Reforming Judicial Interpretation of the Diligent Prosecution Bar: Ensuring an Effective Citizen Role in Achieving the Goals of the Clearn Water Act
By Heather L. Maples
INTRODUCTION
In 1972, Congress enacted the Federal Water Pollution Control Amendments, thereby creating the United States' modern water pollution control law, commonly referred to as the Clean Water Act (CWA or Act). The 1972 amendments expanded, reorganized, and revolutionized the nation's water pollution control laws. Among other noteworthy changes, the amendments authorized private citizens to bring civil actions against violators of the CWA. In crafting the CWA's citizen suit provision, Congress closely followed the 1970 Clean Air Act's (CAA) citizen suit provision.
When Congress added citizen suits to the country's environmental enforcement arsenal in the 1970s, they were not a new concept. Federal and state corporate and securities laws had long relied on citizen enforcement through derivative suits and securities suits respectively. Just as the business judgment rule sometimes directs courts to defer to management's business decisions, the CWA's citizen suit provision instructs the courts to defer to agency action when the EPA or a state environmental agency “has commenced and is diligently prosecuting a civil or criminal [enforcement] action” against the alleged violator. However, if the EPA or state environmental agency fails to enforce the law, citizen suits may act as a final check on those who would otherwise violate the law.
In theory, it should be easy to meet the CWA's goals using the combined resources of the federal government, state government, concerned citizens, and citizens' groups. Yet, courts dismiss many citizen suits for lack of subject matter jurisdiction because of the unclear definition of diligent enforcement and ad hoc judicial interpretation of the applicable CWA provisions. This unfortunate consequence occurs frequently despite the important role citizen suits play in ensuring effective government enforcement.
This Note contends that Courts should hear a citizen suit whenever a plaintiff alleges that state enforcement action is inadequate. Congress included a citizen suit provision in the 1972 CWA amendments to stop the “race to the bottom” by state enforcement agencies. Competition to lure or maintain industries created incentives for individual states to be less stringent than other states in enforcing environmental laws. Thus, to attract tax revenues and jobs, states were extremely lax in prosecuting pollution violations before the 1972 amendments.
Congress intended the citizen suit provision of the CWA to promote or substitute for government enforcement. Although Congress recognized achieving the CWA's goals would require diligent enforcement, Congress wanted to avoid inundating already overburdened courts with duplicative actions. Perhaps a sense of fairness to violators also motivated Congress to include the “diligent prosecution” bar to ensure that violators would not be sued by both the federal government and citizens if government enforcement alone would suffice.
The CWA's drafters envisioned strict compliance with the law to achieve the ambitious goals of making all rivers and other waters swimmable and fishable by 1983 and of completely eliminating the discharge of pollutants into navigable waters by 1985. However, federal and state governments have slashed budgets for water pollution enforcement. Today, forty percent of the nation's rivers, lakes, and streams remain too polluted for swimming, fishing, or other aquatic activities. While the quality of this nation's waters has improved greatly, much work remains to be done. At such a crucial time in the history of the water clean-up movement, the country must examine the failure of enforcement agencies and courts to implement the Act and to promote its goals.
This Note argues that states have wreaked havoc with the enforcement system by manipulating the law to protect violators, thereby frustrating the purpose of the CWA's citizen suit provision. This Note examines the role that proper judicial interpretation of the CWA must play in the effort to meet the Act's lofty goals. Part II provides an overview of the citizen suit provisions and the CWA's structure and goals. Part III examines the legal developments in the interpretation of the citizen suit provisions and suggests that some judicial misinterpretations have undermined the CWA's goals and allowed states and violators to circumvent the Act. Notable misinterpretations have allowed state consent orders that did not result in compliance to preclude citizen suits for injunctive relief. Part IV proposes distinct standards for applying and interpreting the diligent prosecution provisions so as to comport with both the goals and the statutory construction of the Act. Courts should abide by the plain language of the statute, adequately distinguish between the type of relief sought in determining whether the enforcing agency has diligently prosecuted, and in most cases presume non-diligent prosecution unless defendants can prove otherwise. Finally, Part V concludes that the judicial adoption of these standards would provide the best means to promote voluntary compliance with the CWA because the proposed standards seek to eliminate any benefit from noncompliance or delayed compliance. A proper interpretation of the CWA would allow citizen suits to achieve their intended purposes and reestablish them as the most dependable enforcement tool of the Act.
