Authored by Madeline A. Rock
Abstract
The world did not open its eyes to the importance of environmental preservation until the mid-nineteenth century. Non-profit and grassroots organizations focusing on environmental protections, such as water and air, proliferated the nation and were increasingly active in promoting environmental preservation. The federal government also created and expanded programs, such as National Parks, which became more prevalent as the nation progressed into the twentieth century. By the end of the twentieth century, 379 areas were designated as National Parks and these parks could be found in every state. The publication Silent Spring, by Rachel Carson, thrust the issue of environmental protection into the public’s consciousness. Carson depicted how pesticide usage, especially dichlorodiphenyltrichloroethane (DDT), was contaminating and poisoning the natural environment throughout the nation. This highlighted people’s ability to understand the biocentric and anthropocentric value of environmental preservation along with the deep interconnection humans have with their environment. As a result of this publication, the national pesticide policy was changed and there was a ban on the use of DDT in agriculture. This was the catalyst for the environmental movement which continued to gain steam as the twentieth century commenced.
President Nixon established the Environmental Protection Agency (EPA) in 1970 as a product of the environmental movement. The passage of the Clean Air Act (CAA) in 1970 (extended from 1963 version), the Clean Water Act (CWA) in 1977, and the National Environmental Policy Act (NEPA) in 1969 reflected Congress’s commitment to environmental protection. Enforcement of the mandates in these Acts and other environmental statutes currently rests with the EPA. However, the EPA has limited time and resources, even though it must act as the enforcer. If the EPA does not enforce environmental statutes, polluters are able to avoid and ignore the legal responsibilities required by these statutes. Congress anticipated such issues and included a citizen suit provision in some of these Acts. Under certain circumstances, a citizen suit provision allows for citizens to bring a claim against the EPA, those violating the environmental Acts, or both. Ultimately, this allows citizens to hold the power of enforcement.
This Article seeks to analyze how the diligent prosecution requirement has been interpreted and applied by the courts. Part I discusses the rise of environmental protection, the passage of acts, congressional goals of these acts, the role of the EPA, and the importance of the diligent prosecution provision. Part II explores the court’s interpretations of the diligent prosecution requirement. This section contains three subsections. Sections A and B address the meaning of “diligent” and “prosecution,” respectively. Section C focuses on the applicable jurisdictional rule, whether that be 12(b)(6) or 12(b)(1). Part III addresses the potential future impacts if the term “diligent prosecution” remains undefined. The Article concludes by discussing what actions Congress and the Supreme Court may take in the future to resolve the issues surrounding diligent prosecution.
American Journal of Trial Advocacy 