Using Environmental Citizen Suits to Maximize Business Opportunities
June 18, 2012
James Brusslan, leader of the firm's Environmental Law Service Group, wrote an article, "Using Environmental Citizen Suits to Maximize Business Opportunities," that was recently published by ExecSense. In the article, James explains how to use environmental citizen suits to maximize business opportunities and profits. Filing citizen suits to require compliance with environmental laws can benefit not only environmental groups but also corporations and other private parties.
Steps to Filing Citizen Suits
Identify the Opportunity- In order to identify the possibility of an environmental citizen suit it is important to understand clients' business, and discuss with clients all potential environmental issues that may be impeding their success.
Conduct Extensive Research as to Environmental Harm/Violations- Once the opportunity to address an environmental concern has been identified- for instance, a nearby company that appears to be creating an environmental endangerment, or a competitor selling similar products at lower prices- it is essential to perform extensive research as to whether a citizen suit against the target of the investigation is viable.
Insure Standing to File Suit- While most federal statutes allow any citizen to sue to abate violations, in order to file a federal lawsuit under Article III of the U.S. Constitution, there must be a "case or controversy arising under the laws of the United States." The best way that a citizen can meet the standing requirement is to establish that as a result of pollution caused by defendant, the citizen is suffering environmental harm, which, if remediated, will alleviate such harm.
Hire Competent Experts- Unless the violation (and harm) is clearly established by defendant's own records, environmental citizen suits often turn on the quality of the expert witnesses. Unfortunately for citizen plaintiffs, many highly-qualified environmental engineers that verse as experts have historically worked for corporations on the defense side of environmental enforcement actions.
Draft Notice of Intent to Sue, if Necessary- Most federal environmental statutes require the plaintiff to provide a letter of intent to sue to defendants and the government at least 60-days before filing suit.
Prepare for Vigorous Procedural Defenses- Historically, most defendants tried to settle citizen complaints before a lawsuit was filed. In recent years, due perhaps to the increase in environmental citizen suits, defendants in environmental citizen suit actions have begun to mount vigorous defenses. An environmental citizen plaintiff now should expect a fight, at least early as litigation.
Draft Complaint- Once the environmental citizen plaintiff has determined that is has a valid cause of action, has considered possible defenses to the claims and is determined to proceed with the action, the attorney should draft a complaint.
File Suit and Begin Litigation- Before Filing suit, the environmental citizen suit attorney should make sure that the required notice period has expired and that the government has not filed an identical suit. Checking court filings has become simple, as filings are now updated almost daily by federal and many state courts. Assuming that settlement negotiations, if any, have been fruitless, it is time to file suit.
Be Reasonable in Settlement- One an environmental citizen suit has survived the first round of motions, assuming that the cause of action has merit, defendants likely will be serious about entering into a reasonable settlement. As with any settlement, the parties should be fair in their expectations.
When Settlement Fails, Litigate- As with most litigation, citizen suit litigation is expensive. Give the technical subject matter, environmental cases are complicated and often draw the ire of judges. Nonetheless, if the client has the means and the case is strong, there are upsides to trying an environmental citizen suit.
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