Private Enforcement of Federal Pollution Control Laws Part I

13 ELR 10309 | Environmental Law Reporter | copyright © 1983 | All rights reserved

Private Enforcement of Federal Pollution Control Laws Part I

Jeffrey G. Miller

Editors' Summary: Section 304 of the Clean Air Act enacted in 1970 was the first provision expressly empowering citizens to act as private attorneys general to enforce a federal statute. Every federal environmental statute enacted since 1970, except FIFRA, has included a citizen suit provision, and each provision has been modeled on § 304. In Part I of this three part series, Mr. Miller discusses the origin and legislative history of citizen suits and explains the similarities and differences among the various provisions. He describes who may and may not bring suit and who may be sued. Mr. Miller also discusses the types of violations that are subject to citizen suit actions and the penalties authorized under the different statutes. In addition, he explains the significance of the savings clause provisions in relation to citizen suit provisions and discusses, in particular, whether these clauses preserve a federal common law of nuisance, an implied private right of action, or jurisdiction under the general jurisdictional statutes.

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.

Parts II and III will address conditions precedent to bringing a citizen suit, intervention, remedies, attorneys fees, and tactics for prosecuting and defending citizen suits.

[13 ELR 10309]

Origin and Legislative History of Citizen Suits10304
General Outline of Citizen Suit Sections10305
Use and Evaluation of Citizen Suits10307
Proper Plaintiffs: Definition and Standing10308
Proper Defendants: Definition, Sovereign
Immunity and Vicarious Liability10311
Causes of Action
Actionable Violations and Remedies10313
Relation to Other Laws10315

Private enforcement of federal statutes is not a new concept, unique to environmental law. The antitrust trebledamage provision, stockholder derivative suits under the securities laws, the doctrines of private right of action, and statutory tort all attest to the vintage and pervasiveness of private enforcement of federal statutes. There is a fundamental difference, however, between private enforcement of environmental law and its historical antecedents: for the first time private citizens were specifically empowered and expected to act as real private attorneys general,1 vindicating the statutory rights of the community at large rather than the plaintiffs' own economic losses.2 This article explores the extent to which this expectation [13 ELR 10310] has been realized and the impact that private enforcement has had on the development of environmental law. Although its main focus is on the origin, interpretation, and future of the citizen suit sections in the various federal environmental statutes, its emphasis is on use of citizens suits against pollution violations rather than against inappropriate or insufficient government implementation.

Origin and Legislative History of Citizen Suits

The enforcement mechanisms of federal environmental statutes in the 1960s were both cumbersome and ineffective.3 As interest in environmental protection grew, awareness of the lack of credible enforcement mechanisms and credible state and federal enforcement programs also increased. This awareness and the dissatisfaction it engendered led directly to the significant enhancement of federal enforcement tools in the environmental legislation of the 1970s4 and to the creation of citizens suits. The citizen suit sections were developed as the answer to the government's failure to enforce, whether caused by lack of will or lack of resources. Congress believed that citizen suits would provide a goad to government enforcement and, if that goad did not work, would provide an alternative means of enforcement.5 The same developments occurred at the state level.6

The citizen suit was born in § 304 of the Clean Air Act as amended in 1970,7 which developed through several versions before enacted.8 The enactment of the section [13 ELR 10311] was contested; however, the political impossibility of opposing a "pro-environmental" measure at the outset of the environmental decade and the desire to keep environmental legislation bipartisan obscured the debate. Attempts to sidetrack the measure to the Senate Judiciary Committee were clothed with concern for "burdening the [already overcrowded] courts with a large number of law-suits."9 Proponents of the idea quickly switched from espousing it as an antidote to an untrustworthy administration10 to championing it as the answer to the enforcement agencies' inevitable lack of sufficient resources to address all statutory violations.11 Although the issues in the debate are obscure, there was a real debate, and tension between proponents and opponents shaped the provision. Thus, citizens were allowed to sue, but could do so only after notifying appropriate regulatory agencies and giving them opportunity to sue first. While citizens were allowed to sue to redress statutory violations, they were not allowed to sue for resulting damages. And private enforcement was encouraged by allowing the award of attorneys fees, but frivolous and harassing suits were discouraged by allowing fee awards against any party where appropriate.

Once firmly ensconced in the Clean Air Act, the citizen suit was included in all new federal environmental statutes or major statutory amendments to existing federal environmental statutes in the 1970s,12 except for the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA).13 This almost ubiquitous inclusion and seemingly anomalous exclusion is explained by the fact that either or both the Senate Environment and Public Works Committee (formerly the Public Works Committee) and the House Commerce and Transportation Committee are the authorizing committees for all of this legislation except FIFRA. FIFRA is the exclusive domain of the more conservative Agriculture Committees in both houses of Congress.14 There has been a tendency to literally "lift" § 304 from the Clean Air Act and transpose it with only the most cursory conforming changes into other environmental statutes. The results are sometimes surprising. Lack of careful attention to statutory differences, for instance, has resulted in the ability of citizens to enforce more provisions of the Resource Conservation and Recovery Act (RCRA) than the Environmental Protection Agency (EPA) can enforce15 and allows them to enforce the Safe Drinking Water Act (SDWA) after notice to EPA that time is too short to allow EPA enforcement prior to the filing of a citizen suit.16

General Outline of Citizen Suit Sections

The citizen suit sections of the various environmental statutes are virtually identical, being patterned closely after Clean Air Act § 304. There are perhaps no sections of the environmental statutes where precedent under one statute so clearly applies to others.17 To the extent the sections differ from statute to statute, the changes reflect differences in the structure or scheme of the statute involved, or a quirk at the time enacted. Ironically, subsequent amendments to § 304 reduce its similarity to equivalent sections in other statutes.

The sections authorize "any person"18 to commence suit to enforce the requirements of the acts19 against "any [13 ELR 10312] person"20 alleged to violate them or to require the government to perform a mandatory duty under the acts.21 They confer jurisdiction on the district courts to entertain such suits without regard to diversity of citizenship or the amount in controversy. Jurisdiction is generally conferred on the courts to "enforce" the violated requirements although under § 505(a) of the Clean Water Act they may also assess penalties.22 Venue is usually in the district where the offense occurred,23 but venue in suits against the government is sometimes in the District of Columbia.24

No suit may be commenced unless 60 days notice has been given to EPA, the state (except under the Deepwater Port Act (DPA), the Endangered Species Act (ESA), the Noise Control Act (NCA), the Toxic Substances Control Act (TSCA), and the Marine Protection, Research, and Sanctuaries Act (MPRSA), which have no significant role for state implementation), and the alleged violator. There has been a plethora of litigation concerning whether this prerequisite is jurisdictional. There are exceptions to the notice requirements, particularly where violations of hazardous pollutant or new source standards are alleged.25 Notice is usually to be made as specified in regulations, but regulations have not been promulgated under all statutes.26 Suit may not be commenced if EPA or the state (except under statutes with no significant role for state implementation) has commenced and is diligently prosecuting an enforcement action, variously defined, to require compliance.27 The necessarily subjective standard of "diligent prosecution" has lead to litigation in the past and undoubtedly will in the future. The person giving notice may intervene by right in any government enforcement actions commenced in federal court.28 It has been argued that state programs submitted for approval under these statutes cannot be approved without a comparable right to intervene in state-initiated actions in state court.29

The citizen suit sections allow the court to award costs, including reasonable attorneys and expert witness fees, to any party. No aspect of the sections has engendered as much litigation as attorneys fees, particularly as public interest law firms have attempted to collect fees from a reluctant government. To prevent the encouragement of frivolous litigation by the attorneys fees provision, the sections allow courts to award attorneys fees to any party as appropriate and to require plaintiffs to post a bond or other surety where a temporary restaining order or preliminary injunction is sought.

The sections have a savings clause to obviate any implication that they preclude other remedies provided by statute or at common law. The Clean Air Act § 304(e) and SDWA § 1449(e) savings clauses specifically refer to administrative and judicial enforcement by state and local government of their environmental requirements against federal installations. Clean Water Act § 505(h) provides that a state may sue EPA to enforce against violations by an out-of-state source whose discharges adversely affect the state. TSCA § 20(d) allows consolidation of actions against the same defendant for the same violations in different district courts. Section 520(f) of the Surface Mining Control and Reclamation Act (SMCRA) enables a claim for damages caused by SMCRA violations to be filed in the district where the violation occurred. A proposed amendment to RCRA § 7002 authorizing citizen suits to abate imminent and substantial endangerments30 breaks this pattern in a fundamental respect. Rather than authorizing the enforcement of requirements established by Congress or already subjected or potentially subjected to judicial review, the amendments allow citizens to engage the courts in the uncertain and thorny issues of what constitutes an endangerment and what remedy may be appropriate. In essence, the amendment would allow private citizens to bring public nuisance cases under the guise of RCRA. While the merits of this proposal are open to debate,31 the citizen suit provision clearly was not [13 ELR 10313] designed with this type of action in mind.32 Efforts to blunt arguments against the amendment will undoubtedly lead to anomalous results.33 Indeed, if arguments against it are vindicated, a resulting backlash could adversely affect the use of citizen suits for more traditional purposes.

Use and Evaluation of Citizen Suits

While the citizen suit was conceived and designed to allow private enforcement of the law against polluting violators, its most celebrated uses have been against EPA for its failures to implement the environmental statutes in a timely and complete manner. Suits by national environmental organizations to force EPA to promulgate water pollution effluent limitations and air quality standards for toxic pollutants, and similar actions have done much to shape implementation of the statutes.34 The impact of the mechanism against pollution violators is more difficult to assess because case filings and results are not systematically collected and tabulated and results are seldom as spectacular. One commentator concluded on the basis of finding only 19 reported court opinions in citizen suit cases during a recent two-year period that such suits were seldom brought and that the sections were underutilized.35 But reported cases are not a good measure of the utility of citizens suits because they are brought in district courts, most of whose orders and opinions are unreported. Case filings are a better indicia. Incomplete records of case filings indicate that 46 citizen suits were brought under the Clean Air Act and the Clean Water Act during a recent three-year period: about one private enforcement action was brought for every six brought by EPA during its active enforcement phase.36 Indeed, it appears that during the present dearth of government enforcement, private enforcement of traditional environmental laws is more frequent than EPA enforcement.37 [13 ELR 10314] But even this is not the real measure of the utility of citizen suits. They were authorized to goad governmental enforcement and only as a last resort, provide for fall-back private enforcement. The goading mechanism is the notice of citizen suit. A growing number of notices of citizen suit are filed every year with EPA.38 Because many notices of citizen suit are not followed by the filing of judicial actions, it is logical to conclude that compliance with the environmental laws is often achieved short of proceeding with citizen suit litigation.Unfortunately, such a conclusion must await empirical research.

If citizen suits were only infrequently filed, they would provide a valuable safety valve to allow enforcement to go forward when the government is either unwilling or unable to proceed. They would operate to satisfy citizen concerns while not interfering with the government's priorites (exactly the opposite effect predicted by early opponents of the provisions39). But citizen suits have become more than an occasionally used safety valve. Under the Clean Water Act they are now the dominantly used federal judicial enforcement mechanism. As such, their significance can hardly be doubted. The demise of the federal common law of nuisance and the private right of action in federal environmental law add emphasis to the importance of citizens suits.40


Proper Plaintiffs: Definition and Standing

With one exception, the citizen suit sections authorize "any person" to commence suit. The exception is Clean Water Act § 505 which authorizes "any citizen" to commence suit. But § 505(g) then defines a "citizen" to be a "person" with an interest which is or may be adversely affected. "Person" is not defined in the citizen suit sections, but is addressed in the general definitional sections of all of the statutes except TSCA.41 These definitions are similar but not identical. Whether a particular entity can be a proper plaintiff depends both upon whether the entity is a "person" under the particular statute and, if so, whether the person has standing to sue. The definitions of "person" in the statutes are what would be expected. Little legislative history exists with regard to what "person" can sue and questions regarding proper plaintiffs therefore must be resolved with no obvious frame of reference.

