Court Sets Citizen Suit Case for Trial Even Though State Regulators Are Evaluating Similar Issues

Defendants involved in citizen suits should be aware that — unless regulators take specific actions that preempt citizen suits from being filed—there is a risk that courts AND regulators may be evaluating the same conduct. That may lead to both confusion and added expense.

But at least in the view of one court, there are limits to when federal courts can take a wait-and-see approach to how regulatory processes play out. The takeaway for the regulated community is that, when you are confronted with a citizen suit notice letter, you want to encourage regulators to act before actual litigation is filed where possible.

The Ohio Valley Environmental Coalition v. Bluestone Coal Corporation decision by a West Virginia district court this month illustrates this point. In Bluestone Coal, defendant Bluestone Coal sought to stay a September 2020 trial date in a citizen suit until November to allow the West Virginia Department of Environmental Protection (WVDEP) time to finalize a consent decree that would render part of the Clean Water Act (CWA) suit moot. The court determined that Bluestone — in seeking a stay — failed to demonstrate that “clear and convincing circumstances outweigh [] potential harms” to plaintiffs.

The court based its conclusion on two things: how Congress constructed CWA as well as its own views on the fundamental need to exercise jurisdiction granted by Congress. With respect to the CWA, CWA’s pre-suit notice provisions, 33 U.S.C. § 1365(b), require citizens to give 60 days’ pre-suit notice. After that point, the CWA allows parties to sue. The court wrote, “If Congress valued agency expertise above all else, it could have provided that whenever agencies initiate administrative proceedings, federal courts are divested of continued jurisdiction over citizen suits. But Congress did not do that. [CWA] does not provide for stripping a federal court of its jurisdiction when a state agency commences an administrative action post-citizen suit.” (emphasis in original). The court concluded that, given CWA’s construction, “[a]sking a federal court to put its jurisdiction on hold … is a request to set aside the sovereignty of the United States, albeit temporarily.”