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COALEX STATE INQUIRY REPORT - 258

June 1993

Myra Spicker, Esquire 

Attorney General's Office Indianapolis, IN 

TOPIC: CITIZEN SUIT PROVISIONS: STANDING TO SUE

INQUIRY: Does a coal company have standing to sue a state regulatory authority (RA) 

under the citizen suit provisions of SMCRA? A coal company is claiming injury, having 

to keep its mine open, because the RA is not releasing the coal company's bond. 

Please locate relevant materials. 

SEARCH RESULTS: Research was conducted using the COALEX Library (in 

particular, the legislative history documents) and the other materials available in LEXIS.

One case was identified which states that the phrase "any person" does not include 

members of the regulated industry and, therefore, the regulated industry may not use 

the citizen suit provision of SMCRA. (See U.S. v GORMAN FUEL, below.) In another 

case, "any person" is defined as an entity "standing in the shoes of the public and 

representing the public interest...." (See MULLINAX v HODEL, below.)

Additional materials attached discuss the legislative history of the citizen suit provisions 

in SMCRA, the Clean Water Act and Clean Air Act, as well as cases that address 

relevant aspects of "standing". 

LEGISLATIVE HISTORY

A 1973 Senate Report provided the following analysis of the Citizen Suits provision:

"[Citizen Suit section] provides for citizen participation in the enforcement of the Act by 

civil law suits (1) against any person who is alleged to be in violation of the Act or an 

order of the regulatory authority or (2) against the regulatory authority for alleged failure 

to perform a nondiscretionary act or duty.

"Suits may be brought by 'any person having an interest which is or may be adversely 

affected.' The Committee intends that this includes persons who meet the requirements 

for standing to sue set out by the Supreme Court in Sierra Club v. Morton (405 U.S. 727 

(1972))."

S. REP. No. 402, 93rd Cong., 1st Sess. 70 (September 21, 1973) [S. 425; "Sectionby-Section Analysis Title II"].
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This analysis of the citizen suit provision was repeated in various forms of the bill 

through its passage. Additional Legislative History material is attached for background.

REGULATORY HISTORY

44 FR 14902 (MARCH 13, 1979). Permanent Program Final Preamble -- Final Rule. 

Part 700 - General.

The definition of "person" is enclosed for background.

45 FR 69940 (OCTOBER 22, 1980). Proposed rule. Partial approval and partial 

disapproval of the Kentucky permanent regulatory program.

"1.2 The Secretary is unable to find KRS 350.250, Citizen Suit, to be consistent with the 

requirements of SMCRA for the following reasons:

"(a) Section 529(a) of SMCRA creates a right of action in 'any person having an interest 

which is or may be adversely affected.' The Kentucky language creates a right of action 

in 'any citizen of the Commonwealth.' The Kentucky language is too restrictive in scope 

since it denies the right of action to entities which are not citizens, such as corporations 

or associations, as well as to non-citizen residents of Kentucky and citizens of other 

States." 

STATE CASE LAW

FRANKLIN TOWNSHIP AND COUNTY OF FAYETTE v COMMONWEALTH OF 

PENN., DEPT. OF ENVIRONMENTAL RESOURCES AND ELWIN FARMS, 452 A 2d 

718 (Pa 1982).

The Commonwealth Court reversed the Environmental Hearing Board's ruling that the 

township and county lacked standing to challenge Elwin Farms' permit for a toxic waste 

landfill. 

"The question of standing is rooted in the notion that for a party to maintain a challenge 

to an official order or action, he must be aggrieved in that his rights have been invaded 

or infringed."

"On the federal level, where review of federal agency action is sought, the standing 

requirement has been broadened to include persons who can show that the challenged 

action had caused them 'injury in fact' and where the alleged injury was to an interest 

'arguably within the zone of interests to be protected or regulated' by the statutes that 

the agency was claimed to have violated."
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The township and the county had "a substantial, direct and immediate interest in the 

establishment and operation of a toxic waste landfill within its boundaries so as to give 

each standing to challenge the issuance of a permit."

