Air Date: Week of October 3, 1997

The right to sue polluters has been granted citizen activists since 1970. But this provision, now included in most environmental law, is facing a challenge in the U.S. Supreme court. Great Lakes Radio Consortium’s Steve Frenkel reports.

Transcript

KNOY: In 1970 Congress gave citizens the right to sue violators of the Clean Air Act. Many saw the provision as recognition that the government lacked enough resources to enforce environmental laws on its own. Since then, citizens' power to sue polluters has been written into most environmental legislation. But the provision is now facing a challenge, and the US Supreme Court is set to weigh in on the matter. The Great Lakes Radio Consortium's Steve Frenkel reports on a case from Chicago that tests one of the citizen enforcement laws.

FRENKEL: The law is called the Emergency Planning and Community Right-to- Know Act, and it requires manufacturers to disclose the toxic chemicals they use and how much of the toxins they release into the environment. In Chicago a business called The Steel Company failed for 8 years to report that it uses hydrochloric acid to clean corroded steel. The company also failed to report that it released at least 14 tons of the toxin into the air for each of the 8 years. In vapor form hydrochloric acid can irritate the eyes and lungs and can cause bronchitis. The group Citizens for a Better Environment discovered the violation, and was preparing a lawsuit when The Steel Company filed the 8 years of delinquent reports all on one day. A series of appeals brought the case to the Supreme Court. Sanford Stein is representing The Steel Company before the High Court. He says since his client ultimately complied with the law, they can't be sued for punitive damages. Stein says his argument will hinge on the legal concept of injury.

STEIN: The Constitution of the United States does not permit private citizens to sue other private citizens to enforce the government's laws when there is no injury to themselves. Essentially, that's what's happened here. To the extent that there was an injury, because of the failure to file the forms, that injury was cured.

FRENKEL: But Stefan Noe, an attorney for the citizens' group, will argue The Steel Company did cause injury, because it withheld information that put public health at risk.

NOE: Perhaps a family, had they known that this company was the largest air releaser of hydrochloric acid in Chicago, might have put some pressure on them to reduce their releases. They may have moved out of the community, for example, if they chose to or were able to. But without that information, they could do none of those things. And therefore, they were injured.

FRENKEL: And Mr. Noe says, if the Supreme Court does not agree with that assessment, a wide range of environmental laws could be weakened.

NOE: If the Supreme Court were to rule in this case that citizens can't sue for civil penalties, in almost every other case, the Clean Air Act, the Clean Water Act, Superfund, you name it, citizens may not be able to sue for civil penalties. And it's entirely possible that the impact of that is going to be a dramatic increase in violations throughout this country of all our environmental laws.

FRENKEL: Ten years ago the Supreme Court limited citizens' right to sue for past violations of the Clean Water Act. In that case the Reagan Administration opposed the act's citizen enforcement provision. In the case now before the Court, the Clinton Administration is supporting the citizen group's right to bring suit. Richard Lazarus, a professor of environmental law at Georgetown University, says the White House is sending the Justices a message.

LAZARUS: That switch in size by the Federal Government may well make this court pause before making it even harder for citizens to bring suits in these cases, because the Federal Government is itself telling the court that it needs these kinds of citizen suits.

FRENKEL: The Supreme Court's decision in The Steel Company vs. Citizens for a Better Environment is expected by year's end. For Living on Earth, I'm Steve Frenkel in Chicago.