Environmental Citizen Suits and the Inequities of Races to the Top

Date01 August 2022
AuthorDavid Adelman, Jori Reilly-Diakun
Citizen suits are led disproportionately in a small
number of states with robust environmental pro-
grams. is bias ma gnies disparities across states
both directly, by ensuring that standa rds and procedures
are followed in favored states, and indirectly, by driv-
ing development with signicant environmental impacts
towards states in which citizen suits a re rare and enforce-
ment is less rigorous.
Among environmentalists and liberal commentators,
citizen suits are lauded for their capacity to augment gov-
ernment enforcement and to compel ideologically antag-
onistic administrations to take legally required action.¹
Among skeptics, citizen suits threaten the constitutional
authority of federal agencies to implement the law² and
allow private organizations to take advantage of broad
legislative mandates without a ny political accou ntabilit y.³
1. See Eileen Gauna, Federal Environmental Citizen Provisions: Obstacles and
Incentives on the Road to Environmental Justice, 22 E L.Q. 1 (1995);
James R. May, Now More an Ever: Trends in Environmental Citizen
Suits at 30, 10 W L. R. 1 (2003); William B. Rubenstein, On
What a “Private Attorney General” Is—and Why It Matters, 57 V. L.
R. 2129 (2004); Trevor W. Morrison, Private Attorneys General and the
First Amendment, 103 M. L. R. 589 (2005); Christian Langpap &
Jay P. Shimshack, Private Citizen Suits and Public Enforcement: Substitutes
or Complements?, 59 J. E’ E. M. 235 (2010); Matthew C.
Stephenson, Public Regulation of Private Enforcement: e Case for Expanding
the Role of Administrative Agencies, 91 V. L. R. 93 (2005); Will Reisinger,
Trent A. Dougherty & Nolan Moser, Environmental Enforcement and the
Limits of Cooperative Federalism: Will Courts Allow Citizen Suits to Pick
Up the Slack?, 20 D E’ L.  P’ F. 1 (2010); Matthew D. Zinn,
Policing Environmental Regulatory Enforcement: Cooperation, Capture, and
Citizen Suits, 21 S. E’ L.J. 81 (2002).
2. See Charles S. Abell, Ignoring the Trees for the Forests: How the Citizen Suit
Provision of the Clean Water Act Violates the Constitution’s Separation of Powers
Principle, 81 V. L. R. 1957 (1995).
3. See Frank B. Cross, Rethinking Environmental Citizen Suits, 8 T. E’
L.  T. J. 55 (1989); Jeannette L. Austin, e Rise of Citizen-Suit
Enforcement in Environmental Law: Reconciling Private and Public Attorneys
General, 81 N. U. L. R. 220 (1987); Stephen M. Johnson, Sue and
From this perspective, rather than acting as “private attor-
neys genera l,” environmenta l groups ex ploit government
power for their own ends, overriding the interests of local
communities and private actor s.
We nd little evidence for either perspective for the
simple reason that few citizen suits are led a nnually and
a relatively small proportion of them involve “retail” litiga-
tion against individua l private entities. Most citizen suits
operate at the “wholesale” level through cha llenge s to
major policies or programs. ey are led against the fed-
eral or a state government for regulatory violations or, more
commonly, for noncompl iance w ith stat utory ma ndates,
including nondiscretionary dut ies, substantive criteria,
and procedural requirements. Moreover, the concentra-
tion of citizen suits in states where public support is strong
for environmental programs both negates critics’ concerns
about conicts with local va lues and highlights the socio-
economic inequities of access to this form of legal recourse.
By taking a broader perspective of citizen suits  led over
two presidential administrations, we examine the connec-
tions between the structures of statutory regimes and pat-
terns of litigation. For example, we nd that almost 90%
of the citizen suits led under the Clean A ir Act (CAA)
involve wholesa le rulemaking chal lenges, whereas ret ail
litigation accounts for a similar percentage of cases under
the National Environmental Policy Act (NEPA). ese dif-
ferences reect the substantive and procedural elements of
each statute. Recognizing the practical limits of and struc-
Settle: Demonizing the Environmental Citizen Suit, 37 S U. L. R.
891 (2014); David Freeman Engstrom, Agencies as Litigation Gatekeepers,
123 Y L.J. 616, 630-41 (2013).
4. See Engstrom, supra note 3, at 639-41.
5. Such suits can be led under environmental statutes, such as the Endangered
Species Act (ESA) §1540(g)(1)(B), 16 U.S.C. §1531 or the Clean Air
Act (CAA) §7604(a)(2), 42 U.S.C. §7401 (2012), or the Administrative
Procedure Act [hereinafter APA] §706(1), 5 U.S.C. §500 (2012).
6. ese suits may also be led under the APA, 5 U.S.C. §706(2) (authorizing
courts to “hold unlawful and set aside agency action” found to be in violation
of any of six standards of review), or a governing environmental statute, e.g.,
33 U.S.C. §1369(b) (Clean Water Act (CWA)); 42 U.S.C. §6976 (Resource
Conservation and Recovery Act (RCRA)); 42 U.S.C. §7607(b) (CAA).
by David Adelman & Jori Reilly-Diakun
David Adelman is the Harry Reasoner Regents Chair in Law at the University of Texas School of Law.
Jori Reilly-Diakun was a Fellow with Professor Adelman at the time of writing, and is now an Attorney-
Advisor at U.S. EPA, Office of General Counsel, Pesticides and Toxic Substances Law Office. The views
expressed here are his own and do not necessarily represent those of the United States or EPA.
Editors’ Note: This Article is adapted from David Adelman
and Jori Reilly-Diakun, Environmental Citizen Suits and
the Inequities of Races to the Top, 92 U. COLO. L. REV. 377
(2021), and used with permission.
Copyright © 2022 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.

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