October 01, 2017

Through the Looking Glass: Using Trade Agreements to Enforce Environmental Law

Karrigan S. Börk and Rachael E. Salcido

Citizen-suit provisions first appeared in U.S. environmental statutes in the late 1960s, part of Professor Joe Sax’s Model Natural Resources and Environmental Protection Act. The environmental citizen-suit provisions built on similar provisions in civil rights law, and the provisions quickly spread into federal environmental legislation, forming a cornerstone of Clean Water Act, Clean Air Act, and Endangered Species Act enforcement. When presidential administrations have neglected to enforce environmental law, citizen-suit provisions allowed the public to ensure some measure of continued compliance via suits against regulated entities. Although effective against the targeted polluters, this strategy lets the administration off the hook—under traditional citizen suits, an administration’s enforcement decisions largely escape judicial review, based on the discretion courts give both prosecutors and agencies to determine whether to bring an enforcement action. This creates a major barrier to citizens seeking better government enforcement of existing federal environmental law.

Premium Content For:
  • Environment, Energy, and Resources Section
Join - Now