The Clean Air Act and SDWA definitions of "person" include federal agencies. Under a literal reading of these definitions, EPA could be a citizen suit plaintiff. However, because the proper party plaintiff in a suit by the federal government is the United States rather than a federal agency,42 and the definitions of "persons" include federal agencies rather than the United States, EPA does not have recourse to the citizen suit sections.43 This technicality aside, allowing the federal government to sue under the citizen suit sections turns the statutes and the sections on their heads. Apart from the unlikely desire of the government to seek attorneys fees,44 there is no logical reason why EPA would desire to use the citizen suit sections rather than its own far more considerable statutory enforcement authority. Indeed, it would be disadvantaged by doing so, having to provide 60 days' prior notice under the citizen suit sections rather than 30 days' prior notice or no notice at all under its own enforcement authorities. Congress provided a full panoply of enforcement tools for the government under each statute. It included specific checks and balances within each enforcement remedy to prevent abuse and too zealous or too lackadaisical use, with the clear intent that EPA would use the enforcement remedies provided, complete with those checks and balances. One clear legislative intent behind the citizen suit sections is to provide a remedy when government fails to enforce. Use by EPA of the remedy [13 ELR 10315] would subvert that intent. The very structure of the citizen suit sections points to the absurdity of their use by EPA: EPA would have to notify itself of its intent to sue under the citizen suit sections and could not sue if it has already filed and was diligently prosecuting an action. The one court considering the question disposed of it quickly in dicta.45

In a superficially similar vein, one court in United States v. City of Hopewell46 held that a state is not a proper intervenor under Clean Water Act § 505 because it "would make no sense as it has a clear right to bring its own suit in its own courts." But states are included within the statutory definitions of "person."47 Two courts of appeals have ruled that states are "persons" for the purposes of § 505.48 Both the Supreme Court and EPA take the position that states may be citizen suit plaintiffs, although neither consider the narrow issue of whether they are "persons."49 Since "persons" are defined to include states in the general definitional sections rather than in the citizen suit provisions, it is doubtful whether Congress really considered the issue of their use of the sections as plaintiffs. The analysis by the district court in the Hopewell case may present a valid public policy reason why states should not use the section, but absent a change in the wording of the statutes, Hopewell is clearly wrong.50 However, under TSCA, which does not define "person," the Hopewell rationale was used more persuasively to preclude enforcement by a local political subdivision.51

Once it is established that a potential plaintiff is a "person," the standing issue must be addressed. Standing is explicitly recognized by Clean Water Act § 505(g), which defines a "citizen" as a "person or persons having an interest which is or may be adversely affected." SMCRA § 520 and § 23 of the Outer Continental Shelf Lands Act (OCSLA) accomplish the same goal in authorizing suit by any person having an interest adversely affected or potentially affected. The language of § 505(g) is a conscious effort by Congress to restrict use of the citizen suit section to those who meet the standing test of Sierra Club v. Morton.52

In Sierra Club v. Morton the Supreme Court held that the Sierra Club had no standing to challenge a recreational development adjacent to Sequoia National Park without compliance with the National Environmental Policy Act (NEPA) because it would sustain no injury. The Court stated, however, "it is clear that an organization whose members are injured may represent those members in a proceeding for judicial review."53 Thus, the general or even particular interest of an organization in a pollution problem will not give it standing, but allegations that its members are injured will.54 This could include allegations that its members breathe polluted air within the zone of influence of an offending air pollution source,55 use waters polluted by a complained of water pollution source,56 or use wetlands to be filled without a properly issued permit.57

Although standing has overtones and nuances of judicial practicality, the doctrine is rooted in the constitutional limitation on judicial jurisdiction to cases in controversy. As the Supreme Court has recently articulated,

At an irreducible minimum, Art. III required the party [13 ELR 10316] who invokes the court's authority to "show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant," … and that the injury "fairly can be traced to the challenged action" and "is likely to be redressed by a favorable decision."58

By adopting the Sierra Club v. Morton conception of standing in Clean Water Act § 505 and SMCRA § 520, Congress has inadvertently raised troubling questions. Should standing be frozen under those two statutes as it was enunciated in Sierra Club v. Morton, or should it be allowed to develop as subsequent judicial interpretation develops? If standing is truly a constitutional doctrine rather than a jurisprudential one, it could not be frozen. Freezing the concept of standing under the liberal Sierra Club v. Morton interpretation would foreclose subsequent, possibly more restrictive approaches. This would be an ironic result since Congress referenced the Sierra Club v. Morton interpretation to restrict the class of persons authorized to bring citizen suits.59 The Supreme Court, in Middlesex County Sewerage Authority v. National Sea Clammers Association,60 however, has apparently enshrined in Clean Water Act § 505 the Sierra Club v. Morton interpretation, despite more restrictive interpretations of standing in the meantime.61 The same question arises in a different guise under the citizen suit sections of the other statutes. Should they too be governed by Sierra Club v. Morton standing? Although there may be a temptation to so restrict them,62 the better answer is that Congress made no allusion to the Sierra Club v. Morton standard for those statutes, and standing to sue under them should be left to develop as it does in other similar contexts.

It should be noted that the injury requirement, liberally interpreted in Sierra Club v. Morton, is but one part of a two-pronged test for standing that has been developed under that case and it progeny: (1) the act complained of must cause injury to the plaintiff and (2) the injury must be within the zone of interest protected by the relevant statute.63 The concept of injury has traditionally been associated with physical or economic interests and indicia, interests which are remote or altogether lacking in many cases arising under the environmental laws and the social legislation of the 1970s which provide for citizen enforcement. To accommodate this, courts have fashioned the concept of injury to include invasions of statutorily conferred rights which are enforceable by citizens.64 This helps to explain the distinctions drawn between the standing of membership organizations and their members: the organizations can themselves have no right or expectation to breathe clean air or fish clean waters, but their members can. It also helps to explain why courts have tolerated very nonspecific allegations of injury by persons living within the zone of influence of a pollution problem but have required very specific allegations of injury by non-residents to sustain standing.65 But line drawing becomes a slippery slope indeed. If I have standing because I sustain an injury from pollution where I live or work or possibly where I vacation, what about where I will live or work or vacation in a month or year? What about where I may live or work or vacation sometime? Indeed, when applied to suits to compel mandatory action by EPA, e.g., in standard setting, the concept fails altogether and another concept must be introduced.66

The resulting quagmire calls the question of whether injury is really relevant to standing under the citizen suit provisions, absent explicit congressional restrictions such as are found in Clean Water Act § 505 or SMCRA § 520. Congress has conferred enforcement powers on EPA in the first instance and there is no prerequisite of injury when EPA exercises those powers.67 In the absence of EPA action, Congress has conferred enforcement powers on citizens secondarily. Why should there be a prerequisite of injury when they act for EPA as private attorneys general?

A jurisdictional doctrine used in challenges to the government's failure to perform a mandatory duty may be more appropriately applied in citizen suit cases than the requirement of injury. Under this doctrine, there is a case in controversy in the constitutional sense where Congress has conferred statutory duties on an agency, Congress has conferred the power to enforce those duties on members of the public, and members of the public institute proceedings to enforce those duties, "even if the sole purpose is to vindicate the public interest."68 One commentator observed: "To speak of an additional requirement of an injury in fact is surplusage because Congress, having [13 ELR 10317] identified the controversy, has authorized any person to bring that controversy to court as a private attorney general to protect the public interest."69 Indeed, this analysis falls within the general inquiry posed by the Supreme Court in Sierra Club v. Morton: is there a real dispute present and is it raised by a party intended by Congress to be able to raise it.70


Regardless of how the issue of injury is resolved, forprofit corporations have difficulty with standing because of the zone-of-interest test. The zone of interest of the pollution control statutes is the protection of public health and the environment from damage by pollution. There are a number of contexts in which corporate interests in preventing pollution violations coincide with the statutory interest: where corporate facilities are damaged, workplaces rendered unhealthy, production costs increased, or retail premises rendered less attractive to consumers.71 But where the corporation's interests are in economic competition, the corporate plaintiff will lack standing,72 because economic interests are not generally the interests protected by pollution control legislation. Under some circumstances, however, competitive economic interest may be within the zone of interests of the pollution control statutes: where a corporate plaintiff which has complied with a particular set of requirements alleges economic injury because its competitors have not complied with those requirements. One of the purposes of the pollution controls statutes, especially in establishing national standards and enforcement, was to remove competitive advantages of this nature.73 Finally, courts may overlook standing problems of plaintiffs whose interests are competitive economies where co-plaintiffs clerly have standing and the action will "further the goals" of the statutes in question.74 The question of the standing of corporate plaintiffs is certain to become a lively issue over time as corporations grow more willing to utilize pollution control laws to their own ends.75

Proper Defendants: Definition, Sovereign Immunity, and Vicarious Liability

Any "person" may be sued for violating pollution control requirements under the citizen suit section. The same general definitions of "person" govern defendants under these sections as govern plaintiffs under them. Two questions with regard to proper defendants emerge from litigation under the sections: (1) the extent to which sovereign immunity has been waived to enable suits against violating governmental facilities and (2) the extent to which vicarious liability makes corporations and corporate officers responsible for acts of corporate underlings.

The general definitions of "person" in the environmental statutes include federal entities only in Clean Air Act § 302(e) and SDWA § 1401(a). Clean Air Act § 302(e) was amended to include federal entities in 1977 in a series of amendments76 designed to reverse the Supreme Court's opinion in Hancock v. Train,77 that federal installations were not subject to state air pollution permit requirements.78 The amendment to § 302(e) was not necessary to authorize citizen suits under Clean Air Act § 304 against federal installations violating applicable Clean Air Act requirements, because § 304(f) already authorized [13 ELR 10318] such suits. Hancock v. Train concerned which air pollution requirements were applicable to federal facilities, not whether they could be enforced by citizens.79 Indeed, the Court noted that applicable requirements were "to be enforced through § 304, and § 304 is the only provision in the Act for state enforcement of the duties of a federal installation … § 304 provides the means of enforcing that duty in federal court."80 In a companion case the Court hinted at a similar result under the Clean Water Act.81 Quite apart from these considerations, § 304 and most of the other citizen suit sections authorize action against "any person [including (i) the United States]" owning or operating a facility violating the Act. Section 304 reflected clear congressional intent that citizen suits be available against violating federal facilities.82 Indeed, they have been so used on a number of occasions.83

Issues of vicarious liability are raised in both governmental suits and citizen suits84 to enforce the environmental laws. The questionsmost often raised are: (1) whether corporate officers, owners, or employers are liable for violations by their corporations; (2) whether corporations are liable for violations by their employees; and (3) whether corporate liabilities can be passed through related corporations.

Issues of vicarious liability are basic to corporate law. In general, corporations are liable for the acts of their officers and employees, within the scope of their employment; corporate owners, officers, and employers are not subject to the liabilities of the corporation; and liabilities are not transferred between related corporations, despite direct or common ownership and control. These general principles can be changed by statute. They are not particularly affected by being raised in the context of environmental statutes, except that the statutes raise protection of the integrity of the environment to a high level of public policy. Some of the general principles do not apply when there is compelling reason to "pierce the corporate veil" and environmental protection may qualify as such a compelling reason.

With the limited exception mentioned below and absent a compelling reason to pierce the corporate veil, corporate officers, owners, or employers are not civilly liable for violations of the environmental statutes by their corporations, either under the government enforcement provisions85 or under the citizen suit sections.86 Only "persons" are possible defendants under those sections. The general definitions of "person" do not include corporate officers, owners, or employers as such, except that SDWA § 1401 includes corporate officers and Clean Water Act § 309(c)(3) includes them for the limited purpose of criminal liability. In any event, corporate officers, owners, and employers are not generally attractive civil enforcement targets, because their corporations are more likely to have the money and the ability to pay substantial penalties and carry out substantial remedial action. On the other hand, they do make attractive criminal enforcement targets because of the increased deterrent effect of convicting individuals.87 Indeed, they are frequent criminal defendants.88

Corporations, of course, are civilly liable for violations caused by their employees, regardless of whether they were known to or sanctioned by responsible corporate officials.89 In this respect the environmental statutes do not depart from normal principles of corporate law.90

Vicarious liability has been successfully imposed upon corporations that control violating entities, both with91 and without92 direct ownership or mutuality of ownership [13 ELR 10319] and officers. Courts have explicitly found that the public interest in protecting the integrity of the environment is paramount over fulfilling a parent corporation's expectation of limiting its liability by doing business through under-financed subsidiaries.93

Causes of Action

Actionable Violations

The citizen suit sections typically authorize actions for violations by any person of the provisions or requirements of their respective statutes and for failure by the implementing government agency to perform mandatory duties under those statutes. Some also authorize enforcement against violations of rules, regulations, permits, licenses, or leases issued pursuant to the statutes. The latter is redundant: the provisions and requirements of the statutes by their very nature already include required compliance with rules, regulations, and other documents issued under them.94

It would be logical to conclude that citizens can enforce against all violations of the environmental statutes and that citizen and government enforcement authority are co-extensve. These conclusions follow from (1) the legislative purposes underlying the sections, i.e., goading government enforcement and providing alternative private enforcement when government enforcement fails;95 and (2) the broad authorization for citizens to file actions to enforce the provisions and requirements of the statutes. Indeed, these conclusions must be fulfilled if the purposes behind the citizen suit sections are to be fully accomplished. Both logic and congressional intent are defeated under some statutes because Congress defined "provisions or requirements" of those statutes in less than a comprehensive manner. Moreover, Congress failed to provide for government enforcement in some instances. There is no apparent reason for most of these shortcomings or for differences between the statutes other than inattentive legislative draftsmanship.

