HB 0746

HB 746 - AS INTRODUCED

AN ACT authorizing citizen suits to assure enforcement of New Hampshire's environmental statutes.

SPONSORS: Rep. Leishman, Hills 13; Rep. DiFruscia, Rock 27; Rep. M. Fuller Clark, Rock 36; Rep. Messier, Hills 46; Sen. Cohen, Dist 24

This bill authorizes any person with an interest that is adversely affected to commence a civil action to enforce state environmental laws.

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

AN ACT authorizing citizen suits to assure enforcement of New Hampshire's environmental statutes.

Be it Enacted by the Senate and House of Representatives in General Court convened:

1 New Chapter; Citizen Suits. Amend RSA by inserting after chapter 507-F the following new chapter:

I. Any person may commence a civil action on his or her own behalf against any other person, including the state, who is in violation of any of the statutes enumerated in RSA 507-G:2, or any rules adopted pursuant to said statutes.

II. Any person may commence a civil action on his or her own behalf against the state for failure of a state agency to perform any non-discretionary action required by any of the statutes enumerated in RSA 507-G:2. For the purposes of this chapter, the term "non-discretionary" shall not be deemed to include any decisions regarding the commencement or non-commencement of an enforcement action.

III. No person may commence a civil action under this chapter unless the person has an interest that is adversely affected by the alleged violation.

IV. No action may be brought under this chapter for past violations where no injunctive relief is available. A good faith allegation of a continuing violation shall suffice for jurisdictional purposes in cases of sporadic or intermittent violations.

507-G:2 Scope. Actions brought under this chapter shall allege a violation of or failure to perform under one of the following statutes, or of any rule adopted pursuant thereto:

I. At least 60 days prior to commencing an action pursuant to RSA 507-G:1, I, the prospective plaintiff shall provide notice of an intent to sue to the alleged violator, to the agency primarily responsible for implementing or enforcing the statute underlying the complaint, and to the attorney general. The notice shall identify the facts or events forming the basis for the allegation, the date or dates of the alleged violation or violations, and the statute or statutes violated.

II. At least 90 days prior to commencing an action pursuant to RSA 507-G:1, II, the prospective plaintiff shall provide notice of an intent to sue to the agency alleged to have failed to perform a non-discretionary action, and to the attorney general. The notice shall identity the facts or events forming the basis for the allegation, and the specific non-discretionary statutory mandate alleged to have been violated

III. Any action brought pursuant to this chapter shall be commenced within one year of the date of the notice of intent to sue, and copies of the pleadings shall be served on the office of the attorney general.

I. A suit may not be commenced under this chapter if the state agency primarily responsible for implementing or enforcing the statute underlying the complaint has commenced and is diligently prosecuting an administrative or judicial enforcement action against the violator. Alternatively, the office of the attorney general may unilaterally extend the notice period established in RSA 507-G:3, I for up to 2 additional periods of 60 days each by sending notice of such extension to the prospective plaintiff, or may permit earlier filing by the citizen by sending a notice to that effect before the expiration of the notice period established in RSA 507-G:3, I. Prosecution shall be presumed to be diligent absent persuasive evidence that the state is currently engaged in a pattern of conduct that could be considered dilatory, collusive, or otherwise in bad faith.

II. Any person who filed notice pursuant to RSA 507-G:3 prior to the commencement of the prosecution by the state may intervene in the state administrative or judicial enforcement actions as provided by law.

III. The state may intervene as a matter of right in any citizen suit, and shall, even absent formal intervention, have the right to be heard by the court on the issue of the appropriate remedy or remedies to be ordered or approved by the court.

I. Actions under RSA 507-G:1, I shall be brought in the superior court of the county where the alleged violation occurred.

II. Actions under RSA 507-G:1, II shall be brought in the superior court of the county where the alleged violation occurred or in Merrimack county superior court.

507-G:6 Remedies. The court may order injunctive relief and impose civil penalties, consistent with the applicable statute's penalty provisions. If the applicable statute authorizes civil penalties for each day of a continuing violation, and the court finds that a violation was continuing at the time the complaint was filed, the court may impose civil penalties for the period of the violation after the complaint in addition to penalties imposed for the period before the complaint.

507-G:7 Costs. The court shall award reasonable costs, including reasonable attorney fees and expert witness fees, to any party who prevails or substantially prevails in an action brought under this chapter, if the court determines that such an award is in the public interest. An award shall be presumed to be in the public interest if a plaintiff causes, by initiating or successfully prosecuting an action under this chapter, a violating party to come into compliance with the law, or if a defendant demonstrates that the suit brought against him or her was frivolous, vexatious, or otherwise brought in bad faith.