THE ROLE OF THE CITIZEN IN ENVIRONMENTAL ENFORCEMENT

ROBERTS E. and DOBBINS J.

Environmental Law Institute. 1616 P Street. N.W.. Washington. DC 20036, USA

This paper was written with guidance from Margaret Bowman, Director, Environmental Program for Central and Eastern Europe. Additional guidance was provided by Elissa Parker, Director of Research and Training.

SUMMARY

This paper explores the ways in which citizen involvement can improve the fairness and effectiveness of environmental enforcement. Section 1 of the paper discusses the overall value of such citizen involvement. Section 2 surveys the wide range of roles citizens can play in the enforcement process. Section 3 focuses on ways in which citizens can use the courts to work towards environmental enforcement goals. Section 4 examines citizen involvement in practice, highlighting some practical considerations relevant to designing and implementing citizen participation mechanisms.

1 INTRODUCTION

Citizens are one of a nation's greatest resources for enforcing environmental laws and regulations. They know the country's land and natural attributes more intimately than a government ever will. Their number makes them more pervasive than the largest government agency. And because citizens work, play, and travel in the environment, each has a personal stake in its beauty, health, and permanence. (1) Citizens are omnipresent, motivated, and uniquely interested in environmental quality.

A bird-watcher walking in the woods sees chemical waste flowing through a stream, traces the source to a neighboring factory, and alerts government agencies to the factory's violation of its emissions discharge permit. A local citizen group in a small town near a coal mine suggests to a state mining agency practical ways, based on the citizens' own observations of the mine in operation, of making environmental standards for mines easier to administer and enforce. A city resident notices that municipal buses are emitting noxious fumes, sues the bus company, and wins a court order requiring the company to place pollution control devices in the bus exhaust systems. These are just a few examples of the many and varied influences citizens can have on the process of environmental enforcement.

Drawing on the resources of citizens can enrich and strengthen the environmental enforcement process in several ways. First, citizen participation in environmental enforcement taps the direct, immediate connection between individuals and their environment. Citizens are uniquely knowledgeable about their own communities. Their day-to-day observations give them access to information about environmental conditions that the government could never obtain. Involving citizens in environmental enforcement encourages productive use of this information.

The intimate connection between individuals and their own communities also enables citizens to concentrate on localized environmental problems. A federal or even a state government agency might not consider such "small-scale" threats to the environment serious enough to justify action on the national or regional levels. But correcting these harms can be vital to the survival of a particular town or rural area. Citizen participation in environmental enforcement thus broadens access to enforcement resources.

Second, the injection of varied, non-institutional perspectives and information sources into the enforcement process may improve the quality of enforcement decisions. For example, the views of individual users of a national park on how a ban on logging in the park should be implemented may well differ from those of a timber company that wants to restrict logging by its competitors. Both are likely to be different from the position of the government enforcement agency which lacks the funds to investigate and prosecute violations. Allowing and encouraging the hikers and loggers to affect the outcome, by, for example, participating in government enforcement actions or suing on their own to implement the ban, may increase compliance, deter violations, and contribute to a more realistic and responsive environmental enforcement strategy.

The dynamic between citizens and the government agencies officially charged with enforcing environmental laws adds to the potential effect of citizen participation in this area. In the context of environmental enforcement, citizens and government are presumed to share a goal -- that of maximizing compliance for the good of all. This presumption of a common interest is reflected in the dual meaning of the adjective "public," when used in conjunction with the operation of a democratic system of government. In this context, "public" refers both to the citizenry at large -- which engages in "public participation" -- and to the government -- which formulates and implements "public policy."

Yet tension sometimes arises between these two "public" entities. The government may fear that citizen involvement in environmental enforcement will disrupt its own enforcement efforts and will reduce its flexibility to tailor enforcement decisions to particular circumstances. (2) Government enforcers may also believe that if enforcement actions in the courts are mounted on a piecemeal basis, rather than as part of a coordinated strategy, poor judicial precedents may be set that could hinder further enforcement efforts. (3) Consequently, government agencies sometimes decline to support, or may even resist, private enforcement initiatives.

Citizens, on the other hand, often suspect government agencies of not properly fulfilling their enforcement responsibilities. Citizens may view government employees as overly susceptible to the influence of the business interests they regulate. (4) Or they may attribute government inaction to bureaucratic inertia. Either way, agency enforcers often are seen as overlooking or impeding environmental protection goals. (5)

This tension between government and citizens can result in improved environmental enforcement. The government's desire to prevent citizen action it views as disruptive can encourage agencies to take their own regulatory or enforcement steps. The public's suspicion that government may not vigorously implement certain laws may prompt the legislature to grant citizens a statutory right to bring a lawsuit to require the government to perform its assigned regulatory duties. And in instances when the government insists on inaction, citizen participation can replace government enforcement. Not only may compliance be achieved, but the government can be forced to account publicly for its own inaction. (6)

When the interests of the government and the citizens are similar -- as is often the case -individuals can fill gaps in government enforcement caused by resource constraints. (7) The sheer size of the citizenry, for example, enables individual citizens to monitor compliance throughout the nation and identify violations an understaffed investigative agency might miss. An enlightened government agency can also use citizen volunteers to implement a comprehensive enforcement strategy. This could both help the government meet its enforcement objectives and avoid the potential conflicts that may result from piecemeal enforcement efforts.

