An Overview of Citizen Suits Affectingthe Mineral and Energy Industries

Timothy W. Gresham1

Eric R. Thiessen2Penn, Stuart & Eskridge

Abingdon, Virginia

Synopsis§ 7.01. Introduction ........................................................................ 222§ 7.02. The Scheme of Citizen Suit Statutes ................................. 224§ 7.03. Comparison with the Administrative Procedures Act .... 226§ 7.04. Jurisdictional Issues ........................................................... 227

[1] — Constitutional Requirements ..................................... 227[a] — Standing .......................................................... 228

[i] — Injury in Fact ........................................ 230[ii] — Causation ............................................. 233[iii] — Redressability ..................................... 234

[b] — Prudential Considerations............................... 237[i] — Generally Shared Grievances ............... 237[ii] — Third Party Rights/Associational

Standing ............................................... 238[iii] — “Zone of Interests” ............................. 239

[c] — Mootness ......................................................... 240[d] — Ripeness .......................................................... 242

[2] — Federal or State Jurisdiction ...................................... 242[a] — Federal Jurisdiction over State Regulations ... 242[b] — Abstention ....................................................... 243

[3] — Venue .......................................................................... 244[4] — Eleventh Amendment Immunity ................................ 245

§ 7.05. Elements of a Citizen Suit Action ..................................... 246[1] — Parties......................................................................... 246

[a] — Plaintiffs .......................................................... 246[b] — Operator as Defendant .................................... 247[c] — Regulator as Defendant ................................... 247

[2] — Violation of Law ........................................................ 248

1 Shareholder, Penn, Stuart & Eskridge; B.A., Morehead State University; J.D.,University of Tennessee.2 Associate, Penn, Stuart & Eskridge; B.A., Washington and Lee University; J.D. withHonors, Drake University Law School.

Cite as 20 Energy & Min. L. Inst. ch. 7 (2000)

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§ 7.06. Additional Limitations ....................................................... 250[1] — Notice and Delay Requirements ................................ 250[2] — Preemption ................................................................. 252

[a] — Government Preemption ................................. 253[b] — Administrative Proceedings ............................ 253[c] — Timing ............................................................. 255[d] — Administrative Exhaustion ............................. 255

§ 7.07. Intervention ......................................................................... 256[1] — Statutory Citizen Intervention ................................... 256[2] — Government Intervention ........................................... 257[3] — Other Parties .............................................................. 258

§ 7.08. Remedies .............................................................................. 258[1] — Injunctions ................................................................. 258

[a] — Preliminary Injunction .................................... 258[b] — Permanent Injunction...................................... 260

[2] — Civil Penalties ............................................................ 260[3] — Damages..................................................................... 262

[a] –– SMCRA........................................................... 262[b] — Response Costs ............................................... 263

[4] — Attorney’s Fees .......................................................... 264[5] — Alternatives to Citizen Suits ...................................... 265

§ 7.09. Additional Defenses ............................................................ 265[1] — Statute of Limitations ................................................ 266[2] — Issue and Claim Preclusion ....................................... 267

§ 7.10. Conclusion ........................................................................... 268

§ 7.01. Introduction.Since the late 1960s, Congress has enacted numerous statutes

mandating strenuous and pervasive environmental obligations respectingall aspects of business. The mineral and energy industries have not beenexcepted from such regulation. Today they are among the most regulatedsectors of the United States economy. For the mineral and energy industries,environmental laws and regulations require the permitting of operationsand facilities; require the control, monitoring and reporting of air and waterdischarges; and impose strict limitations on the generation, use and disposalof solid wastes. Failure to comply with these requirements can result inthe enforcing federal or state agency bringing actions for injunctive reliefand for administrative, civil and criminal remedies and penalties.

Concerned that federal agencies were insufficiently motivated toenforce existing environmental laws, in 1970 Congress enacted as part of

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the Clean Air Act (CAA),3 a provision allowing “any person” to sue anoperator alleged to be in violation of CAA’s emission standards.4 Theprovision also permitted suit against the Administrator of the EnvironmentalProtection Agency (EPA) for failure to carry out any duties under the CAA,which are not discretionary.5 Congress intended this “citizen suit” provisionto motivate the governmental agencies to bring enforcement and abatementproceedings.6 Congress was apparently pleased with the citizen suitprovision, as it included a virtually identical provision in the next majorenvironmental statute it enacted,7 the Federal Water Pollution Control Act.8

Since then Congress has included a citizen suit provision in virtually everyfederal environmental protection statute.9

This chapter provides a general overview of citizen suits. Not everyenvironmental statute discussed in this chapter directly regulates the mineraland energy industries, but courts have interpreted the citizen suit provisionsof these statutes similarly. Therefore, judicial interpretation of a provisionin one statute is likely to apply to another. The chapter is intended to serveas a sort of primer for the mineral and energy or environmental lawyer’sdefense of such a case, should one be threatened or filed. The chapter firstexplains the basic scheme of citizen suit statutes, comparing and contrastingthem to the provisions of the Administrative Procedures Act (APA).10 Itnext identifies and explains the requirements for bringing and maintainingcitizen suits in federal court, as constitutional and prudential issues have

3 42 U.S.C. §§ 7401-7671q.4 42 U.S.C. §7604(a)(1).5 42 U.S.C. § 7604(a)(2).6 See S. Rep. No. 91-116, at 35-36.7 Friends of the Earth v. Carey, 535 F.2d 165, 172 (2d Cir. 1976).8 33 U.S.C. §§ 1251-1356. Today this Act is more commonly referred to as the CleanWater Act (CWA).9 See, e.g., Toxic Substances Control Act (TSCA), 15 U.S.C. § 2619; EndangeredSpecies Act (ESA), 16 U.S.C. § 1540(g); Surface Mining Control and Reclamation Act(SMCRA), 30 U.S.C. § 1270; Resource Conservation and Recovery Act (RCRA), 42U.S.C. § 6972; Comprehensive Environmental Response, Compensation, and LiabilityAct (CERCLA), 42 U.S.C. § 9659; Emergency Planning and Community Right to KnowAct (EPCRA), 42 U.S.C. § 11046.10 See discussion infra §§ 7.02-7.03.

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been at the forefront of many citizen-initiated environmental enforcementsuits.11 As citizen suits have resulted in several decisions dealingspecifically with the issue of constitutional standing, the chapter discussesit in depth.12

Many articles already have been written concerning standing issues ina general context. This chapter does not provide a detailed annotation andanalysis of each Supreme Court decision on standing, but rather attemptsto distill the important principles this line of authority has defined, anddiscusses how the practitioner may apply these principles as potentialdefenses in citizen suit actions. This area of the law remains somewhat influx, and the Supreme Court and circuit courts of appeal will continue tofurther refine the parameters of citizens’ standing to bring environmentalactions. Finally, the chapter examines the statutory prerequisites to filingcitizen suits and explains other procedural defenses that apply to suchsuits.13

§ 7.02. The Scheme of Citizen Suit Statutes.Congress enacted citizen suit provisions to encourage public

participation and to provide the public with a role in the enforcement ofenvironmental protection laws.14 However, they are designed tosupplement, not supplant governmental enforcement.15

While citizen suit provisions vary in language, most have an identicalstructure and provide for an analogous procedure.16 They typically provide

11 See discussion infra § 7.04.12 See discussion infra § 7.04[1][a], [b].13 The authors have limited discussion to federal citizen suit provisions and casesinterpreting them. Many states have enacted equivalent or analogous provisions. Forexample, SMCRA requires primacy states to have a citizen suit provision “in accordancewith” SMCRA. 30 U.S.C. § 1253(a)(1); 44 Fed. Reg. 14965 (March 13, 1979); 47 Fed.Reg. 17269 (April 21, 1982); In re Permanent Surface Mining Reg. Litig., 14 Env’t Rep.Cas. (BNA) 1083, 1088 (D.D.C. 1980). While some states may interpret their statutessimilarly, one should consult the pertinent state’s constitution, statutes and cases.14 Friends of the Earth v. Carey, 535 F.2d 165, 172 (2d Cir. 1976).15 Gwaltney of Smithfield v. Chesapeake Bay Found., 484 U.S. 49, 60 (1987).16 The citizen suit provision of the CWA is typical:

any citizen may commence a civil action on his own behalf (1) against anyperson (including (i) the United States, and (ii) any other governmental

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for two distinct actions. First, the statutes authorize a suit against any personwho is allegedly violating the requirements of the statute or its regulations,to compel that person to comply with the statute or regulations. These“compel compliance” actions are limited to operators of facilities or tooperations subject to the statute, and they may not be brought against thefederal or state regulatory agency.17

Second, the statutes authorize actions against the government official,usually the Administrator of the EPA,18 where the plaintiff alleges that theagency has failed to carry out a non-discretionary duty. These are referredto as “mandatory duty” suits. Some statutes authorize mandatory duty suitsagainst state governmental entities.19

The differences in language of the provisions occur because of thedifferences in the substantive purposes of the statutes. For example, theCAA citizen suit provision permits suits alleging violations of emissionstandards or limitations or orders issued by the EPA or a state regardingthe standards or limitations.20 The SMCRA provision permits suits againstgovernment operators allegedly in violation of the Act or “any rule,regulation, order, or permit issued pursuant thereto.”21

Despite these differences in language, the courts have consistentlyexamined prior decisional authority interpreting a citizen suit provision of

instrumentality or agency to the extent permitted by the eleventh amendmentto the Constitution) who is alleged to be in violation . . . or (2) against theAdministrator where there is alleged a failure . . . to perform any act or dutyunder this chapter which is not discretionary with the Administrator.

33 U.S.C. § 1365(a).17 Oklahoma Wildlife Fed’n v. Hodel, 642 F. Supp. 569, 571-72 (N.D. Okla. 1986).18 The Administrator of EPA is normally the named official in actions brought underTSCA, CWA, RCRA, CAA and EPCRA. ESA and SMCRA provide that suit is to bebrought against the Secretary of the Interior. See discussion infra § 7.06[1].19 E.g., SMCRA, 30 U.S.C. § 1270 (a)(2)(providing that action may be filed “againstthe Secretary or the appropriate State regulatory authority to the extent permitted by theeleventh amendment to the Constitution”); EPCRA, 42 U.S.C. § 11046(a)(1)(C),(D)(allowing suits against the governor or commission of a state for certain reportingfailures).20 42 U.S.C. § 7604(a)(1).21 30 U.S.C. § 1270(a)(1). Under SMCRA, plaintiffs cannot sue a private operator forviolations of the Act itself. Id; see discussion infra § 7.05[2].

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one statute and applied that reasoning to similar provisions of otherstatutes.22

§ 7.03. Comparison with the Administrative ProceduresAct.

Section 702 of the Administrative Procedures Act (APA) provides forjudicial review of agency action by a person suffering legal wrong or whois adversely affected or aggrieved by the agency action.23 Section 702provides a process for citizens to enforce environmental statutes againstfederal agencies, where the statutes do not include citizen suit provisionsor other private remedies.24 If agency action cannot be challenged throughthe statute’s citizen suit provision, the action may be reviewable under theAPA, if the plaintiff can meet the conditions for APA review.25 A personaggrieved or adversely affected by agency action cannot use citizen suitprovisions to circumvent judicial review under the APA,26 nor have theenvironmental citizen suit provisions expressly or impliedly repealed theAPA.27

22 Compare Hallstrom v. Tillamook County, 493 U.S. 20, 26 (1989)(finding the noticeand delay provision of RCRA jurisdictional), with Powder River Basin Resource Councilv. Babbitt, 54 F.3d 1477, 1486 (10th Cir. 1995)(applying Hallstrom to notice and delayprovision of SMCRA).23 5 U.S.C § 702.24 See Lujan v. National Wildlife Fed’n, 497 U.S. 871, 882 (1990)(APA provides forjudicial review of final agency action under the National Environmental Policy Act(NEPA), 42 U.S.C. § 4321, et seq. and the Federal Land Policy and Management Act(FLPMA), 43 U.S.C. § 1701, et seq., as neither statute provides a private right of actionto remedy violations of their provisions).25 Lujan v. NWF, 497 U.S. at 882-883; Bennett v. Spear, 520 U.S. 154, 174-175 (1997).26 Bennett, 520 U.S. at 173-174 (holding that 42 U.S.C. § 1540(g)(1)(A), ESA’s citizensuit provision, is available only to challenge governmental action as a regulated party,not to challenge the Secretary’s implementation of the statute).27 OXY USA, Inc. v. Babbitt, 122 F.3d 251, 258-259 (5th Cir. 1997).

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§ 7.04. Jurisdictional Issues. [1] — Constitutional Requirements.The power of the federal courts to adjudicate any lawsuit is limited

by Article III of the United States Constitution to “cases” and“controversies.”28

The doctrines developed to ensure that the courts maintain this“properly limited” role are standing, mootness and ripeness. These doctrineshave figured prominently in citizen suit litigation. Many of the recentdecisions regarding these doctrines, especially standing, are the result ofcitizen suits and other challenges to agency action or inaction under variousenvironmental statutes.29 Some trace the increase in dismissals of citizenand other environmental suits for lack of standing to the influence of JusticeScalia.30 In 1983, Justice Scalia (then a judge of the United States Courtof Appeals for the D.C. Circuit) wrote that the “doctrine of standing is acrucial and inseparable element” of the separation of powers principle andassists the Judicial Branch in maintaining its limited role under theConstitution.31 Then Judge Scalia disagreed with the expansive view ofthe judiciary’s role in environmental suits expressed in Calvert CliffsCoordinating Commission v. Atomic Energy Commission.32 Since hisarrival at the Supreme Court, he has put his thesis into practice as theauthor of the majority opinions in Steel Co. v. Citizens for a Better

28 U.S. Const. art. III, § 2, cl. 1. The Supreme Court has explained that this limitation:defines with respect to the Judicial Branch the idea of separation of powers on which theFederal Government is founded. The several doctrines that have grown up to elaboratethat requirement are founded in concern about the proper — and properly limited — roleof the Courts in a democratic society. Allen v. Wright, 468 U.S. 737, 750 (1984)(quotingWarth v. Seldin, 422 U.S. 490, 498 (1975)(internal quotations omitted)).29 See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83 (1998); Bennett, 520 U.S.154; Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992); Lujan v. National WildlifeFed’n, 497 U.S. 871 (1990).30 See, e.g., William Glberson, “Novel Antipollution Tool Is Being Upset by Courts,”N.Y. Times, June 5, 1999, at A10.31 Antonin Scalia, “The Doctrine of Standing as an Essential Element of the Separationof Powers,” 17 Suffolk U.L. Rev. 881, 881 (1983)(hereinafter “Scalia”).32 Id. at 884-885; see Calvert Cliffs Coordinating Comm’n v. Atomic Energy Comm’n,449 F.2d 1109 (D.C. Cir. 1971).

