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

Date01 August 2022
AuthorHoward Learner
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://
Copyright © 2022 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®,, 1-800-433-5120.

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