Introduction
Currently, sixteen states have environmental citizen suit
statutes on the books. In general, these statutes give citizens,
or “any person,” the right to sue the state,
a private party, or both, to protect the state’s environment.
Some citizen suit statutes provide only for injunctive relief
to stop harmful activity or to force the state to act, while
one authorizes the award of money damages as well. Whether
the citizen filing the lawsuit can recover her or his attorney’s
fees and litigation costs is another variation among the
statutes. Finally, there exist different meanings for the
term “environment.”
Almost all of the states with citizen suit statutes allow
suits against “any party,” though some are limited
to actions against only the state. Half of the statutes
do not require a violation of law for a suit to be filed.
Half allow equitable relief only, while two others also
provide for penalties and money damages, and the rest are
silent on this issue. Only a very few provide for costs
to the prevailing party. Finally, only two states actually
define the words “environment” or “natural
resources.”
Without the opportunity for citizen enforcement at the
state level, environmental protection will continue to suffer.
Although we will remind the government to honor its commitment
to serve as the trustee for all of our environmental values,
only the public, in the end, can ensure protection of the
public’s interests.
Alabama
Alabama currently does not have any specific citizen suit
statute. However, the right of intervention has been granted
to any person having an interest that is, or may be, adversely
affected by the state’s action with regard to its
environmental or wildlife laws.
Arkansas
Arkansas currently does not have a specific citizen suit
statute. However, citizens can file actions under individual
state statutes. For example, the following statutes have
been subject to citizen action: the Arkansas Solid Waste
Management Act, the Hazardous Waste Management Act, and
the Remedial Action Fund Act.
Arizona
Arizona currently does not have a specific citizen suit
statute, but citizens may sue for violations of water quality
standards established by law. However, water quality degradation
below standards cannot be addressed by citizen groups.
HB
2144, introduced in 2003, would allow a person to sue
for court jurisdiction to enforce a provision, order, permit
standard, rule, or discharge limitation, and to apply any
appropriate civil penalty. In addition, the bill would award
the costs of litigation to the citizen in the event of a
successful suit.
California
California does not have a current specific citizen suit
statute. Instead, California utilizes a private attorney
general provision in which the court is authorized to award
attorney’s fees to a successful party “in any
action which has resulted in the enforcement of an important
right affecting the public interest.” California thereby
addresses an avenue for the recuperation of attorney’s
fees. However, this system does not address the issue of
standing. Another method California uses to address citizen
suits is through an expanded public trust doctrine that
includes the protection of wildlife that depend on navigatable
waters or their tributaries. However, a court may or may
not choose to recognize the public trust doctrine as a basis
for standing for citizen suits.
Connecticut
Connecticut has a specific statute providing for citizen
suits. However, actions can only be brought against “the
state or any political subdivision thereof.”
Florida
Florida has a statute
granting citizen suits; however, it allows citizens to bring
actions only to compel government authorities to enforce
existing laws, rules, and regulations.
Hawaii
Hawaii does not have a specific statute regarding citizen
suits. Instead, Hawaii relies on an amendment to the state
constitution that gives “each person the right to
a clean and healthful environment.” According to Article
XI, Section 9 of the constitution, “[a]ny person
may enforce this right against any party, public or private,
through appropriate legal proceedings, subject to reasonable
limitations and regulation as provided by law.” However,
action taken in this manner has had limitations, as demonstrated
by the federal district court that held that the constitutional
amendment does not give individuals the right to sue. Fundamentally,
this amendment does not create substantive rights; that
is, it only creates the right to enforce existing rights,
and not the right to add on any new rights.
Illinois
Illinois has specific citizen suit legislation that was
modeled after Michigan’s Environmental
Protection Act of 1970, which contains specific statutes
for citizen suits. The Illinois citizen suit statute allows
for any person to enforce environmental rights against any
party, public or private, through appropriate legal proceedings.
Iowa
Iowa has a citizen suit statute that authorizes citizen
actions. However, it does not specifically state what remedies
are allowed. The Iowa law allows for provisions of fees
and costs, including reasonable attorney and expert witness
fees.
Louisiana
Louisiana allows for civil action. However, actions can
be brought only for violations of environmental quality
laws.
Michigan
Michigan established citizen suit precedent with specific
statutes for citizen action in the Michigan
Environmental Protection Act of 1970, or MEPA. Many
states have used MEPA as a model of citizen suit statutes
for implementation in their states. MEPA contains broad
provisions under which citizens can sue. According to MEPA:
The attorney general or any person may maintain an action
for deregulating and equitable relief against any person
for the protection of air, water, and other natural resources
and the public trust in these resources from pollution,
impairment, or destruction.