Except as discussed below, the sections are forward looking, providing for injunctive relief against sources "alleged to be in violation" (emphasis added). This naturally leads to the question of whether jurisdiction under the sections disappears if the violator comes into compliance after an action is filed. The one court considering the question held that it did not.96 Although far from clear, general principles of mootness should lead to the same results if the violation is one susceptible of repetition.97

Only under Clean Water Act § 505 may citizens sue for the assessment of penalties. Courts have not yet considered whether an action lies for penalties under § 505 for past or only for future violations. In another context, two courts have held that § 505 is "purely prospective."98 This would lead to the conclusion that an action for penalties is authorized only for violations occurring after the filing of the action. But the section authorizes courts to "apply any appropriate penalties under" § 309(d),99 the government enforcement section. Section 309(d) authorizes penalties for violations occurring at any time. It can be argued that Congress intended comparability incause of action and remedy under §§ 309 and 505 and therefore an action for penalties is authorized under § 505 for violations occurring at any time.

The failure of Congress to authorize the assessment of penalties under most of the sections is not explained in the legislative history. It most likely represents a concession to opponents of citizen enforcement who feared that a penalty provision would be misused by venal plaintiffs. Because penalties run to the government rather than to citizen plaintiffs, pursuit of penalties by them normally would be altruistic rather than venal.100 Indeed, the failure to authorize penalties in the sections results in a serious disparity between government and citizen enforcement mechanisms. It is very much to the advantage of a violator to be sued by a citizen rather than by the government because the violator's liability under a citizen suit does not include penalties. This also reduces the citizen plaintiff's bargaining leverage in settlement negotiations. A resulting settlement contained in a consent decree, unless the government intervenes in the case, will ultimately bar the government from seeking penalties.

The citizen suit sections are limited grants of jurisdiction, authorizing citizen enforcement only of the violations [13 ELR 10320] mentioned in the sections.101 They are not substitutes for the judicial review sections of the various statutes.102 Because the sections are worded differently, each must be examined individually to determine what causes of action are encompassed.

Under RCRA § 7002, SDWA § 1499, MPRSA § 105(g), DPA § 16, OCSLA § 23, and SMCRA § 520 authority for citizen suits is very broad, typically encompassing all violations of the act or rules, regulations, permits, and orders issued under it.103 In fact, under RCRA § 7002, the enforcement authority of citizens is considerably broader than EPA's. EPA may only enforce Subtitle III, the hazardous waste management program, whereas citizens may enforce against any violations of the entire Act,104 a difference of note, though Subtitle III has most of the enforceable requirements. Under SDWA § 1449 citizens may not enforce against a state to impose schedules for variances and exceptions unless it has failed to establish schedules in a substantial number of cases. With that caveat, the SDWA citizen suit provision is more effective and, as a practical matter, has a greater scope than EPA's enforcement authority. To enforce against a violation in a state with SDWA primary enforcement responsibility, EPA must give 60 days' notice, requesting the state to report what steps are being taken to end the violation. EPA may only commence actions if the state fails to submit the report or if EPA determines the state's action or inaction has abused its discretion.105 Citizens can resort to courts more quickly than EPA since they need not ask for or analyze the state's report and they may sue in more cases than EPA since they are not barred by state action or inaction regardless of whether it is an abuse of the state's discretion. Nowhere is the fatuity of the 60-day notice requirement for citizen suits more obvious than under the SDWA: it would be impossible for EPA to file suit within 60 days after receiving a citizen suit notice of violation in a SDWA state.106

NCA § 11107 and TSCA § 20 make specific grants of enforcement authority which are somewhat less than to EPA. Neither allows citizen enforcement of information request, recordkeeping, reporting, or entry requirements. NCA § 11 does not permit enforcement of EPA orders. TSCA § 20 does not authorize enforcement against violations of several aspects of the Act which EPA can enforce.108 ESA § 11(g) authorizes suit only against the Secretary of the Interior for failure to perform mandatory duties under the Act or for the imposition of sanctions authorized by the Act.

Clean Water Act § 505 authorizes enforcement against violations of "effluent standards or limitations," which it elaborately defines.109 Reduced to a nutshell, citizens may enforce against discharges which lack required Clean Water Act §§ 402 or 404110 permits; violations of Clean Water Act §§ 402 or 404 permits;111 and violations of new [13 ELR 10321] source, toxic pollutant, and pretreatment standards. They may not enforce against violations of information request, recordkeeping, reporting, or entry requirements (except insofar as they happen to be permit violations); Clean Water Act § 311112 oil or hazardous materials spill requirements and prohibitions; Clean Water Act § 312113 marine sanitation device requirements; or Clean Water Act § 405114 sludge disposal and permit requirements.

Clean Air Act § 304 authorizes citizen enforcement against violations of "emission standards or limitations." These are defined in a redundant, rambling, and confused manner in § 304(f).115 When aggregated, the coverage is quite broad, but excludes at least information gathering, recordkeeping, reporting, and entry requirements as they relate to most traditional state implementation plan (SIP) provisions, the sale of noncertified motor vehicles or vehicle engines, and tampering with automobile emission controls. The section must be checked with care on any particular violation.

The sections also authorize citizens to sue the federal implementing agency for failure to perform a non-discretionary duty under their respective statutes. There have been a number of suits filed alleging violation of a mandatory duty to enforce. Although there are strong arguments on both sides under some of the statutes and cases go both ways,116 the better view is that enforcement is discretionary rather than mandatory.

These aspects of the sections are more in need of legislative clarification than any other. The differences in wording between the sections is unexplained and potentially troublesome. More important, the lack of comparability between government and citizen enforcement authority under some of the statutes defeats the legislative intent underlying the section.

Relation to Other Laws

The citizen suit sections do not restrict a person's right to seek enforcement or other relief under any statute or common law. Clean Air Act § 304(e), Clean Water Act § 505(e), RCRA § 7002(f), MPRSA § 105(g)(5), and SMCRA § 520(e) specifically preserve causes of action against implementing federal or state agencies. The preservation of actions against state agencies in the MPRSA is odd because state agencies have no implementing role under that statute. This anomaly is best explained by the propensity of legislative drafters to copy citizen suit sections from earlier statutes without making appropriate adjustments. NCA § 12(e) and ESA § 11(g)(5) include preservation of rights only against the federal implementing agency. The NCA and the ESA have no implementing role for state agencies. Because the savings clauses do not purport to waive sovereign immunity under their host statutes or in other contexts, the specific preservation of causes of action against federal agencies reflects extreme legislative caution against arguments that without such wording the citizen suit sections may restrict waivers of sovereign immunity made elsewhere. In view of the Supreme Court's strict construction of waivers of sovereign immunity, this caution is understandable.117 Clean Air Act § 304(e) and SDWA § 1449(e) provide that the sections do not restrict the right of states and localities to enforce their air pollution and drinking water requirements against federal facilities in state and local forums, rights granted elsehere in those statutes.118 Because some of the other statutes contain similar waivers of sovereign immunity,119 it is curious that they do not contain similar wording in their savings clauses, particularly in view of their caution in this regard discussed above.

The savings clauses merely preserve existing remedies, they do not create new ones. It is clear from the legislative history of Clean Air Act § 304 that Congress had no intent to create a cause of action for damages under the Clean Air Act.120 SMCRA § 520 departs from this pattern, explicitly creating a federal cause of action for damages caused by violations of SMCRA's substantive provisions.121 At the same time, courts in citizen suit cases have [13 ELR 10322] routinely considered state statutory or common law claims under pendent jurisdiction, recognizing that such remedies are preserved by the savings clauses.122

The most celebrated questions under the savings clauses are whether they preserve: a federal common law of nuisance; an implicit private right of action for damages caused by violating the statutes' substantive provisions; or jurisdiction under the general jurisdictional statutes. In rapid order, the Supreme Court answered all these questions in the negative in City of Milwaukee v. Illinois and Michigan123 and Middlesex County Sewerage Authority v. National Sea Clammers Association.124 Although these cases arose under the Clean Water Act and the MPRSA, there is little doubt that their reasoning applies to the other environmental statutes.125

A federal common law of nuisance for water pollution was recognized by the Court in Illinois v. Milwaukee,126 an earlier incarnation of City of Milwaukee v. Illinois and Michigan. The earlier opinion was handed down shortly after the Clean Water Act was enacted in 1972 and the Court warned "that new federal laws and new federal regulations may in time preempt the field of federal common law of nuisance."127 Although not widely used, courts recognized and developed this cause of action in cases where pollution of interstate waters was not otherwise regulated and the plaintiff was a governmental entity.128 By the time the issue reached the Supreme Court a second time,129 EPA had established a pervasive regulatory scheme under the Clean Water Act which the Court found sufficient to end the availability of a federal common law remedy. It peremptorily rejected recurrent arguments that the savings clause in Clean Water Act § 505(e) preserved the federal common law of nuisance. The Court pointed out that the savings clause merely preserved actions from extinguishment as a result of the citizen suit section, while it found federal common law of nuisance extinguished by the totality of the Clean Water Act and the regulatory scheme in place under it.130 The Court subsequently held that the MPRSA occupied the field of ocean dumping and preempted federal common law. It has also been held that RCRA and the Comprehensive Environmental Response, Compensation, and Liability Act131 occupy the field of hazardous waste controls and preempt federal common law.132 The same conclusion has been hinted at but not decided under the Clean Air Act.133

There have been recurrent attempts to establish a private right of action for damages resulting from violations of the federal environmental statutes.134 For the remedy to exist, it must be implicit in the statute. The usual test is that enunciated in Cort v. Ash:135 (1) the plaintiff must be among the class whose interests are protected by the statute violated; (2) the legislature must have intended a private cause of action; (3) a private cause of action must be consistent with the purposes of the statute; and (4) a private cause of action must not interfere with matters that are normally left to state law. In the face of the extensive and elaborate enforcement schemes of the Clean Water Act and the MPRSA, including the citizen suit sections, the Supreme Court, in Middlesex County Sewerage Authority v. National Sea Clammers Association, could find no hint that Congress intended to infer another parallel private remedy. Indeed, the legislative history of Clean Air Act § 304 makes it clear Congress had no such intent.136 Had the Court engaged in cross-statutory analysis of the citizen sections, it would have found additional support for its conclusion from the inclusion of a provision for private damages in SMCRA § 520 but not in the citizen suit sections of the other federal environmental statutes. The Court rejected the argument that the savings clauses of the Clean Water Act and the MPRSA citizen suit sections preserved an implied right of action.137

Many plaintiffs have argued that violations of the federal environmental statutes raise federal questions, invoking federal question jurisdiction under 28 U.S.C. § 1331. They make the argument when they cannot sue under the citizen suit sections because they have failed to adhere to those sections' notice requirements. Courts have split on the issue.138 One of the courts finding jurisdiction [13 ELR 10323] to enforce the statutes under 28 U.S.C. § 1331 commented that the citizen suit sections "may add little to the jurisdiction of federal courts as a practical matter."139 The controversy over the enactment of the sections and the care that Congress took to structure them indicates that it did not share this view. Congress could not have gone to thr trouble of structuring the citizen suit sections to harmonize citizen enforcement with governmental implementation of the statutes, all the while contemplating that the resulting restrictions on citizen enforcement could be avoided by resort to 28 U.S.C. § 1331. The Supreme Court has not addressed the issue, but has addressed a similar issue under 42 U.S.C. § 1983, which establishes federal jurisdiction for persons injured by the violation of their federal rights by state officials. In Middlesex County Sewerage Authority v. National Sea Clammers Association, the Court held that 42 U.S.C. § 1983 did not create an independent cause of action for violations of the Clean Water Act and the MPRSA by such officials. The Court held that jurisdiction under § 1983 was foreclosed by the comprehensive enforcement provisions of those acts, including the citizen suit sections.140 The same reasoning applies to suits under 28 U.S.C. § 1331 and other general jurisdictional statutes. Thus, under prevailing Supreme Court decisions, the citizen suit provisions provide the only remedy and the only jurisdiction under federal law for citizens aggrieved by actions subject to the environmental laws. Of course, all their state statutory and common law rights and remedies remain141 and they may be brought as part of a citizen suit in federal court under the doctrine of pendent jurisdiction or pursued separately in state court.


