Courts Narrow Citizen Suit Potential

Posted on February 18, 2016 by Donald Shandy

Citizen suits under federal environmental laws have been under fire through criticism of “sue and settle” where agencies, in particular the U.S. EPA, have been accused of intentionally relinquishing statutory discretion for the sake of settling lawsuits without participation by affected third parties.  From this perspective, the scope of citizen suits has broadened.  However, two recent federal circuit court opinions curb this growth. 

On January 6, 2016, the Third Circuit and Sixth Circuit Courts of Appeals issued opinions that underscore certain limitations in the citizen suit provisions.  The Third Circuit examined a Clean Air Act citizen suit in Group Against Smog and Pollution, Inc. v. Shenango Inc. (No. 15-2041) (GASP). The Sixth Circuit examined a Clean Water Act citizen suit in Askins v. Ohio Dept. of Agriculture, Ohio Envtl. Prot. Agency, U.S. EPA (No. 15-3147). Both courts affirmed dismissal of the citizen suits by the district courts based on statutory limitations Congress placed in each statute.

These two cases highlight a couple of important components of citizen suits.  First, citizen suits are to serve as a backup to the non-discretionary functions and enforcement responsibilities of the States and the EPA.  As the U.S. Supreme Court has said, “the citizen suit is meant to supplement rather than to supplant governmental action.”  The Sixth Circuit stated, “Paradoxically, [Plaintiffs’] expansive reading of the citizen-suit provision would grant citizen greater enforcement authority than the U.S. EPA. . . . Congress did not intend to give citizens greater and faster enforcement authority against a state than the U.S. EPA.” 

The other important component highlighted is the role of the “diligent prosecution bar” against citizen suits.  Citizen suits are prohibited if the EPA or State agency “has commenced and is diligently prosecuting” the matter.  While most courts seem willing to restrict citizen suits when there is clear prosecution (civil or criminal) in a state or federal court, the answer is less clear when there is no active or concluded matter at the courthouse or the enforcement action is only administrative. In GASP, the Third Circuit slightly tilted the bar in favor of the agency and regulated entity by concluding that if the agency has diligently prosecuted a suit, the presence of a final judgment, consent decree, or consent order and agreement would likely prevent a citizen suit challenge.  This is logical given that environmental enforcement proceedings that are filed in court often, if not always, result in a judicially enforceable consent decree or consent order and agreement in which the regulated entity must fulfill specified obligations or be subject to stipulated penalties. It also provides certainty to the agreement reached between the agency and the regulated entity, which benefits all involved. 

While these recent decisions were not momentous court opinions, the Third and Sixth Circuits did provide a bit more clarity to the role citizen and how our environmental laws are enforced.  In this arena, I think we all would agree that a little clarity can go a long way.



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