Citizen Suits: The Teeth in Public Participation

Adam Babich

Adam Babich, J.D., Yale Law School, is Editor-in-Chief of ELR — The Environmental Law Reporter. While in private practice, he represented citizen groups, municipalities, and members of the regulated community on environmental issues.

[25 ELR 10141]

The courts have long recognized that Congress enacted environmental citizen-suit provisions to abate threats to the environment, supplement government enforcement, encourage government agencies to enforce the laws more effectively, and expand opportunities for public participation.¹ In practice, however, citizen suits serve an even more fundamental purpose. This Comment argues that opportunities for citizen litigation enhance the legitimacy of administrative decision-making. By giving the public a practical way of seeking recourse when unelected agency officials decline to enforce or implement environmental laws, citizen-suit provisions strengthen the democratic character of implementation of environmental policy.

The Comment begins with a background discussion of Congress' purpose in enacting citizen-suit provisions. Next, the Comment discusses the need for public participation in environmental decisionmaking and argues that citizen-suit provisions play an important role in making true public participation possible. The Comment then briefly reviews environmental litigation under the common-law tort system, discussing some of the reasons the common law alone is inadequate to provide practical recourse for people faced with many typical types of pollution problems. Next, the Comment examines environmental citizen-suit provisions in terms of six factors that are essential to the success of citizen suits in providing the public with practical recourse from agencies' failure to enforce or otherwise implement environmental laws. The Comment then briefly reviews the mechanics of filing a citizen suit. It concludes that far from merely supplementing government enforcement, citizen-suit provisions are central to the U.S. system for environmental protection.

Background

U.S. citizens have a long history of distrusting their government.² In keeping with that tradition, Congress has never put complete faith in government agencies to protect public health and the environment. Instead, Congress has authorized private citizens to become directly involved in the process of setting, implementing, and enforcing environmental standards. Government agencies, of course, still have primary regulatory authority.³ But at practically every step of the process, members of the public have the right to prompt, comment on, and challenge government action.

Under the long-standing doctrine of enforcement discretion, the right of citizens to participate in government decisions is subject to an important exception. That doctrine denies citizens a voice in agency decisions on whether and when to use governmental enforcement power.⁴ Because enforcement decisions are crucial to the laws' implementation, this enforcement-discretion exception has the potential [25 ELR 10142] to dramatically curtail the public's influence on environmental policy.⁵

To preserve citizens' participation rights and agencies' discretion, Congress supplemented government enforcement with citizen-enforcement rights. Citizen-suit provisions grant members of the public the ability — independent of administrative processes — to enforce most federal anti-pollution laws directly against violators. Moreover, because it distrusted administrative agencies to enforce the laws consistently, Congress did not stop at allowing citizen suits. Instead, it designed environmental laws to encourage legitimate suits.⁶

Because so many politicians have expressed concern about "excessive reliance on law and lawyers," it may seem odd that Congress would encourage environmental lawsuits.⁷ Citizen suits, however, are different from most private lawsuits. Citizen enforcers sue to advance implementation of laws Congress enacted to protect the health and welfare of the public as a whole.⁸ Indeed, Congress considered environmental compliance to be so important that "knowing" violation of many environmental regulations is a felony.⁹ Thus, just as it is not unusual for Congress to demand aggressive enforcement from the Attorney General, it should come as no surprise that Congress has structured most environmental laws to encourage citizen enforcement.¹⁰

Citizen Suits and Public Participation

Administrative Decisionmaking in a Democracy

An essential element of any democratic political system is that power ultimately resides with the public. If elected officials enact bad laws, the public has the power to vote those officials out of office. But modern problems such as environmental degradation are so complex that elected officials do not have enough time or expertise to work out detailed solutions.¹¹ Instead, those representatives generally enact environmental statutes that create general frameworks for solving problems. Administrative agencies — composed of unelected lawyers and scientists — work out the details in the form of regulations, orders, and permits. Unlike elected representatives, however, these administrative decisionmakers are not directly answerable to the voters.¹²

For administrative regulations, orders, and permits — decisions of unelected officials — to qualify as the legitimate decisions of a democratic government, affected members of the public (including regulated entities) must have a voice in the decisionmaking process and the power to make that voice heard.¹³ The D.C. Circuit has ruled that "[u]nder our system of government, the very legitimacy of general policymaking performed by unelected administrators depends in no small part upon the openness, accessibility, and amenability of these officials to the needs and ideas of the public. . . ."¹⁴ Similarly, the U.S. Environmental Protection Agency (EPA) has noted that "appropriate opportunities" for public participation in permit decisionmaking are necessary to ensure "the integrity of the permitting process."¹⁵

Practical Implementation Issues

Many environmental problems — such as air, soil, and water contamination — have predominately local impacts. Similarly, most schemes for abating these problems require local residents to live with economic and aesthetic disruptions, and sometimes impose risks on local populations.¹⁶ Proposed solutions to national pollution problems also generally require the forbearance of local communities, where landfills or incinerators may be located or where opportunities for employment may be lost.

In particular cases, the government may be able to impose "solutions" to environmental problems over the objections of local residents. But, in general, environmental protection decisions are much easier to implement with the cooperation and confidence of most of the affected community.¹⁷ If [25 ELR 10143] government decisions consistently fail to address the concerns of affected communities, the laws behind those decisions will not be perceived as successful or legitimate.¹⁸ Indeed, many agencies and much of the regulated community were recently blind-sided by charges of "environmental racism."¹⁹ The government and regulated entities failed to anticipate these charges, in part, because of a lack of effective communication between decisionmakers and members of affected communities.

Recently, agencies have become more aware of the need to provide citizens with a voice in environmental decisions. To that end, EPA has announced that it will consider "community acceptance" as a decisionmaking criterion when it conducts cleanups of hazardous substances under the Superfund program.²⁰ Attempts to increase community involvement — by creating citizen advisory boards — have also been part of agency efforts to improve government decisions about how to clean up contaminated federal property.²¹ Moreover, EPA sometimes awards "technical assistance" grants to local community groups to allow them to receive expert advice that will help them understand, and comment on, proposed government decisions.²² These efforts to increase public participation, however, are flawed to the extent that they are not accompanied by a right to seek redress in court.²³

Litigation Rights

Opportunities to attend hearings or submit comments cannot, without more, provide citizens with the power to make their voices heard. To participate effectively in government decisions, citizens must have bargaining power.²⁴ And, under the U.S. legal system, bargaining power requires a realistic ability to either (1) vote elected decisionmakers out of office or (2) pursue potentially successful litigation to challenge the decisions of unelected officials. When members of the public have a realistic ability to litigate, citizens can often exercise negotiating clout without actually filing great numbers of lawsuits. It is the legal and practical ability to litigate — not necessarily the litigation itself — that provides citizens with bargaining power.²⁵

Unless citizens have recourse when unelected agency officials ignore their comments, attempts to provide for public participation in administrative decisions amount to mere window dressing.²⁶ Thus, EPA recently notified the state of Virginia that it would refuse to approve Virginia's request to implement a Clean Air Act (CAA) permit program in lieu of federal law because Virginia's program "lacks adequate provisions for public participation in the permitting process." According to EPA, "the primary deficiency of [Virginia's] program is the lack of adequate statutory authority for judicial review of final permit decisions."²⁷

In general, the law provides citizens who are potentially affected by agency action with a practical ability to litigate in a variety of circumstances. For example, the Administrative Procedure Act (APA)²⁸ and similar laws²⁹ give citizens recourse from agency action,³⁰ such as promulgation [25 ELR 10144] of regulations and issuance of permits. An agency's decision not to act, however, can have as great an impact on public health and welfare as the decision to act. An agency's failure to enforce laws or regulations against violators — or to promulgate regulations to implement an environmental law — can deny citizens the protections that their elected representatives attempted to provide for them.³¹ Nonetheless, agencies rarely apply notice-and-comment rulemaking to situations in which they fail to act.³²

When an environmental agency's failure to act adversely affects members of the public, environmental citizen-suit provisions can serve to provide recourse to the courts. Thus, these provisions do more than supplement government enforcement. They fulfill a function analogous to that of the APA, empowering the public to affect the decisions of unelected bureaucrats and, thus, enhancing the democratic character of the environmental decisionmaking process.

The Common Law

Of course, long before Congress enacted environmental citizen-suit provisions, the common-law system allowed members of the public to bring lawsuits about environmental issues.³³ Indeed, plaintiffs continue to bring common-law cases to address environmental problems, often successfully. Generally, however — despite procedural devices such as class actions³⁴ and "non-mutual collateral estoppel"³⁵ — common-law forms of action are best suited to addressing incidents that cause severe — or at least readily demonstrable — economic, physical, or emotional injury to individuals. Pollution problems that — acting in conjunction with releases from other sources — pose risks of cumulative damage to the community at large are more difficult to address through the common law.³⁶

Problems of Proof

In general, the common-law system is geared to providing relief to plaintiffs who can prove that a specific defendant is responsible for a specific injury.³⁷ Such proof is often difficult in disputes about environmental pollution, however, because there is a great deal of uncertainty about the effects of many pollutants on public health and the environment.³⁸ For purposes of regulatory programs, the government resolves many of these questions by adopting assumptions, which are based as much on policy as on science.³⁹ In the context of a common-law trial, however, evidence based on such assumptions can be subject to attack as mere speculation.

