Preparing For A Wave Citizen Suits: Five Key Strategies On The Diligent Prosecution Bar

As earlier reported, environmental non-governmental organizations (eNGOs) have promised to pursue enforcement where the Biden EPA left off – they have the legal authority to do so under most environmental federal statutes and a growing war chest to see those promises through. See B&D's alert on how companies can prepare for a citizen suit. A jurisdictional element for an eNGO to bring a citizen suit is the Notice of Intent (NOI) to sue, usually 60 days. When the enforcement agency has "commenced and is diligently prosecuting a civil action" within or prior to expiration of the notice period, the citizen suit is barred.

Setting aside the practical and political aspects of commencing and diligently prosecuting the allegations of an NOI within 60 days, the diligent prosecution bar is tricky. The bar is effectuated differently across similar statutes, interpreted differently between jurisdictions, and applied differently to unique factual scenarios. Strategic use of the