In summary, the clarity, integrity, and internal rationality of the citizen suit sections could be improved by many small adjustments discussed above and in succeeding installments of this article. Chief among these improvements are rationalizing the notice requirements and adjusting each section to take into account the differences between their parent statutes. The effect of a judgment in a citizen suit case on subsequent government enforcement is also in need of clarification. But while these adjustments would be pleasing to the practitioner or scholar, they are minor adjustments. Because congressional amendments to the environmental statutes are usually delayed and incomplete and raise more questions than they solve, the problems identified are best recognized as quirks, some of which can be reconciled by courts over time, but some of which will remain as a reminder of the quaint and irrational byways of the law.

Citizen enforcement of federal environmental laws, then, is alive and well, increasongly so, and in need of continuing evaluation but not of present adjustment.

Future installments of this article will address the conditions precedent to bringing a citizen suit, intervention, remedies, attorneys fees, and tactics for prosecuting and defending citizen suit cases.

1. "The Committee realized that federal or state enforcement resources might be insufficient, and that federal agencies themselves might sometimes be polluters; the citizen suit provision created 'private attorneys general' to aid in enforcement." Natural Resources Defense Council, Inc., (NRDC) v. EPA, 484 F.2d 1331, 1337, 3 ELR 20803, 20805 (1st Cir. 1973). The citizen suit provision in the Clean Water Act was designed to allow "private attorney general enforcement to the maximum degree permitted" by Sierra Club v. Morton, 405 U.S. 727, 2 ELR 20192 (1972). National Sea Clammers Ass'n v. City of New York, 616 F.2d 1222, 1227, 10 ELR 20155 (3d Cir. 1980), rev'd on other grounds sub nom. Middlesex County Sewerage Auth. v. National Sea Clammers Ass'n, 453 U.S. 1, 11 ELR 20684 (1981).

2. That citizens would embrace a role as private attorneys general was attested by the plethora of unsuccessfully attempted qui tam actions under the Refuse Act, § 13 of the Rivers and Harbors Act of 1899, 33 U.S.C. § 407, ELR STAT. 41142. Jacklovich v. Interlake, Inc., 458 F.2d 923, 2 ELR 20140 (7th Cir. 1972); Connecticut Action Now, Inc. v. Roberts Plating Co., 457 F.2d 81, 2 ELR 20157 (2d Cir. 1972); Bass Anglers Sportsman's Soc'y of America v. Koppers Co., 447 F.2d 1304, 1 ELR 20435 (5th Cir. 1971); Gerbing v. ITT Rayonier, Inc., 332 F. Supp. 309, 1 ELR 20368 (M.D. Fla. 1971); Mitchell v. Tenneco Chemicals, Inc., 331 F. Supp. 1031 (D.S.C. 1971); Lavagnino v. Porto-Mix Concrete, Inc., 330 F. Supp. 323, 1 ELR 20417 (D. Colo. 1971); Bass Anglers Sportsman's Soc'y of America v. Scholze Tannery, Inc., 329 F. Supp. 339, 1 ELR 20359 (E.D. Tenn. 1971); Enquist v. Quaker Oats Co., 327 F. Supp. 346, 1 ELR 20291 (D Neb. 1971); U.S. ex rel. Mattson v. Northwest Paper Co., 327 F. Supp. 87, 1 ELR 20280 (D. Minn. 1971); Reuss v. Moss-American, Inc., 323 F. Supp. 848, 1 ELR 20129 (E.D. Wis. 1971); Durning v. ITT Rayonier, Inc., 325 F. Supp. 446, 1 ELR 20040 (W.D. Wash. 1970). Burgeoning private litigation under the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321-4361, ELR STAT. 41009, evidenced the same willingness in another context.

3. Typical of the earlier enforcement mechanisms was the former enforcement procedure in the Clean Air Act, described in U.S. v. Bishop Processing Co., 423 F.2d 469, 470-72 (4th Cir. 1970), cert denied, 398 U.S. 904 (1970). The proceeding was against a rendering plant causing a "horrible" interstate "stench." After five years of attempting to deal with the problem on its own, Delaware (the affected state) requested that the Secretary of Health, Education, and Welfare convene an enforcement conference under the statute. A conference held between the relevant political jurisdictions resulted in a recommendation that Maryland (the host state) require abatement of the odor. The Secretary forwarded the recommendation to Maryland and, when no remedial action was forthcoming, commenced a public hearing before a Hearing Board in which Bishop Processing participated. The Hearing Board made findings and recommendations which if forwarded to the Secretary who then instructed Bishop to abate the odor. When it did not, the Secretary requested that the Attorney General file suit. Suit was filed, three years after the administrative prerequisites were commenced. Despite the two proceding administrative proceedings, the judicial proceeding was de novo. The equally cumbersome enforcement mechanisms under the former Federal Water Pollution Control Act are described in Dunkelberger, The Federal Government's Role in Regulating Water Pollution Under the Federal Water Quality Act of 1963, 3 NAT. RESOURCES LAW. 3 (1970); Pitts, The Interaction of the Federal and State System: The Experience in the Central U.S., 3 NAT. RESOURCES LAW. 26 (1970); Stein, The Actual Operation of the Federal Water Pollution Control Administration, 3 NAT. RESOURCES LAW. 47 (1970). Small wonder recalcitrant polluters were seldom pursued to court.

4. During Senate debates on the Clean Air Act on September 21, 1970, Senator Muskie noted that "state and local governments have not responded adequately [to the challenge of enforcement]…. It is clear that enforcement must be toughened if we are to meet the national deadline. More tools are needed, and the federal presence and backup authority must be increased." ENVIRONMENTAL POLICY DIVISION, CONGRESSIONAL RESEARCH SERVICE, A LEGISLATIVE HISTORY OF THE CLEAN AIR ACT AMENDMENTS OF 1970, at 226 [hereinafter cited as LEGIS. HIST. CLEAN AIR ACT]. New enforcement tools were provided. The cumbersome mechanism described supra in note 3 was replaced with administrative orders; administratively assessed penalties; easy access to courts for injunctive relief, civil penalties, and criminal sanctions; and a variety of self-help measures for the enforcement agencies such as stop sale orders, seizures, and funds to clean up pollution with recoupment against the responsible party.

5. See generally that part of the legislative history of Clean Air Act § 304 reprinted in NRDC v. Train, 510 F.2d 692, 5 ELR 20046 (D.C. Cir. 1974). The atmosphere leading to the enactment of the citizen suit provisions is well summarized by Judge Sherwin in Rich v. City of Benicia, 5 ELR 20205 (Cal. Super. Ct. Solano Cty. 1974). The traditional of enforcement of public benefit laws solely by the attorney general

was grounded in a pre-Rooseveltian era. The proliferation of Federal, State and local agenices, elected by no one, and responsible to no one in the absence of judicial scrutiny, the inhibitions on attorney generals' offices imposed by restricted funding, a centralized bureaucracy, frequent conflicts of interest, and the all too human pride of opinion which forbade the public acknowledgement of error, led to the frequent departures from congressionally stated policies. It did not take a Nixon administration, with its impoundments and other lawless acts, to produce a widespread feeling of frustration and concern as to whether a democratic form of government could really function in a manner that would carry out the will of the electorate as expressed in the law of the land.

Id. at 20206.

6. The most celebrated of the state provisions is that authored and championed by Professor Sax in Michigan, MICH. COMP. LAWS ANN. §§ 691.1201-691.1207. See Sax and Conner, Michigan's Environmental Protection Act of 1970: A Progress Report, 70 MICH. L. REV. 1004-106 (1972); Sax and DiMento, Environmental Citizen Suits: Three Years Experience Under the Michigan Environmental Protection Act, 4 ECOLOGY L.Q. 1 (1974); Haynes, Michigan's Environmental Protection Act in Its Sixth Year, 53 J. URB. L. 589-700 (1977). See also CAL. GOV'T CODE §§ 12600-12612; CONN. GEN. STAT. ANN. §§ 22a-14-22a-20; FLA. STAT. ANN. § 403.412; IND. CODE ANN. §§ 13.6-1-1-13.6-6; MD. NAT. RES. CODE ANN. §§ 1-501-1-508; MASS. GEN. LAWS ANN. ch. 215, § 7A; MINN. STAT. ANN. §§ 116B.01-116B.13; NEV. REV. STAT. §§ 41.540-41.520; N.J. STAT. ANN. §§ 2A:35A-1-2A:35A-14; S.D. COMP. LAWS ANN. §§ 34A-1-34A-15.

7. 42 U.S.C. § 7604, ELR STAT. 42256.

8. The Clean Air Act citizen suit section evolved in the Senate bill; it had nocounterpart in the House bill. Its final metamorphosis was in the conference committee.An early verson of S. 4358 authorized suit against both persons alleged to be violating the requirements of the Act and against the implementing federal agency if it was alleged not to be enforcing the requirements of the Act or not to be performing any duty under the Act. Thirty days prior notice was required to the implementing agency and the state, with four exceptions. The implementing agency was authorized to intervene for the purposes of presenting evidence. Courts were authorized to award attorneys fees when the action was in the public interest. LEGIS. HIST. CLEAN AIR ACT, supra note 4, at 704-06. By the time the Senate had passed S. 4358, the citizen suit section was amended to require that notice also be given to the violating source and to allow the implementing agency to intervene in a citizen action as a matter of right. LEGIS. HIST. CLEAN AIR ACT, supra note 4, at 613-15. The section did not reach its final form until conference committee, where it was extensively modified. The violations which could be enforced against under the section were more explicitly defined. The federal implementing agency could only be sued for failure to perform a mandatory duty. The notice period was extended to 60 days and the exceptions were narrowed. Suit could not be brought if the implementing agency or state had brought and was diligently prosecuting an enforcement action, but the citizen could intervene in such an action in federal court. The venue provision and savings clause were added. Attorneys fees were made awardable when "appropriate" and bonds could be required when temporary or preliminary relief is sought. LEGIS. HIST. CLEAN AIR ACT, supra note 4, at 182-83. The section was amended in 1977 to bring the definition of the enforceable requirements of the Act into conformity with the amended requirements of the Act and to add language concerning state and local enforcement against violating federal facilities to the savings clause. Section 304(e), 42 U.S.C. § 7604(e), ELR STAT. 42256.

9. See remarks of Sen. Hruska during the Senate debates on September 21, 1970, reprinted in LEGIS. HIST. CLEAN AIR ACT, supra note 4, at 273-79.

10. "Government initiative in seeking enforcement under the Clean Air Act has been restrained. Authorizing citizens to bring suits for violations … should motivate governmental … enforcement and abatement proceedings." S. REP. NO. 1196, 91st Cong., 2d Sess. 36-39, LEGIS. HIST. CLEAN AIR ACT, supra note 4, at 436-39, reprinted in NRDC v. Train, 510 F.2d at 723, 5 ELR at 20063. See Metropolitan Washington Coalition for Clean Air v. District of Columbia, 639 F.2d 802, 804, 11 ELR 20171, 20171-76 (D.C. Cir. 1981); Baughman v. Bradford Coal Co., Inc. 592 F.2d 215, 218, 9 ELR 20147, 20148 (3d Cir. 1979), cert. denied, 441 U.S. 961; NRDC v. EPA, 484 F.2d at 1134, 3 ELR at 20804.

11. When the motivation cited supra in note 10 was attacked during Senate debates by Sen. Hruska as denigrating the executive branch's intentions, LEGIS. HIST. CLEAN AIR ACT, supra note 4, at 277, reprinted in NRDC v. Train, 510 F.2d at 726-27, 5 ELR at 20065-66. Senators Muskie and Hart formulated the second justification. "I think it is too much to presume that, however well staffed or well intentioned these enforcement agencies, they will be able to monitor the potential violations" of all the requirements of the Clean Air Act. Sen. Muskie, Sept. 21, 1970, LEGIS. HIST. CLEAN AIR ACT, supra note 4, at 280-81, reprinted in NRDC v. Train, 510 F.2d at 727, 5 ELR at 20066. "In legislation of this type, we will find very likely noncompliance which in number or degree are far beyond the capacity of the Government to respond to." Sen. Hart, Sept. 22, 1970, LEGIS. HIST. CLEAN AIR ACT, supra note 4, at 355-57, reprinted in NRDC v. Train, 510 F.2d at 730, 5 ELR at 20067.

