# Amicus Curiae Brief — Hallstrom v. Tillamook County > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0227%3A10 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1989 - **Citation:** 489 U.S. 1077 ## Text No. 88-42 i IN THE SUPREME COURT OF THE UNIT OCTOBER TERM, 1988 OLAF E. HALLSTROM and MARY E. HALLSTROM, Petitioners, b. TILLAMOOK COUNTY, A MUNICIPAL CORPORATION, Respondent. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT BRIEF AMICI CURIAE OF SIERRA CLUB, DEFENDERS OF WILDLIFE, INC., NATIONAL AUDUBON SOCIETY, NATURAL RESOURCES DEFENSE COUNCIL, INC., AND THE WILDERNESS SOCIETY IN SUPPORT OF THE PETITIONERS + MICHAEL TRAYNOR* DOUGLAS L. HONNOLD PETER H. CARSON Sierra Club Legal MICHAEL S. SHACHAT Defense Fund COOLEY GODWARD CASTRO 1660 Broadway, Suite 1600 HUDDLESON & TATUM Denver, Colorado 80202 One Maritime Plaza Telephone: (303) 863-9898 20th Floor San Francisco, California 94111 Telephone: (415) 981-5252 Attorneys for Amici Curiae Sierra Club, Defenders of Wildlife, Inc., National Audubon Society, Natural Resources Defense Council, Inc., and The Wilderness Society * Counsel of Record i QUESTION PRESENTED The Resource Conservation and Recovery Act, 42 U.S.C.A. §§ 6901-6987 (West 1983 & Supp. 1989) (“RCRA”), provides for citizen enforcement through “citizen suits.” RCRA requires that the commencement of each citizen suit be preceded by sixty days’ notice from the citizen plaintiff to the Administrator of the United States Environmental Protection Agency, the State in which the alleged violation occurred and the alleged violator.' The question presented is whether the sixty-day notice requirement is jurisdictional (requiring dismissal of the citizen suit and subsequent refiling sixty days after notice) or procedural (requiring a stay instead of a dismissal).? l. The particular statute in issue, 42 U.S.C.A. § 6972 (West 1983 & Supp. 1989), is reprinted in full for the Court's information in Appendix B. 2. Amici note that this is how the Petitioners have framed the question presented in their Petition for a Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit. Although under a procedural rule a stay usually will be sufficient to cure the deficient notice, in certain circumstances it may instead be appropriate for the court to dismiss the action. See infra at 19 n. 11. TABLE OF CONTENTS Page STATEMENT OF INTEREST OF AMICICURIAE ... 1 SUMMARY OF ARGUMENT ............-..-.. 2 PC QUOTE ST TT Le ee 4 I. RCRA IS ONE OF A COMPREHENSIVE SET OF REGULATORY STATUTES INTENDED TO PRO- TECT THE ENVIRONMENT, AND THIS COURT SHOULD THEREFORE BE AWARE OF THE PO- TENTIAL IMPACT ITS DECISION IN THIS CASE WILL HAVE ON MANY ENVIRONMENTA« STAT- GED 00 0 6 os ow oe a alee © eae ea Il. THE LEGISLATIVE HISTORY PERTAINING TO CITIZEN SUIT PROVISIONS AND NOTICE RE- QUIREMENTS DEMONSTRATE THAT CON- GRESS’ PRIMARY CONCERN IN ENACTING TPESE PROVISIONS WAS TO ENCOURAGE CIT- IZEN PARTICIPATION IN THE ENFORCEMENT OF ENVIRONMENTAL LEGISLATION ....... A. Citizen Suit Provisions, Which Were First Codified as Part of the Clean Air Act Amendments, Were Enacted to Encourage Citizen Participation in the Enforcement of Environmental Legislation as a Supplement to Agency Enforcement ........ B. The Notice Requirement Was Not Added to Create a Rigid Barrier to Citizen Suits, But Rather to Encourage Agency Enforcement........... C. Although the Federal Courts Are Divided, Those That Follow the Pragmatic Rather Than the Juris- dictional Approach Best Serve the Underlying Pur- poses of the Notice Requirement .......... il ate eae. —* TABLE OF CONTENTS—(Continued) Ill. THE COURT SHOULD APPLY A PRAGMATIC APPROACH TO THE SIXTY-DAY NOTICE RE- QUIREMENT TO ACCOMPLISH RCRA’S GOALS AND AVOID ANOMALOUS RESULTS ... A. The Statute does not Preclude Federal Jurisdiction and to Interpret it to do so would Defeat its Re Rea -6 a6 ounce 6'6 see 0 0 B. The Pragmatic Approach Avoids the Unfair and Absurd Results that would Arise from a Formalistic Application of the Notice Requirement ..... . C. A Formalistic Jurisdictional Rule Would Need- lessly Hamper Courts and Leave the Environment at Risk During the Sixty-Day Notice Period .. . D. The Notice Provision Speaks of Commencement of an Action, Not Judicial Jurisdiction, and There- fore is Subject to Pragmatic Construction Akin to the Principles Governing Exhaustion SS 1. Congress Could Have Expressly Stated the Notice Provision as a Predicate to Jurisdiction ek dw a» 6 0 2. The Sixty-Day Notice Provision is Analogous to a Requirement that a Party First Exhaust All Administrative Remedies Before Com- mencing an Action; This Court has Consis- tently Held Such Requirements to be Proce- ES SS ee E. Given Congress’ Demonstrated Ability to Limit Federal Court Jurisdiction in Explicit Terms, its Nonjurisdictional Language in the Notice Provi- sions Should Not Be Converted into a Jurisdic- eS Ie a Page 16 20 20 21 21 TABLE OF CONTENTS—{(C ontinued) Page F. The Sixty-Day Notice Provision Should Not Be Construed to Allow Polluter Defendants Stand- ing to Raise Technical Objections Applicable Not to Themselves But to Third Parties. . . . 24 IV. AN INFLEXIBLE JURISDICTIONAL RULE WILL LEAD TO THE DISRUPTION OF CON- GRESS’ PURPOSE OF FOSTERING CITIZEN ENFORCEMENT UNDER AT LEAST EIGH- TEEN OTHER MAJOR STATUTES .....- rae A. The Endangered Species Act Affords a Striking Example of the Absurd and Harsh Results of a Formalistic Jurisdictional Rule. .....---- 26 1. The Statutory Framework of the Endangered Species Act ...--- seer crete? 2. The Citizen Suit Provision of the Endangered Species Act ...---- ese err rrteee 3. Because Congress did not Intend to Permit a Species to Become Extinct During the Notice Period, a Pragmatic Rather Than a Jurisdic- tional Rule is Essential Under the Endan- gered Species Act ..---- +s see? ‘oS ee a iv TABLE OF AUTHORITIES CASES: Page Atlantic Coast Line Railroad Co. v : . vt. Brotherhood o Lwcomotive Engineers, 398 U.S. 281 (1970) ..... j 23 Avery v. Health and Human Services, 762 F.2d 158 (Ist Cir. 1985).............. 24 Bob Jones University v. United States, ES 15 California v. Grace Brethren Church, Co EE 23 City of Highland Park v. Train, 519 F.2d 68 ! ; ' : 1 (7th Cir. 1975), cert. denied, 424 U.S. 927 (1976). . 11, 12 Coit Independent Joint Venture v. FSLI ; C, No. 87- (Sup. Ct. March 2], 1989) povinesy Pe a aw 46" bons '¢ 22 Friends of the Earth v. Carey, 535 F.2d 165 = Cir. 1976), cert. denied, 434 U.S. 902 RRR TENE Ein aa Niet CO 8, 11, 16 — for Animals v. Andrus, 11 Env’t Rep. Cas. (BNA) 2189, 2199 (D. Minn. July 14 and Aug. 30, 1978) . 38 Garcia v. Cecos Int'l, Inc., 761 F.2d 76 (1st Cir. 1985) 12, 14 Gwaltney of Smithfield v. Chesapeake Bay Foundation tne U.S. _, 108 S. Ct. __ 95 L. Ed. 2d 306. i ae ee Oe oe OED Onee ee ks 8 Hallstrom v. Tillamook County, 844 F.2d 598 SUS Sie te agar 12, 14, 18 Hempstead County and Nevada Cou j 7 ty Project v. United States Environmental Preteation 7 A F.2d 459 (8th Cir. 1983) .......... conden” Honig v. Doe, 484 U.S. 305 (1988) ........... 22 Kennedy v. Whitehurst, 690 F.2d 951 (1982)... .. . 22 Lauf v. E.G. Shinner & Co., 303 U.S. 323 (1938) .. 2 Vv TABLE OF AUTHORITIES—{Continued) CASES: Lockerty v. Phillips, 319 U.S. 182 (1943)... ..... Maine Audubon Society v. Purslow, 672 F.Supp. 528 vi SP ee ee eee , 29 Mathews v. Eldridge, 424 U.S. 319 (1976) ....... 22 McNeese v. Board of Education, 373 U.S. 668 (1963) 22 Metropolitan Washington Coalition for Clean Air v. District of Columbia, 373 F.Supp. 1089 (D. D.C. 1974); rev'd on other grounds, 511 F.2d 809 (D.C. Cir. 1975) ...... Of FOES ee ee 17 National Wildlife Federation v. Coleman, 400 F.Supp. 705 (S.D. Miss. 1975), rev'd on other grounds, 529 F.2d 359, reh’g rehearing denied, 532 F.2d 1375, cert. denied, 429 U.S. 979 (1976) .........-.4-. , 29 Natural Resources Defense Council v. Callaway, 524 F.2d 79 (2d Cir. 1975)...........2-0 eee eee 11, 17, 18 Natural Resources Defense Council v. Train, 510 F.2d 692 (D.C. Cir. 1975)...........--5-05- 8, 12, 21 Phillips Petroleum Co. v. Shutts, 472 U.S. 797 (1985). 24 Proffitt v. Comm'rs, Township of Bristol, 754 F.2d 504 CB Cie, BGR. oc icc cc cece vccvccscees li, 18, 22 Pymatunirig Water Shed Citizens v. Eaton, 644 F.2d 995 (3d Cir. 1981)..........--565. , 22 Save the Yaak Comm. v. Block, 840 F.2d 714 (9th Cir. 1988) ...........4.-.. , 30 Secretary of State of Maryland v. J.H. Munson Co., FP a ae oe ee , 25 Sierra Club v. Block, 614 F.Supp. 488 (D.D.C. 1985) .............5-. 8, 29, 30 TABLE OF AUTHORITIES~{Continued) CASES: Sierra Club v. Froehlke, 534 F.2d 1289 (8th Cir. 1976) South Carolina v. Katzenbach, ee. State of California v. Dept. of Navy, 431 F.Supp. 1271 (N.D. Cal. 1977), aff'd, 624 F.2d CS en Susquahanna Valley Alliance v. Three Mile Island, 619 F.2d 231 (3d Cir. 1980) .............. Tennessee Valley Authority v. Hill, 437 U.S. 153 (1978) Trans Alaska Pipeline Rate Cases, 436 U.S. 631, . (1978) ao 2 gt Tie oh et ae ee ee ee a SE RG. ahd bode hatin akc @ AaB os Village of Kaktovik v. Corps of Engineers, 12 Env't Rep. Cas. (BNA) 1740, 1744 (D. Alaska, Dec. 29, 1978) . Walls v. Waste Resource Corp., 761 F.2d 311 TGR aaa Warth v. Seldin, 422 U.S. 490 (1975) .......... Weinberger v. Salfi, 422 U.S. 749 (1975) Zipes v. Trans World Airlines, Inc., 455 U.S. 387 (1982) a ie a a. fe i vii Page ai TABLE OF AUTHORITIES—{Continued) STATUTES: saa 15 U.S.C.A. §$§ 2601-2671 (West 1982 & Supp. 1989) 5 16 U.S.C.A. §$§ 1531-1543 (West 1985 & Supp. 1989) 5 16 U.S.C.A. § 1532 (West 1985) .....---+-+s: 27, 28 16 U.S.C.A. § 1533 (West 1985 and Supp. 1989) .. . 27 16 U.S.C.A. § 1536 (West 1985) .....----- ee 28 16 U.S.C.A. § 1538 (West 1985 & Supp. 1989) .... 27 16 U.S.C.A. § 1540 (West 1985) ......---- +s: 28, 29 98 U.S.C.A. § 1341 (West 1976) .....-----+s> 23 28 U.S.C.A. § 1342 (West 1976) ...-,---- +--+: 23 98 U.S.C.A. § 2283 (West 1978) .....-- +--+: 23 99 U.S.C.A. § 107 (West 1983)... .-.- +--+ s> 23 33 U.S.C.A. $$ 1201-1328 (West 1986 & Supp. 1989) . 5 33 U.S.C.A. §§ 1251-1375 (West 1986 & Supp. 1989) 5 33 U.S.C.A. $§ 1401-1445 (West 1986 & Supp. 1989) 5) 33 U.S.C.A. §§ 1501-1524 (West 1986 & Supp. 1989) 5 33 U.S.C.A. §§ 1901-1912 (West 1986 & Supp. 1989) 5 42 U.S.C.A. §§ 300f-300j-10 (West 1982 & Supp. 1989) 5 42 U.S.C.A. §§ 4321-4370 (West 1977 & Supp. 1989) 5 42 U.S.C.A. §§ 4901-4918) (West 1983 & Supp. 1989) 5 42 U.S.C.A. §§ 6901-6987 (West 1983 & Supp. 1989) 2, 4 42 U.S.C.A. § 6972 (West 1983 & Supp. 1989) .... passim 42 U.S.C.A. §§ 7401-7642 (West 1983 & Supp. 1989) 5 9 42 U.S.C.A. § 7604 (West 1983) ... 2... eee eee : 42 US.C.A. §§ 9601-9675 (West 1983 & Supp. 1989). 5 43 U.S.C.A. §§ 1331-1356 (West 1986 & Supp. 1989). 5 Vill TABLE OF AUTHORITIES—{ Continued) OTHER AUTHORITIES: Air Pollution—1970: Hearings on $3229, $3466 ¢> $3546 Before the Subcomm. on Air and Water Pollution of the Senate Comm. on Public Works, 91st Cong., 2d EE SAIL EPA's Responsibilities Under RCRA: Administrative Law Issues, 9 Ecology L.Q. 555 (1981)........ Miller, Private Enforcement of Federal Pollution Con- trol Laws, Part I, 13 Envtl. L. Rep. 10309 (1983). Notice by Citizen Plaintiffs in Environmental Litigation, 79 Mich. L. Rev. 279(1980).............. Petition For Writ of Certiorari to the United States Court of Appeals for The Ninth Circuit, ist gg SSE ES 116 Cong. Rec. $33,103 (daily ed. Sept. 22, 1970). . . 116 Cong. Rec. $33,104 (daily ed. Sept. 22, 1970). . . 116 Cong. Rec. $42,387 (daily ed. December 18, 1970) $4358, 91st Cong., 2d Sess., 116 Cong. Rec. 32,281 Re EE SR A rae a ce H. Rep. No. 1491, 94th Cong., 2d Sess. 2 (1976), reprinted in 1976 U.S. CODE CONG. & AD. NEWS 6238 Conf. Rep. No. 1783, 9st Cong., 2d Sess. (1970) reprinted in 1970 U.S. CODE CUNG. & AD. NEWS 5374-5391 S. Rep. No. 307, 93rd Cong., Ist Sess., reprinted in 1973 U.S. CODE CONG. & AD. NEWS 2989 . . . S. Rep. No. 1196, 91st Cong., 2d. Sess. (1970) ‘, Page ou 6, 7 D> “oS Sh u No. 88-42 IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1988 OLAF E. HALLSTROM AND MARY E. HALLSTROM, Petitioners, TILLIMOOK COUNTY, A MUNICIPAL CORPCHATION, t. ON WRIT OF CERTIORARI T9) THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT BRIEF AMICI CURIAE OF SIERRA CLUB, DEFENDERS OF WILDLIFE, INC., NATIONAL AUDUBON SOCIETY, NATURAL RESOURCES All parties have consented in writing to the filing of this brief on behalf of amici curiae Sierra Club, Defenders of Wildlife, Inc., National Audubon Society, Natural Re- sources Defense Council, Inc., and The Wilderness Soci- ety in support of the Petitioners. ' STATEMENT OF INTEREST OF AMICI CURIAE Amici Curiae are nonprofit public interest organiza- tions with large nationwide memberships? whose broad purposes include both the enjoyment, study and explora- tion of this country’s vast national resources and the enlistment of public interest in and support for the protec- tion, conservation and preservation of these resources. 1. Petitioners’ consent and Respondent's consent are being filed concurrently with the Clerk of the Court in accordance with Rule 36.2 of the Rules of the Supreme Court of the United States. 