ALI-ABA Course of Study Clean Water Act. April 23-24, Excerpt From: Trends in Citizen Enforcement Suits Under the Clean Water Act

Transcription

1 ALI-ABA Course of Study Clean Water Act April 23-24, 2009 Excerpt From: Trends in Citizen Enforcement Suits Under the Clean Water Act By Charles Caldart Josh Kratka National Environmental Law Center Boston, Massachusetts This article is reproduced from the ALI-ABA Course of Study Materials, Clean Water Act: Law and Regulation, held October 25-26, 2007, in Washington, D.C.. For the archived online course:

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3 141 TRENDS IN CITIZEN ENFORCEMENT SUITS UNDER THE CLEAN WATER ACT 1 Charles Caldart and Josh Kratka National Environmental Law Center Public interest litigation has played a prominent role in the development of environmental law and policy, and nowhere is this more apparent than in the area of Clean Water Act enforcement. Congress intentionally encouraged environmental organizations and advocates to pursue the public good under the Act as private attorneys general. Now, at a time when federal and many state agencies have prioritized good relations with the regulated community over strict enforcement of the nation s environmental laws, the role and value of citizen enforcement has become increasingly prominent. Broadly speaking, there are three types of Clean Water Act enforcement suits that a citizen may be able to pursue in federal court. The first is a suit pursuant to 33 U.S.C. 1365(a)(1) to enforce the Act against a violator, such as a company failing to comply with effluent limitations specified in a National Pollutant Discharge Elimination System ( NPDES ) permit. The second is a suit pursuant to 33 U.S.C. 1365(a)(2) to compel EPA action, as in the case of a failure by the agency to issue a particular rule required by the Act. Both types of suits are filed in U.S. district court. The third is a petition to a circuit court of appeals for judicial review of certain EPA actions, pursuant to 33 U.S.C. 1369(b), such as a challenge to EPA implementing regulations that are allegedly at odds with the Act. The primary focus of these materials is citizen enforcement suits against violators of the Act (or, as citizen plaintiffs tend to call them, polluters ). I. STANDING Jurisdictional challenges have a particular importance in public interest environmental litigation. Often, the underlying substantive issue in a citizen suit is straightforward, both factually and legally. A corporate defendant caught violating an NPDES permit requirement on the basis of its own discharge monitoring reports, for example, or EPA failing to meet a nondiscretionary statutory deadline, may have no substantive defenses. Disputing the court s jurisdiction to hear the public interest plaintiff s claim may be the only available defense. Congress intended to eliminate as many barriers to citizen standing as possible in the first major substantive federal environmental laws of the modern era: the Clean Air Act Amendments of 1 Parts of this paper are adapted from a chapter on Public Interest Environmental Litigation, written by Mr. Caldart and by Stephen H. Burrington and Peter Shelley of the Conservation Law Foundation, for a Massachusetts Continuing Legal Education handbook. 1

4 and the Federal Water Pollution Control Act Amendments of 1972 (now commonly referenced as the Clean Water Act). Section 505 of the Clean Water Act, 33 U.S.C. 1365, creates an explicit private right of action against violators of the law. Nonetheless, any suit brought in federal court must meet the case or controversy requirements of Article III of the U.S. Constitution. Article III standing is generally held to be a non-waivable jurisdictional issue that can be evaluated by the court at any stage of the litigation. As reaffirmed by the Supreme Court in Lujan v. Defenders of Wildlife, 504 U.S. 555, (1992), Article III requires that the plaintiff establish: that he or she suffered an injury in fact an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical ; that the injury is fairly trace[able] to the challenged action ; and that it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. The early cases of Sierra Club v. Morton, 405 U.S. 727 (1972), and United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669 (1973), established the parameters for meeting these requirements in environmental cases. The Sierra Club case and its successor, Warth v. Seldin, 422 U.S. 490 (1975), established the important principle that injury in fact suffered by individuals can be redressed by litigation brought on their behalf by organizations representing them. Sierra Club further held that Article III injuries are not limited to economic or physical damage but encompass aesthetic, recreational, and other nontraditionally protected interests as well. Even though the Sierra Club lost the battle on standing in that specific case, the precedent set by the case has been one of the beacons for standing analysis since that time. It is incumbent upon environmental practitioners to pay strict attention to the Article III limits on standing: 2 they must take care drafting standing allegations in the complaint and must be prepared to present sufficient evidence to establish the requisite elements of standing at summary judgment and/or at trial. It is also critical to bear in mind the distinction in levels of proof and judicial analysis between what is required for purposes of surviving a motion to dismiss under Fed.R.Civ.P. 12(b) and what is required for surviving a motion for summary judgment under Fed.R.Civ.P The judge-made prudential limitations on federal court standing, summarized in Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464 (1982), generally will not be relevant to actions brought in accordance with a citizen suit provision such as Section 505 of the Clean Water Act. Warth v. Seldin, 422 U.S. 490, 501 (1975). 2

