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How Citizens' Environmental Lawsuits Can Stop Pollution - September 2015

September 24, 2015

by James T. Lang

The U.S. Environmental Protection Agency (“EPA”) and the Virginia Department of Environmental Quality (“DEQ”) have primary responsibility for enforcing the environmental laws and regulations in the Commonwealth of Virginia. There are times, however, when the EPA or the DEQ are unwilling or unable to take action against a polluter who is contaminating water, air or land in violation of environmental law. Sometimes the government fails to act because the community suffering from the pollution is not affluent and, hence, does not enjoy a high degree of responsiveness from elected or appointed government officials. Other times, government officials fail to act because the complained-of violations are prioritized by them as being “small” in relation to the other violations that these officials have decided to pursue. When government declines to act – no matter the reason – the Citizens’ Environmental Lawsuit plays an important enforcement role that can stop the pollution, force the polluter to clean up the contamination, pay a monetary fine, and reimburse the citizen who brought the suit for his or her litigation expenses. As one Court wrote:

[C]itizens' suits . . . play [an important role] in the enforcement of [the environmental laws]. The EPA must classify cases in order to maximize its scarce enforcement resources. There are some violations that, by necessity, may not be pursued aggressively. However, [an environmental] violation is only "small" to one who does not live near the offending hazardous waste facility. Indeed, the [Citizens’ Environmental Lawsuit] is a testament to Congress' wisdom in recognizing that those who live in close proximity to hazardous waste facilities often are the most diligent enforcers of [environmental law] mandates.

Sierra Club v. Chem. Handling Corp., 824 F. Supp. 195, 197-98 (D. Colo. 1993).

A provision that specifically authorizes Citizens’ Environmental Lawsuits is written into each of the major environmental protection statutes:

The Clean Water Act provides for Citizens’ Environmental Lawsuits at 33 U.S.C. § 1365;

The Clean Air Act provides for Citizens’ Environmental Lawsuits at 42 U.S.C. § 7604; and,

The Resource, Conservation and Recovery Act (aka “The Clean Land Act”) provides for Citizens’ Environmental Lawsuits at 42 U.S.C. § 6972.

A recent case brought by three citizens groups against a corporate owner of a coal mine for pollution of the water in the Kelly Branch and Callahan Creek in Wise County, Virginia, illustrates the powerful results that can be accomplished in a Citizens’ Environmental Lawsuit. The citizens groups filed their legal action in the U.S. District Court for the Western District of Virginia: Southern Appalachian Mountain Stewards v. A&G Coal Corporation, case no. 2:12cv000009 (W.D. Va. complaint filed May 3, 2012). The citizens groups brought the case because they discovered that the corporation was discharging the toxic pollutant selenium into Kelly Branch and Callahan Creek without a permit from the DEQ. The EPA confirms that selenium reduces survival and causes skeletal deformities in fish (click here). The citizens groups in the Southern Appalachian Mountain Stewards case, prior to filing the legal action in court, made the EPA and the DEQ aware of the selenium violations at the coal mine through a formal written notice provided to both governmental agencies. The service of such formal written notices, and a 60 day waiting period, are required prior to filing a Citizens Environmental Lawsuit. For whatever reason, the EPA and the DEQ took no action, after which the citizens group filed their complaint with the Court. In the complaint, the citizens groups asked the Court to order the coal mine to apply to the DEQ for a permit, to pay a civil penalty to the United States in an amount up to $37,500.00 per violation per day, and to pay the citizens groups for their costs of the litigation.

On July 22, 2013 the U.S. District Court found that the corporation violated the Clean Water Act by discharging the toxic pollutant selenium into the two water bodies, just as the citizens groups had alleged. The Court ordered the corporation to conduct sampling for selenium in the Kelly Branch and in Callahan Creek at locations and on a schedule suggested by the citizens groups, as well as to provide the results of this sampling to the DEQ and to the citizens groups. It also ordered the corporation to apply to the DEQ for a permit for its selenium discharges and to provide the Court with periodic written reports as to the corporation’s progress in obtaining the required permit (with a copy of the reports to the citizens groups). Additionally, as requested by the citizens groups, the Court deferred consideration of the civil penalty to be imposed on the corporation for its violations until such time as the corporation eventually obtains its permit.

