2. Regulatory Enforcement & Citizen Suits in the New Administration
40th Annual AGA Legal Forum
July 9-11, 2017
San Diego, CA

3. Topics
What is the origin, purpose, and basic structure of citizen suit statutes?
What are the common issues that arise in citizen suit litigation?
What are the citizen suit provisions and cases that may be of interest to the pipeline industry?
What role will citizen suits play in the new administration?

4. Background

5. Background
Purpose. Citizen suits supplement government law enforcement efforts by encouraging private attorneys general to enforce environmental, health, and safety laws.
Origins. Congress enacted the first citizen suit provision in section 304 of the Clean Air Act (CAA) of 1970.
Subsequent Provisions. Citizen suit provisions are now included in many other environmental, health, and safety statutes.
Structure. Provisions are generally modeled on the original CAA citizen suit provision, although there may be differences in the causes of action allowed, the rights afforded to the parties, and the relief available.

6. Common Litigation Issues

7. Common Litigation Issues
Constitutional. The most common constitutional issues that arise in citizen suit litigation are standing and mootness.
Standing. Citizen suit plaintiff must satisfy the Article III standing requirement, i.e., they must suffer an injury in fact that is fairly traceable to the challenged conduct of the defendant and which is likely to be redressed by a favorable judicial decision.
Mootness. A citizen suit case can become moot if subsequent events make absolutely clear that the allegedly wrongful conduct is not likely to recur.

8. Common Litigation Issues
Statutory Requirements. Citizen suit statutes only provide the federal district courts with jurisdiction if certain procedural and substantive requirements are met.
Violators. Enforcement-type action can generally be brought against any person, including a governmental entity, who commits an alleged violation while engaged in a regulated activity.
Violations. While wholly past violations are generally not cognizable, good faith allegations of continuous or intermittent violations may suffice. A regulator’s failure to properly administer a statute is not a violation.

9. Common Litigation Issues
Statutory Requirements (continued).
Prior Notice. Designed to provide the violator and regulator with the opportunity to achieve compliance without resort to litigation.
Timing. In most cases, must be provided to the violator and the regulator 60 days prior to filing a citizen suit.
Content. Must provide recipient with sufficient information to identify and terminate the alleged violations.
Compliance. Court must dismiss a citizen suit if notice if plaintiff fails to comply with the prior notice requirement.

10. Common Litigation Issues
Statutory Requirements (continued).
Diligent Prosecution. Provides the government with a right of first refusal to initiate an enforcement action. Citizen suit statutes vary as to whether judicial and administrative proceedings suffice.
Remedies and Relief. Citizen suit statutes allow for injunctive relief and some allow for the imposition of civil penalties. The plaintiff must have standing for each form of relief sought.
Attorney Fees and Costs.

11. Pipeline Industry Citizen Suits

12. Pipeline Industry Citizen Suits
Pipeline Safety Act. Citizen suit provision in 49 U.S.C
Cause of Action. Only authorizes enforcement-type action against persons who commit alleged violations.
Prior Notice. Plaintiff must provide the Secretary of Transportation or the appropriate State authority and the violator with notice of the alleged violation 60 days prior to filing a citizen suit.
Diligent Pursuit. Citizen suit is precluded by diligent prosecution in a judicial or administrative proceeding.
Relief. Court may only award injunctive relief.
State Violations. Jurisdiction exists only to the extent that a state pipeline safety standard is not more stringent that its federal counterpart.

13. Pipeline Industry Citizen Suits
Clean Air Act. Citizen suit provision in 42 U.S.C
Causes of Action. Authorizes enforcement-type actions, mandamus-type actions, and permit-related actions.
Prior Notice. Plaintiff must provide 60 days prior notice for enforcement-type and mandamus-type actions.
Diligent Prosecution. Only includes a specific reference to “court” proceedings and may not apply to administrative proceedings.
Relief. Court can award injunctive relief, civil penalties, and litigation costs.

14. Pipeline Industry Citizen Suits
Clean Water Act. Citizen suit provision in 33 U.S.C
Causes of Action. Authorizes enforcement-type actions and mandamus-type actions.
Prior Notice. Plaintiff must provide 60 days prior notice for enforcement-type and mandamus-type actions (with exceptions for violations relating to sections 1316 and 1317(a)).
Diligent Prosecution. Only includes a specific reference to “court” proceedings and may not apply to administrative proceedings.
Relief. Court can award injunctive relief, civil penalties, and litigation costs.

15. New Administration

16. New Administration Will role will citizen suits play?
Regulatory review
Federal budget and staffing impacts
Fundraising and increased activism from opposition groups
What about other issues?
New legal theories
Concerns with sue & settle
Mandamus provision in Pipeline Safety Act

17. Questions