12. 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, § 105(g), 33 U.S.C. § 1415(g), ELR STAT. 41865; Noise Control Act, § 12, 42 U.S.C. § 4911, ELR STAT. 41505; Endangered Species Act, § 11(g), 16 U.S.C. § 1540(g), ELR STAT. 41832:6; Deepwater Port Act, § 16, 33 U.S.C. § 1515, ELR STAT. 41709; Resource Conservation and Recovery Act, § 7002, 42 U.S.C. § 6972, ELR STAT. 41921; Toxic Substances Control Act, § 20, 15 U.S.C. § 2619, ELR STAT. 41348; Safe Drinking Water Act, § 1449, 42 U.S.C. § 300j-8, ELR STAT. 41116; Surface Mining Control and Reclamation Act of 1977, § 520, 30 U.S.C. § 1270, ELR STAT. 42421; and Outer Continental Shelf Lands Act, § 23, 43 U.S.C. § 1349(a), ELR STAT. 42466.

13. 7 U.S.C. §§ 135-136y, ELR STAT. 42301-20.

14. Similar citizen suit provisions were included in oither social and consumer legislation in the 1970s, e.g., § 24 of the Consumer Product Safety Act, 15 U.S.C. § 2073.

15. See infra text accompanying note 103.

16. See infra text accompanying notes 104-105.

17. See North Slope Borough v. Andrus, 515 F. Supp. 961, 964, 11 ELR 20419, 20420 (D.D.C. 1981), rev'd on other grounds sub. nom. Village of Kaktovic v. Watt, 689 F.2d 222, 12 ELR 21103 (D.C. Cir. 1982). See also Save Our Sound Fisheries Ass'n v. Callaway, 429 F. Supp. 1136, 7 ELR 20488 (D.R.I. 1977).

18. The Clean Water Act § 505(a) uses the term "any citizen," but defines it as "a person or persons having an interest which is or may be adversely affected," § 505(g). This change was made in conference to reflect Sierra Club v. Morton, 405 U.S. 727, 2 ELR 20192 (1972). CONF. REP. 1236, 92d Cong., 2d Sess., reprinted in 1972 U.S. CODE CONG. & AD. NEWS 3776, 3823. The conferees believed that "any person" implied a less restrictive measure of standing than embodied in Sierra Club v. Morton. SMCRA § 520(a) and OCSLA § 23(a) accomplish the same goal by providing that any person with an interest adversely affected or potentially affected may bring suit. "Person" is defined in the general definition sections of the varios acts. The definitions are similar, but not identical.

19. Although variously worded, the sections allow enforcement against violations of most, but not all, requirements of the statutes. Clean Air Act § 304(a)(1) and Clean Water Act § 505(a)(1) allow for enforcement of administrative orders issued by either EPA or the state. SDWA § 1449(a)(1) allows enforcement of requirements imposed pursuant to the Act, which probably includes EPA orders. SMCRA § 520(a)(1) unambiguously includes all violations of the Act, as well as of rules, regulations, orders, and permits issued pursuant to it. RCRA § 7002(a)(1) authorizes enforcement of permits, standards, regulations, conditions, requirements, or orders pursuant to the Act. DPA § 16(a) authorizes enforcement against violations of provisions of the Act or of regulations, permits, or licenses issued under it. ESA § 11(g)(1)(A) allows suit against violations of the provisions of the Act and regulations issued under it.

20. Here "any person" is generally parenthetically defined to include the federal government, waiving sovereign immunity for suits to compel compliance by polluting federal installations.

21. MPRSA § 105(g) and OCSLA § 23 do not authorize suits against the Administrator or the Secretary to perform mandatory duties. This article focuses on the use of citizen suits to enforce against violating polluters rather than against a recalcitrant EPA.

22. Under NCA § 12(c) courts are to "restrain" violations rather than to "enforce" the statute.

23. TSCA § 20(a) provides for venue where the defendant resides or has its principle place of business and for expanded services of process.

24. See RCRA § 7002(a) and TSCA § 20(a).

25. Clean Air Act § 304 allows suit to be filed immediately after notice for violations of administrative orders or new source or hazardous emission standards. Clean Water Act § 505(b) allows the same for violations of new source and hazardous pollutant standards. RCRA allows it for suits against EPA for failure to carry out its duties under Title III, the hazardous substances provisions.SMCRA § 520(b) and OCSLA § 23(a)(3) allow suits to be filed against the Secretary of the Interior where the violation or order complained of constitutes a hazard to the plaintiff's health, welfare, or other legal interest of the plaintiff. OCSLA § 23(a)(2)(A) requires the notice to be under oath.SDWA § 1449(b) does not allow suits against states for failure to establish schedules for a variance or exemption unless it is part of a massive failure to do so.

26. 40 C.F.R. pts. 54 (Clean Air Act), 135 (Clean Water Act), 210 (NCA), and 254 (RCRA). MPRSA § 105(g), OCSLA § 23, and ESA § 11(g) do not contemplate regulations on notice.

27. Clean Water Act § 505(b)(1)(B), MPRSA § 105(b)(2)(D), DPA § 16(b)(1)(B), ESA §11(g)(2)(A)(iii), and RCRA § 7002(b)(2) bar citizen actions if civil or criminal judicial actions have been commenced and are being diligently prosecuted, although how criminal actions can require compliance is not clear since they punish past behavior rather than address future behavior. All statutes bar citizen actions if civil judicial action has been commenced and is being diligently prosecuted, although MPRSA § 105(g)(2)(C) and TSCA § 20(b)(1)(B) also bar citizen enforcement if various administrative enforcement actions have been initiated and diligently prosecuted.

28. But see MPRSA § 105(g) and ESA § 11(g).

29. See Citizens for a Better Environment v. EPA, 596 F.2d 720, 725 n.8, 9 ELR 20092, 20094 n.8 (7th Cir. 1979). See also Baughman v. Bradford Coal Co., 592 F.2d at 219, 9 ELR at 20148; and In re Permanent Surface Mining Regulation Litigation, 10 ELR 20208, 20211 (D.D.C. 1980), aff'd en banc., 653 F.2d 514, 11 ELR 20941 (D.C. Cir. 1981), cert. denied, 454 U.S. 822 (1981).

30. As this chapter was written, H.R. 2867 and S. 757 had different versions of the proposal and neither had gone further than committee report. In broad terms, they would authorize citizen suits to enjoin imminent and substantial endangerments caused by hazardous wastes on roughly the same terms they allow citizen suits for violations of RCRA and would create broad intervention rights in settlement of RCRA § 7003 imminent and substantial endangerment suits by EPA.

31. It is clear that governmental action against perceived threats to public health from past hazardous waste practices has fallen far short of public and congressional demand and expectation. Citizen suits to enjoin endangerments is no radical innovation, being firmly established already in the common law of nuisance. While the availability of a federal common law of nuisance remedy for such threats is dubious, City of Milwaukee v. Illinois and Michigan, 451 U.S. 304, 11 ELR 20406 (1981), and is not available to private citizens in any event, Evansville v. Kentucky Liquid Recycling, Inc., 604 F.2d 1008, 1017-19, 9 ELR 20679, 20682-84 (7th Cir. 1979), cert. denied, 444 U.S. 1025 (1979); Committee for the Consideration of the Jones Falls Sewage System v. Train, 539 F.2d 1006, 1009, 6 ELR 20703, 20705 (4th Cir. 1976), common law nuisances are enjoinable in state courts under state common law. Indeed, they are enjoinable in federal courts under state common law where diversity or pendent jurisdiction exists.

On the other hand, if a remedy is already available at common law, it is difficult to understand the necessity of a new federal statutory remedy. (By contrast, there was no common law or statutory means for citizens to enforce environmental statutes in state or federal courts before the citizen suit provisions.) Widespread use of citizen suits in these cases (motivated perhaps by pendent claims for damages or the enticement of the attorneys fees provision) may lead to narrower and more careful judicial interpretation of the section than if EPA were the sole and less frequent plaintiff. Indeed, poorly financed and prepared private litigants may establish precedents that will make the section of considerably less utility to public and private plaintiffs alike. While the latter is to some extent true for all uses of citizen suits, the problem is lessened in the normal case because they seek to enforce a requirement that has already been established. The Department of Justice makes other arguments against the amendment, chiefly that it will disrupt the government's priorities. Testimony of Carol Dinkins, Assistant Attorney General, before the Senate Committee on Environment and Public Works, June 8, 1983.

32. Thus when Senator Hruska opposed Clean Air Act § 304 because it would overburden the courts with "complex factual and legal issues," Senator Muskie's easy answer was that the section only authorized citizens "to enforce the provisions of the Act or the requirements that are established as a result of the operations of the Act," LEGIS. HIST. CLEAN AIR ACT, supra note 4, at 278, 289, reprinted in NRDC v. Train, 510 F.2d at 728, 5 ELR at 20066. Indeed, in its report on the bill, the Senate Public Works Committee (now the Environment and Public Works Committee) was explicit:

Section 304 would not substitute a "common law" or court-developed definition of air quality. An alleged violation of an emission control standard, emission requirement, or a provision in an implementation plan, would not require reanalysis of technological or other considerations at the enforcement stage. These matters would have been settled in the administrative procedure leading to an implementation plan or emission control provision. Therefore an objective evidentiary standard would have to be met by the citizen who brings an action under this section.

LEGIS. HIST. CLEAN AIR ACT, supra note 4, at 436, reprinted in NRDC v. Train, 510 F.2d at 723, 5 ELR at 20063.

33. Thus Senator Simpson introduced an amendment to S. 757 requiring 120 days prior notice of citizen suits to enable the government adequate time to pursue enforcement against imminent and substantial endangerments. This leads to the anomalous result that a citizen suit may be filed immediately after notice for violation of hazardous waste regulations under RCRA, e.g., for failure to have an adequate groundwater monitoring plan; but may not be filed to halt an imminent and substantial endangerment until four months after notice, e.g., to halt the migration of dioxin discovered by groundwater monitoring. Similarly, H.R. 2867 seeks to prevent use of an amended RCRA § 7002 to boot-strap common law damage claims into federal court: "No such district court in which an action is brought under paragraph (1)(B) shall have jurisdiction in such action over any claim arising under state law." While it is not clear whether this limitation will have its intended effect, it clearly will have unintended and undesirable effects. Will a federal court, on the basis of the amendment, refuse to consolidate an action under RCRA § 7002 with a damage action founded on diversity jurisdiction involving the same parties and facts?How, in the face of the amendment, can EPA and its state counterpart bring their respective claims against a hazardous waste endangerment as joint plantiffs in a single suit in federal court rather than in largely duplicative actions in federal and state courts?

34. For example, NRDC's suit to force EPA to promulgate effluent standards for toxic pollutants required under Clean Water Act § 307, 33 U.S.C. § 1317, ELR STAT. 42129, (NRDC v. Train, 519 F.2d 287, 5 ELR 20046, 20696 (D.C. Cir. 1975)) led to a settlement under which EPA focused on toxic pollutants in developing effluent guidelines for best available technology under Clean Water Act § 301 and to the amendment of Clean Water Act § 301 in 1977 giving legislative approval to this shift of emphasis.

35. "For the entire country, over the two-year period from January, 1979 to January, 1981, the Environmental Law Institute reported only 19 court opinions in cases where plaintiffs alleged citizen suit jurisdiction. This very low total reflects little court involvement where far more was expected." Sandler, Citizen Suit Litigation, ENVIRONMENT, Mar. 1981, at 38.

36. From November 1976 to October 1979, the publication U.S. District Court Current Filings lists 240 enforcement cases filed by EPA under the Clean Air Act and the Clean Water Act and what appear to be 46 citizen suit enforcement cases filed under those Acts. The listing are incomplete but probably reflect the rough difference in filing rates. This was a fairly active enforcement era for EPA. During periods of lesser governmental enforcement, the gap between government and private enforcement suits should lessen and could even reverse.

37. EPA enforcement in the 1980s has declined to half of what it had been in the late 1970s. Miller, The Decline and Fall of EPA Enforcement, ENVTL. ANALYST, Aug. 1983, at 3-7. Only 23 enforcement cases were filed under the Clean Water Act during the first three quarters of fiscal 1983. Telephone conversation with John S. Winder, Jr., Office of Enforcement Counsel, U.S. Environmental Protection Agency, Washington, D.C. (Sept. 12, 1983). At the same time, environmental groups filed 18 citizen suits under the Clean Water Act in New York and New Jersey alone. Telephone conversations with Thomas Wyatt, Natural Resources Defense Council, Inc., New York, New York (Aug. 31, 1983), and Edward Lloyd, Student Public Interest Research Group of New Jersey, Inc., Trenton, New Jersey (Aug. 31, 1983).

