Under both state and federal law here in New Jersey, parties are entitled to file lawsuits against polluters using the environmental laws of the state. These cases are frequently called citizens suits, and in these cases private citizens act in the stead of the Attorney General and enforce state and federal laws usually enforced by the Attorney General.
The idea of these laws is that there is a recognition that the government has limited resources and that there are certain kinds of violations that need to be filed by citizens under these laws. In other words, the government simply can’t tackle every single issue.
In order for these cases to go forward, the plaintiff, in other words the one who is alleging that the other party is violating environmental laws, must first send a notice. If it’s under state law the notice is sent under the New Jersey environmental rights act. If it’s under federal law the various federal programs have their own citizen suit provisions. One of them, one which has been used quite a lot over the years, is the clean water act which has its own citizen suit provisions.
In order to pursue a claim in federal court under the clean water act, a notice must be sent to the alleged polluter that provides fairly specific information. In general, this includes the statue being violated and the specifics of the violation. Failure to file an adequate notice can result in dismissal of the lawsuit.
Which is the hard learned lesson that the plaintiffs did realize in the case of Shark River cleanup coalition versus Township of Wall. In this case, the Shark River coalition alleged that the municipality had violated certain laws which resulted in discharges into the Shark River. These were discharges of alleged pollutants. The municipality sought to dismiss the lawsuit on the grounds that the notice was not sufficient enough.
The trial court agreed and just recently the federal appeals court concurred with the trial court decision that the matter should be dismissed because the notice was not adequate.
Interestingly, the Court of Appeals agreed based on slightly different grounds than the trial court. But in general both courts took issue with the specificity of the notice.
What is the take away: citizen groups seeking to file these citizen group lawsuits must make sure that their notice is sufficiently comprehensive. This means that the details must be there. While some decisions suggest that all of the details don’t have to be there, this is a case where it’s much better to be safe than sorry.