Preclusion of Citizen Environmental Enforcement Litigation By Agency Action

Elliot E. Polebaum and Matthew D. Slater

Editors' Summary: Congress gave private citizens an important, though secondary, role in enforcing the new pollution control statutes of the 1970s. EPA and the states were given the principal responsibility to act when polluters violated standards, but the public was not expected necessarily to sit back and wait for the governments to solve the problems. Citizens could take enforcement matters into their own hands if the governments failed to act. The primacy of government enforcement was recognized in provisions requiring citizens to notify state agencies and EPA of their plans to file enforcement actions and to take a back seat if the agencies diligently prosecuted enforcement cases "in court." To date, one of the major issues raised in citizen enforcement cases is the effect on such citizen cases of administrative enforcement action. State and federal agencies' preferred enforcement route has been administrative, not judicial. Can administrative enforcement bar citizen suits? The authors examine this question in the context of the legislative history of the Clean Air and Clean Water Acts, and conclude that Congress intended that administrative enforcement action may suffice to preclude citizen suits.

Mr. Polebaum and Mr. Slater practice in the Washington, D.C. office of Cleary, Gottlieb, Steen & Hamilton. The firm filed an amicus curiae brief in Friends of the Earth v. Consolidated Rail Corp., which is discussed in this article, and it is involved in other suits in which the issue discussed here has arisen.

[16 ELR 10013]

Lawsuits by private citizens and environmental interest groups seeking to enforce the nation's clean air and water laws have increased tremendously in recent years.¹ A persistent, and now circuit-splitting, concern is the type of enforcement by the Environmental Protection Agency (EPA) or by state agencies that may preclude such citizen suits. Most courts treating the issue have construed the relevant statutes to mean that an agency enforcement action in an administrative forum with significant court-like characteristics may suffice to preclude citizen suits. The Second Circuit recently concluded to the contrary that only agency enforcement actions brought in a federal or state court can preempt the citizen's ability to sue.

No reported judicial opinion has yet undertaken a comprehensive analysis of the legislative history of the citizen suit provisions, however. Such an analysis is presented here, and it confirms explicitly what is implicit in the language and structure of the statutes, namely, that although only agency enforcement action in a court can preclude district court jurisdiction over a parallel citizen suit, the existence of any form of administrative enforcement, not only an action in a court or court-like body, is a sufficient basis for the court, in its discretion, to dismiss the citizen suit. Indeed, analysis of the legislative history clarifies that when the agency action is pursued diligently and has the capacity to lead (or has led) to the abatement of violations, then such action provides a compelling reason to dismiss the citizen suit.

The Statutes and Case Law

In 1970 amendments to the Clean Air Act, Congress added § 304(a)(1), which authorized private persons to sue entities believed to be violating restrictions on noxious emissions.² In 1972, expressly patterning its actions on the 1970 Clean [16 ELR 10014] Air Act Amendments, Congress extended this sort of citizen enforcement power to the Federal Water Pollution Control Act (Clean Water Act) by adding a new § 505(a)(1).³

The citizen-suit provisions do not allow private enforcers to sue at will, however. Both statutes require that a private litigant, before initiating an enforcement action, provide sixty days' notice to EPA, to the state in which the violation has taken place, and to the alleged violator.⁴ In addition, and of particular concern here, the statutes provide that no such action may be commenced if EPA or the state "has commenced and is diligently prosecuting a civil action in a court of the United States or a State to require compliance with the standard, limitation, or order."⁵

Until recently, the latter requirement has been viewed as a functional one.⁶ In varying ways and degrees, courts have perceived Congress' concern as being the enforcement of the emission and discharge limitations of the two Acts; that is, with abatement of pollution. Consequently, government action to enforce the two Acts at times has been held to be capable of precluding citizen enforcement actions even when the agencies have not acted through the courts.⁷

In Friends of the Earth v. Consolidated Rail Corp.,⁸ decided this past summer, however, the Second Circuit rejected this line of decisions and held that a citizen suit under the Clean Water Act (and by implication under the Clean Air Act) can be precluded "only if the Administrator of the EPA or a state has initiated and is diligently prosecuting an action in a state or federal court." Administrative enforcement action would no longer suffice, no matter how similar functionally to court action.

