Comment by Sharon Elliot
The decision of Hamker v. Diamond Shamrock Chemical Co. in the Fifth Circuit highlights the difficulties posed by divergences in the circuit's interpretation of national laws for pollution prevention. The issue facing the panel in Hamker was whether it should affirm the dismissal of the citizen suit brought to enforce the Clean Water Act (the Act) for lack of subject matter jurisdiction on the ground that the plaintiff alleged only a single prior violation and no ongoing violations. The Fifth Circuit, in affirming the court below, so narrowly read the language, structure, and legislative history of the Act that it has created an inability to effectively bring citizen suits under the Clean Water Act.
This concern is not rhetorical but real. At least six of the industrial permittees within the state of Louisiana have already successfully employed the Hamker decision to dismiss citizen enforcement suits against them. The issue was recently decided by the Fifth Circuit in the consolidated case of Sierra Club v. Shell Oil Co. In view of the national nature of pollution, and a growing interest in the use of citizen suits, consideration of Hamker and its role in the parties' arguments in Shell Oil is apposite.
About the Author
Sharon Elliot.
Citation
62 Tul. L. Rev. 175 (1987)