Citizen suits under the Clean Water Act are more prevalent than those filed under any other federal environmental law that authorizes citizen suits. Not surprisingly, one of the most important cases in environmental citizen suit jurisprudence, Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc.,arose in a Clean Water Act citizen suit. The Supreme Court's decision in Gwaltney is perhaps the most extensively analyzed yet most frequently misunderstood standard in citizen suit jurisprudence under federal environmental laws.
Part I of this article examines the structure and underlying policies of the citizen suit provision of the Clean Water Act. Part II reviews the history and ultimate resolution of the Gwaltney case. Part III discusses the various approaches that courts have adopted in Clean Water Act cases to understand and apply the Gwaltney "good faith allegation of an ongoing violation" standard. Part IV addresses the application of the Gwaltney standard to citizen suits under RCRA, CERCLA, and the Clean Air Act. Part V analyzes the judicial misapplication of the Gwaltney standard to EPCRA citizen suits for past violations. The article concludes that the Gwaltney standard should be legislatively revised to incorporate the "modified by parameter" approach11 to evaluating citizen suits for past violations under the Clean Water Act.
Randall S. Abate, Rethinking Citizen Suits for Past Violations of Federal Environmental Laws: Recommendations for the Next Decade of Applying the Gwaltney Standard, 16 Temp. Envtl. L. & Tech. J. 1 (1997)