Significance of the removal of citizen suit provision from ACES
Original HR 2454 provision differed substantially from Clean Air Act counterpart
Co-authored with Cyrus Frelinghuysen.
This post is prompted by an interesting question received in response to a previous post (Removal of "citizen suit" provisions eased passage of ACES). The commenter asks:
“Because the bill amends the Clean Air Act, wouldn't citizens be able to bring suits pursuant to the Clean Air Act's regular citizen suit provision anyway? It seems like the removal of the citizen suit provision isn't a big deal if the main citizen suit provision in the Clean Air Act can still be used.”
The question is an interesting one, and we thought the answer would merit an additional post. The short answer to your question is, yes, parties will still be able to bring lawsuits under the citizen suit provision of the Clean Air Act (CAA). However, the citizen suit provision in ACES differed from the current citizen suit provision in the CAA in several significant ways.
First, the proposed provision in ACES was broader than the citizen suit provision in the CAA. The ACES provision would have covered actual or reasonably expected harm from any effect of air pollution "currently occurring or at risk of occurring" regardless of whether a pollutant is a greenhouse gas or the effect is climate-related.
Second, the remedies available under the two provisions differ. The current CAA provision only provides for enforcement as a remedy; there is no damage remedy. The ACES provision would have provided for a damage remedy of $75,000 per lawsuit. Moreover, like the current CAA provision, the ACES provision would have allowed the recovery of costs of litigation, including reasonable attorneys fees.
Third, the ACES provision would have modified the standing requirement for a citizen suit. Standing under the CAA provision is limited to those who are actually harmed or face imminent harm. The ACES provision would have watered down the standing requirement in two significant ways. First, a plaintiff would not have needed not show imminent harm under the draft provision, only that the plaintiff "reasonably expects" to suffer harm. This subjective standard, focused on the mind of the plaintiff rather than on a more objective look at whether harm is imminent, would have made this standard difficult to apply (and more difficult for defendants to address). Second, the standard for showing "harm" would also have been diminished: the ACES provision talks about harm "at risk of occurring" (again, no notion of imminence, no measure for the significance of that risk), and states that harm includes "incremental exacerbation" of risk associated with even a "small incremental emission of any air pollutant." A final change under the ACES provision would have been that the risk need not be widely shared. As a result, the ACES provision would not have just lowered the bar for harm allegations; it would have put the bar on the ground.
The bottom line is that the ACES citizen suit provision would have been problematic for business defendants. While the provision included some limitations (e.g., citizen suit plaintiffs would have had to demonstrate violations of emission standards), even minor violations of emission standards with no actual harm could have spurred a plaintiff, encouraged by attorneys with hopes of recovering fees, to seek abatement and damages. The ACES provision likely would have spawned significant additional litigation because of the elimination of the requirement to show imminent or actual harm, which would have removed what has historically been a significant hurdle in citizen suit actions.
Removal of "citizen suit" provisions eased passage of ACES
*Co-authored with Cyrus Frelinghuysen.
See also previous post: American Clean Energy and Security Act (H.R. 2454) passed by House.
Today, in what President Obama described as a “vote of historic proportions,” the House passed the American Clean Energy and Security Act (ACES). Given the slim margin with which ACES passed, it is important to note which controversial parts of the bill fell by the wayside to ensure its passage. In this case, one notable provision that was eliminated was the so-called “citizen suit” provision in the bill. Many environmental statutes contain citizen suit provisions, which empower citizens to bring lawsuits against either polluters for violations of environmental regulations or against the Administrator of the Environmental Protection Agency for failing to enforce environmental standards.
The citizen suit provision was set forth in Section 336 of the discussion draft version of ACES, and it would have given environmental groups and other activists standing under the Clean Air Act to “commence an action” when someone has “suffered, or reasonably expects to suffer, a harm attributable, in whole or in part, to a violation or failure to act referred to in subsection (a).” Harm under this section was defined as: “For purposes of this section, the term ‘harm’ includes any effect of air pollution (including climate change), currently occurring or at risk of occurring, and the incremental exacerbation of any such effect or risk that is associated with a small incremental emission of any air pollutant (including any greenhouse gas defined in Title VII), whether or not the risk is widely shared.”
The citizen suit provision in ACES generated significant controversy. A staff member in the office of Sen. Jim Inhofe (R-OK) had warned that the subsection could result in a flood of “lawsuits filed by environmental groups who perceive some risk—and they undoubtedly will perceive it” and that “this provision will further empower the eco-trial bar to fight the ravages of climate change and the businesses it dislikes, with no effect on the former and disastrous consequences for the latter.” However, supporters of the bill, such as the Center for Progressive Reform, offered a contrasting view, arguing that an “extremely positive aspect of the bill is its approach to citizen enforcement of the laws. In addition to government enforcement provisions, the bill includes strong citizen suit provisions. It reaffirms the importance of citizen enforcement of the environmental laws against both potential violators and agencies that have the responsibility to implement the regime. Citizens have traditionally had this enforcement power under the environmental laws, but it has recently been threatened by a series of judicial decisions. The Waxman-Markey bill responds to these judicial decisions and strives to ensure the vitality of citizen suits.”
Concerns about a “landslide of litigation” appear to have been behind the elimination of the citizen suit provision. In the Committee on Energy and Commerce’s Report on ACES, the Minority noted that: “If citizen suits are allowed to go forward against any person, it is likely that there would be a substantial amount of new climate change litigation brought against companies throughout the United States in all of the sectors of the economy regulated by the bill. While a windfall to lawyers, such litigation would impose significant costs and burdens on those companies in addition to the already enormous direct and indirect costs imposed by the bill. An amendment to limit citizen suits would prevent excessive or unwarranted litigation and protect US companies and ultimately US jobs and consumers.”
