Can a citizen stop public or private conduct that is damaging the environment?

Citizens have various rights to stop conduct which is damaging the environment. These rights derive from the common law, and from state and federal laws.

At the federal level, Congress has enacted the Clean Water Act (CWA), Clean Air Act (CAA), the Endangered Species Act (ESA), Toxic Substance Control Act (TSCA), Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), and the Federal Insecticide, Fungicide and Rodentcide Act (FIFRA). Each of these federal laws are designed to address areas critical to maintaining an environment which is healthy for all citizens. While various federal agencies such as the EPA are charged with enforcing these laws, Congress has also specifically stated in enacting these laws that private citizens are allowed to enforce these laws through agency complaints and, where necessary, the court system.

Private Right to Enforce Federal Environmental Laws
Prior to bringing a lawsuit to enforce existing federal environmental laws, a citizen must have “standing”. In federal courts, this means that the citizen must have been injured, and that the courts are able to provide a remedy for that injury.

With respect to environmental law, this means that you must have been in some way injured, or at least adversely affected by the the environmental problem. The injury that you incur must also fall within the “zone of interest” which congress intended to protect when enacting the law.

For example, a mining company builds a massive mine in the mountains. The mine has smelters which pollute the air, tailings left over from processing minerals which pollute the water and land, disrupts wildlife in the area, some of which are endangered, and there is an increase in traffic in the area. If you file suit to stop the mine, telling the court that you are concerned they are violating various laws, while you are right that those laws are being broken, the court is not going to hear your case. This is because you have not shown the court you are injured by the mines activities. If however you can show the court that you often hike in the area, that due to the pollution from the mine you no longer hike there, that you often fish in the streams below the mine and that as a result of the mine tailings and water contamination you no longer fish there or are afraid to fish or to eat the fish you catch, then the court would hear your case.

Additionally, if you are a member of a club or organization which uses the area of the mine, that group can also bring a lawsuit to enforce federal laws surrounding the mines unlawful activities. The general rule is that if at least one member of the club or organization is injured in some way, then the club or organization has standing to sue in federal court to enforce federal environmental laws.

Prior to filing any lawsuit, you usually must give 60 days advance written notice to the party, such as the mine, which you intend to sue, along with notice to the EPA and possibly to any state agency that the law requires. This would allow the mine to correct their conduct or to otherwise attempt to resolve the matter outside of court. It also gives the EPA the opportunity to review the merits of your claim and to intervene on you behalf.

Often, however, the EPA can be overworked, or has higher priorities, or due to politics and preferences of the executive branch, simply does not strictly enforce the laws. This is where private citizen court cases have done much over the years to enforce via the court system the many environmental laws which Congress has enacted.

In addition to the actual environmental standards which the laws intend to establish, federal agencies must follow a detailed set of procedures, prior to approving conduct which impacts the environment. Citizen suits can also be filed against federal agencies and their directors to require them to follow mandated procedures when they have not been followed. For example, prior to the mine starting construction of their facilities, they would likely be required to submit an environmental impact statement, which would allow federal agencies and the public to better assess whether it is appropriate to allow the mine to operate. Public hearings are also held to allow affected citizens to voice their concerns and objections. If a hearing is not held or proper studies not performed to assess the mines impact on the environment, a lawsuit can be filed to require those hearings or studies to be conducted.

If the conduct of a business or person presents an imminent danger to the environment, a temporary or preliminary injunction can be obtained from a judge pending the outcome of the underlying lawsuit.

Common Law – Nuisance Actions
A citizen also has rights under the common law to enjoin conduct of others which is offensive to common societal standards. Thus, if a neighbor buys a horse and does not properly dispose of the horse manure, and the smell affects the reasonable enjoyment of your property, you can bring a lawsuit against your neighbor in state court to require them to take action to abate the nuisance. The same would apply if a business built a cement mixing plant next to your property, creating dust and air contamination on your property. If it affects your reasonably right to enjoy your property, it can be generally be enjoined via court action. In addition to court enforcement, municipalities and state agencies can often take action to require the neighbor or business to abate the nuisance. In suing to stop a nuisance of a neighbor or business, it is also possible to recover monetary damages if your health or property is adversely affected by that nuisance.

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