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Environmental Citizen Suits 101

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Environmental Citizen Suits 101

Learn what it takes to develop and litigate citizen suits to enforce our country’s landmark environmental laws! This course will cover the basic purposes of citizen suits; the remedies available to successful litigants; the key steps involved in developing and filing citizen suits; and trends that affect the value and viability of citizen suits as a tool.

Presenters

Selena Kyle
Senior Attorney and Managing Litigator
Natural Resources Defense Council

Transcript

Selena Kyle: Hi everyone. I'm Selena Kyle and I'm a senior litigator and managing attorney at the Natural Resources Defense Council, which most people call NRDC for short. We're not for-profit membership supported organization that advocates to protect environment and public health. I've been with NRDC for about 15 years now. And that whole time, my practice has included developing and filing citizen suits under some of the major federal environmental and public health laws I'm going to be talking about today.

So I'll start with a roadmap of what I'm going to cover. I'll start by discussing what citizen suits are and what purposes Congress had for writing citizen suit provisions into some of our major federal environmental laws. After that, I'll survey some of the major laws that include citizen suit provisions and mention an alternative way that you may be able to enforce federal environmental laws that don't conclude those provisions.

Next I'll talk about the main issues or types of claims you can present through citizen suit provisions and the key remedies that are available under those provisions and through some related government policy and practice around citizen suits. Next I'll talk about the mechanics of developing and filing a citizen suit and some of the key things to be ready for as a lawyer pursuing one of these cases. I'll talk there about standing requirements under article 3 of the federal constitution.

I'll also talk about the requirements to provide notice to the prospective defendant and certain government agencies. I'll talk about the potential for preclusive action by government agencies and intervention by those agencies. I'll touch on venue options. I'll talk about the process of litigating from a complaint to final remedy, and then I'll talk about the possibility of recovering attorney's fees and costs from the other side if you're in a position of representing a plaintiff in such a suit and have enough success that you're in a position to present a fee claim.

And along the way, I'll include observations on trends and practice tips from my own experience. So citizen suits, what are they, what are they for, what laws provide for them? So citizen suit is a label that Congress gave to the provisions I'm going to be talking about today. And in this context, citizen just means a person whose interest is or maybe harmed by some violation of one of the laws that they're looking to enforce.

So for example, in the Clean Water Act, the main citizen suit language is at 33 US code 1365. And in subsection G you'll see that it says for purposes of that section, the citizen term just means a person or persons having an interest, which is or may be adversely affected. So what's the point of citizen suits? What are they for? Well, they allow private people like you and me and organizations like NRDC to enforce laws that benefit them or their memberships in the case of organizations directly without having to wait for the government to step in and do its own enforcement work.

Congress provided for citizen enforcement because it recognized that not all violations would be caught and enforced by the government. In the case of environmental public health laws like we're talking about today, the classic government enforcer is EPA, and it could be either federal EPA or a state equivalent agency. Of course, those agencies can be overburdened. They may have other priorities. They may face political or financial pressure not to take on certain cases.

And Congress recognized that and wanted to provide a backstop and a complimentary mechanism where for whatever reason the government enforcers are not acting to pursue violations. So they provided for private citizens to serve as effectively attorneys general alongside the government. There's some discussion of this, for example, in the legislative history to the Clean Air Act citizen supervision from the early to mid '70s, legislative history talks about how this would further the goal of cleaning the air and further democratic empowerment and that it was important because there's parallels to relying exclusively on government entities that may not have the capacity or the will to monitor, enforce all violations.

And that complimentary role for private citizens, it's reflected in some of those special provisions I'll talk about today. For example, provisions around being able to recover your fees and costs from the other side in certain circumstances, if you're representing a plaintiff, provisions around having to notify government regulators as well as your perspective defendant before you sue and provisions for the government to seek to intervene in your case.

And there's some discussion of those provisions and how they further the purposes of citizen suits in the Bennett v. Spear decision from the US Supreme Court, that's at 520 US 154165. So what federal environmental and public health laws provide for citizen suits and which of these matter of course is going to depend on the situation that you're dealing with as in any field of law? But there's a set of environmental laws with citizen supervisions that are used pretty frequently.

And those are first of all, the Clean Air Act, there's a citizen supervision at 42 US code is 7604 of the Clean Air Act that I've used. Clean Water Act has its citizen suit provision at 33 USC 1365, the Safe Drinking Water Act or SDWA for short as the name signals that concerns the safety of public drinking water and was the foundation of the Flint litigation that NRDC did among other matters. The citizen supervision in SDWA is at 42 US code 300J-8.

There's another citizen supervision that NRDC has used frequently. It's not as widely used probably as the others I just mentioned, but it is in the Resource Conservation and Recovery Act, or RCRA for short. RCRA concerns the safe management and disposal of waste. And there's a citizen suit provision in RCRA at 42 US code 6972. So those are some of the major ones that we use in NRDC's practice and that other national environmental groups that do advocacy on behalf of the environment and public health tend to use.