Even when a plaintiff can prove that a particular chemical is harmful, it often is difficult to trace excessive concentrations of pollutants in the environment to discharges from particular facilities. Once released, the dispersion and dilution of pollutants in the environment is complex, and released pollutants may have many potential sources.⁴⁰ Selecting [25 ELR 10145] one, or a few, facilities to sue can pose problems of proof (because the trier of fact may find that a nonparty is responsible for the bulk of the damage) and problems of persuasion (because even when liability is joint and several, courts and juries hesitate to make decisions that seem unfair). On the other hand, proving a case against each of many potential defendants could often be prohibitively complex and expensive.

Transaction Costs

With some exceptions,⁴¹ a citizen must either be relatively wealthy or gravely injured to vindicate his or her rights in the common-law tort system. Lawyers generally charge the same hourly rate whether their clients win or lose, and even relatively simple cases often cost tens of thousands of dollars to pursue. Also, under the common-law system, each party in a lawsuit generally is responsible for paying his or her own lawyer, regardless of whether the lawsuit is successful.⁴² Of course, contingent fee arrangements often allow injured parties who are not wealthy to participate in the legal system. But most lawyers will not work for a contingent fee unless they believe that their clients' injuries are likely to result in high damage awards.

The expense of participating in the common-law system makes it unsuitable for addressing many pollution problems. For example, a facility's illegal pollution of a stream — especially in conjunction with pollution from other sources — may cause residents to forego the pleasure of fishing or swimming. But the likely dollar value of a damage award to compensate a plaintiff for the loss of his or her opportunity to fish or swim may not be enough to cover the costs of litigation. Nonetheless, the cumulative impact of such incidents can have great significance to the welfare of the public at large and to future generations.

To offer a real opportunity to bring a lawsuit to an average citizen — who is not wealthy and has not suffered the type of injury that would result in a large damage award — the law must provide a way for that citizen to pay his or her lawyers a reasonable fee. In environmental citizen-suit provisions, Congress has enacted laws that do exactly that.

Environmental Citizen Suits

Environmental laws provide for three types of citizen suits: (1) enforcement suits against persons who have violated statutory provisions, regulations, orders, or permits; (2) mandamus-like suits against agencies for failing to discharge duties that are not discretionary (for example, failing to issue regulations by statutory deadlines); and (3) abatement suits to stop or prevent conduct that poses significant risks to the public or environment, regardless of whether that conduct violates a statute or regulation.⁴³ Almost every antipollution law authorizes citizens to bring enforcement suits against violators and mandamus-like suits against the government.⁴⁴ To date, however, only one environmental statute — the Resource Conservation and Recovery Act (RCRA)⁴⁵ — allows citizens to bring abatement suits when the conduct creating the alleged risks does not violate specific statutory or regulatory requirements.⁴⁶

Six Essential Factors

For citizen-suit provisions to be effective, they must be of practical use to potential enforcers. Six factors are essential to making citizen enforcement practical: (1) broad "standing" for potentially affected parties to bring lawsuits; (2) clear legal standards to govern regulated entities; (3) a right of public participation in the standard-setting process; [25 ELR 10146] (4) public access to information about regulated entities' conduct; (5) compensation for those who bring citizen suits that covers attorneys fees and other costs; and (6) court authority to impose effective remedies.

1. Broad Standing to Sue

The purpose of environmental citizen-suit provisions is to provide the public at large with an effective recourse to courts when agencies fail to act. Thus, citizen-suit provisions of most environmental laws purport to allow "any person" to bring a citizen suit, and define "person" broadly to include individuals, associations, corporations, Indian tribes, and governments.⁴⁷ But pursuant to the constitutional and prudential principles embodied in the doctrine of standing, such persons may only file a lawsuit if they demonstrate that they have a personal interest in the outcome of the case.⁴⁸ One purpose of the doctrine is to prevent people who have no particular motive to argue a case aggressively — or who might even act in collusion with a potential defendant — from abusing the judicial system.⁴⁹ The doctrine also serves to reinforce the constitutional distinction between the legislative houses of government (which enact laws) and the courts (which resolve specific disputes between specific parties).⁵⁰

To demonstrate a personal stake in the outcome of a case — and, thus, prove standing — a plaintiff must show that he or she has suffered, or is threatened with, an "injury" that could be redressed by judicial action.⁵¹ The term "injury," however, is defined very broadly. The injury need not be physical or economic; injury to aesthetic, conservational, or recreational interests is enough.⁵² If a plaintiff proves that he or she uses and enjoys an environmental resource — even if only by obtaining aesthetic pleasure from it — he or she will have standing to bring suit against defendants who illegally discharge or threaten to discharge pollutants that threaten harm to that resource.⁵³ One reason EPA recently refused to approve Virginia's request to implement a CAA permit program in lieu of federal law is because Virginia's program attempted to restrict standing (to appeal administrative action) to those who show "immediate, pecuniary, and substantial interest."⁵⁴

[25 ELR 10147]

2. Clear Legal Standards for Determining Liability

For citizens to have a practical ability to mount a consistent effort to enforce environmental laws, clear measurable standards must implement those laws. Clear standards can resolve the complex technical and policy issues that are inherent in most environmental disputes, greatly simplifying and limiting the cost of enforcement. It is much more efficient for the government (with the participation of the public) to resolve such issues at the time it promulgates a standard, than it is for litigants and courts to resolve the issues at trial.⁵⁵ The only question at issue in most enforcement actions should be: Did the defendant violate the standard set forth in the law, regulation, order, or permit.⁵⁶

A law that simply prohibits "harmful" or "dangerous" pollution would be very difficult to enforce consistently.⁵⁷ To prevail under such a law, a plaintiff would need to hire expensive experts to analyze and provide testimony about questions such as: (1) How harmful or dangerous are the pollutants at issue? (2) At what concentrations are the chemicals dangerous? (3) How much of a reduction in pollution should be required? Even for citizen enforcers who recover their costs at the end of their lawsuits, the initial investment required to engage in such complex litigation will be a significant disincentive to enforcement.

The more scientific and policy issues are resolved by statute, regulation, or permit, the easier and more cost-efficient enforcement becomes. Thus, for example, laws that set a standard for water quality in a stream, but fail to set an end-of-pipe standard, would still be difficult to enforce.⁵⁸ Although such a law may have already answered questions about the amount of pollution that can be tolerated, it has not resolved issues about how much pollution may be released from each source. To pursue a successful lawsuit under such a law, the enforcer presumably would have to prove that the defendant's release caused violation of the water quality standard. Such causation issues can be complicated, because the behavior of chemicals in streams — after those chemicals are released and diluted by the stream water — is complex. The U.S. Supreme Court summarized these problems when it noted:

Before it was amended in 1972, the Federal Water Pollution Control Act employed ambient water quality standards specifying the acceptable levels of pollution in a State's interstate navigable waters as the primary mechanism in its program for the control of water pollution. This program based on water quality standards, which were to serve both to guide performance by polluters and to trigger legal action to abate pollution, proved ineffective. The problems stemmed from the character of the standards themselves, which focused on the tolerable effects rather than the preventable causes of water pollution, from the awkwardly shared federal and state responsibility for promulgating such standards, and from the cumbrous enforcement procedures. These combined to make it very difficult to develop and enforce standards to govern the conduct of individual polluters.⁵⁹

The easiest type of regulation or permit to enforce sets specific standards, limiting the amount of each pollutant that each source may release. Questions about how dangerous the pollution is, or whether a particular source might cause harmful exposures to the public, are resolved by the administrative agency that issues the permit or regulation. Thus, if a regulated entity violates a standard, it is liable for violating the law regardless of whether the plaintiff can prove actual harm to the environment.⁶⁰ The question of harm has already been resolved when the agency issued the permit. If a standard is overly stringent, the regulated entity has the right to appeal the permit. But once the permit is final, the regulated party may not challenge the underlying standard as a defense to an enforcement action.⁶¹

Under those laws that impose clear standards, proof of liability generally is very straightforward and relatively inexpensive. Of course, courts may consider other factors, such as harm and fault, when deciding on a schedule for compliance and assessing civil penalties.⁶² But once liability is established, it usually becomes clear that the defendant will have to pay the plaintiff's litigation costs and attorneys fees, and it often becomes easier for the parties to agree to a negotiated resolution of the balance of the case.

