An Attack on Waxman-Markey That's a False Alarm

by Nina Mendelson

April 16, 2009

On Friday, the Washington Times went A1 above-the-fold with "Climate bill could trigger lawsuit landslide."

Environmentalists say the measure was narrowly crafted to give citizens the unusual standing to sue the U.S. government as a way to force action on curbing emissions. But the U.S. Chamber of Commerce sees a new cottage industry for lawyers.
"You could be spawning lawsuits at almost any place [climate-change modeling] computers place at harm's risk," said Bill Kovacs, energy lobbyist for the U.S. Chamber of Commerce.

Quite simply, this is a false alarm. One week before the Washington Times "Exclusive" on the citizen enforcement suit provisions in Waxman-Markey, I wrote here about the provisions. They are important, and good. And they're not exactly radical. Every major pollution control statute, including the laws governing water pollution, air pollution, and hazardous waste disposal, authorizes citizens to go to court to force the government (or polluters) to comply with its obligations under the law. These include the Clean Air Act, the Clean Water Act, CERCLA (Suprefund), and RCRA, to name some of the major laws. The Waxman-Markey bill is right in line with this longstanding norm. The Clean Air Act already authorizes this sort of lawsuit, and the Supreme Court agreed that the state of Massachusetts could bring a citizen suit addressing greenhouse gases. The Waxman-Markey bill would simply confirm clearly that private citizens can bring such suits, just as they can against plants that discharge mercury into our waterways and power plants that emit too much soot into our air. Having citizen enforcement suits in environmental law is the norm, not some newfangled twist.

Citizen enforcement suits are a critical supplement to governmental enforcement -- a tool to hold government accountable for carrying out its legal obligations. When, say, Bush's EPA didn't hold polluters to the law, citizens and groups stepped in and sued (sometimes successfully, sometimes not). As Professor James May wrote a few years ago (abstract), citizen suits "have secured compliance by myriad agencies and thousands of polluting facilities. They have diminished pounds of pollution produced by the billions. They have protected hundreds of rare species and thousands of acres of ecologically important land. The foregone monetary value of citizen enforcement has conserved innumerable agency resources and saved taxpayers billions.”

Even at their peak, citizen suits of any sort have numbered only in the hundreds per year, not the deluge that the Chamber of Commerce’s language implies. This is because relatively few organizations and individuals can muster sufficient resources to bring many of these cases. That said, keeping the option of citizen suits on the table is important in part to supplement government action and because even a small threat of facing such suits has prompted many companies to take compliance obligations more seriously and government agencies to move faster on implementing environmental programs.

What's disturbing, really, is not that the Waxman-Markey draft has included citizen suit provisions. It's the attack on the rights of individuals to hold their government and polluters accountable for complying with the law.

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Also from Nina Mendelson

Nina Mendelson serves as Professor of Law at University of Michigan Law School.

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