There are other citizen suit provisions. Some of the examples of others are the Endangered Species Act at 16 US code 1540 and the Toxic Substances Control Act, TSCA for short at 15 USC 2619. So what if you're looking at a law that you think fits your facts and that you want to enforce on behalf of your clients and you can't find a citizen suit provision? If you find yourself in that situation, take a look at the Administrative Procedure Act at 5 US code 706. That provides a number of claims that you may be able to present against federal agencies.

And the bases are specified in 706, but the basic list is the agency is required to do something by another federal law that they have unlawfully withheld or delayed. So for example, the law provides a deadline to make a certain decision, say about how to protect a species or limit fishing, something like that and the agency blew the deadline and didn't make the decision. Another basis for APA lawsuit would be the agency did something in a timely way, but it was based on reasoning that was arbitrary given the facts before the agency or reasoning that was inconsistent with the governing law, with the standards in there, and maybe even prohibited by the governing law.

So those APA lawsuits can be a valuable alternative if it would be productive for you to sue a government agency for either failing to regulate or regulate in a way that's arbitrary or inconsistent with what some other federal law that's designed to protect the environment or public health requires them to do. The APA will not help you if you need to try to enforce one of those laws against a private defendant and the remedies and the scope of evidence under the APA are a lot narrower than under citizen suit provisions.

As I'll talk about in a minute, citizen suit provisions typically allow you to do things like pursue discovery and request civil penalties and injunctive relief against private parties. None of that's available under the APA and cases under the APA because this is specified in 5 USC 706 are also typically decided on an administrative record, which is basically a paper record that's composed of the material that was before the agency and that was considered directly or indirectly by agency decision makers.

So the APA is not a citizen suit law, but it's an important alternative to keep in mind and it's very frequently used by environmental impact litigators including NRDC. Now I'm going to move on to talk about the citizen suit provisions. So what kinds of claims do they allow you to pursue typically and what kinds of remedies are available? So let's start with claims or what kinds of violations you can pursue.

So this is going to vary from law to law, and it's one reason it's really important to keep returning to the text of the citizen suit provision that you may want to use as you're thinking about developing one or defending against one. But in general, you'll see that the citizen supervisions tend to authorize some combination of the following three kinds of lawsuits.

So most commonly these provisions allow you to sue polluters for releasing pollution and violation of some standard or requirement that's specified somewhere else in the law or in some implementing regulation or in a permit that the law provides to be issued. So the classic examples are someone is violating a pollution limit in a Clean Water Act permit, that they have to release water pollution into a river from an industrial site or similarly, someone is in violation of the Clean Air Act permit that allows them to release a certain amount of industrial air pollution and they've gone above those limits.

So an example of a citizen suit provision that would allow you to present that kind of case is the Clean Water Act at 33 US code 1365A-1 allows you to see any person who's alleged to be in violation of an effluent standard or limitation under that chapter, and that would be the pollution limit or an order issued by the administrator or state with respect to set standard or limitation, and often that would refer to something like a permit that's been issued under the color on authority of one of these federal environmental laws.

Sometimes those permits are issued directly by federal EPA or another federal agency that may be charged with permitting but often they are issued directly by a state that's gotten permission from the federal government to administer certain parts of these pollution and other environmental laws. So that's probably the most classic kind of violation or issue that can pursue through a citizen suit provision. There's someone who's operating in violation of some standard or requirement, usually a pollution limit. It may be in an implementing regulation, it may be in a permit that they hold.

And an important thing to keep in mind here is typically the citizen supervisions allow you to see the polluter, whether it's a private entity or a public one. And so maybe that you are a public entity that's also polluting. So for example, a large municipality that runs a stormwater system that collects storm water that runs off streets and parking lots and then releases that water into a river, say. That municipality likely has a Clean Water Act permit for its municipal's stormwater system and that permit should incorporate pollution limits.

And if the public entity is violating those limits, that would give you a basis for a citizen suit to enforce the limits because even though it's a public entity, you're suing them in their capacity as a polluter rather than a regulator. So the more classic defendant is a private party, but these citizen suit provisions can also be used to redress violations by public entities. So that's something that NRDC and other groups have done.

So we've talked about this scenario of using citizen suit provisions to go after violations of pollution standards. Another common way that they're used is to act against someone who's operating without a permit that they're required to have under one of these laws. So for example, the Clean Air Act citizen suit provision at 42 US code 7604A-1C authorizes you to sue any person who tries to build a major new source of air pollution without getting a permit, and the terms of that permit are supposed to be tied to among other things, a local ambient air quality.

Another thing to keep an eye on is there may be additional language in a citizen suit provision that allows you to do something a little different. So for example, to sue someone for contributing to some undesirable condition that's specified in the provision. So it's a little bit different than a violation of say like a numeric pollution standard from a perimeter regulation. An example here would be RCRA, the Resource Conservation and Recovery Act.

That citizen suit provision, if you look at 42 US code 6972AB-1, you'll see it allows you to sue people who've contributed the disposal of waste in a way that may present an imminent and substantial endangerment to health or the environment. So that's an example of a standard that the citizen suit provision allows you to enforce. It's a little bit different than pollution standard. And here again, the classic defendant is private, but it may also be a public entity if that entity is polluting.

