Anatomy of a Citizen Suit
The citizen suit was initially launched as part of the Clean Air Act (CAA). Thereafter, similar provisions were included in all new federal environmental statutes or amendments to existing statutes including the Endangered Species Act, the CWA, and many others. The citizen suit sections of the various environmental statutes are virtually identical, being patterned closely after the CAA’s. For the most part, the sections authorize “any person” to commence suit to enforce the requirements of the acts against “any person” alleged to be in violation.
The citizen suit provisions allow the violator to be fined a maximum penalty for each day it is in violation. The amounts have increased several times over the years. For instance, the CWA originally provided a maximum penalty of $25,000, which has now increased to $37,500 per day. The monetary exposure for a defendant can quickly add up if the lawsuit involves violations over several years. All fines awarded by the court are payable to the federal treasury rather than the citizen group. Citizen groups circumvent this by additionally alleging state law claims and then trading penalties specific to citizen suit claims for damages relating to the state law claims.
Trumping Citizen Suits’ Narrow Agendas
The North American Electric Reliability Council has warned that U.S. electricity usage over the next 10 years is projected to grow more than twice as fast as committed resources. This demand will obviously necessitate the construction of many new power plants. When Congress first began including citizen suit provisions in environmental laws, it envisioned a citizen who brought suit solely for the benefit of the public interest. In reality, the vast majority of citizen suits have been brought by highly organized and well-funded environmental advocacy groups that often promote their own hidden agendas.
Although every effort should be made to protect the environment and endangered species, the greater good should trump citizen suits that needlessly hamper such construction. Instead, such actions, if necessary, should be brought by the government, which is better suited to evaluate the costs and benefits of full enforcement.
—Michael R. Goldman (goldman@guidaslavichflores.com) is an attorney with Guida, Slavich & Flores PC, located in Dallas, Texas. He regularly defends businesses in environmental litigation matters.
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