Alerts

Private Right of Action

February, 15 2008 Share

I. Citizen Suits-General

In 1970, when Congress enacted the Clean Air Act ("CAA"), it included in this new environmental statute a provision allowing concerned citizens to bring lawsuits against both the EPA and air polluters for violations of the CAA. Specifically, this provision of the CAA allowed citizens to sue polluters who violated certain requirements of the Act and to sue the EPA if it failed to carry out a non-discretionary duty set forth in the Act.

This was the first time individual citizen had been empowered by Congress to bring a lawsuit under a federal environmental statute for the purpose of enforcing that statute. Congress chose to grant citizens this right for two primary reasons:

Congress anticipated that the federal government, due to limited resources, would need assistance in order to obtain broad enforcement of the CAA. Congress also perceived the necessity of holding the EPA accountable for undertaking the many non-discretionary statutory duties that Congress required the EPA to fulfill. Out of a desire to assure that the environment would be adequately protected, and not merely on paper, congress gave the citizens the powerful tool of the "Citizen's Suit" to ensure both that polluters were brought to justice and that EPA fulfilled its duties.

A citizen suit provision has been included in almost every federal environmental statute enacted since 1970, including the Clean Water Act, the Solid Waste Disposal Act (commonly called "RCRA"), the Toxic Substances Control Act, the Noise Control Act, the Endangered Species Act, the Marine Protection, Research, and Sanctuaries Act, the Comprehensive Environmental Response, Compensation, and Liability Act (commonly called "Superfund"), and, most recently, the Safe Drinking Water Act. Under each of these statutes Congress has granted citizens the power to initiate an enforcement action in federal court in order to ensure adequate protection of the environment.

Citizen suits have proved to be an important tool for the enforcement of the various environmental statues. EPA and the states, despite limited resources with which to conduct their environmental compliance and enforcement programs, have taken thousands of enforcement action against environmental polluters. Nevertheless, the number of environmental violations often exceeds the federal and state enforcement resources available to prosecute violations. Citizen suits have been important in filling the gap.

There are innumerable citizen suit success stories. A brief example of just one of these lawsuits paints a picture of the vital role citizens have played in protecting the environment through the use of citizen suits.

In a recent citizen suit, Sierra Club v. Simkins Industries, Inc., [847 F. 2d 2209 (4th Cir. 1988)] a citizen group sued a Maryland paper mill for violating the clean Water Act. The citizen group alleged that Simkins was discharging pollutants into the Patapsco River in violation limitations established in Simkins' permit. The Court first determined that Simkins had, in fact, violated the Clean Water Act and then fined Simkins $977,000. The Court also ordered Simkins to fully comply with the Clean Water Act in the future. The citizen group was successful in remedying the specific pollution problem caused by Simkin's illegal wastewater discharges and also obtained a tough penalty which should help deter other would-be polluters from violating the law and pollution our environment.

In sum, Congress established citizen suit provisions under the various environmental statutes in order to help ensure that EPA and the regulated entities actually complied with the requirements of those statutes. As a result of the efforts of those who have brought citizen suits, the state of our environment has been improved. 

Source: EPA: http://www.epa.gov/region4/air/enforce/citizenf.htm#ENFORCERS

II. The Mechanism

"Citizen Suits" or "Enforcing Suits"

One method of harnessing the energy and commitment of citizens to effectuate public environmental protection goals is to authorize citizens to enforce environmental laws and regulations.  In the United States, most environmental statutes contain "citizen suit" provisions enabling citizens to prosecute violators of the statutory regime. (39)

Such citizen suit provisions have their roots in over two hundred years of U.S. law.  Since 1790, United States citizens have been able in limited cases to sue to vindicate certain public rights -- those granted by statute to the population as a whole. (40)

These citizen suits have been used to enforce federal regulations in diverse areas ranging from antitrust to consumer protection. (41)

Citizen suit provisions are said to create "private attorneys general," for they confer upon the individual the right to enforce public laws against other citizens.