So for example, NRDC has pursued litigation against public landfill operators for violations of the RCRA imminent and substantial endangerment standard that I just mentioned. Sometimes the citizen suit provisions are pretty explicit about which standards they incorporate and allow you to enforce as a private individual or on behalf of an organization. Sometimes the language is broad and often you're going to need to cross reference other parts of the statute and case law to figure out what kinds of behavior give you an enforceable violation.

So for example going back to RCRA again, if you look at 42 USC 6972-A1A, that authorizes you to sue any person, including the United States and any other government instrumentality or agency to the extent that the 11th amendment to the constitution allows you, who's alleged to be in violation of any permit standard regulation, condition, requirement, prohibition, or order which has become effective pursuant to this chapter. So obviously you're going to need to spend more time with the rest of that chapter to figure out what your viable claims are, right?

The citizen suit provision is usually not going to give you all of that substance. So we've talked about two main categories, the category of lawsuits against someone who's violating a numeric or similar pollution standard that's specified in regulations under the law or some permit that's been issued. You can sue people for contributing to some undesirable condition that's described in the law, like conditions that may present an imminent and substantial endangerment to health of the environment.

A third category that overlaps to some extent with the Administrative Procedure Act alternative vehicle that I was talking about a few minutes ago, a third category is lawsuits against government agencies and officials for failing to act in a way that the law requires. So returning to RCRA again and now looking at 42 US code 6972A-2, that authorizes citizen suits against the administrator and here that's defined as EPA, but against EPA, where there is alleged failure to perform any actor duty under this chapter which is not discretionary with the administrator, which again is EPA here.

The key thing to be aware of with these provisions is the non-discretionary language. So to be enforceable through citizen suit provision, typically the requirement has to be clear, and it has to be something that the law does not give the agency or agency official discretion to refuse to do. So classic example of something that has been construed by the courts to be discretionary action is deciding whether to pursue enforcement action against some private party.

So for example, if you're aware that there's some company that's releasing more water pollution than their Clean Water Act permit allows and you're upset that federal EPA and the state equivalent have not filed a Clean Water Act enforcement lawsuit against that private party, typically you can not use a citizen suit provision to force the agency, the government agency to enforce the Clean Water Act. What you can do though, is seek to enforce it yourself.

And for discussion of discretionary action and the limits of being able to force a discretionary action through litigation, you can take a look at the Heckler v. Chaney case, that's from the Supreme Court, it's at 105 Supreme Court 1649. So we've covered the major types of claims or violations that you can typically pursue through citizen suit, next, what remedies are available? And this is obviously really important. You want to begin with the end in mind.

The remedies can vary from law to law. And here again, it's important to know your text and to keep referring back to the text in case law interpreting the text. But in general, there's two key categories, injunctive relief, which can be temporary or permanent and civil penalties. And then there's an alternative to civil penalties as sometimes used, and that's generally referred to as supplemental environmental projects or SEPs, S-E-P-S.

So let me start with injunctive relief. So this is something that's probably pretty familiar to you from civil procedure classes. An injunctive relief under the citizen suit provisions is governed by the general test that the US Supreme Court has laid out for permanent and preliminary injunctions. So for a permanent injunction, that comes from cases like eBay Inc. v. MercExchange 547 US 388.

A plaintiff seeking a permanent injunction has to satisfy a four factor test. The plaintiff has to demonstrate that they've suffered an irreparable injury, that the remedies available at law such as money damages are inadequate to compensate for that injury. So those are the first two requirements, irreparable injury and injury that's not compensable later through money damages. And typically in environmental case, that's something like release of pollution that presents a risk that the plaintiff will be exposed to a harmful chemical, and that they're concerned about.

The first two requirements are irreparable injury and the remedy that's not remediable through money damages. And then the third and fourth requirements for permanent injunctive relief, as you may remember, are that the balance of hardships means that a remedy and equity is warranted once the court looks at the balance of hardships on both sides between the plaintiff and defendant. And then the fourth and final factor for permanent injunctive relief is that the public interest wouldn't be disserved by a permanent injunction.

So that's the general permanent injunction test, and those are typically available under the federal citizen suit provisions. Another provision or another form of relief that's available is preliminary injunctions. And here again, it's the general test that the Supreme Court has articulated. If you look at cases like Winter v. NRDC 555 US 7, the typical test it's typically articulated as you need to establish that you're likely to succeed on the merits and that you're likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in your favor, and that an injunction is in the public interest.

So both of these are fact specific balancing tests, and you'll need to be prepared to present evidence from your clients, often experts and so on to show that you're entitled to relief under these provisions. And the statute's goals can affect how the court balances the hardships and thinks about the equities. Because what the courts have said is it's appropriate to look at legislative history for that. So the classic example is the Endangered Species Act.

When Congress passed the Endangered Species Act, it expressed a strong preference for avoiding extinction of endangered or threatened species. And in the TVA v. Hill case which was about a dam project that threatened a fish, the Supreme Court talked about how Congress's purpose is and their interest in avoiding extinction weighed heavily in thinking about how to balance the desire to build this dam against the threat to the fish. TVA v. Hill is at 437 US 158.

