Citizen suits under federal environmental laws

Abstract

AbstractOne of the important enforcement mechanisms of federal environmental laws is the citizen suit provision in each of the various pollution control laws. Eachyear, many citizens avail themselves of these provisions and sue federal facilities to ensure compliance with environmental laws. For example, under the Clean Water Act (CWA) there were 137 citizen suits brought against the government from May 1984 to September 1988.1 During the same time period there were 502 suits filed against private industry. The dollar amounts of penalties under citizen suits can be up to $25,000 per day per violation. In addition, the prevailing party may also recover attorney fees. The cost of defending a citizen suit can be staggering. For example, a CWA enforcement proceeding between Bethlehem Steel and two environmental organizations, NRDC and the Chesapeake Bay Foundation, cost Bethlehem Steel $500,000 in attorney fees and litigation expenses.2 Even settlement of these cases can involve large amounts of money, as UNOCAL discovered when it paid $5.5 million to settle a CWA citizen suit filed by the Sierra Club Legal Defense Fund.3 Payments of this magnitude can have a significant impact on operations at any facility; therefore, facility managers should acknowledge the likelihood of citizen suits and develop a strategy to prevent and respond to them.In the case of a suit against a federal facility, the court‐ordered payments may come out of either the Judgment Fund4 or the agency's funds. By comparison, environmental penalties are typically paid from the agency's appropriated budget rather than the Judgment Fund. Beyond monetary expenditures, a citizen suit may place extensive time‐labor demands on agency personnel at all levels. Facility personnel may be required to search and catalogue records, be available for depositions and hearings, and prepare reports related to the lawsuit. If a planned facility project is the subject of the suit, the litigation can often delay a project or hamper operations until the funding and/or support for the project die. Finally, litigation often carries the risk of bad publicity. Facility managers should be aware that media coverage of a citizen suit may expose the facility's entire environmental compliance record to public scrutiny.