The Second Circuit's approach is comprehensible, but simplistic. The starting point for the court's analysis was that Congress "unambiguously and without qualification refers to an 'action in a court.'"⁹ Next, while abjuring the need to inquire into legislative history, the court nevertheless concluded that nothing in the legislative history supports anything other than a literal reading of the statute.¹⁰ Finally, the Second Circuit panel concluded that had Congress intended anything other than court action to preclude a citizen suit, Congress could have said so, and as support the panel referred to other statutes in which Congress had explicitly provided that either judicial or administrative proceedings would preclude citizen action.¹¹

The contrary view, pioneered by the Third Circuit in Baughman v. Bradford Coal Company,¹² is equally easy to follow. That court recognized that on occasion courts have interpreted the term "court" to mean administrative boards as well as judicial tribunals, when such boards possess "powers and characteristics [that] make such a classification necessary to achieve statutory goals."¹³ According to the Baughman panel, Congress perceived the citizen-suit provision primarily as a spur to lagging agencies to take more vigorous enforcement action, and only secondarily as an alternative enforcement mechanism itself.¹⁴ Consequently, the Third Circuit was willing to consider proceedings before an administrative board as the equivalent of court action if the board has "the power to accord relief which is the substantial equivalent to that available to the EPA in federal courts" and if the board's procedures correspond significantly with those of a federal court.¹⁵ With regard to the latter, the court believed it particularly important for citizens to be able to intervene as of right in administrative proceedings.¹⁶

The Third Circuit's approach is attractive if one's concern is with the efficient enforcement of the federal anti-pollution laws. The point was forcefully made by Judge Sofaer, then of the Southern District of New York, in Gardeski v. Colonial Sand and Stone Company.¹⁷ Judge Sofaer recognized that Congress meant for the agencies to have primary responsibility for enforcing the environmental laws and that agencies "usually proceed administratively before going to court."¹⁸ If such administrative [16 ELR 10015] action has already been successful through the entry of an administrative consent agreement, or alternatively, if the administrative process has the potential for achieving substantially the same result that a court suit might achieve, then there is no need for a citizen suit. Congress' goal, which is full enforcement of the environmental laws, will have been achieved.¹⁹ Moreover, by giving effect to nonjudicial enforcement action, the responsible governmental agencies will have the greatest opportunity, spurred by citizens if necessary, to enforce those laws in a consistent and coherent fashion.²⁰

The Third Circuit's approach also has merit if one is concerned with keeping the courts free of unnecessary litigation. Thereason is that under the Third Circuit's construction, a citizen suit may be precluded by something other than another lawsuit; conversely, under the Second Circuit's approach, it is necessary for the agency to be pursuing a court action in order to preclude a citizen suit. As a result, under the Second Circuit's construction, every time a citizen wishes to initiate litigation under the statutes, litigation is sure to ensue; either the citizen, the agency, or both will end up in court, adding further to the backlog of the cases awaiting decision.

The important question in the end, however, is what Congress intended when it wrote the statutes as it did. It may be nice to have an efficient enforcement mechanism that does not burden the court system, but if that is not what Congress wanted to create, then so be it. Fortunately, Congress quite clearly came down on the side of efficiency, as can be seen if one examines the language and structure of the citizen suit provisions of the Clean Air and Clean Water Acts as elucidated by the legislative history of the pattern-setting Clean Air Act Amendments of 1970,²¹ an exercise that none of the relevant decisions has undertaken in depth and with care.

Legislative History

The first recognizable manifestation of the present § 304 of the Clean Air Act appeared in draft legislation (Print 1) prepared for use by the Senate Committee on Public Works.²² Print 1 allowed "one or more persons" to sue to enforce the Act after providing notice to the Secretary of Health, Education and Welfare (HEW), the regional HEW office, and the state pollution control agency for the state in which the alleged violation took place.²³ Print 1 further provided that "[n]o such suit shall be filed unless such person or persons shall have afforded the Secretary, his representative, or such agency, at least thirty days from the receipt of such notice to institute enforcement proceedings under this title to abate such alleged violation …."²⁴

Not surprisingly, this proposal provoked a spate of criticism from industry and others. Some commenters acknowledged that a citizen complaint procedure could contribute to the government's enforcement abilities, but argued that citizen litigation would be counterproductive.²⁵ It was said that this provision would lead to harassing litigation²⁶ and, by allowing citizen second-guessing of agency action, would make it difficult for regulated entities to know the actual standards that would govern their conduct.²⁷ One commenter suggested that if such suits were permitted, the alleged violator ought to be afforded the same notice and opportunity for abatement provided to government agencies.²⁸

