Citizen Action Report

Chapter 4 - Strengthening Citizen Action In California

A Model Bill for California

As environmental advocates in California consider undertaking a campaign to create a general right for private enforcement of public health and environmental laws, the following elements should be considered for inclusion:

  • Legal action may be brought against any person, with person defined to include public entities, including the federal government, to the extent permitted by law. This is a critical element of any effective citizen suit provision because it ensures, on the one hand, that private, corporate polluters can be held accountable and, on the other, that public agencies and government entities can be compelled to do their job.

  • Plaintiffs must have a beneficial interest in the outcome of the suit. This element is designed to restrict who can bring a citizen action to those who have a beneficial interest to be served or some particular right to be preserved or protected. [36] This element inhibits abusive and unethical practices.

  • Suits may be brought to enforce any provisions of the state’s constitution and code sections that provide for the protection or enhancement of the public health, the public trust, natural resources, or the environment. Regulations, orders, and permits that flow from those statutes should be enforceable as well. This provision ensures that the broad authority to enforce relevant statutes remains, even when individual statutes are amended or added.

  • Ongoing or threatened violations must be actionable. This element ensures that citizens have the right to stop ongoing or threatened acts – to stop the harm before the damage is great. This language remains within the parameters of current Supreme Court decisions, which block citizen actions for wholly past acts that are not repeated or likely to recur. Of course, a more expansive state statute could include those acts as well.

  • Legal action must be able to seek civil penalties, monetary damages, or injunctive relief to ensure sufficient clout to effectively change behavior of large corporate polluters. This is a vital element of any legislation if it seeks to have real impact on large, multi-billion-dollar corporate polluters. In order to force substantive compliance, the massive resources that such entities bring to bear in any court battle must be offset by substantial, legislated muscle granted to private enforcers.

  • Notice should be given to the public enforcer. Under federal law, many citizen-suit provisions contain a 60-day notice requirement to the relevant public enforcer. California’s Prop. 65 requires that notification be provided to the state’s attorney general. Such conditions limit the rights of private enforcers to proceed if the public prosecutor files suit within the notice period and diligently pursues legal action.

  • Remedies are cumulative of any other available remedies and are not exclusive. This provision ensures that other statutes are not superseded nor other remedies foreclosed by the passage of such a citizen suit enforcement law. Although this is a standard element of many statutes, its absence in any legislation is an opportunity for aggressive industry counsel to attack other beneficial statutes.

Consideration should be given to including the following provisions as well:

  • Provide that civil penalties are directed to public environmental enforcement. This provision acknowledges the difficult budget situation facing public entities charged with enforcement and provides these bodies a revenue stream to continue their vital work. Such a provision should specify that the penalties be paid to the public agency with authority to enforce the statute and that they be used for environmental enforcement or restoration in the community where the violation occurred.

  • Grant the public prosecutor the ability to intervene. This provision ensures that the proper balance of private and public enforcement is maintained by ensuring a role for the public prosecutor while allowing the private plaintiff the ability to continue the original action.

  • Mandatory waiting period for finalizing settlements with public notification. This clause eliminates the abusive settlement problem, which although very limited in scope, is nonetheless serious when it arises. One approach is to mandate a 30- or 45-day waiting period with mandatory notice to the attorney general of the terms of the proposed settlement required to start the clock.

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