For much of American legal history, individuals and communities had little legal recourse to fight against polluting facilities. Then, in the 1970s, Congress passed most of our modern environmental laws and created government agencies to enforce them. Many of these environmental laws include “citizen suit” provisions which allow citizens to ‘step into the shoes’ of a government agency to enforce environmental laws directly by bringing lawsuits against polluters.
This chapter gives you six types of information about citizen suits: (1) introduction of the citizen suit; (2) explanation of who you can sue with a citizen suit; (3) overview of the judicially imposed requirements on stating a claim; (4) explanation of what you must do to prepare; (5) outline of what you may be able to achieve; and (6) final concluding recommendations.
Introduction to Citizen Suits
Most of the major federal environmental laws have sections — known as “citizen suit” provisions — allowing citizens to sue violators of the law in federal court. Each of these provisions is slightly different, but they all have common features. Though this section discusses some of the common features and requirements, it is best to consult a lawyer before considering bringing a citizen suit because environmental litigation is complicated.
Litigation can take years to complete and is unpredictable. But groups of concerned individuals have taken on this process and won, sometimes when many others doubted them and indeed pressured them to not file the suit in the first place.
Remember that beginning a citizen suit is like starting any other serious and difficult challenge, and you might doubt your intentions, any possibility of victory, and whether you can endure the highs and lows of the case. Life will happen to you, so it is important to remind yourself of why you cared enough to start the litigation in the first place.
Even if you don’t win, being involved in litigation can provide many experiences where you can learn about advocacy and other unforeseen opportunities. Litigation can attract attention to your cause, including media attention. Litigation can also help you experience the hope and purpose of fighting a battle that you know needs to be fought, even if it seems unwinnable. You can feel the pride of being a part of an endeavor that could positively benefit lives in your community. And, you might feel the pleasure of putting some real fear in an unrepentant polluter’s mind and heart.
Who You Can Sue
Typical citizen suit provisions allow individuals or groups to sue any person and any governmental instrumentality or agency currently violating a federal environmental statute’s requirement. Typical citizen suit provisions also allow citizens to sue the Environmental Protection Agency (EPA) Administrator for failing to perform a “nondiscretionary” duty. This means that if a law requires (and does not merely allow) EPA to do something but EPA does not do it, an individual or group may sue the EPA Administrator to compel that action.
The most common type of citizen suits are filed against permit holders who have violated their permit’s provisions. A polluter violates its permit when it does something its permit says not to do, so you have to look at the permit to determine if a polluter is violating it. For example, a typical Clean Water Act citizen suit might allege that a facility is discharging wastewater with higher levels of zinc (or some other pollutant) than its permit authorizes. Note here that facilities can discharge wastewater with zinc (or some other pollutant) without violating their permits, but they violate their permit when they discharge more than the permit allows.
Judicially Imposed Limitations on Stating a Claim
To properly state a claim, a plaintiff must prove two requirements. The plaintiff must (1) show that the polluter’s violation is an “ongoing” violation and (2) that the state is not diligently prosecuting an enforcement action against the polluter.
First, although none of the citizen suit provisions explicitly say this, courts require that the violation is “ongoing” at the time of suit. To meet this requirement, the citizen must be able to show either that at least one violation occurs after the suit is filed or that, based on the pattern of violations before the filing, it is highly likely that violations will continue.
The Resource Conservation and Recovery Act’s citizen suit provision is unusual because it allows citizens to sue for both past and present violations instead of just ongoing violations. It allows citizens to sue any person whose actions relating to solid or hazardous waste may present “an imminent and substantial endangerment to health or the environment.”
Second, because a citizen suit allows citizens to “step into the shoes” of the EPA or state, if EPA or the state “has commenced and is diligently prosecuting” enforcement against the polluter, citizens may not use the citizen suit provision.
Whether the government is “diligently prosecuting” its enforcement depends on the specific situation. For example, if the government orders the facility to take certain measures to protect water quality but then continuously extends the time period in which the facility must implement those measures so that the facility never actually improves its pollution, a court might find that the government is not “diligently prosecuting” the issue and allow a citizen suit to proceed.
Before filing a citizen suit, you must be sure that you:
Document the relevant violation and its ongoing nature.
Meet the 60-day notice requirement.
If you do not meet all of these requirements, your suit will be dismissed. Even if you decide not to hire a lawyer to represent you in your citizen suit, we strongly recommend having a lawyer review your notice letter before you send it out. These requirements are explained in greater detail below.