Although the concept of a citizen suit is not new, the statutes permitting citizen enforcement of environmental laws and regulations are unique.  In most other areas where citizen suits are permitted, a personal economic interest, such as an interest in correcting unfair competition or preventing fraud, must coincide with the claimed public rights.  In citizen suits brought under environmental protection statutes, however, there is no such personal economic stake in the outcome.  The environmental statutes truly provide citizens with the authority to represent the interests of the public.  Environmental citizen suits, in their strongest form, might even be characterized as permitting citizens to sue on behalf of the environment itself.  The United States is almost unique in this grant of power to the private citizen: Few other nations have extended such rights. (42)

The U.S. Clean Air Act (CAA), enacted in 1970, was the first federal environmental statute of the modern era with a citizen suit provision.  The CAA provision's underlying structure is the basis for citizen suit clauses in almost every other major piece of federal environmental legislation.  Today, citizens can bring suit against private parties and government for violations of certain sections of statutes regulating air, water, toxic waste, endangered species, mining, noise, the outer continental shelf, and more. (43)

Under many statutes, the remedies available to the citizen are equivalent to those granted to the federal agency charged with administering the statute. (44)

The basic citizen suit provision permits any "person" (including an individual, organization, or corporation) to sue any other "person" (including the United States) who is violating the requirements of the given Act.  Before filing suit, a citizen must notify state and federal agencies as well as the alleged violator that a lawsuit is impending.  This notice provision serves an important purpose, because the threat of a citizen suit often prompts the violator to halt its violations, or at least to negotiate with the potential plaintiff.  As long as the violation continues and the state or federal government is not pursuing a "diligent enforcement" action against the alleged violator in court, a lawsuit may be filed.  Once the suit is filed, the government has no power to dismiss it, and may affect the outcome only by intervening in the case.

If the citizen wins, the court may order the defendant to stop the violating activities.  In certain circumstances, the court costs and attorney fees associated with bringing the action may be awarded to the plaintiff.  Some statutes allow the plaintiff to ask the court to impose civil penalties upon the violator, payable to the U.S. Treasury. (45)

Common Law or Civil Code Suits

Even in the absence of mechanisms for enforcing specific environmental controls set forth in a system of statutes and regulations, citizens can still achieve environmental protection objectives in the courts.  Both common law systems such as that in the United States and the civil code systems that prevail in many other countries provide latitude for judicially-developed methods of remedying environmental harms.  Under these systems, environmental controls are not enshrined in statutory or regulatory standards, but are developed on a case-by-case basis by courts applying general legal principles to the facts of each lawsuit.  A receptive judiciary can employ the flexibility inherent in such systems both to offer citizens redress for environmental degradation that injures them individually and to correct harms to public environmental interests.

Common Law Suits

Prior to the adoption of recent environmental statutes in the United States, the only way in which a private citizen could prevent environmental harm through the courts was by exercising his or her rights under common law.  These rights are based on precedents set during centuries of case-by-case adjudication in Great Britain and the U.S. They allow individuals to counteract harms caused by the behavior of others by seeking compensation for those harms and/or obtaining a court order halting the offending behavior.  Even with the advent of statutory citizen suit provisions, common law causes of action continue to provide an important mechanism for achieving environmental protection goals.

Most common law environmental claims require some injury or threat of injury to the plaintiff's person or property.  The most common "environmental" common law action is that of private nuisance.  A person suffering a "substantial and unreasonable interference with the use and enjoyment of an interest in land" can bring a private nuisance suit.  For example, a property owner could sue a neighboring factory for emitting dangerous or even annoying fumes that permeated his or her property.  Another common law claim for injury to property is trespass, which requires an actual physical invasion of the property's limits.  A fuel storage facility whose tanks leaked oil that flowed into a neighbor's fish pond might be liable to the pond-owner in a trespass suit.

Common law actions can compensate for injury to one's person as well.  For example, someone who lives near a toxic waste dumping site, and who becomes sick from fumes emanating from the site, may be able to sue the owner of the site on the basis of that injury.  If the plaintiff joins together in one lawsuit with other citizens living near the site who have suffered the same damage, the resulting "class action" lawsuit can have a significant effect on the polluter's behavior.

The potential strength of such common law suits as a weapon in the environmental enforcement arsenal stems from the financial costs they can impose on a violator.  Common law claims are the only avenues through which individuals can recover for damage to themselves or their personal property.  And damages awarded in such suits in the U.S. can be substantial.  For example, a potential court judgment for personal injury resulting from toxic pollution could include compensation for medical expenses, lost wages, and diminished earning capacity.  Damages in a common law suit involving a newborn baby who will be permanently disabled by injuries caused by the defendant's polluting activities could easily amount to millions of dollars. (46) The threat of a sizeable award of damages can substantially strengthen a citizen's power to trigger compliance -- it can deter potentially polluting activities and force industry to pay attention to citizens' claims.