Finally, public involvement in enforcement is a logical next step for democratic political systems that have encouraged public participation in the creation of environmental statutes and regulations. (8) Allowing citizens to have a concrete role in implementing the regime they helped to design strengthens public support for and awareness of environmental goals. If citizens are denied a role in enforcement, or if they are not educated about and encouraged to assume a permitted role, even the most sophisticated system of environmental protection laws may exist only on paper. Several countries in Central and Eastern Europe, for example, have for years boasted a system of stringent environmental controls. Yet these provisions have seldom been enforced by the government. (9) Nor do these countries have a tradition of citizen participation in public affairs that can be drawn on to promote or supplement government action. Developing and nurturing a role for the citizens in enforcement efforts could provide the missing ingredient necessary to make these countries' environmental protection goals a reality.

On paper, the environmental laws in Central and Eastern Europe are not dramatically different from those in the United States. Yet the U.S. has been more successful in implementing and enforcing those laws. One major difference between the two systems is the role of the citizen in the environmental enforcement process. The public has played an increasingly important role in the U.S. in forcing industry and government to comply with environmental statutes since the beginning of the modern environmental movement in the late 1960s. Over two decades of U.S. experience with citizen enforcement mechanisms have distilled some principles that may be applicable in other countries as well. Drawing on the experience of the U.S. and of selected other countries with various forms of citizen enforcement efforts, this paper analyzes various avenues for public participation in environmental enforcement.

2 THE RANGE OF PUBLIC INVOLVEMENT IN ENVIRONMENTAL ENFORCEMENT

Avenues for public participation in enforcement are many and varied. Some require special expertise, and some require only energy and common sense. Some involve working alongside the government, some place the citizen in the shoes of the government, and some call for citizens to oppose the government's activities. Some require extensive financial expenditures, and some cost only time. Separately or in concert, these mechanisms can help to effectuate compliance with environmental controls.

2.1 Collecting Information for Use in Enforcement

On the most basic level, citizens can use their eyes and ears to identify areas in need of further regulation and to monitor compliance in areas already regulated. (10) Individuals are uniquely qualified for this role. As ever-present observers in their local communities, citizens are particularly good at identifying unusual occurrences. They may, for example, notice the presence of an oil sheen on a river, an unusually serious emission from a smokestack, or the activity of a developer in a swamp. These occurrences might escape the government enforcer unfamiliar with community conditions and unequipped to perform frequent field investigations. Citizen monitoring can occur informally, as a result of chance observations of individuals in their communities. Citizens can also monitor on a more regular basis through community, regional, or national environmental organizations.

Such citizen participation in information-gathering and reporting efforts is critical if enforcement goals are to be met. The sheer size of environmental problems and the increasing demands on limited government resources combine to make environmental agencies woefully unequipped to perform all necessary investigatory and monitoring duties. In the United States, for example, over 60,000 permits have been issued under the Clean Water Act alone -- only one of several environmental protection statutes -- and government funding for enforcement efforts has consistently fallen throughout the last decade. (11) Government agencies simply cannot take full responsibility for gathering the information necessary for effective environmental enforcement.

2.1.1 How to Assemble Information

2.1.1.1 Physical Observation

Methods of collecting valuable environmental data are numerous. One way is to gather information from physical observation. For example, some organizations in the United States have begun "harborwatch" programs to identify oil spills or other emissions in local harbors. (12) Others teach citizens to "walk" streams, identifying locations of pollutant emissions and observing the effects of these emissions on water quality or indicator species. (13) Although detailed scientific monitoring of pollutants is too expensive and complex for most individuals to undertake, certain simple tests (judging the density of plumes of air pollutants, for example) can be learned by citizens. (14) Violations identified through these information-gathering activities can then be reported to environmental organizations or government agencies or can be publicized through the media.

Because of the benefits that can be gained from citizen monitoring, government often chooses to promote these activities. Government support may range from establishing an office to receive reports of violations to providing funding for citizen groups collecting environmental information. Through such programs, federal and state government agencies in the U.S. have been able to accomplish monitoring that would otherwise be impossible by tapping into the time and energy represented by concerned individuals.

