Citizen action has played a pivotal role in protecting the public
health and environment of California. Private enforcement of environmental
laws is an integral part of the regulatory framework that has developed
over the past thirty years. Key challenges to the system’s
vitality have emerged and threaten continued progress.
Citizen-action statutes are those laws that authorize private parties to bring lawsuits to enforce environmental and public-health protections.[1] These statutes share the goal of complementing legal action by governmental entities, or public enforcement as it is commonly known, to ensure a safer, healthier, and cleaner society. This Report takes a comprehensive look at citizen action: why it matters, how these enforcement actions work, who is behind the growing assault on citizen action, and what can be done to preserve and strengthen citizen-action laws.
Californians have long cared deeply about clean air and water;
protecting the coastline, forests, and natural resources of the
state; and ensuring safe and healthy food and drinking water. Voters
and their elected representatives have passed a wide range of public
health and environmental protections that reflect this widespread
concern. California’s regulatory regime has combined both
public and private enforcement of these laws in a complementary
and highly effective way.
Various citizen action laws have proven successful for different
reasons. Using these laws, citizen groups are able to bring actions
on behalf of the public to protect the air, water, and environment.
This ability to sue is legally defined as “standing”.
Citizen groups have used the standing provisions of the federal
Clean Air and Water Acts widely, and California’s Unfair
Competition Law, until recently, was used extensively for the same
purpose in California courts. Other statutes, like the California
Environmental Quality Act (CEQA), include elements that have been
used with great effectiveness to keep government regulators on
the job. Good citizen-action provisions also provide community
groups with the powerful tools of injunctive relief, money damages,
and penalties, which counter the massive resources of corporations
fighting against environmental regulation and, crucially, promote
reformulation, clean-up, and environmental restoration. California’s
Proposition 65 is a particularly strong, citizen-action statute
that combines several of these elements and provides a very effective
mechanism for ensuring the public’s right to know about the
environmental and public-health risks they face.
The forecast for effective private enforcement is cloudy. Nationwide,
industry lobbyists and ideological opponents of regulation have
been making strides in their quest to weaken both public and private
environmental enforcement. With budget cuts likely to continue
for the foreseeable future, many states, including California,
are under pressure to slash public enforcement budgets, threatening
to seriously weaken government’s ability to act as an effective
enforcer. This reality makes it even more important to protect
and strengthen private-enforcement capabilities.
In California last fall, an industry-led coalition passed Proposition
64, a sweeping ballot initiative that dramatically limits a key
statute regulating enforcement of business-competition laws. A
significant side effect of the initiative, which received little
public attention, was its restriction of the right of private citizens
to act against polluting corporations and other businesses that
harm the public health and environment. If left unchecked, these
recent developments could mark the end of the state’s forward
progress in protecting the public health and environment.
To avoid this dangerous outcome, Californians will need to act
quickly and decisively to bolster the state’s enforcement
regime with policies designed to strengthen both public and private
enforcement. Among the most important challenges are informing
the public and their elected representatives about the specific
benefits of private-enforcement actions, creating champions for
citizen action who will shield these laws from attack, and strengthening
the vital protections they afford.
There is a gaping hole in California’s safety net of environmental
protections because very few of the state’s environmental
and public health laws provide for citizen action against private
parties, corporate polluters, and other non-governmental violators.
In fact, only two major statutes, the Coastal Act and Proposition
65, have effective citizen-suit provisions that allow citizen action
to stop private polluters and other violators. To fill the legal
gaps, steps must be taken to guarantee the right to private enforcement
in the many important statutes that now lack a citizen-action mechanism.
The best strategy to achieve this goal would be to pass a general
citizen-suit provision to protect the environment and public health,
an approach already taken by sixteen other states, starting with
Michigan in 1970.
Clouds are gathering on the horizon, threatening the ability
of citizens and community groups to protect California’s
environment and public health. However, hope remains if legislators
and the public take decisive action to fill the existing legislative
gaps and secure the public the right to enforce these vital laws.