Most significant for our purposes, however, was criticism addressed to the interaction between citizen suits and administrative enforcement. A few problematic situations were presented to the committee. In one, the federal government might initiate a proceeding that would lead to an administrative abatement order, and the alleged violator might not contest the order. A citizen suit might nevertheless attempt, needlessly, to remedy the same situation.²⁹ [16 ELR 10016] Second, subsequent to initiation of a citizen suit, the federal agency might initiate a court action to remedy an emissions violation; nothing in Print 1 would prevent the citizen suit from proceeding concurrently (and perhaps pressing for different relief). Further, "[t]he [proposed] legislation does not even make provision for a stay of the private action or actions and their consolidation with government litigation."³⁰ Each of these problems would be compounded when a state agency sought enforcement through state court or administrative proceedings, while citizens sued independently in federal court. The comment concluded that citizen suits are justified, if at all, "in those circumstances involving complete government inaction. The government is the proper source for the selection of enforcement tools…. Where the government, federal or state, initiates enforcement procedures prior to, within or beyond a reasonable notice period, there is no rational justification for private suits."³¹

These criticisms apparently struck a chord, for language responsive to them appeared in the bill as it passed the Senate, as well as in the accompanying committee and sponsors' statements. First, Print 1 was modified to allow the federal government to intervene as a matter of right in any citizen suit.³² Second, the committee modified Print 1 to require the litigant to notify the alleged violator of the specifics of the alleged violation.³³ Third, in a variety of ways, the committee and sponsors' statements made it clear that courts could dismiss, stay, or consolidate citizen suits, should the state or federal government engage in appropriate action to enforce the Act.

The most telling statements in this regard come from the report of the Senate Committee on Public Works. The report explained that the 30-day notice provision was added "to further encourage and provide for agency enforcement."³⁴

The time between notice and filing of the action should give the administrative enforcement office an opportunity to act on the alleged violation.

It should be emphasized that if the agency had not initiated abatement proceedings following notice or if the citizen believed efforts initiated by the agency to be inadequate, the citizen might choose to file the action. In such case, the courts would be expected to consider the petition against the background of the agency action and could determine that such action would be adequate to justify suspension, dismissal, or consolidation of the citizen petition.³⁵

Senator Muskie, the floor manager and a principal sponsor of the bill, intimated as much when he defended the citizen-suit section on the Senate floor. He explained that the reason for the notice provision was "that [the citizen] might trigger administrative action to get the relief that he might otherwise seek in the courts."³⁶ Senator Muskie continued, "In those instances where enforcement was not triggered, that is, enforcement action by the administrative agency was not triggered, then it seemed to us the citizen ought to be able to pursue the judicial remedy."³⁷ Thus, it would appear that he viewed administrative action to be an alternative to judicial action, not synonymous with it.

Senator Muskie also inserted into the record a staff memorandum defending § 304 that addressed specifically the issue of nonjudicial agency enforcement. The memorandum quoted testimony of the Minnesota Attorney General expressing concern that, if not carefully drafted, a citizen-suit section could lead to a "'multiplicity of suits that would override compliance agreement[s] already entered into by the Pollution Control Agency.'"³⁸ The Attorney General thought the section should be drafted so that "'we do not unnecessarily duplicate the enforcement of the law and that we do not unnecessarily clog up the courts where we are in fact making very swift efforts to enforce.'"³⁹ The staff memorandum concluded that "[t]he provision as currently drafted affords these protections,"⁴⁰ which demonstrates that the sponsors believed that, under the Senate bill, an administrative consent agreement could suffice to preempt a citizen suit.

Finally, that the Senate intended that agency action need not be judicial to preclude citizen suits can be seen in the statement of Senator Hart, a sponsor and one of the few Senators to address this section. He stated that the notice requirement, "it is expected, will have the effect of prodding these agencies to act. In many cases, it is hoped, they will be able to act without resorting to the courts."⁴¹

When the bill left the Senate, therefore, its sponsors had established that agency action short of federal or state court litigation could suffice to preclude a parallel citizen enforcement suit. The House, however, had made no provision whatsoever for citizen enforcement suits.⁴² Compromise was necessary.

The compromise struck between the House and Senate was to limit further the scope of citizen enforcement provided under the Senate bill. The Senate bill had forbade a citizen suit until the citizen had afforded the agencies at least thirty days in which to institute enforcement proceedings. The conference bill multiplied this single jurisdictional prerequisite into two.⁴³ First, no citizen could sue [16 ELR 10017] without providing sixty days prior notice to the agencies and to the alleged violator.⁴⁴ Second, no citizen could sue if an agency has an enforcement action pending in a federal or state court.⁴⁵

