No Accounting for Accountability? A Comment on Environmental Citizen Suits and the Inequities of Races to the Top

Date01 August 2022
AuthorBina R. Reddy
by Bina R. Reddy
Bina R. Reddy is a Principal at Beveridge & Diamond PC.
Citizen suits elicit strong opinions but the discourse
around their relative merits and decits is often
woefully lacking in supporting data. In Environ-
mental Citizen Suits and the Inequities of Races to the Top,
David E. Adelman and Jori Reilly-Diakun step into this
void and provide a cogent empirical analysis of citizen suits
aimed at assessing whether these statutory causes of action
are meeting the intent of the U.S. Congress to serve as a
layer of protection against lax federal or state enforcement
of environment al laws.¹ e authors argue the data shows
citizen suits are largely not meeting this goal, but nor are
they fullling the concerns of citizen suit critics. More
specically, Adelman and Reilly-Diakun contend that
the data does not bear out the concern that citizen suits
allow private actors to augment government enforcement
schemes and priorities in a manner that lacks accountabil-
ity, including to local community members that are most
directly aected by how environmental laws are enforced.
To arrive at these conclusions, Adelman and Reilly-Diakun
“crunched” the available data, i.e., categorized, sorted, and
made certain assumptions about the data—as is necessary
in any empirical study.
is Comment oers practitioner observations on
how citizen suits may resist some of this sorting and cat-
egorization, and what the data says or doesn’t say about
accountability to aected reg ulated and local communi-
ties. In particul ar, (1)the “wholesale” and “retail” litigation
categories utilized by Adelma n and Reilly-Daikun may
obscure the broader impacts of retail citizen suit litigation
on enforcement trends that have demonstrable bar-raising
eects, and (2)the reliance on the number of environmen-
tal organizations in a state as a proxy for local preferences
does not speak to whether there is alignment between the
interests being vindicated by the actual citizen suit plain-
1. David E. Adelman & Jori Reilly-Diakun, Environmental Citizen Suits and
the Inequities of Races to the Top, 92(2) U. C. L. R. 377, 379-80, 394-
95 (2021).
tis— often national environmental nongovernmental
organizations (ENGOs)—and those of local residents.
I. Retail Litigation With
Wholesale Impacts
Central to Adelman and Reilly-Diakun’s analysis is the
distinc tion draw n between “wholesale” and “retai l” citi-
zen suit litigation.² Wholesale litigation is roughly de ned
as those citizen suits targeting state or federal agencies for
violating non-discretionary duties, resulting in broadly
applicable outcomes. Retail litigation on the other hand
is characterized a s suits targeting private facilities, gener-
ally for permit violations, and resulting in facility-specic
outcomes.³ Adelman a nd Reilly-Diakun state that reta il
litigation has a “modest and geographically concentrated
role,” and suggest that retail litigation does not meaning-
fully impact inequities in enforcement. How ever, t hi s
binary framing ignores the existence of retail suits that ask
courts to interpret generic narrative requirements that are
ubiquitous in permits, and which consequently result in
broadly applicable outcomes. is is retail litigation that is,
in eect, wholesale litigation. Citizens and ENGOs have
long been aware of the way in which retail litigat ion can be
used to create broad changes in enforcement. Citizen suit
plaintis have limited resources a nd make use of “impact
litigation” to maximize the eect of favorable outcomes.
at is to say, citizens and ENGOs often make eective us e
of their funds by pursuing lawsuits t hat will have an impact
beyond specic facilities. is approach has been used by
2. Id. at 381.
3. Id. at 386, 407, 440-42.
4. Id. at 442.
Copyright © 2022 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®,, 1-800-433-5120.

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