JurisdictionUnited States
Natural Resources and Environmental Administrative Law and Procedure II
(Sep 2004)


Lori Potter
Kelly/Haglund/Garnsey & Kahn LLC
Denver, Colorado

Lori Potter is a member of the firm of Kelly/Haglund/Garnsey & Kahn LLC in Denver, Colorado. She practices in the areas of public lands and environmental law and water resource development and protection. Her current work includes mineral development, water quality and access issues for governmental clients, individuals, citizens' groups and businesses, with a special emphasis on development issues confronting mountain homeowners, local governments, and homeowners' associations.

Prior to entering private practice, Ms. Potter was Regional Director of the Sierra Club Legal Defense Fund's Rocky Mountain Office, where she handled numerous cases of regional and national significance involving instream flows, reserved rights, section 404 permitting, and local control over development on federal lands.

Ms. Potter graduated from Harvard Law School in 1980. She earned M.A. (1977) and B.A. (1975) degrees from the University of Illinois. She has been a Fulbright Professor of Environmental Law in India and writes and lectures extensively on environmental and public lands issues. On the subject of public participation, she has written The Snowmass Creek Decision: Putting Some Teeth in Public Enforcement, 17 University of Denver Water Court Reporter (Fall/Winter 1995-96) and The Public's Role in the Acquisition and Enforcement of Instream Flows, Vol. 23, No. 2, Land and Water Law Review (1988), revised for and reprinted in MacDonnell, et al., eds., Instream Flow Protection in the West (1989).

Reprinted from Natural Resources & Environmental Administrative Law & Procedure, Paper 6 (Rocky Mt. Mineral Law Fdn. (1999).


The United States is probably the only country in the world where public participation in public issues is so ubiquitous and varied that it can be broken down into different types of participation according to the matter, with different rules of varying degrees of formality and with different models of enforcement litigation after the administrative process is complete. In the environmental and natural resources field, public participation takes one of two general forms: (1) classic Administrative Procedure Act notice and comment adjudication or rulemaking, with review under the APA -- and a thousand variations depending upon the particular substantive statute, regulations, and agency involved; and (2) 60-day notice of violation letters with subsequent citizen (or agency) enforcement pursuant to citizen suit provisions, which are generally found under regulatory statutes (for examples, see B. below). As is illustrated by the case law cited below, no one segment of the public exercises a monopoly on participation and enforcement; individuals, citizens' groups, trade associations, regulated industry and state and local government all are part of the chorus of voices.

A. "APA-related" public participation and litigation

The National Environmental Policy Act (NEPA) is the paradigmatic public involvement law. 42 U.S.C. § 4321 et seq. The statute and its regulations (40 CFR Part 1500) provide generally that all actions permitted, funded or controlled by a federal agency are subject to written description, analysis, consideration of alternatives, and varying degrees of public participation. Public participation measures range from perfunctory to comprehensive, depending upon the scope of the action, its impacts, controversy, and other factors. These measures can entail simply releasing an environmental assessment or decision document via an electronic bulletin board or, at the other end of the spectrum, including the public in scoping the issues to be addressed, providing the opportunity for comment on both draft and final versions of the environmental study, and holding public hearings at two or more stages of the decisionmaking process. Judicial review may be had under the Administrative Procedure Act. See generally Mandelker, NEPA Law and Litigation (Clark Boardman 1997).

NEPA's public participation provisions are echoed in other land management legislation of the same era. The Federal Land Policy and Management Act, 43 U.S.C. § 1701 et seq., declares Congress' policy to be assurance of adequate third party participation, § 1701(a)(5), particularly in land use planning. § 1712. The National Forest Management Act likewise makes public involvement opportunities mandatory in decisions affecting forest planning and resource use. 16 U.S.C. § 1601(c) and (d). Both the Forest Service and BLM have detailed procedures for appeal of agency decisions. Again, judicial review is had under the Administrative Procedure Act and exhaustion of administrative remedies is a prerequisite.

B. "Enforcement-related" participation and litigation

Under a broad array of statutes, citizens may commence litigation as "private attorneys general" to enforce the provisions of those laws, usually after having given 60 days notice of intent to sue. As described in part II below, this is an area in great ferment, with new decisions almost daily on the contours of citizen enforcement.