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Environment,33 Bennett v. Spear,34 Lujan v. Defenders of Wildlife,35 andLujan v. National Wildlife Federation.36

[a] — Standing.Standing, the most important of these doctrines,37 “focuses on the

party seeking to get his complaint before a federal court and not on theissues he wishes to have adjudicated.”38 While standing includes judiciallyimposed prudential considerations that may be expanded or abrogated bystatute,39 Congress may not reduce or expand the underlying “case orcontroversy” requirement of the Constitution.40

The Constitution requires, at a minimum, that the plaintiff has suffered:an injury in fact — an invasion of a legally-protected interest whichis . . . concrete and particularized . . . and . . . actual or imminent,not conjectural or hypothetical. . . . Second, there must be a causalconnection between the injury and the conduct complained of —the injury has to be fairly . . . trace[able] to the challenged actionof the defendant and not . . . th[e] result [of] the independent actionof some third party not before the Court. . . . Third, it must belikely, as opposed to merely speculative, that the injury will beredressed by a favorable decision.41

In other words, a party must demonstrate an injury in fact that is fairlytraceable to the actions of the defendant and that the injury will be likelyredressed by the court.42

33 Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83 (1998).34 Bennett v. Spear, 520 U.S. 154 (1997).35 Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992).36 Lujan v. National Wildlife Fed’n, 497 U.S. 871 (1990).37 FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 230 (1990).38 Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 38, (1976)(quotingFlast v. Cohen, 392 U.S. 83, 99 (1968)).39 Bennett, 520 U.S. at 162.40 Id.; see Sierra Club v. Simkins Indus., Inc., 847 F.2d 1109, 1113 (4th Cir.1988)(creation of a citizen suit provision does not, itself, establish Article III standing).41 Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561 (1992)(cites omitted).42 Bennett, 520 U.S. at 162.

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The party invoking federal jurisdiction has the burden of establishingstanding.43 Since standing is jurisdictional, it may be raised at any time,even on appeal.44 It may be raised on remand, even if previouslyconsidered.45 Courts may and should consider standing sua sponte, if itappears standing is doubtful.46

“[E]ach element [of standing] must be supported in the same way asany other matter on which the plaintiff bears the burden of proof, i.e. withthe manner and degree of evidence required at the successive stages of thelitigation.”47 If challenged prior to trial by a motion to dismiss, generalfactual allegations of injury resulting from the defendant’s conduct maysuffice, as the court presumes that the allegations include the necessarysupporting facts.48 However, “[t]o prevail on a Federal Rules of CivilProcedure 56 motion for summary judgment . . . mere allegations of injuryare insufficient. Rather, a plaintiff must establish that there exists no genuineissue of material fact as to justiciability . . . .”49 Finally, at trial the plaintiffmust present sufficient proof of the jurisdictional facts.50 Because of thevarying levels of proof required, when standing is challenged plays asignificant role in the decisions. For example, in Bennett the Court upheldstanding against a challenge at the pleading stage.51 In United States v.Students Challenging Regulatory Agency Practices (SCRAP),52 the Court

43 Defenders of Wildlife, 504 U.S. at 561.44 Sierra Club v. Cedar Point Oil Co., 73 F.3d 546, 555 n.22 (5th Cir. 1996).45 Public Interest Research Group of New Jersey, Inc. v. Magnesium Elektron, Inc.,123 F.3d 111, 117 (3d Cir. 1997). But see, CPC Int’l, Inc. v. Northbrook Excess & SurplusIns. Co., 46 F.3d 1211 (1st Cir. 1995).46 Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., 484 U.S. 49, 70(1987)(Scalia, J., concurring).47 Defenders of Wildlife, 504 U.S. at 561.48 Bennett, 530 U.S. at 168; Defenders of Wildlife, 504 U.S. at 561; Lujan v. NWF, 497U.S. at 889.49 Department of Commerce v. United States House of Representatives, 525 U.S. 316,119 S. Ct. 765, 772 (1999).50 Defenders of Wildlife, 504 U.S. at 561.51 Bennett, 520 U.S. at 168.52 United States v. Students Challenging Regulatory Agency Practices (SCRAP), 412U.S. 669 (1973).

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upheld standing, stating that the defendants could have tested the veracityof plaintiffs’ allegations by filing a motion for summary judgment.53

[i] — Injury in Fact.Standing requires an injury to a legally protected interest. Economic

interests have long been recognized as legally protected interests supportingstanding.54 Later, the Court specifically held that noneconomic, aestheticand environmental interests were legally protected interests that couldsupport standing.55

However, the mere existence of a legally protected interest does notprovide standing. The interest must be injured or adversely impacted bythe action of the defendant and the plaintiff must be among those personsaffected.56 Parties asserting injuries to noneconomic, aesthetic,environmental, conservational, or recreational interests must allege andprove that they “would be affected in any of their activities or past times”by the challenged governmental or private action.57 The injury must beparticularized, meaning “the injury must affect the plaintiff in a personal

53 Id. at 689-690.54 Association of Data Processing Service Orgs. v. Camp, 397 U.S. 150 (1970); Barlowv. Collins, 397 U.S. 159 (1970).55 Sierra Club v. Morton, 405 U.S. 727 (1972). Other legally protected interests heldsufficient to support standing include the observation of wildlife, Lujan v. Defenders ofWildlife, 504 U.S. 555, 562-563 (1992)(endangered species); Japan Whaling Ass’n v.American Cetacean Soc., 478 U.S. 221 (1986)(whales); Animal Legal Defense Fund v.Glickman, 154 F.3d 426 (D.C. Cir. 1998)(animals in captivity); the use of natural resources,Public Interest Research Group of New Jersey, Inc. v. Magnesium Elektron, Inc., 123F.3d 111 (3d Cir. 1997)(use of waterway or land adjacent to waterway); and access toinformation, Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 118 S. Ct. 1003, 1018(1998)(court assumed that access to information was legally protected interest); FederalElection Comm’n v. Akins, 524 U.S. 11, 118 S. Ct. 1777 (1998)(obtaining and sharinginformation from political group is legally protected interest); Sierra Club v. SimkinsIndustries, Inc., 847 F.2d 1109, 1113 (4th Cir. 1988)(failure to monitor and reportdischarges injured ability to know the extent of pollution). This is not an exhaustive listof legally protected interests, which Congress can create. The question is whether Congresshas given the plaintiff a right “personally.” Scalia, at 885.56 Sierra Club v. Morton, 405 U.S. 727, 734-735 (1972).57 Id. at 735. The Court rejected Sierra Club’s argument that its “special interest” in theenvironment gave it standing to argue the public interest, but held that once a partyestablishes his or her standing, he or she can argue the public interest. Id. at 735- 736.

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and individual way.”58 The injury must also be actual or imminent.Plaintiffs, who in the past had observed endangered or threatened wildlifeand their habitat in foreign countries, but had no immediate plans to return,had no standing to challenge agency actions or regulations that might affectthat wildlife or habitat, as they alleged no actual or imminent injury.59

Procedural injuries are treated somewhat differently. A proceduralinjury exists if a person is provided a procedural right designed to protecta concrete or legally protected interest.60 For example, a person livingadjacent to a proposed federal dam would have standing to challenge thepermitting agency’s failure to prepare an environmental impact statement(EIS), while a person living across the country from the proposed damwould not.61 A procedural injury is not subject to the same immediacyand redressability requirements.62 The example above illustrates this. Thebuilding of the dam, which is the action that will damage or injure theplaintiff’s interest, may not occur for many years; however, the proceduralinjury, namely the failure to prepare the EIS, has already occurred.Additionally, requiring the completion of an EIS does not ensure that theremedy –– stopping or modifying the construction of the dam –– will everoccur.

The injury need not be significant. An “identifiable trifle” is enough.63

However, some recent cases appear to require more than a mere “trifle.”These recent decisions demonstrate the necessity of specifically alleginginjury in fact and providing factual support for the allegations. For example,in Public Interest Research Group of New Jersey, Inc. v. Magnesium

58 Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992).59 Id.60 Id. at 572- 573. The Court rejected the lower court’s view of “procedural injury.”The Court of Appeals for the Eighth Circuit had reasoned that the ESA citizen suitprovision provided a procedural right in “all persons” and permitted “any person” to sueto enjoin governmental violations of ESA, whether the person suffered any discrete injuryresulting from the violation or not. Id. at 571-572.61 Id. at 572 n.7.62 Id.63 Public Interest Research Group v. Powell Duffryn Terminals, Inc., 913 F.2d 64, 71(3d Cir. 1990)(quoting United States v. Students Challenging Regulatory Agency Practices(SCRAP), 412 U.S. 669, 689, n.14 (1973)).

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Elektron, Inc.,64 the plaintiffs failed to prove standing by alleging theirenjoyment of the Delaware River was lessened, because they “knew” thedefendant was discharging pollutants into tributaries of the DelawareRiver.65 In denying standing, the Third Circuit Court of Appeals held thatthe plaintiffs failed to allege in the complaint or in the affidavits filed insupport of standing, “any injury to the Delaware River.”66 Plaintiffs didnot counter defendant’s affidavits that no injury to the Delaware Riverresulted from defendant’s operations.67

The Fourth Circuit Court of Appeals in Friends of the Earth, Inc. v.Gaston Copper Recycling Corp.68 took a similar view. Members of theplaintiff organization alleged in affidavits that they used, recreated, fishedand swam in various waterways allegedly polluted by the defendant. Whilerecognizing recreational and economic interests were “legally protectedinterests,” the court of appeals held plaintiff did not prove the waters were“actually, or in imminent threat of being, adversely affected by pollution.”69

The court found no evidence showing that the waters used by plaintiff’smembers were adversely affected by any pollution, much less thedefendant’s discharges. “[T]he members’ concerns, standing alone, simplyfail to establish that their legally protected interests were . . . adverselyaffected.”70

64 Public Interest Research Group of New Jersey, Inc. v. Magnesium Elektron, Inc.,123 F.3d 111 (3d Cir. 1997).65 Id. at 120.66 Id. at 121.67 Id. This case also illustrates the importance of when standing is challenged. InMagnesium Elektron, the court of appeals decided the standing issue after the districtcourt had adjudicated the merits of the CWA violations. Based on the defendant’sevidence, the district court found the Delaware River had suffered no harm. The ThirdCircuit held, based on that finding, that plaintiff had failed to prove injury in fact. InNatural Resources Defense Council, Inc. v. NVF Co., No. 97-496-SLR, 1998 U.S Dist.LEXIS 9790 (D. Del. 1998)(unpublished), the district court distinguished MagnesiumElektron, partly because the defendant challenged plaintiffs’ allegations of injury in facton a motion to dismiss, when the court was bound to accept the plaintiff’s allegations astrue. Id. at *27-29.68 Friends of the Earth, Inc. v. Gaston Copper Recycling Corp., 179 F.3d 107 (4th Cir.1999).69 Id. at 113.70 Id. at 114.

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[ii] — Causation.The injury in fact must be fairly traceable to the challenged action and

not the result of the action of parties not before the court.71 A plaintiffcannot show causation by merely alleging or proving the defendant violatedregulations or discharged pollutants exceeding the permit limits.72

However, “plaintiff need not prove causation with absolute scientificrigor.”73 Nor is the causation element equivalent to tort causation.74 Thecausal relationship between the injury in fact and the challenged actiondoes not have to be direct.75 Still, the more attenuated, the less likely theinjury will be “fairly traceable” to defendant’s conduct.76 The defendant’sactions need not be the sole cause of the plaintiff’s injury.77

When the challenged conduct is a private action or is governmentaction directly affecting the plaintiff, the causation element involves agenerally straightforward analysis. When the challenged action is anagency’s rule or regulation, however, the inquiry is somewhat moredifficult, as the rule or regulation seldom affects the plaintiff directly.78

Since the injury must be fairly traceable to the defendant’s conduct andnot “from the independent action of some third party not before the court,”79

courts in citizen suits challenging rules or regulations requiring or

71 Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 41-42 (1976).72 Public Interest Research Group v. Powell Duffryn Terminals, Inc., 913 F.2d 64, 72(3d Cir. 1990).73 Id.74 Id.75 United States v. Students Challenging Regulatory Agency Practices (SCRAP), 412U.S. 669, 688 (1973).76 Friends of the Earth, Inc. v. Gaston Copper Recycling Corp., 179 F.3d 107 (4th Cir.1999)(plaintiffs’ concerns about pollution of waterways not “fairly traceable” todefendant’s discharges where no evidence shows any effluent discharged by defendantin the waterways); Friends of the Earth v. Crown Central Petroleum Corp., 95 F.3d 358(5th Cir. 1996)(concern over pollution of lake is not “fairly traceable” to defendant’sdischarge violations occurring 18 miles and several tributaries away); Florida AudubonSoc. v. Bentsen, 94 F.3d 658 (D.C. Cir. 1996)(threat of pollution from increased farming,not “fairly traceable” to grant of tax credits for production of ethanol derivative).77 Powell Duffryn, 913 F. 2d at 72-73.78 Lujan v. Defenders of Wildlife, 504 U.S. 555, 561-562 (1992).79 Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 38, 41-42 (1976).

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permitting actions by a third party must concentrate on the coercive natureof the rule or regulation.80

[iii] — Redressability.The third aspect of standing addresses the likelihood that “the injury

will be ‘redressed by a favorable decision.’”81 This element has receivedincreased interest recently.82 In Steel Co. the Supreme Court held plaintiffslacked standing to maintain a citizen suit under EPCRA, where thedefendant was in full compliance with EPCRA at the time plaintiff filedsuit.83 The EPCRA citizen suit provision, like virtually all citizen suitprovisions, requires the potential plaintiff to notify the alleged violatorand federal and state regulators of the intent to file suit and to wait 60 daysbefore filing.84 The notice and delay provisions give the government theopportunity to commence its own compliance action and the alleged violatorthe opportunity to comply. If either event occurs, the need for a citizen suitnever arises.85

In Steel Co., the plaintiffs alleged the defendant had not filed reportsrequired by EPCRA, but plaintiffs did not allege any continuing violationof EPCRA. Between the filing of the notice and suit, defendant filed therequired reports. The Court, in reversing the lower court, held plaintiffslacked standing, as none of the remedies sought would redress the plaintiffs’alleged injury in fact.86 First, the Court held declaratory relief unavailableand useless, as the defendant did not dispute that it had not filed the reportsor that the failure violated EPCRA. Declaratory judgment was “worthless

80 Defenders of Wildlife, 504 U.S. 561-562.81 Id. at 561 (quoting Simon at 38).82 In Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83 (1998), Justice Stevens,concurring in the judgment, called redressability “a judicial creation of the past 25 years.”Id., 118 S. Ct. at 1027. Justice Scalia, writing for the majority, disagreed, stating thatredressability “has been ingrained in our jurisprudence from the beginning.” Id., 118 S.Ct. 1017 n.5.83 Id., 118 S. Ct. 1003.84 42 U.S.C. § 11046(d).85 Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49, 60 (1987).86 The Court assumed, without deciding, that plaintiffs alleged a concrete injury infact, satisfying Article III. Steel Co., 523 U.S. 83, 118 S. Ct. at 1018.

