High Court to rule on ‘citizen suits’

Published January 1, 2000

The U.S. Supreme Court will rule this session on whether “citizen suits” filed under the Clean Water Act (CWA) and other environmental laws are constitutional. The Court’s final decision would affect citizen suits under the Clean Water Act, Clean Air Act, and Endangered Species Act.

In the CWA, Congress made provisions for individuals and organizations to sue polluters and collect fines on behalf of the Federal Treasury. In 1992, Friends of the Earth (FOE) and other groups filed a lawsuit against Laidlaw Environmental Services (now Safety Kleen) to stop them from dumping pollutants into a South Carolina river.

Soon after the suit was filed by FOE, Laidlaw asked the state of South Carolina to file suit against it because such a suit would supercede the “citizen suit.” The South Carolina Department of Health and Environmental Control did so, and Laidlaw then agreed to settle the complaint by purchasing anti-pollution equipment.

A federal judge nevertheless allowed the FOE suit to continue. The trial judge then ordered Laidlaw to pay a $405,800 fine but issued no injunction since the polluting had stopped before the case was heard in court.

The U.S. Court of Appeals for the Fourth Circuit, in Richmond, Virginia, ruled last year that the FOE suit against Laidlaw was moot since the company had come into compliance and the trial judge had not issued an injunction. The court determined that FOE was not entitled to reimbursement of its attorneys’ fees because no injunction had been filed. It further decided that a fine paid to the U.S. Treasury did not redress FOE’s complaint and therefore did not have to be paid by Laidlaw.

“This could be the death knell for citizen enforcement under the Clean Water Act,” said John Echeverria, director of Georgetown University Law Center’s Environmental Policy Project. Added Dr. Brent Blackwelder, president of Friends of the Earth, “If citizen’s rights to sue polluters are restricted, then we can kiss clean water goodby.”

“Taking away citizen enforcement is like issuing a license to pollute,” Blackwelder warned.

Twelve state attorneys general have filed a friend-of-the court brief supporting Friends of the Earth’s case. They note that citizen suits “fill the gap in Clean Water Act enforcement left by a lack of governmental resources. They are an important tool for states seeking to achieve environmental protection.” President Clinton’s Solicitor General also appeared before the Supreme Court on behalf of the plaintiffs.

Supporting the Fourth Circuit Court of Appeals is the California Association of Sanitation Agencies, which represents more than 100 public wastewater treatment agencies and 40 California cities.