Article by Michael S. Greve
Since the beginning of the 1970s, Congress has increasingly come to rely upon private law enforcement as a means of attaining public objectives. Private enforcers have been put to work for purposes ranging from consumer protection to the prevention of procurement fraud to curbing insider trading. But the prime field for the expansion of private enforcement has been environmental law. Virtually all federal environmental statutes contain a citizen suit provision that, typically, allows “any person”' to sue private parties for noncompliance with statutory provisions or with standards and regulations issued under the statute. Groups and individuals suing under these provisions have sustained no injury or, at most, a minimal injury-in-fact. They act not as victims who redress a wrong done to them but as “private attorneys general.”
Over the past two decades, Congress has repeatedly strengthened and expanded environmental citizen suit provisions. Congress views these provisions as an efficient policy instrument and as a participatory, democratic mechanism that allows “concerned citizens”' to redress environmental pollution. This assessment is shared by a large majority of legal scholars and by environmental advocates. This Article, in contrast, argues that the history of sustained legislative support has little to do with whatever substantive merits citizen suits may have. Congressional support for private environmental law enforcement is an outgrowth of interest group politics. In purpose and effect, citizen suit provisions are an off-budget entitlement program for the environmental movement.
To summarize the basic argument, environmental citizen-plaintiffs are supposed to be altruists. Citizen suit provisions offer no rewards because private enforcers are supposed to be guided exclusively by the public benefits to be gained from righting environmental wrongs, and not by the personal benefits of a reward. This injunction against rewards notwithstanding, citizen suit provisions do permit environmental groups to solicit transfer payments from alleged polluters. But, the provisions make enforcement financially attractive for almost no one except environmental advocacy groups. They thus create what amounts to an environmentalist enforcement cartel. This system of enforcement is unsupported by any plausible economic or environmental rationale. Congress has failed to contemplate potentially more efficient private enforcement mechanisms because no other system would lend itself equally as well to the purpose of subsidizing the environmental movement.
Section II of this Article provides a conceptual and analytical framework of environmental citizen suit provisions, largely by way of comparing these provisions to the historical examples of “bounty-hunter”' statutes. The Article then provides an empirical analysis of private environmental law enforcement, as it has developed over the past two decades. Sections III and IV demonstrate that environmentalist enforcers reap economic rewards and that their strategies and case selection are necessarily determined by these rewards, not by public (environmental) benefits. Therefore, citizen suit provisions, in their present form, cannot promote the policy goals they are ostensibly intended to serve. This is shown in Section V. Finally, Section VI argues that the subsidization of advocacy groups is, in all likelihood, the intended effect of environmental citizen suit provisions. Section VI also considers the targeted support of congressional constituencies from a broader political and constitutional perspective.
About the Author
Michael S. Greve. Executive Director, Center for Individual Rights. Diplom, University of Hamburg, 1981; M.A., Cornell University, 1985; Ph.D., Cornell University, 1987.
Citation
65 Tul. L. Rev. 339 (1990)