On October 2, 2014, the Court ordered the corporation to pay the citizens groups $175,623.18 as a reimbursement for their costs of the litigation.

The corporation filed its most recent status report on February 6, 2015, indicating in its filing that sampling for selenium was being conducted every day, that the results were being shared with the DEQ and the citizens groups, and that the corporation remained in the process of obtaining its permit.

Because of the success of the Citizens Environmental Lawsuit filed in the U.S. District Court, these citizens groups will have a seat at the table as the DEQ hammers out the terms in the corporation’s permit. This puts the citizens groups in a position they would not otherwise have occupied, functioning as a watchdog during the permit issuing process to ensure that the DEQ places appropriate conditions in the permit requiring the corporation to reduce its pollution in order to protect the waters of the Kelly Branch and Callahan Creek.

Additionally, and again because of the success of the Citizens Environmental Lawsuit filed in the U.S. District Court, the citizens group will return to the U.S. District Court when the permit is (at last) issued, at which time the citizens group will calculate the number of days the corporation violated the Clean Water Act. The first date of violation will be the date in 2011 when the citizens group first uncovered the pollution violations. The final date will be some date in 2015 or beyond when the corporation eventually gets its permit from the DEQ. Once the number of days in violation have been determined, the citizens group will ask the Court to order the corporation to pay a civil penalty to the United States in an amount up to $37,500.00 per violation per day.

The importance of forcing the polluter to pay an appropriate civil penalty is vital to the effectiveness of the law, as was explained by the U.S. District Court for the District of South Carolina when it imposed a $405,800.00 civil penalty on a polluter for its Clean Water Act violations. The Court there wrote:

The court in PIRG v. Powell Duffryn Terminals, Inc., 720 F. Supp. 1158 (D.N.J. 1989), aff'd in part, rev'd in part, 913 F.2d 64 (3d Cir. 1990), cert. denied, 498 U.S. 1109 (1991), explained well the purposes behind civil penalties:

Civil penalties seek to deter pollution by discouraging future violations. To serve this function, the amount of the civil penalty must be high enough to insure that polluters cannot simply absorb the penalty as a cost of doing business. Otherwise, a rational profit maximizing company will choose to pay the penalty rather than incur compliance costs. Additionally, the probability that a penalty will be imposed must be high enough so that polluters will not choose to accept the risk that non-compliance will go unpunished.

Id. at 1166, (citations omitted). Similarly, only by removing the economic benefit of noncompliance can a civil penalty ensure that a violator receives no economic advantage vis-a-vis its competitors who comply in a timely fashion with all environmental regulations. PIRG v. Powell Duffryn Terminals, Inc., 913 F.2d at 80 (quoting S. Rep. No. 50, 99th Cong., 1st Sess. 25 (1985)).

Actually, to serve as an effective deterrent, a civil penalty must recover an amount beyond the economic benefit of noncompliance. If a penalty recovered merely required the polluter to disgorge the benefit it received from noncompliance, then from a purely economic standpoint, a discharger would be indifferent between spending the money necessary to achieve full compliance in a timely manner and ignoring the regulation and simply paying the civil penalty as a cost of doing business. See SPIRG v. Monsanto Co., 29 Env't Rep. Cas. (BNA) 1078, 1090 (D.N.J. 1988) ("To simply equalize the economic benefit with the penalty would serve ill the possibility of discouraging other and future violations. Some additional penalty should be imposed as a sanction.").

Friends of the Earth v. Laidlaw Envtl. Servs., 890 F. Supp. 470 491-92 (D. S.C. 1995), rev'd on other grounds, 149 F.3d 303 (4th Cir. 1998), rev'd, 528 U.S. 167 (2000).

Jim Lang is a Pender & Coward shareholder who focuses his practice on Water and Environmental Law. If you would like to reach him with questions about Citizens’ Environmental Lawsuits or other matters relating to water or environmental law, call (757) 502-7326 or send an email to jlang@pendercoward.com.