How Citizens' 环境法律su它的 Can Stop Pollution - September 2015

by 詹姆斯·T. 朗

美国.S. 的环境保护ection Agency (“EPA”) and the 维吉尼亚州 Department of Environmental Quality (“DEQ”) have primary responsibility for enforcing the environmental laws and regulations in the Commonwealth of 维吉尼亚州. 有些时候, 然而, when the EPA or the DEQ are unwilling or unable to take action against a polluter who is contaminating water, air or land in violation of environmental law. Sometimes the government fails to act because the community suffering from the pollution is not affluent and, 因此, does not enjoy a high degree of responsiveness from elected or appointed government officials. 其他时间, government officials fail to act because the complained-of violations are prioritized by them as being “small” in relation to the other violations that these officials have decided to pursue. When government declines to act – no matter the reason – the Citizens’ 环境法律suit plays an important enforcement role that can stop the pollution, force the polluter to clean up the contamination, 支付罚款, and reimburse the citizen who brought the suit for his or her litigation expenses. 正如法院写道:

[C]朝鲜的苏它的 . . . play [an important role] in the enforcement of [the environmental laws]. The EPA must classify 情况下s in order to maximize 它的 scarce enforcement resources. T在这里 are some violations that, by necessity, may not be pursued aggressively. 然而, [an environmental] violation is only "small" to one who does not live near the offending hazardous waste facility. 事实上, the [Citizens’ 环境法律suit] is a testament to Congress' wisdom in recognizing that those who live in close proximity to hazardous waste facilities often are the most diligent enforcers of [environmental law] mandates.

塞拉俱乐部诉. 化学. 处理公司., 824 F. 增刊. 195, 197-98 (D. 科罗拉多州. 1993).

一个职业vision that specifically authorizes Citizens’ 环境法律su它的 is written into each of the major environmental protection statutes:

《清洁水法ovides for Citizens’ 环境法律su它的 at 33 U.S.C. § 1365;

清洁Air Act provides for Citizens’ 环境法律su它的 at 42 U.S.C. § 7604; and,

皇冠搏彩APP下载，Conservation and Recovery Act (aka “The Clean Land Act”) provides for Citizens’ 环境法律su它的 at 42 U.S.C. § 6972.

最近一个由三人提起的案子e citizens groups against a corporate owner of a coal mine for pollution of the water in the Kelly Branch and Callahan Creek in Wise County, 维吉尼亚州, illustrates the powerful results that can be accomplished in a Citizens’ 环境法律suit. The citizens groups filed their legal action in t他你.S. 地方法院 for the Western District of 维吉尼亚州: Southern Appalachian Mountain Stewards v. A&G煤炭公司，情况否. 2:12cv000009 (W.D. Va. 2012年5月3日提起的诉讼). The citizens groups brought the 情况下 because they discovered that the corporation was discharging the toxic pollutant selenium into Kelly Branch and Callahan Creek without a permit from the DEQ. The EPA confirms that selenium reduces survival and causes skeletal deformities in fish (click 在这里). 公民团体在 Southern Appalachian Mountain Stewards 情况下, prior to filing the legal action in court, made the EPA and the DEQ aware of the selenium violations at the coal mine through a formal written notice provided to both governmental agencies. The service of such formal written notices, 还有60天的等待期, are required prior to filing a Citizens 环境法律suit. 不管出于什么原因, EPA和DEQ没有采取任何行动, after which the citizens group filed their complaint with the Court. 在诉状中, the citizens groups asked the Court to order the coal mine to apply to the DEQ for a permit, to pay a civil penalty to t他你nited States in an amount up to $37,500.每天违规00美元, and to pay the citizens groups for their costs of the litigation.

2013年7月22日他你.S. 地方法院 found that the corporation violated the Clean Water Act by discharging the toxic pollutant selenium into the two water bodies, just as the citizens groups had alleged. The Court ordered the corporation to conduct sampling for selenium in the Kelly Branch and in Callahan Creek at locations and on a schedule suggested by the citizens groups, as well as to provide the results of this sampling to the DEQ and to the citizens groups. It also ordered the corporation to apply to the DEQ for a permit for 它的 selenium discharges and to provide the Court with periodic written reports as to the corporation’s progress in obtaining the required permit (with a copy of the reports to the citizens groups). 另外, 应市民团体的要求, the Court deferred consideration of the civil penalty to be imposed on the corporation for 它的 violations until such time as the corporation even灵性的 obtains 它的 permit.