38. EPA has historically maintained no record of citizen suit notices that it has received, although it has begun to do so, at least under the Clean Water Act. In the past it received approximately two dozen a year under the Clean Water Act, of which the great majority were directed against EPA's alleged failure to perform mandatory duties. Currently it receives perhaps as many as 75 notices a year under the Clean Water Act, of which the vast majority are directed against alleged violations by polluting facilities. Many notices directed against alleged violations by polluting facilities also allege that EPA violated a mandatory duty to enforce. Telephone conversations with Colburn T. Cherney and Alan W. Eckert, Office of General Counsel, U.S. Environmental Protection Agency, Washington, D.C. (Aug. 31, 1983).

39. In his veiled opposition to Clean Air Act § 304, Senator Hruska questioned whether EPA would be at fault if it did "not enforce the act as comprehensively and as thoroughly as it would like to do," wondering whether Congress might not be equally to blame in not providing EPA with adequate resources. He further lamented the effects on disrupting EPA's rational enforcement prioritization that would inevitably result from threatened citizen enforcement, LEGIS. HIST. CLEAN AIR ACT, supra note 4, at 278, reprinted in NRDC v. Train, 510 F.2d at 726-27, 5 ELR at 20065-66. This is echoed in subsequent administration opposition to the proposed amendment to the RCRA citizen suit provision. See note 31. The criticism is misplaced. There is no evidence that government shifts its enforcement priorities as a result of receiving notices of threatened citizen suits against violating polluters. Indeed, it ordinarily should not. The citizen suit provisions assure government and citizens alike that each can pursue its own priorities without unduly interfering with the other.

40. City of Milwaukee v. Illinois, 451 U.S. 304, 11 ELR 20406 (1981); Middlesex County Sewerage Auth. v. National Sea Clammers Ass'n, 453 U.S. 1, 11 ELR 20684 (1981). See Trauberman, Common Law Nuisance in Hazardous Waste Litigation: Has It Survived Milwaukee II?, 13 ELR 10043 (1983).

41. Clean Air Act § 302(e), 42 U.S.C. § 7602(e), ELR STAT. 42255; Clean Water Act § 502(5), 33 U.S.C. § 1362(5), ELR STAT. 42146; NCA § 3(2), 42 U.S.C. § 4902(2), ELR STAT. 41502; RCRA § 1004(15); 42 U.S.C. § 6903(15), ELR STAT. 41903; SDWA § 1401(12), 42 U.C. § 300f(12), ELR STAT. 41102; SMCRA § 701(19), 30 U.S.C. § 1291(19), ELR STAT. 42426; MPRSA § 3(e), 33 U.S.C. § 1402(e), ELR STAT. 41862; DPA § 3(15), 33 U.S.C. § 1502(15), ELR STAT. 41705; OCSLA § 2(d), 43 U.S.C. § 1331(d), ELR STAT. 42453; ESA § 3(13), 16 U.S.C. § 1532(13), ELR STAT. 41826.

42. U.S. v. Texaco, Inc., 16 ERC 1142 (N.D. Ill. 1983); contra U.S. v. Associated Electric Cooperative, Inc., 503 F. Supp. 92, 11 ELR 20240 (E.D. Mo. 1980).

43. The inclusion of federal agencies in the Clean Air Act and SDWA definition of person was meant to allow suits against polluting federal facilities, see infra, discussion accompanying notes 75 to 82. Congress simply did not consider the possible implications on federal plaintiffs.

44. This may be an unlikely motive, but it is not impossible. "Noting that '[t]here is a first time for everything,'" the United States claimed that it was entitled to attorneys fees in Puerto Rico v. M/V Zoe Coloctroni, 602 F.2d 12, 14 (1st Cir. 1979). The court rejected the request for attorneys fees under Clean Water Act § 505 for an enforcement action brought under Clean Water Act § 311.

45. "The section is not concerned with the right of the United States to enforce the act and does not grant rights to the United States," U.S. v. Atlantic-Richfield Co., 478 F. Supp. 1215, 1220, 10 ELR 20089, 20091 (D. Mont. 1979).

46. 508 F. Supp. 526, 528, 11 ELR 20474, 20475 (E.D. Va. 1980). The inclusion of the rights of state and local authorities to proceed in their own forums against federal agencies in the savings clauses of Clean Air Act § 304 and SDWA § 1449 belie this argument under those statutes.

47. Although there may be some question under state law whether the state, a state agency, or the attorney general on behalf of the state is the proper plaintiff, this is not a federal question under the statutes; the question of whether the United States or a federal agency is a proper plaintiff is a federal question. Indeed, under most of the definitions of "person" all three possibilities for the identification of a state plaintiff would be authorized.

48. Illinois v. Outboard Marine Corp., Inc., 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); Massachusetts v. U.S. Veterans Administration, 541 F.2d 119, 6 ELR 20666 (1st Cir. 1976).

49. In Hancock v. Train, 426 U.S. 167, 196, 6 ELR 20555, 20562 (U.S. 1976), the Court stated: "Although it is argued that § 304 was not intended to permit a state to sue violators under the Act, we agree with the EPA that § 304 is the only means provided by the [Clean Air] Act for the states to remedy noncompliance by federal facilities …." If a state can use the citizen suit provision to sue federal facilities, it can use it to sue other defendants: the state's status as a "person" does not depend on the nature of the defendant.

50. There is a quirk in Clean Water Act § 505 that lends some support to the Court's opinion. Clean Water Act § 309(e), 33 U.S.C. § 1319(e), ELR STAT. 42131, requires that when EPA sues a city, the host state must be joined as a party for the purpose of making the state liable for any judgment against the city if state law prevents the city from raising prevenue to comply with a resulting judgment. If state law did indeed prevent the city from complying with the judgment, it would appear anomalous to allow the state to intervene as a plaintiff. But this is a red herring because it also would be anomalous for the state to wish to be a plaintiff in that situation.

51. See Warren County v. State of North Carolina, 528 F. Supp. 276, 12 ELR 20402 (E.D.N.C. 1981), in which the county sought to enjoin disposal of PCB-contaminated soil within its boundaries using TSCA § 20. The court held that the county, if allowed to sue, would do so in a representative capacity for its citizens, but that only states have parens patriae standing. It also held that TSCA § 20 was for use by private citizens, not government plaintiffs.

52. 405 U.S. 727, 2 ELR 20192 (1972). See CONF. REP. 1236, 92d Cong., 2d Sess., reprinted in 1972 U.S. CODE CONG. & AD. NEWS 3776, 3823. See National Sea Clammers Ass'n v. City of New York, 616 F.2d at 1227, 10 ELR at 20156.

53. 405 U.S. at 739, 2 ELR at 20195 (1972).

54. A motion to intervene pursuant to Clean Water Act § 505 was denied for the Natural Resources Defense Council, which had only a generalized interest in water pollution in Alaska, but was granted for local environmental groups with members who used the waters subject to the pollution at issue. U.S. v. Ketchikan Pulp Co., 74 F.R.D. 104, 7 ELR 20368 (D. Alaska 1977). See also J.E. Brenneman Co. v. Schramm, 473 F. Supp. 1316, 9 ELR 20715 (E.D. Pa. 1979).

55. U.S. v. Mid States Terminals, Inc., 15 ERC 1372 (W.D. Ohio 1980), and Frends of the Earth v. PEPCO, 419 F. Supp. 528, 7 ELR 20090 (D.D.C. 1976).

56. 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); RITE-Research Improves the Environment v. Costle, 650 F.2d 1312, 11 ELR 20825 (5th Cir. 1981); U.S. v. Ketchikan Pulp Co., 74 F.R.D. 104, 7 ELR 20368 (D. Alaska 1977); Pymatuning Water Shed Citizens for a Hygienic 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); Loveladies Property Owners Ass'n v. Raab, 430 F. Supp. 276 (D.N.J. 1975); aff'd, 547 F.2d 1162, cert. denied, 432 U.S. 906; Montgomery Environmental Coalition v. Fri, 366 F. Supp. 261, 4 ELR 20182 (D.D.C. 1973).

57. Ohio ex rel. Brown v. Callaway, 497 F.2d 1235, 4 ELR 20492 (6th Cir. 1974); Deltona Corp. v. Alexander, 504 F. Supp. 1280 (M.D. Fla. 1981), aff'd, 682 F.2d 888, 12 ELR 20963 (11th Cir. 1982).

58. Valley Forge Christian College v. Americans United for Separation of Church and State, __ U.S. __, 102 S. Ct. 752, 758 (1982).

59. The Senate Clean Water Act bill, as with most other citizen suit sections, authorized "any person" to commence action. The House bill restricted citizen suits to area residents with interest that were or might be affected or to groups participating in underlying administrative actions. The resulting use and definition of "citizen" was a compromise in conference committee and the Conference Report specifically referenced the Court's holding in Sierra Club v. Morton, 405 U.S. 727, 2 ELR 20192 (1972), CONF. REP. NO. 1236, reprinted in 92 U.S. CODE CONG. & AD. NEWS 3822-23.

60. 453 U.S. 1, 11 ELR 20684 (1981). By using the injury language in § 505(g), Congress intended to "allow suits by all persons possessing standing under this Court's decision in Sierra Club." Id. at 16, at 20687.

61. Simon v. Eastern Welfare Rights Organization, 426 U.S. 26 (1976); Warth v. Seldin, 422 U.S. 490 (1975); Linda R.S. v. Richard D., 410 U.S. 614 (1973).

62. E.g., if standing under Clean Water Act § 505 and SMCRA § 520 is frozen forever to the Sierra Club v. Morton test, standing should be so frozen under the other federal environmental statutes. After all, they are mirror images of each other. This, of course, ignores the fact that Clean Water Act § 505 and SMCRA § 520 are different from the rest in that they purposefully enshrine the Sierra Club v. Morton test for standing.

63. Sierra Club v. Morton, 405 U.S. 727, 2 ELR 20192 (1972); Data Processing Service Organizations v. Camp, 397 U.S. 150 (1970); Barlow v. Collins, 397 U.S. 159 (1970); WRIGHT, MILLER, COOPER, FED. PRAC. & PROC. § 3531 (1975).

64. Person v. Easy Living, Inc., 534 F. Supp. 884 (S.D. Ohio 1981), decided under the Truth In Lending Act, 12 U.S.C. § 1640.

65. "Specific allegations of use of a resource are not necessary for plaintiff living within the vicinity of the natural object they seek to protect," Michigan v. City of Allen Park, 501 F. Supp. at 1013. "General interest in the aesthetic and environmental well-being of a river running past one's community area is obviously a higher plane than the interest of a national group comprised of non-resident citizens or users might properly claim." Montgomery Environmental Coalition v. Fri, 366 F. Supp. at 264, 4 ELR at 20183.

66. See Associated Industries v. Ickes, 134 F.2d 694 (2d Cir.), vacated and remanded on other grounds, 320 U.S. 707 (1943).

67. U.S. v. Texaco, Inc., 16 ERC at 1144.

68. Associated Industries v. Ickes, 134 F.2d at 704.

69. D. Riesel, Citizen Suits, and the Shifting Around of Attorney's Fees in Environmental Litigation 9 (unpublished paper).

70. Sierra Club v. Morton, 405 U.S. at 732-33, 2 ELR at 20193-94.

71. In Monarch Chemical Works, Inc. v. Exon, 466 F. Supp. 639, 9 ELR 20478 (D. Neb.), aff'd sub nom. Monarch Chemical Works, Inc. v. Thone, 604 F.2d 1083, 9 ELR 20697 (8th Cir. 1979), an oil refinery that would be directly affected by noise and air pollution from the construction of a correctional facility was held to have standing to challenge it on NEPA grounds despite the anomalous fact that the refinery produced far more noise and air pollution.

72. In holding that a hospital had no standing under the Noise Control Act to block construction of a competing hospital, the Fourth Circuit commented: "If it has in fact suffered an injury, appellant's economic well-being vis-a-vis its competitors is certainly not 'arguably within the zone of interest to be protected' by the federal environmental laws," Clinton Community Hospital Corp. v. Southern Maryland Medical Center, 510 F.2d 1037, 5 ELR 20180 (4th Cir.), cert. denied, 422 U.S. 1048 (1975). See also Presidio Bridge Co. v. Secretary of State, 486 F. Supp. 288, 10 ELR 20688 (W.D. Tenn. 1978), aff'd, 612 F.2d 578 (5th Cir. 1980), cert. denied, 449 U.S. 837 (1980); Hiatt Grain and Feed v. Bergland, 446 F. Supp. 457 (D. Kan. 1978), aff'd, 602 F.2d 929 (10th Cir. 1979), cert. denied, 444 U.S. 1073 (1980); Benton County Savings & Loan v. Federal Home Loan Bank Bd., 450 F. Supp. 884 (W.D. Ark. 1978); and Cummington Preservation Comm. v. FAA, 8 ERC 1121 (D. Mass.), aff'd, 524 F.2d 241, 5 ELR 20696 (1st Cir. 1975). In Plaskolite v. Baxt Industries, 486 F. Supp. 213 (N.D. Ga. 1980), without explicitly ruling on "standing" or "zone of interest," the court dismissed a citizen suit by a corporation because competitive interests were not within the interest protected by the Consumer Product Safety Act. But see Griswold Insulation Co. v. Lula Cotton Processing Co., 540 F. Supp. 1334 (M.D. Tenn. 1982).

