Chapter 3 - The Assault on Environmental Enforcement
The “tort reform” Trojan Horse
Most recently, the attack on citizen action has relied on the growing momentum of the “tort reform” movement and its focus on demonizing attorneys as a means to weaken support for the right of private citizens to bring a lawsuit. The industry lobbyists and consultants leading these campaigns may not tell the public who funds them and often refuse to acknowledge the environmental issues that are at stake, much less engage in a public debate on the merits. However, until very recently, this campaign strategy of deception and omission had not achieved widespread rollbacks of existing, private-enforcement laws. Unfortunately that appears to be changing.
Last fall an industry-led coalition passed a sweeping ballot initiative in California that dramatically limits a key statute regulating enforcement of business competition laws, known as the Unfair Competition Law (or UCL).[27] Major industry opponents of regulation and their allies in the California Chamber of Commerce, along with a statewide alliance of car dealers, sought to radically weaken the UCL which had served as a very effective tool for a wide range of citizen actions against illegal and unfair corporate practices. After outspending environmental, consumer, and labor opponents of the measure nearly five to one, the initiative’s proponents succeeded, passing Prop. 64 by a margin of 59% - 41%.
A dramatic side effect of the initiative – which received little public attention – was to limit the ability of private citizens to act against polluting corporations and other businesses that harm the public health and environment. The California Senate Environmental Quality Committee identified some of the potential public and environmental health effects of Prop. 64.[28] Among the key uncontested facts established at the hearing were:
The UCL was, at that time, being used for enforcement of laws that protect the public health and the environment;
In many instances, there were no other California laws that would authorize a private person to bring an action against another private entity, such as a polluter, who was violating California state environmental laws;
Passage of Prop. 64 would make enforcement of California environmental laws weaker than enforcement of federal environmental laws; and
Passage of Prop. 64 would make it more difficult to prevent harm to the public health and the environment by forcing plaintiffs to wait until some actual harm had occurred.
Unfortunately for the voters of California, the Senate hearing received little media coverage and the conclusions reached, including the anticipated environmental and public-health impacts of the initiative, were not communicated to most voters.
In fact, by focusing their campaign on anecdotal stories about abuses by trial attorneys, while completely denying that the initiative was targeted at or would have any impact on private enforcement of public health and environmental laws, proponents of the initiative were able to severely restrict environmental advocates’ ability to bring actions on behalf of the general public. In the end, proponents had their way on both counts, gaining passage for the initiative, while keeping public and voter attention off the very real consequences for environmental enforcement.
