Notice Letters and Notice Pleading: The Federal Rules of Civil Procedure and the Sufficiency of Environmental Citizen Suit Notice

Abstract

Citizen suit provisions are common in federal environmental statutes, and almost all contain a notice letter requirement: before filing suit -- generally 60 days before -- the citizen must notify the alleged violator and the regulatory agencies in charge of the intent to file suit. In Hallstrom v. Tillamook County, 493 U.S. 20 (1989), the U.S. Supreme Court read this notice letter timing requirement strictly, requiring dismissal of citizen suits when the citizen does not wait the full statutory period before filing suit.

Since Hallstrom, federal courts have been increasingly strict about the CONTENTS of citizen-suit notice letters as well as the timing, even though the content requirements are regulatory, not statutory, and even though the EPA has generally required only sufficient information to permit the recipients to identify the problem. This article argues that strict requirements for notice letter content effectively supersede, as a practical matter, the notice pleading standard in the Federal Rules of Civil Procedure. This article further argues that neither the environmental statutes nor the EPA's regulations require this result and that the Supreme Court in other contexts has expressly forbidden federal courts to allow statutes to displace the Rules' requirements without a thorough and proper Federal Rule supersession analysis.

Keywords: environmental law, citizen suit, Federal Rules of Civil Procedure, notice letter, Hallstrom v. Tillamook County