And as with the types of claims that are available, for remedies, the citizen suit provision is usually going to talk about injunctive relief and other forms of relief in pretty general terms, right? And then again, you'll need to look at case law to figure out how strong of a claim you may have on particular facts and against the background of the legislative purposes of the specific law and citizen suit provision you're using.

But the Clean Air Act, for example, at 33 US code 1365A, it says that district courts are powered to enforce such affluence standard or limitation or such order, and again, that'd be something like a permit incorporating a pollution standard. So there it just says the district courts are empowered to enforce those limitations and orders or to order EPA to perform an act or duty as the case may be, and then also to apply any appropriate civil penalties.

So that brings us to the other major category of relief that's available under these citizen suit provision in addition to injunctive relief, it's civil penalties. Before I talk about penalties though, I want to offer a few more notes about injunctive relief on trends around those. So one trend to be aware of is although the tests for permanent and preliminary and injunction relief sound and look quite similar, in practice preliminary injunctions can be quite difficult to get.

Courts tend to require quite a robust evidentiary showing, and they tend to be reluctant to order extensive relief that early in the case before there's been an opportunity for discovery and more fascial development around what the defendant is doing wrong and what the best way to address the violations is. So a practice tip related that is to think about whether you can structure a case to move quickly to a full ruling on the merits that would allow the judge to issue permanent injunctive relief.

And the rules of civil procedure give you some tools for doing that and moving quickly, for example, for something like summary judgment, if that would be useful either in resolving or narrowing the issues in your case. Another thing to be aware of in thinking about injunctive relief is that there are injunction bond requirements both in the federal rules of civil procedure at FRCP 65(c) and in some of the citizen suit provisions themselves.

So for example, the Clean Water Acts and the clear Air Acts. These are essentially requirements designed to protect the defendant if it turns out that the court was wrong. So for example, to use the language of federal rule of civil procedure 65(c), that provides that the court may issue a preliminary injunction or a temporary restraining order only if the movement gives security and an amount that the court considers proper to pay the cost and damages sustained by any party found to have been wrongfully enjoined or restraint.

Now in practice, there are traditionally crafted exceptions that have been developed through case law to these bond requirements. So although the provisions on their face appear to require the payment of a bond that's sufficient to make the other side whole by paying their cost and damages in the event that they were wrongfully enjoined, what the case law has recognized is that it may be appropriate to impose just a nominal bond amount or to waive the bond requirement, and that's typically done when the plaintiff is indigent or has relatively limited resources.

So that's something you want to keep an eye on and be prepared to brief and argue if you're thinking about pursuing injunctive relief, preliminary injunctive relief in particular as part of a citizen suit. So let's turn now to talking about civil penalties. So the basic distinction between civil penalties and injunctive relief is that injunctions are prospective. So they're meant to abate or mitigate damage from further violations whereas civil penalties are supposed to be backwards looking and they're designed to respond to the violations that have already occurred and the associated harm.

And an important thing to keep in mind there that sometimes comes up is because one remedy is backward looking and the other's forward looking, they shouldn't be traded off against each other. So for example, defendants will tend to argue that they should get a break on expensive injunctive relief like new pollution control. They shouldn't have to spend as much on that because they also have to pay penalties. But because these two forms of relief are designed to address different timeframes that's not appropriate, they shouldn't be traded off in that way.

Now as with injunctive relief, there are standards that govern the setting of civil penalties. And here again, it's important to know not just what the text of your citizen suit provision says, but what the case law says. So you can organize your investigation and your proof around the civil penalty factors. But just as an example, returning to the Clean Water Act, and again, this 33 US code 1365A that is part of the citizen suit provision and it cross-references 1319D of the same statute.

And at 33 USC 1319D, you'll say that the Clean Water Act says that any violator specified sections shall be subject to a civil penalty, not to exclude $25,000 per day for each violation. And then it goes on to say that in determining the amount of the civil penalty, the court should consider the seriousness of a violation or violations, the economic benefit of any resulting from the violation, any history of such violations, any good faith efforts to comply with the applicable requirements, the economic impact of the penalty on the violator and such other matters as justice may require.

Again, it's going to differ a bit from law to law, but I think that is a pretty standard list of factors that courts will look at in thinking about the level at which to set civil penalties. So two other practice tips to keep in mind and here, maybe three. First of all as is often the case with multi-factor tests, the courts have a lot of discretion in deciding how to balance the penalty factors and how much should it part from the specified maximum penalties.

Related to that, it's important to keep an eye on implementing regulations around civil penalties because those are the usual vehicle for agencies to adjust for inflation. A lot these citizen suit provisions were written in the 1970s and 1980s and $25,000 per day for example, that is less money in real terms than it used to be when the law was first written. So the penalty amounts are updated through implementing regulations. Sometimes those lag actual inflation, but there are adjustments and adjustments have been made in the last few years to some of the major laws.

So be sure to check for implementing regulations so you understand the actual inflation adjusted maximum penalty per day per violation because it's probably going to be a lot higher than what you see in the statute itself because of the passage of time and inflation. So the Clean Air Act, for example, as of a few years ago, the penalty maximums had been adjusted to more like 90 plus thousand dollars.