73. Not only is this a repeated theme in legislative history, it is manifest in Clean Air Act § 120, 42 U.S.C. § 7420, ELR STAT. 42226, a mechanism designed to remove the economic benefit of noncompliance, i.e., produce economic parity with complying competitors. This was seen as unneeded under the Clean Water Act because EPA's penalty policy accomplished the same goal, ENVIRONMENTAL POLICY DIVISION, CONGESSIONAL RESEARCH SERVICE, A LEGISLATIVE HISTORY OF THE CLEAN WATER ACT, at 478-89 [hereinafter cited as LEGIS. HIST. CLEAN WATER ACT]. EPA's policy explicitly recognized the competitive factor. "Civil penalties in these amounts will result in greater equity … by insuring that sources which comply with the Act's requirements in a timely manner do not suffer an economic disadvantage in comparison with those that do not." Letter from Assistant Administrator for Enforcement of EPA to Sen. Muskie, dated Dec. 14, 1977. LEGIS. HIST. CLEAN WATER ACT, at 479.

74. Michigan v. City of Allen Park, 501 F. Supp. 1007, 11 ELR 21023 (E.D. Mich. 1980).

75. See Kaiser Cement Corp. v. San Diego Air Pollution Control Board, 12 ELR 20783 (S.D. Cal. 1982), in which the plaintiff attempted to block competition by enforcing against irregularities in the Clean Air Act new source permitting process. In Consolidated Edison Co. v. Realty Investments Associates, 524 F. Supp. 150, 12 ELR 20208 (S.D.N.Y. 1981), a utility tried the same tactic to prevent erosion of its customer base by thwarting development of a co-generation facility. In Plaskolite v. Baxt Industries, 486 F. Supp. 213 (N.D. Ga. 1980), a company attempted to block sales of a competitor's glazing material by a suit under the Consumer Product Safety Act's citizen suit provision, 15 U.S.C. § 2073, alleging that the product material violated the safety standards.

76. These included: (1) an extensive amendment to Clean Air Act § 118, 42 U.S.C. § 7418, ELR STAT. 42225, requiring federal facilities to comply with procedural as well as substantive air pollution requirements of state and local governments; (2) an amendment to Clean Air Act § 302(e) to include federal entities within the general definition of "person;" and (3) an amendment to § 304(e) to authorize state or local action in state and local administrative and judicial forums against federal installations violating state and local air pollution requirements.

77. 426 U.S. 167, 6 ELR 20555 (1976).

78. "This provision is intended fundamentally to overrule the Supreme Court's ruling in Hancock v. Train," H.P. REP. NO. 294, 95th Cong., 1st Sess. 12, reprinted in 1977 U.S. CODE CONG. & AD. NEWS 1077, 1089-90.

79. The court held that under the earlier Clean Air Act § 118 federal facilities were required to comply with state and local substantive air pollution requirements, but not their procedural requirements.

80. Hancock v. Train, 426 U.S. at 196, 6 ELR at 20563.

81. See EPA v. California, 426 U.S. 200, 6 ELR 20563 (1976).

82. Section 304 would provide that a citizen enforcement action might be brought against an individual or a government agency … Since Federal agencies have been notoriously laggard in abating pollution and in requesting appropriations to develop control measures, it is important to provide that citizens can seek, through the courts, to expedite government performance specifically directed under section 118.

S. REP. NO. 1196, 91st Cong., 2d Sess. 36-39, reprinted in NRDC v. Train, 510 F.2d at 724, 5 ELR at 20064.Although superfluous, Congress reiterated this in 1977, expressing its "unambiguous intent that the enforcement authorities … may be used to insure compliance and/or to impose sanctions against any federal violation of the Act." H.R. REP. NO. 294, 95th Cong., 1st Sess. 200, reprinted in 1977 U.S. CODE CONG. & AD. NEWS 1077, 1279. Although the quoted language refers specifically to an amendment of the definition of "person" in Clean Air Act § 113, the same rationale applies to the same amendment of the same term in Clean Air Act § 304.

83. See, e.g., Weinberger v. Romero-Barcelo, 456 U.S. 305, 12 ELR 20538 (1982); Massachusetts v. U.S. Veterans Administration, 541 F.2d 119, 6 ELR 20666 (1st Cir. 1976); South Carolina Wildlife Federation v. Alexander, 457 F. Supp. 118, 8 ELR 20757 (D.S.C. 1978); California v. Department of the Navy, 9 ERC 2077 (N.D. Cal. 1977); Puget Sound Air Pollution Authority v. U.S. Veterans Administration Hospital, 4 ELR 20010 (W.D. Wash. 1973).

84. For cases where the issues are raised in citizen suits, see O'Leary v. Moyer's Landfill, Inc., 523 F. Supp. 659, 12 ELR 20239 (E.D. Pa. 1982); Illinois v. Celotex Corp., 516 F. Supp. 716, 11 ELR 20962 (C.D. Ill. 1981); Illinois v. Commonwealth Edison Co., 490 F. Supp. 1145, 10 ELR 20278 (N.D. Ill. 1980).

85. U.S. v. Joseph G. Moretti, Inc., 526 F.2d 1306, 6 ELR 20221 (5th Cir. 1976); U.S. v. Sexton Cove Estates, Inc., 526 F.2d 1293, 6 ELR 20216 (5th Cir. 1975).

86. O'Leary v. Moyer's Landfill, Inc., 523 F. Supp. 659, 12 ELR 20239 (E.D. Pa. 1982).

87. With a choice between civil and criminal prosecution of a corporate defendant, a prosecutor will normally choose civil prosecution with its lesser burden of proof unless criminal charges can be brought against individuals as well, usually corporate officers.

88. See prosecutions under Clean Water Act § 309 and related statutes. U.S. v. Distler, 671 F.2d 954, 11 ELR 20340 (6th Cir. 1981) (principal corporate officer); U.S. v. Frezzo Bros., 602 F.2d 1123, 9 ELR 20556 (3d Cir. 1979), cert. denied, 444 U.S. 1074 (1980) (corporation and two principal officers); U.S. v. Hamel, 551 F.2d 107, 7 ELR 20253 (6th Cir. 1977) (individual); U.S. v. Oxford Royal Mushroom Products, 487 F. Supp. 852, 10 ELR 20549 (E.D. Pa. 1980) (corporation and two officers); U.S. v. Olin Corp., 465 F. Supp. 1120 (W.D.N.Y. 1979) (corporation and three employees); U.S. v. Ouelette, 11 ERC 1350 (E.D. Ark. 1977) (individual).

89. See, e.g., Apex Oil Co. v. U.S., 530 F.2d 1291, 6 ELR 20628 (8th Cir. 1976), cert. denied, 429 U.S. 827 (1976), in which the conviction of a corporation for failure to immediately report an oil spill under Clean Water Act § 311 was upheld although corporate officers were not aware of the spill.

90. U.S. v. Ira S. Bushey & Sons, 363 F. Supp. 110, 119, 4 ELR 20071, 20074 (D. Vt.), aff'd, 487 F.2d 1393 (2d Cir. 1973), cert, denied, 417 U.S. 976. (1974).

91. U.S. v. Ira S. Bushey & Sons, 363 F. Supp. 110, 4 ELR 20071 (D. Vt. 1973).

92. See Blenda v. Hickman-Williams Co., 44 Mich. App. 29 (Mich. Ct. App. Div. 1 1972), a private nuisance suit in which it was held that a corporation farming out work to a second corporation, knowing the work would cause a nuisance, was liable for the nuisance.The most celebrated instance of this in the environmental laws is the kepone litigation in which Allied Chemical Co. lost millions, primarily as a result of its non-owned captive, Life Sciences, Inc.

93. U.S. v. Ira S. Bushey & Sons, 363 F. Supp. 110, 4 ELR 20071 (D. Vt.), aff'd, 487 F.2d 1393 (2d Cir. 1973), cert. denied, 417 U.S. 976 (1974).

94. See, e.g., Clean Water Act § 301, 33 U.S.C. § 1311, ELR STAT. 42123.

95. See supra notes 8-11 and accompanying text.

96. Illinois v. Outboard Marine Corp., 680 F.2d at 480-81, 12 ELR at 20802.

97. Mootness, like standing, is a mix of deference to the constitutional case-in-controversy requirement and reluctance to clutter the courts' dockets with cases of little real impact. See generally WRIGHT, MILLER, COOPER, FED. PRAC. & PROC. § 3533. In U.S. v. W.T. Grant Co., 345 U.S. 629 (1953), the U.S. sought injunctive relief against a defendant alleged to hold directorships in competing companies. When the defendant resigned the offending directorships and sought to dismiss the case as moot, the Court held that he had a heavy burden to demonstrate that there was no likelihood the offense would be repeated. But it also held that the trial court had substantial discretion in disposing of such cases. The concept is well developed when the government is defendant, under a doctrine recognizing that agency actions "capable of repetition, yet evading review," are not mooted by their expiration, Southern Pacific Terminal, Inc. v. ICC, 219 U.S. 498, 515 (1911). See National Wildlife Federation v. Costle, 629 F.2d 118, 123-24, 10 ELR 20742, 20748 (D.C. Cir. 1980); Montgomery Environmental Coalition v. Costle, 646 F.2d at 578-85, 11 ELR at 20215; Hooker Chemical Co. v. EPA, 642 F.2d 48, 11 ELR 20084 (3d Cir. 1981); and Dow Chemical Co. v. EPA, 605 F.2d 673, 9 ELR 20640 (3d Cir. 1979).

98. City of Philadelphia v. Stepan Chemical Co., 544 F. Supp. 1135, 12 ELR 20915 (E.D. Pa. 1982). See also Evansville v. Kentucky Liquid Recycling, Inc., 604 F.2d 1008, 9 ELR 20679 (7th Cir. 1979).

99. 33 U.S.C. § 1319(d), ELR STAT. 42130 (emphasis added).

100. Of course citizen plaintiffs could use the threat of penalties as a bargaining lever to induce favorable settlement of private damage claims asserted under pendent jurisdiction.

101. The Court in Hancock v. Train, 426 U.S. 167, 6 ELR 20555 (1976), went through a 32 page analysis to determine that a state requirement to obtain an air pollution permit was not among the "requirements" of the Clean Air Act for the purposes of Clean Air Act § 118. The wording and the analysis are similar under Clean Air Act § 304. More questions of this nature have been raised under § 304 than under the citizen suit provision of any other environmental statute, probably bacause of the intellectual and verbal excesses and complexities of the Clean Air Act and of the amended § 304. Thus it has been held that § 304 does not authorize suit to enforce requirements that are not in a state implementation plan (SIP), Citizens Association of Georgetown v. Washington, 535 F.2d 165, 6 ELR 20524 (D.C. Cir. 1976); Friends of the Earth v. Carey, 535 F.2d 165, 6 ELR 20488 (2d Cir. 1976), cert. denied, 434 U.S. 902 (1977); that are in a SIP but are pursuant to a variance granted by the state and approved by EPA, Delaware Citizens for Clean Air, Inc. v. Stauffer Chemical Co., 367 F. Supp. 1040, 4 ELR 20129 (D. Del. 1973), aff'd, 510 F.2d 969 (3d Cir. 1975); or are invalid as a matter of state law, People v. Celotex Corp., 516 F. Supp. 716, 11 ELR 20962 (C.D. Ill. 1981), Sierra Club v. Indiana-Kentucky Electric Corp., 11 ELR 21100 (S.D. Ind.1981), aff'd, 13 ELR 20817 (7th Cir. Aug. 30, 1983), Illinois v. Commonwealth Edison Co., 490 F. Supp. 1145, 10 ELR 20278 (N.D. Ill. 1980); that states consider EPA-promulgated new source performance standards when performing review of the permissibility of new sources, Sierra Club v. Drain, 5 ELR 20435 (D. Neb. 1975); or that emissions comply with air quality standards unless a specific implementing regulation is violated, Thompson v. Chicago, 5 ELR 20283 (N.D. Ill. 1975).