5 143 Scrutiny of standing to sue in environmental cases increased after the Supreme Court s 1992 Lujan decision. Although the holding of that case (on the nature of injury in fact) is unremarkable, the tenor of the opinion, especially the plurality opinion on the redressability and causation elements of Article III standing, was seen by many as a signal that at least four of the Justices (Scalia, Rehnquist, Thomas, and White) were prepared to tighten the standing requirement as a way of restricting access to federal courts. This, in turn, emboldened defense attorneys (both in the Department of Justice and in the private bar) to attempt to create new legal and factual barriers to the establishment of standing in environmental cases. Often citing Lujan in talismanic fashion, they began challenging Article III standing on a much more regular basis. The overall effect of this effort on the outcome of citizen suit cases, however, was not dramatic. And more recently, defendants prospects for mounting successful standing challenges were dealt a significant blow by the Supreme Court s rejection of several spirited Article III challenges to a Clean Water Act citizen suit in Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), 528 U.S. 167 (2000), discussed below. Although the consequences for an unprepared plaintiff s attorney can be devastating, proof of standing in citizen suits to enforce the Clean Water Act is relatively straightforward and generally can be accomplished quite readily for citizen plaintiffs, or members of plaintiff organizations, who live near or regularly use or enjoy the affected water body in question. In general, the courts have not made pleading and proof of standing any more difficult than diligent counsel should expect it to be. In fact, the Supreme Court has made it clear that any requirement of heightened pleading standards for standing allegations would be inconsistent with the system of notice pleading incorporated in the Federal Rules of Civil Procedure. See Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 508 U.S. 223 (1993) (striking down Fifth Circuit s heightened pleading standard for civil rights cases). Well-plead general allegations of harm, tailored to fit the particularities of the environmental issue at hand, remain sufficient. Similarly, proof of standing does not require the citizen suit plaintiff to put on the equivalent of a tort case. As noted by the Fifth Circuit, in affirming a grant of summary judgment to the Sierra Club on the basis of affidavits submitted by individual members in a suit involving the unpermitted discharge of produced water: The requirement that a party demonstrate an injury in fact is designed to limit access to the courts to those who have a direct stake in the outcome, as opposed to those who would convert the judicial process into no more than a vehicle for the vindication of the value interests of concerned bystanders. Sierra Club s affiants... are not mere bystanders. Two of the affiants live near Galveston Bay and all of them use the Bay for recreational activities. All of the affiants expressed fear that the discharge of produced water will impair their enjoyment of these activities because these activities are dependent upon good water quality. Clearly, Sierra Club s affiants have a direct stake in the outcome of this lawsuit. 3

