Air Date: Week of October 8, 1999

The Supreme Court is hearing a case this week which could have a profound impact on the ability of citizen groups to prosecute polluters. They are reviewing a decision by a South Carolina appeals court which overturned the liability of an incinerator operator to pay penalties -- and legal fees -- for illegal dumping once the operator ceased dumping. Patrick Parenteau (par-EN-toe), Vermont Law School professor and former head of the school’s environmental law center, discusses the case’s implications with host Steve Curwood.

Transcript

CURWOOD: The U.S. Supreme Court is taking up a case that could have far-reaching consequences. At stake, the ability of citizens to enforce anti-pollution laws. The arguments stem from a South Carolina case in which citizens sued Laidlaw, an incinerator operator that illegally discharged chemicals into a river. But their suit dragged on for years, and by the time it reached the Fourth Circuit Court of Appeals the firm had stopped polluting. The appeals court ruled the citizens no longer had an issue, and dismissed the case. I asked Patrick Parenteau, a professor at Vermont Law School, what it would mean if the Supreme Court upholds the lower court ruling.

PARENTEAU: If the message from the United States Supreme Court to those citizens is: Don't bother, because if you do that and the violator is smart enough to outfox you and wait until you bring the case, and then wait until the case has progressed for some period of time until it suits them to come into compliance, and at that point cuts you off at the knees, then I think the rational response of the citizens is: Why should I put myself through that? I guess I'll have to leave it to the government.

CURWOOD: Professor Parenteau, tell me. The United States has a very powerful citizen's lawsuit provision in the Clean Water Act. Just about anybody can walk in and sue if they see that some company is polluting the water. Is this what is under attack here, this right for citizens to bring lawsuit?

PARENTEAU: It is, and oddly enough, the Congress of the United States, in over a dozen federal statutes, has strongly endorsed the concept of citizens serving as what is called "private attorneys general," to bring these actions where the governmental agencies, like the Environmental Protection Agency or the state counterpart environmental agency, have failed to bring the actions. And yet, the Supreme Court, in the face of all of this body of federal law, has recently been tightening the grounds upon which citizens can bring these enforcement actions. So you have a contest underway here between the Supreme Court trying to rein in, in effect, citizen suits, while the Congress continues to authorize and encourage them.

CURWOOD: Why is the Supreme Court so cranky about these kind of cases?

PARENTEAU: It may be because the Supreme Court believes that some of these enforcement actions are not as meritorious as they would like them to be, although I would certainly take issue with that. I think the track record of the citizen suits is quite remarkable. They've been very successful in cleaning up major contamination: Boston Harbor, the Chesapeake Bay, Puget Sound, many cases around the country where citizen action has really made the difference. But in some instances, it seems as if members of the Supreme Court believe that it's not a proper function for citizens to be enforcing the law. That that either ought to be done by the government, or, if the government chooses not to, then they must have had good reason not to.

CURWOOD: Let's talk about these citizen suits some more. In addition to the Clean Water Act, it also applies to the Clean Air Act and the Endangered Species Act. How important has this right of citizens to sue been?

PARENTEAU: In many cases, if it weren't for the citizens enforcing these laws, they wouldn't be enforced at all. Under the Endangered Species Act that you mentioned, for example, there is a prohibition on the taking or killing of endangered species, as well as the destruction of their habitat. And the government, the federal government, which is in charge of enforcing and implementing the Endangered Species Act, has never once brought a case against an individual for destroying the habitat of an endangered species under this particular provision. All of the enforcement under that statute has been done by citizens. When you talk about the Clean Water Act, for example, there are now more citizen suits pending in federal district courts across the country than there are government enforcement actions under the Clean Water Act. So, the citizen suit has become, actually, the primary tool of enforcement in some of these cases, as opposed to government enforcement.

CURWOOD: Now, all this information on polluters and their violation is public information. It's reported to government agencies, which is how the citizens group gets this information. Why don't the executive agencies do anything about it?

PARENTEAU: Well, in some cases it is because they don't have the enforcement resources to investigate all of the violations and bring lawsuits or other forms of administrative enforcement, so resources may be one reason. Oftentimes, it's political. Politics, as always, plays a role in whether an enforcement action is going to be brought. If you have a favored industry in a state that's concerned about the economic condition of that industry, that could influence the state not to bring an action. Citizens, of course, are saying: We're the ones that are suffering from the pollution and the violation, and we want it cured. We want it cleaned up.

CURWOOD: Well, I want to thank you for taking this time with us today.

PARENTEAU: Okay. Thank you, Steve.

CURWOOD: Patrick Parenteau is a professor of law at the Vermont Law School.