State And Federal Lawsuits


What it is:  A court proceeding against a violator of state law or federal law.  This might be a company or individual polluter or it might be against the agency for the violation of a non-discretionary duty.   The rules of procedure and evidence here are likely to be more stringently enforced than in an administrative hearing.  This action is not available for agency actions that are committed to their discretion. 
Proceedings:  A Guide/Timeline to Court Proceedings
Notice of Intent to Sue:  All state and federal environmental statutes (of which we are aware) require 60 days notice to be given to the alleged violator, the state agency and the federal agency.   This is supposed to be a non-adversarial period where the parties work towards resolution without litigation.  If a violation is fixed during this period then you lose your right to sue.  If the state or federal agency sues the violator during this period of time then you lose your right to sue.
The Complaint:  The complaint is a preliminary statement of the plaintiff’s case.   It will contain the facts alleged as well as the legal basis for the lawsuit and request specific relief.  It is the document that formally initiates the lawsuit in court.  
Answer/Motion to Dismiss:  The defendant must respond after being served with a complaint.  The first action may be an answer, where they respond directly to the allegations in the complaint and may present a counter-claim of their own.  The defendant might also respond with a motion to dismiss.  A motion to dismiss is a legal challenge to the complaint.  It will usually take the position either that there is no case even if everything said in the complaint is taken as true for the sake of argument.  This is usually the initial legal hurdle to get past in the life of a case.
Discovery Period:  This is the time in which both sides have the right to find out about each other’s cases.   Witnesses may be interviewed (“deposed”) documents are exchanged and, in an environmental case, experts are likely to be hired.  This period of time can extend for months.  This is what most lawyers spend most of their time doing. 
Motion for Summary Judgment:  At or near the end of discovery, the parties are allowed to file motions for summary judgment.  This is a purely legal motion and cannot be granted if there are disputed facts.  Basically one or both sides make the following argument:  “based on what we know to be true, the law is in our favor.”  These can be pretty complicated as they are often the presentation of the initial case. 
Trial:  The final presentation of the case to the judge or jury.  Facts and law are disputed here.  In a jury trial the jury decides the facts based on the law that the judge decides and then gives to them.   Most cases don’t get this far, but environmental cases seem more likely to go to trial than almost any other type.
Appeal:  If a party loses they may appeal to a “higher court” based on alleged errors or mistaken application of the law by the trial court.  In the state system appeals are made directly to the West Virginia Supreme Court.  In the federal system appeals are made to the Fourth Circuit Court of Appeals.  If a party loses in front of the Fourth Circuit they may appeal to the Supreme Court of the United States (although these appeals are rarely heard).   Getting to summary judgment/trial stage often takes at least a year or so.  Appeals may take this long again.
Important Legal Concepts:  
Jurisdiction:  The ability of a court to hear a case.  Environmental statues grant jurisdiction to certain courts to hear citizen suits brought under the Act.  The case must be brought in the right court for it to be heard.  This means the right location as well as the right choice between state and federal court.  
Standing:  Constitutionally required (by both the U.S. Constitution and West Virginia’s) before a court can hear a case.  Environmental plaintiffs can’t simply sue on behalf of the environment, there must be a real live person who is affected.  If there is a real live person who is affected and they are the member of an organization dedicated to those issues, then that organization can be a plaintiff.  The person though will probably still be called upon to make some demonstration of how they are affected. 
Statutes:  Laws passed by Congress or the state legislature.  Deference is given to an agency in how it interprets a statute it is required to implement, but not as much deference is given than for a regulation.
Regulations:  Laws (or quasi-laws) passed by the agency in the course of its duties to implement a statute.  Agencies must be authorized by Congress of the legislature to issue regulations.  When a new regulation is issued or when a regulation is changed there must be public notice and the opportunity for a public hearing.  
Common Law:  Legal principles that have developed through years of decisions by courts on similar issues.  Typically when someone refers to “common law” they are referring to law that is not tied to a statute or regulation.  The most common example is a tort claim.  
Injunctions:  A court mandate to do something or stop doing something in order to comply with the law.
Civil Penalties:  Penalties which a violator must pay to the United States or to the state for violation of the law. 
Damages:  Money which is paid to an individual (or organization) to make up for harm they have suffered.