June 21, 2023

Scott Strand

At Risk: Citizen Suits and the Doctrine of Standing

A federal court in Texas could make it harder for Americans across the country to enforce environmental laws. Here’s what that means for the Midwest.

The very conservative U.S. Court of Appeals for the Fifth Circuit is considering a case out of Texas that could seriously curtail the ability of individual citizens and environmental organizations like ELPC to go to court to enforce our core environmental laws.  The case is called Environmental Texas Citizen Lobby v. ExxonMobil and a decision is expected in the next few weeks.

What is an environmental “citizen suit”?

Back in the 1970’s, when Congress passed our modern environmental laws, it gave the main enforcement responsibility to public agencies. Primarily, that meant the newly created Environmental Protection Agency (EPA) and state-level EPAs with delegated authority, like the Illinois EPA or the Minnesota Pollution Control Agency (MPCA). However, leadership changes with each election, and administrations may vary in their ability and willingness to enforce the law. Recognizing that, Congress created the concept of the “citizen suit.”

“Any citizen” has the right to sue an alleged polluter in federal court for violations of the law

Under the Clean Air Act, the Clean Water Act, the Resources Conservation and Recovery Act, the Safe Drinking Water Act, the Endangered Species Act, and so on, “any citizen” has the right to sue an alleged polluter in federal court for violations of the law, and to seek injunctions, civil penalties, and attorney’s fees. Those citizens have to give the relevant agencies 60 days advance notice of their intent to sue, and the agencies can “overfile” and bring their own enforcement cases, but citizens have the right to participate as full parties.

For ELPC and our allies, environmental citizen suits have been a critical tool to make enforcement of our environmental laws a reality, and to hold the agencies accountable. Too often, the agencies don’t have the resources or, frankly, much interest in taking effective enforcement actions. Citizen suit provisions give us the ability to step into the shoes of an agency that will not act, or whose actions are hopelessly inadequate.

What is standing? And why is it so contentious?

Not surprisingly, many conservative judges and academics don’t like citizen suits much, nor do they support the broader concept of “private attorneys general,” that citizens should be able to go to court to enforce the laws when the government won’t or can’t. One of the ways that conservative courts have sought to limit citizen suits, is through the doctrine of standing.

Standing is the idea that only parties who have been injured in fact, whose injuries are fairly traceable to a defendant’s alleged violations of law, and whose injuries may be redressed by a favorable ruling are entitled to go to court. Parties who only have a general interest in seeing that the laws are enforced, no different than any other citizen, are barred from litigation, and their cases will be dismissed.

Before the consumer and environmental laws were passed in the 1970’s, the assumption was that Congress had the authority to decide who would have standing to go to court. But relatively quickly, the U.S. Supreme Court began insisting that standing was a constitutional requirement, that a case brought by a plaintiff without standing was not a legitimate “case” or “controversy” under Article III of the U.S. Constitution. And so, for the past fifty years, part of putting together an environmental citizen suit has been to identify organization members who can meet the injury-in-fact, traceability, and redressability requirements the Court says the Constitution requires.

Affidavits from individual members who live, work, or play near a polluting facility who were suffering, or had reason to fear, health or other adverse outcomes were usually enough to get into court.

The difficulty of meeting those requirements has fluctuated over time, as the composition of the U.S. Supreme Court has changed. For a long time, affidavits from individual members who live, work, or play near a polluting facility who were suffering, or had reason to fear, health or other adverse outcomes were usually enough to get into court. Once the standing hurdle was overcome, then the courts would allow citizen plaintiffs to use the pollution monitoring reports permitted facilities have to provide the agencies to prove up violations, and secure injunctions and often civil penalties based on “days of violation.”

The statutes typically provide for maximum civil penalties of something like $37,500 per violation day, and that can lead to substantial penalty awards, particularly when a polluter has reaped a significant economic benefit from noncompliance.

What’s going on in Texas?

Now there is a case pending in the U.S. Court of Appeals for the Fifth Circuit that threatens the viability of many of these kinds of cases. The case involves ExxonMobil’s gigantic complex of oil refineries and chemical plants in Baytown, Texas. Over an eight-year period, from 2005 to 2013, ExxonMobil’s own records showed 16,386 separate days of Clean Air Act violations.

ExxonMobil’s own records showed 16,386 separate days of Clean Air Act violations.