2. Appendix A hereto provides additional information regarding the individual amicus organizations. %) 2 Amici participate extensively in and sponsor numerous recreational activities, educational programs and scientific and other research projects to promote a better apprecia- tion and understanding of our natural resources and atten- dant environmental concerns. Amici have been actively involved at the federal, state and local level in the comment process on new environ- mental legislation and amendments to existing legislation and have also instituted or participated in numerous administrative and judicial proceedings to ensure the effective implementation and enforcement of this country’s environmental laws, including the Resource Conservation and Recovery Act, 42 U.S.C.A. §§ 6901-6987 (West 1983 & Supp. 1989) (“RCRA”), the statute ct issue in this case. As an important part of their efforts to promote compliance with federal environmental laws, amici have on numerous occasions used the citizen suit provisions in RCRA and other environmental statutes to enjoin public or private activities which violate statutory standards or to compel government agencies to perform statutorily mandated du- ties. Accordingly, amici have a direct interest in the Court's holding in this case, particularly as to how it will impact future citizen suits. SUMMARY OF ARGUMENT Prior to 1970, there was a paucity of federal statutes and regulations to protect and conserve this country’s environment and natural resources. Because of deep and widespread public concern for the impact of rapid growth on the environment, beginning with the National Environ- mental Policy Act of 1969 and the Clean Air Act Amend- ments of 1970, Congress passed and Presidents Nixon, Ford, Carter and Reagan signed into law a far-reaching and complex set of environmental statutes. These statutes provided for enforcement of their pro- visions by federal and state agencies. Commencing with the Clean Air Act Amendments, Congress in addition 3 sought to augment government enforcement and to enlist the help of citizens by authorizing citizens to bring suit in federal courts to enjoin violative activities and to compel government agencies to perform their statutory duties. Accordingly, citizen suit provisions were included in sub- stantially identical form in at least thirteen major environ- mental statutes, including the Resources Conservation and Recovery Act (“RCRA”), the statute at issue in this case. Comparable provisions were also included in at least five other statutes affecting such diverse areas as energy, consumer protection and civil defense. To encourage and enable government agencies to carry out their enforcement responsiblities, Congress included in the citizen suit provisions the sixty-day notice provision at issue in this case. Congress did not intend, and therefore did not provide, that the notice provision should be a jurisdictional barrier to citizen action, nor did it intend or provide that necessary relief should be delayed when government agencies decline or refuse to act or waive notice. Accordingly, Congress enacted a notice provision that is akin to an exhaustion of remedies requirement. Although compliance should be required in all appropriate cases, the provision should be held to be waivable and held when strict compliance would otherwise be futile or lead to anomalous results, or preclude essential temporary relief. Indeed, treating the notice provision as an inflexible, formalistic jurisdictional barrier would vitiate Congress’ purpose of encouraging citizen enforcement and lead to harsh or absurd results. Without advancing any legitimate purpose, a jurisdictional construction would also disable federal courts from providing essential temporary injunc- tive relief in cases when notice would otherwise be waived or excused. Finally, a jurisdictional construction would arm polluters with the weapon of a jurisdictional objection 4 pertaining not to themselves, but to governmental agen- cies who have waived notice or have no interest in raising the notice issue. Although the issue as framed is deceptively narrow and simple, i.e., is the RCRA notice provision “proce- dural” or “jurisdictional,” the Court's ruling may well impact each of the statutes providing for citizen enforce- ment. Parties effected by those statutes are not before the Court. A “jurisdictional” construction would seriously im- pede citizen enforcement not only of RCRA, but of each of those statutes. Under the Endangered Species Act, for example, such a jurisdictional interpretation could lead to the extinction or widespread destruction of a species while citizens, whom Congress intended to encourage, waited —— and helplessly for the sixty-day period to e ARGUMENT L. RCRA IS ONE OF A COMPREHENSIVE SET OF REGULATORY STATUTES INTENDED TO PRO- TECT THE ENVIRONMENT, AND THIS COURT SHOULD THEREFORE BE AWARE OF THE PO- TENTIAL IMPACT ITS DECISION IN THIS CASE WILL HAVE ON MANY ENVIRONMENTAL STAT- UTES In 1976, Congress passed and President Ford signed into law the Resource Conservation and Recovery Act (codified at 42 U.S.C.A. §§ 6901-6987 (West 1983 & Supp. 1989)) (“RCRA”) to regulate the disposal of hazardous wastes and minimize the harms to health and environment caused by unsafe disposal.* 3. “The Resource Conservation and Recovery Act of 1976 is a multifaceted approach toward solving the problems associated with the 5-4 billion tons of discarded materials generate’ «ach vear and the problems resulting from the anticipated 8% annual increase in the 5 RCRA is one of a comprehensive set of federal regu- latory statutes enacted during the 1970s in response to widespread public concern over the devastaiing environ- mental impact resulting from this country’s rapid growth. Commencing with the National Environmentai Policy Act of 1969 (codified at 42 U.S.C.A. §§ 4321-4370 (West 1977 & Supp. 1989)) (“NEPA”) and the Clean Air Act Amend- ments of 1970 (codified at 42 U.S.C.A. §§ 7401-7642 (West 1983 & Supp. 1989)) (“Clean Air Act Amendments’), Congress enacted numerous environmental statutes, in- cluding the Federal Water Pollution Control Act (codified at 33 U.S.C.A. §§ 1251-1375 (West 1986 & Supp. 1989)) (“Clean Water Act”), the Endangered Species Act (codified at 16 U.S.C.A. $§ 1531-1543 (West 1985 & Supp. 1989)) and the Comprehensive Environmental Response, Com- pensation, and Liability Act (codified at 42 U.S.C.A. §§ 9601-9675 (West 1983 & Supp. 1989)) (“CERCLA”), which, together with other statutes, provide a regulatory framework for protecting and conserving the environment.‘ Because RCRA is but one component of a volume of such waste.” H. Rep. No. 1491, 94th Cong., 2d Sess. 2 (1976), reprinted in 1976 U.S. CODE CONG. & AD. NEWS 6238, 6239. See generally Note, EPA's Responsibilities Under RCRA: Ad- ministrative Law Issues, 9 Ecology L.Q. 555, 555 (1981). 4. Other statutes include the Safe Drinking Water Act (codified at 42 U.S.C.A. §§ 300f-300j-10 (West 1982 & Supp. 1989)); the Toxic Substance Control Act (codified at 15 U.S.C.A. §§ 2601-2671 (West 1982 & Supp. 1989)); the Marine Protection, Research, and Sanctuar- ies Act (codified at 33 U.S.C.A. §§ 1401-1445 (West 1986 & Supp. 1989)); the Surface Mining Control and Reclamation Act (codified at 33 U.S.C.A. §§ 1201-1328 (West 1986 & Supp. 1989)); the Noise Control Act (codified at 42 U.S.C.A. §§ 4901-4918 (West 1983 & Supp. 1989)); the Act to Prevent Pollution From Ships (codified at 33 U.S.C.A. §§ 1901-1912 (West 1986 & Supp. 1989)); the Outer Continental Shelf Lands Acts (codified at 43 U.S.C.A. §§ 1331-1356 (West 1986 & Supp. 1989)); and the Deepwater Port Act (codified at 33 U.S.C.A. §§ 1501-1524 (West 1986 & Supp. 1989)). The purpose provisions of these statutes are set forth alphabetically for the Court's information in Appendix B. 6 complex set of statutes, the Court should be aware of the potential irapact its decision will have on these statutes. I. THE LEGISLATIVE HISTORY PERTAINING TO CITIZEN SUIT PROVISIONS AND NOTICE RE- QUIREMENTS DEMONSTRATE THAT CON- GRESS’ PRIMARY CONCERN IN ENACTING THESE PROVISIONS WAS TO ENCOURAGE CITIZEN PARTICIPATION IN THE ENFORCE- MENT OF ENVIRONMENTAL LEGISLATION A. Citizen Suit Provisions, Which Were First Codified as Part of the Clean Air Act Amendments, Were En- acted to Encourage Citizen Participation in the En- forcement of Environmental Legislation as a Supple- ment to Agency Enforcement. There was a notable absence of federal environmental regulation prior to the enactment of NEPA in 1969 and the Clean Air Act Amendments in 1970. To the extent federal environmental regulations existed, often the only available means for private citizens to participate in the enforcement of these regulations was to attend public hearings. Accord- ingly, violations of environmental statutes often continued unabated when the federal or state enforcement agencies chose not to act, or for lack of resources could not act. See Note, Notice by Citizen Plaintiffs in Environmental Liti- gation, 79 Mich. L. Rev. 279, 299 (1980). See generally Miller, Private Enforcement of Federal Pollution Control Laws, Part I, 13 Envtl. L. Rep. 10309, 10310 (1983). With the passage of the Clean Air Act Amendments, Congress afforded private citizens the right to sue to enforce the provisions of an environmental statute. The citizen suit provision in the Clean Air Act Amendments became the model for citizen suit provisions that were included in substantially identical form in nearly every subsequent new environmental statute, in amendments to existing federal environmental statutes and in at least five OW eth ie, 7 nonenvironmental regulatory statutes.> Because of the paucity of relevant legislative history of the citizen suit provisions in these other statutes,® the starting point to understanding Congress’ purposes is the legislative history of the Clean Air Act Amendments. The citizen suit provision in the Clean Air Act Amend- ments recognized the need for citizen participation in the enforcement of the Clean Air Act both to help achieve the Act’s goals and to augment the limited resources of federal and state agencies: Citizens in bringing such actions are performing a public service. The limited resources of many State enforcement agencies, bearing the first line of respon- sibility under this bill, will be fully extended. This [citizen suit] provision, requiring 30 days notice to State and Federal agencies, in which they may initiate abatement proceedings, will allow many violations to come to their attention which otherwise might escape notice. 116 Cong. Rec. $33,103 (daily ed. Sept. 22, 1970) (mem- orandum submitted by Senator Muskie). See also 116 Cong. Rec. $42,387 (daily ed. December 18, 1970) (re- marks of Senator Muskie) (“The Senate committee felt it would be impe*sible to do the total job of air pollution cleanup relying wholly upon the Federal bureaucracy.”). 5. See discussion infra at 25-26 and Appendix B. 6. See, e.g., Maine Audubon Society v. Purslow, 672 F. Supp. 528, 529 n.3 (D. Maine 1987)“In enacting the citizen suit of the Endangered Species Act, Congress appeared to have adopted the notice requirement of other statutes without discussion” [citing S. Rep. No. 307, 93rd Cong. Ist Sess., reprinted in 1973 U.S. CODE CONG. & AD. NEWS 2989, 2999]). See generally Miller, Private Enforcement of Federal Pollution Control Laws, Part I, 13 Envtl. L. Rep. 10309, 10311 (1983) (“There are perhaps no sections of the environmental statutes where precedent under one statute so clearly applies to others.”). 8 While providing for citizen enforcement, Congress anticipated that governmental agencies, federal and state, would be primarily responsible for enforcement.’ Private citizens were encouraged to uncover violations that other- wise might escape notice, and motivate the agencies to take action. See S. Rep. No. 1196, 91st Cong., 2d Sess. 36-37 (1970) (report of Public Works Committee) (“Autho- rizing citizens to bring suits for violations of standards should motivate governmental agencies charged with the responsibility to bring enforcement and abatement pro- ceedings. . . .”). However, when the government agencies failed to act, citizens should be “unconstrained” to bring enforcement actions, and the federal courts “should not be hesitant to consider them.” Id. Thus, by encouraging private citizens to support gov- ernmental enforcement and empowering citizens to ini- tiate enforcement actions themselves, Congress sought to accomplish the Clean Air Act’s stated purpose to protect and enhance the quality of this country’s air resources. Citizen plaintiffs were therefore not to be viewed as “nuisances or troublemakers, but rather as welcome par- ticipants in the vindication of environmental rights.” Friends of the Earth v. Carey, 535 F.2d 165, 175 (2d Cir. 1976), cert. denied, 434 U.S. 902 (1977). See Natural Resources Defense Council v. Train, 510 F.2d 692, 700 (D.C. Cir. 1975) (“[T]he citizen suit provisions reflected a deliberate choice by Congress to widen citizen access to the courts as a supplemental and effective assurance that the [Clean Air] Act would be implemented and enforced”). 7. Indeed, the citizen suit provision in the Clean Air Act Amenc- ments contains a statutory bar to the filing of a citizen suit where “the Administrator or State has commenced and is diligently prosecuting” its own enforcement action. 42 U.S.C.A. § 7604 (West 1983). See Gwaltney of Smithfield v. Chesapeake Bay Foundation, Inc., 484 U.S. __, 108 S. Ct. __, 98 L. Ed. 2d 306, 318 (1987) (relating to similar provision in Clean Water Act, 33 '' S.C.A. § 1365(b)(1)(B) (West 1986)). I 9 B. The Notice Requirement Was Not Added to Create a Rigid Barrier to Citizen Suits, But Rather to Encour- ~ age Agency Enforcement. ~ Although Congress envisaged private citize1.s under- eaktans an essential role in the enforcement of the Clean Air Act, proponents as well as opponents of the amendments to the Act expressed concern that citizen suits could overbur- den the courts and interfere with government enforcement of alleged violations. See Air Pollution—1970: Hearings on S. 3229, S. 3466 & S. 3546 Before the Subcomm. on Air and Water Pollution of the Senate Comm. on Public Works, 91st Cong., 2d Sess. 1184 (1970). For example, proponents were careful to note that the proposed citizen suit provi- sions did not provide for the award of damages to private plaintiffs, 42 U.S.C.A. § 7604(a) (West 1983), and empow- ered the courts to award attorneys’ fees and costs to the prevailing party, thereby deterring frivolous lawsuits, 42 U.S.C.A. § 7604(d) (West 1983). First of all, it should be noted that the bill makes no provision for damages to the individual. It therefore provides no incentives to suit other than to protect the health and welfare of those suing and others similarly situated. It will be the rare, rather than the ordinary person, I suspect, who, with no hope of financial gain and the very real prospect of financial loss, will initiate court action under the bill. 116 Cong. Rec. $33,104 (daily ed. Sept. 22; 1970) (remarks of Senator Hart). The Senate subcommittee also included a notice re- quirement. As originally drafted, it required citizen plain- tiffs to give thirty days notice to the Environmental Protection Agency (“EPA”), its field representative, the state air pollution control agency and the alleged violator before filing suit. See S. 4358, 91st Cong., 2d Sess., 116 Cong. Rec. 32,381 (1970). Committee members believed “7 10 that the notice provision would serve to trigger adminis- trative action to remedy the alleged violation, thereby eliminating the need for the private citizen to seek relief in the courts. [B]efore any citizen can bring an action, he is required to notify the enforcement agency concerned of his intent to do so, and the specific, alleged violation which he has in mind. In other words, the idea is to use citizens to trigger the enforcement mechanism. If that enforcement mechanism does not respond, then the citizen has his right to go to court. 