There is nothing in the legislative record to explain directly how the specific language of the compromise was selected, but such evidence as exists makes clear that the conferees intended their language to cut back on the role of citizen suits from that envisioned in the Senate bill. First, Senator Muskie explained the defensive attitude with which the Senate approached the conference on citizen suits: "Although the Senate did not advocate these suits as the best way to achieve enforcement, it was clear that they should be an effective tool."⁴⁶ Reflecting that the provision had been restricted, he later related that despite the fact that "we did modify the citizen suit provision [in conference] I feel that [the] thrust is retained."⁴⁷ And the conference report states that the "conference substitute retains provisions for citizen suits with certain limitations."⁴⁸

In view of this limiting language, it would be erroneous to read the conference substitute, which became law, to expand the circumstances under which citizen suits may proceed. Rather, at a minimum, it must still be the case that "the courts would be expected to consider the [citizen's] petition against the background of the agency action and could determine that such action would be adequate to justify suspension, dismissal, or consolidation of the citizen petition."⁴⁹ In addition, the conference substitute withdrew from judicial discretion the treatment of one such instance: if the agency initiated and pursued diligently court action prior to the expiration of the sixty-day notice period, the citizen suit could not be brought.⁵⁰

In other words, when presented with a citizen enforcement suit under § 304(a)(1) of the Clean Air Act or § 505(a)(1) of the Clean Water Act, the court must make three inquiries: Did the plaintiff provide appropriate notice to the agencies and alleged violator? Did an agency initiate and pursue diligently a judicial enforcement action? Prior to, within, or beyond the notice period, did the agency pursue some other form of enforcement action? If the answer to the first question is no, or if the answer to the second question is yes, then the court must dismiss the suit for lack of jurisdiction. If the answer to the last question is yes, then it is still within the court's discretion to dismiss, stay, or suspend the suit, if the administrative action so warrants.

That the courts retain this discretion is demonstrated by the legislative history of the analogous provision of the Clean Water Act.⁵¹ That provision is virtually identical to the Clean Air Act citizen suit section and indeed was "modeled on the provision enacted in the Clean Air Amendments of 1970."⁵² Once again the Senate explained that "the courts would be expected to consider the [citizen's] petition against the background of the agency action and could determine that such action would be adequate to justify suspension, dismissal, or consolidation of the citizen petition."⁵³ Had Congress intended to withdraw such discretion from the courts by the final language of the Clean Air Amendments, it would not have included this explanation for the identical provision of the Clean Water Act two years later.⁵⁴

Conclusion

By failing to analyze fully the legislative history surrounding the citizen-suit provisions of the Clean Air and Clean Water Acts, the courts and commentators have missed an important distinction between subject matter jurisdiction and discretionary exercise of jurisdiction. The language and legislative history of the two Acts make plain that Congress withheld from the district courts jurisdiction over citizen suits when an agency has instituted and pursued diligently a court (not administrative) action prior to commencement of the citizen suit. Where the agency has acted only administratively, the statutes may confer jurisdiction over citizen suits in the district courts, but Congress expressed its clear expectation that in most such suits courts would nonetheless exercise their discretion to dismiss or otherwise defer the citizen suit because the agency action would adequately serve congressional goals. Thus, in holding that use of the word "court" means court and not administrative tribunal, the Second Circuit missed the mark in not perceiving that nonjudicial enforcement could justify [16 ELR 10018] a stay or dismissal of a citizen enforcement suit, even if it would not deprive the court of jurisdiction.⁵⁵

As has been often repeated, "Congress intended to provide for citizens' suits in a manner that would be least likely to clog already burdened federal courts and most likely to trigger governmental action which would alleviate any need for judicial relief."⁵⁶ What is needed, therefore, is "a sensitive handling of citizen suits."⁵⁷ As Judge Sofaer reminds us, "[s]ettlements should be encouraged here, as theyare in virtually all areas of litigation."⁵⁸

The approach suggested here will allow these considerations to be given full effect. Where through formal or informal administrative means an agency has obtained a consent agreement that has led, or is reasonably likely to lead, to compliance with pollution control laws, a citizen suit ordinarily can add little. "[T]o commence any form of proceeding would be senseless where the agency has already succeeded in obtaining the respondent's agreement to comply with the law in some enforceable form."⁵⁹ In such circumstances a court may want to stay the citizen suit and then dismiss it if compliance is shown to have been accomplished; if, however, the alleged violator proves to be dilatory in meeting the compliance schedule, and if the agency fails to enforce its terms, the court could allow the citizen suit to proceed.⁶⁰

Different circumstances will require different dispositions, and they cannot all be considered here. The controlling guideposts are that Congress intended the notice provision to prod agencies to act, that "[i]n many cases, it [was] hoped, they will be able to act without resorting to the courts,"⁶¹ and that Congress meant to leave the courts discretion to determine whether such nonjudicial enforcement is adequate to foreclose or defer citizen suits. In resolving cases as they arise under the Clean Air Act and Clean Water Act, courts can follow these guidelines without, on the one hand, doing violence to the meaning of the statutory term "court" (as perhaps results from functional analysis), or, on the other, violating the clear congressional intent expressed in the legislative history of the statutes (as has the Second Circuit).

