Conflicting Enforcement Mechanisms Under RCRA

Abstract

In enacting the Resource Conservation and Recovery Act, Congress granted enforcement authority to the Environmental Protection Agency and state governments as well as to ordinary citizens under the citizen suit provision. These enforcement mechanisms often overlap and sometimes conflict, especially in circumstances of dual-track enforcements that occur simultaneously. Federal circuit courts rarely review such cases; however, three separate circuits recently addressed citizen suits in a manner that may significantly affect the balance between citizen and state enforcement under the statute. All three courts refused to dismiss citizen suits despite previously filed state agency actions. Each court also overturned lower court decisions to abstain from exercising federal jurisdiction that would have allowed state agencies to handle the matter in state court. This trend solidifies the power of the statute’s citizen suit provision and may have tremendous implications on a state’s ability to set and maintain its own waste disposal policy. This Note argues that courts must be mindful of the enforcement mechanisms set up by the statute and thus must leave open the opportunity for state agencies to foreclose dual-track enforcements to ensure that citizen suits do not supplant governmental action. In particular, state agencies should be able to maintain the ability to request that courts abstain from exercising jurisdiction over citizen suits in those cases in which the state agency is truly diligent in pursuing its own enforcement action. States can protect this option by enhancing the process for citizen input during enforcement policy decision making. In particular, states should require that agencies expand consideration of citizen perspectives before filing suit in agency enforcement actions.