102. Montgomery Environmental Coalition v. Costle, 646 F.2d 568, 11 ELR 20211 (D.C. Cir. 1980); NRDC v. EPA, 539 F.2d 1068, 6 ELR 20777 (5th Cir. 1976); Oljato Chapter of the Navajo Tribe v. Train, 515 F.2d 654, 5 ELR 20481 (D.C. Cir. 1975); Sierra Club v. Train, 7 ELR 20120 (D.D.C. 1976).

103. RCRA § 7002(a)(1) covers violation of "any permit, standard, regulation, condition or order" pursuant to the Act. SDWA § 1449(a)(1) covers a violation of "any requirement prescribed by or under" the Act. MPRSA § 105(g)(1) covers violations of "any prohibition, limitation, criterior, or permit established or issued by or under" the Act. SMCRA § 520(a)(1) covers the violation of "the provisions of this chapter or of any rule, regulation, order or permit issued pursuant thereto." DPA § 16(a)(1) authorizes suit against violations of "any provision of this Act or any condition of a license issued pursuant" to it. OCSLA § 23(a)(1) provides for suit against violations of "any provision of this subchapter or any regulation promulgated under this subchapter, or of the terms of any permit or lease" issued pursuant to it.

104. Under RCRA § 7008, 42 U.S.C. § 6928, ELR STAT. 41923, EPA may only enforce against violations of Subtitle III, but under RCRA § 7002 citizens may enforce against violations of the Act as a whole. See O'Leary v. Moyer's Landfill, Inc., 523 F. Supp. 659, 12 ELR 20239 (E.D. Pa. 1981).

105. See SDWA §§ 1414(a) & 1423(a), 42 U.S.C. §§ 300g-3(a) & 300h-2(a), ELR STAT. 41104 & 41109.

106. To take federal enforcement action against a public water supply system in violation of drinking water standards in a state with primary enforcement responsibility, EPA must go through the following steps:

1. Notify the state;

2. Provide technical assistance to the state and the violator; and

3. If the violation continues beyond thirty days after the notice, give public notice and request the state for a report on what is being done to achieve compliance.

4. EPA may commence judicial action only if

a. the violation continues beyond sixty days after the original notice and

b. the state fails to submit a report or

c. EPA finds the steps being taken by the state are so inadequate as to constitute an abuse of discretion.

See SDWA § 1414(a)(1), 42 U.S.C. § 300g-3(a)(1), ELR STAT. 41104. Not only is the procedure unduly cumbersome, it requires EPA to find that a state has abused its discretion before EPA can act. If state officials are sometimes paranoid in their feeling that federal enforcement implies they are not doing their job adequately, the explicit and extreme finding required for federal action here is designed to push that paranoia to new heights. This is a step EPA managers are extremely reluctant to take.

107. 42 U.S.C. § 4911, ELR STAT. 41505. Note that § 12(a) refers to a definition of "noise control requirement" in § 12(e). The definition is in § 12(f).

108. Compare TSCA § 20 with TSCA § 15, 15 U.S.C. § 2614, ELR STAT. 41346.

109. The term is defined in § 505(f) and partially defined in § 502(h), 33 U.S.C. § 1362(11), ELR STAT. 42146.

110. 33 U.S.C. §§ 1342 & 1344, ELR STAT. 42141 & 42142.

111. If they allege a permit violation, they do not have to allege a violation of any other standard, regulation, or limitation, U.S. v. Cutter Laboratories, Inc., 413 F. Supp. 1295, 6 ELR 20742 (E.D. Tenn. 1976). But see U.S. v. GAF Corp., 389 F. Supp. 1379, 5 ELR 20581 (S.D. Tex. 1975), an opinion whose reasoning is fundamentally flawed on this point.

112. 33 U.S.C. § 1321, ELR STAT. 42132. Oil and hazardous material spills are in violation of Clean Water Act § 311 and are subject to an administratively assessed penalty under that section. Of course, if the spills enter surface waters without a permit or in violation of a permit, they violate Clean Water Act § 301 and may be enforced against by EPA under Clean Water Act § 309 or citizens under Clean Water Act § 505. To prevent redundant enforcement Clean Water Act § 311(b)(6)(E) prohibits the assessment of a civil penalty under both §§ 309 and 311 for the same discharge. Since penalties assessable under Clean Water Act § 505 are § 309(d) penalties, the prohibition also applies to redundancies between penalties under §§ 311 and 505. Query whether institution and diligent prosecution of Clean Water Act § 311 penalty assessment proceeding well bar filing of a citizen suit under § 505(b)(1)(B)? A subsequent installment of this article will discuss reasons why it should not.

113. 33 U.S.C. § 1322, ELR STAT. 42136.

114. 33 U.S.C. § 1345, ELR STAT. 42145.

115. The term is defined in both § 304(f) and § 302(k), 42 U.S.C. § 7602(k), ELR STAT. 42255. In addition, certain violations included within those definitions are made specifically enforceable under § 304(a)(3).

116. Enforcement discretionary: City of Seabrook v. Costle, 659 F.2d 1371, 11 ELR 21068 (5th Cir. 1981); Sierra Club v. Train, 557 F.2d 485, 7 ELR 20670 (5th Cir. 1977); Committee for the Consideration of the Jones Falls Sewage System v. Train, 539 F.2d 1006, 6 ELR 20703 (4th Cir. 1976); Goodyear v. Lecraw, 15 ERC 1189 (S.D. Ga. 1980). Enforcement mandatory: Northwestern Ohio Lung Ass'n v. Costle, 14 ERC 1364 (N.D. Ohio 1979); South Carolina Wildlife Federation v. Alexander, 457 F. Supp. 118, 8 ELR 20757 (D.S.C. 1978); Rivers Unlimited v. Costle, 11 ERC 1681 (S.D. Ohio 1978); People ex rel. Scott v. Hoffman, 425 F. Supp. 71, 7 ELR 20287 (S.D. Ill. 1977); Wisconsin's Environmental Decade, Inc. v. Wisconsin Power & Light Co., 395 F. Supp. 313 (W.D. Wis. 1975).

117. Hancock v. Train, 426 U.S. 167, 6 ELR 20555 (1976), and EPA v. California, 426 U.S. 200, 6 ELR 20563 (1976). See also Warren County v. North Carolina, 528 F. Supp. 276, 12 ELR 20402 (E.D.N.C. 1981).

118. Clean Air Act § 118, 42 U.S.C. § 7418, ELR STAT. 42225, and SDWA § 1447, 42 U.S.C. § 300j-6, ELR STAT. 41115.

119. E.g., Clean Water Act § 313, 33 U.S.C. § 1323, ELR STAT. 42138.

120. Thus, if damage could be shown, other remedies would remain available. Compliance with standards under this Act would not be a defense to a common law action for pollution damages … The section does not, however, affect in any way whatever remedies such citizens or class of citizens might have under statutory or other law, nor does it provide for damages or unisance actions.

S. REP. NO. 1196, 91st Cong., 2d Sess. 36-39, 464-65, reprinted in NRDC v. Train, 510 F.2d at 725, 5 ELR at 20065.

121. SMCRA § 520(f) provides an action for damages to persons or property arising from violations of SMCRA. Venue is in the judicial district where the violating mine is located. Attorney and expert witness fees may be awarded. The provision does not affect the rights or limitations established under the state workmen's compensation laws.

122. E.g., City of Evansville v. Kentucky Liquid Recycling, Inc., 604 F.2d 1008, 9 ELR 20679 (7th Cir. 1979); California Tahoe Regional Planning Agency v. Jennings, 594 F.2d 181, 9 ELR 20131 (9th Cir. 1979), cert. denied, 444 U.S. 864; City of Philadelphia v. Stepan Chemical Co., 544 F. Supp. 1135, 12 ELR 20915 (E.D. Pa. 1982); 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).

123. 451 U.S. 304, 11 ELR 20406 (1981).

124. 453 U.S. 1, 11 ELR 20684 (1981).

125. See Trauberman, supra note 40, at 10045.

126. 406 U.S. 91, 2 ELR 20201 (1972).

127. 406 U.S. at 107, 2 ELR at 20205.

128. California Tahoe Regional Planning Agency v. Jennings, 594 F.2d at 193, 9 ELR at 20135; U.S. ex rel. Scott v. U.S. Steel Corp., 356 F. Supp. 556, 559, 3 ELR 20204, 20205 (N.D. Ill. 1973); U.S. v. Ira S. Bushey & Sons, 346 F. Supp. 145, 149, 2 ELR 20557, 20559 (D. Vt. 1972).

129. It is a sad commentary on the pace of our judicial system that the same issue reached the Court a second time in the same case, ten years later.

130. 451 U.S. at 328-29, 11 ELR at 20412.

131. 42 U.S.C. §§ 9601-9657, ELR STAT. 41941.

132. City of Philadelphia v. Stepan Chemical Co., 544 F. Supp. 1135, 12 ELR 20915 (E.D. Pa. 1982); U.S. v. Price, 523 F. Supp. 1055, 11 ELR 21047 (D.N.J. 1981), aff'd, 688 F.2d 204, 12 ELR 21020 (3d Cir. 1982).

133. New England Legal Foundation v. Costle, 666 F.2d 30, 11 ELR 20888 (2d Cir. 1981). See also Connecticut v. Long Island Lighting Co., 535 F. Supp. 546, 12 ELR 20668 (E.D.N.Y. 1982).

134. City of Evansville v. Kentucky Liquid Recycling, Inc., 604 F.2d 1008, 9 ELR 20679 (7th Cir. 1979); Chesapeake Bay Village, Inc. v. Costle, 502 F. Supp. 213, 11 ELR 20355 (D. Md. 1980); Chesapeake Bay Foundation, Inc. v. Virginia State Water Control Bd., 495 F. Supp. 1229, 11 ELR 20058 (E.D. Va. 1980); Citizens' Committee for Environmental Protection v. U.S. Coast Guard, 456 F. Supp. 101, 8 ELR 20908 (D.N.J. 1978); and Parsell v. Shell Oil Co., 7 ELR 20149 (D. Conn. 1976). The Supreme Court held that there was no private right of action under § 10 of the Rivers and Harbors Act of 1899 in California v. Sierra Club, 451 U.S. 287, 11 ELR 20357 (1981).

135. 422 U.S. 66 (1975).

136. See supra note 119.

137. 453 U.S. at 15-16, 11 ELR at 20686-87.

138. Supporting jurisdiction under § 1331: NRDC v. Train, 510 F.2d 692, 5 ELR 20046, 200696 (D.C. Cir. 1975); NRDC v. Callaway, 524 F.2d 79, 5 ELR 20640 (2d Cir. 1975); Conservation Soc'y of S. Vermont v. Secretary of Transportation, 508 F.2d 927, 5 ELR 20068 (2d Cir. 1974), vacated on other grounds, 423 U.S. 809,6 ELR 20068 (1975). Denying jurisdiction under § 1331: Massachusetts v. U.S. Veterans Administration, 541 F.2d 119, 6 ELR 20666 (1st Cir. 1976). See also Goodyear v. Lecraw, 15 ERC 1189 (S.D. Ga. 1980).

139. NRDC v. Train, 510 F.2d at 702, 5 ELR at 20050.

140. There is an apparent anomaly between the Court's opinion and the decision it overturns. The latter found jurisdiction under 28 U.S.C. § 1331, not mentioning 42 U.S.C. § 1983, while the Court held there was no jurisdiction under 42 U.S.C. § 1983, not mentioning 28 U.S.C. § 1331. See also Chesapeake Bay Foundation, Inc. v. Virginia State Water Control Bd., 495 F. Supp. 1229, 11 ELR 20058 (E.D. Va. 1980).

141. Of course the argument that the enactment and implemention of a comprehensive and pervasive water pollution regulatory scheme under the Clean Water Act foreclosed federal common law with regard to water pollution, could be used at the state level. Most states have environmental statutes that parallel and are as, if not more, pervasive than the federal statute. But the argument has much less force at the state level.As expounded in City of Milwaukee v. Illinois and Michigan, 451 U.S. 304, 11 ELR 20406 (1981), common law is a creature of state, not federal, legal systems. It is allowed to develop in the federal system only under exceptional circumstances, such as the absence of a pervasive federal regulatory scheme coupled with the inability of state law to address interstate pollution. Once those circumstances no longer exist, the need and justification for federal common law no longer exist. In state legal systems, common law has long coexisted with complex statutory and regulatory structures, with common law providing individual redress and regulatory structures providing for the public welfare. In fact, full compliance with the state pollution requirements is no defense to a common law suit for damages from the regulated pollution.Borland v. Sanders Lead Co., 12 ERC 2017 (Ala. 1979).

13 ELR 10309 | Environmental Law Reporter | copyright © 1983 | All rights reserved