Clean Air Act Citizen Suits: Defense and Litigation Strategies

Navigating Notice, Standing and Jurisdiction; Interpleading Third Parties Under the CAA

Recording of a 90-minute CLE webinar with Q&A

Conducted on Tuesday, July 18, 2017
Recorded event now available

This CLE webinar will provide guidance on procedural and strategic challenges for counsel defending citizen suits under the Clean Air Act (CAA). The panel will explain recent case law developments that impact citizen suits and provide strategies to manage your clients’ risks when facing citizen suits.


The CAA provides an avenue for citizens to separately enforce environmental laws and permits when they believe governmental agencies haven’t taken timely action against parties under federal and state regulations.

Given the new administration’s environmental priorities and proposed cut-backs to the EPA’s budget, many expect an uptick in citizen suits, both against regulated entities and against the EPA to perform its statutory obligations.

Listen as our panel examines citizen suits under the CAA, focusing on defenses and strategies for litigating and resolving these matters. The panel will discuss case law developments (including a recent $19 million judgment) and also provide best practices to reduce the risks of citizen suits.


  1. Types and Characteristics of CAA Citizen Suits
    1. Against facility owners
    2. Against EPA or other agencies
  2. Responding to a Notice of Intent to Sue
  3. Litigating Citizen Suit Actions
    1. Defenses
      1. Notice
      2. Standing
      3. Diligent Prosecution/Mootness
      4. Title V operating permit shield defense
    2. Other novel litigation approaches to CAA citizen suits
  4. Litigation under other Regimes
    1. State litigation
    2. Overlap with nuisance, toxic tort
    3. Intervention in suits against EPA to enforce agency action
  5. Court Developments – Citizen suits, climate change and nuisance litigation
  6. Strategies for Reducing Risk of CAA Citizen Suits


The panel will review these and other key issues:

  • Responding effectively to risks and notice of potential CAA citizen suits
  • Court-tested litigation tactics to defend CAA citizen suits
  • Preclusion of CAA citizen suits through state or federal agency settlements


Joshua B. Frank, Partner
Baker Botts, Washington, D.C.

Mr. Frank handles a wide variety of complex environmental litigation matters, including cost recovery, contribution and natural resource damage litigation under CERCLA and related state statutes; Clean Air Act litigation; mass tort class actions concerning environmental property damage claims; and other toxic tort and products liability litigation. He also has extensive experience in defending government enforcement actions and citizen suits under the Clean Air Act, as well as in representing clients in challenges to environmental regulations at both the state and federal level. In addition to litigation, he also handles hazardous waste site remediation issues and regularly counsels clients regarding regulatory issues falling under numerous environmental statutes including CERCLA and the Clean Air Act.

Seth D. Jaffe, Partner
Foley Hoag, Boston

Mr. Jaffe focuses his practice on environmental compliance and related litigation. He is one of the authors of the Law and the Environment Blog, which provides real-world perspectives on current developments in environmental law and regulation. He works on a wide range of environmental law issues, representing clients in the permitting/licensing of new facilities and offering ongoing guidance on permitting and enforcement related matters under federal and state Clean Air Acts, Clean Water Acts, RCRA, and TSCA. He also advises on wetlands and waterways regulation. He has extensive experience in hazardous waste matters under federal and state Superfund laws.

Kent Mayo, Partner
Baker Botts, Washington, D.C.

Mr. Mayo handles a wide variety of environmental matters, with a focus on environmental litigation and enforcement defense, permitting and regulatory compliance under the Clean Air Act. His litigation work includes serving as lead counsel in multiple New Source Review and other Clean Air Act actions brought by the United States, states and citizen groups. He also represents clients in toxic tort and class action litigation arising from environmental issues. In the regulatory sphere, he counsels clients on permitting issues and has assisted clients in obtaining and defending permits issued for new facilities in multiple jurisdictions.


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