[25 ELR 10148]

3. Public Participation in the Standard-Setting Process

Under familiar principles of administrative procedure, members of the public generally have a right to participate in the development of environmental quality standards, e.g., ambient air standards, and the discharge, e.g., end-of-pipe standards, that implement them. As discussed above,⁶³ agencies usually employ a notice-and-comment rulemaking procedure that gives the public an opportunity to comment and the power to challenge poor agency decisions in court. Standards and permits that agencies issue under this system are thus analogous to a contract among three parties: (1) the agency, (2) the regulated entity, and (3) the public. Therefore, the government generally should not change the standards without a second round of notice-and-comment rulemaking.⁶⁴

For example, in one case — 58 days after receiving the plaintiff's 60-day notice of intent to file a citizen suit — the Pennsylvania Department of Environmental Resources (DER) attempted to modify the requirements of a defendant's permit in a consent order, without providing an opportunity for public comment. A citizen enforcer argued that the defendant was still required to comply with the original permit. The court agreed, noting:

[T]he Code of Federal Regulations sets out extensive regulatory procedures that must be followed before a permit can be modified. These steps were not followed prior to the modification in the September 2, 1986 consent order. The consent order, therefore, could not properly modify the permit limits since the proper regulatory steps were not taken to effectuate the modification. This determination recognizes the value of public participation in the NPDES permit program. The Court will not permit the DER and [the defendant] to contract that public participation away.⁶⁵

Unless the public has a right to be involved in the standard-setting process, the standards that a plaintiff seeks to enforce in a citizen suit might be subject to change at any time — even while the lawsuit is pending — without the plaintiff's involvement. Such changes could complicate legitimate citizen suits and discourage citizen enforcement. Citizen suits, therefore, can only lead to effective public participation in the implementation of environmental laws if they are coupled with procedures for effective citizen participation in the development and modification of standards.

4. Public Access to Information

For citizen suits to be practical, members of the public must have access to accurate information about the compliance status of regulated entities.⁶⁶ Providing this information requires (1) that the data be collected and provided to the government and (2) that the government provide the data to members of the public on request. Because the regulated community is so large, it would not be practical for the government to hire enough inspectors to gather this data directly. Instead, some environmental regulations and permits — notably under the Clean Water Act — require regulated parties to monitor their own discharges and inspect their own facilities. Regulated parties must then submit regular, detailed reports of monitoring results to state or federal agencies and must keep records of their inspections. Because the monitoring reports of regulated entities generally are sworn statements, reports that show violations usually are enough to prove liability.⁶⁷

Under the Freedom of Information Act⁶⁸ and various state open records laws, members of the public have a right to examine reports of regulated parties and government inspectors. Also, the Emergency Planning and Community Right-to-Know Act,⁶⁹ requires regulated entities to collect and issue reports about their discharges. Occasionally, the government withholds some data to protect businesses' trade secrets but, in general, citizens have a practical means of access to data that often identifies violators, at least under the Clean Water Act.⁷⁰

5. Compensation for Litigation Costs, Including Attorneys Fees

As noted above,⁷¹ the cost of litigation — especially the expense of hiring lawyers — often makes it impractical for citizens who are not wealthy or severely injured to enforce their rights in court. To encourage citizens to file environmental enforcement suits, therefore, Congress needed to provide a practical way for citizens to recover these litigation costs. Thus, in the "fee-shifting" paragraphs of citizen-suit provisions, Congress empowered citizen enforcers who prevail on significant issues in their lawsuits to recover their costs of litigation, including reasonable attorneys fees.⁷²

* Awards of Attorneys Fees. In keeping with Congress's policy of encouraging legitimate suits, partial success is enough to support an award of costs and attorneys fees under environmental citizen-suit statutes. The U.S. Supreme Court has held: "[P]laintiffs may be considered 'prevailing parties' [25 ELR 10149] for attorney's fees purposes if they succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit."⁷³ To receive an award of fees, the plaintiff must achieve "some degree of success on the merits" and not "trivial . . . or purely procedural" success.⁷⁴ Moreover, a plaintiff may receive an award of fees even "in the absence of a judicial determination on the merits" as long as the plaintiff's lawsuit was a significant factor in causing the defendant to change its conduct.⁷⁵ Thus, a plaintiff may recover its costs if it agrees to a negotiated settlement, or even if it drops the lawsuit after the defendant voluntarily comes into compliance.⁷⁶

Courts calculate attorney fee awards by multiplying the number of hours reasonably spent by plaintiffs' attorneys by an hourly rate that reflects factors such as the skill and experience of counsel.⁷⁷ The hourly rate awarded for the plaintiffs' attorneys fees should be equivalent to the market rate generally paid for legal services in the jurisdiction where the parties litigated the lawsuit, because fee awards should be high enough to attract skillful lawyers.⁷⁸ Generally, if a party prevails on only some of its multiple claims, the court will reduce the fee award to reflect the partial success.⁷⁹

* Awards to Defendants. Although Congress designed fee-shifting provisions to encourage plaintiffs to bring legitimate citizen suits, if used to force unsuccessful citizen enforcers to pay the fees incurred by successful defendants, such provisions might tend to deter citizen suits. As one court noted, Congress' "design of encouraging citizen suits would be substantially frustrated" if defendants could easily recover fees.⁸⁰ Thus, for example, when plaintiffs lost a "good faith, though unavailing attempt to test the parameters of [RCRA § 7002(a)(1)(B)]," the Fourth Circuit affirmed a district court's denial of the defendants' motion for fees.⁸¹ The trial court had found that the plaintiffs' suit was "neither frivolous nor imposed for an improper purpose and that [the defendant] in any event had not advanced the goals underlying RCRA."⁸² In another case, the Tenth Circuit affirmed a district court's denial of fees to a defendant, quoting the trial court's finding that "there is a strong consideration that this type of lawsuit should not be chilled by attorney's fees being awarded to the defendant anytime that a plaintiff may be unsuccessful or just partially successful."⁸³

* A Limitation on Fee Awards. Although courts generally calculate fee awards by using market hourly rates, lawyers who prosecute citizen suits may receive less compensation for their work than their colleagues who work on an hourly or contingent basis. This is because, citizen-suit lawyers — like lawyers who work for contingent fees — generally only get paid when they win. But unlike their colleagues who charge contingent fees, citizen-suit lawyers have no opportunity to recover a fee in excess of their hourly rate, which might make up for those cases in which they recover no fee at all. Primarily to simplify litigation over attorney fee awards, the U.S. Supreme Court has ruled that such awards may not be increased to compensate citizen-suit lawyers for the risk of losing.⁸⁴ Thus, lawyers who regularly bring citizen-suit actions should expect their average receipts to be well below market rates, since they inevitably will lose some cases and face judgment-proof defendants in others.

This limitation on fee awards may sometimes complicate plaintiffs' search for representation. This is especially true for lawsuits that present issues of first impression, or turn on complicated factual scenarios. In terms of their public image, however, it would probably not be in citizen enforcers' interests for their lawyers to be too well paid. Court decisions about fee recoveries can be read as striking a balance between the conflicting goals of: (1) enabling plaintiffs to find competent lawyers for legitimate suits and (2) avoiding the creation of incentives for litigation driven solely by the prospect of fee awards. In general, the resulting court precedents tend to make citizen enforcement feasible, not lucrative.

6. Court Authority to Impose Effective Remedies

Clearly, citizen suits can only be effective in curbing pollution if courts possess, and use, sufficient power to stop and deter violators. Environmental citizen-suit provisions generally allow courts to (1) award civil penalties and (2) issue mandatory injunctions. Courts may exercise that [25 ELR 10150] authority by issuing judgments after contested trials or hearings, or by signing consent decrees that embody negotiated settlements.

* Civil Penalties. When determining the amount of penalties to assess against a violator, courts consider such factors as (1) the seriousness of the violation, (2) the extent to which the violator benefitted from the violations, (3) whether the violator acted in good faith, and (4) the violator's ability to pay.⁸⁵ Potential, as well as actual, environmental harm is a consideration.⁸⁶ At minimum, penalties should be high enough to eliminate any economic benefit the violator may have received from the violation⁸⁷ and to deter future violations.⁸⁸ In some cases, courts may order violators to spend money — in lieu of some civil penalties — on "beneficial mitigation projects" to improve environmental quality.⁸⁹ Otherwise, civil penalties must be paid to the government, not to the citizen enforcer that brought the action.⁹⁰

Environmental citizen-suit provisions do not provide courts with authority to award compensation for personal injury or property damage to private parties. Generally, however, federal courts have discretion to consider common-law claims for private damages in conjunction with citizen suits that arise from the same facts.⁹¹

* Injunctions. The courts have broad discretion to enforce public policy and prevent "irreparable harm" by issuing injunctions.⁹² Occasionally, therefore, courts issue injunctions that shut down violators' facilities.⁹³ More often, however, courts avoid the economic disruption of ordering immediate shutdown by issuing detailed schedules for compliance, ordering violators to take specific steps toward compliance by specific deadlines.⁹⁴ Courts have broad authority to punish violators who fail to comply with their orders.⁹⁵ To prevent environmental damage from continuing while the parties are awaiting trial, plaintiffs may request that courts issue preliminary injunctions.⁹⁶ Issuance of such injunctions can remove any incentive a defendant might otherwise have to delay the trial.