6 144 Sierra Club, Lone Star Chapter v. Cedar Point Oil Co. Inc., 73 F.3d 546, 556 (5th Cir. 1996) (citations omitted), cert. denied, 117 S.Ct. 57 (1996). This decision is fairly representative of current federal court opinions on Article III standing in environmental cases, and it should quell any fear that the standing requirement has become an impassable roadblock to a successful outcome on the merits. Injury in Fact Proof of use or enjoyment of a particular resource that is damaged or threatened by a particular activity is sufficient to establish injury in fact. In Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), 528 U.S. 167 (2000), the defendant argued that a citizen suit plaintiff could not establish injury from the defendant s unlawful discharges of mercury to a river, because the district court had found that there had been no demonstrated proof of harm to the environment from those discharges. In rejecting this argument, the Supreme Court noted that the relevant showing for purposes of Article III standing... is not injury to the environment but injury to the plaintiff. 3 Laidlaw, 528 U.S. at 181. [W]e see nothing improbable, stated the Court, about the proposition that a company s continuous and pervasive illegal discharges of pollutants into a river would cause nearby residents to curtail their recreational use of that waterway and would subject them to other economic and aesthetic harms. The proposition is entirely reasonable, the district court found it was true in this case, and that is enough for injury in fact. 528 U.S. at In practical terms, this means that the plaintiff generally will need to demonstrate that he or she either 3 After the Supreme Court s decision in Laidlaw, it would appear that the Third Circuit s ruling on this point in Public Interest Research Group of New Jersey, Inc. v. Magnesium Elektron, Inc., 123 F.3d 111, 121 (3rd Cir. 1997), is no longer good law, even in the Third Circuit. In Magnesium Elektron, the court held that, absent proof at trial of actual harm to the river in which they had an interest, plaintiffs could not establish that they had suffered any greater injury than that suffered by the public generally and so lacked a sufficiently personalized interest in restraining the defendant s pollution to bring suit. 123 F.3d at 121. This directly conflicts with Laidlaw. As the Third Circuit itself had noted in an earlier Clean Water Act enforcement case, injury in fact is established where pollution... has interfered with [a plaintiff s] enjoyment of [a] natural resource. Public Interest Research Group of New Jersey v. Powell Duffryn Terminals, Inc., 913 F.2d 64, 71 (3d Cir. 1990), cert. denied, 498 U.S (1991). See also, e.g., Sierra Club v. Simkins Indus., Inc., 847 F.2d 1109, 1113 (4th Cir. 1989) (injury in fact established where plaintiff s members recreate on river and have an interest in protecting the environmental integrity of the [river] and curtailing any ongoing unlawful discharges into its waters. ). 4

7 145 makes some use of the water body in question (viewing it, studying it, walking along or through it, fishing in it, recreating on or near it, etc.) in an area near, or otherwise affected by, the activity sought to be restrained, 4 or would make such use of the water body but does not do so because of the activity sought to be restrained. All the named plaintiffs need not establish injury in fact. Courts have held that if one plaintiff in an action has standing to pursue his or her claims, it is unnecessary to consider whether other parties do also. E.g., Watt v. Energy Action Educ. Found., 454 U.S. 151 (1981). Similarly, organizations (associations and nonprofit corporations) may bring actions on behalf of a member so long as the member has standing, the interest being pursued by the organization in the suit is consistent with the organization s purposes, and the individual participation of the member is not necessary to the action. E.g., Hunt v. Washington Apple Advertising Comm n, 432 U.S. 333, 343 (1977). Strict compliance with state law membership requirements may not be required to establish an organization s right to sue on behalf of its members under Article III. See Friends of the Earth, Inc. v. Chevron Chem. Co., 129 F.3d 826 (5th Cir. 1997). Where multiple plaintiffs, or multiple members of a plaintiff organization, are affected by the violation at issue, it is a common practice to plead and limit the proof of Article III standing to a limited number of individuals as surrogates for the others. Fairly Traceable and Redressable Traceability the notion that the injury in fact must be fairly traceable to the action challenged and redressability the notion that the injury in fact will be redressed to some degree by the relief sought are the other key elements of Article III standing. E.g., Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252, 261 (1977); Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, (1976). In Clean Water Act enforcement suits, defendants may argue that the plaintiff s injury is not fairly traceable to the defendant s pollution because its violations contribute only a small portion of the overall pollutant loading to the body of water in question, and therefore cannot be said to have caused the plaintiff s injury. A corollary argument is that the plaintiff s injury cannot possibly be redressed by the lawsuit because the waterway will remain polluted regardless of the extent of the relief afforded against the defendant. Arguments of this nature have been uniformly rejected by the courts. To meet the fairly traceable requirement, plaintiffs need show only that the defendant s violations contributed to their injury. E.g., PIRG of New Jersey v. Powell Duffryn Terminals, A lengthy causal chain may be used to establish standing, so long as the requisite evidence is in the record. E.g., PIRGIM Public Interest Lobby v. Dow Chemical Co., 44 Env t Rep.Cas. (BNA) 1300, 1302 (E.D. Mich. 1996) ( the phosphorus discharged by defendant reaches Saginaw Bay by way of the Tittabawassee and Saginaw Rivers, and... excess phosphorus in Saginaw Bay causes the accumulation of organic debris along the shoreline ). 5

