'Crucial tool': Citizen suits poised to defend environment in another Trump regime

“Climate change.�

Those were among the first phrases that popped onto the screen during a webinar Wednesday hosted by the Black Appalachian Coalition, an advocacy group that seeks to elevate Black resident voices in the region and focuses, in part, on industrial pollution.

The group’s founder and Executive Director Marcia Dinkins had just asked webinar participants to indicate what they were most fearful of following the Nov. 5 general election.

Dinkins named more fears as participants submitted them:

“No accountability.�

“Losing our civil rights.�

“These are such powerful things,� Dinkins said.

And they’re what many community and environmental advocates fear will be the results of another Trump administration that will begin in January.

But recent federal court outcomes have shown that advocates can defend their rights and their surroundings through citizen lawsuits — suits in which citizens can sue violators of environmental laws when government regulators fail to hold polluters accountable.

“Congress intended citizen suits to empower private attorneys general to act when federal and state regulators won’t,� Derek Teaney, deputy director of Lewisburg-based environmental law firm Appalachian Mountain Advocates, said. “Such litigation is a crucial tool for environmental protection.�

Environmental law and advocacy groups that have taken on state and federal government for not taking on polluters are ready to fortify their legal fighting in the new Trump regime.

“We should have these agencies do their job to protect our water and the health of our citizens. But the fact of the matter is that they’re not,� West Virginia Rivers Coalition deputy director Autumn Crowe said. “And so citizens have to take matters into their own hands.�

Citizen suit led to stronger watershed oversight

The West Virginia Rivers Coalition and other groups, represented by Teaney, did just that in March by filing a federal citizen suit alleging the U.S. Environmental Protection Agency violated the Clean Water Act in its oversight of a local watershed spanning roughly 100,000 people.

The Rivers Coalition joined the Sierra Club and the West Virginia Highlands Conservancy in contending the EPA hasn’t calculated maximum pollution amounts in the Lower Guyandotte River watershed that would allow the watershed to meet water quality standards.

The groups filed an agreement on Nov. 7 with the EPA and the state Department of Environmental Protection requiring the DEP to submit total maximum daily loads for ionic toxicity for the Upper Mud River, Crawley Creek and other streams in the watershed to the EPA by Sept. 1, 2026.

Total maximum daily loads, known as TMDL, determine a pollutant reduction target and allocate reductions for pollution sources. The Lower Guyandotte River watershed occupies most of West Virginia’s Cabell and Lincoln counties, plus the northern third of Logan County and small portions of Putnam, Boone, Kanawha and Mason counties.

“This is a seemingly small but essential step forward in protecting the health of West Virginia’s streams and those of us who depend on them for our own health and wellbeing is a long time coming,� West Virginia Highlands Conservancy mining committee member Cindy Rank said in a statement. “We are grateful to all who made it happen.�

It never would have happened without a legal fight.

The DEP objected to an initial agreement the environmental groups reached with the EPA, accusing them of asking the court to erase what the former agency said is its right to establish priorities for the TMDL program in an April court filing.

But court records indicated the DEP stopped issuing TMDLs addressing biologic impairment years ago.

The environmental groups’ lawsuit cited a 2017 federal court finding that, because the DEP hadn’t submitted TMDLs for water biologically impaired due to ionic toxicity, the EPA had a duty to act. That 2017 court ruling noted that, since 2006, the DEP had determined ionic toxicity was the stressor causing biological impairment in at least 179 streams but had stopped issuing TMDLs addressing biologic impairment regardless of the cause in 2012.

The ruling noted that the DEP had contended it had insufficient information regarding pollutants and their associated impairment thresholds for biological TMDL development for ionic toxicity-stressed streams.

EPA spokesperson Kelly Offner said the agency commends technical expertise and effort that the agency said the DEP has invested in water quality and environmental programs. Offner called the DEP a leader in TMDL development in the EPA’s Mid-Atlantic region, citing other DEP-established TMDLs.

The DEP declined to comment on the agreement.

Conservationists view the settlement as long overdue progress toward holding coal mining operations accountable for pervasive pollution.

Sierra Club West Virginia Chapter chair James Kotcon called the settlement “the initial step to ensuring that the industry cleans up the mess it created.�

Coal company facing more consequences amid citizen suit

The Sierra Club and the West Virginia Highlands Conservancy, along with regional environmental nonprofit Appalachian Voices, scored another victory in the U.S. District Court for the Southern District of West Virginia earlier this month.

The court granted the groups’ motion to hold Lexington Coal Company in further contempt for what the court found to be Lexington’s failure to comply with its orders targeting ionic pollution, over three years after it held the company liable for violations at two mines in Mingo County.

District Judge Robert Chambers ordered Milton-based Lexington to create a $100,000 fund by Dec. 9 to comply with the court’s orders, pay a contempt fine of $50,000 within 45 days and meet deadlines for documenting the status of a biochemical reactor treatment system to address pollution.

The court determined in 2022 Lexington was “unwilling to adequately comply’ with its cleanup mandates, ordering the company to pay $1,000 daily fines beginning in May of that year with fines increasing to $1,500 just over two months later if Lexington failed to justify lifting the contempt order.

Lexington did fail, prompting the court to observe later that year it was “losing patience� with the company.

Chambers’ latest order suggested patience with Lexington is still in short supply, slamming the company for what a court-approved special master said is its lingering noncompliance with ionic pollution tasks.

“If Lexington Coal is under the impression that it can cobble together last minute, ineffective plans and declare that it has accomplished the Court’s orders, it is severely mistaken,� Chambers wrote.

Lexington could not be reached for comment.

The costly legal consequences for Lexington are the result of a lawsuit Teaney and fellow Appalachian Mountain Advocates attorney Mike Becher filed on behalf of the West Virginia Highlands Conservancy, Appalachian Voices, Sierra Club and the since-shuttered Ohio Valley Environmental Coalition in 2019.

