Citizen Environmental Civil Actions

One feature of our federal environmental laws is the citizen suit which permits citizens to file civil actions in federal court for specified environmental breaches. The claims typically arise under the federal Clean Water Act and Endangered Species Act.  Also, some actions have been filed under the Resource Conservation and Recovery Act, the Safe Drinking Water Act and other legislation.

A citizen suit starts when the citizen serves a notice alleging legal violations.  These notices may seek equitable relief to address the alleged violations and attorneys' fees.  Several strategies can be used to effectively defend these federal environmental actions.  The defense of a federal environmental lawsuit involves multiple steps and actions.

Notice of Intention to File Claim
The complaining citizen is obligated to serve potential defendants with written notice (either 60 or 90 days) of the intention to file a claim.  A prime purpose of the notice period is to provide the alleged violator with an opportunity to bring itself into compliance with the legal requirements.
The notice period provides an opportunity for a defendant to assess the facts, determine if possible violations may exist and evaluate if there are ways to achieve prompt compliance with the laws.  Together with the attorney, a technical expert assists with these assessments.  It is also important to evaluate the citizen plaintiffs, the local federal court, recent settlement trends and the recent case law.

Under most statutes, a citizen may not file a citizen lawsuit if the alleged violations are not continuing on the date of the filing and there is no reasonable likelihood of continuing or future violations.  This is the so called “Gwaltney doctrine" because in the case of Gwaltney of Smithfield, Inc. v. Chesapeake Bay Foundation, 484 U.S. 49 (1987), the Supreme Court held that if a defendant can act to eliminate potential violations, the notice provision has worked and there would be no benefit from a lawsuit.

 The recipient of a citizen notice should immediately determine whether the alleged violations can be resolved before a lawsuit is filed. For example, it may be possible to repair facilities or take permanent actions to prevent contaminants from discharging or migrating from a site.

However, complex alleged violations may be difficult to resolve promptly. When violations are addressed, the plaintiff may argue that the violations have been temporarily addressed and will recur in the future.

There are rules that bar a citizen suit in cases when there is prior or concurrent government enforcement action dealing with the same alleged violations.  In most cases, prior or concurrent government enforcement seldom bar a citizen lawsuit.  Plaintiffs attempt to plead different types of violations.  Also, a plaintiff may take the position that the government action was not diligently prosecuted or that the civil penalty was not obtained.  However, in some cases government enforcement action may provide a defense to a citizen lawsuit.

Offer to Negotiate
A citizen suit notice typically contains an offer to enter into negotiations to resolve the violations prior to filing a lawsuit.  For example, the U.S. Department of Justice which has litigation intervention rights encourages settlement discussions because many citizen lawsuits are resolved through settlement and because plaintiffs sometimes use these discussions as discovery devices.

Certain cases may involve totally adverse litigants so that settlement discussions may be unproductive.  In general, these discussions are valuable and may lead to a settlement.

The process often involves site visits, experts and remedy evaluation in order to resolve the claims.  The defendant should have a game plan and should stipulate in advance that all discussions are covered by settlement protections.  
The defendant should carefully investigate the facts and protect evidence during this period.  Certainly, the defendant should perform its investigation as soon as possible.  Counsel should visit the site, interview key employees and retain experts to give a preliminary assessment of the facts.
 In the federal system, there are rules in respect to the preservation and discovery of electronic information.  These rules obligate a defendant to take prompt steps to preserve evidence, such as e-mail communications and adopt methods during discovery to handle production of this information.
Potential Liability
The defendant should estimate its potential liability and the availability of injunctive relief.  Many citizen notices assert multiple daily violations over a 5 year period and will seek injunctive relief. The potential maximum civil penalties may be substantial.  For instance, a Clean Water Act notice may allege five daily violations concurrently for a 5 year period.  Therefore, the number of possible violations is over 9000.

Aside from the possible civil penalties, a court often awards a successful plaintiff reasonable attorneys' fees and grants injunctive relief.  Hence, it is essential to initially estimate the realistic cost of injunctive relief, civil penalties and attorneys' fees which may be awarded at trial.

 A citizen lawsuit may involve multiple legal issues and many complex facts. For instance, a RCRA lawsuit may require an analysis of when and how contaminants were disposed on a property and an analysis of whether conditions constituted an imminent and substantial endangerment to health or the environment.
 The defendant and sometimes prior owners may have significant information that plaintiffs may seek through broad discovery requests.  The discovery litigation plan should focus upon key legal and technical issues.

Two Phases

A citizen lawsuit trial involves two phases, a liability phase and a remedy phase.  The liability phase decides whether a violation occurred and often determines the number of violations. The remedy phase typically handles injunctive relief and civil penalties.

Civil penalties vary according to each statute.  Under the Clean Water Act, the court must examine the gravity of the violations, the economic benefit arising  from the violation, the history of the violations, good faith efforts to comply with the applicable laws, the economic impact of the penalty on the violator and other matters as justice requires.

In a RCRA case, it may be important to hire environmental experts who address the source and nature of the contaminants, their transport and potential public health and environmental impacts of the contaminants.

Prepare for Trial
Some citizen lawsuits are dismissed at the outset, others are resolved through summary judgment and many cases settle.  However, the defendant should be prepared to go to trial especially if the case involves complex or unusual sites or presents new legal issues.

A citizen suit defendant should be prepared to make important decisions early in the case such as jury vs. judge trials, experts, evidence and other issues that may influence success at trial.

A defendant in a citizen lawsuit should be prepared to be flexible in the approach as development occur.  A variety of methods should be employed depending on the facts, the law and the financial exposure.  

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