An important component of many environmental statutes is the ability for private citizens to initiate lawsuits to enforce the statute. This type of lawsuit is referred to as a citizen suit. In general, there are two main types of citizen suit. The first type of allows a private citizen to sue another citizen, a corporation, or a government body for violating a particular statute. The second type allows a private citizen to bring a lawsuit against a government body, such as a federal agency, for failing to perform a statutory duty. Both types of citizen suit have different procedural requirements, and those requirements can vary depending on which statute the citizen is suing to enforce.
On July 20, 2022, the Fourth Circuit Court of Appeals issued a ruling concerning the use of citizen suits under the Clean Water Act (“CWA”). Specifically, the court considered whether a state agency issuing a notice of alleged violation to a farm that had failed to obtain a CWA permit before discharging sediment into three bodies of water prevented a local environmental non-profit organization from filing a citizen suit against the farm. Ultimately, the Fourth Circuit ruled in favor of the non-profit, adding further clarification to when and how private parties may file citizen suits under the CWA.
Background
In order to bring a citizen suit under a particular statute, that statute must contain a provision allowing citizen suits. If a statute does not contain a citizen suit provision, then private parties may not bring citizen suits to enforce that statute. While most citizen suit provisions share certain similarities, different statutes can have different procedural requirements.
Clean Water Act Citizen Suit Provisions
The CWA is a federal statute that regulates the discharge of pollutants into protected water bodies. One of the primary ways the CWA regulates pollution is through the use of permit programs. It is a violation of the CWA to make a direct discharge of a pollutant into a protected water without a CWA permit. If someone violates the CWA by making an unpermitted discharge, they may face an enforcement action from the federal Environmental Protection Agency (“EPA”), or a state agency that has been authorized to enforce the CWA. However, the CWA also allows private citizens to file citizen suits “against any person” who makes an unpermitted discharge. 33 U.S.C. § 1365(a)(1).
In order to successfully bring a citizen suit under the CWA, there are a handful of requirements that must be met. For the purposes of a citizen suit, the CWA defines “citizen” as “a person or persons having an interest which is or may be adversely affected” by the alleged violation. 33 U.S.C. § 1365(g). In other words, a CWA citizen suit may be brought by either an individual or a group, so long as whoever files the lawsuit can show that they will be harmed by the CWA violation.
Other requirements include restrictions on when a citizen suit can be filed. Before filing a CWA citizen suit, the plaintiff must give notice of the alleged CWA violation to the EPA, the state in which the alleged violation occurred, and to the alleged violator. Once notice has been given to all three parties, the plaintiff must wait sixty days before they are able to formally file their citizen suit. 33 U.S.C. § 1365(b)(1)(A). A citizen suit may not be brought if EPA or a state government has already begun to prosecute the alleged violation in civil or criminal court. 33 U.S.C. § 1365(b)(1)(B). Additionally, a citizen suit may not be filed if a state government has already begun to prosecute the alleged violation under a state law that is comparable to the CWA. 33 U.S.C. § 1365(a); 1319(g)(6). These requirements indicate that a citizen suit for an alleged CWA violation is not necessary if a government body has already brought an enforcement action. The primary issue in the Fourth Circuit case Naturaland Trust v. Dakota Finance LLC, No.21-1517 (4th Cir. 2022), concerns what a state must do in order to show that it has formally begun to prosecute an alleged CWA violation under a comparable state law.
Journey to the Fourth Circuit
The controversy at the heart of Naturaland Trust v. Dakota Finance LLC began when the defendants, the owners and operators of a working farm in South Carolina, started clearing 20 acres of land on their property to create a venue space. The clearing process allegedly resulted in discharges of sediment-filled stormwater into nearby protected waters. Although the type of clearing work performed by the defendants typically requires a CWA permit, the defendants did not acquire such a permit prior to beginning the work. This prompted the South Carolina Department of Health and Environmental Control (“DHEC”) to conduct an inspection to evaluate the defendant’s compliance with the CWA. Upon inspection, DHEC determined that the defendants had failed to comply with the CWA. DHEC issued a letter to the defendants advising them to obtain a proper CWA permit, and ordering them to “cease and desist” any activity that continued to violate federal law. A month later, DHEC sent the defendants a “Notice of Alleged Violation/Notice of Enforcement Conference,” informing the defendants of a voluntary “informal” enforcement conference that was scheduled for the end of the month.