SMCRA-RELATED FEDERAL CASE LAW

U.S. v GORMAN FUEL, INC., 716 F Supp 991 (ED Ky 1989).

The court granted the government's motion to dismiss defendant's claims based on the 

SMCRA's citizen suit provision. The court cited to cases discussing the citizen suit 

provisions in the Clean Water Act (FWPCA) and Clean Air Act (CAA), see below, in 

interpreting the phrase "any person":

"Thus the legislative history of the citizen suit provision of the CAA and the FWPCA, 

after which the SMCRA citizen suit was patterned, supports the interpretation that 

members of the regulated industry may not avail themselves of the provisions of the 

citizen suit Cases which have analyzed the citizen suit provisions of the CAA and the 

FWPCA also support this Court's interpretation that members of the regulated industry 

are not 'any person' for purposes of the citizen suit provision."

MULLINAX v HODEL, 1988 U.S. Dist. LEXIS 520, Civil Action No. 87-G-0687-S (ND 

Ala 1988).

The plaintiff filed a citizen's complaint claiming that certain surface mining permits were 

improperly issued. Mullinax claimed mineral ownership of the lands within the permitted 

area. This case was an appeal of an Interior administrative decision. In dismissing the 

action, the court discussed why it lacked jurisdiction to hear the appeal.

"The Citizen Suit provision [of SMCRA] authorizes 'any person' to commence a civil 

action 'to compel compliance with this Act', 30 U.S.C. 1270. It is clear from the 

legislative history of the Act that Congress included sec. 520 as a means of securing 

citizen participation in the enforcement process."

"The federal courts have repeatedly held that Citizen Suits provisions are for the 

purpose of forcing enforcement action only and cannot be used by plaintiffs to bring 

their own private causes of action... This is an entirely private dispute and plaintiff 

cannot be characterized as standing in the shoes of the public and representing the 

public interest in protecting the environment from the adverse effects of surface mining 

operations."

NATIONAL COAL ASSOCIATION (NCA) AND AMERICAN MINING CONGRESS 

(AMC) v LUJAN, 979 F 2d 1548 (DC Cir December 1, 1992). 

The court ruled that NCA and AMC, two associations of coal producers, had standing to 

challenge the individual penalty regulations.
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"According to the Secretary, NCA/AMC have not demonstrated that regulations on 

penalties for individuals threaten the trade associations or their corporate members with 

any injury. We find utterly unpersuasive the Secretary's endeavor in this context to 

divorce the corporation from those who act in its name."

"[W]e are satisfied that the companies' own economic interests are vitally affected by 

the subsection (f) [individual penalty] regulations."

JO D. MOLINARY v POWELL MOUNTAIN COAL CO., INC. D/B/A/ WAX COAL CO., 

779 F Supp 839 (WD Va 1991).

The court denied Wax Coal's motion to dismiss this class action finding "nothing in the 

clear language of the SMCRA or its legislative history to support Wax Coal's view that 

federal courts are divested of jurisdiction over citizen suits in states with approved 

surface mining and reclamation programs". In discussing federal oversight and 

legislative background on citizen suits, the court noted that Congress gave little 

substantive attention to state citizen suits and did not include them in the list or 

requisites for an approved state program. 

"The closest Congress came was to require states seeking program approval to provide 

criminal or civil actions for 'sanctions for violations of State laws, regulations or 

conditions or permits.'"

NATIONAL WILDLIFE FEDERATION v HODEL, 839 F 2d 694 (DC Cir January 29, 

1988).

"The Supreme Court has construed the constitutional elements of the standing 

requirement as embracing three separate, yet necessarily intertwined components: The 

party invoking the court's authority must demonstrate (1) 'some actual or threatened 

injury' that (2) 'fairly can be traced to the challenged action' and (3) 'is likely to be 

redressed by a favorable decision.'"

NON-SMCRA FEDERAL CASE LAW

SIERRA CLUB v MORTON, 405 U.S. 727 (1972).

