The current federal administration is cutting staff and grants at the US Environmental Protection Agency. While EPA has traditionally been at the forefront of enforcing environmental laws and regulations, our system of environmental protection includes many players providing “checks and balances” that are still available when EPA priorities appear to have changed.
Almost all major federal environmental statutes contain citizen suit provisions; these allow individual citizens and organizations to bring lawsuits to enforce the laws. If EPA is not enforcing the law against a polluting company, an impacted person or organization can bring suit against the company to compel compliance with the law, assess penalties, and recover attorney fees. National organizations such as the Sierra Club and the Natural Resources Defense Council frequently bring citizen suits; in the Chicago area the Environmental Law and Policy Center and environmental law clinics at Northwestern University and the University of Chicago also take on these cases.
State environmental agencies also play an important role in enforcing environmental laws. Most federal programs, such as those under the Clean Air Act and Clean Water Act, have regulations that are adopted by states. The states are only authorized to run their own programs if their laws are “as stringent” as federal laws, and most states have adopted these programs. While states vary in how vigorously they enforce their own laws, many state programs provide for citizen suits, just like federal programs.
Another avenue for legal challenges to deal with climate change and other environmental matters is tort law, which allows lawsuits for harms not addressed by regulatory statutes. A tort is a civil “wrong” that causes harm or loss to a person or property. Tort cases involving exposure to toxins and dangerous chemicals are often in the news. For example:
- Lawyers are considering tort cases against carbon extractors and emitters to address climate change.
- The Supreme Court recently declined to hear challenges to a state court action where the City of Honolulu sued Sunoco, alleging that Sunoco misled the public about the dangers of burning fossil fuels. This litigation is ongoing and will be closely watched.
There are backstops to the system at the conclusion of a case as well as at the initiation stage. Settlements between the federal and/or state government and private parties are memorialized in an agreement called a consent decree, which must be approved by a court. The US Department of Justice makes all consent decrees available for public comment. Judges review these agreements, along with public comments, to make sure they are fair and in the public interest. For example, in a 2014 case, the judge raised concerns about a settlement between Miami and the US EPA because climate change resulting in rising sea levels did not appear to have been considered in designing Miami’s sewer system upgrades. The court required the parties to consider this and other issues before the judge ultimately approved the settlement.
Another opportunity to revisit environmental concerns arises during litigation under the Clean Water Act, which gives citizens and other interested parties the opportunity to intervene in the litigation. Intervention gives multiple parties “a seat at the table” and an opportunity to help shape the outcome of a case.
Optimally, a strong federal enforcement program would provide the backbone of environmental protection to address climate change and other issues. Polluted rivers cross state lines, airborne toxins travel from one location to others, and so forth. However, the system also has many avenues for states and affected parties to step up and get involved.