“W. Va. Case Could Be An Existential Threat To Citizen Suits,” written by David Romine and published in Law360 on October 7, 2026.
An existential threat to environmental citizen suits has now emerged in the form of a variant of the unitary executive theory.
Defendants in Tennessee Riverkeeper Inc. v. City of Springfield, in the U.S. District Court for the Middle District of Tennessee, and West Virginia Rivers Coalition v. Amsted Graphite Materials LLC, in the U.S. District Court for the Northern District of West Virginia, have argued in recent months that citizen suits, authorized by statute to allow citizens to sue local polluters who may escape state or national enforcement, are an encroachment on the president’s exclusive executive authority.
No court has decided the validity of this theory. But in at least one pending citizen suit, as described below, the issue is ripe for decision on a motion to dismiss. Environmental citizen suits under the Clean Water Act and the Clean Air Act have been part of the environmental law landscape since the early 1970s.[1]
Suits under the citizen suit provision of the Clean Water Act have been especially numerous — and effective, allowing nongovernment parties to sue polluters who allegedly run afoul of their National Pollutant Discharge Elimination System permits or other effluent requirements.[2]
Such laws have wide appeal, allowing those able to track pollution at a local level to supplement enforcement by federal agencies that can’t be in all places at all times. In 1971, during the development of the legislation that became the Clean Water Act, then-Sen. John Cooper, R-Ky., described the importance of citizen suits: “Perhaps more than in any other Federal program the regulation of environmental quality is of fundamental concern to the public. It is appropriate, therefore, that an opportunity be provided for citizen involvement.”
The ability to recover attorney fees and other litigation costs incentivizes citizens to seek redress. As the U.S. Court of Appeals for the Ninth Circuit said in Sierra Club v. Peterson in 1983, “[s]tatutory clauses expressly allowing citizens’ suits are designed to encourage individuals to litigate as private attorneys general and usually contain incentives to litigation, such as providing for payment of counsel fees.”
But not everyone is happy with this arrangement. In the Tennessee and West Virginia cases mentioned above — both Clean Water Act citizen suits — the Pacific Legal Foundation, representing the defendants, has taken the position that citizen suits are unconstitutional. In a motion to dismiss the West Virginia case, filed on Aug. 5, the foundation argued that “Congress’s vesting of executive power in private plaintiffs, and Plaintiffs’ attempt to wield it here, run afoul of the private nondelegation doctrine.”[3] As the foundation put it in briefs in both cases, the private nondelegation doctrine “prevents private individuals from wielding government power and limits their role to giving advice, assistance, and recommendations to an agency with authority and surveillance over them.”[4]
Citing John Locke, Judge William Blackstone and Baron Montesquieu, the foundation also argued in both cases that “Congress in 1972 shattered Executive Branch unity with CWA citizen suits, which allow additional actors to exercise executive power.”[5]
The foundation further argued that only the president and his agents have the constitutional authority to enforce the law. It asserted that the Constitution’s vesting clause —”The executive Power shall be vested in a President of the United States of America” — leaves no room for law enforcement by persons not under the president’s control. Although neither of the foundation’s briefs in these cases uses the term “unitary executive,” that theory animates both briefs, and both cite to the unity of the executive power.[6] The idea of a unitary executive has lately gained some currency with the U.S. Supreme Court.[7]
The court has held that the president has the unfettered power to remove regulatory officials, statutory protection notwithstanding. In its June 29 decision in Trump v. Slaughter, the court found that the president has the power to remove a member of the Federal Trade Commission. And in 2020, in Seila Law LLC v. Consumer Financial Protection Bureau, the court held that the structure of the CFPB violated the separation of powers because it prevented removal of bureau members by the president. Both decisions chose the president’s power over that of Congress when it comes to the functioning of the executive branch, but neither used the term “unitary executive.” The dissents in both cases used the term when describing the theory the majority employed. Although Seila Law was about removal powers, not citizen suits, the Pacific Legal Foundation cited Seila Law heavily in both briefs, echoing, although not quoting directly, Chief Justice John Roberts’ holding in Seila Law that “[t]he entire ‘executive Power’ belongs to the President alone.”
The U.S. Department of Justice has also cast doubt on the validity of citizen suits in a recent brief. In an amended motion to intervene and dismiss filed on June 16 in NAACP v. X.AI Corp., in the U.S. District Court for the Northern District of Mississippi, the DOJ argued that “[t]he Clean Air Act does not authorize citizen-enforcement actions that seek relief the governmental enforcers choose to forgo.”[8]
Unlike the Pacific Legal Foundation, the DOJ does not argue that citizen suits are per se unconstitutional. But, if successful, the argument that the CAA “does not authorize citizen-enforcement actions that seek relief the governmental enforcers choose to forgo” may doom citizen suits against private defendants.
Like other citizen suit statutes, the CAA bars a citizen suit when the federal government is already prosecuting a case on the same compliance issue.[9] So by definition, citizen suits against private defendants are those which the federal government has chosen to forgo. The NAACP case was brought against Elon Musk’s X.AI in April, seeking an injunction against the building of a proposed data center on the ground that it lacks the required permits. The DOJ’s press release on its motion to intervene emphasized national security as its motivating concern.