* Settlements. Most lawsuits are resolved by negotiated settlements rather than trials.⁹⁷ Because so many lawsuits are settled, the legal system is able to handle many more cases than it could if each case were tried. Also, settlements often result in savings of attorneys fees and other litigation costs, which can allow defendants to spend more money on achieving prompt compliance or mitigating environmental damage.⁹⁸ For these reasons, courts often encourage settlements, sometimes by ordering plaintiffs and defendants to work with mediators.⁹⁹ Generally, however, courts will only approve settlements that they find to be rational, fair, reasonable, adequate, and in the public interest.¹⁰⁰

Courts can promote settlements by resolving, early in the lawsuit, those legal questions that do not turn on disputed issues of fact.¹⁰¹ By clarifying the law, such rulings reduce the areas of dispute that might otherwise slow negotiations. Courts also can promote settlements by scheduling reasonably prompt trials. The prospect of trial encourages parties to evaluate the strengths and weaknesses of their cases and, thus, to settle.

To ensure that settlements are effective in causing defendants to comply with the law, most citizen-suit plaintiffs insist that settlements be as easy to enforce as possible. Many settlements are crafted as "consent decrees" which, on approval of the court, become enforceable as court orders. Often settlements include lists of "stipulated penalties" that specify, in advance, the fines that defendants must pay if they miss interim deadlines set forth in consent decrees.¹⁰² Interim [25 ELR 10151] deadlines help ensure that defendants keep on schedule for achieving compliance by the final deadlines set forth in settlements.

Environmental citizen-suit provisions sometimes require that copies of settlements be provided to the government before they become final.¹⁰³ These requirements allow the government to object to settlements that fail to advance the purposes of the environmental laws at issue. When the government is a party to a lawsuit, environmental laws sometimes require notice to the public of proposed settlements and opportunities for public comment.¹⁰⁴ These provisions help courts ensure that settlements will be in the public interest.

Mechanics

Citizen-suit plaintiffs must provide notice of their intent to sue to the government and the defendant before filing.¹⁰⁵ In situations involving hazardous waste and hazardous air pollutants, plaintiffs may file their suits immediately after providing notice.¹⁰⁶ Otherwise, plaintiffs generally must wait to file suit at least 60 or 90 days after providing notice.¹⁰⁷

When filing citizen suits, plaintiffs sometimes must serve their complaints on the government,¹⁰⁸ and the government always has the right to participate in the litigation.¹⁰⁹ Citizen suits generally are not permitted if the government is in the process of "diligently" prosecuting a lawsuit to address the violation.¹¹⁰ There is a five-year statute of limitations.¹¹¹ Also, under most environmental laws, citizens may sue only to address ongoing or intermittent violations, not violations that are "wholly" in the past.¹¹² Under the Clean Air Act, however, suit against a past violator is permitted "if there is evidence that the alleged violation has been repeated."¹¹³

Conclusion

By and large, citizen-suit provisions make recourse to the courts a practical option for those threatened by environmental degradation and agency inaction. Having a realistic opportunity to sue allows citizens to negotiate on an equal footing with the government and members of the regulated community. The prospect of litigation can inspire decision-makers to move away from the customary "decide, announce, defend" approach to public relations and take citizen concerns seriously. The result is a citizenry with real power to affect environmental policy.

Clearly, citizen-suit provisions do more than merely supplement agency enforcement. As the teeth in public participation they enhance the democratic character of environmental decisionmaking.

1. See Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 478 U.S. 546, 560, 16 ELR 20801, 20805 (1986) (noting that citizen-suit provisions resulted largely from congressional displeasure with the U.S. Environmental Protection Agency's (EPA's) level of enforcement, that Congress intended to afford citizens very broad opportunities to participate in antipollution efforts, and that Congress urged the courts to recognize that bringing legitimate citizen suits was a public service); Baughman v. Bradford Coal Co., 592 F.2d 215, 218, 9 ELR 20147, 20148 (3d Cir.), cert. denied, 441 U.S. 961 (1979); Friends of the Earth v. Carey, 535 F.2d 165, 172, 6 ELR 20488, 20491 (2d Cir. 1976) ("Congress made clear that citizen groups are not to be treated as nuisances or troublemakers but rather as welcome participants in the vindication of environmental interests."); Natural Resources Defense Council v. Train, 510 F.2d 692, 699-700, 723, 5 ELR 20046, 20049-50, 20058, 20696 (D.C. Cir. 1974, as modified 1975) (citing and reprinting S. REP. NO. 1196, 91st Cong., 2d Sess. 36-39 (1970)).

2. See, e.g., letter from James Madison to Thomas Jefferson (Oct. 17, 1788), reprinted in 5 THE WRITINGS OF JAMES MADISON 272 (Gaillard Hunt ed., 1904) ("In Virginia I have seen the bill of rights violated in every instance where it has been opposed to a popular current. . . . Wherever the real power in Government lies, there is the danger of oppression.").

3. The U.S. Supreme Court has ruled that Congress intended citizens to "supplement rather than to supplant" government enforcement. Gwaltney of Smithfield Ltd. v. Chesapeake Bay Found., 484 U.S. 49, 60, 18 ELR 20142, 20145 (1987).

4. Heckler v. Chaney, 470 U.S. 821, 830-31 (1985) ("[A]n agency's decision not to prosecute or enforce . . . [is] generally committed to an agency's absolute discretion."). The Court explained:

[T]he agency must not only assess whether a violation has occurred, but whether agency resources are best spent on this violation or another, whether the agency is likely to succeed if it acts, whether the particular enforcement action requested best fits the agency's overall policies, and, indeed, whether the agency has enough resources to undertake the action at all. An agency generally cannot act against each technical violation of the statute it is charged with enforcing. The agency is far better equipped than the courts to deal with the many variables involved in the proper ordering of its priorities.

Id. at 831-32.

5. 1 KENNETH CULP DAVIS, ADMINISTRATIVE LAW TREATISE 178 (2d ed. 1978) ("The discretionary power to enforce or not to enforce is one of the most crucial powers of all, even though it is typically unprotected either by standards or by safeguards or by judicial review.").

6. See supra note 1.

7. See, e.g., 138 CONG. REC. S12599 (daily ed. Aug. 12, 1992) (statement of Sen. Domenici) (discussing excessive litigation "pervasive throughout our society" in the context of a bill to reduce litigation under the Securities and Exchange Act of 1934); see also 140 CONG. REC. E602 (daily ed. Mar. 24, 1994) (statement of Rep. Zeliff) (asserting that Superfund's liability scheme "has resulted in excessive litigation").

8. For example, in the Resource Conservation and Recovery Act (RCRA), Congress found that "the placement of inadequate controls on hazardous waste management will result in substantial risks to human health and the environment." 42 U.S.C. § 6901(b)(5), ELR STAT. RCRA § 1001(b)(5).

9. See, e.g., id. § 6928(d), ELR STAT. RCRA § 3008(e). Thus, to some extent citizens enforcers participate in the "war on crime."

10. Citizen enforcers are sometimes known as "private attorneys general." See Middlesex County Sewerage Auth. v. National Sea Clammers Ass'n, 453 U.S. 1, 14 n.23, 11 ELR 20684, 20687 n.23 (1981); see also James M. Hecker, The Citizen's Role in Environmental Enforcement: Private Attorney General, Private Citizen, or Both, NAT. RESOURCES & ENV'T, Spring 1994, at 31.

11. See DAVIS, supra note 5, at 627.

12. Moreover, although unelected officials develop them, administrative regulations, orders, and permits can be essentially identical to laws that Congress enacts in terms of their practical effect on the public and the regulated community.

13. See Eastern R.R. Presidents Conference v. Noerr Motor Freight, 365 U.S. 127, 137 (1961) ("In a representative democracy . . . the whole concept of representation depends upon the ability of the people to make their wishes known to their representatives.").

14. Sierra Club v. Costle, 657 F.2d 298, 400-10 (D.C. Cir. 1981) (emphasis added). In 1916, American Bar Association President Elihu Root noted: "If we are to continue a government of limited powers, these agencies of regulation must themselves be regulated. . . . The rights of the citizen against them must be made plain." DAVIS, supra note 5, at 19. Indeed, administrative procedures have developed, in part, to assure that agency decisionmaking comports with constitutional guarantees of due process. DAVIS, supra note 5, at 449, 462.

15. Operating Permits Program Rule Revisions, 59 Fed. Reg. 44460, 44473 (to be codified at 40 C.F.R. pt. 70) (proposed on Aug. 29, 1994).

