California clay company stands up to unconstitutional delegation of executive power

In 1972, Congress added a new “citizen suit” provision to the Clean Water Act (CWA), allowing private individuals and groups to leverage the government’s prosecutorial power against American businesses and cities. The Constitution reserves that power for the executive branch—and does not allow it to be delegated to unelected private actors with no oversight or accountability to voters.

This is more than a violation of abstract constitutional principles. After they were improperly given the executive branch’s power to enforce the law and prosecute alleged violations, these private groups turned environmental law into a revenue-generating scheme for their own advantage.

They subject small businesses and communities to costly litigation over alleged permit violations that neither the federal government nor state agencies chose to pursue. In California, for example, two partnering nonprofits—Inland Empire Waterkeeper and Orange County Coastkeeper—filed 96 near-identical lawsuits in just one court, the U.S. District Court for the Central District of California.

These nuisance suits force their targets to spend their time and money on needless litigation, rather than investing in infrastructure updates, making productive use of natural resources, pursuing environmental innovation, or otherwise bettering residents’ lives. Many defendants choose to settle, rather than waste years in court—and the groups filing these citizen suits expect it. They are chasing punitive settlement fees, rather than fighting for the environment or the public good, without having to answer to voters for misusing the law.

This abuse has gone largely unchecked for over 50 years. Now, however, communities and businesses targeted by citizen suits are partnering with Pacific Legal Foundation to stop it.

In Corona, California—a region renowned for its vibrant clays—a family-run company has been supplying clay for California’s baseball diamonds since 1958 and standing up to abuses of citizen suits since 2018. Corona Clay was sued by Waterkeeper and Coastkeeper—the California nonprofits that have filed 96 cases in the district—for alleged violations of a discharge permit into Temescal Creek, a meandering, ephemeral creek about a quarter-mile away from Corona Clay’s facility.

Now, eight years later, Waterkeeper and Coastkeeper refuse to drop the citizen suit, even though only alleged procedural violations remain. They have weaponized the CWA to demand over $5.5 million—not for threats to the environment but for paperwork errors made by an employee no longer with the company.

What’s more, Waterkeeper and Coastkeeper’s demand relies on the claim that Temescal Creek is a “water of the United States” that can be regulated under the CWA. The Supreme Court’s decision in Sackett v. EPA defines a “water of the United States” as a “relatively permanent” body of water. Corona Clay argues that Temescal Creek doesn’t qualify because it only flows intermittently, following storms. In fact, a recent 10-year survey shows that the creek had no flow at all for five of those years.

Represented at no cost by Pacific Legal Foundation, Corona Clay asks the court to dismiss the citizen suit filed against it and find the CWA’s citizen suit provision unconstitutional.

Corona Clay argues that the CWA’s citizen suit provision should be struck down because it violates the Constitution’s nondelegation doctrine and the separation of powers by allowing private plaintiffs to wield the executive branch’s prosecutorial powers. Corona Clay also argues that citizen suits threaten Americans’ rights by allowing private actors, who cannot be held accountable by the voting public, to exercise government authority.