No Comparison: Barring Citizen Suits in Dual Enforcement Actions
speaking, there is no comparison or is there? This is one question pondered recently by federal courts in an attempt to formulate a test for determining whether state water pollution control laws are comparable to the federal Clean Water Act (CWA) for purposes of barring citizen suits. See McAbee v. Fort Payne, 318 F.3d 1248 (11th Cir. 2003) (adopting the "rough comparability" test) Under the CWA, individuals or groups of citizens may sue alleged violators in federal court after providing the requisite notice to the U.S. Environmental Protection Agency (EPA) the appropriate state agency, and the alleged violator. Problems arise when citizens bring actions against an alleged violator and the applicable state environmental agency has already commenced an administrative enforcement action for the same alleged violations. In order to prevent the burden imposed by dual actions for the same violations, Section 309(g) of the CWA, 33 U.S.C. SSSS 1319(g)(6) bars citizens from filing suit if, among other things, the state is diligently prosecuting an administrative penalty action under a "State law comparable" to the CWA's administrative penalty provisions. In addition to Section 309 (g) there are other statutory and extrastatutory bars to citizen suits. These statutory bars have in some instances been interpreted in widely disparate manners by the courts. For example, two circuit courts of appeal have recently reached diametrically opposed interpretations of the meaning of "comparable" in the context of CWA citizen suits. Compare McAbee v. Fort Payne, 318 F.3d 1248 (1 lth Cir. 2003) with Lockett v. EPA, 319 F.3d 678 (5th Cir. 2003) If there is one thing on which the courts do agree, or at least pay consistent lip service to, it is the underlying rationale for citizen suits. The CWA contemplates that state and/or federal agencies have primary enforcement authority and citizen enforcement simply acts as a backstop to ensure adequate enforcement. See North South Rivers Watershed Ass 'n u Sdtuate, 949 F.2d 552, 555 (1st Cir. 1991) (stating,"The primary function of the provision for citizen suits is to enable private parties to assist in enforcement efforts where Federal and State authorities appear unwilling to act" The limitation on citizen suits when the government is diligently prosecuting an action "suggests that the citizen suit is meant to supplement rather than to supplant governmental action." Gwaltney of