11th CircuitCross-posted at WLF’s Forbes.com contributor page

Filing “citizen suits” is a major component of environmental activist groups’ business model. They raise revenue through fee-shifting provisions in federal laws; are an influential policy-making device, as reflected by the rise in so-called sue-and-settle agreements with federal agencies; and are a powerful fundraising tool. The federal government even “subsidizes” these organizations’ litigation activities through efforts like the U.S. Environmental Protection Agency’s (EPA) “ECHO” database, which helps activists determine when regulated entities are out of compliance with environmental laws.

Contrary to the desire of activist groups and their fellow travelers at EPA, federal laws like the Clean Water Act (CWA) reflect Congress’ intent that such litigation “supplement rather than supplant governmental action,” as the Supreme Court put it in Gwaltney v. Chesapeake Bay Fndt. A recent U.S. Court of Appeals for the Eleventh Circuit ruling firmly advanced this point and closed a perceived loophole in the CWA which activists had sought to exploit for new revenue.

Black Warrior Riverkeeper v. Black Warrior Minerals involved a coal mine’s alleged violation of federal “new source performance standards.” Black Warrior Riverkeeper and other “citizens” served the company as well as federal and state officials with notice that Black Warrior Minerals was violating both new source performance standards and its mine permit. Eleven days later, the citizens filed suit under the CWA alleging only new source performance standard violations. Why did they sue based only on those violations, and not also for the permit violations? Because the CWA requires 60 days notice prior to filing suit for all violations except for breaches of new source performance standards. But as the defendant pointed out to the federal district court, the new source performance standards were incorporated into the permit.  The district court ruled that the plaintiffs could not evade the 60-day notice requirement and awarded summary judgment to Black Warrior Minerals.