So one other important thing to keep in mind if you're preparing to pursue civil penalties is that civil penalties are not running damages. They go to the US Treasury, they don't go to your client if your client is a plaintiff and they don't go to other people who may have been personally affected by what you're suing over. So that has major implications for how to finance the work if you're a plaintiff's attorney. You're not going to be able to do it on contingency and agree in advance with your client that you'll take some percentage of what they recover if you succeed in the litigation because there won't be any damages coming to them.

And that ties into the fee shifting provisions that I'll talk about in a later section of this outline. I also wanted to mention that some of the laws include some language that allows some civil penalty money to be directed somewhere besides the treasury. So for example, the Clean Air Act at 42 US code 7604G-2 allows up to $100,000 to be redirected to beneficial mitigation projects, which are consistent with this chapter and enhance the public health or the environment and it requires a court to consult with EPA about those.

But that's a pretty limited amount in the context of a potentially large penalty recovery. So keep in mind that penalties go to the treasury, they don't come to your client or to other effected people. So I want to talk about a third form of relief that's not typically called out in the citizen suit provisions, but is useful and used in practice. And this category is typically referred to as supplemental environmental projects or SEPs. That's a terminology that's used in government enforcement.

But the basic principle which can also be applied in private citizen suits is that the defendant will agree to do some projects that are more targeted to the people who've been most effected by the violation and they'll do that in lieu of paying a larger penalty award. Typically, they do pay penalties as well. But supplemental environmental projects or SEPs are a really important alternative remedy to think about because they do help get money into the most affected community or group and allow that group to get something more tangible out of the case than a penalty award, which doesn't come to them or injunctive relief that may lead to the violations to stop or be mitigated but not do much to account for the harm that's already occurred.

So for example the Clean Air Act lawsuit, you might seek injunctive relief in the form of new pollution control for a factory that's violating its permit limits, but you could also consider a project that would provide lung health treatment in the community around the plant. SEPs may also be more appealing to defendants than an equivalent size penalty payment because the tax treatment for penalties can be different and not as favorable.

And another thing to keep in mind just as a practice tip is this is an area that's very dynamic in terms of federal policy. And that may influence how the court thinks about what remedies you're proposing as a private enforcer even if you're not directly subject to the federal policies around SEPs, which typically apply just when the Department of Justice is representing EPA and EPA is enforcing these laws directly. But in particular, among the last three presidential administrations, there's been a lot of swings back and forth and there's been a fair amount of academic work on some of the policy changes from the Obama administration to the Trump administration and then from the Trump administration to the Biden administration.

So if you're getting to the point of presenting some kind of remedy request that the government will have the opportunity to comment on, it's worth taking a look at some of the most recent academic work and the government's own sort of policy statements about supplemental environmental projects. And if you go on EPA's website, they have a list of the things that they think about in conjunction with DOJ council in deciding whether to pursue or accept supplemental environmental projects as part of a resolution of a government enforcement action under one of these federal environmental laws.

So keep an eye on those policies. I think it's worth doing, even if you are not a government enforcer, you're a private enforcer because those policies could influence how the court thinks about your situation and what's appropriate to award in response to request by your clients. All right, so let's turn to the mechanics of actually teeing up a citizen suit if you think there's a violation that would be productive for your client to pursue under one of these laws.

So again, it depends on what the law says, what exactly the mechanics are going to look like, but here are a few things that you want to be prepared for no matter what. So first, standing. You're going to need to establish your client's standing to sue. And this comes from article 3 of the federal constitution which requires there to be a case or controversy for the court to have jurisdiction. And it's a rich and evolving area that could be a whole separate training.

In general, article 3 requires you to show that your client has some personal stake in the matter they're suing over, again, if you're representing a plaintiff. So they've been injured personally in some way and stand to gain personally in some way if you get the relief that you're seeking. And for organizational plaintiffs, the way that the showing is typically made is the organization's lawyers will typically submit testimony from individual members to the effect that they've been personally harmed and injured and they will stand to gain personally if you win the lawsuit and get the relief that you're seeking.

And the test comes from a Supreme Court case called Hunt v. Washington State Apple Advertising Commission, it's at 432 USC 333. And what that case says basically is if you're going to rely on this theory of standing, you need to show that your members, at least one of your members is personally injured and stands to gain from the remedy, that they would be able to sue in their own right, but that you don't need their participation to bring the case.

So for example, it's not like a car accident where your client, the plaintiff's testimony may be key to establishing liability that some law was broken or some duty was breached. So you need to show that your organization's members could sue, they've been personally affected instead of benefit, but they're not necessary to present the case. And then you also need to show that the purposes of the plaintiff organization are germane to the work.

And typically that's very easy to show because if the litigation weren't further in the organization's mission, it wouldn't be a good use of the time for the organization to pursue the litigation and its members probably wouldn't support that. So typically it's the personal injury requirements that matter the most. There is an alternative way to establish standing for organizations besides the Hunt v. Washington Apple test.

It is a different theory of standing that focuses on the fact that the organization itself has been harmed because it's had to divert some of its own resources to fixing the problems caused by the violation. And the classic case on this is another Supreme Court case called Havens Realty Corp. v. Coleman, 455 US 363. But again, the more classic approach is to rely on the testimony of members who have been affected personally. That's usually presented through sworn declarations by the members, and sometimes for cases that proceed to evidentiary hearings or full trials, there's live testimony by those members.