116 Cong. Rec. $33,103 (daily ed. Sept. 22, 1970) (remarks of Senator Muskie) (emphasis added). In its report on the proposed amendments to the Clean Air Act, however, the Senate Committee on Public Works emphasized that the notice requirement, though intended to encourage intervention by the appropriate government agencies, was not meant to discourage citizen suits. The regulations to be promulgated by the Secretary [of the Interior] should reflect simplicity, clarity, and standardized form. The regulations should not require notice that places impossible or unnecessary burdens on citizens but rather should be confined to requiring information necessary to give a clear indication of the citizens’ intent. S. Rep. No. 1196, 91st Cong., 2d Sess. 37 (1970). Thus, the citizen plaintiff was not expected to provide detailed or technical information so long as the federal and state agencies and the alleged violator understood the general scope of the citizen's allegations. Without comment, a joint House-Senate conference committee responsible for resolving inconsistencies be- tween the House and Senate versions of the bill length- ened the notice requirement to sixty days. Conf. Rep. No. 1783, 91st Cong., 2d Sess. 1, 55 (1970) reprinted in 1970 a 11 U.S. CODE CONG. & AD. NEWS 5374-5391. This version of the notice provision was enacted into law as part of the Clean Air Act Amendments. C. Although the Federal Courts Are Divided, Those That Follow the Pragmatic Rather Than the Juris- dictional Approach Best Serve the Underlying Pur- poses of the Notice Requirement. Those federal courts that have considered the notice requirement in the Clean Air Act Amendments and other federal environmental statutes have consistently recog- nized that Congress sought to facilitate and encourage citizen involvement while preserving the primary enforce- ment role of the federal and state regulatory agencies and shielding the federal courts from an unmanageable number of citizen suits. See, e.g., Natural Resources Defense Council v. Callaway, 524 F.2d 79, 84 n.4 (2d Cir. 1975) (purpose of sixty-day notice requirement of Clean Water Act is to give the administrative agencies time to investi- gate and act on an alleged violation); City of Highland Park v. Train, 519 F.2d 681, 690-91 (7th Cir. 1975), cert. denied, 424 U.S. 927 (1976) (Congress intended to provide for citizen suits in a manner least likely to clog the courts and most likely to trigger agency enforcement). These courts, however, have divided on how to interpret the notice requirement to best serve these congressional purposes. The federal circuit courts have generally split into two groups, adopting either a “pragmatic approach” toward the notice requirement—in essence treating the notice re- quirement in environmental statutes as procedural—or a “jurisdictional approach,” which requires dismissal for lack of subject matter jurisdiction if the citizen plaintiff has not strictly complied with the sixty-day notice requirement. The “pragmatic approach” has been adopted by the Sec- ond, Third and Eighth Circuits, see, e.g., Friends of the Earth v. Carey, 535 F.2d 165, 175 (2d Cir. 1976) cert. denied, 434 U.S. 902 (1977); Proffitt v. Comm'rs, Township of Bristol, 754 F.2d 504, 506 (3d Cir. 1985); Hempstead 12 County and Nevada County Project v. United States Environmental Protection Agency, 700 F.2d 459, 463 (8th Cir. 1983), while the “jurisdictional approach” has been adopted by the First, Sixth, Seventh and Ninth Circuits, see, e.g., Garcia v. Cecos Int'l, Inc., 761 F.2d 76, 78 (1st Cir. 1985); Walls v. Waste Resource Corp., 761 F.2d 311, 316 (6th Cir. 1985); City of Highland Park v. Train, 519 F.2d 681, 691 (7th Cir. 1975); Hallstrom v. Tillamook County, 844 F.2d 598, 600-601 (9th Cir. 1988).® The courts adopting the pragmatic approach reason that a rigid, literal reading of the notice requirement would hinder rather than encourage the filing of citizen suits, thus frustrating Congress’ intent in adopting the citizen suit provisions that “any citizen [should be able] to bring action directly against polluters . . . or against the Administrator grounded on his failure to discharge his duty to enforce the statute against polluters.” Natural Resources Defense Council v. Train, 510 F.2d at 700. See Friends of the Earth v. Carey, 535 F.2d at 172; Proffitt v. Commr’s, 754 F.2d at 506. A pragmatic rather than a jurisdictional reading of the notice requirement ensures that the regulatory agencies have been given sufficient opportunity to act on the alleged violation but does not discourage citizen plaintiffs from participating in the enforcement process. See Proffitt, 754 F.2d at 506 (sixty-day notice requirements of Clean Water 8. While some courts have cited Natural Resources Defense Council v. Train, 510 F.2d 692 (D.C. Cir. 1974) in support of the pragmatic approach, the D.C. Circuit in that case found jurisdiction on other grounds, namely under the “savings” clause, Section 505(e), of the Clean Water Act. In dictum, however, the court indicated that it would adopt the pragmatic approach if it were required to interpret the notice requirement of the Clean Water Act. See id. at 703 (“Sound discretion bids a court stay its hand upon petition by the Administrator where it has reason to believe that further agency consideration may resolve the dispute. . . . However, the court has jurisdiction and may maintain the action on its docket in a suspense status, and even grant temporary relief.”). . 13 Act and RCRA “should be applied flexibly to avoid hin- wn Wally Altonee a Theor Bde Iolond, 610 F.32 quahanna Valley Alliance v. Three Mile I q : 231, 243 (3d Cir. 1980) (“We agree . . . that reading [the notice requirement of the Clean Water Act] to require dismissal and refiling of premature suits would be exces- sively formalistic.”). The pragmatic approach also avoids the waste of judicial resources which results under the jurisdictional approach, which would require the dismissal and refiling of an action after months, or in some cases years, of legal proceedings due solely to a failure to meet the formal notice requirements, even when the defendants are not prejudiced by the failure to give such notice. As the Third Circuit Court of Appeal noted in Pymatuning Water Shed Citizens v. Eaton, 644 F.2d 995, 996 (3d Cir. 1981), Requiring [the dismissal and refiling of actions] after proceeding to the stage of the case presently before us would . . . waste judicial resources. Moreover, the appellant’s argument, if adopted, would frustrate citi- zen enforcement of the [Clean Water] Act. Almost two years have now passed since the filing of the complaint in this action and in the meantime, the alleged flow of sewage has continued unabated. See State of California v. Dept. of Navy, 431 F.Supp. 1271, 1278-79 (N.D. Cal. 1977), aff'd, 624 F.2d 885 (9th Cir. 1980) (“[N]o purpose would be served by dismissing here since plaintiffs could and would immediately refile this lawsuit. [Footnote omitted]. Dismissal now would be, in effect, the ultimate disservice to judicial economy.”).® 9. It also should be noted that if failure to give strictly complying sixty-day notice creates a jurisdictional barrier, defendants will be encouraged, even as statutory violations continue unabated, to raise the jurisdictional sword for the first time on appeal or to seek to reopen adverse final judgments. The resultant need to refile the action and relitigate the merits in order to enforce statutory standards would be a disservice to judicial economy. 14 Those courts adopting the jurisdictional approach have interpreted the language of the notice provision as a jurisdictional barrier. They reason that where Congress has “clearly” set forth the requirements for notice, the courts need not, and should not, engage in any speculative interpretation of the notice provision. “The notice require- ment is not a technical wrinkle or superfluous formality that federal courts may waive at will. . . . [I]t is part of the jurisdictional conferral from Congress that cannot be al- tered by the courts.” Garcia, 761 F.2d at 79. See also Hallstrom, 844 F. 2d at 600 (citing Garcia); Walls, 761 F.2d at 316. They view the express exceptions to the sixty-day notice requirement under certain circumstances (e.g., the exception in RCRA for hazardous waste, 42 U.S.C.A. § 6972(b\1\A), and (2A) (West Supp. 1989)), as further evidence that Congress intended the notice requirement to be a rigid jurisdictional barrier to citizen suits. See, e.g., Hallstrom, 844 F.2d at 601; Walls, 761 F.2d at 316. To ignore the sixty-day notice requirements would in their view “‘constitute[sic], in effect, judicial amendment in abrogation of explicit, unconditional statutory language. ~ Garcia, 761 F.2d at 78, quoting City of Highland Park v. Train, 374 F. Supp. 758, 766 (N.D. Ill. 1974), aff'd 519 F.2d 681 (7th Cir. 1975), cert. denied 424 U.S. 927 (1976). These courts reason further that the notice require- ment was adopted primarily to encourage regulatory agen- cies to step in and obtain a nonjudicial resolution of the alleged violation, and that this goal would be thwarted if citizens were allowed to file suit prior to the completion of the sixty-day notice period. See Hallstrom, 844 F.2d at 601; Garcia, 761 F.2d at 82. Simply staying the proceeding for sixty days to provide the parties with an opportunity to resolve the dispute would in their view not satisfy the statute, for “once a suit is filed, positions become hard- ened, parties incur legal fees, and relations become adver- sarial so that cooperation and compromise is less likely.” Hallstrom, 844 F.2d at 601. Thus, these courts have concluded that nothing short of dismissal and the giving of 15 full sixty-day notice will suffice to encourage the non- judicial resolution of the environmental conflict et issue. For the reasons that follow, the pragmatic roach best serves the statutory purpose. ~~ Ii. THE COURT SHOULD APPLY A PRAGMATIC APPROAC H TO THE SIXTY-DAY NOTICE REQUIREMENT TO AC- COMPLISH RCRA’S GOALS AND AVOID ANOMALOU RESULTS = . A. The Statute does not Preclude Federal Jurisdiction and to Ratorgeet ft to do so would Defeat ie Perpeen This Court has repeatedly held, however, that fede suncten dean be tntonpested to erumpert ath and one- mote the purposes of the entire statute. See, e.g., Bob Jones University v. United States, 461 U.S. 574, 586 (1983) (“It is a well-established canon of statutory construction that a court should go beyond the literal language of a statute if reliance on that language would defeat the plain purpose of the statute. . .”); Trans Alaska Rate Cases, 436 U.S. 631, 643 (1978). Where a literal reading of a statute arava wafer sna = iy so na variance policy of the whale,’ Gite Const hen Gilieeed thas panes enhahens the statute rather than its literal words.” United States v. American Trucking Ass'ns, 310 U.S. 534, 543 (1940), quoting Ozawa wv. United States, 260 U.S. 178, 194 (1922). 16 As the cases discussed below demonstrate, a formalis- tic jurisdictional reading of the notice requirement con- tained in RCRA and other environmental statutes would produce harsh and absurd results that would frustrate, rather than further, the underlying congressional purpose to protect and conserve the environment. In such cases, courts should have the discretion to interpret the notice requirement flexibly in a manner that avoids such anoma- lous results while furthering the congressional purpose. B. The Pragmatic Approach Avoids the Unfair and Absurd Results that would Arise from a Formailistic Application of the Notice Requirement. In Friends of the Earth v. Carey, 535 F.2d 165 (2d Cir. 1976), cert. denied, 434 U.S. 902 (1977), plaintiffs filed suit under the Clean Air Act to enjoin an increase in New York City transit fares and to enforce the “clean air” provisions of the Transportation Control Plan for the New York metropolitan area. Id. at 168. Before filing suit, plaintiffs sent proper sixty-day notices to the Governor of New York, the EPA, the State environmental protection agency and to each of fifteen agents and agencies of the State to whom some enforcement authority had been delegated, including the Metropolitan Transit Authority (“MTA”). Id. at 174. After filing suit, plaintiffs added the New York City Transit Authority (“TA”), which was responsible for authorizing the fare increase, as an additional defendant. The district court refused to enjoin the fare increase primarily on the basis that the TA received inadequate notice, even though plaintiffs sent proper notice to the MTA, the TA’s sister agency, and to both the chairman of the TA and its general counsel in their capacities as MTA rather than TA officials. Id. On appeal, the Second Circuit found the district court s “technical, crabbed reading” of the notice requirement to be “completely at odds with the announced purpose of the statute, which looks to substance rather than to form in an effort to facilitate citizen involvement,” and reirstated the complaint as to the TA. Id. at 175. See also National 17 Wildlife Federation v. Coleman, 400 F.Supp. 705, 709 (S.D. Miss. 1975), rev'd on other grounds, 529 F.2d 359. rod Sei. 532 F.2d o_o cert. denied, 429 U.S. 979 notice requirement of the Endangered Species Act satisfied even though plaintiff's letter to appropriate gov- ernment agencies did not expressly state intention to file suit); Metropolitan Washington Coalition for Clean Air v. District of Columbia, 373 F.Supp. 1089 (D. D.C. 1974), revd on other grounds, 511 F.2d 809 (D.C. Cir. 1975) (notice requirement of Clean Air Act met even though notice sent by regular mail rather than by certified mail as required by applicable regulations). In Natural Resources Defense Council v. Callaway, 524 F.2d 79 (2d Cir. 1975), plaintiffs filed suit under NEPA and the Clean Water Act to enjoin further dumping by the United States Navy of highly polluted dredged spoil at a designated dumping site in Long Island Sound. The dis- trict court held that it lacked jurisdiction to determine the merits of the Clean Water Act claim because the sixty-day notice requirement of the Act had not been met (plaintiffs had filed suit fifty days from the notice date). Id. at 83. The court of appeals rejected such a technical reading of the notice requirement and instead sought to determine whether the underlying purpose of the notice require- ment, to give the agencies time to act, had been met. Noting that the administrative agencies had sufficient time to investigate plaintiffs’ allegations prior to the filing of the complaint and had in fact informed plaintiffs that no administrative action would be taken, the court found that the purpose of the notice requirement had in fact been met. [T]he purpose of the 60-day waiting period, which is to give the administrative agencies time to investigate and act on an alleged violation, has been served. The EPA and other agencies were given notice by plaintiffs 18 of the alleged violations and plaintiffs were informed before this suit was commenced that no action would be taken. Id. at 84 n.4.