1. See generally, ENVIRONMENTAL LAW INSTITUTE, Citizen Suits: An Analysis of Citizen Enforcement Actions Under EPA-Administered Statutes (Sept. 1984); Fadil, Citizen Suits Against Polluters: Picking Up the Pace, 9 HARV. ENVTL. L. REV. 23 (1985); Miller, Private Enforcement of Federal Pollution Control Laws (Pt. 2), 14 ELR 10063 (1984); Schwartz & Hackett, Citizen Suits Against Private Industry Under the Clean Water Act, 17 NAT. RESOURCES J. 327 (1984); Guida, Dramatic Growth in Citizen Suits Under the Federal Clean Water Act, NAT'L L.J., Dec. 3, 1984, at 24.

2. Clean Air Amendments of 1970, Pub. L. No. 91-604, sec. 304(a)(1), 84 Stat. 1676, 1706 (codified at 42 U.S.C. § 7604), ELR STAT. 42256.

3. Federal Water Pollution Control Act Amendments of 1972, Pub. L. No. 92-500, sec. 505(a)(1), 86 Stat. 816, 888 (codified at 33 U.S.C. § 1365), ELR STAT. 42147.

4. Clean Water Act § 505(b)(1)(A), 33 U.S.C. § 1365(b)(1)(A), ELR STAT. 42147; Clean Air Act § 304(b)(1)(A), 42 U.S.C. § 7604(b)(1)(A), ELR STAT. 42256.

5. Clean Air Act § 304(b)(1)(B), 42 U.S.C. § 7604(b)(1)(B), ELR STAT. 42256. The Clean Water Act § 505(b)(1)(B) provides that no such action may be commenced if EPA or the state "has commenced and is diligently prosecuting a civil or criminal action in a court of the United States, or a State to require compliance with the standard, limitation, or order." 33 U.S.C. § 1365(b)(1)(B), ELR STAT. 42147.

6. Baughman v. Bradford Coal Co., 592 F.2d 215, 217-18, 9 ELR 20147, 20148 (3d Cir. 1979), cert. denied, 441 U.S. 961 (1979), followed by Student Public Interest Research Group of New Jersey, Inc. v. Fritzsche, Dodge & Olcott, Inc., 759 F.2d 1131, 1135-37, 15 ELR 20427, 20429 (3d Cir. 1985); Sierra Club v. Simkins Industries, Inc., 15 ELR 21012, 21015 (D. Md. June 18, 1985); Hudson River Sloop Clearwater, Inc. v. Consolidated Rail Corp., 591 F. Supp. 345, 348, 14 ELR 20627, 20629 (N.D.N.Y. 1984), rev'd sub nom. Friends of the Earth v. Consolidated Rail Corp., 768 F.2d 57, 15 ELR 20674 (2d Cir. 1985); Sierra Club v. SCM Corp., 572 F. Supp. 828, 830 & n.2, 14 ELR 20183, 20184 (W.D.N.Y. 1983); Love v. New York State Department of Environmental Conservation, 529 F. Supp. 832, 844, 12 ELR 20571, 20575 (S.D.N.Y. 1981); Gardeski v. Colonial Sand & Stone Co., 501 F. Supp. 1159, 1163 (S.D.N.Y. 1980).

7. Hudson River Sloop Clearwater, Inc., 591 F. Supp. at 348-50, 14 ELR at 20629; Gardeski, 501 F. Supp. at 1163-64 (citizen suit not precluded because agency not acting diligently).

8. 768 F.2d 57, 63, 15 ELR 20674, 20677 (2d Cir. 1985).

9. Id. at 62, 15 ELR at 20677.

10. Id. at 63, 15 ELR at 20677. EPA adopted this position recently in an amicus curiae brief in the Third Circuit. Brief of the United States as Amicus Curiae in Support of Plaintiffs-Appellees at 6 n.3, Student Public Interest Research Group of New Jersey, Inc. v. Fritzsche, Dodge & Olcott, Inc., 759 F.2d 1131, 15 ELR 20427 (3d Cir. 1985) ("The government concurs … that the legislative history of the Clean Water Act offers no basis for believing that Congress intended to bar citizen suits where an agency had undertaken administrative action."). As will be seen shortly, however, this view is clearly wrong.

