Second Circuit Holds Citizen Suit Central Enforcement Device Under the Clean Air Act

One of the most novel enforcement mechanisms devised by the drafters of the Clean Air Act Amendments of 1970 was § 304's "citizen suit" provision.¹ This section, variants of which were later incorporated in the Federal Water Pollution Control Act Amendments of 1972² and a number of other federal environmental statutes,³ authorizes any person to commence civil enforcement suits in federal district court. Such suits may be brought against any person (including the United States, its agencies, and any state or local government instrumentality) alleged to be in violation of an emission standard or limitation or a compliance order issued by the EPA Administrator, if EPA has not already commenced a civil enforcement action under § 113.⁴ In addition, an action may be brought against the Administrator himself where he is alleged to have failed to perform any non-discretionary duty under the statute. The purpose of the provision was to encourage, as well as to supplement, federal and state efforts at enforcement.⁵

Of the suits brought to date under § 304, most have consisted of challenges to alleged abuses of discretion by the Administrator in setting or failing to issue or revise various regulations or emission standards.⁶ The few suits that have been aimed directly at enforcing an "emission standard or limitation" have run into several obstacles, not the least of which is the charge of being premature while administrative implementation of the Act was still at the standard-setting stage.⁷

Recently, however, in a decision⁸ that accords § 304 a broad sweep and emphasizes its central role in the Act's enforcement scheme, the Second Circuit Court of Appeals, in a citizen suit brought by a number of environmental groups, ordered the state of New York to enforce four transportation control strategies that it had failed to carry out for more than a year after enforcement was scheduled to begin under its EPA-approved implementation plan.

The factual setting in Friends of the Earth v. Carey typifies the administrative indolence § 304 was intended to remedy. Following EPA's general disapproval of state implementation plans in 1972 for failure to include transportation controls, New York state submitted a revised plan containing 32 separate transportation control measures that the state would undertake to attain and maintain primary ambient air quality standards by 1975. Following approval by EPA under § 110⁹ of the Act, the merits of the revised plan were challenged under § 307¹⁰ by several environmental and citizen groups. The state and EPA vigorously defended the plan's adequacy against the petitioners' charges that a number of the transportation control strategies were vaguely worded and insufficient to achieve the air pollution standards mandated by the Act.

On July 1, 1974, the Second Circuit upheld the validity of most portions of the plan, remanding only a few provisions to EPA for further explanation.¹¹ By that time, however, the state had already fallen behind its compliance timetable. To remedy this violation, EPA and the environmentalgroups had requested the Second Circuit to order immediate enforcement of the plan's strategies. The court refused, holding that it lacked jurisdiction to issue such an order in the absence of a suit to enforce the plan either by EPA under § 113, or by the environment groups under § 304.

Treating this as an implicit invitation, the environmental and citizen groups served EPA, the state and the city with 60-day notice and filed suit on October 11, 1974 after EPA failed to initiate enforcement proceedings. At the district court hearing on plaintiff's motion for a preliminary injunction, the state's Assistant Attorney General acknowledged that the plan was "legally enforceable" but announced that the state had "no intention of implementing certain of its strategies." He further admitted that "if there is a valid legal ground for such a refusal, we have not been able to find it…." Despite this concession, the court denied the motion on December 16, 1974, in order to await EPA's reaction to a revision in the plan recently proposed by the state. Shortly thereafter EPA ruled that the state had failed to [6 ELR 10151] complete its application for a revision, and issued notices of violation under § 113(a)(1) with respect to 12 of the 32 transportation control strategies contained in the plan. Nevertheless, the agency refused to initiate judicial enforcement proceedings under § 113, and instead attempted to achieve compliance through consensual administrative orders.

By July 1975, the city and state had consented to eight of the disputed strategies, but remained in explicit violation of four others, including reductions in business district parking, selective bans on taxicab cruising, tolls on the East and Harlem Rivers bridges, and night-time freight movement. This was three months after the March deadline had passed for achievement of the health-related primary ambient air quality standards. By that time, carbon monoxide levels in New York City, rather than being reduced by 78 percent as the plan mandated, stood at five times the primary standard, a situation that increasingly endangered public health.

In August 1975, plaintiff moved for a partial summary judgment to enforce the four strategies that were indisputably being violated. The district court again denied relief,¹² this time because it concluded that many issues of fact remained, and that EPA and the state were still negotiating several consent orders. The court also observed that an enforcement order would necessitate excessive judicial supervision "where there is already a federal agency charged with the enforcement of the Plan." The court then ordered the action dismissed unless plaintiffs gave EPA ten days additional notice to induce the agency to become a party to the suit. Plaintiffs appealed from that order.

