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April 26, 2000

Council opposes proposals to enable environmental 'citizen suits'

The Business Council is opposing two legislative proposals that would authorize so-called "citizens' suits" for various violations of various state environmental laws.

The Council's environmental committee is sponsoring a meeting at 11 a.m. Wednesday, May 3, at Council headquarters to discuss the bill and strategies for opposing it, said Ken Pokalsky, director of environmental and regulatory affairs for The Council. All Council members are welcome.

A citizen-suits proposal embodied in both Senate (S.7603/Spano) and Assembly (A.956-A/Brodsky) wills "will produce additional litigation but it will not significantly enhance environmental protection in New York," The Council said in a memorandum of opposition send to lawmakers.

The bill would enable any New Yorker to sue any party that the plaintiff believes has violated laws related to water and air pollution control, water resources, wetlands, solid and hazardous waste disposal, pesticides, and hazardous substance management programs.

Suits could begin after a 60-day notice to the state Department of Environmental Conservation (DEC). Courts would be authorized to issue declaratory and injunctive relief, and "impose such conditions . . . as are necessary to assure compliance."

Under the proposal, plaintiffs could recover their costs, even in instances where an alleged violation is settled with the state before the citizen suit is addressed in court.

Recent New York State data on federal citizen suits shows they "are mostly influenced by easily accessible data, or the ability to recover expenses, rather than the significance of possible environmental violations or the lack of effective state enforcement," The Council's legislative memo noted.

"Few cases are brought to address environmental issues that are not already being addressed, or that have already been addressed, by the Department of Environmental Conservation."

"These actions brought under federal citizen suit provisions have done little if anything to enhance environmental protection in New York State," the memo said. "Therefore, it is unclear why the state would pass legislation making it even easier to bring such cases. And there is little doubt that this is the intent."

Moreover, the memo noted, the proposal would eliminate significant safeguards found in federal statutes that protect against unwarranted suits. For example, it would allow plaintiffs to recover costs even if they do not win in court -- while sharply limiting defendants' ability to recover costs. And the proposal would allow citizen suits even in cases in which the DEC or the Attorney General has ruled that an alleged violation does not warrant enforcement.

Only eight states have broad-based citizen suit measures of the type proposed, and no new statutes have been enacted since 1983, Pokalsky noted. "With the expansion of state-level enforcement programs over the past two decades, the original justifications for broad citizen suit provisions have become far less persuasive," he said.