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to [plaintiff], . . . [and] to all the world.”87 Since the plaintiffs did notallege any continuing violations of EPCRA, the Court held injunctive orsimilar relief unavailable.88 The Court also rejected the plaintiffs’ argumentthat its request for “investigation and prosecution” costs provided theplaintiffs with standing.89 “Obviously, . . . a plaintiff cannot achievestanding to litigate a substantive issue by bringing suit for the cost ofbringing suit.”90

However, the most controversial holding was that the imposition ofcivil penalties would not redress the plaintiffs’ injuries, as the penaltieswere payable to the government, not the plaintiffs. The court rejected theargument that the payment of civil penalties by the defendant would serveas a deterrent and that the plaintiff had an interest in that deterrence:

By the mere bringing of his suit, every plaintiff demonstrates hisbelief that a favorable judgment will make him happier. Butalthough a suitor may derive great comfort and joy from the factthat the United States Treasury is not cheated, that a wrongdoergets his just deserts (sic), or that the nation’s laws are faithfullyenforced, that psychic satisfaction is not an acceptable Article IIIremedy because it does not redress a cognizable Article III injury.91

Since Steel Co., some defendants have argued that citizen plaintiffscan never prove redressability where civil penalties are sought, regardlessof whether or not the defendant committed violations after suit was filed.Relying on Steel Co., at least two courts have found cases moot where thedefendant was in compliance at the time of final judgment, leaving civil

87 Id., 118 S. Ct. at 1018.88 Id., 118 S. Ct. at 1019-1020. The Court rejected the government’s argument thatinjunctive relief would remedy the injury, because of a presumption of future injurywhen the defendant voluntarily ceases the activity, holding that this presumption arisesonly to refute assertions of mootness, not as a substitute for an allegation of presentinjury. Id., 118 S. Ct. at 1019-1020 (citing United States v. W. T. Grant Co., 345 U.S.629, 632 (1953)).89 The Court agreed that “investigation costs” incurred compiling the defendant’sviolations prior to suit, would support standing. However, 42 U.S.C. § 11046(f) onlyallows the recovery of the costs of litigation. Id., 118 S. Ct. at 1019.90 Id., 118 S. Ct. at 1019.91 Id., 118 S. Ct. at 1018-1019 (emphasis in original).

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penalties as the only remedy.92 However, decisions issued before SteelCo., have held that compliance achieved after suit does not moot an actionfor civil penalties.93 Some courts have distinguished Steel Co., holding itapplies only where the plaintiff does not allege or prove the existence ofpost complaint violations. In San Francisco Baykeeper v. Vallejo Sanitationand Flood Control Dist.,94 the district court held Steel Co. did not preventan award of civil penalties for present and continuing violations. The courtreasoned that Steel Co. did not overrule Gwaltney,95 which only prohibitedactions based on “wholly past” violations.96

The Supreme Court granted certiorari in Friends of the Earth v. LaidlawEnvironmental Services97on this issue.98 It is difficult to predict what willbe the Court’s decision. Clearly, Gwaltney held that federal courts have nojurisdiction over citizen suits based solely on “wholly past” violations.99

Equally clearly, the Court stated, “citizens, unlike the Administrator, mayseek civil penalties only in a suit brought to enjoin or otherwise abate anongoing violation.”100 One problem is that Gwaltney’s discussion ofconstitutional standing and mootness was brief and did not focus on the

92 See Friends of the Earth v. Laidlaw Envtl. Servs., Inc., 149 F.3d 303 (4th Cir. 1998),cert. granted, 119 S. Ct. 1111 (1999); Dubois v. United States Dep’t of Agric., 20 F.Supp. 2d 263 (D.N.H. 1998), appeal stayed pending appeal of Laidlaw, No. 98-2364(1st Cir. April 2, 1999). Mootness is discussed in more detail infra at Section 7.04[1][c].93 See Comfort Lake Ass’n, Inc. v. Dresel Contracting, Inc., 138 F.3d 351 (8th Cir.1998)(This decision was issued the day after Steel Co. A rehearing was requested, butwas denied with no mention of Steel Co.); see also, Atlantic States Legal Found. v.Stroh Die Casting Co., 116 F. 3d 814, 820 (7th Cir. 1997), cert. denied 118 S. Ct. 442(1997); Sierra Club v. Simkins Indus., Inc., 847 F.2d 1109, 1113 (4th Cir. 1988).94 San Francisco Baykeeper v. Vallejo Sanitation and Flood Control Dist., 36 F. Supp.2d 1214 (E.D. Cal. 1999).95 Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., 484 U.S. 49 (1987).96 San Francisco Baykeeper, 35 F. Supp. 2d at 1215. Accord National Resources DefenseCouncil v. Southwest Marine, Inc., 28 F. Supp. 2d 584 (S.D. Cal. 1998), recon. grantedand opinion aff’d, 39 F. Supp. 2d 1235 (S.D. Cal. 1999).97 Friends of the Earth v. Laidlaw Envtl. Servs., 149 F.3d 303 (4th Cir. 1998).98 119 S. Ct. 1111 (1999). At the time of this writing, oral argument was set for October12, 1999.99 Gwaltney, 484 U.S. at 64.100Id. at 59.

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situation in Steel Co., where the imposition of civil penalties payable tothe United States is the only remedy.101

Counsel for plaintiffs in Laidlaw fear that Justice Scalia will useLaidlaw not only to expand Steel Co., but to further define “injury in fact”to include proof of actual harm.102 However, the Court granted certiorarion the issues of mootness and attorneys’ fees, not injury in fact.103 JusticeScalia in Gwaltney would have found subject matter jurisdiction hadplaintiffs provided proof that the defendant “was in fact ‘in violation’ onthe date suit was brought.”104 What complicates the situation in Laidlawis that the district court denied declaratory and injunctive relief, andplaintiffs did not appeal those rulings to the court of appeals.105 If nothingelse, the decision should clarify the relationship between Steel Co. andGwaltney.

[b] — Prudential Considerations.Besides the constitutional “core” requirements, the courts have

developed several prudential limitations on standing.106 These prudentialconsiderations, unlike the constitutional requirements, may be expandedor abrogated by Congress.107

[i] — Generally Shared Grievances.Generally, courts will not adjudicate grievances shared equally by

everyone or by a large class of citizens, where the grievances are moreappropriately addressed by the other branches of government.108 However,

101The majority in Gwaltney did discuss standing and mootness. Id. at 65-67. However,Justices Scalia, Stevens and O’Connor dissented from this portion of the majority opinion.In dissenting, Justice Scalia foreshadowed the decision in Steel Co.: “If it is undisputedthat the defendant was in a state of compliance when this suit was filed, the plaintiff’s[sic] would have been suffering no remediable injury in fact that could support suit.” Id.at 70.102See Steven France, “What’s It To You?,” 85-0ct. A.B.A. J. 36 (1999).103Id.104Gwaltney, 484 U.S. at 69.105Friends of the Earth v. Laidlaw Envtl. Servs., 149 F.3d 303, 306 (4th Cir. 1998).106Allen v. Wright, 468 U.S. 737, 751 (1984).107Bennett v. Spear, 520 U.S. 154, 162 (1997).108Allen v. Wright, 468 U.S. at 751.

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the mere fact that an injury is shared by a large number does not prevent acourt from adjudicating an otherwise appropriate case.109

[ii] — Third Party Rights/AssociationalStanding.

The courts recognize a general prohibition against asserting the rightsof third parties. However, that prudential consideration does notautomatically prevent an association or group from filing suit on behalf ofits members. Generally, citizen suits are filed not by individuals, but byenvironmental or public interest groups or associations on behalf of theirmembers. An association may assert the rights of its members if (1) theindividual members would have standing; (2) the interest sought to beprotected is germane to the purposes of the association; and (3) the claimor relief requested will not require participation by the individualmembers.110 Associational standing has been upheld where the plaintiffassociation is a state agency, if the members, individuals or companies,meet the “indicia of membership.”111 Likewise corporate plaintiffs withoutmembers have standing to represent individuals, based on the indicia ofmembership.112 An association can demonstrate standing in its own right,as virtually all the environmental statutes define “person” to include“associations.”113 If the association cannot demonstrate standing, then atleast one member must.114

In Steel Co., the Court questioned in dicta whether an association couldrepresent its members in a citizen suit under EPCRA. Because EPCRA,like nearly all environmental statutes, defines “person” to include“association” and permitted “any person” to commence a civil action “on

109The prohibition against adjudicating cases involving “generalized grievances” doesnot prevent “a case where concrete injury has been suffered by many persons, as in massfraud or mass tort litigation.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 572 (1992);Federal Election Comm’n v. Akins, 524 U.S. 11, 24-25 (1998)(over the dissent of JusticeScalia, the Court held that injury in fact may be found “where harm is concrete, thoughwidely shared.” Id. at 24.110Hunt v. Washington State Apple Advertising Comm’n, 432 U.S. 333 (1977).111Id. at 344.112Friends of the Earth, Inc. v. Chevron Chem. Co., 129 F.3d 826, 829 (5th Cir. 1997).113See, e.g., SMCRA, 30 U.S.C. § 1291(19).114Sierra Club v. SCM Corp., 747 F.2d 99 (2d Cir. 1984).

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his own behalf,” the Court stated “it is arguable that the statute permitsrespondent to vindicate only its own interests as an organization, and notthe interests of its individual members . . . .”115 However, the Court assumedrepresentational standing, as it did not affect the outcome.116

[iii] — “Zone of Interests.”The plaintiff’s legally protected interest must fall within the “zone of

interests” of the relevant statute.117 Originally developed for challengesto agency action under the APA,118 this prudential limitation has beenextended to citizen suits as well.119 As with any prudential limitation, itmay be expanded or abrogated by Congress.120 In Bennett, the Court heldthat enacting the citizen suit provision of the ESA abrogated the “zone ofinterests” test.121 The Court relied on several factors in reaching thatconclusion. First, the statute permits “any person” to file a civil suit.122

The Court acknowledged the language’s “remarkable breadth” comparedto the language used in other citizen suit statutes.123 Next, the Courtremarked that the ESA dealt with the environment, “a matter in which it iscommon to think all persons have an interest.”124 Finally, the purpose ofcitizen suit provisions is to encourage “enforcement by private attorneys

115Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 118 S. Ct. 1003, 1017 n.6(1998).116Id. In Salmon v. Pacific Lumber Co., 30 F. Supp. 2d 1231 (N.D. Cal. 1998), thedefendant made this same argument. The district court held that the argument, based onthe Court’s “ruminations,” ignored other Supreme Court precedent upholdingassociational standing. Id. at 1239-1240 Because an association must demonstrate it hasa stake in the dispute in representing its members views, the court held the phrase “onhis own behalf” did not abrogate associational standing. Id.; see Sierra Club v. AluminumCo. of America, 585 F. Supp. 842, 845-849 (N.D.N.Y. 1984)(“on his own behalf”prevented class action suit under the CWA).117Association of Data Processing Serv. Orgs. v. Camp, 397 U.S. 150, 153, (1970).1185 U.S.C. § 500 et seq.119Bennett v. Spear, 520 U.S. 154, 163 (1997).120Id. at 162.121Id. at 164.12216 U.S.C. § 1540(g)(1).123Bennett, 520 U.S. at 164-165.124Id. at 165.

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general.”125 Based on these factors, the Court held Congress had expandedstanding under the ESA to the fullest extent under Article III.126

While the Court contrasted the ESA’s citizen suit provision with thesimilar provisions in the CWA and the SMCRA, it seems unlikely thatCongress abrogated the “zone of interests” test in the ESA, but not theCWA and SMCRA and the other environmental citizen suit provisions.First, the language “having an interest which is or may be adverselyeffected,”127 which the court specifically referenced, is very similar tolanguage the Court held revealed Congress’s intent to expand standing inthe Civil Rights Act of 1968.128 Like the ESA, the CWA, SMCRA and theother environmental statutes deal with the environment, “in which it iscommon to think all persons have an interest.”129 The purpose of all citizensuit provisions “is to encourage enforcement by so-called ‘private attorneysgeneral.’”130 Because of the obvious similarities in these statutes, there isno rational basis to believe Congress abrogated the “zone of interests” testunder the ESA, but not the CWA, SMCRA and other statutes.

[c] — Mootness.It is not enough for the plaintiff to have standing and for the court to

have a “case or controversy” when the case is filed; those conditions mustcontinue throughout the litigation.131 The doctrine of mootness ensuresthat continuation. “An actual controversy must be extant at all stages ofreview, not merely at the time the complaint is filed.”132 Mootness has

125Id.126Id. at 166.12730 U.S.C. § 1270(a); 33 U.S.C. § 1365(g).128See Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205 (1972)(statute permittingsuit by any person “injured by a discriminatory housing practice” expanded standing tothe fullest extent under Article III).129Bennett, 520 U.S. at 165.130Id.131Powder River Basin Resource Council v. Babbitt, 54 F.3d 1477, 1484-1485 (10thCir. 1995).132Arizonans for Official English (AOE) v. Arizona, 520 U.S. 43, 67 (1997), quotingPreiser v. Newkirk, 422 U.S. 395, 401 (1975).

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been described as “the doctrine of standing set in a time frame.”133 Thedoctrine of mootness contains two fundamental aspects. First, thecontroversy must remain “live” throughout the litigation. For example, ifthe defendant abated the violations that formed the basis of the suit, thecontroversy would no longer be “live.”134 Second, the parties must maintaina “personal stake” in the litigation.135 The loss of any element of standingduring the litigation, including appeal, renders the matter moot and requiresdismissal.136

In Laidlaw, the court of appeals, relying on Steel Co., held that wherethe defendant at the time of judgment was no longer in violation and theonly remaining remedy was civil penalties payable to the government, theclaim was no longer redressable and therefore moot. The district courtdenied plaintiffs’ request for injunctive and declaratory relief, but plaintiffsappealed only the amount of the civil penalty awarded.137 The EighthCircuit and other courts have taken a contrary position.138

Several courts have found citizen suits moot based on the actions ofregulatory agencies after plaintiffs filed suit. For example, the terminationof the permit and approval of an agreement between the defendant and thestate mooted the plaintiffs’ request for injunctive relief.139 Voluntarycompliance by the operator does not, by itself, render the case moot, oroperators would be virtually immune from citizen suits, as they could waituntil suit is filed and then comply, avoiding any injunction or monetary

133United States Parole Comm’n v. Geraghty, 445 U.S. 388, 397 (1980)(quotingMonaghan, “Constitutional Adjudication: The Who, and When,” 82 Yale L.J. 1363, 1384(1973)).134Comfort Lake Ass’n, Inc. v. Dresel Contracting, Inc., 138 F.3d 351, 354-355 (8thCir. 1998). This case distinguished mootness of a claim for injunctive relief from mootnessof a claim for civil penalties.135Geraghty, 445 U.S. at 396.136AOE, 520 U.S. at 67.137Friends of the Earth v. Laidlaw Envtl. Servs., Inc., 149 F.3d 303, 306 (4th Cir. 1998),cert. granted, 119 S. Ct. 1111 (1999).138Comfort Lake Ass’n, Inc. v. Dresel Contracting, Inc., 138 F.3d 351 (8th Cir. 1998);Natural Resources Defense Council v. Southwest Marine, Inc., 39 F. Supp. 2d 1235,1242 (S.D. Cal. 1999)(collecting cases).139Comfort Lake, 138 F.3d at 355.

