Q: There is a manufacturing facility close to my home that is polluting the air I breathe. Is there anything I can do about it?
A: Yes. Both the Clean Air Act and the Clean Water Act provide that private citizens can sue polluters if the government does not take action against the polluters. These suits are known as “citizen suits.”
Q: What must I do to sue a polluter?
A: To begin, you must first provide notice to the U.S. EPA, the Ohio EPA (if you live in Ohio), and to the polluter. Your notice must identify the facility you believe has violated the law, and which violations of law you believe the polluter has committed. You also must state what type of relief you expect to receive.
Q: What happens after I notify everybody?
A: Once the citizen suit notice provision is triggered, you must wait at least 60 days before taking any kind of enforcement action. This is to allow the appropriate federal and state authorities the time to decide if they want to bring an enforcement action. If they decide to take enforcement action, then you cannot sue under the citizen suit provisions. If they do not take action, then you can proceed with your citizen suit.
Q: Can a citizen expect to get a polluter to comply with the law?
A: Yes. A citizen who brings an action under either the Clean Air or Clean Water Acts is entitled to an injunction (a court order) to get the polluter to comply with the law. For example, if the polluter is operating without having the required permit, it will be required to get one. If the facility is not already minimizing or reducing its pollution, it must take action to do so under an injunction. In addition, the polluter may be required to pay a civil penalty to the government. Finally, a citizen who wins a suit against a polluter is entitled to get his or her attorney fees paid by the polluter.
Q: Assuming I’ve given the 60-day notice and the government does not bring action itself, what must I do next?
A: You must draft a complaint and file it in an appropriate United States District Court. Once you have filed the complaint and it has been served on the polluter, the polluter then has 20 days to file an answer to the complaint.
Q: How does such a case get resolved?
A: Usually, citizen suit cases are resolved by what is known as a Consent Decree. This means that the parties settle the suit along terms that are acceptable to both parties. Consent Decrees usually indicate how much money needs to be paid to the government for the pollution, when permit applications must be submitted and issued, what the timetable is for when the pollution must be minimized or eliminated, and how much the polluter needs to pay in attorney fees.
This "Law You Can Use" consumer legal information column was provided by the Ohio State Bar Association (OSBA). It was prepared by David G. Cox, of counsel with the Columbus firm of Lane, Alton & Horst LLC.