Now, more than ever, citizen-suit litigation is a growing risk for utilities and for any business with environmental impacts. After an era of steadily increasing environmental oversight, the Trump administration campaigned on a promise to liberate American industry from regulation. The promised rollback of environmental regulation, however, will face obstacles, as any decrease in federal enforcement of existing statutes and regulations is likely to be met with an outpouring of citizen suits funded and motivated by opposition to the new administration’s agenda. Indeed, the number of these private enforcement actions actually could grow in coming years.
Since the enactment of the Clean Water Act, virtually all major federal environmental statutes include provisions allowing “citizen suits” — actions by private citizens, activist organizations and others to sue governmental and private entities for violating environmental law, such as emissions exceeding permit limits or the release of hazardous waste. Numerous environmental nongovernmental organizations (ENGOs) use citizen-suit provisions with great success; for example, during the Obama administration, these groups filed suits against coal mines and coal-fired power plants and the petroleum and natural gas industries. Even regional and local ENGOs have used citizen suits to delay and upend projects ranging from mines to neighborhood shopping centers.
Beyond ENGO funding, provisions permitting recovery of legal fees by the prevailing or substantially prevailing party also provide motive and opportunity, even for those without resources to initiate challenges. Unsurprisingly, whether a party should be entitled to compensation for its attorneys’ fees and costs has been the subject of widespread debate. Currently, the Department of Justice is taking proactive measures to prevent or minimize, where appropriate, the payment of attorneys’ fees. Jeffrey Wood, the DOJ’s acting chief of the Environment & Natural Resources Division, has instructed subordinates to “closely scrutinize demands for attorneys’ fees to make certain they are” appropriate.
Nevertheless, regulatory reform efforts will take time and face a great deal of opposition. It is critical, therefore, that businesses stay abreast of environmental regulation and be prepared to fend off potential liabilities.