On appeal, the Second Circuit held that the district court's refusal to enforce the Plan was erroneous for two reasons. First, the lower court erred in allowing ongoing EPA-state negotiations concerning consent decrees to nullify plaintiffs' statutorily-guaranteed right to enforcement of the plan's express provisions. In short, it held, negotiations and other informal administrative devices were no substitute for enforcement and timely compliance with the plan's mandated strategies. Citing the Supreme Court's 1975 ruling in Train v. Natural Resources Defense Council,¹³ the court held that an approved plan may be modified through a § 110(a)(3) revision or a § 110(f) postponement, but in the absence of such notification, the state has no choice but to comply. By sanctioning deferred enforcement because of the negotiations, the district court plainly violated the statutory scheme by granting a de facto revision in the plan not consistent with § 110.

The Second Circuit also ruled that the lower court mistakenly converted EPA into an indispensable party by requiring plaintiffs to serve 10 days additional notice on the agency to bring about its intervention. Plaintiffs had served the 60-day notice required by § 304(b)(1)(A)¹⁴ when they commenced the suit in 1974. No further notice was required under the Act when, following the failure of one attempt to reach an accord through negotiations among the parties, plaintiffs resumed their request for a preliminary injunction in 1975 based upon the 1974 complaint. Moreover, the court noted EPA had in fact been made aware of the reactivated lawsuit by a letter from District Judge Duffy and had been asked to participate, but the agency chose instead to submit a letter in return expressing its position.

While the court recognized that enforcement of the plan would cause inconvenience and expense to both governmental and private parties, it nevertheless pointed to Congress' intention that time and money not be saved at the expense of the health of the community's citizens. Observing that "[t]he record before us is one that cries out for prompt and effective relief if the congressional clean air mandate is to have any meaning and effect in New York City," the court ordered the lower court to enter partial summary judgment for plaintiffs directing enforcement of the four violated strategies. The district court was also ordered to hold further hearings promptly to determine whether the defendants will default in carrying out any of the remaining strategies, and if so, to take the steps necessary to enforce those strategies as well.

On an accompanying claim in the same case, the Second Circuit affirmed for lack of subject matter jurisdiction under § 304 the lower court's denial of injunctive relief against the 1975 increase in transit fares in New York City, because the stabilization of such fares is not a clean air strategy expressed in the plan. But in so doing the court also ruled that the § 304(b)(1)(A) requirement that EPA, the state, and the alleged violator all receive 60 days notice of a citizen suit is satisfied by providing notice only to EPA and the state where the violator is a state agency acting as the state's agent; the state is thus legally responsible for the agency's actions. Emphasizing that the notice requirement was intended to provide administrative agencies with time to investigate and act upon an alleged violation rather than to hinder citizen participation, the court viewed its ruling as consistent with the theme echoed in other cases¹⁵ that the requirement is to be construed flexibly and realistically.

The rhetoric of the court's interpretation of § 304 was more expansive than this summary of its specific rulings suggests. Because the district court's decision evidenced "fundamental misconceptions" about both the purposes of the citizen suit and the roles of the parties and the court's own duty in such a suit, the Second Circuit believed that a more general discussion clarifying these matters was in order. Reading § 304 to reflect a deliberate congressional choice to widen access to the courts in order to assure that the Act would be implemented and enforced, the court emphasized that citizen plaintiffs are not to be treated as "nuisances or troublemakers" but rather as "welcomed participants in the vindication of environmental interests." The Act, in [6 ELR 10152] the court's words, "seeks to encourage citizen participation rather than treat it as a curiosity or a theoretical remedy."

Once a citizen suit to enforce an EPA-approved state implementation plan is properly commenced, said the Second Circuit, the district court is obligated upon a showing that the state has violated the plan to issue appropriate orders for its enforcement. The lower court may not escape this duty simply because EPA is attempting to negotiate consent orders or has not been joined as a party in the suit. It is up to EPA, after receiving notice of an upcoming citizen suit, to decide whether or not to participate in the proceedings; the agency's absence, however, does not render the action infirm. The hold otherwise would be to defeat the very purpose of the citizen suit enforcement mechanism, which was to circumvent bureaucratic inaction that interferes with the scheduled achievement of federal air quality standards.

Nor may the district court deny relief on the ground that the task of supervising enforcement would be unduly burdensome or require the court to deal with complex and "highly technical" questions. Congress unmistakably intended that the courts accept this duty under the Act, and clearly believed a plan's strategies, in combination with the opportunity to hear expert witnesses on the matter, would contain sufficiently specific guidelines to enable a federal judge to direct compliance.

The court of appeals' opinion amounts to a resounding reaffirmation of the citizen suit provision's central and powerful role in the Clean Air Act's enforcement scheme at the time that the initial standard-setting phase of the statute's implementation is coming to a close and the enforcement phase is beginning. Even though Congress is working toward enactment of a new set of Clean Air Act amendments this year, neither the House¹⁶ nor the Senate¹⁷ bill does anything to weaken § 304. Although the amendments may extend some statutory compliance deadlines and consequently delay the onset of the enforcement period in particular areas, the citizen suit will apparently remain an effective remedial sanction that can be brought to bear whenever the need should arise.

