09/26/2024 | News release | Distributed by Public on 09/26/2024 08:54
Citizen suits have been fundamental to environmental enforcement for decades. As we discuss in greater detail here, citizen suits begin with private parties sending "notice letters" to potential defendants, apprising them that if they do not take a specified action within a certain period of time, the private entity will initiate litigation. One important goal of these letters is to allow parties to fix issues outlined in the letters outside of litigation.
But sometimes notice letters don't have their desired effect. Assuming the issues are not then addressed outside of litigation - typically through a specific type of settlement with state or federal regulators - the private party may file suit to address the claimed harms. Generally, parties that can demonstrate an environmental statute has been violated will seek attorneys' fees and costs. The battle over fees and costs can be complicated (see here).
Over the past fifteen years, American environmental enforcement has shifted from fairly straightforward, statute-based, and command-and-control procedures, to situations where varying parties including all levels of government, companies and trade associations, and a host of non-governmental organizations (NGOs), pursue a myriad of procedures ranging from familiar to exotic to pursue often conflicting environmental priorities. (For a useful summary of the recent state-of-play, see here.)
Recent US Supreme Court precedent has the potential to alter the citizen suit landscape:
Recent dialogue about environmental issues has focused on the disconnect between current problems and the nearly 50-year-old toolkit of environmental statutes established to manage environmental issues.
Citizen suits are often pleaded in complaints containing, for instance, tort theories. This is something we've touched upon before here and here. Plaintiffs who may have formerly sued using statutory citizen suit provisions to remedy environmental issues are increasingly either combining citizen suit claims with other theories or solely using historically non-environmental tools to remedy environmental problems. While it is fairly straightforward to plead tort theories alleging harms to real estate in claims styled as citizen suits intended to address environmental harms, other efforts are more novel. Below are two examples:
While these novel efforts may not be successful, they demonstrate that opportunistic plaintiffs seek to use tools like citizen suits, among others, to address perceived environmental issues.
Members of the firm's Environmental, Energy & Cleantech, and Environmental, Social & Governance teams regularly monitor regulatory and court decisions affecting the energy space.