Chapter 4 - Strengthening Citizen Action In California
Although California has some of the most protective
environmental laws in the nation, very few of California’s
environmental and public health protections provide for citizen
action against private parties, corporate polluters, and other
non-governmental violators.[34]
Prior to the passage last November of Prop. 64, the absence of citizen-suit provisions in environmental laws was mitigated by the UCL as a vehicle to gain standing to act on behalf of the general public. Once this avenue was closed, organizations seeking to enforce environmental and public-health laws felt acutely the lack of citizen-suit provisions in state environmental laws.
Action must be taken to provide the right to private enforcement in the many important statutes that now lack an appropriate mechanism.
One possible solution is to add a citizen suit provision to every public health and environmental statute that currently lacks one, but this is a very difficult undertaking. It would require enacting dozens of changes to existing laws and would mean every new environmental and public health law passed must include its own citizen-suit provision.
Some
of the many California environmental laws that lack citizen
enforcement provisions against a private entity include:
- Ballast Water Management Act
- Bottled, Vended, Hauled, and Processed Water Act
- Clean Air Act
- Endangered Species Act
- Fish and Game Code prohibitions on discharge of
materials hazardous to fish or wildlife
- Forest Practices Act
- Hazardous Waste Control Act
- Hazardous Waste Source Reduction and Management
Act
- Hazardous Waste Treatment Reform Act
- Medical Waste Management Act Porter-Cologne Water
Quality Control Act
- Radiation Control Law
- Safe Drinking Water Act
- Underground Storage of Hazardous Substances Act
- Local ordinances including building code regulations
for public health such as lead controls, sanitary
waste control, and electrical safety provisions.
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The best approach would be to grant a general right of private enforcement of environmental and public health laws in California. This could include a grant of authority to take action against any private polluter and any governmental entity, and could make available the full scope of remedies, including injunctive relief, damages, and attorneys’ fees.
In 1970, Michigan became the first state to enact a general private environmental enforcement statute. The Michigan Environmental Protection Act (MEPA) provides for citizen action to protect natural resources in broad, inclusive terms. MEPA provides:
The attorney general or any person may maintain an action for declaratory and equitable relief against any person for the protection of the air, water, and other natural resources and the public trust in these resources from pollution, impairment, or destruction. Mich. Comp. Laws §§ 324.1701-.1706.
Nationwide, sixteen states have followed Michigan’s lead and enacted some variation of this general, environmental citizen suit provision.[35] According to a report from the Defenders of Wildlife and Center for Wildlife Law, Connecticut, Florida, Hawaii, Illinois, Indiana, Iowa, Louisiana, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, North Dakota, South Dakota, Wyoming all have some type of umbrella, citizen-suit provision allowing at least limited enforcement of state environmental statutes,. In their paper, it was noted that fourteen of these statutes permit actions against “any party” including the state, while a few limit standing to actions against the state. Nine of the states allow broader citizen action, authorizing enforcement of existing statutes, as well as “unreasonable pollution, impairment, or destruction.”
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