Imposition of Citizen Participation and Enforcement

• Author: Robin Kundis Craig
• Pages: 169-170

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

169

1. 42 U.S.C. §4332(D).

2. Russell E. Train, Politics, Pollution, and Pandas: An Environmental Memoir 94

(2003).

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