Fact Pack

From Defenders of Wildlife’s report The Public in Action: Using State Citizen Suit Statutes to Protect Biodiversity

Citizen Suits – What Are They?

In the spring of 1971, William and Arlene Bryson received a letter from Freeborn County, Minnesota, officials announcing their plans to condemn a portion of the Brysons’ 190-acre farm for use as a highway. Part of the farm was a wildlife area, consisting of a natural marsh, three ponds, and relatively diverse plant and animal life. In their role as citizens, the Brysons sued under the Minnesota Environmental Rights Act (MERA), claiming that the proposed condemnation would damage the wildlife area. The Minnesota Supreme Court agreed, calling the marsh “the most ancient of cathedrals,” and ordered that construction be halted. The construction was stopped, and the Brysons were victorious, thanks to the Minnesota state citizen suit statute.

The citizen suit, long a staple of federal environmental laws and other social regulation, may now finally be emerging as a tool for citizen action at the state level, a generation after the Brysons sued. Citizen suit statutes give private individuals the ability to sue on behalf of the environment to protect natural resources that are not otherwise protected by law, such as the Brysons’ marsh, and enforce environmental laws that are not being enforced by the government in its capacity as trustee for the public at large. In effect, a citizen suit acts to “deputize” citizens to bring actions to protect the environment and/or biological diversity.

State Environmental Laws

States have a vital role to play in protecting natural resources and the environment. When the federal Environmental Protection Agency was established nearly thirty years ago, many states shortly thereafter created parallel agencies to implement the programs and laws designed by Congress. Today, with responsibility for more than 700 delegated federal programs dealing with everything from leaking underground storage tanks to air and water protection, states are now important implementers of the nation’s environmental laws.

Because state governments are closer than the federal government to the citizenry, they also possess a perspective on local environmental issues that federal offices, often hundreds or thousands of miles away, do not. Similarly, citizens are often more likely than federal or state agencies to be sensitive to environmental degradation close to home.

At the same time, some state environmental programs lack basics such as effective laws, stable funding levels, trained staff, and mechanisms for citizen participation. Adding to these problems, some states have not traditionally done a first-rate job of protecting wildlife and habitat. Lured by the financial promises of short-term economic development, state agencies and lawmakers have often allowed, and perhaps abetted, harmful resource extraction practices.

The Importance of Citizen Suits

Environmental laws are not effective unless individuals, businesses, and governments comply with them. Vigorous enforcement of environmental laws makes noncompliance less profitable because violators face the real threat that they will be punished for their actions. In some instances, government simply may be unable to enforce its laws. Environmental agencies are generally understaffed and underfunded, making it difficult to monitor and detect significant violations of the law. During the 1970s, many state legislatures gave more and more responsibilities to overburdened agencies, without giving them more staff or funding to implement those changes.

Government agencies also may be unwilling to fully enforce applicable laws, responding to local political pressures or short-term opportunities. Depending on the political leadership in the state, enforcement may even be actively discouraged. Private citizen enforcement can and sometimes must fill this void of weak government agency enforcement and implementation.

Citizen suits also are valuable because, too often, the government itself violates the law. For instance, every listing of an endangered species in the last decade in Arizona and New Mexico, with only one exception, was the result of a citizen suit or petition against the U.S. Fish and Wildlife Service. Citizen action is an important driving force in California as well – citizen initiatives account for 85% of all state endangered species listings since 1987 and 92% of all listings since 1994. Private party action is thus often the only means of ensuring governmental compliance with environmental laws.

As history has shown, not only have citizen suits been a successful policy tool in their own right, but private enforcement also will continue to be a significant force in environmental regulation. The overall effect of these suits has been to increase sensitivity to enforcement by the various state and federal environmental agencies. But, because the prospect for environmental agencies in the foreseeable future includes shrinking resources and declining regulatory capacity, a renewed look at citizen empowerment is now critical.