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sanction. For the court to dismiss a suit as moot based on voluntarycompliance, the court must be convinced that it is “absolutely clear thatthe allegedly wrongful behavior could not reasonably be expected torecur.”140 However, this exception does not apply where compliance isnot voluntary but has resulted from the government’s enforcementactions141 or injunctions prohibiting further violations.142

[d] — Ripeness.Finally, for a suit to be a “case or controversy” it must be ripe for

adjudication. Standing and ripeness are sometimes confused.143 Whilestanding focuses on whether the proper party is litigating the question,ripeness focuses on whether the question is being litigated at the propertime.144 To determine if a case is ripe for adjudication, the court mustevaluate (1) “the fitness of the issues for judicial decision” and (2) the“hardship to the parties withholding court consideration.”145 A dispute isnot ripe until the “controversy has been reduced to more manageableproportions, and its factual components fleshed out, by some concrete action. . . in a fashion that harms or threatens to harm [the plaintiff].”146

[2] — Federal or State Jurisdiction.[a] — Federal Jurisdiction over State Regulations.

Virtually all the environmental citizen suit provisions specifically grantthe federal district courts jurisdiction over compliance and mandatory dutysuits.147 Courts have divided, however, over whether federal jurisdiction

140Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49, 66(1987)(quoting United States v. Phosphate Export Ass’n, Inc., 393 U.S. 199, 203(1968))(emphasis added).141Comfort Lake, 138 F.3d at 355 (threat of further enforcement action by state).142Dubois v. United States Dep’t of Agric., 20 F. Supp. 2d 263, 269 (D.N.H. 1998).143Wilderness Soc. v. Alcock, 83 F.3d 386, 389-390 (11th Cir. 1996).144Id. at 390.145Ohio Forestry Assoc. v. Sierra Club, 523 U.S. 726, 118 S. Ct. 1665, 1670 (1998)(citingAbbott Lab. v. Gardner, 387 U.S. 136, 148-149, (1967)).146Lujan v. National Wildlife Fed’n, 497 U.S. 871, 891 (1990).147See e.g. CAA, 42 U.S.C. § 7604(a); CWA, 33 U.S.C. § 1365(a); SMCRA, 30 U.S.C.§ 1270(a).

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exists over cases involving violations of federally approved stateregulations.148 Some courts have held that state laws, rules or regulationsthat are more stringent than federal law or regulations or which have nofederal counterpart may not be enforced by a citizen suit in federal court.149

[b] — Abstention.Federal courts, while having jurisdiction, may under some

circumstances abstain from exercising that jurisdiction. Abstention is,however, the exception not the rule.150 Two abstention doctrines may applyin citizen suit litigation. The Supreme Court has stated that abstention isappropriate,

when there are “difficult questions of state law bearing on policyproblems of substantial public import whose importance transcendsthe result in the case then at bar”; or . . . where the “exercise offederal review of the question in a case and in similar cases wouldbe disruptive of state efforts to establish a coherent policy withrespect to a matter of substantial public concern.”151

148Compare Chemical Weapons Working Group, Inc. v. United States Dep’t of theArmy, 990 F. Supp. 1316 (D. Utah 1997)(state plan under RCRA supplants federal statute),with Ashoff v. City of Ukiah, 130 F.3d 409 (9th Cir. 1997)(state standards may be enforcedin federal court as they have “become effective pursuant to” RCRA); compare Molinaryv. Powell Mtn. Coal Co., 125 F.3d 231 (4th Cir. 1997), cert. denied, 522 U.S. 1118(1998), with Haydo v. Amerikohl Mining Co., 830 F. 2d 494 (3d Cir. 1987). Molinaryand Haydo were filed under 30 U.S.C. Section 1270(f), which provides a private damageremedy to “any person” suffering personal or property damage resulting from violationsof “any rule, regulation, order or permit issued pursuant to” SMCRA. Section 1270(f)does not include a specific grant of federal jurisdiction as does Section 1270(a), butdescribes the cause of action identically. The Haydo court relied on SMCRA’s grant tothe states of “exclusive” jurisdiction, 30 U.S.C. Section 1253(a), to find no federaljurisdiction. The Molinary court rejected that position and held that a federally createdcause of action with no specific grant of jurisdiction was cognizable in federal courtunder 28 U.S.C. Section 1331.149See Ashoff, 130 F.3d at 412 (more stringent state standards do not “become effective”under RCRA); Atlantic States Legal Found. v. Eastman Kodak Co., 12 F.3d 353 (2d Cir.1993), cert. denied, 513 U.S. 811 (1994)(stricter state standards under CWA are notenforceable by a citizen suit in federal court).150Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 813 (1976).151Coalition for Health Concern v. LWD, Inc., 60 F.3d 1188, 1194 (6th Cir.1995)(quoting New Orleans Pub. Serv., Inc. v. Council of New Orleans, 491 U.S. 350,359 (1989).

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The Sixth Circuit applied the abstention doctrine set forth in Burfordv. Sun Oil152 to a situation where plaintiffs brought citizen suits underRCRA and CERCLA to challenge the decision of a Kentucky agency topermit a hazardous waste incineration facility. The court concluded thatKentucky provides adequate review procedures, and federal review “wouldbe disruptive of Kentucky’s efforts to establish a coherent policy withrespect to the licensing of hazardous waste facilities.”153

In Colorado River Conservation District v. United States,154 the Courtstated that where abstention under Burford or any other abstention doctrinewas not warranted, the federal courts may, nonetheless, dismiss a suit forreasons of judicial comity and due consideration of “wise judicialadministration, giving regard to conservation of judicial resources andcomprehensive disposition of litigation.”155 In determining whether todismiss a suit under Colorado River, courts must consider factors such asthe inconvenience of the federal forum, the desirability of avoiding“piecemeal litigation,” and the order in which the courts obtainedjurisdiction.156 The decision is a weighing process of all these factors,with none being necessarily determinative.157 It remains to be seen whetherthe courts will utilize Colorado River abstention in a citizen suit action.

[3] — Venue.Venue governs where a suit should be filed. It generally is a personal

privilege of the defendant, which can be waived if not timely raised. Mostcitizen suit provisions specifically provide for either exclusive or permissivevenue, and some provide alternative venue choices. For example, TSCAprovides that compliance suits may be filed where the violation occurredor where the defendant resides or has his principal place of business, while

152Burford v. Sun Oil Co., 319 U.S. 315 (1943).153LWD, 60 F. 3d at 1189.154Colorado River Conservation Dist. v. United States, 424 U.S. 800 (1976).155Id. at 817.156Id.157Id.

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mandatory duty suits may be filed in the District Court for the District ofColumbia or where the plaintiff resides.158

Under SMCRA, all citizen suits “may be brought only in the judicialdistrict in which the surface coal mining operation complained of islocated.”159 The SMCRA venue provision is jurisdictional andnonwaivable.160 Since the venue provisions of the CAA and CWAconcerning compliance suits are virtually identical to SMCRA’s provision,those provisions are also arguably jurisdictional and nonwaivable.161

[4] — Eleventh Amendment Immunity.Congress cannot require a state to defend a suit in federal court brought

by citizens of other states or foreign countries without the state’s consent.162

This immunity has been extended to encompass suits brought by citizensof the same state.163 Exceptions to state sovereign immunity exist. First,Congress may explicitly abrogate state immunity. However, Congress’sauthority is limited to statutes based on the Fourteenth Amendment.164

All citizen suit statutes specifically limit suits against the states or stateagencies to the extent permitted by the Eleventh Amendment.165

15815 U.S.C. § 2619(a); see also RCRA, 42 U.S.C. § 6972(a)(compliance suits may bebrought where the violation occurred or where the endangerment may occur, andmandatory duty suits may be filed in the District Court for the District of Columbia orwhere the violation occurred).15930 U.S.C. § 1270(c)(1)(emphasis added); Save Our Cumberland Mountains, Inc. v.Lujan, 963 F.2d 1541, 1543 (D.C. Cir. 1992)(this “special forum” rule applies tocompliance suits and mandatory duty suits).160Id.; New Mexico ex rel. Energy and Minerals Dep’t v. United States Dep’t of Interior,820 F.2d 44 (D.C. Cir. 1987); National Wildlife Fed’n v. Hodel, 661 F. Supp. 473 (E.D.Ky. 1987).161See 33 U.S.C. § 1365(c)(1); 42 U.S.C. § 7604(c)(1). No venue is specified formandatory duty suits under these provisions. Therefore, the general venue statute controlswhere such actions must be filed. 28 U.S.C. § 1391. Other citizen suit statutes alsoprovide for mandatory venue. For example, EPCRA requires that compliance actions“shall” be filed in the district where the violation occurred. 42 U.S.C. § 11046(c). AccordCERCLA, 42 U.S.C. § 9659(b)(1).162U.S. Const. amend. XI.163Hans v. Louisiana, 134 U.S. 1, 11-14 (1890).164Seminole Tribe v. Florida, 517 U.S. 44 (1996).165See, e.g., 30 U.S.C. § 1270(a).

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Second, states may consent to suit. None of the recent Supreme Courtdecisions have altered this principle.166 Courts had allowed suits againststates in federal court by recognizing that states could constructively waiveEleventh Amendment immunity by voluntarily engaging in federallyregulated conduct.167 The constructive waiver does not extend to aninvoluntary waiver of a state’s Eleventh Amendment immunity.168 Finally,suits may be brought against state officials and regulatory agencies infederal court for declaratory or injunctive relief.169 Naming a state officialas the defendant instead of the state cannot circumvent EleventhAmendment immunity if the state is the real party in interest. The generalrule is that suits seeking prospective relief are considered suits against thestate official, while suits seeking retroactive relief are against the stateitself.170 Like abstention doctrines, it remains to be seen the extent towhich Eleventh Amendment jurisprudence will affect plaintiffs’ futureability to file environmental actions under citizen suit statutes.

§ 7.05. Elements of a Citizen Suit Action.[1] — Parties.

[a] — Plaintiffs.The function of citizen suit provisions is to permit private citizens to

bring actions for the enforcement of the environmental law statutes. Theyare designed “to encourage enforcement by so-called ‘private attorneysgeneral.’”171 Subject to standing limitations, “any person” may bring anaction.172 This includes individuals, companies, associations, and evenmunicipal entities.173 The Supreme Court in Bennett, held that the broad

166 See, e.g., Alden v. Maine, 119 S. Ct. 2240 (1999).167Parden v. Terminal Ry. of Ala. Docks Dept., 377 U.S. 184 (1964); MCI Telecomm.Corp. v. Illinois Commerce Comm’n, 168 F.3d 315 (7th Cir. 1999).168College Sav. Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 119 S. Ct.2219 (1999)(overruling Parden).169Powder River Basin Resource Council v. Babbitt, 54 F.3d 1477, 1483 (10th Cir.1995)(citing Ex parte Young, 209 U.S. 123, 159-160 (1908)).170Id.171Bennett v. Spear, 520 U.S. 154, 166 (1997).172SMCRA, 30 U.S.C. § 1270(a); CWA, 33 U.S.C. § 1365(a); CAA, 42 U.S.C. § 7604(a).173E.g., Bennett, 520 U.S. 154 (municipal irrigation districts).

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language in citizen suit statutes expands prudential standing to permit “non-environmentalist” plaintiffs to bring actions for enforcement of thestatutes.174 Thus all citizens, even mineral and energy corporations, mayavail themselves of these statutes to challenge illegal enforcement ofenvironmental laws.175

[b] — Operator as Defendant.The citizen suit statutes permit an action against “any person” for

violation of the pertinent statute or regulation.176 The vast majority ofcompliance suits are brought against private operators such as corporations.In addition, a citizen may bring an action against a government entity.Citizen suit statutes expressly contemplate that an action may be broughtagainst a government entity — the United States, a state, or a localmunicipality — where the government is acting as an operator and isviolating the statute or regulation.177 Thus, citizen-plaintiffs may bring acompliance action under the environmental statutes against government-operated cogeneration facilities, waste water treatment plants, landfills,and the like.

[c] — Regulator as Defendant.The statutes also permit a citizen to bring an action against a

government agency which is responsible for enforcement of the pertinentstatute.178 In a mandatory duty suit, the plaintiff must allege that theAdministrator of EPA or Secretary of Interior has failed to carry out some

174Id. at 166.175Id. Prior to Bennett, several courts had held that industry could not use a citizen suitto challenge agency enforcement of environmental laws. See, e.g., United States v. GormanFuel, Inc., 716 F. Supp. 991 (E.D. Ky. 1989). Although Bennett directly addressed onlythe ESA’s citizen suit provision, its reasoning should apply with equal force to othercitizen suit provisions.176E.g., SMCRA, 30 U.S.C. § 1270(a)(1); CWA, 33 U.S.C. § 1365(a)(1); CAA, 42U.S.C. § 7604(a)(1).177Bennett, 520 U.S. at 173; San Francisco Baykeeper v. Vallejo Sanitation and FloodControl Dist., 36 F. Supp. 2d 1214, 1215 (E.D. Cal. 1999); see generally Hancock v.Train, 426 U.S. 167 (1976).178E.g., SMCRA, 30 U.S.C. § 1270(a)(2); CWA, 33 U.S.C. § 1365(a)(2); CAA, 42U.S.C. § 7604(a)(2).

