In May 2018, the Department of Justice filed a scathing brief scrutinizing Philadelphia law firm Brodsky & Smith for their recent slew of citizen suits brought on behalf of individuals in response to the surge in citizen suit filings since 2015. Things continued to heat up in June when the DOJ filed a Motion to Intervene and Opposition to Entry of Consent Decree in one of the three seminal cases singled out in its brief, Lunsford v. Arrowhead Brass Plumbing. This post discusses the involvement of the DOJ in the suit and whether the opposition to consent decree was an overreach of their authority or necessary intervention.
Statement of Concern and Recommendation
As a response to the unprecedented $700,000 in attorney’s fees sought over just two years and a questionable large payment to plaintiff Lunsford, the DOJ laid out three essential arguments criticizing the firm’s practices in its initial brief.
First, the DOJ reasoned that heightened scrutiny was justified generally because of the firm’s tendency to “reuse” plaintiffs, adding that the plaintiffs themselves did not demonstrate the proper technical experience in developing or assessing implementation of Best Management Practices (BMPs).
Second, the DOJ pointed out that the allegations raised in the Notice of Violations and complaint were fundamentally unclear because they failed to thoroughly explain how the Defendants breached their Water Quality Standards (WQS), by improperly citing numeric action level (NAL) exceedances as the backbone to the violations. The DOJ supported the argument that Brodsky erroneously used self-reported NAL exceedance numbers, which aren’t substantive violations, by citing generally to the court’s decision in Baykeeper v. Kramer Metals, which confirmed the applicability of EPA Benchmarks as merely guidelines but not violations. To recap, the Clean Water Act specifically requires permits for discharges of stormwater associated with industrial activity to include provisions that ensure compliance with Water Quality Standards. Baykeeper v. Kramer has been generally upheld and followed by environmental groups as an industry “standard” since it was decided in 2009. Here, the DOJ supported their argument here by alluding to the power of a court’s deference to an agency’s interpretation of a statute by reinforcing the EPA’s discretion in setting effluent limits and issuing permits in Kramer.
Third, the DOJ picked apart concerns about the pending consent decree in Lunsford v. Arrowhead Brass Plumbing, citing fundamental problems created by confusingly-worded industrial general permit requirements (i.e. leaving much up to interpretation or not identifying the required monitoring frequency) and lackluster reasoning behind attorney’s fees, costs, and other payment provisions within the decree.
Finally, it provided an overview to various other case settlement agreements in order to shed light on the firms’ pattern of pleading unclear allegations, imposing extortionate attorney’s fees, and omitting entire mandatory environmental projects in multiple suits. Essentially, the purpose of the brief was to highlight the underlying argument that Brodsky sought consent decrees that did not advance the goals of the Clean Water Act by directly providing plaintiffs who did not suffer actual harms arbitrary sums of money.
In sum, the DOJ recommended that Brodsky submit a motion to enter in order to address the issues outlined above. The DOJ used the legislative history of the Clean Water Act to support its insistence that “reasonable” attorneys fees in citizen suits acts as a check on frivolous suits, which Congress feared from the start. It also explained that the sheer volume of Notice of Violations was not consistent with the disproportionate litigation costs claimed, a tactic which further affronts the statutory goals of the CWA.
The statement of concern and recommendation paved the way for the DOJ to segue into actual case intervention, an assertive tactic to constrain the possible abuse of citizen suits on unsuspecting facilities. While it may be surprising that the well-known government branch as the nerve center of policing power can legally assert itself into court proceedings, the fact that the firm employed cookie-cutter tactics to penalize facilities makes it seem almost necessary. It is also worth noting that per federal statute, the DOJ is entitled to a mandatory 45-day review of any proposed consent decree. (Section 135.5 of Title 40 of the Code of Federal Regulations). According to legal experts such as CWA litigator Mark Ryan, such filings by the DOJ although permissible under citizen suit provisions, were highly unusual.
Motion to Intervene and Opposition to Entry of Consent Decree
In the Motion to Intervene, the DOJ argued that “permissive intervention” under Federal Rule 24(b)(2)-(3) allows “a state or federal officer or agency to intervene if a party’s claim or defense is based on: [a] statute or executive order administered by the officer or agency” and when such intervention will not delay or prejudice the case. Since the Clean Water Act is overseen by a federal agency, a court may also exercise discretion in determining when intervention is appropriate. Here, the DOJ justified intervention on the basis that the judgment was not in accordance with the legislative intentions of Congress for the CWA. The opposition brief attached to the entry of intervention again highlighted that “NAL exceedances are not violations under the CWA” as further proof that the factual basis that the claims in the complaint were too weak to begin with.
The 2015 CWA e-reporting rule making details about discharge monitoring reports and NOIs publically available coupled with environmental activists’ frustrated inability to force policy change by suing the EPA has contributed to the increase of aggressive citizen suits resulting from readily available online data. The recent uptick in lawsuits in California may foreshadow an overall nationwide increase in lawsuits as environmental groups easily access violation data resulting from e-reporting.
Despite the concerns voiced by the DOJ, as of August 2018 all three cases discussed in the initial brief have settled by way of Consent Decree, begging the question whether executive intervention impacted the execution and outcome of the final settlement is consistent with the CWA. However, it is interesting to note that following the executive intervention this summer, Brodsky’s proposed consent decree was discreetly modified to reflect the exact redistribution of the plaintiff’s payment on to the environmental project.
However, news of the DOJ intervention should bring comfort to a weary facility manager or legal counsel to a small facility in response to the alarming rate of citizen suits. Here, the best defense is a good offense, which in this case can be supported by taking aggressive measures to avoid any fine-print permit requirements that can slip through the cracks during even a minor rain event. In addition, it is important to keep in mind that many environmental groups cast a large net by filing complaints that cite many violations with the intention of sussing out actual compliances after the fact.
Learn how Mapistry plays a unique role in helping facilities avoid the worries of litigation here.
 Santa Monica Baykeeper v. Kramer Metals, Inc., 619 F. Supp. 2d 914, 927 (C.D. Cal. 2009)