8 146 F.2d 64, 72 (3rd Cir. 1990) (plaintiffs need not show that defendant s effluent, and defendant s effluent alone, caused the precise harm suffered by the plaintiffs ); Sierra Club v. Cedar Point Oil, 73 F.3d 546, 558 (5th Cir. 1996) (same); Natural Resources Defense Council, Inc. v. Watkins, 954 F.2d 974, 980 (4th Cir. 1992) ( plaintiffs need not show that a particular defendant is the only cause of their injury, and that, therefore, absent the defendant s activities, the plaintiff would enjoy undisturbed use of a resource ). The Third Circuit s Powell Duffryn opinion is the leading case in this area; under the widely adopted Powell Duffryn standard, a plaintiff s injury is said to be fairly traceable to a defendant s discharge where the defendant has 1) discharged some pollutant in concentrations greater than allowed by [the Clean Water Act] 2) into a waterway in which the plaintiffs have an interest that is or may be adversely affected by the pollutant and 3) that this pollutant causes or contributes to the kinds of injuries alleged by the plaintiffs. Powell Duffryn, 913 F.2d at 72. Consistent with this approach, the courts also have held that an enforcement suit need not eliminate the pollution of a resource in order to be said to be capable of redressing the plaintiff s injury. The partial redress available through the issuance of an injunction against further violation is routinely held to be sufficient, e.g., PIRG of New Jersey v. Powell Duffryn, 913 F.2d at 73, Sierra Club v. Cedar Point Oil, 73 F.3d at 556, as is the partial redress available through the imposition of civil penalties, e.g., Sierra Club v. Simkins, 847 F.2d 1109, 1113 (1988), PIRG of New Jersey v. Powell Duffryn, 913 F.2d at 73. In Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), 528 U.S. 167, (2000), the Court confirmed that civil penalties payable to the federal treasury are a form of judicial relief that can deter future violations, and thus that the availability of civil penalties can satisfy the redressability requirement. II. ONGOING VIOLATIONS AND MOOTNESS The Supreme Court has held that there is nothing for federal courts to redress in a Clean Water Act citizen enforcement suit unless there is a good faith allegation that the defendant will continue to violate the law after suit is filed. The Clean Water Act authorizes the commencement of citizen suits against any person... who is alleged to be in violation of an effluent standard or limitation promulgated under the Act. 33 U.S.C. 1365(a)(1). In Gwaltney of Smithfield Ltd. v. Chesapeake Bay Foundation, Inc., 484 U.S. 49, 57 (1987), the Supreme Court held that the phrase in violation in this statute means a state of either continuous or intermittent violation that is, a reasonable likelihood that a past polluter will continue to pollute in the future. The Supreme Court referred to this state of continuous or intermittent violation as a state of ongoing violation, Gwaltney, 484 U.S. at 64, 66, and this is how it is often referenced. 6