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mandatory duty. A mandatory duty is a requirement in the statute orregulation which gives the agency no discretion in its execution.179

A person cannot bring an action under the auspices of a citizen suit forthe violation of a discretionary duty. An action alleging a violation of adiscretionary duty must be brought under the APA.180 Because the standardof proof is less demanding in a compliance action than in an action forAPA review,181 a plaintiff seeking to challenge an agency’s conduct mayattempt to characterize the agency’s conduct as a violation of a mandatoryduty. Thus, citizen suit litigation may involve legal issues regarding whetheran agency’s certain actions were mandatory or discretionary. For the samereason, environmental actions against agencies often involve overlappingclaims under both the pertinent citizen suit statute and the APA.182

[2] — Violation of Law.In a compel compliance action, the complaint must allege that a

violation of law exists at the time the complaint is filed.183 A person cannot

179Bennett, 520 U.S. at 171-173 (terms of statute which “are plainly those of obligationrather than discretion” impose mandatory duty); cf. Bragg v. Robertson, 54 F. Supp. 2d635 (S.D.W. Va. 1999) (holding that while regulations implementing ApproximateOriginal Contour (AOC) requirements provided state agency some discretion, plaintiffs’charge that agency ignored statutory AOC requirements properly alleged breach ofmandatory duty).180Bennett, 520 U.S. at 172-173.181Cf. Heckler v. Chaney, 470 U.S. 821, 832 (1985)(under APA, agency’s decision notto prosecute or enforce, whether through civil or criminal process, is a decision generallycommitted to an agency’s absolute discretion); Chevron U.S.A., Inc. v. NationalResources Defense Council, Inc., 467 U.S. 837, 843-844 (1984)(where statute is silentor ambiguous, agency’s interpretation is controlling unless arbitrary, capricious, orcontrary to statute).182For example, in Bragg v. Robertson, the plaintiffs brought suit against, inter alia,the West Virginia Division of Environmental Protection and the United States ArmyCorp. of Engineers, alleging the permitting process for mountaintop removal operationsto be in violation of SMCRA, the West Virginia regulatory program approved underSMCRA, NEPA, CWA and the APA. See Bragg v. Robertson, 52 F. Supp. 2d 635 (S.D.W.Va. 1999).183See SMCRA, 30 U.S.C. § 1270(a)(1)(allowing action alleging defendant “to be inviolation”); CWA, 33 U.S.C. 1365(a)(1)(same). Contra CAA, 42 U.S.C.7604(a)(1)(allowing action against defendant “alleged to have violated (if there isevidence that the alleged violation has been repeated) or to be in violation”).

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bring an action against an operator for violations which occurred in thepast only, or “wholly past” violations.184 Because the purpose of citizensuit provisions is to provide a mechanism by which private citizens maysupplement enforcement of the federal environmental statutes, a complaintwhich fails to allege a current violation of the law does not meet theprudential requirements set forth in the statutes.185 Because pollutants areoften emitted periodically but not continuously, it may be difficult, if notimpossible, to properly allege that a violation of law is occurring at theprecise moment the complaint is instituted.186 In this context, the SupremeCourt has held that a “good faith” allegation of an ongoing violation maystate a claim for injunctive relief and civil penalties.187 In the wake of theFourth Circuit’s decision in Laidlaw188 and the Supreme Court’s holdingin Steel Co.,189 it is unclear whether a “good faith” allegation of an ongoingviolation states a claim when the citizen-plaintiff seeks only civil penalties.The Supreme Court’s decision in Laidlaw will probably clarify whethermaking “good faith” allegations remains sufficient to support a citizensuit action.190

The 1990 amendments to the CAA expressly permit suits for pastviolations, but only if they have been repeated.191 Although there is noquestion that Congress can eliminate prudential restrictions for litigants,192

Congress cannot legislate around the “core” Article III standingrequirements.193 Because Article III requires that a plaintiff must showinjury in fact, causation, and redressability, the 1990 amendments to the

184Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., 484 U.S. 49, 64 (1987).185Id. at 60-61.186Id. at 65.187Id.188Friends of the Earth v. Laidlaw Envtl. Servs., Inc., 149 F.3d 303 (4th Cir. 1998), cert.granted, 119 S. Ct. 1111 (1999).189Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83 (1998).190See discussion supra § 7.04[1][a][iii].19142 U.S.C. § 7604(a)(1), (a)(3).192Bennett v. Spear, 520 U.S. 154, 161-170 (1997).193Steel Co., 523 U.S. 83, 118 S. Ct. at 1016-1017.

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Clean Air Act arguably are unconstitutional to the extent they attempt toabrogate these requirements.194

Under SMCRA, a citizen cannot bring an action against a non-governmental operator for a violation of the statute itself.195 Section1270(a)(1) expressly limits actions against non-governmental operatorsto violations of “any rule, regulation, order or permit.”196 SMCRA is uniquein limiting citizen suit actions against private individuals to violations ofrules, regulations, orders or permits. This nuance assures that a mineoperator who is lawfully mining under its permit and the regulations willnot be liable, where the permit or regulations are not in accord with theSMCRA statute itself.197

§ 7.06. Additional Limitations.Because citizen suits are designed to supplement, not supplant,

government enforcement,198 the statutes incorporate mechanisms whichare designed to encourage compliance without litigation and which assurethe government has the opportunity to remain the primary enforcer of thelaw. This section discusses how these procedural mechanisms limit thecitizen-plaintiffs’ ability to bring an action.

[1] — Notice and Delay Requirements.Among the most interesting and frequently litigated elements of citizen

suits are the notice and delay requirements. Because citizen suit statutesare designed to permit citizens to “supplement, not supplant” governmentenforcement, Congress has incorporated into the statutes specific provisionswhich require the putative citizen-plaintiff to give notice to the interestedparties. In a compliance action, the plaintiff must give notice to the allegedviolator and the federal and state regulatory authorities. In CAA and CWAactions, this means that the Administrator of the EPA must be given

194William Funk, “Standing in the Supreme Court and Circuits: October Term 1997,”51 Admin. L. Rev. 343, 347 (1999).19530 U.S.C. § 1270(a)(1).196Id.197Oklahoma Wildlife Fed’n v. Hodel, 642 F. Supp. 569, 571-72 (N.D. Okla. 1986).198Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., 484 U.S. 49, 60 (1987).

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notice.199 In the case of ESA and SMCRA, notice must be given to theSecretary of Interior.200 All statutes require that notice be given to thestate where the alleged violations have occurred. In the case of a mandatoryduty suit, the Administrator or Secretary and the state must be given notice.

After the notice has been given, the citizen must delay filing the actionuntil the statutory period has past. Under most citizen suit statutes, thedelay period is 60 or 90 days.201 The Supreme Court has held that thenotice and delay requirements constitute de facto jurisdictional prerequisitesto suit.202 The notice and delay requirements effectively constitute a“reservation to the [g]overnment of a right of first refusal to pursue theaction initially.”203

The notice usually takes the form of an intent to sue letter. To beeffective, the notice must contain certain minimum information about thenature of the alleged violation. The citizen suit statutes have delegated tothe pertinent agencies the task of prescribing regulations that set forth theexact technical criteria required in a notice.204 Generally, the notice mustprovide sufficient information so that the recipient may determine thestatute, regulation, or other standard which is alleged to have been violated,the persons responsible or involved, and the dates and location of theviolation.205 A citizen need not list every aspect of every violation.206 Inaddition, a citizen need not identify all violations arising from the samegeneral episode.207

199CAA, 42 U.S.C. § 7604(b); CWA, 33 U.S.C. 1365(b).200ESA, 16 U.S.C. § 1540(g)(2); SMCRA, 30 U.S.C. § 1270(b).201ESA, 16 U.S.C. § 1540(g)(2)(60 days); SMCRA, 30 U.S.C. § 1270(b)(same); CWA,33 U.S.C. § 1365(b)(same); CAA, 42 U.S.C. § 7604(b)(same); RCRA, 42 U.S.C. §6972(b)(90 days).202Meghrig v. KFC Western, Inc., 516 U.S. 479, 486-487 (1996); Hallstrom v. TillamookCounty, 493 U.S. 20, 31 (1989).203Bennett v. Spear, 520 U.S. 154, 165 (1997).204See, e.g., SMCRA, 30 U.S.C. § 1270(b)(2) & 30 C.F.R. § 700.13; CWA, 33 U.S.C.§ 1364(b) & 40 C.F.R., Part 135.205TSCA, 40 C.F.R. § 702.62; SMCRA, 30 C.F.R. § 700.13(e); CWA, 40 C.F.R. §§135.3, 135.12; RCRA, 40 C.F.R. § 254.3; CAA, 40 C.F.R. § 54.3; CERCLA, 40 C.F.R.§ 374.3.206Public Interest Research Group v. Hercules, Inc., 50 F.3d 1239, 1248 (3d Cir. 1995).207Id.

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There is an exception to the delay requirement where a party allegesimminent harm.208 An action generally may be brought immediately afternotice where a violation is “an imminent threat to health or safety of theplaintiff or would immediately affect illegal interest of the plaintiff.”209

RCRA allows an action to be brought immediately for a hazardous wastemanagement violation.210 In addition, where a party alleges imminentharm, courts have permitted parties to join related citizen suit claims inthe same suit without any delay.211 One may question whether it makessense to permit a plaintiff to circumvent the delay requirements by virtueof a “hybrid complaint.”212

It remains unresolved as to what should become of the joined claimswhen a court dismisses the imminent harm allegations. Should the courtretain jurisdiction over the joined claims and resolve them on their merits,or should the court dismiss them without prejudice and require the plaintiffto comply with the statutory delay requirements? The extent to which thejoined claims are legally connected and factually related to the dismissedimminent harm allegations, in addition to considerations of judicialeconomy, may be factors in answering this question. It is arguable thatonce the court has found that the statutory notice period has been obviated,the court need not revisit it again. On the other hand, if a court determinedthat the imminent harm allegation was merely a sham in order to circumventthe notice requirement, dismissal would be proper.

[2] — Preemption.There are several ways in which a citizen suit may be preempted. Of

course, a defendant-operator may preempt a compliance action if the

208See, e.g., SMCRA, 30 U.S.C. § 1270(b)(2); RCRA, 42 U.S.C. § 6972(b), (c).20930 U.S.C. § 1270(b)(2).21042 U.S.C. § 6972(b), (c).211Dague v. City of Burlington, 935 F.2d 1343, 1351-1353 (2d Cir. 1991)(where plaintiffalleged hazardous waste management violations, plaintiff was permitted to bring CleanWater Act and additional RCRA claims without complying with the notice and delayrequirements), rev’d in part on other grounds, 505 U.S. 557 (1992).212Id. at 1353.

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operator has come into complete compliance before suit is filed.213 Thefollowing discussion focuses on how and when the enforcing agency’saction may preempt a citizen suit.

[a] — Government Preemption.Under all citizen suit statutes, if the federal or state regulator

commences and is “diligently prosecuting” an action to compel the operatorto comply with the statute, the citizen-plaintiff may not file a separateaction.214 For example, under the CWA, a plaintiff may not commence anaction if “the Administrator or State has commenced and is diligentlyprosecuting a civil or criminal action in a court of the United States, or astate to require compliance with the standard, limitation, or order . . . .”215

Often the citizen-plaintiff is unsatisfied with the perceived insufficientlyzealous action of the government. The citizen-plaintiff often will contestwhether a state agency is “diligently prosecuting” an action. Decisionalauthority has addressed exactly what constitutes diligent prosecution. Ingeneral, an agency which has taken some reasonable action in furtheranceof the enforcement goal will be deemed to be sufficiently diligent so as topreempt an independent action. For example, the Sixth Circuit has heldthat “an enforcing agency must be accorded the latitude to respond tocircumstances that delay remedial projects and warrant reassessment ofcompliance target dates.”216

[b] — Administrative Proceedings.Preemption occurs when an agency is diligently prosecuting an “action

in a court of the United States, or a state.”217 Does this languagecontemplate that an administrative enforcement action qualifies as diligentprosecution? The courts have been inconsistent in answering this question.

213Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 118 S. Ct. 1003, 1017-1018(1998); Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., 484 U.S. 49, 65 (1987).214E.g., SMCRA, 30 U.S.C. § 1270(b)(1)(A); CAA, 42 U.S.C. § 7604(b)(1)(B).21533 U.S.C. § 1365(b)(1)(B).216Jones v. City of Lakeland, 175 F.3d 410, 414 (6th Cir. 1999).217SMCRA, 30 U.S.C. § 1270(b)(1)(B); CWA, 33 U.S.C. § 1365(b)(1)(B); CAA, 42U.S.C. § 7604(b)(1)(B).

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One of the first cases which addressed this issue was Baughman v. BradfordCoal Co.218 In Baughman, the court acknowledged the possibility thatunder certain circumstances an administrative proceeding might constitutea court action within the meaning of the statute.219 Since Baughman, severalcircuit courts of appeal have expressly held that such actions may barcitizens suits.220 Congress has resolved this issue with regard to the CWA,amending the statute to expressly provide that an administrative actionpreempts a citizen suit.221

The fact that the citizen is not a party to an administrative proceedingdoes not necessarily affect the preemptive effect of the administrative action.Under the principle of parens patria, the governmental agency is presumedto be acting in the public’s interest.222 In determining whether theadministrative action should have preclusive effect, however, a court shouldexamine how comparable the administrative action would be to a courtproceeding;223 for example, whether the citizen has the ability to intervenein the administrative proceeding is relevant.

218Baughman v. Bradford Coal Co., 592 F.2d 215, 217-218(3d Cir. 1979).219Id. at 218.220Id.; Jones, 175 F.3d at 415- 417; PMC, Inc. v. Sherwin-Williams Co., 151 F.3d 610,618-619 (7th Cir. 1998)(acknowledging that Congress intended a broad reading of“diligent prosecution,” but that informal action did not preempt RCRA citizen suit);North and South Rivers Watershed Ass’n v. Town of Scituate, 949 F.2d 552, 555-558(1st Cir. 1992); American Canoe Ass’n v. City of Wilson Wastewater Treatment Plant,Nos. 5:96-CV-838-BR(2), 1998 U.S. Dist. LEXIS 7766, at *20 (E.D.N.C. March 31,1998)(unpublished).22133 U.S.C. § 1319(g).222Cf. Menzel v. County Util. Corp., 501 F. Supp. 354 (E.D. Va. 1979), rev’d on othergrounds, 712 F.2d 91 (4th Cir. 1983).223North and South Rivers Watershed Ass’n, 949 F.2d at 555-556; see L.E.A.D. v. ExideCorp., Civ. No. 96-3030, 1999 U.S. Dist. LEXIS 2672, at *97-100 (E.D. Pa. Feb. 19,1999)(unpublished)(collecting cases); Texans United for a Safe Economy Educ. Fund v.Crown Central Petroleum Corp., Civ. A. No. H-97-2427, 1998 U.S. Dist LEXIS 16146,at *4-8 (S.D. Tex. Aug. 3, 1998)(unpublished). But cf. Citizens for a Better Env’t v.Union Oil Co., 83 F.3d 1111 (9th Cir. 1996).

