How Citizens' Environmental Lawsuits Can Stop Pollution - September 2015
The U.S. Environmental Prot环境保护局(“EPA”)和弗吉尼亚州环境质量部(“DEQ”)负有执行弗吉尼亚州环境法律法规的主要责任. There are times, however, 当EPA或DEQ不愿意或不能对污染水源的污染者采取行动时, air or land in violation of environmental law. 有时政府没有采取行动，因为遭受污染的社区并不富裕, hence, does not enjoy a high degree of responsiveness from elected or appointed government officials. Other times, 政府官员之所以没有采取行动，是因为他们认为所投诉的违法行为与这些官员决定追究的其他违法行为相比“微不足道”. 当政府拒绝采取行动时，无论出于何种原因，公民环境诉讼都发挥了重要的执法作用，可以制止污染, force the polluter to clean up the contamination, pay a monetary fine, and reimburse the citizen who brought the suit for his or her litigation expenses. As one Court wrote:
[C]itizens' suits . . . play [an important role] in the enforcement of [the environmental laws]. The EPA must classify cases in order to maximize its scarce enforcement resources. There are some violations that, by necessity, may not be pursued aggressively. However, (环境)违规对一个不住在违规危险废物处理设施附近的人来说只是“小”. Indeed, [公民环境诉讼]证明了国会的智慧，他们认识到那些居住在危险废物设施附近的人往往是[环境法]授权的最勤奋的执行者.
Sierra Club v. Chem. Handling Corp., 824 F. Supp. 195, 197-98 (D. Colo. 1993).
A pro具体授权公民环境诉讼的设想写入了各大环境保护法规;
The Clean Water Act provides for Citizens’ Environmental Lawsuits at 33 U.S.C. § 1365;
The Clean Air Act provides for Citizens’ Environmental Lawsuits at 42 U.S.C. § 7604; and,
The Resource, Con《现金网官网》(又名《现金网官网》)规定了公民的环境诉讼.S.C. § 6972.
A recent case brought by thre在怀斯县的凯利分支和卡拉汉河，有几个公民团体反对一家煤矿的所有者污染水源, Virginia, illustrates the powerful results that can be accomplished in a Citizens’ Environmental Lawsuit. The citizens groups filed their legal action in the U.S. District Court for the Western District of Virginia: Southern Appalachian Mountain Stewards v. A&G Coal Corporation, case no. 2:12cv000009 (W.D. Va. complaint filed May 3, 2012). 公民团体提起诉讼是因为他们发现该公司在未经环境保护局许可的情况下向凯利分行和卡拉汉河排放有毒污染物硒. The EPA confirms that selenium reduces survival and causes skeletal deformities in fish (click here). The citizens groups in the Southern Appalachian Mountain Stewards case, prior to filing the legal action in court, 通过向两个政府机构发出正式的书面通知，让EPA和DEQ了解了煤矿的硒超标情况. The service of such formal written notices, and a 60 day waiting period, are required prior to filing a Citizens Environmental Lawsuit. For whatever reason, the EPA and the DEQ took no action, after which the citizens group filed their complaint with the Court. In the complaint, 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 the United States in an amount up to $37,500.00 per violation per day, and to pay the citizens groups for their costs of the litigation.
On July 22, 2013 the U.S. 地方法院裁定该公司违反了《现金网官网》，将有毒污染物硒排放到这两个水体中, just as the citizens groups had alleged. 法院命令该公司在公民团体建议的地点和时间表对凯利分行和卡拉汉溪进行硒采样, as well as to provide the results of this sampling to the DEQ and to the citizens groups. 它还命令该公司向环境保护局申请其硒排放许可证，并定期向法院提供书面报告，说明该公司在获得所需许可证方面的进展(并向公民团体提供一份报告副本)。. Additionally, as requested by the citizens groups, 法院将对该公司因其违法行为而施加的民事处罚的审议推迟到该公司最终获得许可的时候.
On October 2, 2014, the Court ordered the corporation to pay the citizens groups $175,623.18 as a reimbursement for their costs of the litigation.
The corporation filed its most recent status report on February 6, 2015, indicating in its 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 its permit.
Because of the success of the Citizens Environmental Lawsuit filed in the U.S. District Court, 在DEQ敲定公司许可证的条款时，这些公民团体将有一席之地. This puts the citizens groups in a position they would not otherwise have occupied, 在签发许可证的过程中担任监察人员，确保环境卫生署在许可证中加入适当的条件，要求公司减少污染，以保护凯利支流和卡拉汉河的水域.
Additionally, and again because of the success of the Citizens Environmental Lawsuit filed in the U.S. District Court, the citizens group will return to the U.S. District Court when the permit is (at last) issued, 届时市民团体将计算该公司违反《现金网官网》的天数. 第一次违规日期将是2011年公民团体首次发现污染违规行为的日期. 最终日期将是2015年或更晚的某个日期，届时该公司将最终获得DEQ的许可. Once the number of days in violation have been determined, 该公民团体将要求法院命令该公司向美国支付最高37美元的民事罚款,500.00 per violation per day.
The im强制污染者支付适当的民事罚款的重要性对法律的有效性至关重要, as was explained by the U.S. District Court for the District of South Carolina when it imposed a $405,800.00 civil penalty on a polluter for its Clean Water Act violations. The Court there wrote:
The court in PIRG v. Powell Duffryn Terminals, Inc., 720 F. Supp. 1158 (D.N.J. 1989), aff'd in part, rev'd in part, 913 F.2d 64 (3d Cir. 1990), cert. denied, 498 U.S. 1109 (1991), explained well the purposes behind civil penalties:
Civil penalties seek to deter pollution by discouraging future violations. To serve this function, 民事罚款的数额必须足够高，以确保污染者不能简单地把罚款当作做生意的成本来吸收. Otherwise, a rational profit maximizing company will choose to pay the penalty rather than incur compliance costs. Additionally, 实施处罚的可能性必须足够高，这样污染者才不会选择接受违规不受惩罚的风险.
Id. at 1166, (citations omitted). Similarly, 只有去除违规行为的经济利益，民事处罚才能确保违规者不获得经济利益 vis-a-vis its competitors who comply in a timely fashion with all environmental regulations. PIRG v. Powell Duffryn Terminals, Inc., 913 F.2d at 80 (quoting S. Rep. No. 50, 99th Cong., 1st Sess. 25 (1985)).
Actually, to serve as an effective deterrent, 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, 排放者在及时支付必要的资金以实现完全合规和无视监管并仅仅支付民事罚款作为经营成本之间，将是漠不关心的. See SPIRG v. Monsanto Co., 29 Env't Rep. Cas. (BNA) 1078, 1090 (D.N.J. (1988)(“简单地将经济利益与惩罚等同起来将无助于阻止其他和今后的违法行为. Some additional penalty should be imposed as a sanction.").
Friends of the Earth v. Laidlaw Envtl. Servs., 890 F. Supp. 470 491-92 (D. S.C. 1995), rev'd on other grounds, 149 F.3d 303 (4th Cir. 1998), rev'd, 528 U.S. 167 (2000).
Jim Lang is a Pender & Coward shareholder who focuses his practice on Water and Environmental Law. 如果您有关于公民环境诉讼或其他与水或环境法有关的问题，请联系他, call (757) 502-7326 or send an email to jlang@tafinancial.net.