April 23, 2019 Feature

The Limits of Citizen Environmental Litigation

David E. Adelman and Robert L. Glicksman

Although litigation by individuals and nongovernmental organizations against regulated entities and government agencies has always been an important component of modern environmental law, its significance has increased as the federal government has shifted, under the current administration, to a single-minded focus on deregulation. The future of such citizen suits is uncertain. Legislators are pressing to create new barriers to citizen litigation under keystone laws such as the National Environmental Policy Act (NEPA) and the Endangered Species Act (ESA), based on a litany of recurrent criticisms. These include assertions that citizen litigation is based on frivolous allegations, imposes crushing burdens on agencies, threatens to disrupt agency priorities, and thwarts progress on key government initiatives such as infrastructure projects. Proponents of these barriers argue that citizen suits undermine federal agencies’ constitutional authority to implement the law and “weaponize” legislative mandates by allowing private organizations to enforce laws without the mediating influence of political accountability. See, e.g., Stephen M. Johnson, Sue and Settle: Demonizing the Environmental Citizen Suit, 37 Seattle U. L. Rev. 891 (2014) (noting criticism by the U.S. Chamber of Commerce and others of so-called “sue and settle” tactics of citizen suit plaintiffs). Public interest attorneys and commentators have long responded by depicting citizen suits as an essential legal innovation and a core component of administration of the environmental statutes because of their capacity to augment government enforcement and provide a backstop to ideologically antagonistic administrations. See, e.g., David R. Hodas, Enforcement of Environmental Law in A Triangular Federal System: Can Three Not Be A Crowd When Enforcement Authority Is Shared by the United States, the States, and Their Citizens?, 54 Md. L. Rev. 1552, 1624 (1995) (stating that, “in empowering citizens as private attorneys general . . . , Congress intended to limit the ability of those in the regulated community to ‘capture’ their regulating agencies.”).

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