By interpreting the notice requirement flexibly and by holding that EPA is not an indispensable party in a suit brought under § 304, the Second Circuit reinforced the view taken on these issues by the D.C. Circuit in Metropolitan Washington Coalition for Clean Air v. District of Columbia.¹⁸ Should the Second Circuit's assessment of the importance of citizen oversight and its hard-nosed view of the enforcement attitude required of judges under § 304 become widely accepted, they will serve as an invitation for environmental groups to litigate in the event of a failure by EPA or a state to move vigorously to enforce the provisions of an approved implementation plan. In addition, the possibility of an attorneys' fee award¹⁹ in a suit under § 304 will serve as a further incentive for thorough citizen oversight of the nation's air pollution control program.

1. 42 U.S.C. § 1857h-2, ELR 41217.

2. 33 U.S.C. § 1365, ELR 41125.

3. See, e.g., § 12 of the Noise Control Act of 1972, 42 U.S.C. § 4911, ELR 41504; § 16 of the Deepwater Ports Act of 1974, 33 U.S.C. § 1515, ELR 41709; § 1449 of the Safe Drinking Water Act, 42 U.S.C. § 300j-8, ELR 41139; § 105(g) of the Marine Protection, Research and Sanctuaries Act of 1972, 33 U.S.C. § 1415(g), ELR 41823; and § 11(g) of the Endangered Species Act of 1973, 16 U.S.C. § 1540(g), ELR 41829. Comparable provisions are found in both House and Senate versions of the Toxic Substances Control Act, discussed elsewhere in this issue, see Comment, In Anticipation: Comparing the 1976 Toxic Substances Control Bills, 6 ELR 10138 (July 1976).

4. 42 U.S.C. § 1857c-8, ELR 41206.

5. See S. Rep. No. 1196, 91st Cong., 2d Sess. 3, 36-39 (1970).

6. See, e.g., City of Riverside v. Ruckelshaus, 3 ELR 20043 (C.D. Cal. 1972); Sierra Club v. Ruckelshaus, 344 F. Supp. 253, 2 ELR 20262 (D.D.C. 1972), aff'd per curiam, 2 ELR 20656 (D.C. Cir. 1972), aff'd by an evenly divided court sub nom. Fri v. Sierra Club, 412 U.S. 541, 3 ELR 20684 (1973); City of Highland Park v. Train, 374 F. Supp. 758, 4 ELR 20677 (N.D. Ill. 1974), aff'd 519 F.2d 681, 5 ELR 20408 (7th Cir. 1975); Oljato Chapter of the Navajo Tribe v. Train, 515 F.2d 654, 5 ELR 20481 (D.C. Cir. 1975); West Penn Power v. Train, 378 F. Supp. 941, 4 ELR 20812 (W.D. Pa. 1974), aff'd 522 F.2d 302, 5 ELR 20557 (3d Cir. 1975).

7. See, e.g., Citizens Ass'n of Georgetown v. Washington, 370 F. Supp. 1101, 4 ELR 20292 (D.D.C. 1974); Sierra Club v. Hodel, 5 ELR 20031 (W.D. Wash. Oct. 3, Nov. 15, 1974).

8. Friends of the Earth v. Carey, __ F.2d __, 6 ELR 20488 (2d Cir. Apr. 26, 1976).

9. 42 U.S.C. § 1857c-5, ELR 41204.

10. 42 U.S.C. § 1857h-2, ELR 41218.

11. Friends of the Earth v. Environmental Protection Agency, 499 F.2d 1118, 4 ELR 20627 (2d Cir. 1974).

12. 401 F. Supp. 1386 (S.D.N.Y. 1975).

13. 421 U.S. 60, 5 ELR 20264 (1975).

14. 42 U.S.C. § 1857h-2(b)(1)(A), ELR 41217.

15. Natural Resources Defense Council, Inc. v. Callaway, 524 F.2d 79, 84 n. 4, 5 ELR 20640, 20642 n. 4 (2d Cir. 1975); Conservation Society of Southern Vermont, Inc. v. Secretary of Transportation, 508 F.2d 927, 938-39, 5 ELR 20068, 20074 (2d Cir. 1974), vacated on other grounds, __ U.S. __, 96 S. Ct. 19, 6 ELR 20068 (1975).

16. H.R. 10498, 94th Cong., 2d Sess. (1976).

17. S. 3219, 94th Cong., 2d Sess. (1976).

18. 511 F.2d 809, 5 ELR 20335 (D.C. Cir. 1975).

19. § 304(d), 42 U.S.C. § 1857h-2(d), ELR 41217.