Posted: Sep 16, 2010

Litigation, it has been said, is not for the faint of heart.  In environmental and natural resources law, the stakes involved in litigation can be enormous.  The fate of a species or special place, public health of a community, and even the vitality of the hard-won regulatory framework that allows for protection of such things are sometimes at stake.

The following provides a look at some points to consider before deciding to litigate, a general description of how the process works, types of relief you can expect, and resources for more information.  

Before You Begin

Pre-Litigation Notice of Intent to Sue:  A Common Prerequisite for Citizen Suits

Many federal environmental and natural resources laws, including the Clean Water Act and Endangered Species Act, require prospective plaintiffs to give notice of the nature of their intent to file a lawsuit.  This is intended to give the likely defendant an opportunity to rectify the problem before a lawsuit is filed.

For example, the Clean Water Act (CWA) generally requires a prospective plaintiff to provide written notice of an alleged violation at least 60 days prior to filing a complaint.  The notice of claim must be served not only on the alleged violator of the CWA, but also on the water quality enforcement agency in the state in which the violations are occurring and on EPA.  If an agency is the prospective defendant, then the notice of intent must be served on that agency.

Motions to Dismiss

The easiest way to avoid having a complaint dismissed is to make sure before filing the complaint that the specific claims of violations you allege are supported by the relevant statutes, agency rules, and by prior court decisions.  Plaintiffs should also be sure their complaint alleges all of the necessary elements for "standing" and that the case is "ripe" for review.  Although not necessary for the complaint, a plaintiff should also be certain that the case is not "moot". 

Under Fed. R. Civ. P. 12(b)(6) citizen suits can be dismissed without any resolution of factual disputes if the claims included in the complaint are not authorized by the relevant law. See Bell Atlantic Corp. v. Twombly


Third parties can intervene as a party in a lawsuit when they have a personal stake in the outcome but are not named a party in the suit.  The intervener sometimes sides with the plaintiff and sometimes with the defendant.  In some cases, an intervener can take a position that agrees with the plaintiff on some issues and the defendant on others, or that that takes a position at odds with both parties.  Intervention is not allowed in all cases.  In 2007, the Court of Appeals for the Tenth Circuit ruled that an environmental group may not intervene in court cases as long as the federal government is adequately defending its rights.  See here for more information about this case.
A federal court has jurisdiction to hear a case only if the plaintiff or petitioner has "standing" to raise the relevant issues in court.  Warth v. Seldin, 422 U.S. 490, 498 (1975).  In order to show standing a plaintiff must meet certain constitutional requirements and possibly some "prudential" requirements as well. 

For standing, a party must generally show that:

  1. The plaintiff has suffered, or will suffer, an injury that is concrete and particularized. The injury must be actual or imminent and not speculative, but it need not be economic.  An aesthetic injury is sufficient to support a standing claim.  See Sierra Club  v. Morton, 405 U.S. 727 (1972).
  2. The injury was caused by and can be traced to the defendant's conduct; and
  3. The relief requested will "redress" or remedy the injury claimed.

See Lujan v. Defenders of Wildlife 504 U.S. 555 (1992).

For most citizen suits and for other actions that are filed under the authority of a particular substantive statute, this is all that must be shown for standing.  If, however, a party must rely on the general provision of the Administrative Procedure Act that authorizes suits against federal agencies, then a party must also demonstrate that the injury alleged is within the zone of interests sought to be protected by the substantive federal statute that forms the basis for the claim.  See Bennett v. Spear, 520 U.S. 154 (1997).

In deciding whether a case is "ripe" for review, a court asks two questions.  First, is the case fit for judicial review?  If so, would withholding review cause hardship to the parties? See  Abbott Laboratories v. Gardner, 387 U.S. 136 (1967).  

A case challenging agency action is usually fit for review if the agency decision is final.  A hardship exists if the injury alleged could occur before the party seeking review has an opportunity to be heard in court.  So, for example, a challenge to a land use management plan on a national forest was held not to be ripe because the injury alleged stemmed from possible future logging on the forest that would not occur until the agency took some further action, which the plaintiffs could then challenge. The plan was final, but there was no hardship to the plaintiffs in having to wait to see whether objectionable logging activities might actually occur.  Ohio Forestry Ass'n v. Sierra Club, 523 U.S. 726 (1998).

A case is moot if a court decision would have no effect on the dispute, or if the court lacks an ability to provide effective relief for an injury.  A case is not moot, however, merely because a past violation of law has been corrected.  As the Supreme Court has stated, "a defendant claiming that its voluntary compliance moots a case bears the formidable burden of showing that it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur. See Friends of the Earth, Inc. v. Laidlaw Environmental Services, Inc., 528 U.S. 167 (2000).  Moreover, a case is also not moot if it is "capable of repetition, yet evading review."  See Southern Pacific Terminal Co. v. Interstate Commerce Comm'n, 219 U.S. 498, 515 (1911).

