One of the key innovations of the 1970s regulatory environmental revolution was the provision for citizen enforcement of regulatory standards. This innovation upset the previous bipolar regulatory model, which was a two-way negotiation between the regulated industries and the (often captive) regulatory agencies. By removing agency enforcement discretion as a means of underenforcing statutory norms, the citizens suit brought a new constituency to the regulatory bargaining table. The citizen suit had the intended effect of implementing a regime of full enforcement of the new environmental norms.
But the revolutionary effect of the newly minted citizen suit was not limited to full enforcement of environmental norms. By allowing environmental interests to bypass the agency regulatory process and proceed directly to court to enforce statutory standards, the citizen suit allowed citizens to play a primary role in the development of environmental jurisprudence, bypassing the administrative rulemaking process and resulting judicial deference to agency interpretations. In a radical shift from the classic administrative law model, where the responsible agency answered questions of first impression and review of its answers was highly deferential, the citizen suit provided nongovernmental organizations to opportunity to develop their own interpretations of the environmental norms and test these interpretations in enforcement actions in the courts as a matter of first impression. Citizen enforcers thus necessarily took on the role of citizen regulators as well, developing interpretations of statutory standards and enforcing these citizen-generated interpretations directly against violators before judges untainted by regulatory accommodations negotiated in a prior rulemaking process.
This article examines the role of citizen enforcement litigation in the development of the Clean Water Act law and implementation of the Clean Water Act regulatory scheme. The essay will focus on four examples where citizen enforcement litigation under the Clean Water Act had the effect of initiating the regulatory process, drawing responses from both EPA and the Congress. These case studies will include enforcement litigation brought against underenforced Clean Water Act regulation of pesticide application, water transfers, land application of CAFO wastes, and sport shooting ranges.
Karl S. Coplan, Citizen Litigants Citizen Regulators: Four Cases Where Citizen Suits Drove Development of Clean Water Law, 25 Colo. Nat. Resources, Energy & Envtl. L. Rev. 61 (2014), http://digitalcommons.pace.edu/lawfaculty/934/.