16. See, e.g., Lead-Contaminated Soil Guidance Challenged for Lack of Public Input, Daily Env't Rep. (BNA), Dec. 8, 1994, at A-7 (according to one activist, "[m]any residents do not want their yards dug up to remove lead-contaminated soil based on guidance" that EPA issued without public input).

17. Sierra Club v. Costle, 657 F.2d 298 (D.C. Cir. 1981) ("the importance to effective regulation of continuing contact with a regulated industry, other affected groups, and the public cannot be underestimated"); see also Richard J. Lazarus, The Tragedy of Distrust in the Implementation of Federal Environmental Law, LAW & CONTEMP. PROBS., Autumn 1991, at 311, 373 ("The success of a program of public risk management depends on its acceptance by the public."); David J. Abell, Exercise of Constitutional Privileges: Deterring Abuse of the First Amendment — "Strategic Lawsuits Against Political Participation," 47 SMU L. REV. 95, 101 (1993) (arguing that citizen involvement is crucial to success of environmental programs).

EPA Administrator Carol Browner noted recently: "I believe . . . that when a local community becomes informed and involved . . . the decisions [it makes] will be far better than any decision we make here in Washington." EPA Enforcement Efforts in FY 1994 Break Records for Actions, Fines Levied, Daily Env't Rep. (BNA), Dec. 1, 1994, at AA-1, -2.

18. See Lazarus, supra note 17, at 352 ("EPA's lack of credibility has . . . severely hampered the agency's ability to manage the Superfund program.").

19. See Gerald Torres, Environmental Burdens and Democratic Justice, 21 FORDHAM URB. L.J. 431, 459 (1994) ("[I]t is clear that litigation could have been avoided in many of the 'environmental justice cases' to date if administrative cultures had been more open and aware of the relevant issues. . . ."); see also Industry Caught Off-Guard by Emergence of Environmental Equity Movement, Official Says, 24 Env't Rep. (BNA) 1146 (Oct. 15, 1993); Center Charges Environmental Racism, Daily Env't Rep. (BNA), July 12, 1994, at B-2.

20. National Oil and Hazardous Substances Pollution Contingency Plan, 40 C.F.R. § 300.430(e)(9) (1994).

21. FEDERAL FACILITIES ENVIRONMENTAL RESTORATION DIALOGUE COMMITTEE, INTERIM REPORT: RECOMMENDATIONS FOR IMPROVING THE FEDERAL FACILITY ENVIRONMENTAL RESTORATION DECISIONMAKING PROCESS AND SETTING PRIORITIES IN THE EVENT OF FUNDING SHORTFALLS (Feb. 1993).

22. Technical Assistance Grants to Groups at National Priorities List Sites, 54 Fed. Reg. 49848 (Dec. 1, 1989).

23. See infra note 26.

24. Some members of society may also have the ability to influence government officials because of personal or political relationships with government officials or because of their financial status. This type of bargaining power, however, is not available to the public at large.

Additionally, although they are themselves unelected, agency bureaucrats are ultimately accountable to elected officials. Thus, citizens have some ability to use their power to vote to influence agency behavior. But although this influence might have some significance for an agency's general approach to regulation, the influence is too indirect to provide citizens with real bargaining power over specific agency decisions.

25. But to avoid litigation, government officials and members of the regulated community must take citizen concerns seriously. Thus, citizen-suit provisions have an impact far greater than the direct effects of the many court decisions obtained by citizen enforcers.

26. For example, U.S. law prohibits "preenforcement" legal challenges to EPA cleanup decisions under the Superfund Act. 42 U.S.C. § 9613(h), ELR STAT. CERCLA § 113(h); see Adam Babich, What Next?, ENVTL. F., Nov./Dec. 1994, at 48, 54 ("[B]ecause CERCLA insulates EPA decisions from review, it provides no incentives for the Agency to pay real attention to public comment. One can hardly expect overworked government officials to give much credence to the opinions of people who have no meaningful ability to challenge their decisions."); see also Deeohn Ferris, Communities of Color and Hazardous Waste Cleanup: Expanding Public Participation in the Federal Superfund Program, 21 FORDHAM URB. L.J. 671, 684-85 (1994).

27. Virginia Operating Permit Plan Rejected on Basis of State Statute Limited Lawsuits, Daily Env't Rep. (BNA), Dec. 2, 1994, at AA-1.

28. 5 U.S.C. §§ 500-559, 701-706, ELR STAT. ADMIN. PROC.

29. E.g., 42 U.S.C. § 7607, ELR STAT. CAA § 307.

30. Many of the requirements of notice-and-comment rulemaking derive from judicial interpretations of the APA, and are not found in the words of the statute itself. See DAVIS, supra note 5, at 449-51. In general, the law also allows affected members of the public to challenge regulations in court, and allows courts to overturn regulations if, e.g., (1) the regulations are inconsistent with the law that authorizes them, (2) the agency fails to provide the public with proper notice and opportunity to comment on regulations, or fails to consider comments, or (3) the regulations are "arbitrary and capricious." See 5 U.S.C. § 706, ELR STAT. ADMIN. PROC. Moreover, members of the public who successfully challenge decisions of federal agencies in court generally have an opportunity to seek recovery of their litigation costs, including reasonable attorney fees. See Equal Access to Justice Act, 5 U.S.C. § 504, 28 U.S.C. § 2412, ELR STAT. ADMIN. PROC.

Whether awards of litigation costs and fees are available for challenges to state administrative decisions generally depends on state law. Even states that implement EPA-approved regulatory programs "in lieu" of federal law do not necessarily provide opportunities for public participation equivalent to those under federal law. The Clean Air Act, however, allows citizens who believe that a state has issued an illegal permit to petition EPA to veto that permit. If EPA fails to do so within 60 days of the petition, the citizen has a right to appeal EPA's decision, and thus has an opportunity to recover reasonable costs and fees as matter of federal law. 42 U.S.C. § 7661d, ELR STAT. CAA § 505.

31. For example, despite enactment of RCRA in 1976, EPA did not even begin to regulate hazardous waste until four years later, when required to do so by court order in a citizen suit. See Illinois v. Costle, 9 ELR 20243 (D.D.C. Jan. 3, 1979).

32. In many cases, agency inaction may result from the agency's exercise of enforcement discretion. See supra note 4.

33. See RESTATEMENT (SECOND) OF TORTS § 281 (1977) (negligence); id. § 285 (negligence per se); id. § 821B (public nuisance); id. § 821D (private nuisance); id. § 158 (trespass); id. § 519 (abnormally dangerous activities); id. §§ 433A, 433B, 875, 881 (joint and several liability); id. § 839 (possessor who fails to abate artificial condition); see also 42 U.S.C. § 9658, ELR STAT. CERCLA § 309 (tolling all state statutes of limitations for toxic torts until "the date the plaintiff knew (or reasonably should have known) that the . . . damages were caused or contributed to by the hazardous substance or pollutant or contaminant concerned").

34. The basic principle of a class action is that one or more plaintiffs, named in the litigation, can prosecute a lawsuit on behalf of a large number of similarly situated people. FED. R. CIV. P. 23; see generally HERBERT B. NEWBERG & ALBA CONTE, NEWBERG ON CLASS ACTIONS (3d ed. 1992). Rule 23 allows courts to resolve some issues in a case for the class as a whole, and make individual determinations about other issues. For example, a court might determine for an entire class of plaintiffs whether the defendant allowed a particular chemical to enter a drinking water supply at a particular concentration, and whether that concentration was potentially harmful. The court may, however, make a separate determination of the degree of injury caused to each individual plaintiff and, thus, resolve the issue of damages on an individual rather than class basis. Sometimes after the facts common to the entire class have been resolved, the parties are able to settle questions of individual damages. If not, after holding a trial about damages to a representative selection of the individual plaintiffs, the parties may be able to settle questions about damages to the rest.

35. Under this doctrine, once an issue has been determined against a party (such as a defendant who allegedly injured many plaintiffs), that party may not assert a position in subsequent trials that is inconsistent with the first determination. Nonetheless, if an issue is determined against one party (for example, one of the many injured plaintiffs), other people — who were not part of the lawsuit in which the issue was determined — are not bound by the determination. See Parklane Hosiery Co. v. Shore, 439 U.S. 322 (1979); United States v. Mendoza, 464 U.S. 154, 158 (1984).

To use the doctrine of nonmutual collateral estoppel in cases involving similar injuries to large numbers of people, plaintiffs' lawyers file individual actions on behalf of each injured person without seeking certification of a class. Faced with a large number of cases growing out of the same facts, courts generally adopt plans to manage the cases as efficiently as possible. MANUAL OF COMPLEX LITIGATION, SECOND § 21.4.2 (Draft 1985). Typically, those plans involve conducting trials of a number of representative "test" cases. The results of which tend to narrow the issues in subsequent cases and encourage the parties to reach negotiated settlements. Id. § 23.1.2 ("An actual trial of some special issue or of one or more representative cases, even if not preclusive, often will facilitate further settlement discussions." (footnote omitted)).