%° Cf. Proffitt v. Comm'rs, Township of Bristol, 754 F.2d 504, 506 (3rd Cir. 1985) (where agencies had received reports of alleged violations three years before citizen suit was filed and plaintiff met with agency officials to discuss alleged violations five months prior to filing suit, defendants received notice-in-fact sufficient to satisfy Clean Water Act and RCRA notice requirements); Pymatuning Water Shed Citizens for a Hygienic Environ- ment v. Eaton, 644 F.2d 995 (3d Cir. 1981) (sixty-day notice requirement of Clean Water Act met where district court stayed proceeding for sixty days, and eleven months elapsed before court began hearing evidence in the case). In Sierra Club v. Froehlke, 534 F.2d 1289 (8th Cir. 1976), plaintiffs sought to enjoin construction of several proposed dams in the state of Missouri, claiming that the original environmental impact study was inadequate in its attempt to assess the effect of the dams on the region and on a species of bat native to that region. Defendants moved to dismiss the Endangered Species Act claim for lack of subject matter jurisdiction, alleging that plaintiffs had failed to give the requisite sixty-day notice. Although the district court did not dispute that sixty-day notice had not been given, it nonetheless denied defendants motion, finding that, because of the unique nature of the evidence presented at trial, the motion should be denied in the interests of justice. [Clonsidering the fact that there are only five or six experts in the study of Myotine Bats in the world and 10. Although the Callaway court did not ultimately rely on Section 505(a) of the Clean Water Act Amendments (containing the citizen suit provision), in finding that the trial court had subject matter jurisdiction to determine the merits of plaintiffs’ claim, instead relying on the statute's “savings” clause, the court suggested in dictum that it would also have found jurisdiction under Section 530%a). Id. at 84 n.4. — — 19 that the habits, biology and other characteristics of the bats were fully developed at the trial, this Court feels that a dismissal of plaintiffs’ claim for failure to comply ee 0 Sate Sa Sees te ho stent would week an justice to adjudication of ntiffs’ claim. allow defendants to further Be gm trial, in Pe opinion of this Court, would produce no added evi- dence which would help this Court in its decision. Id. at 1303, quoting Sierra Club v. Froehlke, 392 F.Supp. 130, 143 (E.D. Mo. 1975). The Eighth Circuit affirmed the district court's ruling, agreeing with the district court that the unique evidentiary situation involved in the case required a less formal reading of the notice iremen Id. at 1303. . — * If there is a common thread running through all these cases, it is a willingness of the courts to respond to the exigencies of the case at hand and fashion a result that best serves the interests of justice while adhering to the under- lying congressional purpose in enacting the citizen suit provisions. These courts do not ignore the sixty-day notice requirement, but instead look to the facts involved in the case to determine if the plaintiff has provided sufficient notice to afford the government agencies adequate oppor- tunity to investigate the alleged violation and initiate enforcement action if necessary. In this way, Congress’ intention to encourage government enforcement prior to the filing of a citizen suit is satisfied without risking the anomalous results that could arise from a formalistic juris- dictional reading of the notice requirement. '! 11. Under the pragmatic approach, a stay of the litigation will normally be sufficient to cure the deficient notice. However, in some circumstances it may instead be appropriate for the court, based considerations such as the direct and adverse impact of continuing the action on the party not receiving notice, to dismiss the action 20 C. A Formalistic Jurisdictional Rule Would Needlessly Hamper Courts and Leave the Environment at Risk During the Sixty-Day Notice Period. The flexibility afforded by the procedural appzoach to the notice requirement is particularly important during the sixty-day period following notice. Frequently, citizens do not uncover a statutory violation until the situation is critical. Although citizens can then notify the appropriate authorities immediately, the governmental response may be both insufficient and untimely. Under a jurisdictional approach, citizen plaintiffs in these situations would be compelled to await the expiration of the sixty-day notice period even if the government agencies explicitly declined to act.'2 Thus, the courts would be prevented from pro- viding interim temporary relief to preserve the status quo during the sixty-day period. In the meantime, irreparable (and preventable) injury to the environment may result. This is a concern that a rigid jurisdictional rule does not adequately address. D. The Notice Provision Speaks of Commencement of an Action, Not Judicial Jurisdiction, and Therefore is Subject to Pragmatic Construction Akin to the Prin- ciples Governing Exhaustion of Remedies. ! oo 12. In 1984, hwo on —- the sixty-dav notice requirement if the citizen suit is respecting a violation of RCRA Subchapter III (relating to the discharge of hazard- ous wastes). 42 U.S.C.A. § 6972(b\1\/A) (West Supp. 1989). Although the 1984 amendment anticipates some emergency situations where citizens should be able to go to court without giving any notice whatsoever to halt a noncomplying activity, it is unlikely that Congress intended by inference that Subchapter III violations include the full range of harmful activities to which a court should respond immedi- ately. unhindered by a jurisdictional requirement that the sixty davs first run. Actions against government agencies to compel performance addressing the concerns of the latter. It is this latter type of action. actions to enjoin violative activities during the sixty-day period. which a formalistic jurisdictional rule would preclude. regardless of the nature of the harm threatened. 21 1. Congress Could Have Expressly Stated the No- tice Provision as a Predicate to Jurisdiction But Did Not. , The enabling provision of RCRA’s citizen suit statute, 42 U.S.C.A. § 6972(a) (West Supp. 1989), expressly provides that the “district court shall have jurisdiction, without regard to the amount in controversy or the citizenship of the parties, to enforce the permit, standard, regulation, condition, requirement, prohibition or order.” (emphasis added). Such express jurisdictional language is in sharp contrast to RCRA’s sixty-day notice requirement, 42 U.S.C.A. § 6972(b) (West Supp. 1989). This latter provi- sion does not begin with the words “The court shall not have jurisdiction unless . . .” or words of similar import. Instead, the provision begins “No action may be com- menced . . . .” In fact, nowhere in the notice provision or elsewhere in the statute is federal court subject matter jurisdiction expressly precluded if an action is commenced prior to the expiration of the sixty-day notice period. This omission is for good reason: the notice provision is far more akin to an exhaustion of remedies requirement, subject to pragmatic construction and waiver, than a jurisdiction requirement. See National Resources Defense Council v. Train, 510 F.2d 692, 703 (D.C. Cir. 1975) (“the courts may properly give effect to the salutary purpose underlying the notice provision [of the Clean Water Act] by resorting to familiar doctrines such as those underpinning the require- ment of exhaustion of administrative remedies.”). 2. The Sixty-Day Notice Provision is Analogous to a Requirement that a Party First Exhaust All Administrative Remedies Before Commencing an Action; This Court has Consistently Held Such Requirements to be Procedural. RCRA’s requirement that sixty days notice be given before commencing a citizen suit is analogous to statutory require;..ients that a plaintiff exhaust all available adminis- trative remedies before commencing the action. In each 22 case, Congress has required the would-be plaintiff to first complete a specified act, designed to relieve the burden on the court system, before he may commence the action. This Court has consistently held exhaustion statutes to be procedural and applied flexibly in accordance with the court's sound equitable discretion. See, e.g., Mathews v. Eldridge, 424 U.S. 319, 330 (1976); Weinberger v. Salfi, 422 U.S. 749, 76566 (1975). See also Kennedy v. White- hurst, 690 F.2d 951, 961 (D.C. Cir. 1982) (“exhaustion requirements are not jurisdictional in nature but rather are statutory conditions precedent to the instigation of litiga- tion”) (emphasis included). Thus, they can be waived or held inapplicable in cases of emergency or when applica- tion would otherwise be futile or absurd. See Coit Inde- pendent Joint Venture v. FSLIC, No. 87-996, slip op. at 23 (Sup. Ct. March 21, 1989) (“Administrative remedies that are inadequate need not be exhausted.”); Honig v. Doe, 484 U.S. 305 (1988) (“It is true that judicial review is normally not available under (20 U.S.C.A.] § 1415(e)(2) [of the Education of the Handicapped Act] until all adminis- trative proceedings are completed, but as we have previ- ously noted, parties may by-pass the administrative pro- cess where exhaustion would be futile or inadequate ); Salfi, 422 U.S. at 765-66 (“further exhaustion would not merely be futile for the applicant, but would also be a commitment of administrative resources unsupported by any administrative or judicial interest”); McNeese v. Board of Education, 373 U.S. 668, 674-76 (1963) (the require- ment that administrative remedies be exhausted does not include the performance of clearly useless acts). Cf. Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393-94 (1982) (timely filing of charge of discrimination with EEOC not a jurisdictional prerequisite to suit in federal court, but instead is subject to waiver, estoppel, and equitable toll- ing). The reasoning this Court has applied to its construc- tion of the exhaustion of ac.ninistrative remedies statutes applies to the sixty-day notice provision at issue in this ~ ae 23 case. The kindred principles of exhaustion of remedies and prior notice should therefore be construed harmoniously. E. Given Congress’ Demonstrated Ability to Limit Fed- eral Court Jurisdiction in Explicit Terms, its Nonju- risdictional Language in the Notice Provisions Should Not Be Converted into a Jurisdictional Barrier. . In the past, Congress has demonstrated that when it intends to limit federal court jurisdiction, it will do so in express terms, such as “Except as provided in this section, no court of the United States shall have jurisdiction .. . ,” a limitation that this Court has consistently upheld. See Lockerty v. Phillips, 319 U.S. 182, 18687 (1943) (upholding grant to Emergency Court of exclusive equity jurisdiction to restrain enforcement of price orders under Emergency Price Control Act of 1942); Lauf v. E.G. Shinner & Co., 303 U.S. 323, 329 (1938) (upholding the limitations in the Norris-La Guardia Act, 29 U.S.C.A. § 107 (West 1983), that “No court of the United States shall have jurisdiction to issue a temporary or permanent injunction in any case involving or growing out of a labor dispute, [except in strict conformity with the provisions of this chapter].”); South Carolina v. Katzenbach, 383 U.S. 301, 331-32 (1966) (upholding limit in the Voting Rights Act of 1965 to litigation in a single court in the District of Columbia). Congress has also demonstrated its ability to .imit the jurisdiction of federal courts by enacting express limita- tions in the very statutes that concern the jurisdiction and power of the federal courts, such as in the Tax Injunction Act, 28 U.S.C.A. § 1341 (West 1976) (“The district court shall not . . . .”); the Johnson Act, 28 U.S.C.A. § 1342 (West 1976) ("the district court shall not. . . .“); and the Anti-Injunction Act, 28 U.S.C.A. § 2283 (West 1978) ("a court of the United States may not... . .“). See, e.g., California v. Grace Brethren Church, 457 U.S. 393, 407, 411 (1982) (Tax Injunction Act); Atlantic Coast Line Rail- road Co. v. Brotherhood of Locomotive E:.zineers, 398 U.S. 281, 294-95 (1970) (Anti-Injunction Act). 24 By contrast, RCRA’s notice provision contains no jurisdictional language. It does not seek in jurisdictional terms to limit the power of the federal courts. In the absence of express language, this Court should not cor- strue the notice provision to impose a jurisdictional bar- rier, particularly when to do so would advance no statutory purpose and create the possibility of absurd results. See Avery v. Secretary of Health and Human Service, 762 F.2d 158, 163 (1st Cir. 1985) (“[A]bsent a clear statement to the contrary, legislation should not ordinarily be interpreted to oust a federal court’s equitable power, or its jurisdiction over a pending case.” (Citing Califano v. Yamasaki, 442 U.S. 682, 705-06 (1979)]). F. The Sixty-Day Notice Provision Should Not Be Con- strued to Allow Polluter Defendants Standing to Raise Technical Objections Applicable Not to Them- selves But to Third Parties. “{A] litigant must normally assert his own legal inter- ests rather than those of third parties.” Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 804 (1985). See Warth v. Seldin, 422 U.S. 490, 499 (1975) (“[T]he plaintiff generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights of third parties. ’). This rule prevents unnecessary and premature decisions and assures the court that the issues before it will be concrete and sharply presented. Secretary of State of Maryland v. ].H. Munson Co., 467 U.S. 947, 955 (1984). This limitation can be relaxed, for example, “[wjhere practical obstacles prevent a party from asserting rights on behalf of itself. . . .” Id. at 956. By contrast, in this case the Respondent County of Tillamook, found by the district court below to be operat- ing a landfill in violation of RCRA, is asserting the inade- quacy of the notice not to itself but rather to the Admin- istrator of the EPA and the Oregon Department of Environmental Quality. The Petitioners delivered compiy - ing notice to the County twelve months prior to the 25 commencement of the action. Petition For Writ of Certio- rari to the United States Court of Appeals for The Ninth Circuit, at 4. Under the jus tertii rules of Phillips and Munson, the County has no standing to assert such an objection unless the objection is so fundamental jurisdictional, which is not this case. Seesenianm Indeed, it is inconceivable that Congress intended allow polluter defendants to raise Gants applicable de to themselves but to federal and state enforcement agen- cies. Upholding the County’s objection in this case thus would contradict well-established standing limitations and advance no statutory purpose. 