As a result of a U.S. Supreme Court decision, the CWA has been construed to forbid lawsuits based on violations that occurred wholly in the past; only continuous or intermittent violations can be the subject of a citizen suit.  Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., 484 U.S. 49, 60 (1987).  Since most citizen suits contain language similar to the CWA, this decision likely applies under other laws as well.  The Clean Air Act, however, was amended so as to allow lawsuits for past violations if there is evidence that those violations have been repeated. 

Motions for Summary Judgment

A motion for summary judgment is used to secure judicial determination of the legal merits of a case when the facts are not in dispute.  In many environmental and natural resources disputes, the use of this motion, authorized by Fed. R. Civ. P. 56, is appropriate.  This is because the "facts" are often based upon an administrative record made by a government agency before the litigation (see Problem Solving Series: Appeals).  A motion for summary judgment generally asks a court to find that the case should be decided in a party's favor even if the facts alleged by the opposing party were assumed to be true.

What to Expect in Litigation

All lawsuits are expensive and time-consuming, and all lawsuits include a significant amount of risk.  Any veteran lawyer will likely be able to tell stories about cases lost even when the law seemed to point in their direction.  Judges, like most people, do not leave their experiences, values, and politics at the door when they don the robe.  Moreover, the unpredictable nature of human interaction can sometimes have a significant impact on the outcome of legal disputes.

Of course, no one can anticipate and prepare for all of those contingencies.  The best thing a public interest advocate can do when considering a legal battle against the government, or a permit holder, is to hire an experienced lawyer with expertise dealing with the law at the core of the fight.  Once you have hired a lawyer you will need to trust that lawyer's advice and counsel.  If you lack that trust you should find a different lawyer. 

The Litigation Process

Complaint or Petition for Review
A lawsuit is initiated by filing with an appropriate court and serving a complaint on the opposing parties.  Service on a government defendant can often be executed by certified U.S. mail, though personal service may be required for non-government defendants.  A complaint lays out the basic facts of the case, claims certain violations of law, and asks the court to order an appropriate remedy.  The complaint must be accompanied by a filing fee. 

Don't Write a Novel! 

A complaint is the initial document filed with the court claiming legal rights against another.  

Many plaintiffs are tempted to write a detailed description of every aspect of their claim when they prepare a complaint. Don't.  Federal Rule of Civil Procedure 8(a) says:

A pleading that states a claim for relief must contain:

  1. A short and plain statement of the grounds for the court's jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support;
  2. A short and plain statement of the claim showing that the pleader is entitled to relief; and 
  3. A demand for the relief sought, which may include relief in the alternative or different types of relief.

If the complaint is drafted too precisely, a plaintiff might find it needlessly difficult to pursue evidence of related facts or claims during the discovery process. 

In cases challenging an agency rule, federal laws sometimes require the filing of aPetition for Review in lieu of a complaint.  Petitions for review are much like complaints, but these petitions are often heard by a panel of three judges in a federal circuit court rather than by a district or trial court.  The court reviews rulemaking decisions on the administrative record prepared by the agency.

After a complaint or Petition for Review is filed, the defendant then has a certain amount of time before filing an answer.  The answer will express points of agreement and disagreement with the allegations in the complaint, although the defendant will often disavow any knowledge of an alleged violation, leaving the issue for the plaintiff to prove.

The next phase of litigation generally involves a process called discovery.  Discovery tends to be less important in cases that involve challenges to agency decisions since those decisions are supposed to be based upon an open and public administrative record (see box) and, in theory, there is nothing left to discover.  

Generally, discovery tools include:

  • Depositions, that involve questioning possible opposing witnesses to discover what they intend to say;
  • Interrogatories and requests for admissions, which are written questions and requests that must be answered in writing by the opposing party; and 
  • Requests for document production.

The Freedom of Information Act (FOIA) can also be useful in obtaining documents.  FOIA provides a process for citizens to request documents in the possession of the government.  FOIA can be used to acquire documents that may be helpful in deciding whether to file a lawsuit. 

Trial by Jury or Decision-on-the-Record? 
Trials in natural resource and environmental cases are generally limited to cases between or among private parties.  For example, a citizen suit against a party alleged to be operating in violation of the Clean Air Act will likely require extensive discovery and a trial to develop the facts.  The trial serves to develop a judicial record on which the trial judge or jury will render a decision.  Many environmental and natural resources cases, however, are between private parties and government agencies.  These cases almost always involve an administrative record (see box).  Since the facts are derived exclusively from the administrative record, a trial is generally not allowed in these cases.  The parties will have the opportunity to argue their case before a judge, usually on both written briefs and through an oral argument.  Once briefing and arguments have been completed, the court will render an opinion. 

