Purpose of the Course

Citizen Enforcement of
Environmental Law
(091:611)

 

"Citizen Enforcement of Environmental Law" explores the implementation of a novel and experimental feature of modern environmental statutes: the citizen suit. Congress enacted the first citizen suit provision in the 1970 Clean Air Act, and has subsequently included similar provisions in nearly every new piece of environmental legislation. The citizen suit provision grants citizens the power to sue private parties who violate environmental statutes; it also grants power to sue state and federal agencies who violate pollution control requirements or who fail to fulfill their obligations in implementing environmental legislation.

Ever since my days as a VISTA volunteer in Multnomah County (Oregon) Legal Services and my years as a litigator for the Minnesota Pollution Control Agency, I have been fascinated with the citizen suit concept. Professor Michael Axline articulates some of the reasons why the citizen suit device is such an intriguing object of study:

Citizen enforcement of laws that are intended to protect public rights is a simple idea. The implementation of that idea in the laboratory of the courtroom, however, has raised a myriad of complex legal questions. . . .

Citizen suits legitimately constitute a separate field of law, but they draw upon administrative law, criminal law, constitutional law, tort law, equity, and a host of other fields of law. They raise issues involving ethics, attorney client relations, the media, the use of technology in and out of the courtroom, and federal/state relations. Finally, they force us to think about the role of citizens, the courts, administrative agencies, and Congress in our system of government. There is no linear method for analyzing these issues.

If there is a common thread that runs through [these citizen suit] issues, however, it is the public interest nature of citizen suits. The fact that citizen suits arise from a concern for the public welfare, rather than a concern for private gain, is the source of endless complications in such suits. It is also, however, the very reason that citizen suits are so necessary. Unless citizens can participate in the implementation as well as the development of environmental laws, the gap between legislative aspirations and the reality of environmental degradation will continue to grow. . . .

M. Axline, Environmental Citizen Suits xv-xvi (1991).

The core of the course is the simulated prosecution and defense of four fictitious citizen suits, in which the eight seminar students form four, two-person teams of attorneys. I have prepared the raw materials for the cases, seeking to present the students with realistic factual patterns and documents appropriate for commencing four types of citizen suits: (1) the alleged violation by a federal facility of its NPDES permit under the Clean Water Act; (2) the alleged violation by a stationary source of a state air quality permit, coupled with an alleged failure to comply with federal PSD requirements under the Clean Air Act; (3) the alleged violation by a small manufacturing concern of the Emergency Planning and Community Right-to-Know Act; and (4) the alleged failure of a municipal drinking water plant to comply with the requirements of the Safe Drinking Water Act.

During the course of the semester, each two-person team is required to prepare and submit eight written documents (or groups of documents), including: (1) an opening strategy memo sketching out the proposed prosecution of the citizen suit and anticipating the legal issues that must be researched and addressed; (2) a complaint (and instructions describing how it is to be served); (3) a defense strategy memo charting the proposed contours of the defense (each two-person team would also be assigned to represent a defending party); (4) an answer (coupled with any defensive motions); (5) the plaintiff's counter strategy memo; (6) the plaintiff's formal response to the answer and to any defensive motions; (7) motions for summary judgment (accompanied by affidavits), designed to bring the litigation to a definitive ruling; and (8) motions for attorney fees. Because several of the most significant documents are submitted in draft form, reviewed by me in team conferences, and rewritten, each team is required to submit something in writing during most weeks of the semester. I review and make comments on each draft, and provide a grade for each of the eight final written products.

During most weeks (those not devoted to team conferences on the various draft writings), the seminar meets as a class to discuss the progress of the various cases. While some time may be spent on discussing drafting issues (e.g., whether Team A's complaint could have been more elegantly or effectively drafted), the purpose of these discussion meetings is be to reflect on the broader issues raised by the citizen suit device. What are the ethical constraints on attorneys representing citizen groups in public litigation? How do such attorneys discern what it is that the "client" wishes to do? What are the fundamental strategic choices that must be made by citizen plaintiffs and by defending parties? How do the courts view citizen plaintiffs? Are these perceptions justified? Should Congress impose more meaningful "standing" constraints on citizen plaintiffs? Do defending parties have legitimate concerns about the abuse of the "private attorney general" concept? How should the courts balance the enforcement demands of citizen plaintiffs against the desires of administrative agencies to resolve environmental disputes through negotiation and compromise? Should citizen suits be used only as a last resort? Should they be exploited for their publicity value? How should citizen plaintiffs deal with opportunities for compromise? Has Congress unwisely created an inappropriate mechanism for extortion, by providing in the most modern citizen suit clauses that citizens may pursue the recovery of massive civil penalties? When is the award of attorneys fees—to citizen plaintiffs or to beleaguered defendants—appropriate? What is an appropriate fee in private suits pursuing the vindication of public rights? My hope is that exploration of these and other broad issues will considerably elevate the focus of our classroom discussions from the mundane examination of pleading minutiae.

Thus, the seminar proceeds on two parallel tracks: (1) the writing component, which gives the students an intensely practical introduction to the citizen suit device; and (2) the classroom component, which inspires the students to confront the broader ramifications of citizen enforcement. Throughout the semester, I assign selected readings on pertinent topics, but the bulk of the readings would be discovered by the student teams in conducting research on the various facets of their cases.

Because of the collaborative nature of the seminar and the mutual dependency of each student's work upon the other seminar participants, no student attending the first meeting of the seminar is permitted to drop the course. Moreover, because the seminar assume familiarity with the major federal environmental statutes, the Environmental Law course is a prerequisite.

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