3 IV. AN INFLEXIBLE JURISDICTIONAL RULE WILL LEAD TO THE DISRUPTION OF CONGRESS’ PURPOSE OF FOSTERING CITIZEN ENFORCE- MENT UNDER AT LEAST EIGHTEEN OTHER MAJOR STATUTES Unless the Court expressly limits its holding in this case to RCRA, its ruling is likely to be applied under at least eighteen other major regulatory statutes, including substantially all significant environmental statutes enacted since 1970,'4 as well as statutes regulating such diverse areas as energy (the Energy Policy and Conservation Act, 13. Significantly, Congress included in the citizen suit section of RCRA and other environmental statutes a provision allowing private citizens to “intervene as a matter of right” in any enforcement action commenced by the government without any requirement of prior notice to the violator. See, ¢.g., 42 U.S.C.A. § 6972(b)(2) (West Supp. 1989). It seems fundamentally inconsistent for the County to raise the failure of the Petitioner to give notice to the Administrator of the EPA and to the Oregon Department of Environmental Quality as a barrier to jurisdiction when if either had actually commenced enforcement proceedings against the County, the Petitioners could have intervened without giving any notice whatsoever to the County. 14. See discussion supra at 5. the Natural Gas Pipeline Safety Act and the Ocean Ther- mal Energy Conservation Act), consumer safety (the Con- sumer Product Safety Act) and civil defense (the Emer- tive enforcement of these statutes. '® Amici respectfully request further that this Court be cognizant of the potential impact its ruling likely will have on the future viability of citizen suits to prevent environ- mental harms. A. The Endangered Species Act Affords a Striking Ex- ample of the Absurd and Harsh Results of a Formal- istic Jurisdictional Rule. Of all the notice of the environmental statutes that could be affected by a ruling in this case, the Endangered Species Act presents perhaps the most com- pelling argument against a jurisdictional reading of citizen suit notice provision. A formalistic jurisdictional rule would not only defeat Congress’ express findings and declarations of purposes and policy, it could allow an endangered species to become extinct during the time that the federal courts were deprived of subject matter juris- 15. The citations to, and relevant portions of the citizen suit and notice provisions of, these statutes are reprinted alphabetically for the dent. Private citizens, whose aid Congress sought to enlist to protect the environment, should not be burdened with the task of persuading Congress to remove a jurisdictional barrier that the statutory language and purpose do not require and that will frustrate Congress effort to obtain effective enforcement. ow -- = ~— ae ee 27 1. The Statutory Framework of the Endangered Species Act. In Tennessee Vi alley Authority v. Hill, 437 U.S. 153, In order to accomplish the stated objectives of the Endangered Species Act, Congress set forth various pro- cedures for the listing of threatened and endangered species, the designation of critical habitat, and the devel- opment of recovery plans. 16 U.S.C.A. § 1533 (West 1985 & Supp. 1989). Once a species is listed by the Secretary of the Interior or the Secretary of Commerce, the species is expressly protected by the provisions of the Act or regula- tions promulgated thereunder. Section 9, 16 U.S.C.A. § 1538 (West 1985 & Supp. 1989), contains a list of acts prohibited by Congress in order to preserve and protect endangered species. Section 9 makes it unlawful for anv person to “take” an endangered species of fish or wildlife. '* The prohibitions against taking apply to “any person subject to the jurisdiction of the United States,” 16 U.S.C.A. § 1538(a)(1) (West 1985), which includes virtually 17. Congress defined “conserve” for the purposes of the Endan- gered Species Act to mean the “use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures. . . . [of the Endangered oo 16 U.S.C.A. § 1532/3) (West 18. Congress defined “take” broadly, 16 U.S.C.A. § 1532/19) (West 1985), to include “harm,” which the Secretary of the Interior has defined as “an act which actually kills or injures wildlife... [including] significant habitat modification or degradation where it actually kills or including breeding, feeding or sheltering.” 50 C.F. R. § 17.3. 7“ 28 any private individual or association, state or local govern- mental agency and any federal government officer, depart- ment or agency. 16 U.S.C.A. § 1532(13) (West 1985). Congress also required that each federal agency en- sure that any action authorized, funded, or carried out by such agency is not likely to jeopardize the continued existence of any federally listed species or adversely affect critical habitat for any listed species. 16 U.S.C.A. § 1536(a\2) (West 1985). It established a consultation consult with the Secretary of the Interior or the Secretary of Commerce concerning the effect of that action. 16 U.S.C.A. §$§ 1536(a), 1536(b) (West 1985). Given the con- sultation process, the United States Fish and Wildlife Service plays a key enforcement role. It frequently renders a biological opinion concerning the impacts of a proposed project on a federally listed species. Because of the close working relationship between the United States Fish and Wildlife Service and other federal land management agen- cies such as the United States Forest Service and the Bureau of Land Management, the Secretary of the Interior rarely sues a sister agency to enforce the statute. Accord- ingly, when a federal agency is the potential defendant, the burden of enforcement falls primarily on concemed and willing citizens and their organizations. 2. The Citizen Suit Provision of the Endangered Species Act. Three types of citizen suits may be brought to enforce the Endangered Species Act: (a) actions to enjoin any person, including the United States, who is alleged to be in violation of the Act or its implementing regulations, 16 U.S.C.A. § 1540(g)(1)(A) (West 1985), (b) actions to compel the Secretary of the Interior or the Secretary of Commerce to apply the prohibitions of the Act during the transition period immediately following the passage of the Act, 16 U.S.C.A. § 1540(g)(1)(B) (West 1985), and (c) actions to i ee compel tae Secretary of the Interior or the Secretary of Commerce to perform a non-discretionary duty listed in section 4 of the Act (relating to the listing of threatened and endangered species, designation of critical habitat, devel- opment of recovery plans, and promulgation of implement- ing regulations), 16 U.S.C.A. § 1540(g\1\(C) (West 19835). The overwhelming majority of citizen actions are injunc- tion actions of the first type. '* Bae © Eeseatiel Under the Radangeed Species Froehike, 534 F.2d 1289, 1303 (8th Cir. 1976): Sierra 614 F Supp. 488, 492 (D. D.C. 1985) (Fish and Wildlife Service and 400 F.Supp. 705, 710 (S.D. Miss. 1975), rev'd on other grounds, 529 F.2d 359, reh'g denied, 532 F.2d 1375, cert. denied, 429 U.S. ro (1976). Contra Save the Yaak Comm. v. Block, 840 F 2d 714, 721 (9th Cir. 1988); Maine Audubon Society v. Purslow, 672 F. Sunn. 328. 331 (D. Maine 1987). Tn 30 Often, when a federal agency is the recipient of an Endangered Species Act notice, the Secretary and the action agency will indicate that they have no intention of modifying their conduct. See, e.g., Sierra Club v. Block, 614 F.Supp. 488, 492 (D. D.C. 1985). In these circum- stances, a formalistic jurisdictional rule would deprive the from the requisite form of notice is acceptable. ‘For exam- ple, in a recent Ninth Circuit opinion, the court held that purported sixty-day notice letters “were not sent to the correct person, the secretary,” Save the Yaak Comm. v. Block, 840 F.2d 714, 721 (9th Cir. 1988), despite the fact that the letters were sent to the representatives of the Secretary of the Interior most involved in the contested decision, the Regional Director of the United States Fish and Wildlife Service and the Supervisor of the National Forest. This jurisdictional approach elevates form over substance and vitiates the clear directives of Congress reflected in the Endangered Species Act. CONCLUSION Congress encourages and empowers citizens to aug- ment government enforcement of environmental statutes. Its nocice requirement should be construed pragmatically and in harmony with this purpose, not as a formalistic jurisdictional barrier. For the reasons set forth in this brief on behalf of amici curiae, the judgment of the court of appeals should be reversed with directions to allow the appeal to proceed on the merits. Respectfully submitted, MICHAEL TRAYNOR* DOUGLAS L. HONNOLD PETER H. CARSON SIERRA CLUB LEGAL | MICHAEL S. SHACHAT DEFENSE FUND COOLEY GODWARD CASTRO _ 1600 Broadway, Suite 1600 | HUDDLESON & TATUM Denver, Colorado 80202 One Maritime Plaza, 20th Floor = Telephone: (303) 863-9878 San Francisco, California 94111 Telephone: (415) 981-5252 Attorneys for Sierra Club, A ! i | natural resources. In furtherance of these purposes, and of pr relentise s-opne pee tlhe Bae Smmeoemand a Se — —-_ —-— - —> 1989) (“ESA”), the Clean Air Act Amendments of 1970, 42 iiscgatlesee tet 53 ederal 1-1375 ,. 488 (D.D. orp., 636 1289 (9th v. Volpe, 40 S. 7 the F $§ 125 Act”) Supp. urnace C F.2d actively litigation, Overton Park P (1971), and Sierra Club v. Morton, 405 U.S. 7 to 16 U.S.C.A. §$§ 1531-1543 (West 1985 & Supp. itizens Tetisdal App-l App-2 2. Defenders of Wildlife is a not-for-profit organiza- tion of over 65,000 members across the nation and overseas with its principal offices in Washington, D.C. where it was as Defenders of Furbearers in 1947. Its board is elected by the membership. It is dedicated to preserving wildlife and promoting humane treatment of wild animals, emphasizing appreciation and protection for all species in their ecological role within the natural environment. It pursues this purpose through research, education, litiga- tion and legislation, within the limits of 501(c\(3) of the Internal Revenue Code. One its major program areas is the effort to reduce environmental hazards to wildlife includ- ing pesticides, oil and hazardous substances. On April 15. for example, Defenders, along with several other organi- zations, notified the Exxon Shipping Company of its intent to sue under RCRA in order to require expeditious action to protect wildlife from the spill from the Exxon Valdez. This situation may well require litigation in less than sixty days from the date of the accident in order to fulfill the purposes of that Act. 3. The National Audubon Society (Audubon) is a non-profit, national membership organization dedicated to the protection of the environment and wildlife, and to the conservation of natural resources. Incorporated under the laws of New York State, Audubon maintains its principal place of business at 950 Third Avenue, New York, New York 10022 and has offices in various other cities nation- wide. Audubon has more than 550,000 members affiliated with over 500 chapters located throughout the United States and in several foreign countries. Audubon members and staff engage in a broad range of scientific studies, research projects and conservation education programs aimed at improving the understanding and appreciation of trol, and other environmental concerns. Audubon has administrative acticrs to ensure effective implementation of the laws designed to protect human health and the _ 7 eee ee ee environment, including RCRA, ESA, the Clean Air Act Amendments and the Clean Water Act. 4. The Natural Resources Defense Council, Inc. (NRDC) is a non-profit environmental membership orga- nization incorporated under the laws of the State of New York. NRDC’s principal office is located at 40 West 20th Street, New York, New York 10011, and also has offices in Washington, D.C. and San Francisco, California. NRDC has over 91,000 members nationwide and is dedicated to the defense and preservation of the human environment and the natural resources of the United States. NRDC’s purposes include the monitoring and participating in fed- eral agency decisionmaking to ensure that federal statutes enacted to protect the environment are fully implemented. Since its inception in 1970, NRDC has instituted or participated in numerous citizen suits to enforce compli- ance with the provisions of RCRA, ESA, The Clean Air Act Amendments, the Clean Water Act and other significant environmental statutes, including, for example, Natural Resources Defense Council v. Callaway, 524 F.2d 79 (2d Cir. 1975) and Natural Resources Defense Council v. Train, 510 F.2d 692 (D.C. Cir. 1975). NRDC has played a leading role in insuring that state and federal governments apply federal laws governing the management of toxic wastes. See, e.g., Hazardous Waste Treatment Council et al. v. United States Environmenta! Protection Agency, Civ. No. 86-1658 (D.C. Cir. Oct. 7, 1988). 5. The Wilderness Society (TWS) is a national non- profit citizens organization with more than 225,000 mem- bers nationwide. Headquartered in Washington D.C., TWS is dedicated to the preservation of wilderness and to the proper management of publicly-owned lands. TWS has participated extensively in administrative and judicial ac- tions, including citizen suits, to enforce compliance with the provisions of ESA, the Clean Air Act, the Clean Water Act and other major environmental statutes. App-+ APPENDIX B STATUTES INVOLVED I. Act to Prevent Pollution From Ships, 33 U.S.C.A. §§ 1901-1912 (West 1986 & Supp. 1989). 33 U.S.C.A. § 1910 Legal Actions (a) Persons with adversely affected interests as plain- tiffs; defendants Except as provided in subsection (b) of this section, any person having an interest which is, or can be, ad- versely affected, may bring an action on his own behalf— (1) against any person alleged to be in violation of the provisions of this chapter, or regulations issued hereunder; (2) against the Secretary where there is alleged a failure of the Secretary to perform any act or duty under this chapter which is not discretionary with the Secretary; (3) against the Secretary of the Treasury where there is alleged a failure of the Secretary of the Treasury to take action under section 1908(3) of this title. (b) Commencement conditions No action may be commenced under subsection (a) of this section— (1) prior to 60 days after the plaintiff has given notice, in writing and under oath, to the alleged violator, the Secretary concerned, and the Attornev General; or (2) if the Secretary has commenced enforcement or penalty action with respect to the alleged violation and is conducting such procedures diligently. (Pub. L. 96-478, § 11, Oct. 21, 1980, 94 Stat. 2302) App-5 Il. Clean Air Act Amendments of 1970, 42 U.S.C.A. $$ 7401-7642 (West 1983 & Supp. 1989) 42 U.S.C.