After the Texas Commission on Environmental Quality (TCEQ) declined to take any serious action, Environment Texas Citizen Lobby and the Sierra Club filed a citizen suit seeking the maximum statutory penalty for each violation day. Eventually, the district court imposed a $20 million penalty, one of the largest civil penalties ever awarded in a Clean Air Act citizen suit, and that decision was affirmed by a divided panel of the Fifth Circuit.

ExxonMobil never denied any of the violations, but it contended that civil penalties could only be based on days when individuals could show that they had in fact been injured by excessive emissions by particular pollutants from the plants that day. The plaintiffs’ testifying members had said that they:

• suffered various breathing difficulties and other physical symptoms,
• feared for their health,
• saw and smelled the pollution from Exxon’s plants,
• worried about the risk of explosions,
• curtailed their outdoor activities,
• and, in some cases, even changed their residences.

They were able to directly correlate those experiences to several specific reportable events, but the plantiffs did not offer member testimony to tie injuries-in-fact to every single one of those 16,386 violation days.

Initially, the district court and the Fifth Circuit panel found that testimony sufficient to establish standing under the prevailing case law. But now the full Fifth Circuit is being asked to overrule several older cases, and instead to adopt a rule that, as a matter of constitutional law, plaintiffs can only secure civil penalties for those violation days where they can directly tie their precise injuries to emissions on those particular days.

How would new standing requirements impact environmental law?

If the Fifth Circuit agrees with ExxonMobil, it would have widespread ramifications for cases across the country. Instead of citizen suits being understood as a public law enforcement mechanism, with civil penalties payable to the government available as a deterrent, ExxonMobil wants to turn these cases into the equivalent of individual common-law nuisance suits for damages. If ExxonMobil prevails, that would limit potential civil penalties to a trivial amount, and would eliminate any deterrent effect.

If ExxonMobil prevails, that would limit potential civil penalties to a trivial amount, and would eliminate any deterrent effect.

ExxonMobil claims this is what the constitution requires. Underneath that claim, however, is the even broader argument that citizen suits seeking civil penalties are an improper usurpation of executive branch authority, and violate the separation of powers. That is the view once articulated by Justice Scalia, before he was elevated to the Supreme Court, in an influential law review article.

Scalia’s argument was that, while regulated parties always had standing to challenge regulations because of their financial interests, those who were supposed to benefit from regulations should have no access to the courts but should have to rely on the agencies given primary enforcement responsibility. The idea is that private citizens are not democratically accountable and need not consider the broader public interest. Only the agencies can meet that test. Scalia recognized that his theory would mean that a lot of regulations might go unenforced and important legislative purposes could be thwarted, but he considered that a feature, not a bug.

Justice Scalia was never bashful about his contempt for public-interest law firms or for environmental protection, both of which he saw as creating unfortunate and unconstitutional judicial meddling with the prerogatives of business.

What are the odds that this happens?

Unfortunately, the Fifth Circuit, as currently composed, has proven itself quite willing to disregard or overrule precedent to accomplish its desired ends. And the U.S. Supreme Court currently has a majority with a demonstrated hostility to regulation and the administrative state that might well seize the opportunity to use the Constitution to hamstring consumer and environmental law enforcement.

Unfortunately, the Fifth Circuit, as currently composed, has proven itself quite willing to disregard or overrule precedent to accomplish its desired ends.

The current majority believes Congress cannot create any citizen causes of action unless they are analogous to traditional common-law claims that would have been recognized in the late 1700’s. Of course, it isn’t that the Court is supportive of agency activities either. The invention of the “major questions” doctrine in the past couple of years to take away or at least curtail the government’s ability to protect workers from Covid-19 infections or to regulate power plant greenhouse gas emissions or to take any other significant action without a specific-enough grant of authority from Congress is one example. Making the standing hurdle so high that few can get over it, at least in consumer and environment cases, might be the next.

What’s next for this case?

Again, the Fifth Circuit case is called Environment Texas Citizen Lobby v. ExxonMobil. ELPC has joined an amicus brief in support of the district court and earlier panel decision, and the US Department of Justice has filed an amicus in support as well. On the other side is the usual litany of industry organizations, led by the American Chemistry Council and the National Association of Manufacturers, supporting ExxonMobil’s position.

The en banc Fifth Circuit heard the case on May 16, 2023. There was no indication of when the Court would rule. It is quite possible the Fifth Circuit will take a course in conflict with other Circuits, which may increase the odds of a Supreme Court skeptical of citizen suits across the board taking the case.

Whatever the result, ELPC will continue to fight for safer communities, cleaner air and water, and a healthy Midwest, using every legal tool available.