The Business Council opposes A.3423/S.1635, which would confer standing on private citizens to bring suits in response to alleged violations of the environmental quality review provisions of the Environmental Conservation Law.
Our primary opposition to this legislation is that it will encourage additional litigation without significantly enhancing environmental protection in New York.
Looking at recent experience in New York, citizen suit filings are mostly influenced by easily accessible data, or the ability to recover legal costs, rather than the significance of possible environmental violations, or the lack of effective state enforcement. Few cases are brought to address environmental issues that are not already being addressed, or that have already been addressed, through actions by the Department of Environmental Conservation.
Specifically, the majority of federal citizen suit notices filed in New York in recent years have been brought under the Clean Water Act (CWA) and the Resource Conservation and Recovery Act (or RCRA, the federal waste management statute.)
The CWA has been the most common basis for citizen suits over the years, simply because of the public accessibility of discharge monitoring reports filed by SPDES permit holders, rather than the lack of compliance oversight or effective enforcement within the state's wastewater permitting program. Most of these CWA suits address discharge issues that have been, or are currently being, addressed by the DEC.
Over the past several years, the citizen suit provisions of RCRA have increasingly been used to facilitate the recovery of attorney's fees in site cleanup actions, in large part due to court-imposed restrictions on such cost recoveries under the CERCLA — the federal "superfund" law.
The bottom line is that these actions brought under federal citizen suit provisions have done little if anything to enhance environmental protection in New York State. Therefore, it is unclear why the state would pass legislation making it even easier to bring such cases. As a result of these provisions, The Business Council believes that A.3423/S.1635 would result in more meritless suits, and more suits regarding insignificant violations, but no real improvements in environmental quality.
In addition to these concerns, it is important to consider the availability of relief under Federal citizen suit provisions in assessing the appropriateness of A.3423/s.1635.
Citizen suits can presently be brought in the absence of additional New York State legislation in many situations. A private party is able to employ existing Federal citizen suit provisions against alleged violations of Federal law, and in many cases can use Federal citizen suit provisions against alleged violations of New York State permits and regulations which are developed pursuant to Federal statutes and/or related to Federal programs that have been delegated to the state.
For the reasons discussed above, The Business Council strongly recommends that A.3423/S.1635 not be approved.