9 147 Thus, the citizen plaintiff must allege and ultimately prove that the defendant was in a state of ongoing violation at the time the suit was filed. At the pleading stage, this requirement is met by including good faith factual allegations of ongoing violation in the complaint. At trial or summary judgment, however, the citizen plaintiff must place sufficient evidence in the record to prove that the defendant s violations were, in fact, ongoing. On the remand of the Gwaltney case, the Fourth Circuit held that citizen plaintiffs may establish ongoing violation either: by proving violations that occurred on or after the date the complaint was filed, or by adducing evidence from which a reasonable trier of fact could find a continued likelihood of a recurrence in intermittent or sporadic violations. Intermittent or sporadic violations do not cease to be ongoing until the date when there is no real likelihood of repetition. Chesapeake Bay Found., Inc. v. Gwaltney of Smithfield, Ltd., 844 F.2d 170, (4th Cir. 1988) (emphasis added). This test for determining ongoing violation has been adopted by all of the federal courts that have addressed the issue, including the Third, Fifth, Sixth, Ninth, and Eleventh Circuits. In yet another decision in the Gwaltney case, the Fourth Circuit held that this test must be satisfied independently for each discharge parameter for which violations are alleged unless the violations of one parameter are functionally related to the violations of another parameter (as where, e.g., both violations are caused by the same treatment system deficiency). See Chesapeake Bay Found., Inc. v. Gwaltney of Smithfield, Ltd., 890 F.2d 690, 698 (4th Cir. 1989); see also Natural Resources Defense Council, Inc. v. Texaco Ref. and Mktg., Inc., 2 F.3d 493, 499 (3d Cir. 1993); cf. Sierra Club v. Port Townsend Paper Co., 19 Envt l L. Rep , (W.D. Wash. 1988). As a practical matter, the first prong of the Gwaltney test can be satisfied in a Clean Water Act case by the introduction into evidence of discharge monitoring reports demonstrating that the defendant committed at least one post-complaint violation of the parameter(s) in question. In the absence of post-complaint violations, the citizen plaintiff will need to introduce evidence demonstrating that, at the time the complaint was filed, the defendant had not taken all of the steps necessary to prevent violations from recurring. E.g., Carr v. Alta Verde Indus., Inc., 931 F.2d 1055, 1061 (5th Cir. 1991) ( It does not suffice to defeat subject matter jurisdiction that the success of the attempted remedies becomes clear months or even weeks after the suit is filed... subsequent events cannot oust[] the court of jurisdiction. ) (quoting Chesapeake Bay Found., Inc. v. Gwaltney of Smithfield, Ltd., 484 U.S. at 69 (Scalia, J., concurring)); Sierra Club v. Union Oil Co. of California, 853 F.2d 667, 671 (9th Cir. 1988) (the test is whether the risk of defendant s continued violation had been completely eradicated when citizen-plaintiffs filed suit ) (emphasis in original). The Supreme Court also noted in Gwaltney that the citizen plaintiff s case for injunctive relief will become moot only when the defendant is able to meet the heavy burden of demonstrat[ing] that it is absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur. Chesapeake Bay Found., Inc. v. Gwaltney of Smithfield, Ltd., 7

10 U.S. at 66 (citation omitted). Where the sufficiency of the defendant s postcomplaint remedial efforts remain an issue for trial, mootness will not be a concern. Moreover, the Supreme Court was careful to stress in Gwaltney that, when the injunctive relief claim is declared moot, the citizen plaintiff is still entitled to recover reasonable fees and costs. 484 U.S. at 67 n.6. In Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), 149 F.3d 303 (4th Cir. 1998), the Fourth Circuit held that a Clean Water Act citizen suit had become moot after the trial court declined, at a trial held some years after the case had been filed, to issue injunctive relief, even though the trial court also imposed a sizable civil penalty. Citing Steel Co. v. Citizens for a Better Environment, 523 U.S. 83 (1998), the Fourth Circuit held that, as a matter of law, civil penalties payable to the federal treasury do not redress a citizen plaintiff s injuries for purposes of an Article III mootness inquiry. The Supreme Court reversed the Fourth Circuit in a seven-totwo decision. See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), 528 U.S. 167 (2000). The Court affirmed the continuing validity of the mootness discussion set forth in Gwaltney, noting that [t]he heavy burden of persuading the court that the challenged conduct cannot reasonably be expected to start up again lies with the party asserting mootness. See Laidlaw, 528 U.S. at 189. The Court also held that, because civil penalties and injunctions can both be utilized to deter future violations, mootness cannot be presumed by the failure of the district court to issue an injunction. Under [the Clean Water Act], the district court has discretion to determine which form of relief is best suited, in the particular case, to abate current violations and deter future ones. [A] federal judge sitting as chancellor is not mechanically obligated to grant an injunction for every violation of law. Denial of injunctive relief does not necessarily mean that the district court has concluded there is no prospect of future violations for civil penalties to deter. Indeed, it meant no such thing in this case. The District Court denied injunctive relief, but expressly based its award of civil penalties on the need for deterrence. Laidlaw, 528 U.S. at (citations omitted). III. GOVERNMENT PRECLUSION OF CITIZEN SUITS Another potential defense to a Clean Water Act citizen suit complaint is the existence of a federal or state prosecution for the same violations. Under the Act, a citizen is precluded from filing a suit if [the EPA] or State has commenced and is diligently prosecuting a civil or criminal action in a court of the United States, or a State to require compliance with the standard, limitation, or order [at issue in the citizen suit], but in any such action in a court of the United States any citizen may intervene as a matter of right. 33 U.S.C (b)(1)(b). 5 5 This provision is not triggered by municipal enforcement suits. E.g., Ohio Pub. Interest Research Group v. Laidlaw Envtl. Serv., Inc., 963 F.Supp. 635, (S.D. Ohio 1996), and cases cited therein. 8

