Community Participation in Environmental Protection

By Mullikin, Thomas Stowe; Smith, Nancy S. | UCLA Journal of Environmental Law & Policy, Summer 2003 | Go to article overview

Community Participation in Environmental Protection


Mullikin, Thomas Stowe, Smith, Nancy S., UCLA Journal of Environmental Law & Policy


I.

INTRODUCTION

Much has been written in recent years concerning the erosion of citizens' rights to file suits alleging environmental harm against industry. An article in Bergen, New Jersey's Record newspaper typifies these writings: "You don't need a chainsaw to damage the environment. A gavel and a black robe can be far more effective." (1) Of course, commentary such as this tends to shed more heat than light on the subject by condemning integral decision-makers and shifting focus away from substantive issues. The purpose of this article, however, is to approach the issue in a manner that illuminates the role of citizen participation in environmental protection rather than descending into argument. Analyzed herein are the two primary vehicles which citizens have successfully used to seek redress for alleged environmental harm: (1) citizen suits under the major environmental bodies of law; and (2) civil rights Title VI actions for environmental justice. Finally, the Collaborative Compact Model is proposed and analyzed. This model provides a progressive alternative to citizen suit litigation by promoting a partnership between a community and an industry that can effectively address and rectify a community's environmental concerns.

II.

ORIGINS OF CITIZEN SUIT PROVISIONS

One of the basic features of our nation's environmental protection system is the right of citizens to sue in federal court to force industry to comply with environmental standards. Congress included citizen suit provisions in major environmental laws, such as the Clean Water Act2 ("CWA") and the Clean Air Act, (3) to enable citizens to act as "private attorneys general" and to supplement the government's limited enforcement resources. (4) These provisions ensure the rigorous enforcement of environmental laws when states do not or will not address serious pollution problems in good faith. Citizen suits have been a narrow, but very important, statutory remedy.

It is important to note that these provisions authorize citizens to complement government action, not to compete with or replace it. For example, section 505 of the CWA authorizes any citizen to commence a civil action against a person or entity "alleged to be in violation" of an effluent standard or limitation. (5) The citizen-plaintiff must provide notice of the alleged violation to the Administrator of the U.S. Environmental Protection Agency, to the enforcement agency of the state where the alleged violation occurs, and to the alleged violator at least sixty days before he may file suit. (6) The 60-day notice requirement allows for the industry to come into compliance and provides the government with an opportunity to act in lieu of the citizen-plaintiff to avoid multiple lawsuits.

As indicated in the Senate Report on the Federal Water Pollution Control Act Amendments of 1972 (7) ("FWPCA"), "[t]he Committee intends the great volume of enforcement actions to be brought by the State" and that citizen suits are proper only "if the Federal, State, and local agencies fail to exercise their enforcement responsibility." (8) Further, citizen suits are to "ignite agency enforcement" and to act as an "alternative enforcement mechanism absent agency enforcement." (9) Thus, a citizen suit is not authorized unless the state has failed or declined to take action or has not "diligently prosecuted" a claim after receipt of the 60-day notice. (10)

Congress' aversion to the duplicative actions that can result from simultaneous or subsequent citizen suits is also illustrated by the "diligent prosecution" provision of the CWA. (11) This provision mandates that no citizen suit may be undertaken "if the Administrator or State has commenced and is diligently prosecuting a civil or criminal action in a court of the United States, or a State to require compliance with the standard, limitation, or order." The meaning of these provisions could not be clearer - citizen suits are barred when the state has commenced and is diligently prosecuting a civil action in court to require compliance. …

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