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