11 149 In some circumstances, prior federal or state administrative enforcement actions may bar (in whole or in part) the filing of a citizen suit addressing the same violations. Section 309(g)(6) of the Clean Water Act, 33 U.S.C. 1319(g)(6), bars citizens from filing a civil penalty action where the EPA or state begins a diligently prosecuted administrative penalty action for the same violations before citizen gives 60-day notice of suit. The first decision in the circuit courts to interpret this provision was North and South Rivers Watershed Association, Inc. v. Scituate, 949 F.2d 552 (1st Cir. 1991). There, the First Circuit departed from the clear language and legislative history of Section 309(g)(6) to hold: (1) that a diligent state administrative compliance action bars a Clean Water Act citizen suit regardless of whether the state actually seeks penalties against the violator; and (2) that, even though the statute states that only civil penalty actions are precluded, citizen actions for injunctive relief are barred as well. On both points, this decision violates a fundamental principle of statutory construction, in that the court substituted its own view of appropriate Clean Water Act enforcement policy for the policy articulated by Congress in the plain language of the statute. The Ninth Circuit has thrice rejected the Scituate court s analysis on the first point, holding that only administrative penalty actions have a preclusive effect under the Clean Water Act. See Washington Pub. Interest Research Group v. Pendleton Woolen Mills, 11 F.3d 883, 886 (9th Cir. 1993) ( [W]e are not persuaded by the First Circuit s reasoning... The most persuasive evidence of... [congressional] intent is the words selected by Congress, not a court s sense of the general role of citizen suits in the enforcement of the Act. ) (citation omitted); Citizens for a Better Env t v. Union Oil Co., 83 F.3d 1111, 1118 (9th Cir. 1996), cert. denied, 117 S.Ct. 789 (1997); Knee Deep Cattle Co. v. Bindana Inv. Co., 94 F.3d 514 (9th Cir. 1996). The Eighth Circuit, while noting that the plain language of Section 309(g)(6) does not bar citizen suits for injunctive relief, nonetheless agreed with the Scituate court on the second point: that a citizen suit for injunctive relief should not be allowed to go forward where the citizen s penalty claim is barred. See Arkansas Wildlife Fed n v. ICI Americas, Inc., 29 F.3d 376 (8th Cir. 1994), cert. denied, 513 U.S (1995). This conflicts, in two important respects, with the analysis the Supreme Court applied to the Clean Water Act in the Gwaltney decision. In Gwaltney, the Court stressed that the role of a court in interpreting the Act is to give effect to the plain language of Congress according to its most natural reading, 484 U.S. at 56 57, and that Congress s primary purpose in including a citizen suit provision in the act was to enable citizens to obtain relief (including injunctive relief) to restrain future violations, Chesapeake Bay Found., Inc. v. Gwaltney of Smithfield, Ltd., 484 U.S. at 59. Noting these conflicts, the Tenth Circuit declared itself compelled to disagree with the First and Eighth Circuits, and held that the citizen plaintiff s claim for injunctive relief is not barred in such circumstances. See Paper, Allied-Industrial, Chemical And Energy Workers Intern. Union v. Continental Carbon Co., 428 F.3d 1285, 1299 (10th Cir. 2005). 9

