January 20, 2009

More Clean Water Act Citizen Suits on the Way?

Posted on January 20, 2009 by Fournier J. Gale, III

At least in the Southeast, the popularity of Clean Water Act citizen suits has waxed and waned over the course of the Act’s 37 year history. However, our firm’s environmental practice group began to see a renewed interest in citizen suits a couple of years ago, and a recent decision by the Eleventh Circuit Court of Appeals may lead to an even greater resurgence.

In Black Warrior Riverkeeper, Inc. v. Cherokee Mining, LLC, the Eleventh Circuit held that a citizen suit may proceed against a defendant for alleged violations of the Clean Water Act despite the state environmental agency’s commencing an administrative enforcement action before the citizen suit was filed. 548 F.3d 986 (11th Cir. 2008). Riverkeeper, an environmental organization supporting the preservation of the Black Warrior River watershed in Alabama, filed suit in 2007 against Cherokee Mining, an owner and operator of two coal mines in northern Alabama, for alleged illegal discharges to navigable waters in violation of the company’s permit. Pursuant to the Act, Riverkeeper first sent Cherokee Mining a “60-day notice letter,” notifying the company of its intent to file suit in federal court. The state environmental agency then commenced enforcement by issuing an administrative consent order, and Riverkeeper filed its suit in the Northern District of Alabama shortly thereafter.

            Cherokee Mining filed a Motion to Dismiss Riverkeeper’s suit for lack of subject matter jurisdiction under Section 309 of the Act which precludes citizen suites when a state agency has commenced and is diligently prosecuting an administrative enforcement action against a defendant. Riverkeeper responded by pointing to what until now has been a largely overlooked provision in Section 309 stating that the citizen suit bar does not apply to actions filed after a citizen gives its notice of intent to sue prior to commencement of an administrative enforcement action and the citizen actually files suit “before the 120th day after the date on which such notice is given.” 33 U.S.C. § 1319(6)(B)(ii). Based on language found elsewhere in Section 309, Cherokee Mining argued that this 120-day exception only applies to federal, not state, administrative enforcement actions. The district court rejected this argument and held that Riverkeeper’s suit could go forward because it met the Act’s notice of intent to sue requirements. Holding that Cherokee Mining’s interpretation of the statute “was an extremely cramped and narrow reading of the ordinary and plain meaning of the relevant language” in the Act, the Eleventh Circuit affirmed the district court’s decision. Cherokee Mining petitioned the Court for panel or en banc rehearing, and the petition was denied on January 8, 2009. There has been no word yet as to whether Cherokee Mining plans to appeal the case to the U.S. Supreme Court.

            Until now, no Circuit Court has ever addressed the 120-day rule on which Riverkeeper successfully relied as an exception to the bar on citizen suits filed after the commencement of state administrative enforcement actions. Prior to the Eleventh Circuit’s decision, state agencies routinely initiated successful administrative enforcement actions once notified of a citizen suit, and the citizen either did not file suit or had their case dismissed pursuant to Section 309 of the Act.  Certainly for companies operating in Alabama, Georgia, and Florida, the rules have now changed. Entities faced with both a citizen suit and state administrative enforcement action have a much lower incentive for resolving the matter by coming into compliance and paying state penalties when they may be required to later pay citizens’ attorneys fees and Clean Water Act statutory penalties (up to $32,500 per day per violation) or even be required to comply with court-ordered injunctive relief that may be at odds with whatever the state would have required. Because state environmental agencies recognize the dilemma regulated entities face as a result of this decision, states are also going to have to alter their strategies in dealing with potential noncompliance of clean water regulations by industry. Because administrative consent decrees will be less palatable to regulated entities, the state will have to weigh whether or not to go to the added expense (in terms of dollars and resources) of filing a lawsuit in state court.

            This state of affairs is not likely to go unnoticed by citizen groups throughout the country. As counsel for Riverkeeper stated after the Court issued its opinion—“this changes everything.” With the increase in “60-day notice” letters we’ve seen being sent to entities just in Alabama in the last few months, it’s hard to disagree.

For more information, a copy of the Eleventh Circuit’s decision can be found at http://www.ca11.uscourts.gov/opinions/ops/200810810.pdf

Tags: Water


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