11. 768 F.2d at 63, 15 ELR at 20677 (citing Toxic Substances Control Act § 20(b)(1)(B), 15 U.S.C. § 2619(b)(1)(B), ELR STAT. 41348; Endangered Species Act § 11(g)(2), 16 U.S.C. § 1540(g)(2), ELR STAT. 41832:6; Marine Protection, Research, and Sanctuaries Act § 105(g)(2), 33 U.S.C. § 1415(g)(2), ELR STAT. 41865; Hazardous and Solid Waste Amendments of 1984, Pub. L. No. 98-616, sec. 401(d), 98 Stat. 3221, 3269-70 (amending § 7002(b) of the Resource Conservation and Recovery Act, 42 U.S.C. § 6972(b), ELR STAT. 42034)).

12. 592 F.2d 215, 9 ELR 20147 (3d Cir.), cert. denied, 441 U.S. 961 (1979).

13. Id. at 217, 9 ELR at 20148.

14. Id. at 218, 9 ELR at 20148. See also Massachusetts v. United States Veterans Administration, 541 F.2d 119, 121, 6 ELR 20666, 20667 (1st Cir. 1976) ("The citizens' suit provisions under the FWPCA were designed to supplement and expedite administrative action to abate violations of the Act…. Recourse to the courts is appropriate only when the administrative action taken is less than adequate." (citations omitted)).

15. Baughman, 592 F.2d at 219, 9 ELR at 20149.

16. Id.; see also Fritzsche, Dodge & Olcott, 759 F.2d at 1137, 15 ELR at 20430 (right to intervene only one of several relevant factors).

17. 501 F. Supp. 1159 (S.D.N.Y. 1980).

18. Id. at 1163.

19. Id. Cf. Hudson River Sloop Clearwater, Inc., 591 F. Supp. at 352, 14 ELR at 20630 ("As long as pollution is abated to a point consistent with a violator's permit as a result of agency action, additional penalties will not necessarily be required."); id. at 353, 14 ELR at 20630 ("If compliance, within reason, is the end, the means chosen to achieve that end are less important, particularly where, as here, that end has been realized.").

20. See Gardeski, 501 F. Supp. at 1167-68. Cf. Natural Resources Defense Council, Inc. [NRDC] v. Train, 510 F.2d 692, 700, 5 ELR 20046, 20049 (D.C. Cir. 1974) ("[B]ecause of the obvious danger that unlimited public action might disrupt the implementation of the Act and overburden the courts, Congress restricted citizen suits ….").

21. There is rather less in the legislative history concerning the addition of citizen suits to the Clean Water Act than there is concerning the earlier introduction of such suits in the Clean Air Act. For this reason, and because Congress stated clearly that it patterned the Clean Water Act provision on that of the Clean Air Act, see infra note 52, the courts routinely rely on the legislative history of the Clean Air Act in construing the citizen-suit section of the Clean Water Act, e.g., Middlesex County Sewerage Authority v. National Sea Clammers Association, 453 U.S. 1, 18, n.27, 11 ELR 20684, 20688 (1981); Friends of the Earth, 768 F.2d at 63, 15 ELR 20677; NRDC v. Train, 510 F.2d at 699-702, 5 ELR at 20049-50, and courts rely interchangeably on cases involving both statutes when considering suits under one of them, e.g., Fritzsche, Dodge & Olcott, 759 F.2d at 1135-37 & n.4, 15 ELR at 20429. The only significant difference between the two provisions, for present purposes, is that the Clean Air Act permits "any person" to sue, whereas the Clean Water Act confines the right to sue to "citizens." See NRDC v. Train, 510 F.2d at 701 n.47, 5 ELR at 20050.

There may be greater differences between the two provisions in the future, for Congress is considering modifying the citizen suit portion of the Clean Water Act. The modifications would take specific account of the effect on citizen suits of the imposition of the civil administrative penalties provided in the proposed amendments. See S.1128, 99th Cong., 1st Sess. § 109(d), 131 CONG. REC. H6103, H6106 (daily ed. July 23, 1985) (proposing to add § 309(g)(5)(A)); H.R. 8, 99th Cong., 1st Sess. § 30(b), 131 CONG. REC. at H6126 (proposing to add § 505(b)(1)(C)). The House and Senate conferees had not, as of this writing, met to resolve the differences between the two bills.