MEPA also allows for citizens to sue whether or not a law
has been broken. In addition, the Supreme Court found that
under MEPA, once a plaintiff demonstrates that a defendant’s
actions are harming the environment, the defendant must
prove that no feasible and prudent alternatives exist. While
MEPA established precedent for citizen suits, it does contain
several limitations that other states have addressed. MEPA
does not provide for money damages. In addition, MEPA only
allows for costs if the “interests of justice require.”
MEPA effectively acts as a codification of common law doctrine
of nuisance, which has established the backbone of modern
environmental law by allowing citizens to sue to abate damages
to public and private property.
Minnesota
Minnesota has established citizen suit statutes under the
Minnesota
Environmental Rights Act, or MERA. MERA is modeled after
Michigan’s Environmental Protection Act (MEPA), which
established state citizen suit statutes. MERA goes one step
further than MEPA in that it stipulates protection for wildlife
under its definition of natural resources. MERA defines
“natural resources” as “all mineral, animal,
botanical, air, water, land, timber, soil, quietude, recreational,
and historical resources.”
Mississippi
While Mississippi has no citizen suit statute, citizens
can sue under its Administrative Procedures Act (APA). However,
these actions are limited to procedural violations of environmental
law.
Nevada
Nevada has a specific citizen suit statute based on Michigan’s
Environmental Protection Act (MEPA). Nevada’s
citizen suit statute also moves above MEPA, in that it allows
for provisions of costs – although it fails to define
the term “costs.”
New Jersey
New Jersey has a citizen suit statute modeled after Michigan’s
Environmental Protection Act or MEPA. The New Jersey Environmental
Rights Act authorizes injunctive relief when a defendant’s
conduct violates an environmental statute or regulation,
or when the conduct is otherwise harmful to the environment.
In addition, the New Jersey Environmental Rights Act authorizes
civil penalties “as provided by law.” However,
a drawback of the New Jersey Environmental Rights Act is
that it leaves the definition of “natural resources”
to open interpretation by the courts and a recent court
decision narrowed the definition of “natural resources”
from its original scope. Under the original statute, citizens
were given standing to prevent “pollution, impairment,
and destruction” of the state’s environment.
The court decision found that a challenge to the adoption
of wetland regulations was not an action about “pollution.”
New Mexico
While New Mexico does not have any specific civil action
statute, it does codify “public nuisance.” This
gives citizens the right to sue to abate a public nuisance,
which, under the law, is “a knowing injury to public
health, safety, or welfare, or public rights in property.”
New York
While New York currently does not have a specific civil
action statute, legislation was introduced in 2003 which
would effectively implement one. Introduced 1/22/01, S 1277
would enable citizen suits for enforcement of environmental
laws. This bill “recognizes that there is a public
trust in the land, air, water, and natural resources of
the state and that each person is entitled to their protection,
preservation, and enhancement.” In addition, this
bill states that:
Any person may commence a civil action on his own behalf
for injunctive and discretionary relief against any person
who is alleged to have violated, be violating, or about
to violate any requirements. No such action may be brought
against the state.
North Carolina
While North Carolina does not have a specific citizen suit
statute, the North Carolina Administrative Procedure Act
imposes procedural duties on behalf of government accountability
that could be used to challenge state agency actions regarding
wildlife.
North Dakota
The citizens of North Dakota can sue for violations of
any “environmental statute,” which is defined
as “any statute for the protection of the air, water,
and natural resources, including land minerals and wildlife.”
South Dakota
South Dakota citizen suit statutes mandate that suits can
only be used for dilatory and other equitable relief.
Wisconsin
Wisconsin currently does not have a citizen suit statute
specifically regarding environmental laws. However, citizens
may sue for violations of state mining laws. In addition,
Wisconsin has codified public nuisance. Thus, under two
statutes, violations of environmental laws has specifically
been deemed a public nuisance. Also, Wisconsin used to take
a unique approach to citizen suits with the office of the
Public Intervener, who as a public appointee was responsible
for the judicial prosecution of violators of state law.
However, the office of the Public Intervener has been absolved.
Information for this section has been taken
from the Defenders of Wildlife Report: The
Public in Action: Using State Citizen Suit Statutes to Protect
Biodiversity.
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