But typically a standing is adjudicated and resolved earlier in the case and the trial tends to focus more on other kinds of testimony about liability and about the need for certain remedies, right? Certain forms of injunctive relief and the appropriateness of certain penalty amounts. So that's standing, that's a really important thing to keep in mind, it comes up a lot, and it's an important area to stay abreast of the case law because it's another evolving one.

So another area you're going to need to be prepared to deal with is notice. So the citizen suit provisions typically don't allow you to sue until you've sent a detailed letter to both your prospective defendant and certain federal and state government representatives that says, "We think this defendant has violated this law in these ways and we're planning to sue." And typically the provisions require you to send that letter to specified entities and then wait 60 to 90 days before you actually file a complaint.

So going back to RCRA again, it's a pretty standard language but if you look at 42 US code is 6972B-1, you'll see that no action may be commenced under subsection A1A of this section, which is one of the provisions that talks about what kinds of citizen suits you can pursue. So you can't commence that kind of action prior to 60 days after the plaintiff has given notice of the violation to the administrator, so here that would be EPA, also the state in which the alleged violation occurs and then of course, to the alleged violator. So to any alleged violator of such permit standard regulation, condition, requirement, prohibition, or order.

There is an exception in this particular citizen suit provision for certain kinds of violations that may warrant an immediate response, but those exceptions where exist tend to be pretty limited. So unless you're aware that you can claim one of them, you want to be prepared for the fact that you're going to need to research and write and send a detailed notice letter and then wait two to three months before you'll be in a position to file the case. Some other practice tips here.

Here's another area that's really important to look for implementing regulations. There are sometimes some pretty specific and technical requirements around things like the form of mailing and to whom the notice should be addressed. You want to study those, you don't get tripped up and have to restart the clock on your lawsuit because it turns out that you have to redo your notice letter because somebody didn't get it.

Related, you want to make sure that you're familiar with the regulations in case law about how specific your notice needs to be, in terms of how it's describing why you think your perspective defendant violated the law and why you think it's appropriate to sue them to enforce the law. And that can be a little bit for the balancing act if you're a plaintiff's lawyer because you would prefer not to sometimes give a very detailed preview obviously of a complaint before you file it.

But if you're too cursory, again, you run the risk that you're going to have to start over. And a common defense response that comes up early in citizen suits is that the notice was inadequate under the government case law and any regulations and statutory language. So make sure you understand not just how long the notice clock is, but exactly what you need to do to start that clock, how specific you need to be and what ways about the violations and then exactly who it needs to be sent to and in what form.

And there is quite a bit of case law around specificity of describing violations and then a lot of the statutes, the agency that's primarily responsible for enforcing them. Typically EPA, sometimes another federal environmental agency often they've passed regulations that talk in detail about how the notice needs to be directed when it goes to the government agencies. So that's notice, very important thing to understand and be prepared for. It will come up in every citizen suit or virtually every citizen suit. I'm not aware of citizen supervisions that don't have notice requirements.

And the purpose of notice, again, ties back to the purposes of citizen suits. The idea is that they're supposed to compliment government enforcement and serve as a backstop and gap filler. And so the theory is that if the government agencies are made aware of certain violation through your notice letter, your plaintiff's notice letter, they may choose to step in and enforce the law themselves in which case the citizen suit may not be needed, it may be redundant.

That brings me to a second principle you want to be prepared for that also comes from the language of the citizen suit provisions and has been expanded on through case law, which is preclusion. So it's possible that during the 60 to 90 day notice period, some laws at 60, some at 90, it's possible that the government will step in and take certain kinds of enforcement action that will then mean that you're not actually able to bring your own lawsuit. Typically, the kind of preclusive enforcement action will be specified in the citizen suit provision, but also fleshed out in interpretive case law.

And it's important to understand what kinds of action are preclusive because often it's less than everything a government agency might do. In the case of the RCRA section I just was talking about 42 USC 6972B-1, for example, it says you can't sue generally if EPA or state government has commenced and is diligently prosecuting a civil or criminal case that requires basically the same compliance that you're seeking through your lawsuit.

There's other kinds of things EPA or a state agency might do that would be some kind of enforcement action, but not a civil or criminal case, right? Some kind of notice of violations, some kind of administrative order, a finding or a study. So you want to be really familiar with what qualifies as preclusive actually and what doesn't. And that's another thing along with the sufficiency of notice that is sometimes litigated early in citizen suits. So you want to be prepared for preclusive action and you want to be prepared to argue about what actions are not preclusive.

Even if EPA or state agency or someone else you're required to give notice to, even if those government entities don't take a preclusive action during the notice period, they don't decide to file their own lawsuit or do something else that would prevent the citizen suit, keep in mind that they usually have the right to intervene in your lawsuit if they want to. And there's a general set of federal intervention rules in the federal rules of civil procedure at FRCP 24, but here again as with bond requirements, there's also some citizen suit provisions themselves include language providing for intervention opportunities.