The common law actions described are aimed primarily at correcting violations of individual rights.  By fining a defendant for such violations, or by ordering a halt to the offending activity, they can lead to broader environmental benefits as well.  The common law also provides mechanisms through which citizens can vindicate public, rather than private, rights.  These doctrines generally require that the plaintiff share some personal stake in the "public" goal pursued in the suit; moreover, they do not allow the plaintiff to recover money damages from the defendant unless the plaintiff has suffered injury to his or her person or property.  Nonetheless, the doctrines of public nuisance, public trust, and certain broad statutory mandates reveal some of the possibilities inherent in the flexibility of judge-made law.

Public nuisance involves interference with public rights such as the right to health, safety, or comfort.  Traditionally, only the government could sue to protect these rights.  Recent developments, however, allow suits by individuals who suffer "special injury" different in kind from that suffered by the rest of the public. (47)

A second common law action that recognizes communal rights is known as the "public trust" doctrine.  This doctrine posits that the government must hold public lands and natural resources in trust for the use and enjoyment of the citizens.  If the government fails to consider this trust in its management and maintenance of resources like navigable waters, fisheries, or parklands, individual citizens may sue those in control of the lands. (48)

While the doctrine is, at first glance, not applicable to privately-owned land, some state and federal courts have hinted that a regulatory or contractual link between the landowner and the government may be enough to bring the doctrine into play and to render the landowner liable for environmental harms. (49)

Finally, some U.S. states have explicitly recognized public rights to environmental quality in their statutes and constitutions.  Most constitutional provisions have been ineffective, because they do not permit citizens to sue for the violation of their constitutional environmental rights.  Michigan's unique Environmental Protection Act, adopted in 1970, has been more successful.  The Act permits any person to sue any other person "for the protection of the air, water and other natural resources and the public trust therein from pollution, impairment or destruction." (50) 

It grants courts broad powers of review of both individual and agency actions, and permits orders altering or halting the harmful activities unless there is no "feasible and prudent alternative consistent with the reasonable requirements of the public health, safety, and welfare." Michigan courts have interpreted the Act as conferring upon them the responsibility of creating "the equivalent of an environmental common law." (51)

Civil Law Suits

Civil code countries also offer judicially developed remedies for environmental harms.  In civil code countries, standards governing environmental quality are codified, and judicial precedent is not as important as it is in common law systems.  At the same time, however, code provisions relevant to environmental quality are usually general in nature, and thus are open to interpretation by judges applying the provisions in particular cases.

Most civil code standards that can protect environmental quality are similar to those available under common law, especially those actions preventing or recovering for harm to property or person. (52) Many civil codes also contain provisions that appear to go further than the common law in granting individuals the right to enforce public environmental interests.  For example, Hungary's code allows individuals to sue others for violating an obligation not to behave so as to disturb others needlessly, "especially neighbors." The "neighborhood" encompassed by this provision is not restricted to property immediately adjoining the site of the polluting activity, but includes anyone affected by the pollution. (53)

In Colombia, the civil code provides for "popular actions," which permit citizens to sue for damages to communal environmental rights. (54)

And in Argentina, courts have made use of a constitutional guarantee called amparo, which can be loosely translated as "protection," to defend individual or collective environmental rights derived from statutes, international treaties, or the constitution itself. (55)

Source: The Role of the Citizen In Environmental Enforcement [see separate attachment]

III. Supreme Court Case

In Friends of Earth, Inc. v. Laidlaw Enviromental Services (TOC), Inc., 528 U.S. 167 (2000), the Supreme Court upheld that in order to bring a citizen suit under the Clear Water Act, i.e., "to satisfy Article III's standing requirements, a plaintiff must show 'injury in fact,' causation, and redressability", which was satisfied by plaintiff FOE members' reasonable concerns about the effects of defendant Laidlaw's pollutant discharges.

Laidlaw (defendant) argues that FOE lacked standing to seek civil penalties payable to the Government, because such penalties offer no redress to citizen plaintiffs. For a plaintiff who is injured or threatened with injury due to illegal conduct ongoing at the time of suit, a sanction that effectively abates that conduct and prevents its recurrence provides a form of redress. Civil penalties can fit that description. Insofar as they encourage defendants to discontinue current violations and deter future ones, they afford redress to citizen plaintiffs injured or threatened with injury as a result of ongoing unlawful conduct. The Court need not explore the outer limits of the principle that civil penalties provide sufficient deterrence to support redressability, because the civil penalties sought here carried a deterrent effect that made it likely, as opposed to merely speculative, that the penalties would redress FOE's injuries—as the District Court reasonably found when it assessed a penalty of $405,800.

Source: Friends of Earth, Inc. v. Laidlaw Enviromental Services (TOC), Inc., 528 U.S. 167 (2000) [see separate attachment]

IV. OTHER: International Covenant on Economic, Social and Cultural Rights (ICESCR)

This report may be of some value for reference. However, the scope of the Covenant does not (explicitly) cover non-national workers or territories outside the corporation's home State' jurisdiction.

