A manufacturer challenges the private wielding of public power
For more than 50 years, through its citizen-suit provision, the Clean Water Act has allowed private individuals and organizations to sue alleged violators and seek civil penalties payable to the federal government.
Now a West Virginia graphite manufacturer says that arrangement is not merely abusive and excessive—it is unconstitutional because Congress effectively handed private organizations a core power of the executive branch.
In the case, Amsted Graphite Materials LLC is hoping to upend one of the principal legal tools environmental organizations have used for decades to enforce their interpretation of federal environmental law when they decide the federal government isn’t playing along.
First, the facts. Amsted Graphite Materials has a century-old plant in Anmoore, West Virginia. Since 1906, the facility has manufactured specialized carbon and graphite materials used by the defense and aerospace industries, as well as in railroad and construction projects. Amsted bought the plant in 2020, and along with the sale came environmental obligations accumulated under earlier owners.
According to Pacific Legal Foundation (PLF), which is representing the company, Amsted did not ignore or dodge its obligations. Over the years, PLF states that the company entered into agreements with both the Environmental Protection Agency (EPA) and the West Virginia Department of Environmental Protection to undertake environmental upgrades, and those improvements remain underway according to a state-supervised schedule.
Then came the curveball. In April, the West Virginia Rivers Coalition and West Virginia Highlands Conservancy sued Amsted over alleged violations of its discharge permit. Neither the EPA nor the state environmental agency have brought any enforcement cases of their own or joined that action.
To file their suit, PLF says the groups relied on a 1972 provision of the Clean Water Act (CWA), which allows private groups and individuals to sue, with the force and effect of government. PLF and Amsted have filed a motion to dismiss with a supporting memorandum, arguing that the 1972 provision allows private groups to wield a power the constitution places with the executive branch, and with the executive branch only.
Congressional delegation
The Clean Water Act provision allowing citizens and organizations to sue alleged violators after providing required notice does not permit typical lawsuits seeking compensation for plaintiffs’ injuries; rather, citizen plaintiffs can pursue civil penalties payable to the U.S. Treasury.
In Amsted’s case, the environmental groups seek penalties topping $68,000 a day for each violation.
The distinction over who collects any penalties and fines lies at the heart of Amsted’s constitutional argument. While there is nothing unusual about someone injured by another party suing for compensation, PLF and Amsted contend something very different occurs when a private organization goes into federal court seeking punishment for violation of federal law, with the money going to the United States.
“Because plaintiffs wield executive power, their lawsuit triggers the private non-delegation doctrine, which prevents private individuals from wielding government power and limits their role to giving advice, assistance, and recommendations to an agency with authority and surveillance over them,” the memo to dismiss states. “Plaintiffs cannot meet this test, and their citizen suit violates this doctrine. And because Congress has allowed plaintiffs to wield executive power to bring a lawsuit that the executive declined to pursue, Congress has interfered with the president’s ability to employ prosecutorial discretion and thereby violated the executive vesting and take care clauses.”
Indeed, the complaint argues that, in 1787, the Framers vested executive power in a president and established executive branch unity by giving the president the authority to appoint, oversee, and remove subordinates.
“The Framers feared that a plural executive would lead to second-guessing of the President’s decisions,” the memo states. “Although the Framers chose this arrangement, Congress in 1972 shattered executive branch unity with CWA citizen suits, which allow private actors to exercise executive power.”
Even so, the complaint continues, Congress’s allowance of private plaintiffs to vitiate the president’s enforcement decisions is not the worst aspect of citizen suits.
“By allowing private individuals who are not part of the federal government to exercise executive power, such suits also threaten the liberty and accountability our Framers sought to ensure,” the memo stated. “The vesting of all executive power in an accountable government official was just as much a part of Article II’s design as the vesting of that power in one individual. Under this structure, private, unaccountable plaintiffs may not seek public remedies, which is exactly what plaintiffs attempt here by suing for civil penalties payable to the U.S. Treasury to the tune of over $68,000 per day, per violation.”
