Chapter 2 - Citizen Action Laws
Giving Citizens the Right to Act
Standing, or the right to bring legal action, is the lynchpin to private enforcement.[5] If citizen groups and their representatives have standing, they have the ability to bring actions on behalf of the general public to protect the air, water, and environment. Without standing, the public is forced to rely on overburdened or politically compromised government agencies to protect the public health and environment.
Federal law. Under federal law a plaintiff must meet a three-pronged test to prove that their case is within the jurisdiction of federal courts. The Supreme Court’s test requires that a plaintiff show that 1) s/he has suffered an “injury in fact” that is concrete and particularized and actual and imminent; 2) the injury is fairly traceable to the challenged action of the defendant; and 3) it is likely that the injury will be redressed by a favorable decision.[6]
An environmental plaintiff can meet the injury-in-fact prong of the Court’s test if s/he avers that s/he uses the affected area and is a person “for whom the aesthetic and recreational values of the area will be lessened” by the challenged activity.[7] While not a universal-standing provision, the Court clearly supports a broad definition of who has standing to enforce environmental laws in federal court.
California law. California has long had a statute, often referred to as a “private attorney general” law, that provides universal standing for private enforcement of any law that sought redress of an unfair, unlawful, or fraudulent business practice under the state’s unfair-business-competition law, or UCL.[8] For decades, when polluters were violating the law, environmental and public-health advocates used the universal-standing provisions of the unfair-competition law to enforce the many California statutes that lack citizen-suit provisions. (A list of sample citizen action cases, including many using the UCL to gain standing, is included in the appendix to this Report). However, passage in November 2004 of Proposition 64[9], the sweeping, industry-backed, ballot initiative that dramatically limited the UCL, severely curtailed the ability of citizen groups to meet standing requirements in all but the most limited circumstances in environmental and public health cases.
Prop. 64 amended the UCL to require that a person bringing an action has “suffered injury in fact and has lost money or property as a result of such unfair competition,”[10] making it significantly more restrictive than federal law. This change drastically limited the ability of citizens to use the law for environmental enforcement because damage to natural resources and wildlife often occurs before inflicting injury or monetary or property loss on any particular individual or group. The entire landscape of private enforcement in California changed overnight, leaving the vast majority of state, environmental and public-health laws that do not contain citizen-suit provisions effectively unenforceable by citizen action. (Only two major statutes, the California Coastal Act[11], and Prop. 65, have effective citizen-suit provisions that allow citizen action to stop private polluters and other violators).
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David v. Goliath —
citizen action reclaims Avila Beach
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The residents of the small, California coastal town of Avila Beach, near San Luis Obispo, never imagined that they would have to deal with pollution like that faced by their neighbors to the south in Los Angeles, much less that their way of life would be threatened by it. However, that was the reality residents faced when they discovered that a massive spill of nearly a half-million gallons of petroleum and oil had built up under their town and beach and was moving toward the ocean. The spill resulted from leaks in underground pipes that oil giant, Unocal, used to pump petroleum products from nearby storage facilities to the company pier for tanker-ship transport.
Federal and state regulatory agencies came to Avila Beach, attempting to address the growing crisis. The lawyers for Unocal were so successful in bottling up the government’s process that, six years after the spill’s discovery, the clean-up had not even begun.
Weary of governmental inaction and increasingly concerned about the future of their beach town, a group of local residents came together to form the Avila Alliance and filed a citizen suit to force Unocal to clean up its toxic mess. The environmental groups Communities for a Better Environment and the Environmental Law Foundation joined the Avila Alliance in order to match the legal firepower of the oil giant. The clock was ticking as the huge petroleum plume contaminated the groundwater and threatened to make the beach unusable. The citizen groups pushed hard for compliance and by 1998 had won a landmark settlement. Unocal agreed to excavate the sections of Avila Beach most polluted by the leak, disposing of over 400,000 gallons of illegally leaked petroleum products , at an estimated cost of between $70 and $200 million dollars.
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