Last week the Environmental Law and Policy Center, (ELPC) a Midwest-focused public interest environmental legal advocacy organization, held a post-election briefing outlining its plan for action during the Trump presidency. Featuring prominently in the presentation was the launch of ELPC’s High Impact Environmental Litigation Program, or HELP. The organization envisions a platoon of pro-bono attorneys bringing civil suits against polluters to make up for what it expects will be a reduction in the amount of federal environmental enforcement.
ELPC will likely not be alone among environmental non-profits in marshaling resources for citizen suits. In Environmental Law Next’s take on the likely implications of the election, we predicted that there will be a drop in the amount of EPA enforcement actions and a rise in private litigation in response. Most federal environmental statutes allow anyone to bring a suit for injunctive relief to address ongoing violations, and even for civil penalties, if the government forgoes its right to act as the plaintiff.
What does this mean for the regulated community? No matter the resources organizations like ELPC can muster for this kind of litigation, it cannot fully assume the place of EPA and other federal enforcement agencies. Citizen suit provisions give private organizations standing, but not many of the other legal rights that make an efficient, comprehensive enforcement regime possible. The ability to conduct inspections on private property, for example, is central to EPA’s ability to identify violations and gather evidence.
Nevertheless, a citizen suit can be big problem for a company that finds itself defending one. ELPC is not hiding its intentions with this program, stating its hopes of bringing high impact lawsuits; it is not looking to give slaps on the wrist. The cost of defending and resolving citizen suits brought by sophisticated non-profits could be as high if not higher than for government enforcement actions.