The future of the Obama Presidential Center remains uncertain after last week’s court ruling allowed a citizen suit against it to proceed. But businesses facing citizen suits should take comfort in courts’ continued willingness to consider—and occasionally grant—motions to dismiss citizen suits for lack of standing. Continue Reading Obama Presidential Center Decision Reinforces Bar for Citizen Suit Standing

Streamlining environmental reviews and permitting for infrastructure projects is a major objective of President Trump. And one of the biggest permitting roadblocks that can come up in renewable energy, transmission line, resource recovery, and any other infrastructure projects is potential impacts to wildlife. Continue Reading Infrastructure Permitting Tug of War Between Trump Administration and Citizen Groups

“Standing” –  a person’s right to sue someone else for injury – is a fundamental issue in every case. In 2016, the U.S. Supreme Court decided Spokeo v. Robins, which required that a person’s injury be both “concrete” and “particularized” to confer standing.

Since Spokeo, the environmental bar has been left guessing how Spokeo would play out in environmental cases, as many environmental cases are rooted in federal statutes that give private individuals the right to sue. That question was answered for the first time last week when a federal judge in North Carolina dismissed a lawsuit brought under the Resource Conservation and Recovery Act (RCRA) and the Coal Combustion Residuals (CCR) rule, in part because the plaintiff environmental group failed to meet the standing test established under Spokeo. Continue Reading Recent RCRA Ruling Offers Insight on Applying Spokeo to Environmental Citizen Suits

While the manufacturing industry assesses the benefits of President Trump’s promised relaxation of federal environmental policy, many may find themselves increasingly embroiled with other challenges. Likely at the top of that list are disputes with “citizen scientists” – non-scientists eager to fill in what they see as gaps in Environmental Protection Agency (EPA) regulation and enforcement.

Continue Reading Three Strategies for Manufacturers to Address Escalating Citizen Science

Last month, the U.S. District Court for the Eastern District of Kentucky sided with a utility and dismissed a citizen suit based on the Resource Conservation and Recovery Act (RCRA) and Clean Water Act (CWA). The opinion contradicts other recent federal court decisions analyzing the applicability of the CWA to coal ash discharges through groundwater.

Continue Reading Kentucky Decision Has Implications for Utilities Fighting Citizen Suits

On January 6, 2016, the Third Circuit held that the Clean Air Act’s diligent prosecution bar cannot be the basis for a motion to dismiss for lack of subject matter jurisdiction.  Instead, the bar requires citizen suits under the Act to be dismissed for failure to state a claim. Group Against Smog & Pollution v. Shenango, Inc., Case No. 15-2041 (Jan. 6, 2016). Several federal environmental laws bar citizen suits where regulators are “diligently prosecuting” a civil action against the alleged violator. With this case, the Third Circuit became the third appellate court to break with past precedent and hold that a diligent prosecution bar is not jurisdictional. This change will require defendants filing motions to dismiss based on the diligent prosecution bar to do so before they answer a complaint. Additionally, it will require courts to accept all well-pleaded facts in the complaint as true and view them in the light most favorable to the plaintiff. Industry defendants should be aware of these procedural changes as they prepare to respond to citizen suits. Continue Reading Third Circuit Holds Diligent Prosecution Bar Does Not Preclude Jurisdiction for Citizen Suit

On October 20, 2015, a district court held that a state enforcement action brought under the Clean Water Act (CWA) did not bar a citizen suit from proceeding against Duke Energy Carolinas, LLC (Duke Energy). Yadkin Riverkeeper, Inc. v. Duke Energy Carolinas, LLC, Case No. 1:14-cv-753 (M.D.N.C. Oct. 20, 2015).  For regulated industries, Yadkin Riverkeeper is a reminder that the diligent prosecution bar to citizen suits under federal environmental statutes is not absolute, and the existence of a government enforcement action alone may not be enough to bar a citizen suit. Continue Reading Too Little, Too Late: State Agency’s Enforcement Action Does Not Bar Citizen Suit

On June 17, 2015, an Ohio district court ruled that a consent decree in a separate Illinois action did not preclude certain claims asserted in a citizen suit under the Clean Air Act (CAA).  Graff v. Haverhill N. Coke Co., No. 1:09-cv-670 (S.D. Ohio June 17, 2015).  Generally, a consent decree precludes citizen suit plaintiffs from pursuing separate claims.  The idea is that the claims were previously litigated under the doctrine of res judicata.  However, in Graff the court permitted citizen plaintiffs to continue pursuing claims that the government did not allege or specifically address in a consent decree.

In 2009, the citizen plaintiffs originally filed suit in relation to the defendants’ operation of a coke processing plant near the citizen plaintiffs’ property.  However, in 2013, the U.S. EPA, the State of Illinois and the State of Ohio (the Governments) filed a separate action in Illinois for CAA violations against some of the same defendants.  U.S. v. Gateway Energy & Coke Co., LLC, No. 3:13-cv-616 (S.D. Ill.).  The parties in the Illinois action ultimately entered into a consent decree, which dealt in part with the defendants’ coke processing plant in Ohio. Continue Reading Consent Decrees May Not Preclude Certain Claims in Citizen Suits

A district court judge adopted the rarely applied “constructive submission” doctrine, which could ultimately give advocacy groups leverage over states that ignore Clean Water Act (CWA) requirements. This decision may embolden advocacy groups and comes at a time when, as noted in previous posts on this blog, enforcement actions brought by public citizens continue to grow as an effective means of enforcing environmental laws and regulations. Continue Reading Advocacy Groups Have a New Opening to Enforce the CWA When States Do Not Act

The U.S. Department of Justice (DOJ) is in the midst of a comprehensive policy review regarding the use of Supplemental Environmental Projects (SEPs) in settlements of environmental enforcement actions. This review could potentially have far-reaching implications for companies that seek to settle such actions brought by either the federal government, or in the case of a citizen suit, a non-governmental organization (NGO). It remains to be seen if the ongoing SEP policy review will result in additional limits on the use of SEPs in settlement, thus limiting the flexibility in achieving penalty mitigation that has been a hallmark of environmental enforcement case resolutions for nearly three decades. Continue Reading DOJ Policy Review of SEPs May Have Big Implications for Company Environmental Settlements