The enforcement mechanisms of the environmental statutes in the 1960s were both cumbersome and ineffective. As interest in environmental protection grew, awareness of the lack of adequate enforcement also increased. This awareness led to a significant enhancement of enforcement tools in the 1970s as well as the creation of citizen suits. They were intended to be actions by “private attorneys general”—that is, lawsuits that were brought under federal environmental statutes such as the Clean Water Act (CWA) in the public interest by citizens seeking to enforce violations of environmental laws.
The citizen suit provisions of the federal environmental statutes were developed as an answer to the government’s inability to enforce those statutes, whether because of a lack of will or resources. Congress believed that citizen suits would either prompt the government to take action or provide an alternative means of enforcement.
Environmental Groups’ Use of Citizen Suits
Unfortunately, the citizens bringing such actions frequently have been special-interest organizations with priorities of their own, often not consistent with those expressed by Congress. The most visible have been environmental groups, which have filed numerous actions at the expense of industry, the private sector, and the priorities determined by Congress. The pattern of litigation does not always correlate with environmental concerns. For instance, with regard to water pollution, environmental groups have filed most of their suits against private industry even though municipalities and agriculture are responsible for a greater share of the pollution.
Research suggests that industry is the object of most citizen suits because the environmental groups can profit from such litigation by obtaining attorneys’ fees or settlements that can be used to finance subsequent litigation or other environmental initiatives. While accurate statistics are unavailable, there appear to be scores of citizen suits that have been settled in exchange for contributions to private environmental causes.
Soon after the introduction of citizen suits, special-interest organizations began using them to further their hidden agendas. For instance, in the 1970s an environmental group brought a citizen suit against the Tennessee Valley Authority ostensibly to save the Tennessee snail darter, a fish species believed to be threatened by the construction of the Tellico Dam. However, the real aim of the litigation was not to protect the fish but to stop construction of the dam. The snail darter merely provided an alternative vehicle for the anti-dam agenda.
Such tactics may still be used today. In March 2010, The Arkansas Project v. Bryan Shaw citizen suit was filed in Texas concerning dwindling whooping crane populations. The plaintiffs assert that such population declines are related to a decrease of water flowing into the Gulf of Mexico from the Guadalupe River Basin. Some believe the lawsuit is actually a coordinated effort by affected rural landowners to halt Exelon Corp.’s plan to build a new nuclear power plant upstream.
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 ([email protected]) is an attorney with Guida, Slavich & Flores PC, located in Dallas, Texas. He regularly defends businesses in environmental litigation matters.