Actually, the majority neither accepted nor rebutted the defendants' argument, adopted by Justice Scalia's concurrence, that proof of a "remediable" violation is somehow necessary to prove standing. Indeed, the majority cited United States v. SCRAP, 412 U.S. 669, 689, 3 ELR 20536 (1973), for the proposition that allegations of standing must be proven. SCRAP stated only that proof of injury is required, not that plaintiff must prove that it will prevail in obtaining a remedy for that injury. In DuBoff & Clearwater, Arguing for the Defense After Gwaltney, 18 ELR 10123, 10124 & n.14 (Apr. 1988), the authors cite the Court's uncontroversial statement that allegations of standing must be proven for the proposition that plaintiffs must prove "that the defendant is 'in violation' of FWPCA," despite Justice Scalia's clear recognition that the majority opinion does not require proof of an ongoing violation. See supra note 117. The source of this confusion is the Court's failure to rebut specifically the bizarre argument that proof of eventual success on the merits is necessary to proof of a "remediable" injury for purposes of standing. 108 S. Ct. at 385, 18 ELR at 20146-47. However, such a rebuttal should not have been necessary, given clear Supreme Court precedent. See supra note 120.

127. Compare 108 S. Ct. at 386, 18 ELR at 20147, with 108 S. Ct. at 388, 18 ELR at 20148.

128. See supra note 26.

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