The Committee's views in this area are only explored to the extent that they shed light on protection against corporate abuse of individuals' rights where those individuals are outside a State Party's national territory through still within its effective control.

Given the SRSG's mandate looks specifically at the acts of transnational businesses, an important question is whether a State Party has any duties under the Covenant to regulate or at least influence corporate actors abroad, whose activities affect individuals who are both outside the State's national territory and effective control. In other words, has the Committee interpreted the Covenant as requiring States Parties to regulate the overseas actions of corporations incorporated in them, otherwise linked to them or even those without any real connection where particular abuses have been committed? Such regulation is generally labeled "prescriptive extraterritorial jurisdiction"—i.e. the regulation of persons or activities outside a State's territory, usually through legislation. A related question is whether the Committee has encouraged or indicated that such regulation is at least permissible under the Covenant.

As noted in the SRSG's March 2007 report to the Human Rights Council, prescriptive extraterritorial jurisdiction is generally permissible under international law provided there is a recognized basis of jurisdiction: where the perpetrator or victim is a national; where the acts have substantial adverse effects on the State; or where specific international crimes are involved. An overall reasonableness test must also be met, which includes non-intervention in other States' internal affairs.

General Comment 14 provides similar, though less detailed, remarks about preventing abuse abroad, once again within a section titled "International Obligations" which first discusses the important of international cooperation. It says that "to comply with their international obligations in relation to article 12, States parties have to respect the enjoyment of the right to health in other countries, and to prevent third parties from violating the right in other countries, if they are able to influence these third parties by way of legal or political means, in accordance with the Charter of the United Nations and applicable international law."

At the very least, the Committee's comments indicates that it considers that the Covenant permits regulation or other acts to influence corporate acts abroad, though the Committee suggests that any action to influence third parties' acts abroad should accord with the UN Charter and other relevant principles of international law.

While the Covenant does not mention a general duty to protect, the Committee has expressed the view that the Covenant imposes three types of obligations on States: the duties to respect, protect and fulfill. Business enterprises—similarly not mentioned in the Covenant—have been referred to by CESCR mostly in relation to the duty to protect. There is no doubt that the Committee considers States Parties to have obligations to regulate and adjudicate private corporate acts in order to protect rights under the Covenant.

Nevertheless, it remains unclear how far States should go in protecting and punishing abuse before they are considered to have fulfilled the duty—namely, are they required to act with "due diligence" and what does this concept mean in relation to violations other than those concerning domestic violence? If CESCR considers that the concept has wider application, more elaboration should be helpful on the extent of due diligence required for a State Party to fulfill its duty, bearing in mind States Parties' discretion in terms of implementation.

The Committee has also said that States Parties could violate the duty to respect if they fail to consider human rights in their agreements with "multinational entities." It would be helpful if the Committee could elaborate on this discussion, including whether the term "multinational entities" includes corporations and assuming this is the case, the types of steps a State Party could or should take in order to discover human rights impacts of agreements as well as desired or required actions if it learns of such impacts.

According to the Committee, States must take legislative or other administrative measures to regulate acts by business enterprises. It also considers that States must ensure that regulations are enforced by adjudicating acts by private actors, notably through the provision of effective remedies, in particular judicial remedies. CESCR calls for States to monitor the application of regulatory measures in order to protect rights and prevent any infringement upon them. The Committee also increasingly recommends promotional measures, such as human rights awareness raising and incentives to prevent violations.

Thus, while it is clear that the Committee supports measures to regulate and adjudicate private corporate acts, some issues, such as the sanctioning of legal persons (as opposed to individuals) or compensation could benefit from further elaboration. Future discussion could consider what the remedial options of victims should be, and what liabilities State Parties should impose on business enterprises, notwithstanding the margin of appreciation left to States with respect to implementation.

