The Role of the Citizen in Enforcing Environmental Laws

Anthony Z. Roisman

Mr. Roisman is the Executive Director for Trial Lawyers for Public Justice.

Environmental protection, unlike increasing profits, is not a natural goal of American business. Certainly the history of this nation through the 1960s, when virtually all environmental protection was voluntary, confirms that those making the profits had little concern for the environmental impact of profit-making activities.

Congress realized this serious conflict between profits and environmental protection when, in the 1970s, it enacted the major environmental statutes that create federal regulation of business activities for environmental protection.¹ Since these statutes were enacted, substantial attention has been given to establishing acceptable pollution abatement standards for regulated companies. Development of national standards and specific permit levels has been a major emphasis of the Environmental Protection Agency (EPA) over the last decade and a half.

Each of these laws also contains substantial civil penalties for those who disobey the environmental standards. The congressional goal in enacting the civil penalties for those who disobey the law is clear:

The committee believes that if the timetables established throughout the Act are to be met, the threat of sanctions must be real, and enforcement provisions must be swift and direct.²

Vigorous and extensive enforcement of these laws has not been commonplace. There are relatively few major fines imposed despite numerous successful prosecutions by government authorities of routine violators of these laws. Increasingly, the regulated community has come to realize that postponing compliance with the laws, compliance which could be very expensive, would cost nothing except an order to come into compliance many years after the law took effect. In fact, just postponing for a year or two the capital expenditures and operating and maintenance costs of pollution control usually saves the facility significant sums of money.

Congress, in its wisdom, contemplated the possibility that compliance might be sluggish and enforcement less aggressive than the affected public would like. Congress established a "citizen suit" provision in the federal environmental laws, which allows a member of the public whose environment was affected by the activities of someone who was violating or had violated a federal environmental [16 ELR 10164] law to sue the violator in federal court to compel compliance with the law and in some instances to collect penalties on behalf of the United States Treasury. A successful plaintiff would also have to be reimbursed by the defendant for the costs of prosecution, including reasonable attorney's fees.

The only prerequisite imposed on a citizen filing such a suit is that the citizen must give 60 days notice of the alleged violations to the violator and to state and federal environmental officials. This notice might either goad the governments to act or goad the violator to seek to work out its problem directly with the citizen. If this does not work, the citizen can file suit in federal court against the violator. While the citizen enforcement authority was little used in the 1970s, in 1982 the Trial Lawyers for Public Justice launched a successful project to prove that the authority could be feasibly used to help raise the level of compliance with environmental standards. Now hundreds of such suits have been filed by citizens across the country.

Not surprisingly the regulated community has not been pleased with these citizen enforcement suits. Defendants have raised many legal and policy objections arguing that citizen enforcement of environmental laws has overstepped the statutory authority or is contrary to the public interest and unfair. A brief look at the most common of these objections is sufficient to refute them. Virtually all of these arguments have been rejected in one form or another by federal courts.

1. Citizens have no business doing the enforcement work of the government. Congress expected citizens to supplement government enforcement. Many violations are not sufficiently serious that the very limited government enforcement resources should be devoted to them. The fact that citizens can only enforce by going to court and that unsuccessful cases will result in citizens paying their own costs is sufficient protection against unjustified litigation. With citizen enforcement, the minimum level of compliance with environmental laws will be raised.

2. Citizen suits punish companies that never expected to be held to the requirements in their environmental permits. According to this argument many companies agreed to permit limits they were not sure they could meet and had unwritten understandings with federal and/or state authorities that violations would not be punished. Frankly, it is hard to believe sophisticated lawyers and clients would be so naive. There is not even a hint of authority for such secret deals in any federal pollution control laws. Such deals would violate the rights of citizens living near the affected plants, who have no way to challenge these shadow permits. Indeed, the permittees' neighbors may have declined to challenge the actual permits in reliance on the stated effluent limitations. In practice most companies that are successfully sued by citizens seem to find a way to come into compliance with these permits. Where there is a will, there is a way. Citizen enforcement helps create the will.

3. The threat of citizen suits will either delay issuance of new permits or result in less stringent limits, because citizens cannot be relied upon to be reasonable about enforcement. Industry claims that citizens will insist on literal enforcement of permits, therefore industry will extend the permit process insisting that all permit conditions clearly can be achieved. This curious argument seems to suggest that it is better to have unrealistic permit limits that are ignored, than realistic permit limits that are obeyed. It assumes that citizen enforcers will blindly sue companies that have made every effort to comply with their permits and have only trivial violations. It also assumes that citizens have no role to play in the permit issuance process. Hopefully, by having joined in the formal enforcement of permits, citizen groups will be welcomed into the permit writing and informal enforcing process. Citizens are as open to reasonable arguments as government, but they are less open to becoming institutionally committed to not making waves.

In sum, citizens for whose benefit all these laws were enacted have accepted Congress' invitation to play a more active role in protecting their own environmental interests. While this will admittedly require some period of adjustment, it is a natural and predictable result of the growing mood in the country which encourages more self-reliance. For those who used to believe that environmental permit limits were like parking rules, it should now be clear that the scofflaw will not be tolerated. This has and should continue to have a beneficial impact on environmental protection.

1. These statutes also regulate government activities, particularly municipalities. The regulation of government activities presents many special issues and problems which should be addressed separately from the main topic of this paper.

2. S. REP. 414, 92d Cong., 1st Sess. 9 (1971) (1972 Federal Water Pollution Control Act Amendments).