"Creativity knows no bounds when it comes to citizen suits." Truer words have never been spoken. But I long for the old days when one could read a law or a regulation and determine exactly what was necessary to avoid backbreaking litigation costs and astronomical penalties. Sadly those days were decades ago when it comes to the amorphous Federal Clean Water Act and the ebb and flow of EPA efforts to define its scope.
In the Maui decision the United States Supreme Court offers its jurisprudential take on Bobby McFerrin's admonition "don't worry, be happy". If a citizen suit plaintiff succeeds in getting a federal judge to adopt an interpretation of the Clean Water Act different than what EPA, your state environmental regulators, or your lawyer might say about what the law requires, Justice Breyer and those who joined him in the Court's opinion are sure the Judge will go relatively easy on you in assessing the cost of your misfortune. The Court says nothing about the hundreds of thousands of dollars you might spend to get to that moment.
All of this is little comfort to the recipient of a citizen suit notice. But, to paraphrase the great stand up comedian Chris Rock, the citizen suit plaintiffs are just doing what they do, just like tigers. And until Congress resolves the longest running controversy in environmental law, confusion and litigation will reign.
Thanks Lara Beaven and Inside EPA for continuing to cover this mess.
“Creativity knows no bounds when it comes to citizen suits,”