In their complaint, Amsted’s attorneys make their case through several related constitutional doctrines—the Executive Vesting Clause, the Take Care Clause, the Appointments Clause and the private nondelegation doctrine—but they all revolve around the same proposition:
Government power must remain under government control.
The forgotten power
The memo to dismiss also underlines another constitutional point, PLF and Amsted contend, namely, that enforcement isn’t simply the power to prosecute. It includes the power not to prosecute, and that prosecutorial discretion is itself an exercise of executive power.
“Despite being notified by plaintiffs of the alleged violations in December 2025, the president’s subordinates did not bring an enforcement action in federal court,” the memo states. “That should have been the end of the story. But because Congress undermined the president’s prerogatives, plaintiffs—who think they know better than the president, Department of Justice, and U.S. Environmental Protection Agency—were allowed to bring the very claim the executive declined to pursue.”
And it’s not an isolated incident, the attorneys observed: “This is the seventeenth CWA citizen suit plaintiffs have filed since 2007, second-guessing the government,” the memo states.
The paradox, PLF and Amsted argue, is that Congress has supposedly given the executive branch discretion over enforcement while simultaneously allowing private organizations to override the executive’s decision not to enforce.
“The power of prosecutorial discretion extends to ‘an agency’s decision not to prosecute or enforce, whether through civil or criminal process,’ which ‘is a decision generally committed to an agency’s absolute discretion,’” the memo states, quoting Heckler v Cahaney. “… Through CWA citizen suits, however, private plaintiffs (and their attorneys) vitiate prosecutorial discretion by choosing how to prioritize and how aggressively to pursue CWA actions against defendants.”
To be sure, the memo continues, the president may head off the citizen suit by having the administrator begin a lawsuit.
“But that impinges on the president’s power of prosecutorial discretion by forcing him to do the very thing he does not want done,” the memo states.
Though the constitution envisions checks against the excessive exercise of executive power, PLF attorneys concluded that CWA citizen suits eviscerate those checks by violating numerous constitutional provisions.
“Any role private plaintiffs may have in the enforcement of federal environmental law is constitutionally limited to seeking private remedies for alleged private wrongs,” the memo concluded. “But Congress did not structure the CWA that way. Instead, plaintiffs’ citizen suit is an exercise of Article II’s executive power, which plaintiffs have no right to wield.”
If regulators aren’t enforcing the law sufficiently, Amsted argues, the constitution already provides remedies.
“For example, Congress possesses an array of tools to analyze and influence those policies—oversight, appropriations, the legislative process, and Senate confirmations, to name a few,” the memo states. “And through elections, American voters can both influence executive branch policies and hold elected officials to account for enforcement decisions.”
What Congress cannot do, the argument goes, is create an alternative executive branch staffed by private advocacy organizations.
Somebody already tried this
Not long ago, the tiny city of Luttrell, Tennessee, faced essentially the same situation. Using the citizen suit provision, an Alabama-based organization called Tennessee Riverkeeper sued Luttrell last November, alleging that the city had exceeded discharge permit limitations through its wastewater facility operations.
According to PLF, the city planned to break ground on a new facility in 2026. Neither the U.S. Environmental Protection Agency nor the Tennessee Department of Environment and Conservation sued Luttrell in court for discharge violations. The agencies also declined to participate in the suit.
“Tennessee Riverkeeper relied on the Clean Water Act’s citizen suit provision to file lawsuits throughout Tennessee and Alabama, subjecting over two dozen small towns and businesses across the states to costly lawsuits,” PLF states. “Many choose to settle out of court rather than devote years—and significant sums of their residents’ and stakeholders’ money—to fighting back.”
The city partnered with PLF to challenge the provision’s constitutionality, again arguing that a private group like Tennessee Riverkeeper should not have been permitted to sue anyone with the government’s power and authority. In a motion to dismiss filed in early December, Luttrell argued that the lawsuit should be dismissed.
In a victory for Luttrell, just weeks after the city filed its challenge, Tennessee Riverkeeper withdrew its lawsuit.
That didn’t produce a judicial precedent striking down citizen suits—the court never reached the constitutional question—but it did give Pacific Legal Foundation a tactical victory and gave Amsted the chance to do precisely that.