The Administrative Record

Many environmental disputes involve challenges to agency decisions on proposals made by the agency (e.g, to open lands for oil and gas development or to issue a permit to discharge dredge or fill material into waters of the United States) or by private parties, (e.g., to lease lands for oil and gas development or to obtain a right-of-way across public lands).  A substantial amount of public process, including the submission of applications, and the preparation of documents assessing the proposal, accompanies these decisions.  These might include detailed permit applications, preparation of environmental assessments, or preparation of biological opinions or assessments on endangered species.  Agencies may also hold formal or informal hearings on these proposals.  For permits or enforcement actions, these hearings may include a trial-like procedure where witnesses can be examined and cross-examined, and an administrative law judge renders an opinion. All of these documents, including any hearing record, are part of the public record for the agency decision, and review of an agency decision must generally be based exclusively on this administrative record.  For this reason, it is important that prospective plaintiffs pay careful attention to what is included in the record.

In private litigation (between two private parties), factual findings will be made on the basis of the preponderance of the evidence.  In litigation against a government agency, courts are generally deferential to the agency.  Under the Chevron case (see Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc, 467 U.S. 837 (1984))for example, an agency's interpretation of an ambiguous statute is given substantial deference.  Decisions for which agencies have discretion are generally upheld unless the agency acted in a manner that is arbitrary and capricious, an abuse of discretion, or otherwise inconsistent with the law. 

In a typical case against a government agency, the plaintiffs will request "equitable" or "injunctive" relief.  Equitable relief may include:

  1. A preliminary (while the case is pending) or permanent injunction, prohibiting the agency from taking certain action;
  2. Mandamus, which involves an order to the agency to take a particular action; or
  3. Declaratory relief, describing the legal obligations of the agency, with the expectation that the agency will comply with those obligations. 

In order to obtain either a preliminary an injunction the plaintiff must demonstrate: 

  1. That there is a substantial likelihood of success on the merits of the case;
  2. That the plaintiff faces a substantial threat of irreparable injury if the injunction is not granted;
  3. That the balance of harms favors the party seeking the preliminary injunction; and
  4. That granting the injunction serves the public interest.

See Greater Yellowstone Coalition V. Flowers, 321 F.3d 1250, 1255 (10th Cir. 2003).  A permanent injunction is granted under similar criteria.

Equitable remedies stand in contrast to legal remedies, which typically involve the award of money damages.  Cases seeking damages are often between or among private parties.  Damages can be awarded to compensate a party for their injury or to punish the person who caused the injury, if the perpetrator acted in a way that was intentional or grossly negligent.  Damages against the government are only available where the government has waived its sovereign immunity from suit.  Damage suits against the federal government can generally be filed only in the Court of Federal Claims in Washington, D.C.  In the environmental context, these claims often involve an allegation that some government regulation or program has resulted in a "taking" of private property for a public use without compensation.   

Under the American legal system parties generally pay their own legal fees.  This stands in contrast to the legal systems in many other parts of the world, including Great Britain, where the loser pays the winner's legal fees.  Some American environmental laws, however, including the Clean Air Act,the Clean Water Act, and the Endangered Species Act, have a provision that essentially allows a prevailing plaintiff to recover fees against the government or private polluter, if the plaintiff wins.  Generally, the plaintiff does not have to pay the defendant their attorneys fees if they lose.  This "one-way" "fee-shifting" provision is designed to encourage private citizens to bring actions to enforce the law without having to fear paying attorneys fees to the federal government or private polluter. 


U.S. Supreme Court 
Official web site of the Supreme Court including links to the docket, Court rules, Opinions, and Orders.

Federal Court System 
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National Center for State Courts
Resources for judges, court administrators and court community constituents.

U.S. Department of the Interior Freedom of Information Act Program
Information about FOIA in the Department of the Interior and its bureaus. 

U.S. Forest Service Freedom of Information Act site 
Information about FOIA in the U.S. Forest Service.

EPA Freedom of Information Act site 
Information about FOIA in the EPA.

U.S. Department of the Interior Office of the Solicitor 
Information about the office that performs the legal work for the Department of the Interior and all other bureaus in DOI.  

U.S. Department of Agriculture's Office of the General Counsel 
Information about the office that provides legal advice and services to the Secretary of Agriculture and to all other officials and agencies of the Department, including the U.S. Forest Service. 

Public domain legal search engine including federal cases and the United States Code.

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Red Lodge Clearinghouse - Know the Law 
The major federal natural resource and environmental statutes, outlining the provisions most likely of interest to Clearinghouse constituents.

Hank Lacey, former attorney and current freelance writer and Mark Squillace, Director of the Natural Resource Law Center contributed to this article.

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