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Now More Than Ever: Environmental Citizen Suit Trends

September 2003

Citation: ELR 10704

Author: James R. May

Introduction

Environmental citizen suits matter. In 1970, borne in a fulcrum of necessity due to inadequate resources and resolve, and borrowing a bit from common-law qui tam without the bounty, the U.S. Congress experimented by providing citizens the remarkable authority to file federal lawsuits as "private attorneys general" to enforce the Clean Air Act (CAA).1 Unless precluded, forestalled, unconstitutional, or otherwise unwise, the archetypal citizen suit provision allows "any person" to "commence a civil action on his own behalf" against either (1) "any person" who violates a legal prohibition or requirement, or (2) the U.S. Environmental Protection Agency (EPA) for failure "to perform any act or duty . . . which is not discretionary."2

The experiment worked. Nowadays, most of the dozen and one-half bulwarks of federal environmental law, and numerous state and foreign laws, invite citizen enforcement.3

Jim May is a Professor of Law at Widener University School of Law. On April 4, 2003. Widener and the Mid-Atlantic Environmental Law Center hosted a symposium entitled "Environmental Citizen Suits at Thirtysomething: A Celebration and Summit." The Environmental Law Reporter, a cosponsor of the conference, is publishing the edited remarks from several conference speakers elsewhere in this issue. The Widener University Law Symposium Journal will publish other conference materials in the coming months. This Article serves as a companion to the remarks and materials. An earlier version appeared in continuing legal education materials accompanying the symposium. See James R. May, Now More Than Ever: Recent Trends in Environmental Citizen Suits, in ENVIRONMENTAL CITIZEN SUITS AT THIRTYSOMETHING: A CELEBRATION AND SUMMIT (Widener Univ. 2003). The research assistance of Jennifer Murphy and Amy Shellenberger is acknowledged with gratitude. This Article reports legal developments from November 2001 through May 2003, and statistical trends from 1995 to the present. The U.S. Department of Justice's (DOJ's) Policy, Legislation, and Special Litigation Section and the U.S. Environmental Protection Agency's (EPA's) Office of General Counsel provided some of the background data upon which this Article relies. The author thanks Jim Payne, the DOJ, Carol Ann Siciliano and Charlie Garlow, both from EPA, for their efforts in providing statistical information.

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