2014年10月2日he Court ordered the corporation to pay the citizens groups $175,623.18 as a reimbursement for their costs of the litigation.

公司文件ed 它的 most recent status report on February 6, 2015, indicating in 它的 filing that sampling for selenium was being conducted every day, that the results were being shared with the DEQ and the citizens groups, and that the corporation remained in the process of obtaining 它的 permit.

贝科use of the success of the Citizens 环境法律suit filed in t他你.S. 地方法院, these citizens groups will have a seat at the table as the DEQ hammers out the terms in the corporation’s permit. This puts the citizens groups in a position they would not otherwise have occupied, functioning as a watchdog during the permit issuing process to ensure that the DEQ places appropriate conditions in the permit requiring the corporation to reduce 它的 pollution in order to protect the waters of the Kelly Branch and Callahan Creek.

另外tionally, and again because of the success of the Citizens 环境法律suit filed in t他你.S. 地方法院, the citizens group will return to t他你.S. 地方法院 when the permit is (at last) issued, at which time the citizens group will calculate the number of days the corporation violated the Clean Water Act. The first date of violation will be the date in 2011 when the citizens group first uncovered the pollution violations. The final date will be some date in 2015 or beyond when the corporation even灵性的 gets 它的 permit from the DEQ. Once the number of days in violation have been determined, the citizens group will ask the Court to order the corporation to pay a civil penalty to t他你nited States in an amount up to $37,500.每天违规00美元.

的即时通讯portance of forcing the polluter to pay an appropriate civil penalty is vital to the effectiveness of the law, 正如美国政府所解释的那样.S. 地方法院 for the District of South Carolina when it imposed a $405,800.00 civil penalty on a polluter for 它的 Clean Water Act violations. 法院写道:

的场地t在 PIRG v. Powell Duffryn终端有限公司., 720 F. 增刊. 1158 (D.N.J. 1989), 部分害怕，部分兴奋， 913 F.2d 64 (3d. 1990), cert. 否认, 498 U.S. 1109 (1991), explained well the purposes behind civil penalties:

Civil penalties seek to deter pollution by discouraging future violations. 来实现这个功能, the amount of the civil penalty must be high enough to insure that polluters cannot simply absorb the penalty as a cost of doing business. 否则, a rational profit maximizing company will choose to pay the penalty rather than incur compliance costs. 另外, the probability that a penalty will be imposed must be high enough so that polluters will not choose to accept the risk that non-compliance will go unpunished.

Id. 在1166年，(ci实况省略). 类似的, only by removing the economic benefit of noncompliance can a civil penalty ensure that a violator receives no economic advantage 相对于 它的 competitors who comply in a timely fashion with all environmental regulations. PIRG v. Powell Duffryn终端有限公司., 913 F.2d at 80(引用S. 代表. No. 50、99号长.第一届. 25 (1985)).

Ac灵性的, 起到有效的威慑作用, a civil penalty must recover an amount beyond the economic benefit of noncompliance. If a penalty recovered merely required the polluter to disgorge the benefit it received from noncompliance, then from a purely economic standpoint, a discharger would be indifferent between spending the money necessary to achieve full compliance in a timely manner and ignoring the regulation and simply paying the civil penalty as a cost of doing business. 参见SPIRG v. 孟山都公司., 29嫉妒代表. 中科院. (bna) 1078, 1090 (d.N.J. 1988) ("To simply equalize the economic benefit with the penalty would serve ill the possibility of discouraging other and future violations. Some additional penalty should be imposed as a sanction.").

Fr地球之友. 前者Envtl. 皇冠线上买球平台公司., 890 F. 增刊. 470 491-92 (D. S.C. 1995), 基于其他理由， 149 F.3d 303(第4章. 1998), 牧师会, 528 U.S. 167 (2000).

吉姆·朗他是彭德尔 & 皇冠线上买球平台 shareholder who focuses his practice on Water and 环境法律. If you would like to reach him with questions about Citizens’ 环境法律su它的 or other matters relating to water or environmental law, call (757) 502-7326 or send an email to jlang@chinaqinyu.com.