In 1972, Congress enacted the Federal Water Pollution Control Amendments, thereby creating the United States' modern water pollution control law, commonly referred to as the Clean Water Act (CWA or Act). The 1972 amendments expanded, reorganized, and revolutionized the nation's water pollution control laws. Among other noteworthy changes, the amendments authorized private citizens to bring civil actions against violators of the CWA. In crafting the CWA's citizen suit provision, Congress closely followed the 1970 Clean Air Act's (CAA) citizen suit provision.
When Congress added citizen suits to the country's environmental enforcement arsenal in the 1970s, they were not a new concept. Federal and state corporate and securities laws had long relied on citizen enforcement through derivative suits and securities suits respectively. Just as the business judgment rule sometimes directs courts to defer to management's business decisions, the CWA's citizen suit provision instructs the courts to defer to agency action when the EPA or a state environmental agency “has commenced and is diligently prosecuting a civil or criminal [enforcement] action” against the alleged violator. However, if the EPA or state environmental agency fails to enforce the law, citizen suits may act as a final check on those who would otherwise violate the law.
In theory, it should be easy to meet the CWA's goals using the combined resources of the federal government, state government, concerned citizens, and citizens' groups. Yet, courts dismiss many citizen suits for lack of subject matter jurisdiction because of the unclear definition of diligent enforcement and ad hoc judicial interpretation of the applicable CWA provisions. This unfortunate consequence occurs frequently despite the important role citizen suits play in ensuring effective government enforcement.
This Note contends that Courts should hear a citizen suit whenever a plaintiff alleges that state enforcement action is inadequate. Congress included a citizen suit provision in the 1972 CWA amendments to stop the “race to the bottom” by state enforcement agencies. Competition to lure or maintain industries created incentives for individual states to be less stringent than other states in enforcing environmental laws. Thus, to attract tax revenues and jobs, states were extremely lax in prosecuting pollution violations before the 1972 amendments.
Congress intended the citizen suit provision of the CWA to promote or substitute for government enforcement. Although Congress recognized achieving the CWA's goals would require diligent enforcement, Congress wanted to avoid inundating already overburdened courts with duplicative actions. Perhaps a sense of fairness to violators also motivated Congress to include the “diligent prosecution” bar to ensure that violators would not be sued by both the federal government and citizens if government enforcement alone would suffice.
The CWA's drafters envisioned strict compliance with the law to achieve the ambitious goals of making all rivers and other waters swimmable and fishable by 1983 and of completely eliminating the discharge of pollutants into navigable waters by 1985. However, federal and state governments have slashed budgets for water pollution enforcement. Today, forty percent of the nation's rivers, lakes, and streams remain too polluted for swimming, fishing, or other aquatic activities. While the quality of this nation's waters has improved greatly, much work remains to be done. At such a crucial time in the history of the water clean-up movement, the country must examine the failure of enforcement agencies and courts to implement the Act and to promote its goals.
This Note argues that states have wreaked havoc with the enforcement system by manipulating the law to protect violators, thereby frustrating the purpose of the CWA's citizen suit provision. This Note examines the role that proper judicial interpretation of the CWA must play in the effort to meet the Act's lofty goals. Part II provides an overview of the citizen suit provisions and the CWA's structure and goals. Part III examines the legal developments in the interpretation of the citizen suit provisions and suggests that some judicial misinterpretations have undermined the CWA's goals and allowed states and violators to circumvent the Act. Notable misinterpretations have allowed state consent orders that did not result in compliance to preclude citizen suits for injunctive relief. Part IV proposes distinct standards for applying and interpreting the diligent prosecution provisions so as to comport with both the goals and the statutory construction of the Act. Courts should abide by the plain language of the statute, adequately distinguish between the type of relief sought in determining whether the enforcing agency has diligently prosecuted, and in most cases presume non-diligent prosecution unless defendants can prove otherwise. Finally, Part V concludes that the judicial adoption of these standards would provide the best means to promote voluntary compliance with the CWA because the proposed standards seek to eliminate any benefit from noncompliance or delayed compliance. A proper interpretation of the CWA would allow citizen suits to achieve their intended purposes and reestablish them as the most dependable enforcement tool of the Act.
