The Future of Clean Air Act Citizens Suits

摘要

Almost every federal environmental statute has a provision that allows citizens to sue violators in lieu of governmental enforcement authorities under certain circumstances. Generally, if the relevant governmental enforcement authority was not deemed to be "diligently prosecuting" enforcement action against an alleged violator and certain procedural requirements were met a citizens suit could be filed in federal court. If a violation was proved penalties could be assessed against the violator and the plaintiff citizen could receive reimbursement of both his or her attorney's fees and other expenses. Historically, however, the only federal statute that has been the subject of significant citizens suit activity has been the federal Clean Water Act ("CWA''). The reason was a practical one. The NPDES permits under which facilities operated set specific limitations and required that the discharger sample its effluent and determine whether these limits were being met on a periodic basis. These discharge monitoring reports could then be obtained by the public and the results matched against a given facility's NPDES permit. Violations were therefore easy to prove. In contrast, in the twenty-eight years since the enactment of the Clean Air Act ("CAA") very few citizen suits have been filed. Proving a violation was difficult. There was no federal requirement for an "NPDES" type operating permit. Further, there were no requirements equivalent to the discharge monitoring report requirements found in the Clean Water Act. This paper will explore a variety of events that are expected to significantly increase the number of citizen suits CAA permitted facilities will face over the next ten years. The paper will briefly address the role the Title V operating permit will play. It will also include a discussion of how this permit will now encompass specific emission limitations along with a mandate to report cxceedances. Further, and equally important, will be the role of the 1997 federal Environmental Protection Agency ("EPA") any credible evidence ("ACE") rule which potentially broadens the type, amount, and accessibility available to a CAA citizen suit plaintiff. This rule along with the additional monitoring data that will be generated by the Title V periodic and compliance assurance monitoring requirements will be an issue. Two important CAA citizen suits will be discussed which illustrate the potential role of credible evidence. Further, the paper will provide some thoughts on how facilities can protect themselves to the extent possible against citizen suits.