Although many environmental problems are obvious from a distance, it may be difficult for citizens to acquire detailed information about threats to the environment that can only be perceived at close range. Sometimes citizens can take advantage of public access to natural resources to scrutinize potential violations. For example, in the United States, the public is allowed access to rivers, streams, and beaches, and can use those routes to approach and examine points of pollution emission. (15) If access via public waters is not possible, a more costly alternative for obtaining information would be to take to the open skies to monitor pollution emissions or the management of natural resources from the air. (16)

In most cases, however, the activities that threaten to violate environmental controls will take place on private property to which citizens will not have direct access. One approach to encouraging citizen involvement in environmental enforcement would be to permit citizens to enter private property to undertake environmental monitoring when warranted by a serious threat to public health. Another option would be to allow citizens to assist the government in carrying out its own environmental monitoring activities. For example, water quality legislation in Argentina allows private parties who have filed a complaint about a facility to participate in any inspection of the facility during the investigation. (17)

Another means of obtaining access to private property for monitoring purposes is for a citizen to file a lawsuit against an alleged violator. In the United States, filing such a lawsuit allows a plaintiff to conduct discovery on topics relevant to the case -- including, in lawsuits brought to enforce environmental laws, the extent of the pollution caused by the alleged violator. As part of this discovery process, the court can order the defendant to admit the plaintiff to its property to collect such information. (18)

2.1.1.2 Use of Government Information

Citizens can also gather data about environmental violations through the use of information collected by the government, either through its own efforts or by means of reporting requirements imposed on polluters. In the United States, for example, many federal and state environmental regulations require regulated parties to submit periodic reports about their pollution emission levels or their storage, use, and discharge of hazardous materials. (19)

In order for the information gathered by the government to benefit the public, citizens must be afforded access to that information. Several means of citizen access to government-held data are provided in the U.S. Some U.S. environmental statutes that impose self-monitoring and reporting requirements also require the data reported to be made publicly available. In addition, the federal government is subject to a generalized information access law, under which the public can ask to review or copy certain information in the possession of government agencies. (20) Finally, for citizen monitoring to be truly effective, it is important that citizens be able to compare the monitoring reports against clear compliance standards, such as individualized permits or regulatory limits. (21) These standards must also be publicly available.

2.1.2 How to Use Information

Once citizens have gathered environmental data and sifted through it to identify violations, they may put their information to a number of uses. One possibility would be to approach the violators directly in an attempt to induce voluntary compliance. Publicizing the violations in the press or through community meetings could create pressure on industrial polluters to comply.

The citizens could also choose to alert the government to their findings. In the United States, most state and federal agencies are set up to receive information reported through both formal and informal citizen monitoring. (22) Of course, there is no guarantee that agencies can or will act on the report of a citizen. If the government decides that enforcement proceedings are warranted, however, information gathered by citizens -- or testimony about observations by citizens -- may be used in court as evidence against the violators. Under some U.S. statutes, if the information provided leads to a criminal conviction or civil penalty, the government may reward the reporting citizen with up to $10,000. (23)

Alternatively, citizens may be able to use the information they have collected by going to court themselves to enforce environmental controls. (24) For example, after collecting and analyzing a large volume of water pollution reporting data, one U.S. environmental organization filed a series of lawsuits against industrial polluters who were violating toxic discharge limits contained in their permits. This concerted litigation effort was largely responsible for the initial growth of citizen suits in the United States in the mid-1980s. (25) Considerations relevant to determining how citizens might be able to advance environmental enforcement goals through the court system are discussed in more detail in Section 3 of this paper.

2.2 Participation in Government Regulatory or Enforcement Action

A second avenue of citizen involvement in environmental enforcement enlists the resources of citizens to complement agency regulatory or enforcement efforts. In this context, the government will have chosen a particular vehicle for accomplishing environmental protection goals, and the citizen will bring his or her viewpoint to bear in ensuring that the government's actions are as well-informed and effective as possible.

2.2.1 Commenting on Regulations and Permits

A government agency charged with administering an environmental statute may have decided to issue a regulation setting specific standards by which to achieve the goals spelled out in the law. Or the agency may have already established such standards, and it may be working within them to determine the content of a particular polluter's environmental permit. Allowing the public to comment on proposals for regulations or on the terms and conditions of permits may aid in future enforcement activities. The public can contribute practical knowledge of real-world conditions that will help the agency to devise rules or issue permits that are feasible and effective. In addition, the public can review the regulations and permits with an eye towards future enforcement efforts and ensure that the regulations and permits contain clear standards and procedures that will ensure simple and effective enforcement. (26)

2.2.2 Participating in Government Enforcement Actions

If the government has chosen to bring an enforcement action against an alleged polluter, a citizen can still play a role in the enforcement process. Several mechanisms exist in the United States that permit citizens to make their views known during enforcement proceedings. For example, citizens may intervene in suits brought by the government against potential violators. By joining a lawsuit as an interested party, a citizen would not have primary responsibility for prosecuting the case, but could still take part in negotiations and make his or her perspective known to the judge. Because the court may be reluctant to strain judicial resources by allowing unrestricted participation in the lawsuit, the right to intervene might normally be limited to citizens with tangible interests in the outcome of the case. (27) However, most U.S. environmental statutes that authorize citizen enforcement suits also grant citizens the right to intervene in government enforcement proceedings. (28) In any event, even citizens with purely ideological concerns can participate in a case by filing non-binding amicus curiae, or friend-of-the-court, briefs setting forth their positions.