The U.S. Constitution limits the authority of federal courts to “cases” and “controversies.”
Standing is a judicial concept describing who has the right to bring an action in court. In legal speak, it means that the party with standing has a sufficient connection to and has been harmed by the law or action challenged, and thus presents a case or controversy to the court.
There are three standing requirements: Injury-in-fact; Causation; and Redressability.
1.Injury-in-fact: The plaintiff must either have suffered or be in a position where it seems likely the plaintiff will imminently suffer injury — an invasion of a legally protected interest that is (1) concrete and particularized, and (2) actual or imminent. The injury can be either economic, non-economic, or both.
2.Causation:There must be a causal connection between the injury and the conduct complained of, so that the court can fairly trace the injury to the defendant’s action. The injury must not be the result of a third party’s independent action.
3.Redressability: There is only standing to sue in a court if that court can offer a remedy for the injury. This ability to offer a remedy is referred to as redressability.
(2) Documentation of the Violation and its Ongoing Nature
The requirement that you document the violation and its ongoing nature really just means you have to prove that the violation is still going on. You can do this several ways:
Use the facility’s own reports to show violations.
Document the facility’s failure to file necessary reports.
Use your own (or your expert’s) observations or tests.
To strengthen your claims’ credibility, keep thorough records.
For example, if you are relying on water samples, you should establish a “chain of custody” and document the testing methods you used so that you can prove that the pollution came from the facility. Document these violations as carefully as possible because even if you are right, the other side is going to have lawyers and their own experts trying to disprove every possible part of your story.
Once you have the data you need for your claim, you must provide notice of your intent to sue before filing your lawsuit.
Typically, the environmental statutes require you to mail a letter explaining that you are giving 60 days advance notice and laying out the specific facts that violate the law or the terms of the permit and the basis for claiming they are violations. This period gives the polluter a chance to come into compliance with the law, and gives agencies a chance to enforce the law on their own. The law or agency regulations will specify to whom you must send this notice letter.
If you are filing a citizen suit under the Clean Water Act in Georgia because of a company causing pollution, for example, this notice must be sent to the company’s owner, the company’s registered agent (which you can find on the Georgia Secretary of State’s webpage), the head of Georgia EPD’s water pollution branch, the Regional Administrator of EPA Region 4 (Atlanta headquarters), and the EPA Administrator at EPA headquarters in Washington, D.C.
If these government officials fail to act, and the polluter fails to achieve compliance within sixty days, then you can file a lawsuit. Under all the federal environmental statutes with citizen suit provisions, you can file a complaint laying out your claims in federal District Court.
Courts may grant relief if a plaintiff bringing a citizen suit wins, but you should know that the plaintiff who brings a citizen suit usually does not win any money. If the plaintiff wins, the court’s goal is to provide for future compliance with permit terms and to compensate for the damage caused by past noncompliance. The court’s goal is not to compensate the harmed party with money, and if the polluter loses, it will likely pay penalties which go to the U.S. Treasury and not to the citizens bringing the suit.
The relief against the polluter as a result of a citizen suit may include extremely steep penalties — in some cases, over $50,000 per day per violation (payable to the U.S. Treasury, not to the plaintiff) or injunctive relief (orders requiring the polluter to do or not to do something). Typical subjects of injunctive relief include requiring the polluter to comply with its permit’s terms, installing pollution control measures, replacing equipment, undergoing training, undertaking “supplemental environmental projects” (SEPs), and more.
Courts can award plaintiffs the cost of their attorney’s fees in citizen suits. So, if you are considering filing a citizen suit and think your suit meets the requirements outlined in this chapter, we strongly suggest you talk to an attorney, even if you do not have the money to pay the attorney up front. Since it is possible to recover the costs of the lawsuit, some attorneys may be willing to represent you without charging up-front, depending on your situation.
Citizen suit provisions can be very powerful tools to help stop polluting facilities, but they can also be expensive, time-consuming, and stressful.
Sometimes it’s more efficient to convince either the polluter to clean up voluntarily or the government to force the polluter to clean up. But sometimes the polluter or the government will not cooperate, or will not agree to make sufficient changes to remedy your situation. If it seems like the polluter won’t work with you, filing a citizen suit could be a way to get the polluter’s attention and could lead to a solution for your problem.
You also do not necessarily need to win in a courtroom to win for your community. If you have a good case, the potential penalties for violating the law that a company could face are so costly that the company may be willing to negotiate a settlement with you, which could involve cleaning up pollution in your community, installing better control technology on its facilities, or taking some other action to compensate the community for the harm it has caused, in exchange for your group dropping the lawsuit. An attorney can help you to negotiate with a company and secure a good settlement agreement.
