Permit-based monitoring reports made Clean Water Act citizen suits almost unbeatable.

Evidence

CWA enforcement, by contrast, had proven relatively easy. All that was required was to compare the discharge monitoring reports that had to be filed by the permitee with the effluent limits prescribed by the permit itself. Discharge in excess of those limits provided a prima facie case of a permit violation. All the citizen suit plaintiff (or government agency) had to do was file a complaint, along with a motion for summary judgment that included a copy of the permit and permitee’s own monitoring reports. The plaintiff was guaranteed success, meaning a recovery of substantial attorney’s fees and the violator’s facing a substantial penalty payable to the federal Treasury and possibly injunction. For this reason, many such citizen suits were readily settled, with the terms of the settlement calling for substantial payments by the defendant to support environmentally beneficial projects in addition to (or instead of) payments to the Treasury. Not surprisingly, almost all the environmental citizen suits brought in the 1970s and 1980s were based on the Clean Water Act rather than on any of the other environmental laws, including the Clean Air Act. — Richard J. Lazarus, The Making of Environmental Law, 767

Categorization

• XREF: Pays off the reader’s earlier note that federally required self-monitoring reports became the linchpin of citizen-suit enforcement (ch12 of this book).
• SHARE: A litigator or environmental-law teacher would enjoy this concrete mechanics-of-enforcement anecdote about why CWA dominated citizen suits.