2.2.3. Reviewing the Terms of Consent Decrees

Finally, the filing of a lawsuit, or even the threat of a lawsuit, by the government will typically lead to negotiations between the government and defendant. In many cases, the parties can agree on a settlement without resorting to a court adjudication. In enforcement actions, these agreements, called consent decrees, are usually entered with the court as a sort of contract between the parties and have the same enforceable effect as a court judgment. If a citizen has intervened in the case, that citizen will be a party to the consent decree and will be involved in the settlement negotiations. (29) Even when a citizen is not actively participating in the case, the government prosecutor may be required to publish the proposed consent decree and request public comment on the decree. (30) Any comments by the public on the decree can be filed with the court, which will take them into account in approving or rejecting the agreement.

2.3 Recourse to Courts When Government Is Unwilling or Unable to Act

A third category of citizen involvement consists of instances in which the public may seek direct access to the courts to accomplish environmental enforcement objectives. For example, citizens may go to court to prompt tardy government regulatory action. The defendant in such a case would be the responsible government agency, in its capacity as a regulator.

Alternatively, citizens may mount enforcement actions against violators of environmental controls when the government lacks the desire or the ability to prosecute. In the course of its operations, the government itself may engage in conduct that harms the environment. This is particularly true in countries, such as the post-communist nations in Central and Eastern Europe, in which industry and property ownership have been nationalized. Therefore, the defendant in an enforcement suit could be either a private party or a government agency acting in its proprietary, rather than its regulatory, capacity.

2.3.1 Lawsuits Pressuring Agencies to Regulate

2.3.1.1 Non-Discretionary Agency Decisions

Most environmental protection statutes in the United States set forth general goals or objectives, while delegating to an administrative agency the responsibility of implementing those general goals through regulations and the issuance of permits. For example, a statute may direct that discharge of toxic pollutants into surface waters be reduced by a certain percentage, and it may charge the agency with the tasks of defining which pollutants are covered by the directive and approving plans to achieve the specified goal. If the agency does not perform its obligations under the statute, the target set forth in the law will never be achieved. One essential role of citizens may be to ensure that agencies carry out the tasks the legislature has assigned to them.

Citizens could be permitted to fulfill this role in several ways. One way would be to allow citizens to go to court to force agencies to perform their specific statutory assignments. Several U.S. environmental statutes contain provisions allowing citizens to seek judicial review of an agency's failure to act as the legislature has instructed. (31) These provisions permit "any person" to bring suit against an agency for failure to perform an act or duty which is not discretionary under the statute -- i.e., for not doing something that the statute says the agency "shall" do. (32) The citizen must notify the agency before bringing the suit to give the agency an opportunity to avoid litigation by performing the required regulatory action. If the citizen wins the suit, the court may order the agency to perform the act or duty it has delayed. (33)

2.3.1.2 Discretionary Agency Decisions

Although the mechanisms described above allow citizens to require government action in cases where the legislature has mandated it, they do not necessarily extend to situations in which the decision whether or not to regulate is within an agency's discretion. Nor do they allow citizens to prescribe the content of the regulatory action taken by the agency. In the United States, citizens can challenge discretionary agency decisions about whether and how to regulate, either under particular environmental statutes or under a generalized act governing the procedures to be followed by administrative agencies. (34) However, prevailing in these discretionary suits is difficult. Typically, an agency's substantive decision will be reversed only if it is found to be "arbitrary and capricious" or if it is "contrary to law." Courts have interpreted the "arbitrary and capricious" requirement as warranting reversal of an agency action only when the action lacks any reasonable basis in fact. Moreover, U.S. courts tend to defer to agency decisions in matters within the regulatory expertise of the agency. Courts will even defer to a "reasonable" agency construction of the statute the agency is administering, barring clear statutory language to the contrary. (35)

Even though it may be difficult for citizens to succeed in such suits by challenging the substantive outcome of a discretionary agency decision, challenges to the method by which the agency reached its conclusion may be more promising. Experience in the United States has shown that courts will defer to agencies' substantive decisions, but only if they are sure that the agency has taken a "hard look" at the available options. If the decision making process appears sloppy, or if the views of certain constituencies have been entirely ignored, the court may find that the agency has acted in an "arbitrary and capricious" manner. The threat of citizen challenges to discretionary decisions is thus an effective means of ensuring that agencies at least consider the perspective of the public in their decisions. (36)

2.3.1.3 Enforcement Decisions by the Agency

In the United States, the reluctance of courts to infringe on the discretion of government agencies has also precluded the public from contesting an agency's decision not to take a particular enforcement action. Federal and state agencies in the United States enjoy the doctrine known as "prosecutorial discretion," which leaves the decision whether or not to enforce a requirement against an individual entirely to the judgment of the prosecuting party. (37) Even though citizens cannot force agencies to take enforcement action, they may be able to take on the role declined by the agencies and sue the violators themselves. (38) These citizen enforcement actions are discussed in Section 2.3.2 below.

