ELR Citation: ELR 20674
No(s). s. 84-7701 et al (2d Cir. Jul 19, 1985)

The court holds that state administrative enforcement actions do not preclude citizen enforcement suits under §505 of the Federal Water Pollution Control Act (FWPCA). The court first holds that plaintiff Sloop Clearwater has shown the injury-in-fact to its members necessary to demonstrate standing under §505 since two of its members filed affidavits establishing that they use the Hudson River or would be affected by its pollution and suffer aesthetic and environmental harm. Turning to the preemption issue, the court considers the Third Circuit's holding that an administrative board may be a "court" for purposes of §505(b)(1)(B) of the FWPCA and therefore preclude citizen enforcement when the board has enforcement power and procedures comparable to federal courts. While the New York Department of Environmental Conservation proceedings at issue do not fulfill this test, the court holds that the test itself is contrary to both the plain language of the FWPCA, which limits preclusion to actions in court, and congressional intent. If Congress had intended that administrative enforcement should preclude citizen suits, it could have explicitly so provided, as it did in other statutes.

Counsel for Plaintiffs
Bruce J. Terris
1121 12th St. NW, Washington DC 20005
(202) 682-2100

Anthony Z. Roisman
Trial Lawyers for Public Justice
2000 P St. NW, Washington DC 20036
(202) 463-8600

Counsel for Defendant
John R. Jenchura
Consolidated Rail Corporation
6 Penn Center Plaza, 1610 17th St., Philadelphia PA 19103
(215) 977-4000

Before Pratt and Metzner,^* JJ.