So for example, you'll see some of that in RCRA at 42 USC 6972B-1. A practice tip here. Even if government agencies don't pursue a preclusive litigation of their own and also don't seek to intervene, the court in your case may decide that it wants to consult with them along the way anyway. It may seek their opinion about certain legal questions that are coming up that those agencies may have encountered in their own regulatory or enforcement work.

They will most certainly be consulted and they have to be consulted if there's a proposed settlement that's presented to the court. And I think in general, it's important to try to have a cordial relationship and make sure you understand that the relevant agencies' current enforcement priorities, and policies. And those may shift over the course of your case because your case could last quite a bit longer than any given administration.

So we've covered standing, notice, preclusion and intervention. Another thing to think about and be prepared for, it's not usually as litigated, but venue can be important. So there's often some language on the citizen suit provision saying that you need to sue in federal district court, almost inevitably you'll see that. But then you may also need to consult the venue law about where certain plaintiffs can sue and where certain defendants can be sued to figure out which specific federal district courts your clients can get into.

But typical venue provision from one of the citizens suit provisions would be SDWA, the Safe Drinking Water Act at 42 USC 300J-8 that says the US district courts shall have jurisdiction without regard to the amount in controversy or the citizenship of the parties. That's just basically referenced the fact that they don't need diversity jurisdiction, right? So you don't need to show that the plaintiff or defendant are residents of different states or that there's at least $75,000 in controversy. That wouldn't make sense, right? Given the forms of relief that are available anyway which are injunctive and civil penalties, they're not damages.

But so SDWA just says the US district court shall have jurisdiction without regard to those diversity requirements which don't apply the jurisdiction to enforce in any action brought under this subsection, any requirement prescribed by the law. So the citizen suit provisions themselves are often not going to help you that much with venue. You're going to need to look at 28 USC and other more general provisions to figure out where you can go and then obviously you want to think about what venue among your choices seems best for your client's interests. That's the venue.

I'm now going to talk about carrying the litigation from the complaint, assuming you get that far, that there hasn't been any preclusive action and there's been no incurable notice problem and you've established your venue, how do you carry the citizen suit through merits and remedy? So this is going to be high level because what your lawsuit looks like once you're in court is fact specific and it has to be. But here are some general, general tips to keep in mind.

One is that remedies are typically a big part of the litigation effort. They typically require a separate proof from liability in these citizen suits. So for example, after you prove that the defendant has violated the lawyer's suing to enforce by releasing more pollution of their permit allows, you're also going to have to establish what can be done about it. So for example, they should be required to install this from a pollution control that costs approximately X much, and it's feasible for these reasons and that would control the pollution by about this amount and the violations and ensure that they don't recur and the defendant should also pay these penalties, and this is the appropriate amount based on the penalty factors specified to the law.

Those things just like liability, those are often going to take a pretty substantial presentation of evidence. So discovery work and work with experts, those are very common in federal citizen suits. Unlike lawsuits under the Administrative Procedure Act, which is that after I mentioned that you can use to enforce certain requirements against government agencies, unlike the APA, these citizen suit cases, they're rarely litigated to judgment on a paper record. They typically require a lot of witness testimony and expert work and discovery.

And for that reason, it's very common for them to take years. And sometimes the liability and remedy phases will be separated. So there'll be a round of discovery and then briefing and argument on whether the defendant is liable at all for violating the law that you're suing to enforce and what the extent of the violations is. And then there'll be a second phase of the case, assuming that there is some fundamental liability, there will be a second phase of the case with more discovery and more expert work, more briefing and argument to help the court decide what should be done exactly, what kind of injunctive relief should be ordered, what kind of penalties should be required, and so on.

Assuming that you're able to establish liability and that you have a strong case for remedy, the case can be resolved through either a court order specifying the remedy. So the judge typically after a trial or an evidentiary hearing issues an order saying, "I've decided this is the appropriate injunctive relief and the appropriate penalty amount and here's why." Or the case can be resolved through settlement. For settlement, if you're right plaintiff's lawyer, my recommendation is to resolve it through a consent decree entered by the judge and enforceable as part of the same case.

So there won't be a question of needing to bring a separate contract enforcement action if the defendant turns out not to honor some commitment that's made in the settlement like closing a facility by a specified date or building some new pollution control or making a penalty payment or some other kind of payment. And then as I mentioned earlier, be aware and prepare for the fact that judges will often need to take or want to take public comment on proposed settlements, provide for other forms of public participation.

And again, that ties back to the underlying purposes of citizen suits and federal environmental and public health laws. Because when you bring a citizen suit, you're acting as a private attorney general, you're standing in the shoes of the government and you're seeking to resolve a matter of public concern so something that affects your clients directly, but typically also many other people around them. So for example, it's air pollution that threatens the health of people in a whole community even if your clients are just members of some organizations within that community.

So public comment, public participation, and often also government comment and government participation can be important in these cases even if your clients are private and even if the defendant is also a private entity or a series of private entities. So that takes us through the list of things to be prepared for if you think you have a good federal citizen suit to present and you're getting ready to file it and start litigating it.