36. See, e.g., Renaud v. Martin Marietta Corp., 749 F. Supp. 1545, 21 ELR 20605 (D. Colo. 1990), aff'd, 972 F.2d 304 (10th Cir. 1992) (dismissing plaintiff's common-law case because no reasonable juror could find that plaintiff's evidence was enough to prove exposure, despite overwhelming evidence of massive contamination).

37. See generally PETER SCHUCK, AGENT ORANGE ON TRIAL: MASS TOXIC DISASTERS IN THE COURTS 8-9 (1986).

38. See E. Donald Elliott, The Future of Toxic Torts: Of Chemophobia, Risk as a Compensable Injury and Hybrid Compensation Systems, 25 HOUS. L. REV. 781, 786 (1988) ("When applied to chemical exposures, the traditional tort standard of proof is unduly harsh and unreasonable.").

39. See Adam Babich, Understanding the New Era in Environmental Law, 41 S.C.L. REV. 733, 740-41 & n.31 (1990).

40. Id. at 741 & nn.34, 35.

41. Some public and private organizations seek to provide legal aid to people who could not otherwise afford to hire lawyers. And depending on the jurisdiction, the availability of punitive damages can "raise the incentive" for an injured party to sue. Richard A. Booth, Stop the Misuse of Punitive Awards, N.Y. TIMES, Dec. 25, 1994, at F7. Class actions can serve the same purpose "by linking many small claims that might not be pursued individually." Id.

42. See Alyeska Pipeline Serv. Co. v. Wilderness Soc'y, 421 U.S. 240, 5 ELR 20286 (1975).

43. Lawsuits brought under citizen-suit provisions have demonstrably improved environmental law. To cite only a few examples: Citizen suits caused EPA to create the CAA's prevention of significant deterioration (PSD) program and the Clean Water Act's priority pollutants program. Sierra Club v. Ruckelshaus, 344 F. Supp. 253, 2 ELR 20262 (D.D.C. 1972), aff'd per curiam without opinion 2 ELR 20656 (D.C. Cir. 1972), affirmed sub nom. Fri v. Sierra Club, 412 U.S. 541, 3 ELR 20684 (1973) (PSD); Natural Resources Defense Council v. Train, 6 ELR 20588 (priority pollutants). When EPA and the states proved unwilling to challenge the U.S. Department of Energy's failure to comply with RCRA, citizen suits such as Legal Environmental Assistance Found. v. Hodel, 586 F. Supp. 1163, 14 ELR 20425 (E.D. Tenn. 1984), and Sierra Club v. Department of Energy, 734 F. Supp. 946, 20 ELR 21044 (D. Colo. 1990), were the driving force in addressing the "[c]rude disposal practices, [which had been] banned in the private sector a decade ago . . . [and were] largely responsible for the extensive environmental damage at Federal plants that make nuclear weapons." Matthew Wald, Waste Dumping That U.S. Banned Went on at Its Own Atom Plants, N.Y. TIMES, Dec. 8, 1988, at A1. The significance of discharge monitoring reports as enforcement tools was fleshed out in citizen litigation. See Student Pub. Interest Research Group v. Fritzsche, Dodge & Olcott, Inc., 579 F. Supp. 1528, 1538, 14 ELR 20450, 20454 (D.N.J. 1984), aff'd, 759 F.2d 1131, 15 ELR 20427 (3d Cir. 1985). And citizen suits responded to many protracted agency delays in implementing important provisions of environmental statutes. E.g., Illinois v. Costle, 9 ELR 20243 (D.D.C. Jan. 3, 1979).

44. See generally Adam Babich & Kent E. Hanson, Opportunities for Environmental Enforcement and Cost Recovery by Local Governments and Citizen Organizations, 18 ELR 10165 (Apr. 1988); JEFFREY G. MILLER & ENVIRONMENTAL LAW INST., CITIZEN SUITS: PRIVATE ENFORCEMENT OF FEDERAL POLLUTION CONTROL LAWS (1987).

The following environmental laws provide citizen enforcement authority: the Resource Conservation and Recovery Act, 42 U.S.C. § 6972, ELR STAT. RCRA § 7002; the Emergency Planning and Community Right-to-Know Act, 42 U.S.C. § 1104, ELR STAT. EPCRA § 326; the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. § 9659, ELR STAT. CERCLA § 310; the Federal Water Pollution Control Act, 33 U.S.C. § 1365, ELR STAT. FWPCA § 505; the Clean Air Act, 42 U.S.C. § 7604, ELR STAT. CAA § 304; the Noise Control Act, 42 U.S.C. § 4911 (1988); the Safe Drinking Water Act, 42 U.S.C. § 300j-8, ELR STAT. SDWA § 1449; the Endangered Species Act, 16 U.S.C. § 1540(g), ELR STAT. ESA § 11(g); the Toxic Substances Control Act, 15 U.S.C. § 2619, ELR STAT. TSCA § 20; the Surface Mining Control and Reclamation Act, 30 U.S.C. § 1270, ELR STAT. SMCRA § 520; the Marine Protection, Research, and Sanctuaries Act, 33 U.S.C. § 1415(g) (1988); the Deepwater Port Act, 33 U.S.C. § 1515 (1988); the Outer Continental Shelf Lands Act, 43 U.S.C. § 1349 (1988); and the Hazardous Liquid Pipeline Safety Act, 49 U.S.C. § 2014 (1988).

45. 42 U.S.C. §§ 6901-6992k, ELR STAT. RCRA §§ 1001-11012.

46. 42 U.S.C. § 6972(a)(1)(B), ELR STAT. RCRA § 7002(a)(1(B); see Adam Babich, RCRA Imminent Hazard Authority: A Powerful Tool for Businesses, Governments, and Citizen Enforcers, 24 ELR 10122 (Mar. 1994).

47. See, e.g., 42 U.S.C. §§ 6903(15), 6972(a), ELR STAT. RCRA §§ 1004(15), 7002(a).

48. Sierra Club v. Morton, 405 U.S. 727, 732, 2 ELR 20192, 20193 (1972). The doctrine is rooted in "both constitutional limitations on federal court jurisdiction and prudential limitations on its exercise." Warth v. Seldin, 422 U.S. 490, 498 (1975).

The Constitution, Article III, requires that plaintiffs prove that they have suffered or will suffer some injury that may be redressed by judicial action. Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 99 (1979); Duke Power Co. v. Carolina Envtl. Study Group, Inc., 438 U.S. 59, 72, 8 ELR 20545, 20548 (1978).

Prudential principles may bar plaintiffs who (1) do not asserts injuries that are peculiar to themselves or to a distinct group of which they are part; (2) assert the interest of third parties rather than their own; or (3) assert injuries to interests that are not arguably within the zone of interests to be protected or regulated by the relevant statute. Gladstone, 441 U.S. at 100.

By legislation, Congress may expand standing to the full extent permitted by the Constitution. Id.

49. Cf. Morton, 405 U.S. at 740, 2 ELR at 20196 (standing requirements "[s]erve as at least a rough attempt to put the decision as to whether review [of allegedly unlawful action] will be sought in the hands of those who have a direct stake in the outcome").

50. Warth v. Seldin, 422 U.S. 490, 498 (1975).

51. Supra note 48; James M. McElfish Jr., Drafting Standing Affidavits After Defenders: In the Court's Own Words, 23 ELR 10026 (Jan. 1993).

Organizations acting as plaintiffs, such as environmental groups, must prove that at least one of their members has been injured or is threatened with injury. See, e.g., Morton, 405 U.S. at 739, 2 ELR at 20195 ("It is clear that an organization whose members are injured may represent those members in a proceeding for judicial review."). In United Automobile Workers v. Brock, 477 U.S. 274, 282 (1986), the U.S. Supreme Court held:

[A]n association has standing to bring suit on behalf of its members when: (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization's purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.

Once one plaintiff has proven standing, courts generally will not require other plaintiffs in the same suit to provide separate proof. Horsehead Resource Dev. Co. v. Browner, 16 F.3d 1246, 1259, 24 ELR 20562, 20567 (D.C. Cir. 1994).

52. Lujan v. Defenders of Wildlife, 112 S. Ct. 2130, 2137, 22 ELR 20913, 20916 (1992); Morton, 405 U.S. at 735, 2 ELR at 20195; see also, e.g., Public Interest Research Group of New Jersey v. Powell Duffryn Terminals, Inc., 913 F.2d 64, 71, 20 ELR 21216, 21218 (3d Cir. 1990), cert. denied, 498 U.S. 1109 (1991) (upholding standing based on injury to aesthetic and recreational interests).

53. "To establish standing to redress an environmental injury, plaintiffs need not show that a particular defendant is the only cause of their injury, and that, therefore, absent the defendant's activities, the plaintiffs would enjoy undisturbed use of a resource." Natural Resources Defense Council v. Watkins, 954 F.2d 974, 980, 22 ELR 20368, 20369 (4th Cir. 1992). The plaintiff also need not prove "to a scientific certainty" that the discharge would harm the resource at issue. Powell Duffryn Terminals, Inc., 913 F.2d at 72, 20 ELR at 21219.

