Themes and Variations in Statutory Preclusions Against Successive Environmental Enforcement Actions by EPA and Citizens, Part One: Statutory Bars in Citizen Suit Provisions
93 Pages Posted: 13 Feb 2009
Date Written: 2004
This two-part Article examines the preclusion device, its legislative history, and the decisions interpreting it. Part One examines the device in citizen suit provisions. Part Two, to be published subsequently, will examine the device in EPA enforcement provisions. The two parts develop a unified interpretation of the device in both sets of enforcement provisions to resolve the tension between achieving compliance and protecting prosecutorial discretion. The Article concludes that Congress meant exactly what it wrote and enacted: the device solely precludes the successive enforcement it actually addresses. Several of the most common canons of statutory interpretation lead inexorably to this interpretation. But a phenomenon not yet observed by the courts or commentators is even more suggestive of it. The preclusion device is a theme with many variations. While Congress constantly employed the theme of the device throughout the statutes, it employed variations of the theme's three elements in the different provisions, reflecting the varying roles it intended EPA, the states and, to a lesser extent, citizens to play in the implementation and enforcement of each statute. The result is a nuanced pattern of variations, suggesting that Congress intended the meanings of the constants in the provisions to be identical, and the variations in them to have singular meanings.
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