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Contemporary Issues In Citizen Enforcement of Environmental Laws

Randy Dann, Alex Hardee, Shalyn Kettering, Today's Environmental Agencies: Regulatory Enforcement, Citizen Suits, and the Natural Resources Industries (Dec 2018)

Environmental laws owe their effectiveness to two features: substantive standards and enforceability. Substantive standards are what the law requires; enforcement is what turns the words in a statute into actual environmental gains. For instance, the Clean Water Act (CWA) prohibits any discharge into navigable waters without a permit; the Clean Air Act (CAA) requires the "best available control technology" on major new air pollution sources in areas that meet national ambient air quality standards; and the Endangered Species Act prohibits "taking" any protected species without an incidental take permit.2 Each of these legal requirements, and many more, have meaning because there is a common presumption of enforcement. As Senator Lieberman stated, without effective enforcement, environmental protection "lacks meaning, lacks truth, lacks reality."3 One key component of environmental enforcement is citizen suit provisions, which are built into most environmental statutes to allow enforcement by individuals or groups. This paper offers some perspectives on contemporary issues in citizen suits. It first summarizes the rationale and mechanics of citizen suits, as well as common legal defenses. Then it describes recent developments in citizen suit practice and jurisprudence that are pertinent both to citizen plaintiffs and potential defendants. It closes with a discussion of potential areas of alignment between these two groups. 2. Background Compliance with the law is not automatic. In an early study of the effectiveness of the CWA's National Pollutant Discharge Elimination System (NPDES), the Government Accountability Office (GAO) found that 82 percent of selected dischargers exceeded their permit at least once during an 18-month period, and that nearly a third were in open noncompliance with their permit.4 The difficulty of enforcement, compared with setting standards on paper, led Justice Brennan to conclude that "[u]ltimately, enforcement of the laws is what really counts."5