  • According to CESCR (Committee on Economic, Social and Cultural Rights), States should establish effective monitoring mechanisms in order to ensure the enforcement of any regulation and prevent third party interference with rights. 
  • The Committee [what committee?] further requires States to adjudicate abuse by third parties. While the Covenant does not expressly require States to provide an effective remedy for violations in the same way as the International Covenant on Civil and Political Rights, the Committee has stressed that providing an effective remedy is part of the State's duty to take steps to progressively achieve the full realization of Covenant rights.
  • CESCR particularly encourages judicial remedies.
  • The Committee considers that provision of an effective remedy includes a right to reparation, which the Committee defines as including compensation, restitution, satisfaction or guarantees of non-repetition.
  • CESCR stresses that national laws should be based on accountability and transparency, and should ensure equal access to protection measures. The Committee has also suggested that civil society and the private sector (among others) should be involved in the adoption of legislation which establishes national mechanisms to monitor implementation of rights.
  • CESCR has stressed in four General Comments, including the two most recent ones, that while States are "ultimately accountable" for compliance with the Covenant, other actors, including private enterprises, also have responsibilities regarding the realization and/or respect of rights even though they are "not bound by the Covenant." It is important to note that the Committee alternates between speaking of corporate responsibilities regarding the "realization" of rights and the "respect" of rights.
  • The Committee has gone further in three general comments (discussing the right to work, the right to health and the right to food" and has used the term "realize rights" in the context of business responsibilities. For example, in General Comment 14, the Committee says that the "private business sector" has "responsibilities regarding the realization of the right to health." The Committee has also mentioned the roles corporations may play in relation to rights—roles which seem to go beyond respecting rights. For instance in relation to the right to work, CESCR recognized that private enterprises "have a particular role to play in job creation, hiring policies and non-discriminatory access to work."
  • Art. 10(3) provides that children and young persons "should be protected from economic and social exploitation" and that "their employment in work harmful to their morals or health or dangerous to life or likely to hamper their normal development should be punishable by law." In addition, States should "set age limits below which the paid employment of child labor should be prohibited and punishable by law." This provision has been interpreted by the Committee as requiring regulation of employers.
  • General Comment 18 in particular says that children should be protected from harmful work and economic exploitation. Further, in Concluding Observations, the Committee regularly expresses concern at the minimum age set for child labor and at working conditions for child workers. The most common recommendation is a change to regulate employers in some way to enforce the new minimum age.
  • Issues covered in General Comments and Concluding Observations include wage discrimination; women's participation in the labor market, especially decision-making positions; parental leave practices; racial discrimination and discrimination against other minorities, including migrant worker, older persons and persons with disabilities; and sexual harassment and sex discrimination.
  • The Committee commonly addresses the regulation and adjudication of employers in relation to various aspects of working conditions, including the payment of wages in line with minimum wage requirements and guaranteeing safe working conditions, especially in relation to the informal sector, children and migrant workers.
  • In particular, the Committee advises the establishment and enforcement of minimum wage regulation, and for action to be taken against employers who fail to pay workers on time.

In its Concluding Observations on China, CESCR urged the State to continue to take necessary measures to ensure that the wage standard is effectively enforced, especially in rural areas, which is "aggravated by the persistent problem of wage arrears, especially in the construction sector." The Committee further encouraged the State party to "establish a wage enforcement mechanism that periodically adjusts minimum wages to the cost of living, facilitate the redress of wage claims, and take sanctions against employers who owe wages and overtime pay and impose fines and penalties on their workers."

In the Concluding Observations for Guatemala, the Committee recommended that the State Party "ensure that the minimum wage is increased regularly in proportion to the cost of living so as to guarantee an adequate standard of living for workers and their families and to ensure that the rules regarding the minimum wage are respected in practice."

  • In relation to safe and healthy working conditions, the Committee clearly supports strict regulation and monitoring of employers, including labor inspection terms with the power to enforce legislation and mechanisms to sanction employers who fail to abide by safety regulations. As discussed throughout this report, the Committee has shown particular concern at conditions in particular sectors in some States, such as the mining sector, and at the working conditions of migrant workers.

In the Concluding Observations for China, the Committee was "deeply concerned" that insufficient implementation" of existing labor legislation had led to "generally poor conditions of work, including excessive working hours, lack of sufficient rest breaks and hazardous working conditions." It noted with concern that this problem was "especially acute for migrant workers." The Committee was also "alarmed" by the "high incidence of serious occupational accidents in the State party, particularly in the mining sector."

  • Art. 8 concerns the right to form and join trade unions, and unions' abilities to function freely. The Committee's commentary indicates it believes that States have a duty to ensure that trade union rights are enjoyed by all workers, regardless of whether they work in the public or private sector. For example, the Concluding Observations for Canada recommended the State to take measures to ensure that workers in "precarious, part-time and temporary low wage jobs" enjoy their trade union rights. This implies that States should regulate employers to prevent interferences with these rights.

Source: State Responsibilities to Regulate and Adjudicate Corporate Activities under the United Nations' core Human Rights Treaties, United Nations High Commission for Human Rights, May 2007. http://www.reports-and-materials.org/Ruggie-report-ICESCR-May-2007.pdf

 

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