Citizen Suits 30 Years On

1
Citizen Suits 30 Years On

• Based on James Mays article, Now More Than Ever
  . . .
• Widener L. Rev. (2003)

2
Mays Bottom Line The experiment worked

• Removed billions of pounds of pollutants
• Protected hundreds of RTE species
• Saved taxpayers billions
• Defended thousands of acres of land

3
Trends in Notices of Intent

• 1978-82 total NOI 125
• Early 1980s NOI 100/year
• 1995-2002 NOI 550/year (2 per business day),
  exceeding EPA referrals

4
Trends in Filings

• More than 2000 cases (total) have been filed
• Equivalent to one filing per week
• 426 filed since 1995declining rate (Laidlaw?),
  but some rebound
• 3 out of every 4 Environmental Law opinions is in
  a citizen suit

5
Trends in Plaintiffs

• Early 80snearly all plaintiffs were
  environmental groups (Oh, really?)

• Now1 case in 3 brought by companies, landowners,
  developers, industry, states

6
Reactions of Enforcement Agencies

• Federal agencies enforcing less
• State agencies enforcing much less
• DOJ enforcing less
• Sweetheart settlements

7
Reactions of the Judiciary

• Limited constitutional defenses (standing, sep.
  of powers), but--
• Strict notice requirements
• Diligent prosecution liberally construed
• Strict construction of mandatory duties
  (statutory mandate plus time limit)
• Limited relief
• Limited fees

8
Why are citizen suits a good thing?

• Hold bureaucracies accountable, motivate action
• Uphold bicameral lawmaking and tripartite
  governance
• Enhance public participation
• Enforce the Rule of Law