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Citizen Suits: The Litigation Threat of the 1990's

Dean R. Massey, David A. Bailey, Laurie L. Korneffel, Proceedings of 39th Annual Rocky Mountain Mineral Law Institute (1993)

In 1970, Congress enacted the first federal citizen suit enforcement provision in an environmental statute.1 Although this initial foray into government-sponsored private enforcement was limited in scope, the prosecutorial power afforded private citizens has since been expanded and private enforcement is now authorized under most major environmental statutes.2

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The privatization of enforcement in the regulated environmental arena was actively debated in Congress. Proponents viewed citizen suits as a means of sparking agency enforcement, and as an alternative enforcement mechanism absent agency enforcement.3 But opponents of the citizen suit legislation expressed concern that private suits would flood the courts with litigation, inhibit government-initiated regulatory actions, and cause the uneven application of environmental laws, thereby defeating Congress' attempt to create a cohesive national environmental policy. To assuage the opponents' concerns, a sixty-day notice requirement was included in the final citizen suit provision in order to ensure that citizen suits would be subordinate to agency enforcement.4 A sixty-days' notice has since been made a requirement of most citizen suit provisions.5

Because the various environmental statutes include very similar citizen suit provisions, most courts will use case law applying to the various stat