In a Clean Water Act case, this likelihood [of injury] may be established by showing that a defendant has 1) discharged some pollutant in concentrations greater than allowed by its permit 2) into a waterway in which the plaintiffs have an interest that is or may be adversely affected by the pollutant and that 3) this pollutant causes or contributes to the kinds of injuries alleged by the plaintiffs.

This will require more than showing a mere exceedance of a permit limit. Thus if a plaintiff has alleged some harm, that the waterway is unable to support aquatic life for example, but failed to show that defendant's effluent contains pollutants that harm aquatic life, then plaintiffs would lack standing.

Id.

There are situations, however, in which it can be difficult or impossible to identify plaintiffs who can meet the U.S. Supreme Court's most recent requirements for proof of injury, notwithstanding the existence of such injury. In Lujan v. Defenders of Wildlife, 112 S. Ct. 2130, 22 ELR 20913 (1992), the Court ruled that those who — for scientific, aesthetic, or other reasons — value the existence of an environmental resource may not sue to protect that resource unless they demonstrate plans to make active use of that resource. Without evidence that a plaintiff had specific intentions to experience the resource at issue directly, for example by visiting its vicinity, the Court considered any evidence of injury too "speculative" to suffice. In other contexts, however, legal and economic thought recognizes the validity of claims of injury to "passive" uses. See Natural Resource Damage Assessments Under the Oil Pollution Act of 1990, 58 Fed. Reg. 4601, 4602, 4610 (Jan. 15, 1993) (report of Contingent Valuation Panel) (noting that "for at least the last twenty-five years, economists have recognized the possibility that individuals who make no active use of a particular . . . natural resource might, nevertheless, derive satisfaction from its mere existence, even if they never intend to make active use of it" and acknowledging that "passive-use loss . . . is a meaningful component of the total damage resulting from environmental accidents"); Ohio v. Department of the Interior, 880 F.2d 432, 19 ELR 21099 (D.C. Dir. 1989).

54. Virginia Operating Permit Plan Rejected on Basis of State Statute Limited Lawsuits, supra note 27.

55. Many of the sciences needed to answer such questions — for example, toxicology, hydrology, biology — cannot yet provide definitive answers. See, e.g., Babich, supra note 39, at 739-42. The appropriate legal response to such uncertainty is a question of policy, rather than an objective fact that can be proven or disproved in a trial.

56. The court in Connecticut Fund for the Env't v. Upjohn Co., 660 F. Supp. 1397, 1409, 17 ELR 21137, 21142 (D. Conn. 1987), stated:

Under the FWPCA, compliance is a matter of strict liability and a defendant's intention to comply or good faith attempt to do so does not excuse a violation. . . . "One purpose of these new [effluent] requirements [of the Act] is to avoid the necessity of lengthy fact finding investigations, and negotiations at the time of enforcement. Enforcement of violations of requirements under the [Clean Water Act] should be based on relatively narrow fact situations requiring a minimum of discretionary decision making or delay" [quoting legislative history]. . . . Thus, the fact-finding process for determining compliance is a simple one — it involves comparing the reported discharges to the applicable effluent limitations to determine in which instances the discharges exceeded the allowable limits.

57. Such a law may be very useful as a "safety net" to address problems that narrower and more precise standards miss. See Babich, supra note 46. But they make a poor "first line" of defense against unreasonable environmental harm.

58. Before enactment of the CWA, state standards generally "established allowable concentrations of pollutant parameters for various water bodies." J. Gordon Arbuckle et al., Water Pollution Control in ENVIRONMENTAL LAW HANDBOOK 66 (11th ed. 1991). A "[m]ajor problem" with this approach was an "[i]nability to determine precisely when a discharge violated applicable standards." Id. "Although a few states made the water quality approach work, it was clear by 1970 that an effective nationwide approach required a permit program based on federal minimum 'end-of-pipe' effluent criteria enforceable directly against the discharger." Id. at 67.

59. Environmental Protection Agency v. California, 426 U.S. 200, 202-03, 6 ELR 20563, 20564 (1976) (emphasis added) (footnotes omitted).

60. Natural Resource Defense Council v. Outboard Marine Corp., 692 F. Supp. 801, 808, 19 ELR 20279, 20289 (N.D. Ill. 1988).

61. See, e.g., 42 U.S.C. § 6976(a)(1), ELR STAT. RCRA § 7006(a)(1) (administrative actions that could have been appealed "shall not be subject to judicial review in civil or criminal proceedings for enforcement"). Similarly, courts generally will onlyaccept defenses that are provided for, in advance, by the terms of the regulated party's permit. See, e.g., Connecticut Fund for the Env't v. Upjohn Co., 660 F. Supp. 1397, 1415, 17 ELR 21137, 21145 (D. Conn. 1987).

62. See Hawaii's Thousand Friends v. Honolulu, 821 F. Supp. 1368, 1395-96, 23 ELR 21380, 21394 (D. Haw. 1993) ("It is not the role of the court [in a citizen enforcement action] to evaluate the wisdom [of the regulatory scheme]. . . . [T]he court will consider the lack of measurable material harm to be a significant mitigating factor in assessing penalties. . . .") (emphasis added).

63. See supra note 30 and accompanying text.

64. See Proffitt v. Rohm & Hass, 850 F.2d 1007, 1012-14, 18 ELR 21165, 21167 (3d Cir. 1988); Student Pub. Interest Research Group v. Fritzsche, Dodge & Olcott, Inc., 579 F. Supp. 1528, 1536-37, 14 ELR 20450, 20454 (D.N.J. 1984), aff'd, 759 F.2d 1131, 15 ELR 20427 (3d Cir. 1985) (An administrative consent order that purports to extend impermissibly the Act's compliance deadlines will not bar citizen enforcement.).

65. Proffitt v. Lower Bucks County Joint Mun. Auth., No. 86-7220, 1987 WL 28350 (E.D. Pa. Dec. 16, 1987) (emphasis added), rev'd on other grounds, 877 F.2d 57 (3d Cir. 1989).

66. See David T. Buente, Citizen Suits and the Clean Air Act Amendments of 1990: Closing the Enforcement Loop, 21 ENV'T L. 2234, 2239-40 (1991) (noting the difficulty of citizen enforcement under the pre-1990 CAA which "did not pervasively require that all regulated sources monitor emissions and report the results to the government, which would have made the information readily accessible to citizens").

67. Connecticut Fund for the Env't v. Upjohn Co., 660 F. Supp. 1397, 1409, 17 ELR 21137, 21146 (D. Conn. 1987). The penalties for making false statements can be severe. See 33 U.S.C. § 1319(c)(4), ELR STAT. FWPCA § 309(c)(4).

68. 5 U.S.C. §§ 552-552a, ELR STAT. ADMIN. PROC.

69. 42 U.S.C. §§ 11001-11050, ELR STAT. EPCRA §§ 301-330.

70. Currently, a debate is in progress over the extent to which EPA should implement Congress' attempt to make compliance information under the CAA available by providing for enhanced monitoring of emissions. See Enhanced Monitoring Program, 58 Fed. Reg. 54648 (to be codified at 40 C.F.R. pt. 64) (proposed on Oct. 22, 1993).

71. See supra note 42 and accompanying text.

72. See, e.g., 42 U.S.C. § 6972(e), ELR STAT. RCRA § 7002(e).

73. Hensley v. Eckerhart, 461 U.S. 424, 433 & n.7 (1983) (emphasis added) (construing "standards . . . generally applicable in all cases in which Congress has authorized an award of fees to a 'prevailing party'").

74. Texas State Teachers Ass'n v. Garland Indep. School Dist., 489 U.S. 782 (1989); Ruckelshaus v. Sierra Club, 463 U.S. 680, 682, 688 n.9, 694, 13 ELR 20664, 20665-66, 20668 (1983).

75. Colorado Envtl. Coalition v. Romer, 796 F. Supp. 457, 459, 22 ELR 21545, 21546 (D. Colo. 1992), citing Foremaster v. St. George, 882 F.2d 1485, 1488 (10th Cir. 1989), cert. denied, 495 U.S. 910 (1990).

76. See, e.g., Orchard Lane Rd. Ass'n v. Pete Lien & Sons, Inc., 24 ELR 20804 (10th Cir. 1994).

77. Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 478 U.S. 546, 564, 16 ELR 20801, 20806 (1986); Blum v. Stenson, 465 U.S. 886, 897 (1984).

78. The Third Circuit noted: "By providing competitive rates [courts] assure that attorneys will take such cases and hence increase the likelihood that the congressional policy of redressing public interest claims will be vindicated." Student Pub. Interest Research Group v. AT&T Bell Lab., 842 F.2d 1436, 1449, 18 ELR 20758, 20765 (3d Cir. 1988).