12 150 Primary jurisdiction and abstention also are sometimes raised in federal citizen suits in an attempt to persuade the federal court to defer to an ongoing state judicial or administrative proceeding. These defenses are unlikely to be successful. E.g., Student Pub. Interest Research Group v. Fritzsche, Dodge & Olcott, Inc., 579 F. Supp. 1528, 1537 (D.N.J. 1984) (primary jurisdiction should be invoked sparingly where it would preempt a citizen suit under the Clean Water Act); Public Interest Research Group of New Jersey, Inc. v. Witco Chem. Co., 31 Env t Rep.Cas. (BNA) 1571, (D.N.J. 1990); PIRGIM Pub. Interest Lobby v. Dow Chemical Co., 44 Env t Rep.Cas. (BNA) 1294, (E.D. Mich. 1996); Oregon State Public Interest Research Group v. Pacific Coast Seafoods Co., 341 F.Supp.2d 1170, (D. Or. 2004). IV. INJUNCTIVE RELIEF A principal aim of almost any public interest environmental suit is to obtain a determination that a defendant s action or planned action is in violation of law, together with injunctive relief halting continuing violations and directing any necessary and appropriate remedial actions. The Supreme Court has held that, unless Congress has clearly specified otherwise, federal courts must apply traditional equitable principles when considering requests for injunctive relief, notwithstanding the fact that a defendant s conduct may be in violation of an environmental statute. Weinberger v. Romero-Barcelo, 456 U.S. 305 (1982). A request for a permanent injunction, then, usually will involve a consideration of four factors: irreparable injury, inadequacy of the legal remedy, balancing of competing claims of harm and the public interest. Amoco Prod. Co. v. Gambell, 480 U.S. 531, (1987). The Court recognized in Amoco that [e]nvironmental injury, by its nature, can seldom be adequately remedied by money damages and is often permanent or at least of long duration, i.e., irreparable. If such injury is sufficiently likely, therefore, the balance of harms will usually favor the issuance of an injunction to protect the environment. Amoco Prod. Co. v. Gambell, 480 U.S. at 545. Citizen suit plaintiffs often seek preliminary injunctive relief. Again, the federal courts apply the traditional four-part equitable test: balance of the harms, likelihood of success on the merits, irreparable harm to the moving party if the preliminary relief is not granted and effect of the injunction on the public interest. E.g., Oregon State Public Interest Research Group v. Pacific Coast Seafoods Co., 374 F.Supp.2d 902, (D. Or., 2005)..Although preservation of the status quo is often cited as a primary reason for preliminary relief, it can be the status quo itself that is the issue in an environmental case, as where the object of the suit is to reduce pollution by bringing the defendant into compliance with the law. Where the status quo causes (or threatens to cause) irreparable harm, a preliminary injunction is an appropriate means of altering the existing situation so as to prevent injury. E.g., Crowley v. Local No. 82 Furniture & Piano Moving, 679 F.2d 978, 995 (1st Cir. 1982), rev d on other grounds, 467 U.S. 526 (1984). One of the more problematic aspects of obtaining a preliminary injunction for a public interest group is the potential that security may need to be given as a condition of issuance. The federal 10

13 151 rule, Fed.R.Civ.P. 65(c), provides in pertinent part that [n]o restraining order or preliminary injunction shall issue except upon the giving of security by the applicant, in such sum as the court deems proper, for the payment of such costs and damages as may be incurred or suffered by any party who is found to have been wrongfully enjoined or restrained. Federal courts have interpreted Fed.R.Civ.P. 65(c) as giving them discretion in setting the amount of the security. Without diminishing the potential financial impact on a defendant wrongfully restrained, the fact remains that few, if any, public interest litigants, environmental or otherwise, have the resources to post a significant security requirement. Consequently, many courts have either waived the requirement when there was no substantial offer of proof of harm by the defendant or required the posting of a nominal security. See Wright & Miller, Federal Practice and Procedure: Civil 2954, at Congress has made the posting of security discretionary in several of its citizen suit provisions, including the Clean Water Act, 33 U.S.C. 1365(d). See, e.g., Oregon State Public Interest Research Group v. Pacific Coast Seafoods Co., 374 F.Supp.2d at 908. Although many injunctions simply require compliance with the law (perhaps within a specified time frame), federal courts have broad equitable discretion in fashioning injunctive relief under the Clean Water Act. Courts may go beyond the express terms of an NPDES permit in specifying requirements designed to ensure compliance with that permit, National Resources Defense Council v. Southwest Marine, Inc., 236 F.3d 985 (9th Cir. 2000), and in directing the discharger to take steps to remedy the effects of past violations, United States Pub. Int. Res. Group v. Atlantic Salmon of Maine, 339 F.3d 23 (1st Cir. 2003). 11

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