In addition to the right to participate by enforcing these laws, the public also has rights to comment on draft permits and proposed rules under these laws.

Citizens may file suit to enforce public rights or enjoin violations under, inter alia, the Clean Air Act, 42 U.S.C. § 7604(a), the Endangered Species Act, 16 U.S.C. § 1540(g) the Clean Water Act, 33 U.S.C. § 1365(a), the Freedom of Information Act, 5 U.S.C. § 552, the Outer Continental Shelf Lands Act, 43 U.S.C. § 1349(a)(1), The Toxic Substances Control Act, 15 U.S.C. § 2619(a), the Deep Seabed Hard Mineral Resources Act, 30 U.S.C. § 1427(a), the Safe Drinking Water Act, 42 U.S.C. § 300j -8(a), the Noise Control Act, 42 U.S.C. § 4911(1), the Energy Policy and Conservation Act, 42 U.S.C. § 6305(a), the Surface Mining Control and Reclamation Act, 30 U.S.C. § 1270(a), the Natural Gas Pipeline Safety Act, 49 U.S.C. App. § 1675(a), the Resource Conservation and Recovery Act, 42 U.S.C. § 6972(a), and the Emergency Planning and Community Right-to-Know Act, 42 U.S.C. § 11046(a)(1).

Citizens and groups have used these remedies extensively and effectively. See generally Axline, Environmental Citizens Suits (Butterworth Publishers, 1998); Comment, TheRise of Citizen-Suit Enforcement in Environmental Law: Reconciling Private and Public Attorneys General, 81 Nw. U.L. Rev. 220 (1987); Hodas, "Enforcement of Environmental Law in a Triangular Federal System: Can Three Not Be a Crowd When Enforcement Authority is Shared by the U.S., the States, and their Citizens?" 54 Md.L.Rev. 1552 (1995).


A. General trends

The single most important and potentially landscape-changing development is the constitutionalization of defenses to public participation litigation. In a nutshell, citizen lawsuits are being challenged on the basis that the plaintiff is presenting a generalized grievance shared by the public at large or not directly redressable by relief available under the statute in question. Citizen enforcement actions are argued to be a usurpation of the executive function of enforcing the laws, and therefore a violation of the principle of separation of powers. This debate is discussed in Tribe, American Constitutional Law § 3-14 (2000); Antonin Scalia, The Doctrine of Standing as an Essential Element of the Separation of Powers, 17 Suffolk University Law Review 881 (1983); and John Echeverria and Jon T. Zeidler, Barely Standing: The Erosion of Citizen "Standing" to Sue and Enforce Environmental Law,

B. U.S. Supreme Court decisions, 1997-1999

In Akins v. Federal Election Commission, 18 S.Ct. 1777 (1998), the Supreme Court upheld the standing of a non-profit public interest organization to sue the Federal Election Commission for improperly failing to categorize an organization as a "political" organization that could potentially be subjected to public disclosure requirements. While the plaintiff was arguably suing over an injury shared by the public generally, a majority of the Court concluded that the requirements of Article III were satisfied. Justice Scalia dissented, possibly indicating the emergence of a new divide on the Court on standing issues.

Steel Company v. Citizens for a Better Environment, 118 S.Ct. 1003 (1998). At the end of the Supreme Court's last term, the Court issued a decision undercutting citizen standing to sue in certain cases. The case involved a suit by a Chicago-based environmental group seeking to enforce the Emergency Planning and Community Right to Know Act, which requires filing of regular reports with the Environmental Protection Agency on discharges of toxic and hazardous chemicals into the environment. The Steel Company failed to comply with the Act for seven years, and came into compliance after Citizens for a Better Environment had investigated the company's violations and filed a formal notice of its intent to bring suit. The Court ruled that the plaintiff lacked Article III standing because the plaintiff's alleged injuries were no longer "redressable." Because the company had already acknowledged its violations and come into compliance, and the plaintiff had not alleged any continuing or imminent injury, there was no basis for either injunctive or declaratory relief. The Court also ruled that the plaintiff's request that the court order payment of civil penalties to the U.S. Treasury, as authorized by the citizen suit provision, could not satisfy Article III standing. Civil penalties could not serve to "redress" the plaintiff's injuries, the Court said, because they would be paid into the federal treasury, not to the...

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