ENVIRONMENT: Citizen Suit, Supreme Court helps define when the public has a right to sue to enforce environmental laws

A series of recent U.S. Supreme Court cases have provided direction on when a lawsuit may be brought by the public to enforce environmental laws.

Many environmental laws, both state and federal, include “citizen suit” provisions which allow the public to bring a lawsuit when citizens feel that state and federal officials are not enforcing environmental laws. Supreme Court decisions in the 1970s and 1980s provided wide discretion and permission for such public policy suits to proceed.

However, with new Supreme Court members in the 1990s, the right to bring such lawsuits became more strictly interpreted under the Constitution.

Generally speaking, an individual’s right to bring such an action on behalf of the public is limited to circumstances when the citizen suffers an injury which is different than the injury suffered by the public at large. The individual then must provide 60 days notice to the potential defendant and state and federal officials that they intend to sue.

This 60-day window allows the defendant to reform their conduct and comply with the law that was violated. This notice also gives state and federal agencies the opportunity to pursue enforcement.

If state and federal agencies are already pursuing an enforcement action to achieve compliance, then the public’s right to sue is barred.

Supreme Court cases which developed over the mid- to late-1990s limited the number of actions which could be brought under state and federal laws by indicating that in most cases, an individual does not suffer a specific harm that is different than that suffered by the general public. Thus, an individual could not sue under the Clean Air Act for general air pollution because the public at large was affected by the same air. However, if the individual lived adjacent to the polluting entity and had soot fall on his house, this would be a harm not shared by the general public and a right to sue under state and federal environmental laws may exist.

For the industry defendant, the downside of such a citizen suit is great if such a suit survives the above “standing” issues. Specifically, an industry defendant may face fines and penalties up to $25,000 per day if non-compliance is proven by the complaining citizen.

The most recent Supreme Court decision indicates greater flexibility for citizens alleging individual harms which are inconsistent with the public harm. In that case, the Supreme Court held that an individual’s aesthetic, recreational and possibly economic interest may be directly affected by the industry defendant’s actions. If the individual could prove that he or she had a direct loss associated with the industry defendant’s non-compliance, they had standing to sue.

However, the Supreme Court’s decision is not a green light for new litigation. The Court acknowledged that the intent of Congress was to limit such citizen suits to circumstances where state and federal agencies are not doing their job. Thus, such suits may proceed only when the conduct complained of by the plaintiff will occur continually in the future or has a substantial likelihood of continuing.

Additionally, if the industry defendant can correct the violation prior to the expiration of the 60-day notice, the citizen’s lawsuit becomes moot and cannot be pursued.

Business and industry interests would be well advised to take seriously any written demands or notices by citizens because of the potential exposure to fines and penalties, should the suit be recognized as having merit.

Joseph Quandt is a partner with the Traverse City law offices of Menmuir, Zimmerman, Kuhn, Taylor and Quandt. His practice focuses on environmental and business matters. He is also a professor of environmental law at the Thomas M. Cooley Law School in Lansing.

This article is intended to address information of general interest. It does not provide, nor is it intended to provide, any legal advice regarding any particular situation or subject. BIZNEWS