Citizen Suits: Notice, Standing and the Diligent Prosecution Bar

Private enforcement exists because the drafters did not assume agencies would always act. Most federal environmental statutes let any person commence a civil action against a violator, or against the administrator for failing to perform a nondiscretionary duty. The right is broad. The procedure that gates it is narrow, and the gate is a notice letter.

The waiting period and what the letter must contain

The plaintiff must serve notice of the alleged violation on the administrator, on the state in which the violation occurs, and on the alleged violator, and then wait. Sixty days is the period under the water and air statutes and for the permit and standard violations under the waste statute. Ninety days applies to endangerment claims under the waste statute, which allege that handling or disposal may present an imminent and substantial endangerment.

The contents are prescribed by regulation, not left to the drafter. The notice must give sufficient information to permit the recipient to identify the specific standard, limitation or order alleged to have been violated, the activity alleged to constitute the violation, the person responsible, the location, the date or dates of violation, and the name, address and telephone number of the person giving notice and of any counsel. Service is on the owner or managing agent of the facility, with copies to the registered agent where the violator is a corporation.

Courts treat these requirements as conditions on the right to sue rather than as technicalities. A notice that alleges violations in general terms, or that omits dates, supports dismissal of the claims it failed to describe, and the remedy is to serve a new notice and wait again. A plaintiff whose case depends on a limitations period cannot afford that.

Who may bring the action

Any person may sue, but the constitutional requirements still apply. The plaintiff must show injury in fact that is concrete and particularized and actual or imminent, traceable to the challenged conduct, and redressable by a favorable decision. In environmental cases the injury is ordinarily to the use and enjoyment of a resource — a person who fished, swam, boated or walked in an area and stopped, or curtailed use, because of reasonable concerns about the discharge.

Two points recur. The plaintiff need not prove that the environment was actually harmed; reasonable concern that affects use is the recognized injury. And an organization may sue on behalf of members who would have standing individually, provided the interests are germane to its purpose and neither the claim nor the relief requires individual participation. Affidavits from identified members who use the affected area are the ordinary proof, and their specificity does more work than any other element of the case.

When a government action forecloses the suit

Diligence is presumed and the burden of showing its absence is on the plaintiff. Courts have found prosecution diligent even where it was slow, unless the record shows the government is not seriously pursuing compliance. The strategic consequence is that a notice letter frequently prompts an agency to file, which ends the private case — a result some plaintiffs welcome and others do not.

Using the sixty days

The waiting period exists so the violation can be corrected without litigation. For a defendant it is the most valuable window in the process. Coming into compliance during it does not by itself defeat the suit, but it narrows the penalty period, strengthens a mootness argument, and reduces the injunctive relief available.

It is also the window in which a defendant should evaluate whether the violations described are ones it can disclose to the agency on its own initiative. The reduced penalty terms in the audit policy require that the discovery and disclosure be independent of a third party plaintiff's action, so a notice letter typically forecloses that route for the violations it identifies — but not necessarily for others found while investigating.

For a plaintiff the period is investigative. Monitoring reports, permit files, inspection records and manifests are public documents, and most successful private cases are built on the defendant's own filings rather than on independent sampling. Reports filed under the discharge permit monitoring requirements are the most productive source, because each exceedance is a self-reported violation with a date attached.

Relief, fees and how these cases end

Relief is prospective and public. A court may enjoin the violation, order compliance with a permit or standard, and assess civil penalties per day of violation payable to the Treasury. It may award the costs of litigation, including reasonable attorney and expert witness fees, to any prevailing or substantially prevailing party. Fee exposure is usually the largest number in the case for a defendant.

Most citizen suits settle by consent decree. Under the water statute a consent judgment may not be entered until the government has had forty-five days to review the proposed decree, which gives the agency a say in terms it did not negotiate. Decrees commonly combine an injunction, a payment and a supplemental project, and they bind the defendant for a stated compliance period.

Facilities most exposed to private enforcement are those with public, dated, self-reported compliance records: permitted dischargers, air sources filing compliance certifications under the operating permit program, and sites with a history of notifications under the release reporting rules. Endangerment claims under the waste statute reach further, and they frequently target the same conditions that produce liability under the contaminated land rules.