April 02, 2009

Waxman-Markey: Citizen Enforcement Suits

On Tuesday, March 31, House Energy and Commerce Committee Chairman Henry Waxman (D-CA) and Rep. Edward Markey (D-MA) released a “discussion draft” of the American Clean Energy and Security Act of 2009 – a climate change bill that will serve as the starting point for long-delayed congressional action on the world’s most pressing environmental program. CPRBlog asked several Center for Progressive Reform Member Scholars to examine different aspects of the 648-page Waxman-Markey bill. This entry, by Nina Mendelson, looks at what the bill would do to reassert the right of citizens to bring suit – either against polluters or against recalcitrant regulators – to enforce the law’s provisions.

By setting solid targets for reducing global warming in a cap-and-trade system and including a host of other helpful provisions, the Waxman-Markey bill is a terrific first contribution to this Congress’s debate on climate change. A less obvious but still extremely positive aspect of the bill is its approach to citizen enforcement of the laws. In addition to government enforcement provisions, the bill includes strong citizen suit provisions. It reaffirms the importance of citizen enforcement of the environmental laws against both potential violators and agencies that have the responsibility to implement the regime. Citizens have traditionally had this enforcement power under the environmental laws, but it has recently been threatened by a series of judicial decisions. The Waxman-Markey bill responds to these judicial decisions and strives to ensure the vitality of citizen suits.

Environmental statutes traditionally provide for citizen enforcement suits as a critical supplement to governmental enforcement, especially in a world of limited budgets. Citizens can also use these suits to hold government accountable for carrying out statutory obligations, and citizen suits can enable individuals to be proactive in protecting their environment. The possibility of facing such suits has prompted many companies to take compliance obligations more seriously and government agencies to move faster on implementing environmental programs.

Supreme Court decisions have, however, created uncertainty regarding when and which citizens can bring such suits to protect the environment, particularly in the climate change setting. With respect to climate change, the Supreme Court has held that a litigant must show it has suffered a “concrete and particularized injury that is either actual or imminent, that the injury is fairly traceable to the defendant, and that it is likely that a favorable decision will redress that injury.” In its 2007 decision in Massachusetts v. EPA, the Court acknowledged that the harms associated with climate change are “serious and well recognized,” and it did find that Massachusetts had standing, applying a special rule for States. However, the Court has not squarely ruled that an individual or other non-state entity’s injury from climate change can be sufficiently “particularized” to create standing to sue. This is a concern, because although many individuals may suffer from climate change, a particular violation of a climate change regime may be small and the harm from climate change can be widespread. Although the Supreme Court has acknowledged that even small actions, or small failures to act, can worsen the harm from climate change, so that the State of Massachusetts had standing to challenge EPA’s failure to regulate greenhouse gases, the Court has not confirmed that even small actions should be seen as contributing to “actual” and “imminent” individual losses from climate change.

Some members of the Court have suggested, however, that Congress has the power to “define injuries and articulate chains of causation that will give rise to a case or controversy where none existed before,” and implied that the judiciary will respect such judgments. The Waxman-Markey bill takes up this invitation. The bill includes legislative findings that very small incremental increases in greenhouse gas emissions can worsen climate change and increase the risk of injury to individuals, as well as language suggesting that individuals suffering such small injuries can bring citizen suits, even if the injuries are widely shared. The bill also includes a novel provision authorizing limited compensation of a citizen for the increased risk of injury from global warming – in short, creating a new claim that a citizen could assert to recover damages from a violation of the statute. The worthy goal here is to reaffirm the importance of citizen enforcement and attempt to solidify the ground on which such suits stand.

Nina Mendelson, CPR Member Scholar; Professor of Law, University of Michigan Law School. Bio.

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