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[c] — Timing.In order for the government prosecution to preempt a citizen suit, the

prosecution must be filed before the citizen suit is filed.224 If the citizensuit is filed first, the citizen suit may proceed regardless of parallelgovernment-initiated action.225 This rule makes logical sense, because thepurpose of providing the government 60- or 90-day notice is to providethe government time to make a determination whether it wishes to takeprimary responsibility for enforcing the statute.226 If the government dalliesbeyond the statutory time provided to it, it is only fair that the citizen maythen proceed with an independent action. Any subsequent “race to thecourthouse” has resulted from the government’s own inaction.227

[d] — Administrative Exhaustion.Where a plaintiff has alleged a violation of the statute, there generally

is no administrative exhaustion requirement.228 Some statutes, however,prohibit the use of citizen suits to collaterally attack the issuance ofpermits.229 SMCRA should likewise be interpreted to prohibit a citizensuit action from collaterally attacking an already-issued permit, as SMCRAhas established a specific process under which permits are issued whichaffords the opportunity for citizens to oppose them at the administrative

224Chesapeake Bay Found. v. American Recovery Co., 769 F.2d 207, 208-209 (4th Cir.1985).225Long Island Soundkeeper Fund, Inc. v. Connecticut, 27 F. Supp. 2d 380, 383-384(E.D.N.Y. 1998).226Bennett v. Spear, 520 U.S. 154, 165 (1997).227See, e.g., Long Island Soundkeeper Fund, 27 F. Supp. 2d at 383-384 (citizen suitfiled 24 minutes before state agency filed identical action was not preempted).228See, e.g., Kentucky Heartwood, Inc. v. Worthington, 20 F. Supp. 2d 1076, 1091-1092 (E.D. Ky. 1998)(ESA).229Chemical Weapons Working Group, Inc. v. United States Dep’t of the Army, 111F.3d 1485 (10th Cir. 1997)(applying RCRA, 42 U.S.C. § 6972(b)(2)(D)); Amigos Bravosv. Molly Corp., Inc., No. 97-2327, 1998 U.S. App. LEXIS 28576, 29 ELR 20303 (10thCir. Nov. 13, 1998)(unpublished)(plaintiff may not challenge permit decision under CWAcitizen suit where plaintiff failed to appeal EPA decision); cf. Shell Offshore, Inc. v.Department of Interior, 997 F. Supp. 23, 34-35 (D.D.C. 1998).

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level and through court action.230 In addition, some statutes haveincorporated additional preemption matters.231 For example, CERCLAincludes a provision that states that “no Federal court shall have jurisdictionunder Federal law . . . to review any challenges to removal or remedialaction selected under [42 U.S.C. § 9604] . . . , or to review an order issuedunder [42 U.S.C. § 9606(a)].232

§ 7.07. Intervention.In many if not most citizen suit actions, there are at least three parties:

the citizen-plaintiff, the state and/or federal government, and the operatoror other interested private party. This section examines the tripartiterelationship of these parties and how under different scenarios each maybecome involved in a citizen suit action.

[1] — Statutory Citizen Intervention.As has been previously discussed, the government may preempt a

citizen suit by either diligently prosecuting an action or by initiating anddiligently prosecuting an action after given notice from the plaintiff of theplaintiff’s intent to sue.233 Most citizen suit provisions provide that anyperson who filed the prescribed notice, but was prohibited from filing anindependent suit due to the government’s commencing and diligentlyprosecuting an action, may intervene in that action as a matter of right.234

Some statutes, however, limit intervention to any person with a directinterest that may be affected, and limits intervention to conditions similar

230Drafters of SMCRA specifically intended that already-issued permits should not besubject to collateral attack. See H.R. Rep. No. 95-218, at 68 (1977)(noting that Congressamended SMCRA “to provide that a citizen plaintiff could not collaterally attack a permitissued under the act through a suit against the permittee for a violation of the act itself”).By challenging an agency’s issuance of a permit in a mandatory duty suit, as in Bragg v.Robertson, 52 F. Supp. 2d 635 (S.D.W. Va. 1999), plaintiffs have arguably circumventedthe limitation which Congress imposed on SMCRA citizen suits.231Razore v. Tulalip Tribes of Washington, 66 F.3d 236, 239-240 (9th Cir. 1995).232Id. at 238-239; see 42 U.S.C. § 9613(h).233See discussion supra § 7.06[2][a].234See, e.g., 30 U.S.C. § 1270(b)(1)(B).

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to Fed. R. Civ. P. 24.235 Such actions are not technically citizen suits,although the citizen’s right to intervene arises directly from their utilizationof the citizen suit notice provisions.

[2] — Government Intervention.In any action under a citizen suit statute, the government, whether

state or federal, may intervene as a matter of right.236 In these actions,often the government will intervene in order to take a slightly differentposition than the citizen-plaintiff or to make certain that the United Statesis involved in any settlement negotiations. Government interventionobviously only applies to cases in which the citizen has filed an actionagainst a private party.

One controversial aspect of citizen suit actions are the resultingsettlements and consent decrees in which they result.237 Because thesesettlements often involve substantial sums, it became apparent that theUnited States had an interest in their formulation.238 In 1990, Congressamended the CAA to provide that consent decrees must be provided to thegovernment 45 days before entry.239 During this time, the United Statesmay provide comments on the decree to the parties or the court, or thegovernment may actually intervene.240 Although there is no correspondingexpress authority in the CWA providing that the United States maycomment, courts have allowed EPA to do so.241

235See, e.g., 42 U.S.C. § 11046(h).236SMCRA 30 U.S.C. § 1270(c)(2); CAA, 42 U.S.C. § 7604(c)(2); CWA, 33 U.S.C. §1365(c)(2).237Citizen suits can be and often are settled out of court. Most citizen suit statutes donot directly address the government’s interest in settlement proceeds. Arguably citizen-plaintiffs have a greater interest to settle than ordinary plaintiffs, because they have asignificant interest in proceeds to which they otherwise would not be entitled. For example,the CAA authorizes that up to $100,000 in any settlement may be diverted to anenvironmental organization for a related supplemental environmental project (SEP). 42U.S.C. § 7604(g)(2).23842 U.S.C. § 7604(c)(3).239CWA, 33 U.S.C. § 1365(c)(3); CAA, 42 U.S.C. § 7604(c)(3).24042 U.S.C. § 7604(c)(3).241Friends of the Earth v. Archer Daniels Midland Co., 780 F. Supp. 95, 98 n.6 (N.D.N.Y.1992).

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[3] — Other Parties.Other private parties commonly have an interest in citizen suit litigation.

A party not named as a defendant may nonetheless have a significant interestin the resolution of a mandatory duty suit or even in a compel andcompliance suit directed at another party. Mandatory duty suits directed atan agency’s failure to take certain actions regarding a specific permit,company, geographical area, or industry will by definition affect theregulated entity or persons and companies which are involved. Sometimesthe agency will not aggressively defend a citizen suit, finding it easier ormore politically feasible to acquiesce to the citizen-plaintiff’s allegationsor to quickly settle the suit.

In these situations, it may become important for the affected businessor industry association to intervene. The federal rules governintervention.242 Generally, a party may intervene as a matter of right where(1) the party has an interest in the property, (2) the disposition of the actionwill impair or impede the party’s interests, and (3) the party is not“adequately represented” by existing parties.243 This may include the abilityto raise a defense which the existing parties to the citizen suit cannotraise.244

§ 7.08. Remedies.Citizen suit statutes provide that plaintiffs may obtain injunctive relief,

civil penalties, attorney’s fees, and in the case of SMCRA, damages. Thissection discusses each of these remedies.

[1] — Injunctions.[a] — Preliminary Injunction.

Once the citizen-plaintiff has filed a complaint, the plaintiff mayimmediately move for a preliminary injunction. Federal courts have theinherent power to issue a preliminary injunction. Citizen-plaintiffs willoften move for a preliminary injunction, where the ultimate purpose of the

242Fed. R. Civ. P. 24.243Id.244Bragg v. Robertson, 183 F.R.D. 494 (S.D.W. Va. 1998)(court permitted property ownersto intervene in mandatory duty mountaintop removal case, where owners could raiseconstitutional arguments unavailable to government).

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suit is to prevent or delay some developmental activity to which the citizenobjects.245

In any case where the plaintiff has moved for a preliminary injunction,the court must balance a series of factors.246 These factors include thelikelihood of irreparable harm to the plaintiff, irreparable harm to thedefendant, likelihood that the plaintiff will succeed on the merits, and thepublic interest.247 For example, in Bragg v. Robertson, the plaintiffssuccessfully obtained a preliminary injunction preventing the issuance ofmining permits to a company building a large-scale mountaintop removalmining operation in Logan County, West Virginia.248 Because of the natureof the environmental interests at stake and the oftentimes irreversibility ofthe development or activity to which the plaintiff objects, courts are moreinclined to grant a preliminary injunction in environmental actions than inother areas of the law.249 Because it is difficult to prove a negative, inpractice, opposing preliminary injunctions or temporary restraining orders(TROs) in these types of cases is particularly difficult.250

Although the citizen suit statutes grant courts discretion in determiningwhether a bond or security must be posted for damages which may beincurred or suffered by an adverse party,251 the federal rules expresslyrequire that a party post a bond.252 While the bond is supposed to bear a

245See, e.g., Bragg v. Robertson, 54 F. Supp. 2d 635 (S.D.W. Va. 1999)(environmentalgroup opposed development of mountaintop removal mining operation).246Id.247Blackwelder Furniture Co. v. Seilig Mfg. Co., 550 F.2d 189 (4th Cir. 1977); 11ACharles Alan Wright et al., Federal Practice & Procedure § 2948, at 131-135 (2d ed.1995).248Bragg, 54 F. Supp. 2d 635.249Cf. 1 Frank P. Grad, Treatise on Environmental Law § 1.05[a] (1999)(observing that“[o]ne recurring aspect of this kind of litigation [i.e., environmental litigation] is that thedevelopment will proceed unless it is halted, and unless it is halted promptly, the veryenvironmental resources sought to be protected may be destroyed or irredeemablydamaged before the legal issues can be resolved”).250Bragg, 54 F. Supp 2d 635.251See, e.g., SMCRA, 30 U.S.C. § 1270(d); CWA, 33 U.S.C. § 1365(d).252Fed. R. Civ. P. 65(c).

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relationship to the damages which the adverse party may suffer, courtswill often attempt to satisfy the bond requirement by imposing whatamounts to only a nominal bond, in fact having no relationship to theimpact to the defendant’s potential damages.253

[b] — Permanent Injunction.All citizen suit statutes provide for permanent injunctive relief as an

available remedy. In the first instance, it is the language of the citizen suitprovision itself which controls determination of whether to award injunctiverelief.254 In most cases, the district court enjoys “equitable discretion”and may weigh countervailing values in assessing whether to grant theinjunction.255 The plaintiff bears the burden of proof in showing that thebalance of harm favors an injunction.256 In some instances, such as in thecase of the ESA, Congress has foreclosed judicial discretion by the languageof the statute itself.257 The injunctive relief may take the form of aprohibitory injunction, requiring the defendant to stop certain actions, or amandatory injunction, requiring the defendant to take certain affirmativesteps.258

[2] — Civil Penalties.Most citizen statutes provide that a plaintiff may seek to impose civil

penalties against operators for violations of the statute.259 The ESA,however, provides that citizens may bring an action only for injunctive

253See, e.g., Bragg, 54 F. Supp. 2d 635 (requiring environmental group to post $5,000bond for preliminary injunction which shut down multi-million dollar mountaintopremoval mining operation).254SMCRA, 30 U.S.C. 1270(a)(district court has jurisdiction to “compel compliance”);CAA, 42 U.S.C. § 7604(a)(district court has jurisdiction to “enforce such an emissionstandard or limitation”); CWA, 33 U.S.C. § 1365(a)(district court has jurisdiction to“enforce such an affluent stand and or limitation”).255Weinberger v. Romero-Barcelo, 456 U.S. 305, 312-314 (1982).256Natural Resources Defense Council v. Watkins, 954 F.2d 974, 983 (4th Cir. 1992).257TVA v. Hill, 437 U.S. 153, 184, 188-194 (1978).25811A Charles Alan Wright et al., Federal Practice and Procedure § 2942, at 57 (2ded. 1995).259See, e.g., SMCRA, 30 U.S.C. § 1268; CWA, 33 U.S.C. § 1319(d)(providing for up to$25,000 per day for each CWA violation).

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relief.260 Civil penalties are only payable to the United States Treasuryand are never paid to the citizen who brought the action.261

Civil penalties cannot be assessed where the operator has come intocomplete compliance before the citizen has filed suit.262 Steel Co. makesit apparent that it must be of paramount importance for an operator to doeverything reasonably within the operator’s control to come into completecompliance when the operator receives notice of the citizen’s intent tosue. If the operator can come into complete compliance before the citizen-plaintiff files the complaint, a good chance exists that the court will beunable to assess any civil penalties against the operator.263

The federal circuits have split as to whether a citizen may pursue civilpenalties against a violator, when the violator has come into completecompliance after the suit has been filed. In Laidlaw, the Fourth Circuitheld that after the defendant polluter came into complete compliance withthe alleged violations after the suit had been filed, the citizen no longerhad standing to pursue civil penalties.264 The Eighth Circuit has held,however, that a polluter should not be able to avoid penalties after “draggingthe citizen suit plaintiff into costly litigation.”265 As previously discussed,the Supreme Court should resolve this question in Laidlaw.266 The EighthCircuit’s analysis is arguably more convincing, as civil penalties arguablydo deter future violations. More importantly, allowing the operator to avoidcivil penalties by voluntarily ceasing the violative conduct after suit wasfiled would eviscerate the very purpose of citizen suit statutes, and nothingwould prohibit the operator from resuming the conduct.267

26016 U.S.C. § 1540(g)(1).261Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 118 S. Ct. 1003, 1018- 1019(1998)(EPCRA requires that penalties must be paid to United States Treasury); Gwaltneyof Smithfield, Ltd. v. Chesapeake Bay Found., 484 U.S. 49, 58-59 (1987).262Steel Co., 523 U.S. 83, 118 S. Ct. at 1018-1019.263Id., 118 S. Ct. at 1018-1019.264Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., 149 F.3d 303, 306-307 (4th Cir.1998), cert. granted, 119 S. Ct. 1111 (1999).265Comfort Lake Assoc. v. Dresel Contracting, Inc., 138 F.3d 351, 356 (8th Cir. 1998).266See discussion supra § 7.04[1][a][iii].267See Tull v. United States, 481 U.S. 412, 422-423 (1987); United States v. W.T. GrantCo., 345 U.S. 629, 632 (1953).

