Chapter 2 - Citizen Action Laws
Injunctions, Damages, Penalties, and Burden Shifting to Match Corporate Power
When communities are faced with a mammoth corporate actor that
decides whether to clean-up its toxic pollution solely on the basis
of a cost-benefit analysis, it is absolutely essential to provide
private enforcers the tools to change that equation and make the
cost of continued polluting more expensive than compliance. That
is why it is critical for private-enforcement statutes to allow
damages to be obtained against big polluters, along with the possibility
of significant civil penalties where necessary to change behavior.
The Supreme Court supported the use of civil penalties by private
enforcers in the landmark case Friends of the Earth v. Laidlaw.[13] In
that case, the high court ruled that all civil penalties have a
deterrent effect on polluters’ actions and that, in the context
of the Clean Water Act, “this congressional determination
warrants judicial attention and respect.”[14]
Along with damages and penalties, a tool that has proven very effective in changing the power equation is burden shifting. This strategy puts the onus on the polluter to show why exposure to the damaging chemical does not pose a significant risk to public health. This is the structure required by Prop. 65. Most observers agree that the burden-shifting approach of Prop. 65 is a primary reason that, in California, citizen action has made such significant strides in reducing exposures to chemical that cause cancer or reproductive defects.
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Why damages matter
to citizen enforcement |
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On September 23, 2004, a case brought on behalf of Communities for a Better Environment (CBE), resulted in settlements for $99 million in improvement projects to protect and clean up California drinking water sources. The settlements with oil giants Shell Oil Co., Atlantic Richfield Co., ChevronTexaco Corp., and World Oil Corp. were the result of a citizen enforcement suit (CBE, et al. v. Tosco Corp., et al., No. 300595) which alleged unfair competition, violations of the Fish and Game Code, and violations of California’s Proposition 65.
The oil companies agreed to undertake leak detection, leak prevention, and/or groundwater remediation projects in order to protect California’s drinking water supply from gasoline and petroleum products, a result which presiding Judge Richard A. Kramer characterized as “fabulous” and added that the settlements “clearly achieve… the purposes of the applicable law.”
In addition to these projects, Atlantic Richfield Co. agreed to pay a $1 million civil penalty pursuant to Proposition 65, and Shell agreed to make a $150,000 payment to the California Attorney General’s office for use on environmental projects of the attorney general’s choosing. |
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