22. Committee Print No. 1, Printed for the Use of the Senate Committee on Public Works, 91st Cong., 2d Sess. (Aug. 25, 1970), reprinted in 1 ENVIRONMENTAL POLICY DIVISION OF THE CONGRESSIONAL RESEARCH SERVICE, A LEGISLATIVE HISTORY OF THE CLEAN AIR AMENDMENTS OF 1970, 93d Cong., 2d Sess. 629 (Comm. Print 1974) [hereinafter cited as CLEAN AIR HISTORY].

23. Id. § 304(a)(1), (3), reprinted in 1 CLEAN AIR HISTORY, supra note 22, at 704-05.

24. Id. § 304(a)(3), reprinted in 1 CLEAN AIR HISTORY, supra note 22, at 705.

25. Letter from James D. Kittleton, Director, Environmental Activities, American Mining Congress, to Richard Grundy, Professional Staff Member, Senate Committee on Public Works (Aug. 26, 1970), reprinted in 1 CLEAN AIR HISTORY, supra note 22, at 717; Memorandum of Thomas C. Mann, President, Automobile Manufacturers Association (Aug. 29, 1970), reprinted in 1 CLEAN AIR HISTORY, supra note 22, at 725; Letter from W. J. Driver, Manufacturing Chemists Ass'n, to Hon. Jennings Randolph (Sept. 1, 1970), reprinted in 1 CLEAN AIR HISTORY, supra note 22, at 754.

26. Letter from James D. Kittleton, supra note 25, reprinted in 1 CLEAN AIR HISTORY, supra note 22, at 717.

27. Memorandum of Thomas C. Mann, supra note 25, reprinted in 1 CLEAN AIR HISTORY, supra note 22, at 725.

28. Comments of Union Carbide Corp. on the Proposed National Air Quality Standards Act of 1970 (Aug. 26, 1970), reprinted in 1 CLEAN AIR HISTORY, supra note 22, at 788.

29. Memorandum of Law of Collier, Shannon, Rill & Edwards (n.d.), reprinted in 1 CLEAN AIR HISTORY, supra note 22, at 731.

30. Id.

31. Id.

32. Compare Committee Print 1, § 304(a)(3), reprinted in 1 CLEAN AIR HISTORY, supra note 22, at 705, with S. 4358, 91st Cong., 2d Sess. § 304(a)(3) (1970), reprinted in 1 CLEAN AIR HISTORY, supra note 22, at 614-15.

33. Id.

34. S. REP. NO. 1196, 91st Cong., 2d Sess. 37 (1970), reprinted in 1 CLEAN AIR HISTORY, supra note 22, at 437.

35. Id.

36. 116 CONG. REC. 32927 (1970) (remarks of Sen. Muskie), reprinted in 1 CLEAN AIR HISTORY, supra note 22, at 280.

37. Id.

38. Id., at 33103 (Memorandum quoting Douglas Head, Attorney General of Minnesota), reprinted in 1 CLEAN AIR HISTORY, supra note 22, at 352.

39. Id.

40. Id.

41. Id. at 33104 (remarks of Sen. Hart), reprinted in 1 CLEAN AIR HISTORY, supra note 22, at 355.

42. H.R. REP. NO. 1783, 91st Cong., 2d Sess. 55 (1970) (Conference Report), reprinted in 1 CLEAN AIR HISTORY, supra note 22, at 205.

43. The strictures of present § 304(b) and of its Clean Water Act analogue have been held jurisdictional by several appellate courts. See, e.g., Massachusetts v. United States Veterans Administration, 541 F.2d 119, 121-22, 6 ELR 20666, 20667 (1st Cir. 1976) (Clean Water Act § 505(b)); City of Highland Park v. Train, 519 F.2d 681, 690-91, 5 ELR 20408, 20412 (7th Cir. 1975) (Clean Air Act § 304(b)), cert. denied, 424 U.S. 927 (1976); NRDC v. Train, 510 F.2d 692, 702, 5 ELR 20046, 20050 (D.C. Cir. 1974) (dictum) (Clean Water Act § 505(b)). In Middlesex County Sewerage Authority v. National Sea Clammers Association, 453 U.S. 1, 11 ELR 20684 (1981), the district court had held, 453 U.S. at 6-7, 11 ELR at 20685, and the court of appeals implicitly concurred, id. at 9, 11 ELR at 20685, that the notice provisions of Clean Water Act § 505(b)(1)(A) are jurisdictional. Although the Supreme Court did not address the issue, see id. at 10-11, 11 ELR at 20686, its opinion would have been wholly unnecessary had notice not been essential to the lower court's jurisdiction.