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[3] — Damages.Citizen suits do not create any implied private cause of action

for damages.268 Because citizen suit statutes contain unusually elaborateenforcement provisions, the Supreme Court has held that it cannot beassumed that Congress implicitly intended to authorize any additionaljudicial remedies.269

[a] –– SMCRA.SMCRA explicitly creates a cause of action against an operator for

damages “through the violation . . . of any rule, regulation, order, or permitissued pursuant to this Act.”270 In each primacy state, the state SMCRAstatute similarly creates a private cause of action for damages resultingfrom violations of a rule, regulation, order, or permit.271 While SMCRA’scause of action for damages is set forth in the citizen suit statute, Section1270(f) contains no notice and delay prerequisites to filing suit. Combiningan (a)(1) or (a)(2) suit along with a damages action cannot obviate theformal notice and delay requirements discussed earlier in this chapter. ASMCRA damages action may only be brought in the United States districtwhere the coal mining operation complained of is located, and a successfulplaintiff may obtain attorney’s fees.272 Section 1270(f) of SMCRA createsstrict liability. An operator’s lack of negligence, a plaintiff’s contributorynegligence or assumption of the risk, or the negligence of other third partiesare not defenses to a Section 1270(f) action, at least with respect to liability.It is unresolved whether under certain circumstances a contractual

268Middlesex County Sewerage Auth. v. National Sea Clammers Assoc., 453 U.S. 1, 14(1981).269Id.27030 U.S.C. § 1270(f).271Ala. Code § 9- 16-95(f)(1998); Ark. Code Ann. § 15-58-369(f)(1998); Ill. Rev. Stat.ch 225, para. 710/8.05(d)(1998); Ind. Code Ann. § 14-35-15-12 (West 1998); Iowa CodeAnn. § 207.17(b)(West 1998); Ky. Rev. Stat. Ann. § 350.250(3)(Michie 1998); Md. CodeAnn., Envir. § 15-528 (1998); Miss. Code Ann. § 53-9-67(6)(1998); Mo. Rev. Stat. §444.880(6)(1998); Ohio Rev. Code Ann. § 1513.15(H)(1998); 52 Pa. Cons. Stat. §1396.18c (1998); Va. Code Ann. § 45.1-246.1(G)(Michie 1999); W. Va. Code § 22-3-25(f)(1998).272Section 1270(f); cf. Save Our Cumberland Mountains, Inc. v. Lujan, 963 F.2d 1541(D.C. Cir. 1992)(interpreting 30 U.S.C. § 1270(c)(1)); see discussion supra § 7.04 [3].

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subsidence waiver of support remains a defense to a Section 1270(f)action.273

In order to make out a prima facie SMCRA damages action, a plaintiffmust prove (1) a violation of a rule, regulation, order, or permit; (2) thatthe violation proximately caused the plaintiff’s damages, and (3) themeasure of the damages (including the attorney’s and expert witnessfees).274 The causation element cannot be taken for granted, and must beproven by a “preponderance of the evidence.”275 For example, in Molinaryv. Powell Mountain Coal Co.,276 the plaintiff failed to show that theoperator’s failure to comply with notification to landowner requirementsin the Virginia SMCRA regulation actually caused the plaintiff’s injuries.277

In Molinary, the Virginia agency’s common practice to approve permitswhich did not comply with notification requirements served as an “efficientintervening cause,” thereby breaking the causal chain between thecompany’s improper notification of landowners and the damages resultingfrom the company’s mining.278

[b] — Response Costs.Most citizen suits do not provide for the recovery from third persons

for a party’s past environmental cleanup or response costs, and do notprovide for a statutory indemnity-type action.279 RCRA, for example, doesnot provide for response costs.280 Whether a party may obtain an injunctionunder RCRA requiring a third party to pay current cleanup costs remains

273National Mining Ass’n v. Babbitt, 172 F.2d 906, 916-917 (D.C. Cir. 1999)(holdingthat 30 U.S.C. § 1309a(a)(1) supercedes pre-Act waivers, but refusing to decide whetherabrogation of waivers could amount to a taking as applied in certain situations); RobertE. Beck, “The Current Effort in Congress to Amend the Surface Mining Control andReclamation Act of 1977 (SMCRA),” 8 Fordham Envtl. L.J. 607, 610 (1997).274Molinary v. Powell Mountain Coal Co., 125 F.3d 231, 237 (4th Cir. 1997), cert.denied, 522 S. Ct. 1118 (1998).275Id.276 Id.277Id.278Id.279Meghrig v. KFC Western, Inc., 516 U.S. 479, 484-486 (1996).280Id.

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281Id. at 488; Avondale Fed. Sav. Bank v. Amoco Oil Co., 170 F.3d 692, 694 (7th Cir.1999)(noting that Supreme Court left question of whether private party could seek toobtain an injunction open, but that those facts were not before it, where plaintiff movedfor an injunction, but then went ahead and did the work itself).28242 U.S.C. § 9607(a).283E.g., SMCRA, 30 U.S.C. § 1270(f)(court may award costs and fees to “any party”);CWA, 33 U.S.C. § 1365(d)(court may award costs and fees to “prevailing or substantiallyprevailing party”).284Ruckelshaus v. Sierra Club, 463 U.S. 680, 685-692 (1983); Powder River BasinResource Council v. Babbitt, 54 F.3d 1477, 1486 (10th Cir. 1995).285Powder River Basin Resource Council, 54 F.3d at 1486-87.286City of Burlington v. Dague, 505 U.S. 557, 562 (1992).287Hensley v. Eckerhart, 461 U.S. 424, 433 (1983).288Id. at 434-437.

an open question.281 CERCLA, however, expressly provides for therecovery of past cleanup costs.282

[4] — Attorney’s Fees.All citizen suit statutes provide that a successful party is entitled to

both attorney’s and expert witness’ fees.283 To be entitled to attorney’sfees, the party must show that it obtained some success in the litigation. Ajudgment in the party’s favor is not a necessary prerequisite.284 Whether aparty obtained some success is determined by whether the lawsuit was the“catalyst” for the defendant’s action.285

Courts awarding attorney’s fees under any of the citizen suit statutesutilize the so-called “lodestar” method of ascertaining what constitutes areasonable fee.286 Under the lodestar method, a reasonable fee equals thenumber of hours reasonably expended on the litigation multiplied by areasonable hourly rate.287 Numerous factors may favor an upward ordownward adjustment in the lodestar.288 These include, but are notnecessarily limited to, (1) the time and labor required; (2) the novelty anddifficulty of the questions; (3) the level of skill required; (4) preclusion ofemployment due to acceptance of the case; (5) the customary fee; (6)whether the fee is fixed or contingent; (7) the time limitations imposed bythe client or circumstances; (8) the amount involved and the resultsobtained; (9) the experience, reputation, and ability of the attorney; (10)

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289Rum Creek Coal Sales, Inc. v. Caperton, 31 F.3d 169, 175 (4th Cir. 1994)(citingJohnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974)).290Marbled Murrelet v. Babbitt, 182 F.3d 1091, 1095 (9th Cir. 1999); Razore v. TulalipTribes of Washington, 66 F.3d 236, 240 (9th Cir. 1995).29128 U.S.C. § 1927.292Fed. R. Civ. P. 11; see generally, Eric R. Thiessen, “After a Decade, the PendulumSwings Back: An Examination of the History and Practical Implications of the 1993Amendments to Rule 11,” 45 Drake L. Rev. 271 (1997).293E.g., SMCRA, 30 U.S.C. § 1270(e); CWA, 33 U.S.C. § 1365(e); CAA, 42 U.S.C. §7604(e).294Middlesex County Sewerage Auth. v. National Sea Clammers Assoc., 453 U.S. 1, 7n.10, 15-16 (1981).

the undesirability of the case; (11) the nature and length of the professionalrelationship with the client; and (12) awards in similar cases.289

Finally, citizen suit fee-shifting provisions may allow for fees to beassessed against the citizen-plaintiff under certain limited circumstances.The Ninth Circuit has held that fee awards against plaintiffs should beawarded only if the suit was filed to harass or embarrass the defendant, orthe suit was filed in bad faith.290 The exact circumstances where a feeaward against a citizen-plaintiff is appropriate remains an unresolved issue.Citizen suit defendants may also be eligible for recovery of attorney’s feesfor vexatious litigation,291 or where the citizen-plaintiff has brought anaction without any reasonable basis.292

[5] — Alternatives to Citizen Suits.Most citizen suit statutes contain a “savings clause” which expressly

preserves other statutory and common law actions.293 The savings clausescontained in citizen suit statutes do not, however, obviate in any way theprocedural prerequisites to bringing a citizen suit action.294 Therefore,for example, should a party wish to bring a compliance action against anoperator, the citizen-plaintiff cannot rely on the savings clause tocircumvent the statutory requirements for an action.

§ 7.09. Additional Defenses.This section discusses two of the most relevant, prominent defenses

in citizen suit actions. Because each citizen suit addresses different

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295Sierra Club v. Chevron U.S.A. Inc., 834 F.2d 1517 (9th Cir. 1987); Harmon Indus.,Inc. v. Browner, 19 F. Supp. 2d 988, 998-999 (W.D. Mo. 1998); cf. Arch Mineral Corp. v.Babbitt, 104 F.3d 660 (4th Cir. 1997).29628 U.S.C. § 2462.297See, e.g., 3M Co. v. Browner, 17 F.3d 1453 (D.C. Cir. 1994).298Sierra Club v. Chevron U.S.A. Inc., 834 F.2d 1517, 1523-24.299Harmon Indus., 19 F. Supp. 2d at 998- 999.

environmental concerns, each statute necessarily has its own substantivedefenses which require an examination of the substantive requirementsand regulated activity governed by each statute. Thus, defending citizensuits on the merits requires an examination of the specific statute allegedlyviolated, and is beyond the scope of this chapter. Most citizen suit actionsare, however, potentially susceptible to a statute of limitations or preclusiondefense. Each of these is discussed below.

[1] — Statutes of Limitation.The citizen suit statutes generally do not contain any statutes of

limitation. Courts have held that under 28 U.S.C. Section 2462, a five-yearstatute of limitation applies to citizen suits where the plaintiff seeks civilpenalties.295 Section 2462 states:

Except as otherwise provided by Act of Congress, an action, suitor proceeding for the enforcement of any civil fine, penalty, orforfeiture, pecuniary or otherwise, shall not be entertained unlesscommenced within five years from the date when the claim firstaccrued if, within the same period, the offender or the property isfound within the United States in order that proper service may bemade thereon.296

Courts have held that this statute may apply to prevent awarding civilpenalties where the alleged violation occurred more than five yearsprevious.297 Because the citizen suit statutes require the putative plaintiffto provide notice to the operator and delay filing suit, courts have held thatproviding notice to the alleged violator tolls the statute of limitations duringthe delay period.298 The statute of limitations defense may not be availablewhere the citizen-plaintiff alleges that the violation is a continuing one.299

Under such circumstances, the older violations are considered subsumed

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300Id.301United States v. Telluride Co., 146 F.3d 1241, 1246-47 (10th Cir. 1998)(holdingthat § 2462 does not apply to an injunction, even a “restorative injunction” requiringexpenditures to compensate for prior environmental damage); see National Mining Ass’nv. United States Dep’t of the Interior, 177 F.3d 1, 7-8 n.11 (D.C. Cir. 1999)(holding that§ 2462 does not apply to SMCRA permit blocks and acknowledging its holdingcontradicts the Fourth Circuit’s holding in Arch Mineral Corp., 104 F.3d 660).302Issue preclusion or collateral estoppel “refers to the effect of a judgment in foreclosingrelitigation of a matter that has been litigated and decided.” Migra v. Warren City SchoolDist., 465 U.S. 75, 77 n.1 (1984). Claim preclusion or res judicata refers “to the preclusiveeffect of a judgment in foreclosing litigation of matters that should have been raised inan earlier suit.” Id.303Chemical Weapons Working Group, Inc. v. United States Dep’t of the Army, 990 F.Supp. 1316, 1318-20 (D. Utah), aff ’d , 111 F.3d 1485 (10th Cir. 1997).304Id.30528 U.S.C. § 1738; Marrese v. American Academy of Orthopaedic Surgeons, 470U.S. 373, 379-381 (1985); Migra, 465 U.S. at 81.

into the present ones.300 Because Section 2462 only applies to civilpenalties, there is no statute of limitations where the relief sought is aninjunction.301

[2] — Issue and Claim Preclusion.The judicial doctrines of issue and claim preclusion may bar citizen

suits under certain circumstances.302 Issue preclusion may bar a citizen-plaintiff from relitigating an issue which has already been decided in aprior proceeding in which the citizen took part.303 This situation will mostoften occur when the citizen, who has participated in a state administrativeor court action to its conclusion and is unsatisfied with the outcome, thenattempts to relitigate the issues in federal court. For example, in ChemicalWeapons Working Group, Inc. v. United States Department of the Army,304

the Tenth Circuit Court of Appeals held that plaintiffs, who fullyparticipated in state administrative proceedings, could not subsequentlyfile a RCRA citizen suit challenging the factual finding of the administrativeproceedings. In ascertaining the preclusive effect of the prior stateproceedings, the federal court must determine whether the state wouldgive preclusive effect to the proceeding.305

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306See, e.g., Smith v. Consolidation Coal Co., 7 F. Supp. 2d 751 (W.D. Va. 1998).307Davis v. Sun Oil Co., 148 F.3d 606 (6th Cir. 1998).308Id. at 608.309Id. at 611-612.310Harmon Indus. v. Browner, 19 F. Supp. 2d 988 (W.D. Mo. 1998).

More often, courts have applied claim preclusion to bar a citizen suitaction which raises issues which should have been raised in a prior suit.306

For example, in Davis v. Sun Oil Co.,307 the plaintiffs purchased a parcelof property from the defendants which they later determined wascontaminated with gasoline. The defendants executed an agreement to cleanup the property, but failed to do so. The plaintiffs brought an action forbreach of contract in state court which reached a final adjudication.308

Unsatisfied, the plaintiffs subsequently brought an action under RCRA.Finding that both cases arose from the same cause of action and that theplaintiffs could have joined their RCRA claim with the breach of contractclaim, the court found that res judicata barred the RCRA action.309 Claimpreclusion may also apply where an operator and a state agency haveentered into a binding consent decree.310

§ 7.10. Conclusion.Congress has included citizen suit statutes in virtually every

environmental protection law to provide the public with an active role inthe enforcement of those laws. That role is however supplemental, notprimary or paramount. While Congress has great leeway and authority todecide who may bring these suits in the federal courts, it cannot abrogatethe constitutional requirement that the courts may only adjudicate “casesor controversies.”

Despite the courts’ tightening of the standards for plaintiff standing,citizen suits remain a viable and effective alternative enforcement tool.Compliance actions can prove very expensive for operators. Not only arethere costs in defending such a suit, which can be significant, but wherethe citizen-plaintiff prevails there may be the ultimate costs of compliance,plaintiff’s attorneys fees and possibly civil penalties awarded to thegovernment. Mandatory duty suits can be even more devastating. Thesesuits may result in judicially-mandated changes of an agency’s policies —

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changes that can directly affect every company operating under the agency’ssupervision. Many times the government in a mandatory duty suit doesnot have the incentive to actively litigate and defend the action, finding iteasier and more politically expedient to settle. This can result in changesin regulations, rules and policies that are onerous to the regulated industry.