§§ 7401 Congressional Findings and Declara- tion of Purpose (a) The Congress finds (1) that the predominant part of the Nation's population is located in its rapidly expanding metro- politan and other urban areas, which generally cross the boundary lines of local jurisdictions and often extend into two or more States; (2) that the growth in the amount and complexity of air pollution brought about by urbanization, indus- trial development, and the increasing use of motor vehicles, has resulted in mounting dangers to the public health and welfare, including injury to agricul- tural crops and livestock, damage to and the deterio- ration of property, and hazards to air and ground transportation; (3) that the prevention and control of air pollution at its source is the primary responsibility of States and local governments; and (4) that Federal financial assistance and leader- ship is essential for the development of cooperative Federal, State, regional, and local programs to prevent and control air pollution. (b) The purposes of this subchapter are— (1) to protect and enhance the quelity of the Nation's air resources so as to promote the public health and welfare and the productive capacity of its population; (2) to initiate and accelerate a national research and development program to achieve the prevention and control of air pollution; ——— App-6 (3) to provide technical and financial assistance to State and local governments in connection with the development and execution of their air pollution pre- vention and control programs; and (4) to encourage and assist the “=velopment and operation of regional air pollution control programs. (July 4, 1955, c. 360, Title I, § 101, formerly § 1, as added Dec. 17, 1963, Pub. L. 88-206, § 1, 77 Stat. 392, and renumbered and amended Oct. 20, 1965, Pub. L. 89-272, Title I, § 101(2), (3), 79 Stat. 992; Nov. 21, 1967, Pub. L. 90-148, § 2, 81 Stat. 485) 42 U.S.C.A. § 7604 Citizen Suits (a) Authority to bring civil action; jurisdiction Except as provided in subsection (b) of this section, any person may commence a civil action on his own behalf— (1) against any person (including (i) the United States, and (ii) any other governmental instrumentality or agency to the extent permitted by the Eleventh Amendment to the Constitution) who is alleged to be in violation of (A) an emission standard or limitation under this chapter or (B) an order issued by the Administrator or a State with respect to such a stan- dard or limitation, (2) against the Administrator where there is al- leged a failure of the Administrator to perform any act or duty under this chapter which is not discretionary with the Administrator, or (3) against any person who proposes to construct or constructs any new or modified major emitting facility without a permit required under part C of subchapter I of this chapter (relating to significant deterioration of air quality) or part D of subchapter I of App-7 this chapter (relating to nonattainment) or who is alleged to be in violation of any condition of such permit. The district courts sha!! have jurisdiction, without regard to the amount in controversy or the citizenship of the parties, to enforce such an emission standard or limitation, or such an order, or to order the Administrator to perform such act or duty, as the case may be. (b) Notice No action may be commenced (1) under subsection (a)(1) of this section— (A) prior to 60 days after the plaintiff has given notice of the violation (i) to the Administra- tor, (ii) to the State in which the violation occurs, and (iii) to any alleged violator of the standard, limitation, or order, or (B) if the Administrator or State has com- menced and is diligently prosecuting a civil action in a court of the United States or a State tu require compliance with the standard, limitation, or or- der, but in any such action in a court of the United States any person may intervene as a matter of right. . (2) under subsection (a)(2) of this section prior to 60 days after the plaintiff has given notice of such action to the Administrator, except that such action may be brought immediately after such notification in the case of an action under this section respecting a violation of section 7412(c)(1)(B) of this title or an order issued by the Administrator pursuant to section 7413(a) of this title. Notice under this subsection shall be given in such manner as the Administrator shall prescribe by regulation. App-5 (c) Venue; Interveation by Administrator (1) Any action respecting a violation by a station- ary source of an emission standard or limitation or an order respecting such standard or limitation may be brought only in the judicial district in which such source is ’ (2) In such action under this section, the Admin- istrator, if not a party, may intervene as a matter of witness fees) to any party, whenever the court determines such award is appropriate. The court may, if a temporary restraining order or preliminary injunction is sought, require the filing of a bond or equivalent security in accordance with the Federal Rules of Civil Procedure. -(e) Nonrestriction of other rights Nothing in this section shall restrict any right which any person (or class of persons) may have under any statute or common law to seek enforcement of any emission standard or limitation or to seek any other relief (including relief against the Administrator or a State agency). Nothing in this section or in any other law of the United States shall be construed to prohibit, exclude, or restrict any State, local, or interstate authority from— (1) bringing any enforcement action or obtaining any judicial remedy or sanction in any State or local court, or (2) bringing any administrative enforcement ac- tion or obtaining any administrative remedy or sanc- tion in any State or local administrative agency, de- partment or instrumentality, against the United States, any department, agency, or instrumentality thereof, or any officer, agent, or emplovee App-9 (1) a schedule or timetable of compliance is- ston Menfiction, standard of performance or emission (2) a control or prohibition respectin motor vehicle fuel or fuel additive, or as (3) any condition or requirement of a permit under part C of subchapter I of this chapter (relating to nonattainment), any condition or requirement of sec- tion 7413(d) of this title (relating to primary nonferrous smelter orders), any condition or requirement under an applicable implementation plan relating to trans- portation control measures, air quality maintenance programs or vapor recovery requirements, section 75453) and (f) of this title (relating to fuels and fuel additives), section 7491 of this title (relating to visibil- ity protection), any condition or requirement under part B of subchapter I of this chapter (relating to ozone protection), or any requirement under section 7411 or 7412 of this title (without regard to whether such requirement is expressed as an emission standard or otherwise). which is in effect under this chapter (including a uire- mont cggthalite ty conten of section 7008 of this wie) ox under an applicable implementation plan. (July 14, 1955, c. 360, Title III, § 304, as added Dec. 31, 1970, Pub.L. 91-604, § 12(a), 84 Stat. 1706, and amended Aug. 7, 1977, Pub.L. 95-95, Title III, § 303 App-10 (a)-(c), 91 Stat. 771-772; Nov. 16, 1977, Pub. L. 95-190, § 14(aX(77), (78), 91 Stat. 1404) Ill. Comprehensive Environmental Response, Compen- sation and Liability Act, 42 U.S.C.A. §§ 9601-9675 (West 1983 & Supp. 1989). 42 U.S.C.A. § 9659 Citizen Suits (a) Authority to bring civil actions Except as provided in subsections (d) and (e) of this section and in section 9613(h) of this title (relating to timing of judicial review), any person may commence a civil action agency, to the extent permitted by the eleventh amendment to the Constitution) who is alleged to be in violation of any standard, regulation, condition, re- quirement, or order which has become effective pur- suant to this chapter (including any provision of an agreement under section 9620 of this title, relating to Federal facilities); or (2) against the President or any other officer of the United States (including the Administrator of the Environmental Protection 4gency and the Administra- tor of the ATSDR) where there is alleged a failure of the President or of such other officer to perform any act or duty under this chapter, including an act or duty under section 9620 of this title (relating to Federal facilities), which is not discretionary with the Presi- dent or such other officer. Paragraph (2) shall not apply to any act or duty under the provisions of section 9660 of this title (relating to research. development and demonstration). App-11 (b) Venue (1) Actions under subsection (a)(1) Any action under subsection (a)(1) of this section — shall be brought in the district court for the district in which the alleged violation occurred. (2) Actions under subsection (a)(2) Any action brought under subsection (a)(2) of this section may be brought in the United States District Court for the District of Columbia. (d) Rules applicable to subsection (a)(1) actions (1) Notice No action may be commenced under subsection (aX1) of this section before 60 days after the plaintiff en EE SEs eee aah Pe Eee (A) The President. (B) The State in which the alleged violation occurs (C) Any alleged violator of the standard, reg- ulation, condition, requirement, or order con- cerned (including any provision of an agreement under section 9620 of this title). No action may be commenced under paragraph (1) < epee 02 SS exten Ce President has commenced is diligently prosecuting an action perry ya Pepin, trmnenbegercetatn S.C.A. § 6901 et seq .| to require compliance with the standard, regulation, condition, requirement, or order concerned (including any provision of an agreement under section 9620 of this title). App-12 (e) Rules applicable to subsection (a)(2) actions No action may be commenced under paragraph (2) of subsection (a) of this section before the 60th day following the date on which the plaintiff gives notice to the Administrator or other department, agency, or instrumentality that the plaintiff will commence such action. Notice under this subsection shall be given in such manner as the President shall prescribe by regulation. (Pub.L. 96-510, Title III, § 310, as added Pub.L. 99-499, Title II, § 206, Oct. 17, 1986, 100 Stat. 1703) Consumer Product Safety Act, 15 U.S.C.A. §§ 2051- 2083 (West 1982 & Supp. 1989). 15 U.S.C.A. § 2073 Private Enforcement Any interested person (including any individual or 2 by the United States under this chapter. In any action under this section the court may in the interest of justice award the costs of suit, including reasonable attorneys fees (determined in accordance with section 2060(f) of this title) and reasonable expert witnesses fees. Ll LL La. aaa a SS = App-13 L. 92-573, § 24, Oct. 27, 1972, 86 Stat. 1226, Pub.L. 94-284, § 10(d), May 11, 1976, 90 Stat. 507; Pub.L. 97-35, Title XII, § 1211(a), (hYX(3X(C), Aug. 13, 1981, 95 Stat. 721, 723) V. Deepwater Port Act, 33 U.S.C.A. §§ 1501-1524 (West 1986 & Supp. 1989). 33 U.S.C.A. § 1501 Congressional Declaration of Policy (a) It is declared to be the purposes of the Congress in this chapter to— (1) authorize and regulate the location, owner- ship, construction, and operation of deepwater ports in waters beyond the territorial limits of the United States; (2) provide for the protection of the marine and coastal environment to prevent or minimize any ad- verse impact which might occur as a consequence of the development of such ports; (3) protect the interests of the United States and those of adjacent coastal States in the location, con- struction, and operation of deepwater ports; and (4) protect the rights and responsibilities of States and communities to regulate growth, determine land use, and otherwise protect the environment in accor- dance with law. (b) The Congress declares that nothing in this chapter shall be construed to affect the legal status of the high seas, the superjacent airspace, or the seabed and subsoil, includ- ing the Continental Shelf. (Pub. L. 93-627, § 2, Jan. 3, 1975, 88 Stat. 2126) App-l4 33 U.S.C.A. § 1515 Citizen Civil Action > (a) Equitable relief, case or controversy; district court Except as provided in subsection (b) of this section. any person may commence a civil action for equitable relief on his own behalf, whenever such action constitutes a case or controversy— (1) against any person (including (A) the United States, and (B) any other governmental instrumental- ity or agency to the extent permitted by the eleventh amendment to the Constitution) who is alleged to be in violation of any provision of this chapter or any condi- tion of a license issued pursuant to this chapter, or (2) against the Secretary where there is alleged a failure of the Secretary to perform any act or duty under this chapter which is not discretionary with the Secretary. Any action brought against the Secretary under this paragraph shall be brought in the district court for the District of Columbia or the district of the In suits brought under this chapter, the district court shall have jurisdiction, eo troversy or the citizenship parties, to enforce any pe of this chapter or any condition of a license issued pursuant to this chapter, or to order the Secretary to perform such act or duty, as the case may be. (b) Notice; Intervention of right by person No civil action may be commenced— (1) under subsection (a1) of this section— (A) prior to 60 days after the plaintiff has given notice of the violation (i) to the Secretary and (ii) to any alleged violator; or (B) if the Secretary or the Attorney General has commenced and is diligently prosecuting a App-15 civil or criminal action with respect to such mat- ters in a court of the United States, but in any such action any person may intervene as a matter of right; or (2) under subsection (a)(2) of this section prior to 60 days after the plaintiff has given notice of such action to the Secretary. Notice under this subsection shall be given in such a manner as the Secretary shall prescribe by regulation. (Pub. L. 93-627, § 16, Jan 3, 1975, 88 Stat. 2140) VI. Deep Seabed Hard Mineral Resources Act, 30 U.S.C.A. §§ 1401-1473 (West 1986 & Supp. 1989). 