2.3.2 Lawsuits Pressuring Others to Comply with Laws, Regulations, and Judicial Standards

If the government has made clear its intention not to prosecute, or even simply if a citizen has a personal stake in a matter that a remedy provided under an environmental statute cannot adequately satisfy, the citizen may decide to enforce environmental controls against a violator. In the United States, citizen enforcement of environmental controls can be pursued directly by means of citizen suit provisions contained in particular environmental protection statutes.

Even in the absence of a statutory authorization of citizen suits, opportunities exist for citizens to obtain judicially-enforced sanctions against industrial or government polluters. Countries with systems of rights and remedies that have evolved from a tradition of case-by-case adjudication, such as the United States or Great Britain, offer "common law" causes of action to protect against or redress environmental harms. And in other countries whose legal system is based on a civil code, that code may provide general environmental rights that can serve as the basis for judges to remedy environmental harms in particular cases.

2.3.2.1 "Citizen Suits" or "Enforcing Suits"

One method of harnessing the energy and commitment of citizens to effectuate public environmental protection goals is to authorize citizens to enforce environmental laws and regulations. In the United States, most environmental statutes contain "citizen suit" provisions enabling citizens to prosecute violators of the statutory regime. (39)

Such citizen suit provisions have their roots in over two hundred years of U.S. law. Since 1790, United States citizens have been able in limited cases to sue to vindicate certain public rights -- those granted by statute to the population as a whole. (40) These citizen suits have been used to enforce federal regulations in diverse areas ranging from antitrust to consumer protection. (41) Citizen suit provisions are said to create "private attorneys general," for they confer upon the individual the right to enforce public laws against other citizens.

Although the concept of a citizen suit is not new, the statutes permitting citizen enforcement of environmental laws and regulations are unique. In most other areas where citizen suits are permitted, a personal economic interest, such as an interest in correcting unfair competition or preventing fraud, must coincide with the claimed public rights. In citizen suits brought under environmental protection statutes, however, there is no such personal economic stake in the outcome. The environmental statutes truly provide citizens with the authority to represent the interests of the public. Environmental citizen suits, in their strongest form, might even be characterized as permitting citizens to sue on behalf of the environment itself. The United States is almost unique in this grant of power to the private citizen: Few other nations have extended such rights. (42)

The U.S. Clean Air Act (CAA), enacted in 1970, was the first federal environmental statute of the modern era with a citizen suit provision. The CAA provision's underlying structure is the basis for citizen suit clauses in almost every other major piece of federal environmental legislation. Today, citizens can bring suit against private parties and government for violations of certain sections of statutes regulating air, water, toxic waste, endangered species, mining, noise, the outer continental shelf, and more. (43) Under many statutes, the remedies available to the citizen are equivalent to those granted to the federal agency charged with administering the statute. (44)

The basic citizen suit provision permits any "person" (including an individual, organization, or corporation) to sue any other "person" (including the United States) who is violating the requirements of the given Act. Before filing suit, a citizen must notify state and federal agencies as well as the alleged violator that a lawsuit is impending. This notice provision serves an important purpose, because the threat of a citizen suit often prompts the violator to halt its violations, or at least to negotiate with the potential plaintiff. As long as the violation continues and the state or federal government is not pursuing a "diligent enforcement" action against the alleged violator in court, a lawsuit may be filed. Once the suit is filed, the government has no power to dismiss it, and may affect the outcome only by intervening in the case.

If the citizen wins, the court may order the defendant to stop the violating activities. In certain circumstances, the court costs and attorney fees associated with bringing the action may be awarded to the plaintiff. Some statutes allow the plaintiff to ask the court to impose civil penalties upon the violator, payable to the U.S. Treasury. (45)

2.3.2.2 Common Law or Civil Code Suits

Even in the absence of mechanisms for enforcing specific environmental controls set forth in a system of statutes and regulations, citizens can still achieve environmental protection objectives in the courts. Both common law systems such as that in the United States and the civil code systems that prevail in many other countries provide latitude for judicially-developed methods of remedying environmental harms. Under these systems, environmental controls are not enshrined in statutory or regulatory standards, but are developed on a case-by-case basis by courts applying general legal principles to the facts of each lawsuit. A receptive judiciary can employ the flexibility inherent in such systems both to offer citizens redress for environmental degradation that injures them individually and to correct harms to public environmental interests.