“The law requires companies to abide by a simple principle: You must clean up the mess you make,� Kotcon said in a statement.

Landowners get greater well-plugging pledge from gas giant

West Virginia landowners — not the DEP or EPA — secured environmental cleanup concessions from industrial gas giants in a settlement agreement a federal court approved Wednesday.

The U.S. District Court for the Northern District of West Virginia preliminarily approved an up to $6.5 million class-action settlement agreement West Virginia landowners secured from Alabama-based Diversified Energy Company, the country’s largest gas and oil well owner, and Pittsburgh-based gas producer EQT Corp.

Diversified more than quadrupled its commitment to plugging nonproducing wells in West Virginia, Ohio, Kentucky, Pennsylvania, Virginia and Tennessee, increasing its plugging obligations from roughly 580 to at least 2,600 nonproducing wells, per final court approval.

The DEP Industry experts have said Diversified’s business model is based on acquiring a high number of low-producing wells that yield short-term dividends but present long-term liabilities mounting as the company puts off well decommissioning obligations.

Abandoned and orphaned wells threaten public health and safety by emitting climate-harming methane, polluting groundwater and dotting backyards and wildlife habitats with dangerous equipment that may create sinkholes and hurt wildlife.

But the West Virginia DEP asked the court in August to dismiss the case, calling it a “challenge� to its authority to require permittees via consent order to plug wells that have been abandoned or “orphaned,� meaning no known operator has been identified.

The court denied the DEP’s motion to intervene in the case, finding it untimely and the agency unentitled to intervene because its participation wasn’t required for the court to order payment from the defendants to cover well-plugging and remediation costs.

The settlement class includes all people and entities that own or lease any right, title or interest in the surface of any piece of land in West Virginia, Ohio, Kentucky, Pennsylvania, Virginia or Tennessee that have had a Diversified well between the filing of the complaint in the lawsuit (July 8, 2022) and the date of the signing of the settlement agreement (Nov. 4, 2024). The class includes heirs, tenants and successors of those interest owners.

Bracing for more lax oversight under Trump

Advocates expect more legal wrangling will be required under the upcoming second Trump administration, given his first administration’s environmental rollbacks, which weakened rules governing clean air and water, toxic chemicals and construction permitting.

Jen Duggan, executive director of the Environmental Integrity Project, a Washington, D.C.-based nonprofit that advocates for more effective environmental law enforcement, recalled a “pretty significant dip� in the number of enforcement cases the EPA brought during Trump’s first term.

“So we do think that it will be very important for groups like the Bayou City Waterkeeper, like the West Virginia Rivers Coalition, like For a Better Bayou, to fill that gap and hold these polluters accountable under the law,� Duggan said, namechecking Houston-based and Louisiana-based environmental groups in addition to the Rivers Coalition.

Duggan was speaking during an online news conference her nonprofit held Thursday on a new report finding the EPA has effectively failed to regulate wastewater from plastics plants in West Virginia and throughout the U.S.

The report found 58 of 70 plants that were examined violated what it determined were weak pollution limits at least once from 2021 to 2023, according to company self-reported data in EPA records. But despite the permit violations, only eight of those 58 plants — 14% — faced a financial penalty over that period.

Of the 70 plastics plants examined for the report, 28 are operating on water pollution control permits that are outdated but have been administratively continued by state agencies.

EPA and DEP spokespeople declined to comment on the report, saying the agencies hadn’t yet reviewed it.

Crowe noted during the Environmental Integrity Project news conference that taxpayer dollars fund the environmental regulators behind what she views as their unacceptably lax oversight.

But citizens and environmental law firms and other groups have to be willing to put their own time and money into holding industries and regulators accountable, Crowe observed.

Duggan noted such investments will come with the power of the law behind them no matter what the Trump administration’s plans are.

“EPA will have to follow the law,� Duggan said.

Groups touting past Trump-era legal victories

National environmental advocacy law firms and other groups have been touting their past legal work fighting Trump administration maneuvers.

“Trump is more prepared this time. We are too,� reads a pop-up message on the website of Earthjustice, a national environmental law group, alluding to past successes in cases it brought against Trump’s first administration and asking for donations to its legal fund.

Last year, the EPA proposed new, tighter leachate treatment standards for power plant coal ash disposal sites following a Trump-era legal challenge from Earthjustice and partner groups.

Last month, the EPA announced it would strengthen standards for lead in dust from deteriorating lead paint found in home and child care facilities. The EPA’s move followed a lawsuit Earthjustice filed against Trump’s EPA.

Mark Drajem, spokesperson for the Natural Resources Defense Council, a global environmental advocacy group, said the NRDC filed its first lawsuit against an illegal environmental rollback by the first Trump administration on Feb. 2, 2017, less than two weeks after Trump took office. The group sued, on average, once every 10 days for the next four years, Drajem said, claiming victories in nearly 90% of resolved cases.

“Presidents must follow the law when they write rules and standards — and when they try to weaken or repeal them,� Michael Wall, chief litigation officer at the NRDC, said in an email.

Finding reasons for hope

West Virginia’s highest asthma rate, third-highest cancer death rate, third-highest percentage of adults aged 18-64 in poverty and high prevalence of drinking water quality violations heighten the stakes for the next Trump era — and the fights that are sure to come.

But when Dinkins asked her Black Appalachian Coalition webinar participants what gave them hope, some responses drew from the past instead of looking ahead.

“Our history of good work.�

“We’ve done this before.�

Those in West Virginia and across the nation worried about their environment and their government are counting on themselves — again.

“Our lawyers and advocates will be defending clean air, clean water, public health and a safe environment once again,� Wall said.