In the 1970s, Congress enacted or expanded several landmark environmental protection statutes, among them the Clean Water Act, the Clean Air Act, and the Resource Conservation and Recovery Act. These statutes established minimum standards for reducing and preventing various kinds of pollution throughout the United States. Their goal was to stop and reverse the damage that had been done to the nation’s air, land, and water during a century-plus of largely unregulated industrial development.
To administer and enforce these new statutes, the United States Environmental Protection Agency (EPA) was created. The EPA, in turn, delegated much of its administrative and enforcement authority to the individual states—so that, for example, in Massachusetts, the Massachusetts Department of Environmental Protection (MassDEP) is the agency primarily responsible for enforcing the requirements of the federal Clean Air Act.
Notwithstanding its creation of this governmental enforcement system, Congress had the wisdom to include in most of the new statutes a “citizen suit” provision. A citizen suit provision empowers an adversely affected citizen to sue a person who is violating a statute, so long as the government is not already doing so. For example, the Clean Water Act’s citizen suit provision, at 33 U.S.C. § 1365, reads in relevant part as follows:
“[A]ny person may commence a civil action on his own behalf … against any person who is alleged to be in violation of [a pollution standard or limitation established by the Clean Water Act] … [unless the federal or state government] has commenced and is diligently prosecuting a civil or criminal action [against that violator] … .”
Congress included these citizen suit provisions in its environmental statutes because it recognized that government alone was not going to be able to detect and prosecute all of those who were violating the statutes—and in any event, might not be inclined to, given the influence that polluting interests tend to have in shaping the enforcement policies of our executive branch.
The federal citizen suit is an extremely potent tool for protecting the environment. Typically, the plaintiff in a citizen suit is not a private property owner, but an organization of citizens. For example, where a construction development or industrial facility is polluting a stream, a group of citizens who value the stream—whether for fishing, or for viewing of wildlife, or for other recreational and aesthetic purposes—may join together to file a suit against the polluter for violating the Clean Water Act. In other cases, the citizen suit plaintiff is a private property owner who actually owns the property, or part of the property, that is being polluted.
There are two main types of relief that a prevailing plaintiff in a federal environmental citizen suit can obtain: injunctive relief, and civil penalties. Injunctive relief consists of an order, issued by a court, that either forces the defendant to do something, or to stop doing something—for example, in a Clean Water Act case, a defendant may be ordered both to stop polluting a body of water, and to clean up whatever pollution it has caused. As for civil penalties, the defendant can be ordered to pay tens of thousands of dollars in fines for every day that it has violated the statute in question. This money does not go to the plaintiff, but to the United States Treasury. The plaintiff is entitled, however, to an award of attorneys’ fees, expert witness fees, and other costs of litigation. The availability of such fees and costs is an important incentive for attorneys to take on these cases.