Around the same time that DHEC issued the Notice of Alleged Violation, two environmental non-profit organizations sent the defendants a notice of intent to sue. The notice detailed the alleged CWA violations, and informed the defendants that the environmental groups would be filing a citizen suit. The lawsuit was formally filed sixty days later.
Shortly after the plaintiff environmental groups filed their lawsuit, the defendants and DHEC entered into a consent order which imposed a $6,000 penalty and required the defendants to obtain a CWA permit before continuing their clearing activities. Following the consent order, the defendants asked the lower district court to dismiss the on-going citizen suit. According to the defendants, the suit should have been dismissed because at the time the plaintiffs filed the lawsuit, DHEC was conducting an on-going enforcement action against the defendants by issuing the Notice of Alleged Violation which resulted in the consent order. The lower court judge agreed with the defendants and dismissed the case, citing the CWA provision which prohibits a citizen suit from being brought once a state agency has begun to “diligently prosecut[e]” an action under a state law that is “comparable” to the CWA. The plaintiffs appealed that dismissal to the Fourth Circuit.
Fourth Circuit Decision
Ultimately, the Fourth Circuit ruled in favor of the environmental plaintiffs. The court concluded that the Notice of Alleged Violation and ensuing consent order between the defendants and DHEC did not bar the plaintiffs from filing a citizen suit.
To reach its conclusion, the Fourth Circuit began by reviewing the text of the CWA. The CWA prohibits the filing of citizen suits after a state agency has “commenced […] an action under state law” that is “comparable to” the penalties available under the CWA. 33 U.S.C. § 1319(g)(6)(A)(ii). Additionally, the CWA states that citizen suits are not prohibited if the suit is “filed prior to the commencement of” a comparable state action. 33 U.S.C. § 1319(g)(6)(B)(i).
According to the Fourth Circuit, the Notice of Alleged Violation that DHEC issued to the defendants prior to the plaintiffs filing a citizen suit did not commence “an action.” The court explained that in a legal context, the term “action” generally refers to a lawsuit that is begun by a party filing a complaint with a court.
In order to determine whether the Notice of Alleged Violation and the consent order were comparable to a lawsuit brought under the CWA, the court considered whether either had provided an opportunity for judicial review. The court found that while it was possible for the consent order to undergo judicial review after it was issued, the process of entering into a consent order did not involve judicial review. The same was true for the process of issuing a Notice of Alleged Violation. Therefore, the court found that neither measure counted as a comparable action that would have prevented the plaintiffs from filing a citizen suit. Accordingly, the Fourth Circuit reversed the lower court’s decision to dismiss the case and sent it back for further review.
Takeaways
Following the Fourth Circuit’s decision in Naturaland Trust v. Dakota Finance LLC, it seems that in order for a state enforcement action to effectively prevent the filing of a CWA citizen suit, the action must involve some type of judicial review equivalent to filing a lawsuit. Neither a notice from a state agency, or an agreement for penalties between a state agency and the alleged violator would appear to satisfy the requirements laid out by the Fourth Circuit. Unless a state files a lawsuit under the CWA or a state law that would provide comparable penalties, a citizen suit could still be brought against the alleged violator even if they had already entered into a restitution agreement with the state.
To read the Fourth Circuit’s decision in Naturaland Trust v. Dakota Finance LLC, click here.
To read the text of the CWA, click here.
For more National Agricultural Law resources on the CWA, click here.
