Citizen Suits

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.[1] 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[2], 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.[3] Typical citizen suit provisions also allow citizens to sue the Environmental Protection Agency (EPA) Administrator for failing to perform a “nondiscretionary” duty.[4] 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.[5] 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.[6] 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.”[7]

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”[8] 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.


Advance Preparation

Before filing a citizen suit, you must be sure that you:

  1. Have standing to sue (just as you must have for administrative appeals as described in Administrative Appeals in Georgia).
  2. Document the relevant violation and its ongoing nature.
  3. 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.


(1) Standing

(2) Documentation of the Violation and its Ongoing Nature

(3) 60-Day Notice Requirement


Available Relief

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.[14]

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).[15] 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”[16] (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.


Concluding Remarks

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!

Success Story:
Coming Together to Save a River

[1] Clean Water Act (CWA) § 505, 33 U.S.C. § 1365; Clean Air Act § 304, 42 U.S.C. § 7604; Resource Conservation and Recovery Act (RCRA) § 7002, 42 U.S.C. § 6972; Comprehensive Environmental Response, Compensation, and Liability Act § 310, 42 U.S.C. § 9659; Safe Drinking Water Act § 1449, 42 U.S.C. § 300j-8; Toxic Substances Control Act § 20, 15 U.S.C. § 2619.

[2] Zygmunt Plater, Things I Learned From a Very Small Fish, TEDx Talks,

[3] CWA § 505(a)(1), 33 U.S.C. § 1365(a)(1).

[4] 33 U.S.C. § 1365(a)(2).

[5] 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.

[6] 42 U.S.C. § 6972 (a)(1)(B).

[7] 42 U.S.C. § 6972(a)(1)(B).

[8] 33 U.S.C. § 1365(b)(1)(B).

[9] U.S.C.A. Const. Art. III § 2, cl. 1.

[10] Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 181-82 (2000).

[11] Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 181-82 (2000).

[12] 33 U.S.C. § 1365(b)(1)(A).

[13] 40 C.F.R. § 135.2.

[14] 40 C.F.R. § 135.2.; 40 C.F.R. § 19.4.

[15] 33 U.S.C. § 1365(a).

[16] Supplemental environmental projects are projects implemented by the permit violator that are designed to benefit the community impacted by the illegal discharges. Supplemental Environmental Projects, EPA,