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A citizen suit is a lawsuit brought by a private citizen to enforce a law, usually one the person believes is being enforced inadequately. Such suits are particularly common in the environmental field.聽Many of these laws let ordinary citizens sue because of alleged violations.聽These suits can be brought against private parties and/or聽governmental entities聽for violating air, water, waste, endangered species and mining laws, among others.

Many environmental laws enable private plaintiffs to:聽challenge actions (e.g., construction of a facility or environmental effects of operations); seek a remedy for alleged ongoing or historic pollution; seek penalties (payable to the government); seek聽court-ordered injunctive relief (e.g., stop the alleged violation); and seek recovery of attorneys鈥� fees and costs.聽These lawsuits usually are not brought by individuals, but by environmental organizations.
Because governmental agencies cannot聽identify and聽pursue all environmental law violators, citizen suits can be聽useful, empowering anyone with an interest in environmental protection to demand that the law be enforced. But citizen suits also can overreach, making mountains out of molehills while causing defendants to spend substantial time and money in defense.
Generally, before聽a citizen suit concerning enforcement of a federal聽environmental law can be initiated, a notice of intent to file the lawsuit must be provided to: the facility believed to be violating the environmental requirements, the state in which the facility is located, and the Environmental Protection Agency.

This notice provision is important because it provides the alleged violator an opportunity to assess whether it is in fact violating any law, and, if so, to聽come into compliance before being facing聽a lawsuit.聽It also聽gives the regulatory agency the ability to assess whether it believes it should pursue an enforcement action for the alleged violations, thereby preventing聽the citizen from filing the suit.聽(Citizen suits are prohibited where the government is 鈥渄iligently prosecuting鈥� a case against the alleged violator for the alleged violations that are the subject of the would-be citizen suit).
In Oregon, there are a number of environmental organizations that bring citizen suits on a fairly regular basis.聽One of the most common聽suits seeks to enforce the federal Clean Water Act. Under the CWA, violations can lead to penalties up to $37,500 per day (payable to the U.S. Treasury).

The first step that an environmental organization takes when contemplating a citizen suit under the CWA聽is聽to send a “Sixty-day Notice of Violations of the Clean Water Act.”聽In this letter, the organization often聽contends that the recipient has violated or is violating the聽CWA by discharging pollutants and/or stormwater from a facility without (or in violation of) a National Pollutant Discharge Elimination System permit.

The typical letter references the penalty provision in the聽CWA that provides for civil penalties of up to $37,500 per day per violation.聽In the case of purported stormwater discharge violations, the聽organization often alleges that the recipient has violated the CWA on each day that it has rained 0.1 inches or more during any 24-hour period at any point during the last five years, and then attaches a list of dates on which it has rained that amount during this period.

Needless to say, given Oregon鈥檚 climate, the number of days on which it has rained 0.1 inches or more over a five-year period is in the hundreds.聽At $37,500 per day per violation, such a letter聽can cause the recipient considerable聽distress as they become concerned about having to pay potentially millions of dollars in penalties 鈥� as well as the plaintiff’s legal fees and costs, as well as their own.
Permitting individual plaintiffs to request civil penalties ranging in the millions of dollars obviously聽provides plaintiffs significant leverage over alleged violators.聽Providing聽penalty authority to citizen plaintiffs has been the subject of considerable debate.

Supporters argue that the penalty provision increases the efficacy of the citizen suit program because, among other reasons, private parties will initiate citizen suits only if they have enforcement powers equivalent to the government and that permitting聽citizens to seek聽penalties聽equivalent to what the聽government could seek ensures聽some consistency in enforcement and聽treats violators equally.

Opponents of聽allowing penalties in citizen suits argue that conferring this聽power on citizens invites abuse and threatens to undermine the traditional role of government, and in particular the law聽enforcement jurisdiction of the聽executive branch.
In many citizen suit settlements, the alleged violators avoid or minimize civil penalties by instead paying a sum of money to a third-party environmental organization (not related to the plaintiff) or to an otherwise environmentally beneficial project.聽This can be a 鈥渨in-win鈥� in that the defendant pays less than it might have in penalties, while the citizen plaintiff facilitates payment to an organization or project with a public interest.
Oftentimes, the best strategy when faced with the threat of a citizen suit is to attempt to聽address the聽contentious issues through discussions with the potential plaintiff and then employ creative problem solving before a lawsuit is filed.

There is no聽鈥渙ne size fits all鈥� strategy or a single set of solutions.聽The facts, parties and circumstances of each case must be examined individually.聽Some cases are ripe for settlement; however, for others, litigation is the best path.

Patrick Rowe聽is a partner with the law firm of Sussman Shank LLP. He is a member of its business litigation and environmental practice groups.聽Contact him at 503-227-1111 or [email protected].