164
Opinion of the Court
(1983). The first question in the present case is whether the ESA's citizen-suit provision, set forth in pertinent part in the margin,2 negates the zone-of-interests test (or, perhaps more accurately, expands the zone of interests). We think it does. The first operative portion of the provision says that "any person may commence a civil suit"—an authorization of remarkable breadth when compared with the language Con-2 "(1) Except as provided in paragraph (2) of this subsection any person may commence a civil suit on his own behalf—
"(A) to enjoin any person, including the United States and any other governmental instrumentality or agency (to the extent permitted by the eleventh amendment to the Constitution), who is alleged to be in violation of any provision of this chapter or regulation issued under the authority thereof; or
. . . . .
"(C) against the Secretary where there is alleged a failure of the Secretary to perform any act or duty under section 1533 of this title which is not discretionary with the Secretary. "The district courts shall have jurisdiction, without regard to the amount in controversy or the citizenship of the parties, to enforce any such provision or regulation, or to order the Secretary to perform such act or duty, as the case may be. . . .
"(2)(A) No action may be commenced under subparagraph (1)(A) of this section—
"(i) prior to sixty days after written notice of the violation has been given to the Secretary, and to any alleged violator of any such provision or regulation;
"(ii) if the Secretary has commenced action to impose a penalty pursuant to subsection (a) of this section; or
"(iii) if the United States has commenced and is diligently prosecuting a criminal action . . . to redress a violation of any such provision or regulation.
. . . . .
"(3)(B) In any such suit under this subsection in which the United States is not a party, the Attorney General, at the request of the Secretary, may intervene on behalf of the United States as a matter of right.
"(4) The court, in issuing any final order in any suit brought pursuant to paragraph (1) of this subsection, may award costs of litigation (including reasonable attorney and expert witness fees) to any party, whenever the court determines such award is appropriate." 16 U. S. C. § 1540(g).
Page: Index Previous 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 NextLast modified: October 4, 2007