EPA Proposes New Citizen Suit Notice Requirements

The US Environmental Protection Agency recently proposed to amend its pre-suit notice requirement for citizen suits under major federal environmental statutes. The proposed rule would require notices of intent (NOIs) to sue be served on EPA electronically rather than by mail. The proposed procedural change is aimed at modernizing and expediting NOI processing while also bolstering EPA’s ability to take corrective action and/or proactively address alleged violations before formal litigation is initiated.

Federal environmental statutes such as the Clean Air Act (CAA), Clean Water Act (CWA), Safe Drinking Water Act (SDWA), Noise Control Act (NCA), Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), Toxic Substances Control Act (TSCA), and Resource Conservation and Recovery Act (RCRA) contain “citizen suit” provisions allowing third parties—often individuals or environmental groups—to initiate lawsuits for alleged violations of the statutes or challenge alleged agency inaction.

Before filing suit, would-be plaintiffs must serve an NOI on EPA, generally 60 days in advance, providing EPA the opportunity to take corrective action or address the alleged violations through its own enforcement actions. Citizen suits are often barred if the federal government addresses the alleged inaction or initiates an enforcement action against alleged violators for the same alleged infractions during the 60-day notice period. 

Under EPA’s current prior-notice regulations NOIs must be served on EPA by certified mail.

PROPOSED RULE

On February 24, 2026, EPA published Prior Notice of Citizen Suits, its proposed rule for amending its regulations prescribing the manner in which prior notice of citizen suits is to be provided to EPA as required under the citizen suit provisions of the CAA, CWA, SDWA, NCA, CERCLA, TSCA, and RCRA (the Proposed Rule).[1]

The proposed amendments to the current regulations[2] would require electronic service to the EPA Administrator, as well as the relevant Regional Administrator if applicable, via a centralized process managed by EPA’s Office of General Counsel. 

If electronic service is not practicable, the Proposed Rule provides a fallback option for service of the NOI on EPA through certified mail, but it must be accompanied by a written explanation as to why electronic service was not possible.

The Proposed Rule does not alter the service requirements of NOIs on alleged violators and any state agencies, and those service procedures would remain unchanged if the Proposed Rule is finalized. 

IMPLICATIONS

The stated purpose of the Proposed Rule is to modernize the notice process to enhance efficiency, transparency, and EPA’s ability to address alleged violations within statutory timelines. However, if enacted this seemingly minor procedural change could have larger-scale impacts on how citizen suits are processed and litigated and how industry tracks agency actions and citizen suit activity.  

EPA additionally states that the Proposed Rule will allow it to create a public-facing and centralized electronic repository of NOIs. This not only increases the Agency’s ability to more efficiently monitor citizens suit activity, but there is also an opportunity for it to be used as a beneficial tool by the regulated industry. By utilizing the centralized repository, industry can proactively identify enforcement risks with better and more timely visibility, better track citizen suit activity, and make more informed operational or pre-enforcement decisions.

As EPA notes, the new process for service of NOIs also allows EPA to receive notice instantly. This would provide EPA more time to potentially address the alleged violation before litigation is commenced and allow the Agency to more efficiently make use of the usual 60-day waiting period. 

Whether through pursuing its own enforcement action to bar citizen suits or respond with some other corrective action in response to NOIs, EPA’s justification that the Proposed Rule will alleviate the need for costly and protracted litigation also appears to squarely align with EPA’s larger “Compliance First” policy reorientation, specifically aimed at restricting third-party attempts to, in certain instances, influence policy through use of citizen suit litigation. 

As the rulemaking process continues, stakeholders should assess the impact on their compliance and litigation strategies and consider participating in the comment process. Public comments to the Proposed Rule are due by March 26, 2026.