2.3.2.2.1 Common Law Suits

Prior to the adoption of recent environmental statutes in the United States, the only way in which a private citizen could prevent environmental harm through the courts was by exercising his or her rights under common law. These rights are based on precedents set during centuries of case-by-case adjudication in Great Britain and the U.S. They allow individuals to counteract harms caused by the behavior of others by seeking compensation for those harms and/or obtaining a court order halting the offending behavior. Even with the advent of statutory citizen suit provisions, common law causes of action continue to provide an important mechanism for achieving environmental protection goals.

Most common law environmental claims require some injury or threat of injury to the plaintiff's person or property. The most common "environmental" common law action is that of private nuisance. A person suffering a "substantial and unreasonable interference with the use and enjoyment of an interest in land" can bring a private nuisance suit. For example, a property owner could sue a neighboring factory for emitting dangerous or even annoying fumes that permeated his or her property. Another common law claim for injury to property is trespass, which requires an actual physical invasion of the property's limits. A fuel storage facility whose tanks leaked oil that flowed into a neighbor's fish pond might be liable to the pond-owner in a trespass suit.

Common law actions can compensate for injury to one's person as well. For example, someone who lives near a toxic waste dumping site, and who becomes sick from fumes emanating from the site, may be able to sue the owner of the site on the basis of that injury. If the plaintiff joins together in one lawsuit with other citizens living near the site who have suffered the same damage, the resulting "class action" lawsuit can have a significant effect on the polluter's behavior.

The potential strength of such common law suits as a weapon in the environmental enforcement arsenal stems from the financial costs they can impose on a violator. Common law claims are the only avenues through which individuals can recover for damage to themselves or their personal property. And damages awarded in such suits in the U.S. can be substantial. For example, a potential court judgment for personal injury resulting from toxic pollution could include compensation for medical expenses, lost wages, and diminished earning capacity. Damages in a common law suit involving a newborn baby who will be permanently disabled by injuries caused by the defendant's polluting activities could easily amount to millions of dollars. (46) The threat of a sizeable award of damages can substantially strengthen a citizen's power to trigger compliance -- it can deter potentially polluting activities and force industry to pay attention to citizens' claims.

The common law actions described are aimed primarily at correcting violations of individual rights. By fining a defendant for such violations, or by ordering a halt to the offending activity, they can lead to broader environmental benefits as well. The common law also provides mechanisms through which citizens can vindicate public, rather than private, rights. These doctrines generally require that the plaintiff share some personal stake in the "public" goal pursued in the suit; moreover, they do not allow the plaintiff to recover money damages from the defendant unless the plaintiff has suffered injury to his or her person or property. Nonetheless, the doctrines of public nuisance, public trust, and certain broad statutory mandates reveal some of the possibilities inherent in the flexibility of judge-made law.,

Public nuisance involves interference with public rights such as the right to health, safety, or comfort. Traditionally, only the government could sue to protect these rights. Recent developments, however, allow suits by individuals who suffer "special injury" different in kind from that suffered by the rest of the public. (47) A second common law action that recognizes communal rights is known as the "public trust" doctrine. This doctrine posits that the government must hold public lands and natural resources in trust for the use and enjoyment of the citizens. If the government fails to consider this trust in its management and maintenance of resources like navigable waters, fisheries, or parklands, individual citizens may sue those in control of the lands. (48) While the doctrine is, at first glance, not applicable to privately-owned land, some state and federal courts have hinted that a regulatory or contractual link between the landowner and the government may be enough to bring the doctrine into play and to render the landowner liable for environmental harms. (49)

Finally, some U.S. states have explicitly recognized public rights to environmental quality in their statutes and constitutions. Most constitutional provisions have been ineffective, because they do not permit citizens to sue for the violation of their constitutional environmental rights. Michigan's unique Environmental Protection Act, adopted in 1970, has been more successful. The Act permits any person to sue any other person "for the protection of the air, water and other natural resources and the public trust therein from pollution, impairment or destruction." (50) It grants courts broad powers of review of both individual and agency actions, and permits orders altering or halting the harmful activities unless there is no "feasible and prudent alternative consistent with the reasonable requirements of the public health, safety, and welfare." Michigan courts have interpreted the Act as conferring upon them the responsibility of creating "the equivalent of an environmental common law." (51)

2.3.2.2.2 Civil Law Suits

Civil code countries also offer judicially developed remedies for environmental harms. In civil code countries, standards governing environmental quality are codified, and judicial precedent is not as important as it is in common law systems. At the same time, however, code provisions relevant to environmental quality are usually general in nature, and thus are open to interpretation by judges applying the provisions in particular cases.

