CITIZENS’ SUIT PROVISION
Every Citizen Has a Stake in Clean Water
As owners and users of our public resources, all citizens have a right to legally challenge damage to waters protected under the Clean Water Act (CWA).
In recognition that the nation’s waters are a public resource, Congress included a Citizen Lawsuit provision in the Clean Water Act to insure that there was sufficient oversight.
Congress made clear that citizens are not to be treated as nuisances or troublemaker,s but rather as welcomed participants in the vindication of environmental interests. Fearing that administrative enforcement might falter or stall, citizen suit provisions reflected a deliberate choice by Congress to widen citizen access to the courts as a supplemental and effective assurance the Act would be implemented and enforced.
Clean Water Act: Citizen Lawsuit Fundamentals
Any citizen may commence a civil action on his own behalf. “Citizen” means a person or persons having an interest which is or may be adversely affected. To establish standing, the citizen must allege injury in fact due to defendant’s violations. Citizens usually allege they are being or will be adversely affected by illegal discharges with regard to health, economic, recreational, aesthetic or environmental interests. It is typical for a plaintiff to regularly use the affected water or to reside near or recreate near the affected water.
Before starting a lawsuit, a citizen must give 60 day notice of their intent to sue to the alleged violator, the U.S. Environmental Protection Agency (EPA) and the local delegated enforcement agency (such as the Montana Department of Environmental Quality in Montana state.) Such notice is provided via a letter commonly referred to as a “60 Day Notice Letter”.
If the dispute has not been settled within the 60 day notice period, a citizen may then file a “complaint”. The Complaint is the formal legal document that constitutes the filing of the lawsuit. The complaint sets out the facts and legal reasons for filing the lawsuit and names the citizen as the “plaintiff” and the polluter as the “defendant”. Complaints are a matter of public record.
The CWA does not confer jurisdiction on federal courts to entertain citizen suits to enforce against “wholly past violations.” Violations must be “ongoing” at time lawsuit is started. Thus, lawsuits by Upper Missouri Waterkeeper, Inc. are not based on one-time accidental incidents or pollution discharges that have already been corrected or cleaned up.
Resolution of a Lawsuit
Most CWA lawsuits are resolved with a negotiated agreement. A Consent Decree is a stipulated settlement that is signed by both parties, entered with the Court and enforceable as a Court order. A Settlement Agreement is an out-of-court agreement signed by both parties and enforceable as a contract. In these settlements, Upper Missouri Waterkeeper, Inc. seeks three components:
- Compliance: The main objective of every CWA lawsuit filed by Upper Missouri Waterkeeper, Inc. is to reduce the discharge of pollutants to the waters of the Upper Missouri River Basin. This is accomplished by the facility agreeing to undertake certain onsite improvements called “best management practices” (BMPs). BMPs range from operational and structural changes to the installation of advanced stormwater treatment systems. Source control BMPs include things like regular sweeping, proper storage of hazardous substances and other basic housekeeping measures. When housekeeping measures are not enough, the facility will be required to install a treatment system that removes up to 99% of the pollutants before discharge to local waters.
- Penalty: The CWA provides for penalties of up to $37,500 per violation, per day. Penalties that result from a Court judgment go to the U.S. Treasury. However, if a settlement occurs, Courts are willing to allow the parties to send that money to local third party recipients to spend on environmental benefit projects in the affected watershed. In the interest of keeping this money in the Upper Missouri River Basin, Upper Missouri Waterkeeper Inc. strives to end lawsuits in settlement where we have the ability to specify where and how monies are spent. As part of those settlements, the polluter pays the penalty directly to the third party who, in turn, spends the money on projects that restore and benefit the Upper Missouri River Basin.
In determining civil penalties, a court will consider the following:
seriousness of the violation
economic benefit derived as a result of the violations
good-faith efforts to achieve compliance
economic impacts on violator
such other matters as justice may require
- Attorney’s Fees and Costs: The CWA also provides for the recovery of the costs of litigation. This includes reasonable attorney’s fees and expert witness fees.