No Accounting for Accountability? A Comment on Environmental Citizen Suits and the Inequities of Races to the Top
Date | 01 August 2022 |
Author | Bina R. Reddy |
8-2022 ENVIRONMENTAL LAW REPORTER 52 ELR 10619
COMMENT
NO ACCOUNTING FOR
ACCOUNTABILITY? A COMMENT ON
ENVIRONMENTAL CITIZEN SUITS AND
THE INEQUITIES OF RACES TO THE TOP
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 decits 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 fullling the concerns of citizen suit critics. More
specically, 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 aected 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 oers 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 aected 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
eects, 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).
tis— 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-specic
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 eect, 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
plaintis have limited resources a nd make use of “impact
litigation” to maximize the eect of favorable outcomes.
at is to say, citizens and ENGOs often make eective us e
of their funds by pursuing lawsuits t hat will have an impact
beyond specic 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®, http://www.eli.org, 1-800-433-5120.
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