Most civil code standards that can protect environmental quality are similar to those available under common law, especially those actions preventing or recovering for harm to property or person. (52) Many civil codes also contain provisions that appear to go further than the common law in granting individuals the right to enforce public environmental interests. For example, Hungary's code allows individuals to sue others for violating an obligation not to behave so as to disturb others needlessly, "especially neighbors." The "neighborhood" encompassed by this provision is not restricted to property immediately adjoining the site of the polluting activity, but includes anyone affected by the pollution. (53)

In Colombia, the civil code provides for "popular actions," which permit citizens to sue for damages to communal environmental rights. (54) And in Argentina, courts have made use of a constitutional guarantee called amparo, which can be loosely translated as "protection," to defend individual or collective environmental rights derived from statutes, international treaties, or the constitution itself. (55)

3 THE STRUCTURE AND FUNCTION OF COURT ACCESS MECHANISMS

The court actions described above can be potent methods of achieving environmental compliance. They may not be appropriate in every case, however. For one thing, going to court will not always be a feasible option. Mounting a private lawsuit is a costly undertaking. It will probably require hiring an attorney, paying court filing and transcription fees, generating and duplicating legal briefs and other documents, and conducting extensive discovery to assemble the facts necessary to prove one's case. These efforts may exceed the capability of a private citizen.

Frequent recourse to litigation as a method of achieving environmental compliance can pose societal disadvantages as well. Some commentators in the United States have complained that public interest lawsuits create a logjam in the courts and strain overtaxed judicial resources with frivolous or peripheral claims. Others claim that promoting litigation as a preferred alternative for citizen involvement in environmental enforcement creates an atmosphere of adversarial hostility that may discourage future cooperation.

Despite these potential limitations, the ability of citizens to obtain judicial relief from environmental harms can be a valuable enforcement tool. First, citizen access to court remedies improves the quality and fairness of the enforcement process. Allowing citizens into court helps to guarantee that other important players in the political system -- such as industry and government -- will give citizen viewpoints their due. Without such a guarantee, the voices of citizens advocating environmental protection may be drowned out. For example, a large business engaging in polluting activities may be inclined to disregard the views of local citizens who want to impose pollution curbs. The government, in turn, might give citizen comments during regulatory proceedings less weight than those of industry, whose lobbyists may be more vocal and well-financed and who may have developed ties to the regulators.

Citizen suits can serve as the microphone that helps citizen views to be heard. Before the court, all litigants are equally deserving of a fair hearing in each case. A citizen with access to a court action can invoke the power of the judiciary in the service of her cause. The availability of an enforcement suit enables individuals and organized citizen groups to secure treatment as equals by government and industry. Opening the courthouse door to citizens thus promotes the rule of law over the rule of politics and advances the common goal of environmental protection.

Enabling citizens to implement environmental protection objectives in the courts also reinforces other forms of citizen participation in environmental enforcement. For example, citizens may prefer to focus primarily on participation in government regulatory or permitting processes in the ways discussed in Section 2.2.1 above. The knowledge that citizens can challenge the government's outcome in court may increase the agency's attentiveness to such comments and enhance the usefulness of the public's efforts. Ensuring that citizens will be heeded increases the value of their message, whatever mechanism they may choose to convey it.

Finally, allowing citizens to sue can have concrete effects on a society's progress towards implementing environmental controls. Actual litigation need not even occur in order to achieve this result. The very possibility of an enforcement suit against a violator may be sufficient to trigger compliance, influence industry to enter into a negotiated agreement with the citizens, or otherwise induce a polluter to alter his behavior, thus obviating the need to sue at all. Experience in the U.S. with citizen suit provisions has revealed that the mere notification to a violator that a citizen intends to sue often prompts the potential defendant to cease the violations.

3.1 Why Sue?

Whether a citizen will need to have recourse to the courts, and if so, through what mechanism, will depend on what that citizen hopes to achieve. For example, a citizen may be motivated to respond to environmental harms by seeking money for herself or for the government. The citizen may want the government to take some sort of regulatory action. Or she may simply want to put a halt to the polluting activity.

Given the cost and effort involved in bringing suit, citizens may prefer to explore other methods of attaining their objectives. For example, a civic group targeting permit violations by a local industrial water polluter might first try to induce voluntary compliance by confronting the polluter directly. If that effort did not succeed, the group could approach the local media with information it had collected about the violations, hoping to embarrass the polluter into compliance. An alternative step might involve forwarding evidence to the government for enforcement action.

