Citizens at Your Door: How to defend against citizen environmental suits

February 26, 2007

One hallmark of our modern federal environmental laws is the "citizen suit" provision, which essentially empowers citizens to act as private attorneys general to pursue civil actions in federal court for certain environmental violations.  These suits arise most often under the federal Clean Water Act ("CWA") and Endangered Species Act ("ESA"), but citizens are increasingly filing actions under the Resource Conservation and Recovery Act ("RCRA"), the Safe Drinking Water Act ("SDWA") and other statutes.  

If you are a corporate general counsel or the chief legal officer of a government entity, the receipt of a citizen suit notice (a prerequisite to a lawsuit) can be a sobering experience.  The notices are often 25 or more pages in length and, under the CWA and RCRA, typically allege thousands of legal violations, with a theoretical maximum civil penalty of $32,500 per violation.  The citizen plaintiffs may seek far-reaching equitable relief to address the perceived violations and attorneys' fees at full market rates.  Once the notice period expires, the citizen suit will be filed in federal court, which necessitates the retention of experienced federal court litigators to defend the action.

The effective defense of a citizen lawsuit is as much an art as a matter of litigation skill and experience.  This article describes ten important strategies for effectively defending a federal environmental citizen suit.

Document: Citizens at Your Door - PDF