“The Department of Justice will not sit idly by while private organizations use environmental laws to undermine our national security,” the release quoted Principal Deputy Assistant Attorney General Adam Gustafson of the DOJ’s Energy and Natural Resources Division.[10] The release also quoted Associate Attorney General Stanley Woodward in emphasizing the primacy — or exclusivity — of the DOJ in enforcing environmental laws: “ʻUltimate responsibility for enforcing federal law belongs to the Executive Branch, not private interest groups.’” If the DOJ’s policy is that only it can enforce the nation’s environmental laws, that is new. As recently as last year, the DOJ passed on an opportunity to make that argument. In a May 2025 amicus brief to the Supreme Court in Port of Tacoma v. Puget Soundkeeper Alliance, the DOJ argued that
federal courts do not have jurisdiction over CWA claims alleging violation of state regulations only.[11]
But the DOJ did not argue, as it has in the data center case with respect to the CAA, that the CWA “does not authorize citizen-enforcement actions that seek relief the governmental enforcers choose to forgo.” In Port of Tacoma, the Supreme Court denied the petition for writ of certiorari. On Sept. 18, the DOJ filed a notice of appeal in the NAACP case, in which it argued that the district court issued an oral appealable order in conference on Aug. 24. But the transcript of the conference is not yet publicly available, and no injunction or other order adverse to xAI has been announced by the court or the parties.
On Aug. 21, the plaintiff in the Tennessee Riverkeeper case voluntarily dismissed its complaint, so
the case is over. Accordingly, the first court to address this issue will probably be the Northern District of West Virginia, where the West Virginia Rivers Coalition case is pending. The plaintiff filed its opposition to the Pacific Legal Foundation’s motion to dismiss on Sept. 2, so it is likely that a decision in that case will issue before the U.S. Court of Appeal for the Fifth Circuit’s consideration of any appeal in the NAACP case.
The Pacific Legal Foundation has set forth a legal theory that citizen suits are unconstitutional because the executive power is vested in the president alone. The West Virginia Rivers Coalition case is set to be the first in which a court decides whether environmental citizen suits are consistent with the president’s sole executive authority.
As a pure legal issue, it is likely to be determined by one or more courts of appeals. If the Supreme Court also finds the issue to be compelling, it could spell the end of environmental citizen suits.
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David Romine is of counsel at Langsam Stevens Silver & Hollaender LLP.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of their employer, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
[1] Citizen suits are also available under the Toxic Substances Control Act, 15 U.S.C. § 2619; the
Endangered Species Act, 16 U.S.C. §1540(g); the Surface Mining Control and Reclamation Act, 30
U.S.C. § 1270; the Noise Control Act, 43 U.S.C. § 4911; the Resource Conservation and Recovery Act,
42 U.S.C. § 6972; and the Outer Continental Shelf Lands Act, 43 U.S.C. § 1349.
[2] Per the EPA’s website: “The NPDES permit program addresses water pollution by regulating point
sources that discharge pollutants to waters of the United States. Created in 1972 by the Clean
Water Act, the NPDES permit program is authorized to state governments by EPA to perform many
permitting, administrative, and enforcement aspects of the program.” See https://www.epa.gov/npdes.
[3] Memorandum of Law in Support of Defendant’s Motion to Dismiss Complaint, Doc. 8, PAGEID# 164,
W. Va. Rivers Coalition v. Amsted Graphite Materials LLC, No. 1:26-cv-0046 (N.D. W. Va.) (“West
Virginia Motion”).
[4] West Virginia Motion, PAGEID# 158; Motion and Memorandum of Law in Support of Defendant’s
Motion to Dismiss Amended Complaint, Tennessee Riverkeeper Inc. v. City of Springfield, No.
3:26-cv-00284 (M.D. Tenn.), Doc. 29, PAGEID# 177 (“Tennessee Motion”). As in most citizen suits,
the plaintiffs are national or local environmental groups.
[5] West Virginia Motion, PAGEID# 157; Tennessee Motion, PAGEID# 176.
[6] West Virginia Motion, PAGEID# 157; Tennessee Motion, PAGEID# 176.
[7] The theory has its limits. Executive officers are constrained to some extent by legislation and
judicial orders. Kendall v. United States, 37 U.S. 524 (1838); Some banned media organizations
return to the White House after judge’s order, ABC News (Sept. 24, 2026),
https://abcnews.com/US/judge-orders-white-house-restore-press-passes-cnn/story?id=136709442.
[8] Motion for Intervention and Dismissal, NAACP v. x.AI, No. 3:26-cv-00074, Doc.# 58, PAGEID# 1629
(N.D. Miss.). Also available at https://www.justice.gov/opa/media/1446141/dl?inline.
[9] See, e.g., 33 U.S.C. § 1365(b)(1)(B) (CWA); 42 U.S.C. § 9659(d)(2) (CERCLA).
[10] Formerly the Environment and Natural Resources Division. The press release is available at
https://www.justice.gov/opa/pr/justice-department-files-intervene-and-dismiss-lawsuit-would-hamper-a
mericas-ai-innovation.
[11] Available at https://www.justice.gov/d9/2025-07/2025-05-
27_port_of_tacoma_cvsg_final.pdf.