Summary of Environmental Law in the United States

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6 Public Participation

 

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6.1 Participation in Law-Making

 

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Citizens have a broad range of avenues for participating in lawmaking. Some of these, like the right to vote, freedom of association, freedom of speech, and the right to petition the government, are explicitly protected by the Constitution. Others, such as the right to attend open meetings of government commissions or to be given notice and opportunity for a hearing, are protected by statute, albeit often as a means of implementing constitutional guarantees. Several formal procedures for participation in lawmaking, including participation in notice-and-comment rulemaking and citizen initiatives, are discussed below. Also important are informal methods of participation, such as writing or calling elected officials, attending public hearings, commenting on agency rules, or lobbying on specific legislation.

Notice and Comment Rulemaking

The Administrative Procedure Act (APA) governs federal agencies when they issue rules, make adjudications, or provide other opinions and guidelines. Under the APA, any agency decision that sets binding obligations or standards for a class of people is a "rule." Rulemaking is particularly important in technical areas, such as environmental law, where the Congress has historically delegated broad discretion to the agencies for implementing statutes. Although there are some limited exceptions, most administrative rules go through a process known as notice and comment rulemaking. Before issuing a rule, the agency must issue a notice of proposed rulemaking in the Federal Register. This notice must describe the proposed rule, and the public is then provided with at least 30 days to submit comments. After receiving the public comments, the agency can issue a final rule along with a general statement describing the rule's authority and purpose. The agency is required to consider all non-frivolous comments. Agencies will often respond to the comments in issuing the final rule. Rules made by regulatory agencies have the force and effect of legislation. Any interested party that participates in the rulemaking can appeal the legality of the rule to a court. See Section 1.4: Sources and Hierarchy of Law; and, Section 1.7: Role of the Courts.

Citizen Initiatives

Unlike the federal government, some states allow citizens to by-pass the legislatures by voting directly on initiatives. To get a specific initiative on the election ballot requires that organizers collect a minimum number of signatures of eligible voters. Other states have initiatives that simply force the legislators to vote on an issue, typically if enough petitions are signed.

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6.2 Participation in Implementation and Enforcement

 

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Permitting

Most environmental statutes provide the public certain specific rights to participate in permitting procedures. For example, the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. sec. 6974(b), requires that notice of any proposed permit be published in a local newspaper and that the public be allowed to comment and attend a public hearing.

Consent Orders and Settlements

Several environmental statutes provide explicit procedures for allowing the public to review and comment on settlements of a dispute that could affect public health. For example, the public must be informed and provided an opportunity to comment on settlements under the RCRA imminent hazard provisions. 42 U.S.C. sec. 6973(d).

Citizen Suit

Most of the federal environmental laws also specifically empower citizens to bring a civil action to enforce compliance with the statute. Such citizen suit provisions occur in: the Clean Water Act (CWA), 33 U.S.C. sec. 1365; the Safe Drinking Water Act (SDWA), 42 U.S.C. sec. 300j-8; the Clean Air Act (CAA)42 U.S.C. sec. 7604; the RCRA, 42 U.S.C. sec. 6972; and the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), 42 U.S.C. sec. 9659. These citizen suits typically allow actions against both private violators of the act and government agencies that have failed to perform their non-discretionary duties. Such citizen suits cannot be brought without first providing 60-day notice to the defendant. Private Superfund suits, asserting violations of CERCLA, are not permitted to be brought against states in federal court. In addition, a suit cannot be brought if EPA or a state is already diligently prosecuting a civil action. Under most statutes, penalties received through citizen suits go to the United States Treasury. However, under the CAA, penalties may be either earmarked for compliance and enforcement activities or applied to "mitigation projects" designed to protect public health or the environment. 42 U.S.C. sec. 7604. In most citizen suit provisions, the court will have discretion to award attorneys' fees to any prevailing party. Moreover, any prevailing party in a suit brought by or against the United States can receive reasonable attorneys' fees under the Equal Access to Justice Act, 28 U.S.C. sec. 2412.

Citizen Petitions

Under the Administrative Procedures Act, citizens are given the right to petition for agency action. Some federal environmental statutes, however, provide specific language detailing citizen rights to petition pursuant to that particular statute. Under the Toxic Substances Control Act (TSCA), for example, citizens can petition EPA to issue a rule regulating a specific chemical. 15 U.S.C. sec. 2619. EPA must grant or deny the petition within 90 days. The petitioner can Seek judicial review of any denial of the petition. RCRA is another example; it specifically allows any person to petition EPA to promulgate, amend, or expel any regulation. 42 U.S.C. sec. 6974.

Judicial Review of Agency Action

Many federal environmental statutes specifically provide citizens the right to Seek judicial review of agency actions under the statute. See, e.g., CAA, 42 U.S.C. sec. 7607; RCRA, 42 U.S.C. sec. 6976; and Toxic Substances Control Act (TSCA), 15 U.S.C. sec. 2618. In the absence of any specific statutory review procedures, the Administrative Procedures Act grants citizens a general right of judicial review of any final agency action adversely affecting them. See Section 1.7: Role of Courts.

Citizen Enforcement of State Law

Some state environmental statutes also provide citizens with the right to bring an action to enforce or implement environmental laws. One of the strongest is Michigan's Environmental Protection Act, Mich. Stat. Ann. secs. 14.528 (201)-(207), which allows any person to sue any other person for an injunction to protect the environment. Common law claims for nuisance, tort, trespass, or strict liability also provide an important method for citizens to enforce general standards. See Section 4.2. Many federal statutory citizen suit provisions explicitly preserve citizen rights to sue under state or common law. See Section 1.3: Subnational Governments.

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2003