Let's talk now about the other end of the process. So if you've finished your citizen suit and you've gotten a remedy of some kind for your client, fee recovery and fee and cost shifting, these are really important things to understand and understand the law. So many of the federal citizens who provisions provide for you to apply to the court for an order directing the other side to pay for your client's attorney time at market rate and also for your client's litigation cost.

So that can be transcripts for depositions or hearings, mailing for service, the cost of paying experts to study issues and testify about them and prepare reports, travel, all the normal things that come up in large cases. The terms on which you can recover attorney's fees and costs are going to vary from statute to statute and here the case law matters too. But there's two basic categories of fee recovery provisions.

One category is what are usually called prevailing party recovery provisions. And the Clean Water just an example, RCRA's another example. So the Clean Water Act, for example, this is at 33 USC 1365D, the litigation costs says the court in issuing any final order and any action brought pursuant to this section may award costs of litigation, including reasonable attorney and expert witness fees to any prevailing or substantially prevailing party whenever the court determines such a word as appropriate.

And so what the case law has developed to say basically is you don't need to win on everything to be a prevailing party. Any win on a significant issue that achieves some of the benefit your clients sought is enough to make you eligible for fee recovery. And that comes from Hensley v. Eckerhart. This is a Supreme Court case at 461 US 424. Again, that's been refined through further case law, and you need to understand what that case law said.

But the important principle to keep in mind is you don't have to show that you had a complete victory. And that's important because these cases are complicated and they often involve a range of claims or a long period of time. And so it may be that you get partial relief and not full relief on behalf of your client. So that's one category, the prevailing party fee recovery language. There's a second category of fee recovery language that people refer to as as appropriate.

And it's really as appropriate language in a citizen suit provision that doesn't also talk about prevailing party. Some examples of these pure as appropriate fee recovery provisions are the Clean Water Act at 42 USC 7604D. But you'll also see this kind of pure as appropriate language in some of the other citizen suit provisions I mentioned at the beginning. So TSCA, the Toxic Substances Control Act, ESA, the Endangered Species Act and SDWA, the Safe Drinking Water Act have similar as appropriate provisions.

And what these provisions typically say, and we'll just use Clean Air Act as an example, is the court in issuing any final order at any action brought under the section may award cost of litigation, including reasonable attorney and expert witness fees to any party whenever the court determines such a word as appropriate. So it's very open-ended, whenever appropriate. And what the case law has established is that standard can be even more expansive or liberal in terms of how often it allows you to recover fees.

And it sometimes allows recovery even when the defendant voluntarily changes position in response to litigation, so the defendant changes its position without a court order requiring it to do that. And that sometimes happens in lawsuits against government parties, it may happen in lawsuits against private parties as well. And there's a case that talks about this scenario. It's usually called the catalyst theory of recovery because the idea is that you catalyze some change of position even if there is no court order requiring the change of position.

You prompted the other side to change what it was doing and start acting in a way that's more favorable to your client through litigation. So the case that talks about that, the lead case that talks about the catalyst theory is Buckhannon Board and Care Home Incorporated v. West Virginia Department of Health and Human Resources, people usually just call it the Buckhannon case, 532 US 598. So a few closing practice notes to keep in mind.

First of all, fee recovery provisions are really important because citizen suits are so expensive. They're discovery and expert driven. They can take years to decades to pursue and... So a few closing practice notes to keep in mind. First of all, fee recovery and provisions are really important because citizen suits are so expensive, they're discovery and expert driven. They can take years to decades to pursue and resolve. And as we talked about earlier, the remedies don't include damages.

So as a plaintiff's lawyer, you're not going to be able to rely on a contingency arrangement to recoup any of your costs, even if you're quite successful. So it's important to start tracking and documenting your time very early in case development because if it's not documented in a specific enough way, that may reduce your ability to recover for the time. Related, it's important to be thoughtful and efficient about how you're spending your time as in any lawsuit because the court is going to have the discretion to decide how many hours were reasonably extended and they may have a different perspective on that than you do.

They also will need to determine the appropriate market grade, although there's usually less of a range there because that is typically based on testimony from practitioners in the market with similar experience to yours. I chose some big picture trends. There's been some academic research about where citizen suits are filed. There's a recent article by David Edelman and Jori Reilly-Diakun in the University of Colorado Law Review that talks about how in most states they're rarely filed.

And in the states where citizen suits are more commonly filed, the others found that those actually were the states where environmental protection is relatively robust, relatively stringent state programs, relatively strong political support for environmental protection. And the authors concluded that therefore citizen suit provisions are not doing as much as Congress may have envisioned or intended to compensate for gaps and weaknesses in government enforcement and to advance the law.

The authors also observed that the number of potential issues and targets can be pretty overwhelming if you're a private individual or a nonprofit organization and you're thinking about trying to enforce one of these laws. So as a lawyer working on behalf of clients who may be interested in pursuing citizen enforcement, it's important to be strategic about what you go after. There are a lot of potential issues and targets to pursue.

To close, I just want to say thanks for giving me the chance to share some of my knowledge about environmental citizen suits. I really hope that you learned something today and that this helped demystify this device to some extent. And I really hope that this is a tool that you'll consider incorporating in your own practice. Thank you.
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