30 U.S.C.A. § 1427 Civil Actions (a) Equitable relief Except as provided in subsection (b) of this section, any person may commence a civil action for equitable relief on that person's behalf in the United States District Court for the District of Columbia— (1) against any person who is alleged to be in violation of any provision of this chapter or any condi- tion of a license or permit issued under this sub- chapter; or (2) against the Administrator when there is al- leged a failure of the Administrator to perform any act or duty under this chapter which is not discretionary, if the person bringing the action has a valid legal interest which is or may be adversely affected by such alleged violation or failure to perform. In suits brought under this subsection, the district court shall have jurisdiction, with- out regard to the amount in controversy or the citizenship of the parties, to enforce the provisions of the chapter. or any term. condition, or restriction of a license or permit issued under this subchapter. or to order the Administrator (A) prior to 60 days after the plaintiff has given notice of the alleged violation to the Admin- istrator and to any alleged violator; or (B) if the Administrator or the Attorney Gen- Notice under this subsection shall be given in such a (Pub. L. 96-283, Title I, $117, June 28, 1960, 94 Stat. 573) Know Act, 42 U.S.C.A. §§ 11001-11050 (West Supp. 1989). 42 U.S.C.A. § 11046 Civil Actions (a) Authority to bring civil actions (1) Citizen suits—Except as provided in subsec- tion (e) of this section, any person may commence a civil action on his own behalf against the following. (A) An owner or operator of « facility for failure to do any of the following: App-17 (i) Submit a followup emergency notice under section 11004(c) of this title. (ii) Submit a material safety data sheet or a list under section ] 1021(a) of this title. (iii) Complete and submit an inventory form under section 11022(a) of this title con- taining tier I information as described in sec- tion 11022(d)(1) of this title unless such re- quirement does not apply by reason of the Sree © antes 11022(a)(2) of this (iv) Complete and submit a toxic chemical release form under section 11023(a) of this title. (B) The Administrator for failure to do any of the following: (i) Publish inventory forms under section 11022(g) of this title. (ii) Respond to a petition to add or delete a chemical under section 11023(e)(1) of this title within 180 days after receipt of the petition. (iii) Publish a toxic chemical release form under section 11023(g) of this title. (iv) Establish a computer database in ac- cordance with section 11023(j) of this title. (v) Promulgate trade secret regulations un- der section 11042(c) of this title. (vi) Render a decision in response to a petition under section 11042‘d) of this title within 9 months after receipt of the petition. (d) Notice (1) No action may be commenced under subsec- tion (a)(1)(A) of this section prior to 60 days after the plaintiff has given notice of the alleged violation to the (2) No action may be commenced under subsec- tion (a)(1)(B) of this section or (a)(1)(C) of this section prior to 60 days after the date on which the plaintiff gives notice to the Administrator, State Governor, or State emergency response commission (as the case may be) that the plaintiff will commence the action. Notice under this paragraph shall be given in such manner as the Administrator shall prescribe by regu- lation. (Pub.L. 99-499, Title III, § 326, Oct. 17, 1986, 100 Stat. 1755) VIII. Endangered Species Act, 16 U.S.C.A. §§ 1532-1543 (West 1985 & Supp. 1989). 16 U.S.C.A. § 1531 Congressional Findings and Decla- rations of Purposes and Policy (a) Findings That Congress finds and declares that— (1) various species of fish, wildlife, and plants in the United States have been rendered extinct as a consequence of economic growth and development untempered by adequate concern and conservation; (2) other species of fish, wildlife, and plants have been so depleted in numbers that they are in danger of or threatened with extinction; (3) these species of fish, wildlife, and plants are of esthetic, ecological, educational, historical, recre- ational, and scientific value to the Nation and its people; App-19 (4) the United States has pledged itself as a sov- ereign state in the international community to con- serve to the extent practicable the various species of Se ey Sas Geaen, pursuant (A) migratory bird treaties with Canada and Mexico; (B) the Migratory and Endangered Bird Treaty with Japan; (C) the Convention on Nature Protection and Wildlife Preservation in the Western Hemi- sphere; (D) the International Convention for the Northwest Atlantic Fisheries; (E) the International Convention for the High Seas Fisheries of the North Pacific Ocean; (F) the Convention on International Trade in Endangered Species of Wild Fauna and Flora; and (G) other international agreements; and (5) encouraging the States and other interested parties, through Federal financial assistance and a system of incentives, to develop and maintain conser- vation programs which meet national and international standards is a key to meeting the Nation's international commitments and to better safeguarding, for the ben- efit of all citizens, the Nation's heritage in fish, wild- life, and plants. (b) Purposes The purposes of this chapter are to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved, to provide a program for the conservation of such endangered species and threatened species, and to take such steps as may be appropriate to achieve the purposes of the treaties and conventions set forth in subsection (a) of this section. ie ea “ ia ee latina a i a i a i = App-20 (c) Policy (1) It is further declared to be the policy of Congress that all Federal departments and agencies shall seek to conserve endangered species and threat- ened species and shall utilize their authorities in furtherance of the purposes of this chapter. (2) It is further declared to be the policy of Congress that Federal agencies shall cooperate with State and local agencies to resolve water resource issues in ccncert with conservation of endangered species. . (Pub.L. 93-205, § 2, Dec. 28, 1973, 87 Stat. 884; Pub.L. 96-159, § 1, Dec. 28, 1979, 93 Stat. 1225; Pub. L. 97-304, § 9(a), Oct. 13, 1982, 96 Stat. 1426; as amended Pub.L. 100-478, Title II, § 1013(a), Oct. 7, 1988, 102 Stat. 2315.) 16 U.S.C.A. § 1540 Penalties and Enforcement (g) Citizen suits (1) Except as provided in paragraph (2) of this subsection any person may commence a civil suit on his own behalf— (A) to enjoin any person, including the United States and any other governmental instru- mentality or agency (to the extent permitted by the eleventh amendment to the Constitution), who is alleged to be in violation of any provision of this chapter or regulation issued under the author- ity thereof; or (B) to compel the Secretary to apply, pursu- ant to section 1535(g)(2)(B)(ii) of this title, the prohibitions set forth in or authorized pursuant to section 1533(d) or 1538(a)(1)(B) of this title with respect to the taking of any resident endangered species or threatened species within any State; or App-21 (C) against the Secretary where there is al- leged a failure of the Secretary to perform any act or duty under section 1533 of this title which is not discretionary with the Secretary. The district courts shall have jurisdiction, without regard to the amount in controversy or the citizenship of the parties, to enforce any such provision or regu- lation, or to order the Secretary to perform such act or duty, as the case may be. In any civil suit commenced under subparagraph (B) the district court shall compel the Secretary to apply the prohibition sought if the court finds that the allegation that an emergency exists is supported by substantial evidence. (2) (A) No action may be commenced under sub- paragraph (1)(A) of this section— (i) prior to sixty days after written notice of the violation has been given to the Secretary, and to any alleged violator of any such provision or regulation; (ii) if the Secretary has commenced action to impose a penalty pursuant to subsection (a) of this section; or (iii) if the United States has commenced and is diligently prosecuting a criminal action in a court of the United States or a State to redress a violation of any such provision or regulation. (B) No action may be commenced under sub- paragraph (1)(B) of this section— (i) prior to sixty days after written notice has been given to the Secretary setting forth the reasons why an emergency is thought to exist with respect to an endangered species or a threatened species in the State concerned; or (ii) if the Secretary has commenced and is diligently prosecuting action under section = App-22 App-23 as amended Pub.L. 100-478, Title I, § 1007, Oct. 7 we eee this <4 to eee 1988, 102 Stat. 2309.) 7, (C) No action may be commenced under sub- IX. Energy Policy and Conservation Act, 42 U.S.C.A. renin dy eure! ap ay Amal _ §§ 6201-6422 (West 1983 & Supp. 1989). written notice been given to Secre- 42 U.S.C.A. ongressional Statement tary; except that such action may be brought The eos. ¢ of Purpose immediately after such notification in the case of purposes of this chapter are— an action under this section respecting an emer- (1) to grant specific authority to the President, gency posing a significant risk to the well-being of subject to congressional review, to impose rationing, (3) (A) Any suit under this subsection may be brought in the judicial district in which the violation obligations of the United States under the interna- occurs. tional energy progre.m; : eae (2) to provide for the creation of (B) In any such suit under this subsection in a Strategic Pe- which the United States is not a party, the Attor- troleum Reserve capable of reducing the impact of ney General, at the request of the Secretary, may severe energy supply interruptions; intervene on behalf of the United States as a (3) to increase the supply of fossil fuels in the matter of right. United States, through price incentives and produc- tion requirements; (4) The court, in issuing any final order in any suit brought pursuant to paragraph (1) of this subsection. may award costs of litigation (including reasonable conservation programs, and, where necessary, the attorney and expert witness fees) to any party, when- regulation of certain energy uses; ever the court determines such award is appropriate. (5) to provide for improved energy efficiency of (5) The injunctive relief provided by this subsec- motor vehicles, major appliances, and certain other tion shall not restrict any right which any person (or consumer products, class of persons) may have under any statute or (6) to reduce the demand for petroleum products common law to seek enforcement of any standard or and natural gas through programs designed to provide limitation or to seek any other relief (including reliet greater availability and use of this Nation's abundant against the Secretary or a State agency). coal resources; and Sh aie (7) to provide a means for verification of energy (Pub.L. 93-205, § 11, Dec. 28, 1973, 87 Stat. 897; data to assure the reliability of energy data. Pub. L. 94-359, § 4, July 12, 1976, 90 Stat. 913; Pub. L. (Pub. L. 94-163, § 2. Dec. 22. 1975, 89 Stat. 874.) 95-632, §§ 6-8, Nov. 10, 1978, 92 Stat. 3761, 3762; Pub. L. 97-79, § Se), Nov. 16, 1981, 95 Stat. 1079; Pub. L. 97-304, §§ 7, Sc), Oct. 13, 1982, 96 Stat. 1425, 1427; Pub. L. 98-327, § 4, June 25, 1984, 95 Stat. 271 App-24 42 U.S.C.A. § 6305 Citizen Suits (a) Civil actions; jurisdiction Except as otherwise provided in subsection (b) of this section, any person may coummence a civil action against— (1) amy manafacturer or private labeler who is alleged to be in violation of any provision of this part or any rule under this part; (2) any Federal agency which has a responsibility under this part where there is an alleged failure of such (3) the Secretary in any case in which there is an alleged failure of the Secretary to comply with a nondiscretionary duty to issue a proposed or final rule according to the schedules set forth in section 6295 of this title; and The United States district courts shall have jurisdiction, without regard to the amount in controversy or the citi- zenship of the parties, to enforce such provision or rule, or (1) under subsection (a1) of this section— (A) prior to 60 days after the date on which the plaintiff has given notice of the violation (i) to the Secretary, (ii) to the Commiesion, and (iii) to any alleged violator of such provision or rule; or App-25 (B) if the Commission has commenced and is (2) under subsection (a)(2) of this section prior to 60 days after the date on which the plaintiff has given notice of such action to the Secretary and Commission. Notice under this subsection shall be given in such manner as the Commission shall prescribe by rule. (Pub.L. 94-163, Title Ill, § 335, Dec. 22, Stat. 930; Pub.L. 95-619, Title IV, § 425(f), Title VI. § 691(b\(2), Nov. 9, 1978, 92 Stat. 3266, 3288, Pub. L. 100 12, $§ 8, 11(b), Mar. 17, 1987, 101 Stat. 122, 126) X. Federal Water Pollution Control Act, 33 U.S.C.A. §§ 1251-1387 (West 1986 & Supp. 1989) 33 U.S.C.A. § 1251 Congressional Declaration of Goals and Purpose (a) Restoration and maintenance of chemical, physical and biological integrity of Nation's waters; national goals for achievement of objective The objective of this chapter is to restore and maintain the chemical, physical, and biological integrity of the Nation's waters. In order to achieve this objective it is hereby declared that, consistent with the provisions of this chapter (1) it is the national goal that the discharge of pollutants into the navigable waters be eliminated by 1985; (2) it is the national goal that wherever attainable. an interim goal of water quality which provides for the App-26 protection and propagation of fish, shellfish, and wild- life and provides for recreation in and on the water be achieved by July 1, 1983; (3) it is the national policy that the discharge toxic pollutants in toxic amounts be prohibited, (4) it is the national policy that Federal financial assistance be provided to construct publicly owned waste treatment works, (5) it is the national policy that areawide waste treatment management planning processes be devel- oped and implemented to assure adequate control of sources of pollutants in each State, (6) it is the national policy that a major research and demonstration effort be made to develop technol- ogy necessary to eliminate the discharge of pollutants into the navigable waters, waters of the contiguous zone, and the oceans, and (7) it is the national policy that programs for the control of nonpoint sources of pollution be developed and implemented in an expeditious manner so as to enable the goals of this chapter to be met through the control of both point and nonpoint sources of pollu- tion (b) Congressional recognition, preservation, and pro- tection of primary responsibilities and rights of States It is the policy of the Congress to recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and elimiaate pollution, to plan the consult with the Administrator in the exercise of his authority under this chapter. It is the policy of Congress that the States manage the construction grant program under this chapter and implement the permit programs under sections 1342 and £344 of this title. It is further the | E F 4 the fullest extent meaningful action ination of pollution in their waters and in international waters and for the achievement of goals regarding the elimination of discharge of pollutants and the improvement of water quality to at least the same extent as the United States does under its laws Administrator of Environmental Protection i i (f) Procedures utilized for implementing chapter Hh ee 1 442d ih i ja in i i s2 Escai 4 af Littl a i: iW aee) |e UtRe 23 a i ik Hit \ i ML ET eT Heal: a a REE ARH HEN i: ith i TEBE . 