If these various approaches were not successful, the civic group could file a court complaint against the polluter under an environmental statute containing a citizen suit provision. Even that course of action might well stop short of a trial or other judicially determined outcome. Merely notifying a polluter or a government regulator that a lawsuit is impending, as most citizen suit provisions require, often triggers "voluntary" compliance by the polluter or regulatory or enforcement action by the government. The prospect of court action may also prompt the parties to settle the case between themselves rather than engaging in expensive and time-consuming litigation. Settlement substitutes a definite, certain result for the unpredictable risks of a trial. (56) In the United States, litigants have found this trade-off appealing: over 90 percent of the lawsuits filed in the United States are resolved without a trial. (57)

3.2 What Kind of Lawsuit to File?

The objective of a potential citizen plaintiff -- the legal "remedy" the plaintiff desires to obtain -- will determine both the range of available litigation strategies and the way in which the case will proceed. A political system is likely to impose controls on a citizen's access to remedies that will vary with the nature of the remedy itself. The structure imposed by the government, in turn, will influence the citizens' enforcement strategies. This section surveys the various methods in which a citizen may be able to achieve a particular enforcement goal.

3.2.1 Lawsuits to Obtain Money Damages

3.2.1.1 The Nature of the Remedy

One goal of a citizen lawsuit might be financial compensation to the citizen for environmental harm caused by a polluter. It may be appropriate to set relatively strict limits on the ability of a plaintiff to obtain such compensation. Those responsible for designing and implementing a system of judicial enforcement may decide that financial benefits should only accrue to someone who has actually suffered from the complained-of harm.

In the United States, for example, a litigant seeking money damages for environmental harms is limited to the common law causes of action described above in Section 2.3.2.2.1, which generally require an actual injury to the plaintiff's person or property. The U.S. government has chosen not to supplement that avenue with a statutory damages remedy. Because citizen suits under environmental statutes are designed to vindicate public rather than private rights, they do not allow plaintiffs to recover any personal damages for violations of environmental laws and regulations. (58)

3.2.1.2 The Elements of the Case and the Method of Proof

In order to win damages in a suit at common law, a plaintiff is required to establish several elements. The plaintiff must prove that the defendant has violated an expected standard of conduct -- by intentionally or negligently acting in a manner likely to result in harm, for example. The plaintiff must also establish that the defendant's behavior has caused actual damage to the plaintiff. This element of causation can be especially difficult to prove. In the case of injury to health resulting from toxic pollution, a plaintiff may have to supply scientific evidence and analysis establishing a physical link between the particular polluting activity and the harm. The long latency period that may intervene between a release of toxic substances and the manifestation of a resulting injury contributes to the difficulty of proving this element. (59)

In a private nuisance lawsuit, a plaintiff would also be required to establish that the harm resulting from the defendant's conduct outweighs the social utility of the polluting activity. This too can be a heavy burden, because it may force the court to weigh the plaintiff's right to grow crops that are free from pollution damage against the community's desire to retain the jobs created by the defendant's polluting factory.

In some instances, a system of government might conclude, the public interest warrants reducing the burden of proof on a plaintiff seeking financial compensation for harms caused by polluting activities. In the United States, courts responsible for developing and interpreting the common law have made several such adjustments. One example is the creation of different rules of liability for what courts have determined are "abnormally dangerous activities," such as the transportation of hazardous waste. Courts have concluded that the defendant conducting abnormally dangerous activities has voluntarily taken on the risk of causing harm to others. The defendant thus should be "strictly liable" for the resulting damage, even when the defendant's actions were not negligent or intentional.

Judicial rules can also lessen a plaintiff's burden of proving the causation element of a common law damages case. For example, a judicially established presumption that certain kinds of polluting activity cause certain kinds of physical damage might allow a plaintiff to recover without proving conclusively that the defendant's practice was the actual cause of her injury. (60)

The existence of statutory or regulatory environmental standards can assist a plaintiff as well. Federal or state statutes regulating toxic chemicals may serve as evidence of the chemicals' toxicity. In addition, violation of the regulatory requirements can demonstrate negligence on the part of the defendant. Similarly, "right-to-know" laws often require companies to reveal to workers and communities the dangers associated with any toxic chemicals that the companies store, use, or release. A judge may conclude that this statutory reporting requirement assigns to the defendant a duty to warn the plaintiff of known hazards, and that violation of the requirement breaches that duty. (61) Environmental standards enacted by the legislature and refined by administrative agencies can thus influence the development of judge-made law.

3.2.2 Lawsuits to Halt Violations

3.2-2.1 The Nature of the Remedy

A plaintiff whose desired remedy is a court order requiring a polluter to stop the polluting activities may be offered more avenues for judicial relief and may face fewer hurdles to recovery. In the United States, this form of remedy is termed an injunction. It is the most likely outcome of a successful suit to enforce public rights, either under the common law or under an environmental statute. An order barring or otherwise limiting future environmentally harmful activity may also be the outcome of an environmentally-based suit in a civil code system.

3.2.2.2 The Elements of the Case and the Method of Proof