If you do business in Washington and your business is covered by either a general NPDES permit or a site-specific NPDES permit, chances are, sooner or later, you will receive a 60-day notice letter from a lawyer representing one of the local environmental groups threatening suit for alleged violations of those permits.
Many times, these letters are followed by suits being filed, and then negotiating a quick settlement for the alleged violations. Those settlements usually involve three payments by the permit holder, one to a local environmental organization, a nominal amount for expert costs incurred by the plaintiff, and then the plaintiff’s attorney fees.
These suits have turned into big business in Washington state and elsewhere in the country. I got curious the other day and decided to look up the case history for the Western District of Washington to see just how big an impact these cases have on local businesses, and to understand what percentage of environmental cases are Clean Water Act citizen suits. I went back a few years, and here is what I found:
In 2007: 36 out of 48 environmental suits filed in the Western District were Clean Water Act citizen suits.
In 2008: 16 out of 43 cases were Clean Water Act citizen suits.
2009: 11 out of 24.
2010: 9 out 0f 31.
2011: 23 out of 39.
And, for the first quarter of 2012, 10 out of 13 environmental matters are Clean Water Act citizen suits. Obviously, these are only the cases that get filed, and do not include numerous others that are settled.
This is an impressive body of litigation–mostly by one law firm here in Seattle. Most are for minor technical violations of water quality permits, and most are settled for modest sums (tens of thousands of dollars) simply because fighting the suits will cost more in attorney fees than settling the suits. For more on these types of suits and the debate surrounding them, I’d recommend reading this transcript from a congressional hearing in 2004.
Citizen suit provisions in environmental laws are a fundamental component of our regulatory scheme–and certainly can serve an important role where regulators are ignoring particularly flagrant violations of environmental laws. But, many of these suits do not fall into the category of correcting real harm to the environment. Rather, they are based on relatively technical violations of water quality permits, and are valued in a way that forces the defendant to make a rational decision to settle for a sum less than the cost of litigating the matter. Settlements of these types of suits usually involves a nominal payment to the plaintiff environmental group, payment of expert fees incurred by the plaintiff, and payment of the plaintiff’s attorney’s fees.
Ultimately, I doubt these types of cases are making real differences in the water quality. I don’t fault the plaintiffs for bringing these suits because the regulatory scheme is somewhat of an ecosystem, and these plaintiffs have certainly found a niche in which to thrive. And, there are certainly instances where some citizen suits have brought about real change in the environment.
But, given the nature of these particular types of citizen suits, I think some regulatory reform makes sense here. At the bare minimum, I’d like to see some transparency regarding where and how settlement proceeds are spent–and what proportion went to environmental improvement projects. Oftentimes, this is a requirement of the consent decree entered in settling these types of cases, but there really isn’t an easy way for the public to track how settlement proceeds are spent. Some of the plaintiff groups don’t even have websites, and some list as addresses the law firm that is the leader in pursuing these cases. A prevailing party attorney fee provision may go a long way as well in terms of tamping down on questionable suits.