Dubois v. Thomas

In 1985, Berton and Rose Marie Dubois (plaintiffs) notified Lee Thomas (defendant), the administrator of the Environmental Protection Agency (EPA), that the Dubois intended to bring a citizen suit against the municipality of Wheatland because Wheatland’s sewage treatment system had caused a creek running through the Dubois’ property to become contaminated by raw sewage. In 1986, the Missouri Department of Natural Resources (MDNR) brought an enforcement action against Wheatland. The action was settled. Wheatland agreed to correct the sewage-overflow problem but failed to do so. Section 505(a)(2) of the Federal Water Pollution Control Act (FWPCA) empowered private citizens to sue the administrator of the EPA for failing to perform nondiscretionary duties. The Dubois sued EPA administrator Lee Thomas (defendant), arguing that Thomas had a nondiscretionary duty to bring an enforcement action against Wheatland. The duties of the EPA administrator to investigate alleged violations and bring enforcement actions were set out in FWPCA § 309(a)(3). The Dubois argued that those duties were mandatory. The administrator argued that the duties were discretionary. The legislative history of § 309(a)(3) included the remarks of one legislator stating that the administrator had an affirmative duty to investigate alleged violations. Additionally, an earlier case had interpreted the phrase “shall issue an order” in § 309(a)(3) to mean that the administrator’s duty to investigate was mandatory. The legislative history to § 309(b), a related provision, said that the administrator was authorized to bring enforcement actions. Also, FWPCA § 505(a)(1) gave private citizens a right to sue polluters in private citizen suits. The district court ruled that the administrator’s duty to investigate and prosecute alleged pollution was mandatory because it was consistent with the spirit of the FWPCA to give private citizens the power to access federal enforcement powers. Thomas appealed.