Academic journal article Environmental Law

How Far Should the Bar on Citizen Suits Extend under Section 309 of the Clean Water Act?

Academic journal article Environmental Law

How Far Should the Bar on Citizen Suits Extend under Section 309 of the Clean Water Act?

Article excerpt


In an effort to increase enforcement actions, Congress amended the Clean Water Act (CWA)(1) in 1987 to include a new administrative penalty section that allows agencies to assess civil penalties.(2) This section also includes provisions that allow certain administrative enforcement actions to preclude a citizen suit.(3) An analysis of this provision gives some insight into the question that existed in the courts concerning whether an administrative enforcement action could be considered a "court" under [sections] 505(b)(1)(B) of the Act and could thus preclude a citizen suit.(4) The provision precludes a citizen suit if 1) the Administrator of the Environmental Protection Agency (EPA) or the Secretary of the Army has commenced and is diligently prosecuting an action for an administrative penalty, or 2) a state has commenced and is diligently prosecuting an action under state law comparable to [sections] 309(g), or 3) a violator pays a penalty assessed under [sections] 309(g) or comparable state law.(5)

This new provision has resulted in many questions. The most significant question regards how far the bar on citizen suits extends. Because neither the language of [sections] 309(g) nor its legislative history clearly answer this question, conflict among the circuits has resulted which needs to be resolved.

The Ninth Circuit has answered this question in two recent decisions by taking a narrow view as to when citizen suits are barred. It first dealt with [sections] 309(g) in Citizens for a Better Environment-California v. Union Oil Co. of California (UNOCAL),(6) and then again in Knee Deep Cattle Co. v. Bindana Investment Co.(7) These cases reveal the conflict among the circuits and the reasoning used by the venous courts when interpreting [sections] 309(g)(6)(A). Therefore, this chapter will outline the cases discussed in UNOCAL and in Knee Deep, in addition to discussing the two Ninth Circuit cases themselves.

This chapter will discuss how the circuits have interpreted [sections] 309, ranging from a broad interpretation of preclusion, as in the First Circuit,(8) to a narrow interpretation, as in the Ninth Circuit.(9) Neither interpretation is without fault, but Congress failed to make clear which is correct under the provision. Then, more specifically, this chapter will consider 1) the various requirements for state comparability, 2) whether a penalty is required, and 3) the purpose of and the limitations on the citizen suit bar.

This chapter recommends that the conflict be resolved and suggests that Congress amend [sections] 309(g). Congress needs to delineate exactly which administrative actions preclude a citizen suit. Furthermore, Congress needs to define the meaning of the phrase "comparable state law" by setting out the requirements that the state provisions must contain. Finally, Congress needs to set out the exact purpose of the citizen suit bar. A clear congressional purpose will enable courts to interpret these provisions in a more uniform manner.


Section 505(b)(1)(B)(10) was the original bar to citizen suits under the Clean Water Act (CWA). It was patterned after a similar provision in the Clean Air Act (CAA).(11) The CWA clause provides that

[n]o action may be commenced . . . under subsection (a)(1) of this section

[the citizen suit provision] . . . if the Administrator or 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, but in any such action in a court of the

United States, any citizen may intervene as a matter of right.(12)

Questions originally arose as to what could be considered a court The issue was whether administrative actions by a state or the United States could constitute a court and thus bar citizen suits. …

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