What Happened?
The U.S. Environmental Protection Agency (EPA) has proposed new rules that would amend the "prior notice" regulations governing Notices of Intent (NOIs) for citizen suits under seven federal environmental statutes. Prior Notice of Citizen Suits, 91 Fed. Reg. 8810 (proposed Feb. 24, 2026). The proposal would require that NOIs be served on EPA electronically through a centralized Office of General Counsel (OGC) process. The proposed rule is open for public comment until March 26, 2026.
What Would the Proposal Do?
If adopted, the revision would apply to notices of intent to sue EPA, a State, or another party, and supersede the current procedure under which notices are served by certified mail. Notice by certified mail can take days – if not weeks – to reach the appropriate Agency official, taking up critical days of notice periods (typically 60 days) during which the Agency can respond before suit may be filed. The notice change would now provide EPA with an instantaneous notice of a citizen suit, effectively maximizing the time for EPA to respond to notices filed against it (e.g., APA challenges to EPA rulemakings) or other entities (e.g., citizen enforcement against companies). Time to respond during this short notice period matters – statutory "diligent prosecution" bars that limit subsequent citizen litigation expire at the end of the notice period.
Shifting Agency Strategy? While the procedural change is small, it may also signal a broader shift in EPA's strategic approach to addressing citizen suits. In its recent "Compliance First" memorandum, EPA specifically pointed to citizen suits in its discussion on "Reasoned Decision Making," stating: "[W]e must act swiftly to limit actions from third parties who, through citizen suit litigation, unfairly impact policy through abusive litigation tactics." Memorandum at 6. EPA provides a similar justification for the electronic notice proposal, stating the "change could alleviate the need for costly and protracted litigation, which would conserve the resources of the Agency and the public." 91 Fed. Reg. 8812. In light of an anticipated increase in citizen suits, the proposed change suggests that EPA may be more active in evaluating and engaging in citizen suits.
Even with these extra days, the Agency will still need to act quickly to respond to citizen enforcement to bar citizen suits; most statutory bars anticipate that enforcement will be brought in a court of law, with two important consequences: (1) EPA's administrative enforcement options are insufficient to satisfy the diligent prosecution bar; and (2) EPA will need to prompt the Department of Justice (DOJ) to file a lawsuit on its behalf. Engaging DOJ may present its own dilemma – DOJ has reduced its environmental enforcement section by nearly two-thirds to approximately 50 lawyers. Citizen enforcement complaints can be ambiguous, complex, and allege scores of violations; carefully scoping a complaint to precisely cover all aspects of a citizen suit can be particularly challenging, even with a full 60 (or 90) days. Even so, the strategic shift could have important implications for industry seeking to stave off the potential for citizen enforcement litigation.
Impacts to Industry
More visibility, sooner. If NOIs are posted quickly and tracked centrally, companies can track NOI activity, affecting litigation readiness, the ability to seek agency overfiling, and the ability to engage citizen plaintiffs for early settlement without litigation. For NOIs directed at EPA actions, regulated entities could track potential challenges to agency actions affecting their interests and react more promptly.
Acceleration of "front-end" strategy. For companies that receive an NOI (or anticipate one), the first days after an NOI may matter more. Early assessment of (i) the alleged violations, (ii) what is included in the public record, (iii) regulator posture, and (iv) whether corrective measures or engagement could support mootness or reduce requested relief can materially influence outcomes.
What Should Industry Do?
Stakeholders supporting the proposal may emphasize modernization, transparency, and litigation avoidance. Stakeholders commenting may also want to consider implementation details that may affect their interests (e.g., practicability, confidentiality of supporting documentation, posting practices/timing, and procedural fairness), and whether centralized posting could create unintended consequences. Comments are due: March 26, 2026 (Docket: EPA–HQ–OGC–2024–0557).
Overview of the EPA Proposal
EPA proposes to amend regulations in 40 CFR Parts 54, 135, 210, 254, 374, and 702 to revise "the manner in which NOIs shall be given" for citizen-suit provisions under the Clean Air Act (CAA), Clean Water Act (CWA), Safe Drinking Water Act (SDWA), Noise Control Act (NCA), Resource Conservation and Recovery Act (RCRA), Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), and Toxic Substances Control Act (TSCA).
Key elements include:
- Electronic service to EPA: NOI submitters would electronically provide a copy to EPA via the procedure identified on EPA OGC's website.
- Fallback option: If electronic service is not practicable, EPA would allow service by certified mail to specified EPA addresses, accompanied by an explanation of why electronic service is impracticable.
- Centralization and transparency: EPA describes the change as enabling a centralized electronic NOI "repository," allowing EPA to "more effectively monitor" NOIs and post them to a public-facing website.
EPA's stated rationale is straightforward: the statutory waiting periods give government agencies time to address alleged concerns after receiving an NOI but before a citizen files suit. Electronic receipt gives EPA immediate notice and maximizes that window.
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