ELR Citation: ELR 20530
No(s). CV 98 1635 (E.D.N.Y. Nov 23, 1998)

The court holds that a Federal Water Pollution Control Act citizen suit brought by an environmental group against a city is not barred by a subsequently filed state environmental agency enforcement action. The court first holds that actions taken by the state after the filing of the group's citizen suit do not constitute diligent prosecution. The fact that the state environmental agency filed its complaint in state court less than one-half hour after the group filed its complaint in federal court does not change the fact that the citizen suit was filed first. The court next holds that abstention for reasons of judicial comity is not appropriate in this case. None of the factors to be weighed when considering abstention supports the city's arguments. The premise of the dispute is found in federal law, and the city's argument is underminded by the state environmental agency's inaction. The court, however, dismisses the group's claim that the city violated its settleable solids permit limitations. Citizens may not enforce state permit requirements that are stricter than those required under federal law.

Counsel for Plaintiffs
Karl S. Coplan
Pace Environmental Litigation Clinic
78 N. Broadway, White Plains NY 10603
(914) 422-4343

Counsel for Defendants
Susan E. Amron
Corporation Counsel's Office
100 Church St., New York NY 10007
(212) 788-0303