Top 10 State and Local Environmental Solutions

10. Be a plaintiff. Sometimes, the best way to protect the environment is not by passing a new law, but by enforcing the statutory and common law provisions that already exist. State and local prosecutors can sue violators of federal, state, and local environmental law, and can use old-fashioned nuisance suits to stop environmental harms.

Why state and municipal lawsuits are federalism issues:
Significance:
Lawsuits have always been critical for enforcement of environmental standards. Some violators will only be deterred by lawsuits. Suits also allow governments to recover the costs cleaning up after polluters. Finally, lawsuits are also ways for one level of government to make up for lax enforcement by another level of government, or to prod another level into paying more attention to a particular problem.

State and local role:
State and local governments are uniquely suited to protect the environment through nuisance suits. Nuisance law is part of the common law, which is usually state law. New Hampshire is using state common and statutory law provisions to compel the manufacturers of the fuel additive MTBE to clean up the chemical after it leaked into groundwater in the state. The New Hampshire attorney general's case against MTBE manufacturers is currently pending in New Hampshire state court.

Probably the most innovative and far-reaching use of common law is the suit filed by the Attorneys General of Connecticut, New York, California, Iowa, New Jersey, Rhode Island, Vermont, and Wisconsin, charging that six companies operating power plants throughout the country are contributing to global warming through their carbon dioxide emissions, and creating a public nuisance under federal and state common law. This suit is not proceeding under the Clean Air Act, which is the usual tool to force power plants to clean up their emissions, because the federal Environmental Protection Agency has declared that carbon dioxide is not a pollutant under the Act. In September 2005 a federal district court judge dismissed the suit, but the attorneys general have vowed to appeal.
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In the last several years, attorneys general have been more aggressive about suing the federal government to force it to live up to its own laws. For example, in 1999, a coalition of state attorneys general sued Midwestern power plants for not complying with provisions of the Clean Air Act when they updated their plants. North Carolina's Attorney General Roy Cooper announced an intent to sue the Tennessee Valley Authority under the same theory in late 2004. In these cases, state authorities were stepping in where they thought that the federal EPA had not done enough to protect their citizens.

Recently, several state AGs have sued the Department of Housing and Urban Development for failing to comply with federal law that seeks to minimize the use of pesticides in public housing and promote the use of methods that are less toxic to people. New Jersey and other states are suing the EPA over its new rule aimed at reducing mercury emissions from power plants; the states say the rule is inadequate. California, New Mexico and Oregon state officials are suing the Bush administration over its 2005 repeal of a rule outlawing road-building on national forest lands. A copy of their complaint is available in PDF format here.

Most state attorney generals' offices have special divisions dedicated to environmental law enforcement. New York, Massachusetts, and Wisconsin have useful websites explaining the work of their environmental law divisions.

Some local governments have also created special environmental crimes divisions within their county attorney or district attorney's offices. Examples are the Los Angeles County District Attorney's Environmental Crimes Unit (see an article with a detailed overview of the unit here), and Westchester County, New York's environmental crimes bureau.

Critical resources:
Useful information about state attorneys general, who have over the last several years become aggressive enforcers of federal and state environmental laws, can be found here and here. An interesting law review article explains why the nuisance law theory that the state AGs are using in their global warming lawsuit is well suited for this kind of action.

An article by Peter Lehner in the Stanford Environmental Law Journal (12 Stanford Environmental Law Journal 50), explains why municipalities are also well positioned to use lawsuits to safeguard the water their residents drink, the air they breathe, and the parks, beaches, and public amenities they enjoy. "Local governments have great incentive to act, knowledge about which of the numerous local violators present the greatest threat, flexibility to pursue those violators under a variety of laws, and the ability to respond quickly." Moreover, as it has become harder for individuals to have standing to sue in environmental cases, municipalities, Lehner points out, can make a very strong case as to how pollution harms them directly.

A Slate article by Chris Mooney provides an overview of three pending global warming lawsuits and concludes, "In court, at least, political inaction on global warming plays in the environmentalists' favor. If climate change continues unabated, a winning lawsuit may be only a matter of time."

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If you know of other state and local governments pursuing similar policies, or different policies to reach the same goal, please let us know by sending an email to redefiningfederalism@communityrights.org.

To read about how federalism concerns are playing out in the debate about policy responses to global warming, please visit our blog, www.warminglaw.com

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