Notable Citizen Suit Matters

• Successfully leveraging the diligent prosecution bar to stave off an NOI to file a citizen suit by Sierra Club and other plaintiffs’ groups alleging hundreds of violations of the Clean Air Act (CAA) at a major Texas oil refinery. We reached settlement favorable to the client in the parallel enforcement action brought by the State of Texas. Our strategy, which made press headlines, likely prevented other plaintiffs, including Harris County, from bringing other citizen suits on similar grounds.

• Representing a major oil company in a citizen suit filed by an environmental NGO alleging novel theories that it violated the Clean Water Act (CWA) and the Resource Conservation and Recovery Act (RCRA) by failing to adapt to risks posed by climate change. Specifically, the suit alleges that a CWA permit implicitly requires preparation for future climate change risks (e.g., sea level rise, increased precipitation, etc.) and the alleged failure to prepare presents an imminent and substantial endangerment under RCRA.

• Defending BNSF Railway in the largest environmental citizen suit, by dollars of relief sought, in U.S. history. In a case of first impression, Plaintiffs sought to limit the rail transportation of coal by seeking CWA penalties for alleged fugitive coal dust from all BNSF rail cars and trains passing through Washington, regardless of whether the dust was visible or measurable. The statutory maximum penalty under the CWA for the allegations in the complaint exceeded $3 trillion. Settlement was reached following a week of trial.
• Securing dismissal of a ground-breaking RCRA citizen suit filed against a major oil and gas company in federal district court in Oklahoma in which the Sierra Club’s lawsuit suit under RCRA alleged that injection of oil and gas production wastewater in underground wells by oil and gas companies caused earthquakes that endanger the public – the first case to allege that earthquakes are a cognizable harm under the RCRA citizen suit provisions. The court sided with our client under the Burford abstention and primary jurisdiction doctrines.
• Defending the City of Newark in a high-profile Safe Drinking Water Act (SDWA) citizen suit led by the Natural Resources Defense Council (NRDC). The B&D team defeated two preliminary injunction efforts by NRDC, NRDC settled for Newark’s agreement to continue lead remediation efforts and received no attorney fees. AmLaw Litigation Daily recognized the B&D team representing Newark as “Litigators of the Week.”
• Achieving a major victory over NRDC, the Sierra Club, and others who sought in a CWA citizen suit to overturn the approval of the Metropolitan Water Reclamation District of Greater Chicago’s $3.7 billion CSO Long-Term Control Plan. The case was affirmed unanimously on appeal to the U.S. Court of Appeals for the Seventh Circuit holding that, under the CWA’s citizen suit provisions, the government parties’ consent decree constituted reasonable, diligent prosecution that bound private litigants attempting to litigate the same matter. 
• Defending a major oil company’s two refineries in two separate citizen suits involving air emissions. In both instances, we quickly negotiated settlement with the relevant state agencies regarding the issues raised by the citizens’ claims and then sought dismissal of the citizen suits on res judicata and statutory (i.e., diligent prosecution) grounds. The court dismissed one of the suits; we settled the other for a nominal payment to an environmental fund.

Other Clean Air Act Citizen Suits Examples

• In a case of first impression, defending a major international transportation company in a multi-million-dollar CAA citizen suit brought by the Conservation Law Foundation under the federal CAA and Massachusetts law. The lawsuit alleged numerous violations of vehicle idling rules and sought novel enforcement of those requirements through a citizen suit. We represented our client before the U.S. District Court for the District of Massachusetts and achieved a favorable settlement with the Conservation Law Foundation in which our client admitted no liability.
• Successfully defending a permit issued by the New Hampshire Division of Air Resources against a citizen suit alleging that the permit was issued in violation of federal and state laws.
• Defending a major energy producer in an environmental citizen suit asserting violations of RCRA. We managed all aspects of this case, including fact and expert discovery, and prevailed on summary judgment. Our client was awarded its attorneys' fees.

Other Clean Water Act/Safe Drinking Water Act Citizen Suits Examples

• Representing the City of Rye, NY in citizen suit litigation concerning alleged sewer overflows from systems owned by Rye, ten other municipalities, and Westchester County.We assisted the parties with organizing themselves and prepared the framework of specific court-ordered stipulations that govern the parties’ studies and planning to improve their systems.
• Defending the Washington Suburban Sanitary Commission (WSSC) in a CWA citizen suit alleging unlawful discharges of pollutants from WSSC’s Potomac Water Filtration Plant, which was resolved through a consent decree that provided WSSC with certainty regarding material terms of a new NPDES permit and a ten-year schedule for improvements to the Plant.
• Defending one of the Northwest’s largest marine terminals in an ongoing CWA enforcement proceeding, while simultaneously defending a citizen suit for claimed NPDES permit discharge violations and supporting the client’s lease negotiations with the regional port authority.
• Resolving favorably one of the first citizen suits brought under the CWA. The case broke ground on the use of a Special Master as mediator in private environmental enforcement actions. The case was settled on favorable terms after the complaint was filed and where no discovery was necessary.
• Resolving favorably a major citizen enforcement action for alleged failure to comply with a consent decree obligation to construct a $200 million wastewater treatment facility. Settlement reduced the cost of the facility by half, secured funding from the Commonwealth of Massachusetts for over 60% of the reduced cost, and included forgiveness of the state penalty, with only a minimal federal penalty assessment.
• Defending an energy company in a citizen suit brought under the CWA by the California Sportfishing Protection Alliance. The Firm negotiated an agreement with nominal contribution and no citizen control of ongoing responses to excursions. This agreement is a model which is now being used by other defense counsel in similar cases.
• Defending a $2.6 billion infrastructure project in Virginia against a local citizens’ group and the University of Virginia Law School clinic that alleged violations of the CWA. We reached a negotiated settlement with the Commonwealth which precluded the citizens from filing their lawsuit.
• Representing a major manufacturer in the defense of a CWA citizens’ group alleging violations of stormwater permitting requirements at an industrial facility in California. We were successful in obtaining a low-penalty resolution, relatively simple and low-cost future monitoring requirements, and a contribution to a fund for environmental improvements in the San Francisco Bay.

Other Resource Conservation & Recovery Act/Waste Citizen Suits Examples

• Defending numerous RCRA citizen suits, including prevailing on a motion to dismiss on primary jurisdiction grounds in a putative class action brought by approximately 100 property owners alleging perchlorate contamination of drinking water.
• Serving as counsel to a Fortune 500 metals recycling company in defending citizen suits in four states, which assert that stormwater discharges from nine recycling facilities violate the states’ Multi-Sector General Permit (MSGP) requirements. The cases involve complex technical, operational, and environmental issues, within the context of four slightly divergent sets of requirements under the different MSGPs. In addition to serving as primary litigation counsel, we supported the company in negotiations with the plaintiff NGO, assisted in management of consultants, and advised on compliance with each state’s MSGP.
• Favorably resolving the case Don’t Waste Arizona, Inc. v. Parker, in a settlement that yielded a small Supplemental Project, and minimal other expenditures for the town and its joint venture partner, the Colorado River Indian Tribes.
• Securing dismissal in federal district court of sweeping RCRA claims against a manufacturing client alleged to have contributed to regional groundwater PFAS contamination because of flaws identified by B&D in a RCRA notice of intent letter.