And don’t forget — sometimes it feels really good to make powerful and unrepentant polluters start to question their choices. Filing a citizen suit is a great way to do just that. If you think you have a claim that supports a citizen suit and want to file one, we encourage you to contact SELC, Hummingbird, or the Turner Clinic for advice, encouragement, and a referral to an attorney who might be able to help you!
Coming Together to Save a River
Having fresh, clean water is an essential need for all people, and many people depend directly on rivers for their way of life and their livelihood.
In Georgia, many farming communities use the water provided by local rivers as a way to irrigate their croplands and sustain their families.
This is why when the agricultural community of southwest Georgia, an area with more than 550,000 acres of irrigated cropland, began to see the waters of their precious Flint River dwindle, they decided to work together to address this environmental concern. The Flint River is among Georgia’s greatest rivers, spanning 346 miles and draining an area of almost 8,460 square miles. As one of only 40 large rivers unimpeded by a dam in the entire United States, the Flint River flows south from Atlanta, through the rural western and southwestern regions of Georgia, providing drinking water to many rural communities and irrigation for farms.
One of these communities is Upson County, Georgia, where the vast majority of the area’s landscape and culture is dominated by the presence of the Flint River. It was here that the Flint Riverkeeper organization was born in 2008, intended as a way for citizens of the area to discuss their growing concerns regarding the draining and pollution of the river. In total, 35 people joined the group, which started hosting meetings where community members could discuss their relationship with and concerns about the river. These concerns were compiled and consolidated into a list of issues that the group wanted to address.
Near the top of that list was the need to address the dry spells affecting the Flint River’s dwindling water flow. The group started seeking the assistance of other organizations with a similar mission, who could help provide support, identify solutions, and help restore the river’s flow. This led the group to a partnership with American Rivers, a national nonprofit that combines advocacy with fieldwork as a way to solve problems affecting key rivers in the United States.
Working together, both groups were able to compile scientific evidence and data that showed that the Flint River’s flow had decreased due to increased droughts. The groups decided to take this information and publish it in a 2013 study they entitled “Running Dry.”
This study helped raise awareness about how construction practices such as paving over the headwaters and damming tributaries of the river near Atlanta were decreasing the amount of water that reached downstream municipal water supplies and groundwater recharge areas which rural communities depend on.
The publication of this study gained attention, but both groups recognized that it would not be enough to address their growing concerns. So that same year, the partners decided to form a coalition called the “Upper Flint River Working Group,” made of up of leaders from the local water utilities, conservationists, and national and local environmental nonprofit organizations.
The purpose of the coalition is to allow diverse partners with a shared vision for the Flint River to work together on ways to maintain the river system’s health and ensure its ecological, social, and economic value for generations to come. The Upper Flint River Working Group is a great example of how a collaborative approach can help address issues as complex as water scarcity and build bridges between different organizations.
Since its formation in 2013, the working group has implemented several successful projects that are focused on improving drought resiliency and water availability for the communities that depend on the Flint River.
One of these projects is the creation of a wastewater treatment plant which will help return two million gallons of unpolluted water back into the river each day! The group has also been successful in helping Newnan Utilities upgrade its pumping facilities on the Flint River, helping to reduce the need to withdraw water from the river’s creeks during low flow seasons.
The group’s latest success has been to work with Atlanta’s Hartsfield-Jackson International Airport, the world’s busiest airport since 1998, to develop green infrastructure projects on the airport’s campus. If successful, this project would increase the amount of rainwater that manages to filter into the ground instead of being trapped on the surface by large, paved areas. More water making it to the river means a healthier flow for the mighty Flint and a new achievement for the hardworking and dedicated group.
Although the work and challenges faced by the group are still ongoing, the coalition has already helped create an increased awareness of the critical role played that the Flint River plays for both agriculture and community drinking water in Georgia.
Their success was highlighted by the Georgia Water Coalition, an environmental nonprofit group, in its annual Clean 13 report of 2019, who named the Upper Flint Working Group one of the year’s “Clean Water Heroes.”
As the story of the Upper Flint River Working Group shows, no issue is too hard to challenge when we find the right partnerships, build bridges with related organizations, and collaborate toward our shared goals.
E.g., Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., 484 U.S. 49 (1987) (Clean Water Act case). Because of slightly different statutory language, it remains uncertain whether this limitation applies to Clean Air Act citizen suits.