Timing Is Everything: An Overview of Environmental Claims and Their Limitations Periods: Part III – Citizen Suits

This is the final article in our three-part series on the different types of environmental claims and the relevant and applicable limitations periods. Building upon the first two articles, which discuss environmental claims and their limitations periods at the federal and state levels, this article discusses the limitations periods in the context of citizen suits.

Between the late 1960s through the early 1980s, Congress passed most of our current major environmental laws and, in doing so, gave the main enforcement responsibility for these environmental statutes to public agencies and, primarily, to the U.S. Environmental Protection Agency (“EPA”) and its state equivalents via delegated authority. However, recognizing that leadership changes with each election and that administrations may vary in their interpretation, ability and willingness to enforce the law, Congress created the concept of the “citizen suit.” As a result, citizen suits may be brought (1) against the government, where a citizen group believes that EPA (or the federal agency to whom authority has been delegated) has failed to perform an act or duty required by an environmental law, or (2) against private parties.

While the objectives of citizen suits may differ, these suits generally attempt to (1) enforce alleged violations of the law, (2) stall or eliminate the authorization of regulated activities, and (3) force regulatory decisions. For example, a citizen suit may request that a court review the legality of an agency rule or action in the permitting context. Of course, citizen suits may seek different forms of relief, such as (1) civil penalties, payable to the government, (2) injunctive relief, typically in the form of a court order requiring a company or individual to take specific actions to correct compliance problems and to avoid future violations, (3) environmental projects, including mitigation, (4) attorneys’ fees, and (5) publicity and public pressure.

Each of the major environmental laws discussed in the first article of this three-part series has its own citizen suit provision.¹ Each such provision, however, is silent as to the applicable limitations period. As a result, courts have been tasked with deciding the limitations period for themselves.

Where an environmental law does not specify a limitations period for commencing a citizen suit against a private party, the majority of courts apply the general federal statute of limitations for civil enforcement at 28 U.S.C. 2642. According to 28 U.S.C. § 2462, “an action, suit or proceeding for the enforcement of any civil fine, penalty, or forfeiture, pecuniary or otherwise, shall not be entertained unless commenced within five years from the date when the claim first accrued[.]” In many cases, courts have applied this five-year statute of limitations to citizen suits under environmental laws where there is no stated statute of limitation.² In some cases, courts have held that, in certain instances, no statute of limitation should apply.³

In addition, as discussed in the second article in this three-part series, sometimes, enforcement may be sought through state law causes of action, such as negligence, nuisance (private or public), or trespass. In these cases, which may be filed as citizen suits or as claims along with a citizen suit, courts may simply apply the state’s limitations period for these types of property or personal injury actions.

It is worth noting that there are certain limitations on direct citizen enforcement. For example, a citizen seeking to file a lawsuit must first serve the alleged polluter, EPA, and any relevant state agency with a notice letter that identifies the alleged violations and provides notice of the intent to sue. Typically, this notice must be provided 60 days in advance of any filing, though some notice provisions may require more or less notice, and in limited circumstances, notice may not be required at all. Once the notice letter is sent, a grace period commences, during which time (1) the alleged polluter can come into compliance, or (2) EPA (or a state agency) can file its own suit, which may then preclude citizen enforcement. Additionally, EPA (or a state agency) may “over file” and bring its own enforcement case, though citizens will ultimately have the right to participate as full parties in this enforcement case. Of course, the legal doctrine of standing may also limit direct citizen enforcement.

In conclusion, understanding how environmental limitations periods apply to citizen suits is essential for navigating potential liabilities and enforcement risks. As this three-part series has shown, timing can significantly impact legal rights and outcomes. If you have questions about how these issues might affect your organization, or if you are facing potential citizen suit exposure, please do not hesitate to reach out to us for guidance tailored to your specific situation.

Notes

[1] See 42 U.S.C. § 7604 (Clean Air Act); 33 U.S.C. § 1365(a) (Clean Water Act); 42 U.S.C. § 9659 (Comprehensive Environmental Response, Compensation, and Liability Act); 42 U.S.C.A. § 6972 (Resource Conservation and Recovery Act).

[2] See, e.g., L.E.A.D. (Lead Environmental Awareness Development) v. Exide Corp., 1999 WL 124473 (E.D. Pa. 1999) (“Although the RCRA, CWA and CAA contain no statute of limitations, courts have applied 28 U.S.C. § 2462 to citizen suits that seek civil penalties. See Public Interest Research Group of New Jersey v. Powell Duffryn, 913 F.2d 64, 75 (3d Cir.1990) (applied to the CWA); Glazer v. American Ecology Envtl. Servs., 894 F. Supp. 1029, 1044 (E.D.Tex.1995) (applied to the RCRA and CAA); Bodne v. Geo A. Rheman Co., Inc., 811 F. Supp. 218, 221 (D.S.C.1993) (applied to the RCRA); United States v. SCM Corp., 667 F. Supp. 1110, 1123 (D.Md.1987) (applied to the CAA).”).

[3] See, e.g., Natural Resources Defense Council, Inc. v. Fox, 909 F. Supp. 153, 159, 42 Env't. Rep. Cas. (BNA) 1935, 26 Envtl. L. Rep. 20732 (S.D. N.Y. 1995) (In the context of a suit brought under the Clean Water Act, the court stated that a citizen suit to enforce a failure by the U.S. Environmental Protection Agency to perform a nondiscretionary duty is not subject to any statute of limitation.).