79. The U.S. Supreme Court has noted:

Much of counsel's time will be devoted generally to the litigation as a whole, making it difficult to decide the hours expended on a claim-to-claim basis. Such a lawsuit cannot be viewed as a series of discrete claims. Instead the . . . court should focus on the significance of the overall relief obtained . . . in relation to the hours expended on the litigation.

Hensley v. Eckerhart, 461 U.S. 424, 435 (1983).

80. Consolidated Edison Co. v. Realty Invs. Assoc., 524 F. Supp. 150, 152-53, 12 ELR 20208, 20209 (S.D.N.Y. 1981) ("it is manifest that defendants face a substantially more difficult course in obtaining their counsel fee than do similarly situated plaintiffs"); see also Natural Resources Defense Council v. Costle, 8 ELR 20881, 20884 (D.D.C. 1978) (attorney fees available to defendants only if they have been victims of harassment or frivolous action).

81. Palumbo v. Waste Technologies Indus., No. 94-1296, 1994 WL 577441 (4th Cir. Oct. 20, 1994).

82. Id.

83. See, e.g., Orchard Lane Rd. Ass'n v. Pete Lien & Sons, Inc., 24 ELR 20804, 20805 (10th Cir. 1994).

84. The Court has repeatedly emphasized that "an interest in ready administrability . . . has underlain" its approach to fee awards. Burlington v. Dague, 112 S. Ct. 2638, 2643, 22 ELR 21099, 21102 (1992). To avoid "burdensome satellite litigation," id., fee applications "should not result in a second major litigation." Hensley v. Eckerhart, 461 U.S. 424, 437 (1983).

85. The Clean Water Act provides that:

In determining the amount of civil penalty the court shall considerthe seriousness of the violation or violations, the economic benefit (if any) resulting from the violation, any history of such violations, any good faith efforts to comply with the applicable requirements, the economic impact on the violator, and such other matters as justice may require.

33 U.S.C. § 1319(d), ELR STAT. FWPCA § 309(d); see Hawaii's Thousand Friends v. Honolulu, 821 F. Supp. 1368, 1394-96, 23 ELR 21380, 21387-91 (D. Haw. 1993) (ordering payment of $ 156,000 in civil penalties).

86. Cf. EPA, RCRA CIVIL PENALTY POLICY (Oct. 1990), ELR ADMIN. MAT. I 35273, 35277 (providing guidance for EPA to use in negotiating settlements).

87. EPA uses the BEN model to calculate the economic benefits of noncompliance. The August 1994 version of that computer model and its user manual are available from the ELR — The Environmental Law Reporter's Document Service ((202) 939-3813, ELR Order No. AD-284), and from the National Technical Information Service (703) 321-8547.

88. See RCRA CIVIL PENALTY POLICY, supra note 86, at 35274.

89. See 42 U.S.C. § 7604(g)(2), ELR STAT. CAA § 304(g)(2).

90. Id. § 7604(g)(1), ELR STAT. CAA § 304(g)(1).

91. 28 U.S.C. § 1367 (Supp. IV 1992).

92. New Mexico v. Watkins, 969 F.2d 1122, 1136-37, 22 ELR 21262, 21269-70 (D.C. Cir. 1992) (citing Weinberger v. Romero-Barcelo, 456 U.S. 305, 12 ELR 20538 (1982)). As the U.S. Supreme Court has noted:

Environmental injury, by its nature, can seldom be adequately remedied by money damages and is often permanent or at least of long duration, i.e., irreparable. If such injury is sufficiently likely, therefore, the balance of harms will usually favor the issuance of an injunction to protect the environment.

Amoco Prod. Co. v. Gambell, 480 U.S. 531, 545, 17 ELR 20574, 20577 (1987).

93. See, e.g., United States v. Environmental Waste Control, Inc., 917 F.2d 327, 332 & n.2, 21 ELR 20007, 20009 & n.2 (7th Cir. 1990), cert. denied, 111 S. Ct. 1621 (1991) (affirming a district court order closing a hazardous waste facility for violating RCRA).

94. See Weinberger, 456 U.S. 305, 318, 12 ELR 20538, 20541 (1982) (noting that enforcement actions typically result in a remedial order setting out a detailed compliance schedule to cure the violation).

95. See, e.g., Colonial Williamsburg Found. v. Kittinger Co., 1994 WL 578480 (4th Cir. 1994) (upholding a contempt order).

96. FED. R. CIV. P. 65(a); see Natural Resources Defense Council v. Watkins, 954 F.2d 974, 981-84, 22 ELR 20368, 20370-71 (4th Cir. 1992).

97. MANUAL OF COMPLEX LITIGATION, SECOND § 23.1.1 (Draft 1985).

98. Citizen-suit settlements often involve contributions to environmentally beneficial projects in lieu of civil penalties, which would be paid to the U.S. Treasury. Cf. JONATHAN GREEN, NEGOTIATING POLLUTION PREVENTION SUPPLEMENTAL ENVIRONMENTAL PROJECTS IN STATE ENVIRONMENTAL ENFORCEMENT SETTLEMENT AGREEMENTS (1994); Donald W. Stever, Environmental Penalties and Environmental Trusts, 17 ELR 10356 (Sept. 1987).

99. See MANUAL OF COMPLEX LITIGATION, SECOND, supra note 97, § 23.1.2.

100. United States v. Akzo Coatings of America, Inc., 949 F.2d 1409, 1435, 22 ELR 20405, 20411 (6th Cir. 1991).

101. MANUAL OF COMPLEX LITIGATION, SECOND, supra note 97, § 23.1.2.

102. Cf. 42 U.S.C. § 9621(e)(2), ELR STAT. CERCLA § 121(e)(2) (requiring that each consent decree under Superfund "contain stipulated penalties for violations of the decree").

103. See 42 U.S.C. § 7604(c)(3), ELR STAT. CAA § 304(C)(3); 33 U.S.C. § 1365(c)(3), ELR STAT. FWPCA § 505(c)(3).

104. See, e.g., 42 U.S.C. § 6973(d), ELR STAT. RCRA § 7003(d) (when the U.S. seeks to settle certain claims it must provide "notice, and an opportunity for a public meeting in the affected area, and a reasonable opportunity to comment . . ."); 40 C.F.R. § 271.16(d)(2)(iii) (1994) (states generally must "provide at least 30 days for public comment on all proposed settlements of [RCRA] civil enforcement actions. . . ."). To date, these requirements apply only to cases settled by the government, not to citizen suits.

105. E.g., 42 U.S.C. § 6972(b)(1)(A), ELR STAT. RCRA § 7002(b)(1)(A); see Hallstrom v. Tillamook County, 493 U.S. 20, 20 ELR 20193 (1989); United States v. Environmental Waste Control, Inc., 710 F. Supp. 1172, 1188-91, 20 ELR 20035, 20041-43, aff'd, 917 F.2d 327, 21 ELR 20007 (7th Cir. 1990), cert. denied, 111 S. Ct. 1621 (1991). Because the citizen-suit provisions in environmental laws differ in some details, this section of this Comment provides only a general summary of the mechanics of filing such suits.

106. 42 U.S.C. § 6972(b)(1)(A), ELR STAT. RCRA § 7002(b)(1)(A); id. § 7604(b), ELR STAT. CAA § 304(b).

107. E.g., 42 U.S.C. § 6972(b)(1)(B), ELR STAT. RCRA § 7002(b)(1)(B).

108. E.g., id. § 6972(b)(2)(F), ELR STAT. RCRA § 7002(b)(2)(F).

109. Id. § 6972(d), ELR STAT. RCRA § 7002(d).

110. Id. § 6972(b)(1)(B), ELR STAT. RCRA § 7002(b)(1)(B); see Proffit v. Rohm & Haas, 850 F.2d 1007, 1012, 18 ELR 21165, 21167 (3d Cir. 1988) ("[I]t is questionable whether the EPA can bar a citizen's suit by any means other than its own diligent prosecution."); Washington Pub. Interest Research Group v. Pendleton Woolen Mills, 11 F.3d 883, 24 ELR 20231 (9th Cir. 1993) (citizen suit not precluded by administrative order); Arkansas Wildlife Fed'n v. ICI Americas, Inc., 29 F.3d 376, 24 ELR 21573 (8th Cir. 1994) (administrative consent order precludes citizen suit).

111. 28 U.S.C. § 2462 (1988); see Sierra Club v. Chevron U.S.A., Inc., 834 F.2d 1517, 1521, 18 ELR 20237, 20240 (9th Cir. 1987).

112. Gwaltney of Smithfield Ltd. v. Chesapeake Bay Found., 484 U.S. 49, 18 ELR 20142 (1987) (holding that federal courts have no jurisdiction over CWA citizen enforcement lawsuits for "wholly past" violations).

113. 42 U.S.C. § 7604(a)(1), (3), ELR STAT. CAA § 304(a)(1), (3).