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Assessing China’S Environmental Ngo Public Interest Litigation Against The U.S. Citizen Suit Model, Huishihan Wang

Dissertations & Theses

This dissertation introduces the U.S. and China’s environmental governance evolution, the background of their private enforcement provisions, including each country’s environmental legislative, administrative, and judicial development before establishing private enforcement. After the introduction, the second section examines the U.S. environmental citizen suits’ origin, environmental movements during the 1960s and 1970s, and pioneer ENGOs’ legal experiences. Statutory provisions are reviewed in various aspects in order to fully present this significant U.S. private enforcement measure. The third section analyzes the trajectory of Chinese ENGO EPIL development, including the provisions and typical actions according to several scattered provisions. Section four compares the theoretical …

Citizen Litigants Citizen Regulators: Four Cases Where Citizen Suits Drove Development Of Clean Water Law, Karl S. Coplan

Elisabeth Haub School of Law Faculty Publications

One of the key innovations of the 1970s regulatory environmental revolution was the provision for citizen enforcement of regulatory standards. This innovation upset the previous bipolar regulatory model, which was a two-way negotiation between the regulated industries and the (often captive) regulatory agencies. By removing agency enforcement discretion as a means of underenforcing statutory norms, the citizens suit brought a new constituency to the regulatory bargaining table. The citizen suit had the intended effect of implementing a regime of full enforcement of the new environmental norms.

But the revolutionary effect of the newly minted citizen suit was not limited to …

A "Blunt Withdrawal"? Bars On Citizen Suits For Toxic Site Cleanup, Margot J. Pollans

Elisabeth Haub School of Law Faculty Publications

Throughout the history of federal statutory environmental law, citizen suits have played a key role in enforcement. Through statutory interpretation, however, courts have narrowed the circumstances under which citizens can sue. This Article explores one such restraint: Courts have severely limited citizen suits under the Resource Conservation and Recovery Act (“RCRA”) by reading very broadly a jurisdiction-stripping provision of RCRA's companion statute, the Comprehensive Environmental Response Compensation and Liability Act (“CERCLA”). This Article argues that courts have read that provision too broadly, not only violating traditional principles for resolving inter-statutory conflict but also undermining the purposes of both statutes by …

The Constitutionality Of Citizen Suit Provisions In Federal Environmental Statutes, Jeffrey G. Miller

Elisabeth Haub School of Law Faculty Publications

The Supreme Court’s decisions under the pollution control statutes administered by the Environmental Protection Agency (EPA) reach startlingly anti-environmental results, but they are explained more by the Court’s overwhelming hostility toward the private enforcement of statutes, rather than an anti-environmental bias. Adding insult to injury, in one of the rare victories for private environmental plaintiffs in those decisions, Justice Kennedy queried whether citizen suits intrude on the President’s Article II executive power and violate the separation of power principles. While other Justices have raised the same concern, Justice Kennedy’s invitation is particularly significant because he is a swing vote in …

Theme And Variations In Statutory Preclusions Against Successive Environmental Enforcement Actions By Epa And Citizens, Part One: Statutory Bars In Citizen Suit Provisions, Jeffrey G. Miller

Elisabeth Haub School of Law Faculty Publications

This two-part Article examines the preclusion device, its legislative history, and the decisions interpreting it. Part One examines the device in citizen suit provisions. Part Two, to be published subsequently, will examine the device in EPA enforcement provisions. The two parts develop a unified interpretation of the device in both sets of enforcement provisions to resolve the tension between achieving compliance and protecting prosecutorial discretion. The Article concludes that Congress meant exactly what it wrote and enacted: the device solely precludes the successive enforcement it actually addresses. Several of the most common canons of statutory interpretation lead inexorably to this …

Overlooked Issues In The "Diligent Prosecution" Citizen Suit Preclusion, Jeffrey G. Miller

Elisabeth Haub School of Law Faculty Publications

Congress sought to attain full compliance with environmental statutes. It reasoned that multiple enforcers would provide more comprehensive and effective enforcement than one enforcer. Congress therefore empowered the Environmental Protection Agency (EPA), the states and private citizens as enforcers of the statutes. However, Congress worried that successive actions by multiple enforcers could bring disruption and conflict to enforcement litigation and remedies. It therefore included in the citizen suit provision of each statute a limited, three-element notice, delay, and bar preclusion device to manage successive citizens' enforcement against the violations already subject to government enforcement. The device generally bars citizens from …

Is Citizen Suit Notice Jurisdictional And Why Does It Matter?, Karl S. Coplan

Elisabeth Haub School of Law Faculty Publications

The question of whether notice is jurisdictional or not has important ramifications for citizen suit litigation. The characterization of the notice requirement as “jurisdictional” implicates the proper procedure for raising notice objections, the means of curing notice defects, the question of waiver of notice objections, and the timing of raising notice objections. This article will conduct a brief review of the case law concerning the jurisdictional nature (or not) of the notice requirement, a consideration of the as-yet unnoticed impact of Steel Co. on the issue, and a discussion of the procedural and litigation ramifications of characterizing the notice element …

The Standing Of Citizens To Enforce Against Violations Of Environmental Statutes In The United States, Jeffrey G. Miller

Elisabeth Haub School of Law Faculty Publications

Judicial actions by private citizens have played a critical role in the development and enforcement of federal environmental law in the United States over several decades. The courts' general receptivity to the standing of private environmental plaintiffs has made that role possible. A troika of Supreme Court decisions on standing in environmental cases authored by Scalia J over the last decade had eroded that general receptivity, casting doubt on the continued vitality of private actions in developing and implementing environmental law. The Court's recent decision in Friends of the Earth Inc v Laidlaw Environmental Services halts this erosion. To explain …