Held: "A person has standing to seek judicial review under the Administrative Procedure 

Act only if he can show that he himself has suffered or will suffer injury, whether 

economic or otherwise. In this case, where petitioner asserted no individualized harm to 

itself or its members, it lacked standing to maintain the action."

The Court also stated: "It is clear that an organization whose members are injured may 

represent those members in a proceeding for judicial review.... But a mere 'interest in a 

problem," no matter how long-standing the interest and no matter how qualified the 
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organization is in evaluating the problem, is not sufficient by itself to render the 

organization 'adversely affected' or 'aggrieved' within the meaning of the APA."

DATA PROCESSING v CAMP, 397 U.S. 150 (1970).

From SIERRA CLUB, above: "[W]e held more broadly that persons had standing to 

obtain judicial review of federal agency action under sec. 10 of the APA where they had 

alleged that the challenged action had caused them 'injury in fact,' and where the 

alleged injury was to an interest 'arguably within the zone of interests to be protected or 

regulated' by the statutes that the agencies were claimed to have violated."

Also see: 

U.S. v STUDENTS CHALLENGING REGULATORY AGENCY PROCEDURES, 412

U.S. 669 (1973), which discusses both cases above.

NATURAL RESOURCES DEFENSE COUNCIL, INC. v TRAIN, 510 F 2d 692 (DC Cir 

1974), which discusses the citizen suit provisions of the Clean Water and Clean Air 

Acts.

FRIENDS OF THE EARTH et al. v CAREY et al., 535 F 2d 165 (2nd Cir 1976), which 

discusses the citizen suit provision of the Clean Air Act.

ATTACHMENTS

A. S. REP. No. 402, 93rd Cong., 1st Sess. 70 (September 21, 1973) [S. 425; 

"Section-by-Section Analysis Title II"]. 

B. LEGISLATIVE HISTORY material from February, 1972 through July, 1977 

including excerpts from Hearings, Congressional Records and Committee 

Reports. 

C. 44 FR 14902 (MARCH 13, 1979). Permanent Program Final Preamble -- Final 

Rule. Part 700 - General. 

D. 45 FR 69940 (OCTOBER 22, 1980). Proposed rule. Partial approval and partial 

disapproval of the Kentucky permanent regulatory program. 

E. FRANKLIN TOWNSHIP AND COUNTY OF FAYETTE v COMMONWEALTH OF 

PENN., DEPT. OF ENVIRONMENTAL RESOURCES AND ELWIN FARMS, 452 

A 2d 718 (Pa 1982). 

F. U.S. v GORMAN FUEL, INC., 716 F Supp 991 (ED Ky 1989). 

G. MULLINAX v HODEL, 1988 U.S. Dist. LEXIS 520, Civil Action No. 87-G-0687-S 

(ND Ala 1988). 

H. NATIONAL COAL ASSOCIATION (NCA) AND AMERICAN MINING 

CONGRESS (AMC) v LUJAN, 979 F 2d 1548 (DC Cir December 1, 1992). 

I. JO D. MOLINARY v POWELL MOUNTAIN COAL CO., INC. D/B/A/ WAX COAL 

CO., 779 F Supp 839 (WD Va 1991). 
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J. NATIONAL WILDLIFE FEDERATION v HODEL, 839 F 2d 694 (DC Cir January 

29, 1988). 

K. SIERRA CLUB v MORTON, 405 U.S. 727 (1972). 

L. DATA PROCESSING v CAMP, 397 U.S. 150 (1970). 

M. U.S. v STUDENTS CHALLENGING REGULATORY AGENCY PROCEDURES, 

412 U.S. 669 (1973). 

N. NATURAL RESOURCES DEFENSE COUNCIL, INC. v TRAIN, 510 F 2d 692 

(DC Cir 1974). 

O. FRIENDS OF THE EARTH et al. v CAREY et al., 535 F 2d 165 (2nd Cir 1976).