For these reasons, counsel who represent clients in the mineral andenergy industries should be prepared to aggressively defend complianceactions. Likewise, affected companies and industry organizations shouldalways consider early intervention and active participation in mandatoryduty actions which may adversely affect their interests.

§ 7.10

Editor’s note: On January 12, 2000 the United States Supreme Courtdecided Friends of the Earth, Inc. v. Laidlaw Environmental Services,Inc., reversing and remanding the Fourth Circuit decision discussedextensively in this chapter. The authors have provided an Appendix tothis chapter at page 393, discussing the impact of this decision.

Timothy W. GreshamEric R. Thiessen

Penn, Stuart & EskridgeAbingdon, Virginia

Introduction.On January 12, 2000, the United States Supreme Court decided

Friends of Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc.1 Ina seven- member majority opinion,2 the Court reversed the Fourth CircuitCourt of Appeals’ decision3 and remanded the case for furtherconsideration. This appendix briefly examines the Laidlaw decision andits effect on the discussion of standing and mootness contained in Chapter7, An Overview of Citizen Suits Affecting the Mineral and EnergyIndustries.

Chapter 7 discusses the Fourth Circuit’s decision in Laidlaw in fourplaces. First, the chapter cites the Laidlaw decision under the section onredressability element of standing.4 Second, the chapter discusses it inthe section on the doctrine of mootness.5 Third, the chapter cites the casein the discussion of good faith averments that violations continue.6 Finally,the chapter discusses Laidlaw in the section on civil penalties as a remedyin citizen suits.7 While the Supreme Court decision deals with these issues,the Court also spent a considerable amount of time on the issue of injuryin fact, an issue not addressed by the Fourth Circuit.

The Majority Opinion.In disposing of the case on mootness grounds, the Fourth Circuit

assumed the plaintiffs had initial standing. However, because the Supreme

1 Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., No. 98-822, 68 U.S.L.W.4044, 2000 U.S. LEXIS 501 (U.S. January 12, 2000).2 Justice Ginsburg delivered the opinion of the Court, in which Chief Justice Rehnquistand Justices Breyer, Kennedy, O’Connor, Souter and Stevens joined.3 Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 149 F.3d 303 (4th Cir. 1998).4 See § 7.04[1][a][iii].5 See § 7.04[1][c].6 See § 7.05[2].7 See § 7.08[2].

Cite as 20 Energy & Min. L. Inst. ch. 7 App. (2000)

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Court held that the Fourth Circuit erred in dismissing the case as moot, theCourt had an obligation to decide whether plaintiffs initially had standing.8

The Court rejected the defendant’s argument that plaintiffs did not proveinjury in fact. In asserting that the plaintiffs failed to establish injury infact, the defendant relied upon the district court’s finding that its violationshad caused no environmental harm or health risk. To establish injury infact for standing purposes, the Court held the relevant showing “is not injuryto the environment but injury to the plaintiff.”9 According to the Court,insisting on proof of environmental over personal injury for standing“raise[s] the standing hurdle higher than the necessary showing for successon the merits in an action alleging noncompliance with an NPDES permit.”10

Examining the affidavits, sworn statements, and testimony of variousmembers of the plaintiffs’ organizations, the Court held they “adequatelydocumented injury in fact.”11 The statements showed the individuals usedthe affected waterway and were persons “for whom the aesthetic andrecreational values of the area will be lessened” by the defendant’sdischarges.12 The Court held these statements were not the “generalaverments” and “conclusory allegations,” nor the speculative “‘some day’intentions” the Court found inadequate and insufficient in prior cases.13

The decision casts doubt on the continued viability of several casescited and discussed on the issue of standing in Chapter 7. In 1997, theThird Circuit held that plaintiffs lacked standing to sue, because they failedto allege in the complaint or their affidavits any injury to the waterwaythey used.14 In 1999, the Fourth Circuit took a similar view.15 The Fifth

8 Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 68 U.S.L.W. at 4048.9 Id.10 Id.11 Id. at 4049.12 Id. (quoting Sierra Club v. Morton, 405 U.S. 727, 735 (1972)).13 Id. (quoting Lujan v. National Wildlife Fed’n, 497 U.S. 871, 888 (1990); Lujan v.Defenders of Wildlife, 504 U.S. 555, 564 (1992)).14 Public Interest Research Group of New Jersey, Inc. v. Magnesium Elektron, Inc., 123F.3d 111 (3d Cir. 1997).15 Friends of the Earth, Inc. v. Gaston Copper Recycling Corp., 179 F.3d 107 (4th Cir.1999). The Fourth Circuit granted rehearing en banc on August 3, 1999, and heard

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Circuit has required evidence that the defendant illegally discharged intoor very close to the waterway that the plaintiffs or their members use.16

The court there found the plaintiffs lacked standing, not on injury in factgrounds, but because the plaintiffs could not prove their injuries were“fairly traceable” to the defendant’s conduct.17 Neither the SupremeCourt’s majority opinion nor Justice Scalia’s dissenting opinion specificallyaddresses this element of standing.18

In Friends of the Earth, Inc. v. Crown Central Petroleum Corp.19 andFriends of the Earth, Inc. v. Gaston Copper Recycling Corp.,20 the courtsheld that plaintiffs must produce some evidence, either in response to amotion for summary judgment or at trial, to prove that plaintiffs’ injuriesare “fairly traceable” to the illegal discharges.21 Both courts found thelink between the injury to plaintiffs’ recreational, aesthetic or economicinterests and the defendants’ conduct too attenuated to support the “fairlytraceable” element.22 In Laidlaw, the defendant discharged directly into

arguments on October 25, 1999. While at the time of this writing no decision has yet beenissued, the court vacated the panel decision on December 21, 1999.16 Friends of the Earth, Inc. v. Crown Central Petroleum Corp., 95 F.3d 358 (5th Cir.1996).17 Id. at 361. The Fifth Circuit assumed, without deciding, that the plaintiffs had proveninjury in fact. The Fourth Circuit in Gaston Copper first found no injury in fact, butassuming its existence, also found the injuries were not “fairly traceable” to the defendant’sdischarges. 179 F.3d at 114-116.18 Justice Scalia did state “a lack of demonstrable harm to the environment will translate,as it plainly does here, into a lack of demonstrable harm to citizen plaintiffs.” Friends ofthe Earth v. Laidlaw Envtl. Servs., Inc., 68 U.S.L.W. at 4053 (Scalia, J., dissenting).19 Friends of the Earth, Inc. v. Crown Central Petroleum Corp., 95 F.3d 358 (5th Cir.1996).20 Friends of the Earth, Inc. v. Gaston Copper Recycling Corp., 179 F.3d 107 (4th Cir.1999).21 The court decided the standing issue in Crown Central on defendant’s motion forsummary judgment. 95 F.3d at 360. The issue in Gaston Copper was decided after abench trial. 179 F.3d at 109.22 In Crown Central, plaintiffs used a waterway three tributaries and 18 miles downstreamof defendant’s discharge. 95 F.3d at 361. In Gaston Copper, one the waterways the plaintiffsused was 10 to 15 miles downstream of the discharge occurring in a different waterway.The other waterway, a pond, was four miles downstream with 31 intervening ponds andthree other tributaries feeding into the allegedly affected pond. 179 F.3d at 114-115.

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the North Tyger River, the waterway the plaintiffs alleged they used.23

Obviously, a plaintiff’s concerns that a waterway looks and smells polluted,causing him to forego use of the waterway, are “fairly traceable” to adefendant’s illegal discharges directly into the same waterway. Thereforethe facts of Laidlaw did not afford the Supreme Court an opportunity torefine its “fairly traceable” jurisprudence.

The proof required by Crown Central and Gaston Copper does notnecessarily require proof of environmental harm, but requires somepalpable effect on the waterway the plaintiffs use in order to provide someobjective basis for the plaintiffs’ “concerns.”24 The Supreme Court’sdecision in Laidlaw may have overruled these cases to the extent theyrequire some proof that the defendant’s conduct produced some objectiveharm to the environment. Because the Court did not address the “fairlytraceable” element, however, these cases may retain their viability. Theen banc decision of the Fourth Circuit in Gaston Copper should helpanswer this question.

The Court next considered the defendant's argument that plaintiffsdid not have standing due to lack of redressability. The Fourth Circuit,relying on Steel Co. v. Citizens for a Better Environment,25 had held thatthe plaintiffs failed to prove “redressability” because the only remainingremedy was the imposition of civil penalties, which the Fourth Circuitstated could not redress their injury. Since redressability, like all elementsof standing, must exist at all stages of the litigation, the lack of this elementrendered the case moot. As we predicted in Chapter 7, the Supreme Courtdisagreed with the Fourth Circuit and held that civil penalties can and dodeter future violations.26 The Court further held that civil penalties, evenif payable to the government, can redress the actual or threatened injuryof a private party, as the penalty “abates the conduct and prevents its

23 Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 68 U.S.L.W. at 4047-4048.24 See Crown Central, 95 F.3d at 360- 361 (citing Public Interest Research Group v.Powell Duffryn Terminals, Inc., 913 F.2d 64, 72 (3d Cir. 1990), cert. denied, 498 U.S.1109 (1991)).25 Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83 (1998).26 Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 68 U.S.L.W. at 4049 (quotingTull v. United States, 481 U.S. 412, 422-423 (1987)); see § 7.08[2].

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recurrence.”27 The Court distinguished Steel Co., holding that Steel Co.established only that plaintiffs may not sue for civil penalties for whollypast violations, and that Steel Co. did not address whether civil penaltiescould be sought for continuing violations.28 While the Court recognizedthe deterrent effect of civil penalties may become so remote as to no longersupport standing, that point had not been reached in this case, so the Courtfound no need to explore those “outer limits.”29

The Court then addressed mootness. The Court held that the only“conceivable basis”30 for the Fourth Circuit’s finding the case moot wasthe defendant’s voluntary compliance. However, the Court noted that theparty asserting mootness by voluntary compliance bears a heavy burdento persuade a court that “subsequent events made it absolutely clear thatthe allegedly wrongful behavior could not reasonably be expected torecur.”31 According to the Court, the Fourth Circuit’s reliance on SteelCo. to justify disposing of the case as moot confused mootness withstanding. This was understandable, the Court stated, given its prior holdingsthat mootness was “the doctrine of standing set in a time frame.”32 TheCourt stated that this was not, however, a comprehensive description ofmootness. The Court referred to circumstances that would not supportstanding, but would prevent mootness, including voluntary complianceand activities “capable of repetition, yet evading review.”33 In concludingits discussion of the mootness issue, the Court held that whether thedefendant’s compliance after suit or its closing of the facility mooted thecase were disputed factual matters that could be considered on remand.34

27 Id.28 Id. at 4050 (noting Steel Co.’s agreement with Gwaltney of Smithfield, Inc. v.Chesapeake Bay Found., 484 U.S. 49 (1987)).29 Id.30 Id.31 Id. (quoting United States v. Concentrated Phosphate Export Ass’n, 393 U.S. 199,203 (1968)).32 Id. (quoting Arizonans for Official English v. Arizona, 520 U.S. 43, 68 (1997)).33 Id. at 4050-4051.34 Id. at 4051-4052.

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Finally, the Court found consideration of plaintiffs’ argument thatthey were entitled to attorneys’ fees under the “catalyst” theorypremature,35 as the district court had not issued any order denying orawarding any attorneys’ fees.36 Apparently, the district court will addressthis issue on remand.

The Dissenting Opinion.Justice Scalia, joined by Justice Thomas, dissented from the

decision.37 He agreed with the majority to a point, in holding that therelevant injury was the injury to the plaintiff, not the environment, statingthat previous decisions held environmental harm was insufficient, unlessthe plaintiff could show personal harm. However, Justice Scalia arguedthat a lack of harm to the environment can, as in this case, translate to alack of harm to the plaintiff. Justice Scalia would require something morethan plaintiffs’ “on-going concerns.”38

Justice Scalia further argued that Steel Co.’s holding regarding civilpenalties should apply to all situations where private litigants seekimposition of civil penalties payable to the government. First, he reasonedthat the satisfaction of redressability by “the indirect private consequencesof a public penalty”39 was “speculative as a matter of law.”40 Second,whether the imposition of a civil penalty has any deterrent effect wasspeculative as a matter of fact.41 Finally, Justice Scalia argued that theCourt’s holding allows private citizens to exercise powers reserved to theExecutive Branch under the Constitution.42

35 For a discussion of the catalyst test, see § 7.08[4].36 Id. at 4052.37 Id. at 4053 (Scalia, J., dissenting).38 Id. at 4053 (Scalia, J, dissenting).39 Id. at 4054 (Scalia, J., dissenting).40 Id. at 4055 (Scalia, J., dissenting).41 Id. at 4055-4056 (Scalia, J., dissenting).42 Id. at 4056 (Scalia, J., dissenting) (citing U.S. Const. art. II, §§ 2, 3). Justice Scaliareferred to Justice Kennedy’s concurring opinion that this issue raises “[d]ifficult andfundamental questions” best reserved for a later case. Id. at 4053 (Kennedy, J., concurring).Justice Scalia has long been concerned with the proper role of the courts in democraticgovernment. See Antonin Scalia, The Doctrine of Standing as an Essential Element ofthe Separation of Powers, 17 Suffolk U.L. Rev. 881, 881 (1983).

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Conclusion.The Supreme Court’s decision in Laidlaw halts the direction the Court

had been taking on standing in environmental citizen suits from Lujan v.National Wildlife Federation43 through Steel Co.44 The decision obviouslymakes it easier for environmental organizations and their members toestablish standing to bring citizen suits based on subjective “concerns”45

and to maintain those suits, where the only remaining remedy is theimposition of civil penalties. It does not specifically address whetherplaintiffs must show some objective, causal relationship between theirinjuries and the defendant’s conduct. At least the decision clarifies SteelCo.,46 harmonizing it with Gwaltney47 and affirms that citizen plaintiffscannot sue under environmental citizen suits for “wholly past violations.”

43 Lujan v. National Wildlife Fed’n, 497 U.S. 871 (1990).44 Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83 (1998).45 “If there are permit violations, and a member of a plaintiff environmental organizationlives near the offending plant, it would be difficult not to satisfy today’s lenient standard.”Friends of the Earth v. Laidlaw Envtl. Servs., Inc., 68 U.S.L.W. at 4054, (Scalia, J.,dissenting).46 Steel Co., 523 U.S. 83.47 Gwaltney of Smithfield, Inc. v. Chesapeake Bay Found., 484 U.S. 49 (1987).

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