6, it gust iiss iP it ) ne i i at Burt ia A i He (June 30, 1948, c. 758, Title V, § 505, as added Oct. 15, 1972, Pub.L. 92-500, § 2. 86 Stat. 888; as amended Feb. 4, 1987, Pub.L. 100-4, Title V, §§ 502/a), 50S, 101 Stat. 75) Xl. Marine Protection, Research and Sanctuaries Act, 35 U.S.C.A. $$ 1401-1445 (West 1986 & Supp. 1989). 33 U.S.C.A. § 1401 Congressional Finding, Policy. and by any person from a location outside the United States. uf the dumping occurs in the terntorial sea or the contiguous zone of the United States. (Pub.L. 92-532. § 2. Oct. 23, 1972, “A Stat. 1052, Pub. L. 93-254, § 1(1), Mar. 22. 1974, 55 Stat. 50.) App-31 33 U.S.C.A. $1415 Penalties (g) Civil Suits by private persons (1) Except as provided in paragraph (2) of this oe, en Gelato, a goon, as the ee may (2) No action may be commenced (A) prior to sixty days after notice of the violation has been given to the Administrator or to the Secretary, and to any alleged violator of the prohibition, limitation, criterion, or permit; or (B) if the Attorney General has commenced and is diligently prosecuting a civil action in a court of the United States to require compliance with the prohibition, limitation, criterion, or per- mit; or (C) if the Administrator has commenced ac- tion to impose a penalty pursuant to subsection (a) of this section, or if the Administrator, or the Secretary, has initiated permit revocation or sus- pension proceedings under subsection (f) of this section; or (D) if the United States has commenced and is diligently prosecuting a criminal action in a seat ae Mall ~ 4 Py Pre a ¥ - App-32 court of the United States or a State to redress a violation of this subchapter. (3) (A) Any suit uuder this subsection may be brought in the judicial district in which the violation occurs. (B) In any such suit under this subsection in which the United States is not a party, the Attor- ney General, at the request of the Administrator or Secretary, may intervene on behalf of the United States as a matter of right. (4) The court, in issuing any final order/n any suit brought pursuant to paragraph (1) of this subsection may award costs of litigation (including reasonable attorney and expert witness fees) to any party, when- ever the court determines such award is appropriate. (5) The injunctive relief provided by this subsec- tion shall not restrict any right which any person (or class of persons) may have under any statute or common law to seek enforcement of any standard or limitation or to seek any other relief (including relief against the Administrator, the Secretary, or a State agency). (Pub. L. 92-532, Title I, [0015] 105, Oct. 23, 1972, 86 Stat. 1057) XII. National Environmental Policy Act, 42 U.S.C.A. $§ 4321-4370a (West 1977 & Supp. 1989). 42 U.S.C.A. § 4321 Congressional declaration of pur- pose The purposes of this chapter are: To declare a national policy which will encourage productive and enjoyable harmony between man and his environment, to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and App-33 welfare of man; to enrich the understanding of the ecolog- ical systems and natural resources important to the Nation: and to establish a Council on Environmental Quality. Pub. L. 91-190, § 2, Jan. 1, 1970, 83 Stat. 852. 42 U.S.C.A. § 4331 Congressional Declaration of Na- tional Environmental Policy (a) The Congress, recognizing the profound impact of man’s activity on the interrelations of all components of the natural environment, particularly the profound influences en ne Sipe Seaeiy eomaadtion, tatactl expansion, resource exploitation, new and expandin technological advances and recognizing further the critical importance of restoring and maintaining environmental quality to the overall welfare and development of man, declares that is it in the continuing policy of the Federal Government, in cooperation with State and local govern- ments, and other concerned public and private organiza- tions, to use all practicable means and measures, including financial and technical assistance, in a manner calculated to foster and promote the general welfare, to create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations of Americans. (b) In order to carry out the policy set forth in this chapter, it is the continuing responsibility of the Federal Government to use all practicable means, consistent with other essential considerations of national policy, to im- prove and coordinate Federal plans, functions, programs, and resources to the end that the Nation may— (1) fulfill the responsibilities of each generation as trustee of the environment for succeeding generations: (2) assure for all Americans safe, healthful, pro- ductive, and esthetically and culturally pleasing sur- roundings: = sr - EO a ae ee ee ee a eee ie ae * SS SS Se Sasa App-34 (3) attain the widest range of ‘»eneficial uses of the environment without degradation, risk to health or safety, or other undesirable and unintended conse- quences: (4) preserve important historic, cultural, and nat- ural aspects of our national heritage, and maintain, wherever possible, an environment which supports diversity and variety of individual choice; . (5) achieve a balance between population and resource use which will permit high standards of living and a wide sharing of life’s amenities; and (6) enhance the quality of renewable resources and approach the maximum attainable recycling of depletable resources. (c) The Congress recognizes that each person should enjoy a healthful environment and that each person has a responsibility to contribute to the preservation and en- hancement of the environment. Pub.L. 91-190, Title I, § 101, Jan. 1, 1970, 83 Stat. 852. XIII. Natural Gas Pipeline Safety Act, 49 U.S.C.A. $§ 1671-1687 (West 1976 & Supp. 1989). 49 U.S.C.A. § 1686 Civil Actions by Citizens (a) Mandatory or prohibitive injunctive relief against persons in violation of this chapter Except as provided in subsection (b) of this section, any person may commence a civil action for mandatory or prohibitive injunctive relief, including interim equitable relief, against any other person (including any State, municipality, or other governmental entity to the extent permitted by the eleventh amendment to the Constitution, and the United States) who is alleged to be in violation of this chapter or of any order or regulation issued under this chapter. The district courts of the United States shall have App-35 jurisdiction over actions brought under this section with- out . ont regard to the amount in controversy or the citizenship (b) Restrictions No civil action may be commenced under subsection (a) of this section with respect to any alleged vio ~ this chapter or any order or regulation issued under this (2) if the Secretary (or such State agency) has commenced and is diligently pursuing administrative proceedings or the Attorney General of the United Notice under this subsection shall be in | ont t shall a given neon (Pub. L. 90-481, § 19, formerly § 17, as added Pub , , . se mee Ue Oct. 11, 1976, 90 Stat. 2075, and renum- .L. 96-129, Title 1, § 1 ‘ ' Sean on 04(b), Nov. 30, 1979, XIV. Noise Control Act 42 U.S.C.A. §§ 4901 S.C.A. -4918 (W 1983 & Supp. 1989). ag 42 U.S.C. § 4901 Congressional Findings and Statement of Policy (a) The Congress finds— (1) that inadequately controlled noise presents a growing danger to the health and welfare of the Nation's population, particularly in urban areas; (2) that the major sources of noise include trans- vehicles and equipment, machinery, appli- ances, and other products in commerce; and (3) that, while primary responsibility for control of noise rests with State and local governments, Federal action is essential to deal with major noise sources in commerce control of which require national uniformity of treatment. (b) The Congress declares that it is the policy of the United States to promote an environment for all Americans free from noise that jeopardizes their health or welfare. To that end, it is the purpose of this chapter to establish a means for effective coordination of Federal research and activities »n noise control, to authorize the establishment of Federal noise emission standards for products distributed in commerce, and to provide information to the public respecting the noise emission and noise reduction charac teristics of such products. - (Pub. L. 92-574, § 2, Oct. 27, 1972, 86 Stat. 1234) 42 U.S.C.A. § 4911 Citizens Suits (a) Authority to commence suits Except as provided in subsection (b) of this section, any person (other than the United States) may commence a civil action on his own behalf— (1) against any person (including (A) the United States, and (B) any other governmental instrumental- ity or agency to the extent pe-mitted by the eleventh amendment to the Constitutien) who is alleged to be in violation of any noise control requirement (as defined in subsection (e) of this section) or (2) against— compliance with the noise control requirement. but in any such action im a court of the United States any person may intervene as a matter of (2) under subsection (a\(2) of this section prior to sixty days after the plaintiff has given notice to the defendant that he will commence su~ action. Notice under this subsection shall be given in such manner App-38 as the Administrator of the Environmental Protection Agency shall prescribe by regulation. (Pub.L. 92-574, [0015] 12, Oct. 27, 1972, 86 Stat. 1243) XV. Ocean Thermal Energy Conservation Act, 42 U.S.C.A. §§ 9101-9168 (West 1983 & Supp. 1989). 42 U.S.C.A. § 9101 Congressional Declaration of Policy (a) It is declared to be the purposes of the Congress in this chapter to— (1) authorize and regulate the construction, loca- tion, ownership, and operation of ocean thermal en- ergy conversion facilities connected to the United States by pipeline or cable, or located in the territorial sea of the United States consistent with the Conven- tion on the High Seas, and general principles of international law; (2) authorize and regulate the construction, loca- tion, ownership, and operation of ocean thermal en- ergy conversion plantships documented under the laws of the United States, consistent with the Conven- tion on the High Seas and general principles of international law; (3) authorize and regulate the construction, loca- tion, ownership, and operation of ocean thermal en- ergy conversion plantships by United States citizens, consistent with the Convention on the High Seas and general principles of international law; (4) establish a legal regime which will permit and encourage the development of ocean thermal energy conversion as a commercial energy technology; (5) provide for the protection of the marine and coastal environment, and consideration of the interests of ocean users, to prevent or minimize any adverse App-39 impact which might occur as a consequence of the development of such ocean thermal energy conversion facilities or plantships; - (6) make applicable certain provisions of the Mer- chant Marine Act, 1936 (46 U.S.C. 1177 et seq.) [46 U.S.C.A. § 1101 et seq.] to assist in financing of ocean thermal energy conversion facilities and plantships; (7) protect the interests of the United States in the location, construction, and operation of ocean thermal energy conversion facilities and plantships; and (8) protect the rights and responsibilities of adja- cent coastal States in ensuring that Federal actions are consistent with approved State coastal zone manage- — programs and other applicable State and local ws. “ (b) The Congress declares that nothing in this chapter shall be construed to affect the legal status of the high seas, the superjacent airspace, or the seabed and subsoil, includ- ing the Continental Shelf. (Pub. L. 96-320, § 2» Aug. 3, 1980, 94 Stat. 974.) 42 U.S.C.A. § 9124 Civil Actions (a) Jurisdiction Except as provided in subsection (b) of this section, any person having a valid legal interest which is or may be adversely affected may commence a civil action for equita- ble relief on his own behalf in the United States District Court for the District of Columbia whenever such action constitutes a case or corntroversy— (1) against any person who is alleged to be in violation of any provision of this chapter or any regu- lation or condition of a license issued pursuant to this chapter; or App-40 (2) against the Administrator where there is al- leged a failure of the Administrator to perform any act or duty under this chapter which is not discretionary. In suits brought under this chapter, the district courts of the United States shall have jurisdiction, without regard to the amount in controversy or the citizenship of the parties, to enforce any provision of this chapter or any regulation or term or condition of a license issued pursuant to this chapter, or to order the Administrator to perform such act or duty, as the case may be. (b) Notice No civil action may be commenced— (1) under subsection (a)(1) of this section— (A) prior to 60 days after the plaintiff has given notice of the violation to the Administrator and to any alleged violator; or (B) if the Administrator or the Attorney Gen- eral has commenced and is diligently prosecuting a civil or criminal action with respect to such matters in a court of the United States, but in any such action any person may intervene as a matter of right; or (2) under subsection (a)(2) of this section prior to 60 days after the plaintiff has given notice of such action to the Administrator. Notice under this subsection shall be given in such a manner as the Administrator shall prescribe by regulation. (Pub. L. 96-320, Title I, § 114, Aug. 3, 1980, 94 Stat. 990) XVI. Outer Continental Shelf Lands Act, 43 U.S.C.A. §§ 1301-1356 (West 1983 & Supp. 1989). 43 U.S.C.A. § 1349 Citizen Suits, Jurisdiction and Ju- dicial Review App-41 (a) Persons who may bring actions; persons against whom action may be brought; time of action; intervention by Attorney General; costs and fees; security (1) Except as provided in this section, any person having a valid legal interest which is or may be adversely affected may commence a civil action on his own behalf to compel compliance with this subchapter against any person, including t [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0227%3A10. Public record. Not legal advice.