POWER September 2010 - 80

COMMENTARY
The Hidden Agendas Behind
Citizen Suits
By Michael R. Goldman
T
he enforcement mechanisms of the environmental statutes
in the 1960s were both cumbersome and ineffective.
As interest in environmental protection grew,
awareness of the lack of adequate enforcement also increased.
This awareness led to a significant enhancement of enforcement
tools in the 1970s as well as the creation of citizen
suits. They were intended to be actions by " private attorneys
general " -that is, lawsuits that were brought under federal
environmental statutes such as the Clean Water Act (CWA) in
the public interest by citizens seeking to enforce violations
of environmental laws.
The citizen suit provisions of the federal environmental
statutes were developed as an answer to the government's inability
to enforce those statutes, whether because of a lack of
will or resources. Congress believed that citizen suits would
either prompt the government to take action or provide an
alternative means of enforcement.
Environmental Groups' Use of Citizen Suits
Unfortunately, the citizens bringing such actions frequently
have been special-interest organizations with priorities of
their own, often not consistent with those expressed by Congress.
The most visible have been environmental groups, which
have filed numerous actions at the expense of industry, the
private sector, and the priorities determined by Congress. The
pattern of litigation does not always correlate with environmental
concerns. For instance, with regard to water pollution,
environmental groups have filed most of their suits against
private industry even though municipalities and agriculture
are responsible for a greater share of the pollution.
Research suggests that industry is the object of most citizen
suits because the environmental groups can profit from
such litigation by obtaining attorneys' fees or settlements
that can be used to finance subsequent litigation or other
environmental initiatives. While accurate statistics are unavailable,
there appear to be scores of citizen suits that have
been settled in exchange for contributions to private environmental
causes.
Soon after the introduction of citizen suits, special-interest
organizations began using them to further their hidden agendas.
For instance, in the 1970s an environmental group brought
a citizen suit against the Tennessee Valley Authority ostensibly
to save the Tennessee snail darter, a fish species believed to
be threatened by the construction of the Tellico Dam. However,
the real aim of the litigation was not to protect the fish but to
stop construction of the dam. The snail darter merely provided
an alternative vehicle for the anti-dam agenda.
Such tactics may still be used today. In March 2010, The
Arkansas Project v. Bryan Shaw citizen suit was filed in Texas
concerning dwindling whooping crane populations. The plain80
tiffs
assert that such population declines are related to a
decrease of water flowing into the Gulf of Mexico from the
Guadalupe River Basin. Some believe the lawsuit is actually a
coordinated effort by affected rural landowners to halt Exelon
Corp.'s plan to build a new nuclear power plant upstream.
Anatomy of a Citizen Suit
The citizen suit was initially launched as part of the Clean
Air Act (CAA). Thereafter, similar provisions were included
in all new federal environmental statutes or amendments to
existing statutes including the Endangered Species Act, the
CWA, and many others. The citizen suit sections of the various
environmental statutes are virtually identical, being patterned
closely after the CAA's. For the most part, the sections
authorize " any person " to commence suit to enforce the requirements
of the acts against " any person " alleged to be in
violation.
The citizen suit provisions allow the violator to be fined a
maximum penalty for each day it is in violation. The amounts
have increased several times over the years. For instance, the
CWA originally provided a maximum penalty of $25,000, which
has now increased to $37,500 per day. The monetary exposure
for a defendant can quickly add up if the lawsuit involves violations
over several years. All fines awarded by the court are
payable to the federal treasury rather than the citizen group.
Citizen groups circumvent this by additionally alleging state
law claims and then trading penalties specific to citizen suit
claims for damages relating to the state law claims.
Trumping Citizen Suits' Narrow Agendas
The North American Electric Reliability Council has warned
that U.S. electricity usage over the next 10 years is projected
to grow more than twice as fast as committed resources. This
demand will obviously necessitate the construction of many
new power plants. When Congress first began including citizen
suit provisions in environmental laws, it envisioned a citizen
who brought suit solely for the benefit of the public interest.
In reality, the vast majority of citizen suits have been brought
by highly organized and well-funded environmental advocacy
groups that often promote their own hidden agendas.
Although every effort should be made to protect the environment
and endangered species, the greater good should
trump citizen suits that needlessly hamper such construction.
Instead, such actions, if necessary, should be brought by the
government, which is better suited to evaluate the costs and
benefits of full enforcement. ■
-Michael R. Goldman (goldman@guidaslavichflores.com) is
an attorney with Guida, Slavich & Flores PC, located in
Dallas, Texas. He regularly defends businesses in
environmental litigation matters.
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POWER | September 2010
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POWER September 2010

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