The United States has a long history of citizen suits and has influenced the trends in other parts of the world. From the outset, in the various environmental laws that were passed in the 1970s and 1980s, Congress had carved out a role for citizens and NGOs as “private attorneys-general” to pursue environmental violation cases and help ensure the implementation and enforcement of most environmental laws. Citizens also can have legal recourse to challenge environmental decisions by the U.S. Government and its agencies under the Administrative Procedures Act, and certain environmental laws grant more specific rights to seek judicial review of agency decisions.
Through “citizen-suit” provisions, citizens and NGOs can typically file suit against either government agencies at federal or state levels when they fail to take mandatory actions or against a private party for violating a specific environmental law. These provisions (for example in the Clear Water Act and the Clean Air Act) are usually designed to spur or supplement government action. The plaintiff must provide advance notice to the government and the defendant of intent to file the suit, and there is a brief period during which time the government can pre-empt the suit by filing its own enforcement action or undertaking the disputed government action. The plaintiff must still satisfy applicable standing requirements, such as the constitutional requirement of injury-in-fact traceable to a defendant’s action that can be redressed through court action. Relief is generally confined to injunctions and civil fines paid to the US government. If the citizen or NGO prevails, it frequently can recover reasonable attorneys’ fees and court costs.
In 1980, Congress passed the Equal Access to Justice Act (EAJA) which seeks to protect parties with limited resources from significant disparities in financial resources for instituting legal action. The EAJA aids eligible individuals and small entities that are parties to litigation against the government by providing award of attorney’s fees (up to US$125 per hour) and other expenses. Any eligible party may receive an award when it prevails over the government, unless the government’s position was “substantially justified” or special circumstances make an award unjust.
Alternative Dispute Resolution (ADR) is a technique that USEPA and DOJ promote to maximise the effective use of enforcement resources and assist affected citizens who seek to improve the behavior of enterprises, so that environmental damage and/or non-compliance is prevented or resolved. Recognising that the vast majority of lawsuits in the United States are settled, USEPA’s Office of Environmental Justice (OEJ) provides training to community-based organizations in environmental dispute resolution as an alternative means to expensive and potentially divisive litigation. This training helps citizens to effectively engage in the process of environmental decisionmaking by mediation, arbitration, and other means that achieve environmentally protective outcomes without litigation.
There are many scholarly and practioner-oriented resources on U.S. citizen suits. Some of these may be found in the case study below on “Additional Resources on Access to Justice.”
See also:
Jonathan Adler, “Stand or Deliver: Citizen Suits, Standing, and Environmental Protection,” 12 Duke Environmental Law & Policy Forum 39 (2001), available at http://www.law.duke.edu/
journals/delpf/articles/delpf12p39.htm#FA0
Michael D. Axline, Environmental Citizen Suits (1991).
Defenders of Wildlife & Center for Wildlife Law, The Public in Action: Using State Citizen Suit Statutes (2000), available at http://www.defenders.org/
states/publications/publicinaction.pdf
Jeffrey G. Miller & Environmental Law Institute, Citizen Suits: Private Enforcement of Federal Pollution Control Laws (Wiley 1987).
Ohio Environmental Council, “Guide to Clean Water Act Citizen Suits,” available at http://www.theoec.org/
pdfs/cwater/cwater_pollaw_suit.pdf
State Environmental Resource Center, “Citizen Suits in States,” available at http://www.serconline.org/
citizensuits/background.html