44. Clean Air Act § 304(b)(1)(A), 42 U.S.C. § 7604(b)(1)(A), ELR STAT. 42256.

45. Id. § 304(b)(1)(B), 42 U.S.C. § 7604(b)(1)(B), ELR STAT. 42256.

46. 116 CONG. REC. 42382 (1970), reprinted in 1 CLEAN AIR HISTORY, supra note 22, at 127.

47. Id. at 42387, reprinted in 1 CLEAN AIR HISTORY, supra note 22, at 138.

48. H.R. REP. NO. 1783, supra note 42, at 56 (emphasis added), reprinted in 1 CLEAN AIR HISTORY, supra note 22, at 206.

49. S. REP. NO. 1196, supra note 34, at 37, reprinted in 1 CLEAN AIR HISTORY at 437.

50. Judge Sofaer concluded that the Senate intended this cout of restriction even before conference. Gardeski v. Colonial Sand & Stone Co., 501 F. Supp. at 1162 n.2; contra, Baughman v. Bradford Coal Co., 592 F.2d at 218 n.4, 9 ELR at 20148.

51. The Supreme Court has noted that the Senate Report concerning the 1972 Clean Water Amendments "placed particular emphasis on the limited nature of the citizen suits being authorized." Middlesex County Sewerage Authority, 453 U.S. at 17 n.27, 11 ELR at 20688.

52. S. REP. NO. 414, 92d Cong., 1st Sess. 79 (1971), reprinted in 2 ENVIRONMENTAL POLICY DIVISION OF THE CONGRESSIONAL RESEARCH SERVICE, A LEGISLATIVE HISTORY OF THE WATER POLLUTION CONTROL ACT AMENDMENTS OF 1972 at 1497 (1973) [hereinafter cited as CLEAN WATER HISTORY]; see also H.R. REP. NO. 911, 92d Cong., 2d Sess. 133 (1972) ("Section 505 closely follows the concepts utilized in section 304 of the Clean Air Act."), reprinted in 1 CLEAN WATER HISTORY, supra, at 820.

53. S. REP. NO. 414, supra note 52, at 80, reprinted in 2 CLEAN WATER HISTORY, supra note 52, at 1498.

54. The presumption is that courts retain discretion when asked to provide equitable relief for statutory violations, and one therefore would expect Congress to express itself if it intended to withdraw such discretion. See Hecht Co. v. Bowles, 321 U.S. 321, 330 (1944); United States v. Morgan, 307 U.S. 183, 194 (1939). That courts retain their remedial discretion generally under the Clean Water Act has been confirmed by the Supreme Court: "That the scheme [of the Clean Water Act] as a whole contemplates the exercise of discretion and balancing of equities militates against the conclusion that Congress intended to deny courts their traditional equitable discretion in enforcing the statute." Weinberger v. Romero-Barcelo, 456 U.S. 305, 316, 12 ELR 20538, 20541 (1982).

55. In contrast, the Third Circuit and various district courts have erred in emphasizing functional analysis in determining whether nonjudicial enforcement action may preclude citizen suits. In evaluating whether such preclusion is appropriate, courts should consider whether the agency action will achieve or has achieved "compliance with the standard, limitation, or order," Clean Water Act § 505(b)(1)(B), 33 U.S.C. § 1365(b)(1)(B), ELR STAT. 42147; Clean Air Act § 304(b)(6)(B), 42 U.S.C. § 7604(b)(1)(B), ELR STAT. 42256, rather than whether the agency action is structured like a court proceeding.

56. City of Highland Park, 519 F.2d at 690-91, 5 ELR at 20412, quoted in, e.g., Baughman, 592 F.2d at 218, 9 ELR at 20148.

57. Gardeski, 501 F. Supp. at 1168.

58. Id. at 1166.

59. Id.

60. Cf. Hudson River Sloop Clearwater, Inc. v. Consolidated Rail Corp., 591 F. Supp. 345, 353, 14 ELR 20627, 20630 (N.D.N.Y. 1984), reversed sub nom. Friends of the Earth v. Consolidated Rail Corp., 768 F.2d 57, 15 ELR 20674 (2d Cir. 1985):

Should it be demonstrated that the remedy contemplated by the consent order is not effectuated with the vigor heretofore lacking, or if new violations suddenly emerge which do not attract the enforcement attentions of DEC, this Court would not hesitate to entertain favorably a new action based on such additional evidence.

61. 116 CONG. REC. 33104 (1970) (remarks of Sen. Hart), reprinted in 1 CLEAN AIR HISTORY, supra note 22, at 355.