Cross-posted at WLF’s Forbes.com contributor page
Filing “citizen suits” is a major component of environmental activist groups’ business model. They raise revenue through fee-shifting provisions in federal laws; are an influential policy-making device, as reflected by the rise in so-called sue-and-settle agreements with federal agencies; and are a powerful fundraising tool. The federal government even “subsidizes” these organizations’ litigation activities through efforts like the U.S. Environmental Protection Agency’s (EPA) “ECHO” database, which helps activists determine when regulated entities are out of compliance with environmental laws.
Contrary to the desire of activist groups and their fellow travelers at EPA, federal laws like the Clean Water Act (CWA) reflect Congress’ intent that such litigation “supplement rather than supplant governmental action,” as the Supreme Court put it in Gwaltney v. Chesapeake Bay Fndt. A recent U.S. Court of Appeals for the Eleventh Circuit ruling firmly advanced this point and closed a perceived loophole in the CWA which activists had sought to exploit for new revenue.
Black Warrior Riverkeeper v. Black Warrior Minerals involved a coal mine’s alleged violation of federal “new source performance standards.” Black Warrior Riverkeeper and other “citizens” served the company as well as federal and state officials with notice that Black Warrior Minerals was violating both new source performance standards and its mine permit. Eleven days later, the citizens filed suit under the CWA alleging only new source performance standard violations. Why did they sue based only on those violations, and not also for the permit violations? Because the CWA requires 60 days notice prior to filing suit for all violations except for breaches of new source performance standards. But as the defendant pointed out to the federal district court, the new source performance standards were incorporated into the permit. The district court ruled that the plaintiffs could not evade the 60-day notice requirement and awarded summary judgment to Black Warrior Minerals.
The 11th Circuit, in an opinion by Judge William Pryor, unanimously affirmed. Judge Pryor performed a meticulous interpretation of the CWA’s citizen suit provision, about which the High Court said in Gwaltney, “is not a provision of which Congress’ limpid prose puts an end to all disputes.” The provision, 33 U.S.C. § 1365, is silent on whether citizens can avoid the 60-day notice as did Black Warrior Riverkeeper, but, Judge Pryor wrote, “section 1365(b) does prefer governmental enforcement of permit conditions to citizen suits.” The 60-day notice requirement not only allows regulated entities to come into compliance, but it also gives state and federal officials an opportunity to investigate and file suit. As Judge Pryor wrote, “The novel complaint filed in this case is a thinly veiled attempt to beat the State of Alabama to the courthouse.”
Judge Pryor also cited a canon of statutory interpretation from Sir Edward Coke (by way of Justice Scalia and Bryan Gardner’s book Reading Law: The Interpretation of Legal Texts) that the meaning of obscure sections of a law can be derived from considering the law’s other sections. The judge noted how other CWA provisions amplified the importance of permits, and how an interpretation allowing Black Warrior Riverkeeper to ignore the permit would “undermine the overarching permitting scheme.”
Judge Pryor did note that citizens like Black Warrior Riverkeeper are not completely shut out of playing an enforcement role if EPA or state officials file suit against an alleged polluter after the citizens give 60 days’ notice. They can intervene.
The problem for environmental activists though is that intervention doesn’t offer nearly the profit-making and profile-raising business opportunity that being the plaintiff offers them. We find it unlikely that that troubles Judge Pryor or his colleagues on the Black Warrior Riverkeeper panel too much.