Citizen Suit Defense

Why B&D?

B&D’s top-ranked national environmental litigation practice brings decades of experience litigating citizen suits and similar cases brought by environmental non-governmental organizations (eNGOs) and the plaintiffs’ bar. These unique cases require sophisticated environmental counsel and specialized tactics to mount effective defenses and protect corporate interests. Our citizen suit teams know the eNGO playbook and how to defeat it by combining our deep regulatory knowledge, litigation strength, relationships with agency enforcers, and fluency in the science of our clients’ operations to mount persuasive legal arguments that give our clients a decisive edge.

We mobilize multifaceted strategies quickly in the face of these high-stakes lawsuits, in which the plaintiffs seek to try the case in the media and where unfavorable rulings could result in significant financial liabilities or undesirable injunctive relief. We excel in cases that pose novel theories of liability, and we know how to marshal substantive and procedural arguments alongside scientific and technical evidence in response to citizen suit allegations. Our ability to navigate federal and state environmental agency enforcement processes – including from the career government experience of many of our lawyers – also benefits our clients.

Our Approach

With more than 170 lawyers nationwide focused on environmental law and litigation, our teams work regularly with – and bring unmatched depth in defending and resolving citizen suits brought under – environmental statutes including the Clean Air Act, Clean Water Act, Safe Drinking Water Act, Resource Conservation & Recovery Act, Toxic Substances Control Act, Comprehensive Environmental Response, Compensation, and Liability Act, and Endangered Species Act.

We take a strategic approach to handling citizen suits. Because stakes are high and each case is nuanced, companies need nimble, creative, and aggressive representation. Our approach combines:

• Proactive Prevention. Before the Notice of Intent (NOI) even lands, we provide clients with comprehensive plans and strategies to reduce enforcement and citizen suit risk. We closely monitor activities of the environmental plaintiffs’ bar to provide clients with early warnings on how to anticipate and respond to citizen enforcement.
• Engagement with Regulators. Our clients benefit from the longstanding relationships our team has built with federal, state, and local agencies, giving us valuable insight into how regulators think. In the compressed time frame of a citizen suit, we help company decision makers quickly understand the intricacies of the statutes and regulations and assist them in considering defense strategies, including considering options to pursue agency intervention to stave off the suit. Our citizen suit clients benefit from the seamless collaboration between our litigators and regulatory subject matter experts – a characteristic that sets B&D apart from other firms. Indeed, achieving success in environmental citizen suit defense relies on nuanced definitions and interpretations of the underlying environmental statutes.
• Robust Pre-Litigation/NOI Response and Litigation Strategy. We engage immediately upon NOI receipt in a suite of activities designed to head off the suit or to minimize its impact if brought. In cases that proceed, we defend our clients aggressively, utilizing dispositive motions and other techniques to narrow the scope of discovery and blunt the case. If clients desire, we work towards favorable settlements. Otherwise, we prepare to litigate forcefully and aggressively to secure our clients’ goals. Because B&D attorneys frequently represent clients in litigation, rulemaking, and permitting matters against eNGOs and citizen groups, we know their goals and lines of attack against industry, and how to exert maximum pressure to thwart their efforts and resolve citizen suits favorably.
• Protecting the Business. Acknowledging the impact of environmental litigation – even baseless allegations often made in preliminary citizen suit filings – on brand reputation, B&D offers comprehensive support for our clients’ external engagement and communications strategies. We coordinate with media and PR teams to proactively manage public perception, counter opponents’ narratives, and safeguard the company’s reputation and brand integrity.

Thought Leadership

B&D’s leadership on citizen suits includes numerous resources to help companies anticipate and manage these complex cases.

• The Citizens Are Coming: Citizens Groups Are Better Funded Than Ever and Will Take Over Where Biden Left Off
• What to Do If You Get a Notice of Intent to Sue from an eNGO
• Ten Strategies to Use When eNGOs FOIA EPA to Prepare for Citizen Suits
• Preparing for a Wave of Citizen Suits in Texas – Ten Tips for Protecting Sensitive Information from Disclosure Under the Texas Public Information Act

We have also developed citizen suit training programs that we tailor for clients. Please contact Madeleine Boyer or your usual B&D contact for copies of these materials or to discuss a training session for your legal and business teams.