Imposition of Citizen Participation and Enforcement

AuthorRobin Kundis Craig
par t i i
Imposition of Citizen Participation
and Enforcement
When Congress set out in 1972 to improve the Federal Water Pollution Control
Act’s (FWPCA’s) effe ctiveness and enforcement, it not onl y restructur ed the
Act to impose minimum federal requirements and to guarantee comprehensive
federal enforcement, but also explicitly provided for citizen participation in, and
citizen enforcement of, the Act’s requirements. By 1972, moreover, Congress had
already observed the power of citizen involvement in environmental protection in
connection with the National Environmental Policy Act (NEPA) of 1969, which
requires federal agencies to consider the environmental implications of any “major
Federal action” that they undertake.1
As Russell E. Train, the second Administrator
of the U.S. Environmental Protection Agency (EPA), observed: “Citizen concern
and citizen action were key ingredients both of our nation’s rapid development
of environmental protection policies and of the effective implementation of those
policies.”2 “ [M]any established citizen environmental organizations played an
active and effective role, indeed a crucial one, in monitoring and promoting the
enforcement of environmental laws, especially in the early 1970s during initial
implementation of the EIS process in federal decision making.”3
Building on this experience with NEPA, Congress considered citizen involve-
ment critical to the restructured Clean Water Act’s (CWA’s or the Act’s) success,
as Chapter 7 will discuss more thoroughly. Nevertheless, citizen involvement in
the CWA and environmental enforcement more generally have prompted some
of the Act’s most important constitutional controversies. In particular, the Act’s
citizen suit provision, like federal environmental citizen suit provisions generally,
has forced the U.S. Supreme Court to evaluate citizens’ relationship to the fed-
eral government and to the individual states. These evaluations, moreover, have
prompted the Court to examine a number of constitutional principles, but almost
all of its constitutional decisions involving environmental citizen suits reveal the
Supreme Court’s reluctance to allow for a strong citizen role in pursuing national
environmental quality goals, particularly since the late 1980s. It is with respect to
1. 42 U.S.C. §4332(D).
2. Russell E. Train, Politics, Pollution, and Pandas: An Environmental Memoir 94
ch07.indd 169 4/30/09 10:11:24 AM

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