Citizen Environmental Enforcement Lawsuits Are Alive-What It Takes to Go Forward

• Date: 01 August 2022
• Author: Howard Learner

52 ELR 10616 ENVIRONMENTAL LAW REPORTER 8-2022

COMMENT

CITIZEN ENVIRONMENTAL

ENFORCEMENT LAWSUITS ARE

ALIVE—WHAT IT TAKES TO

GO FORWARD

by Howard Learner

Howard Learner is President and Executive Director of the Environmental Law & Policy Center.

Thank you to the authors for a well put together and

provocative article that will be helpfu l in the eld.

eir empirical analysis is valuable, and I can add

some good news in at least two regions of the countr y—the

Midwest and the Southeast, which a re not always viewed as

having especially v igorous state-level enforcement or strong

environmental programs. In both of these regions, there

are a signicant number of big-deal, substantive citizen

environmental lawsuits that are being led, and plaintis

are succeeding. ey involve both actions against private

parties and actions against governments. Some of these

cases may be “retail level,” but many have high-leverage,

systemic change value.

For example, in the Midwest, the Great Lakes is widely

viewed as a global ecological gem providing a largesse of

freshwater supply. ere is strong bipartisan public and

political support for protecting the Great Lakes in places

like Toledo, northwest Indiana, Chica go, and th roughout

the region. Actually, these are more than “ just” bipartisan

issues; these are nonpartisa n issues. Both Republicans and

Democrats in the congressional delegation strongly sup-

port protecting the Great Lakes.

So, why are all these environmental citiz en suits happen-

ing? In both regions, the Midwest and the Southea st, there

are sophisticated public interest environmental legal advo-

cacy groups that have the legal capacity, a strong enough

nancial base, a nd experienced attorneys who know how

to bring these sorts of citizen suits. In the Midwest, it’s

the Environmental Law and Policy Center, and, also,

our colleagues at the Midwest Environmental Advocates,

Earthjustice, NR DC, Sierra Club, and other eective

groups. In t he Southeast, it’s the Southern Environmen-

tal Law Center, EDF, South Carolina Environmental Law

Project, and a number of other groups. When there’s a set

of groups that have talented public interest attorneys with

legal sophistication, and a reasonably strong nancial base

so they can take on citizen suits requiring years of litiga-

tion against powerfu l polluters with deep pockets to bank-

roll big law rms and hired-gun experts, then you then

have the capacity to undertake t he types of cases that I will

talk about now.

ere is indeed a sort of self-regulating component to

this. ese cases require substantial investments of attor-

neys’ time, experts, and money. Here, at the Environmen-

tal Law and Policy Center, we are looking at cases th at raise

the bar, and have leverage value. We cannot do everythi ng,

so one of the questions we always consider is whether this is

a one-o case, or a case that w ill raise the bar for the future

and have a ripple eect.

Another aspect of this is explained well by an attorney

colleague who is the former managing partner of a major

law rm: regulated industr y clients want to know that if

they do things right in reducing pollution, but their com-

petitors are not doing things right—and that if the federal

government in a certain administration is not going after

that competitor—that there will be a group like the Envi-

ronmental Law and Policy Center or Earthjustice who ta ke

legal action. Otherwise, their clients are at a competitive

disadvantage, and they do not want to be in that situation.

In terms of leverage, no corporate general counsel and

CEO of an industrial company wants to be seen on the

front page of a newspaper labeled as a Great Lakes poll-

luter. Nobody wants that. at provides some leverage.

at is part of eective public interest advocacy when it

comes to leveraging citizen suit litigation for environmen-

tal protection and progress.

Now, I will turn to some of the current litigation on

our docket. Indiana is not well-known for strong environ-

mental programs or enforcement despite some very good

Editors’ Note: Howard Learner’s Comment is based on an edited

transcription of his remarks at the Environmental Law and Policy

Annual Review conference. See 2021-2022 Environmental Law

and Policy Annual Review Conference, available at https://

www.eli.org/environmental-law-policy-annual-review/2021-

2022-ELPAR-conference.

Copyright © 2022 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.