Private enforcement—the practice of allowing private actors to directly enforce statutes or regulations—has been a fixture of environmental law for the last fifty years. In the absence of comprehensive climate legislation, climate change has been brought under the fold of the environmental regime and its emphasis on private enforcement. Yet climate change presents a distinct global challenge from those harms that the 1970s environmental regime was designed to address. This Article investigates how private enforcement is limiting our ability to respond to the crisis of climate change. The central claim is that private enforcers are using the mantle of environmental protection to prioritize private interests in ways that are paradoxically exacerbating climate problems, deepening inequality, and placing a disproportionate burden on those with the least voice.
In advancing this claim, this Article makes three main contributions. First, I show how the political foundations of private enforcement in environmental law grew out of an era of crisis and were based on a widespread distrust of government. Second, I challenge the traditional rationale that private enforcers provide a powerful check on the influence of special interests and ideology in government. I argue that while private enforcers take on a range of actions related to environmental protection and climate change mitigation, private enforcement also operates as a largely unchecked form of special interest whose priorities serve to deepen the climate crisis. This reinforces not just particular interests but particular visions of environmentalism that are often at odds with the broader public interest in tackling climate change. This failure of private enforcement suggests the need to reexamine the ways in which private and public enforcement serve, or fail to serve, as checks upon the other. As a third contribution, I consider the benefits and drawbacks of potential prescriptions to address this particular failure of private enforcement.
Introduction
In 1989, Maryland began exploring options to expand mass transit for residents of Montgomery County and Prince George’s County to commute around Washington, D.C.1 Years of planning determined that a “Purple Line” light rail would provide faster and more reliable East-West transit connections to major activity centers and employment. At the time, the only public transit option in that corridor was an unreliable network of buses running on congested roads and highways. Not only would the project improve the work commute for thousands by replacing long bus rides, but the light rail would also reduce traffic congestion. An environmental impact review stated that the decreased congestion would improve air quality and curb greenhouse gas emissions, and that any adverse environmental impacts would be minimal.2 Initial estimates projected the light rail to cost $1.93 billion and take nine years to complete.3
For years, residents of Chevy Chase, Maryland, a wealthy D.C. suburb through which the Purple Line would pass, voiced their opposition to the project. During a town hall meeting in 2007, a resident argued that the project was “trying to solve the problem of the people out in Silver Spring and P.G. County . . . . And we live here. We have to live with this thing . . . and I see it simply as a nuisance, more than a nuisance. I see it as a very negative thing for our town.”4 In 2014, a nonprofit made up of Chevy Chase residents sued, arguing the environmental review was deficient and that, in fact, the project would destroy the habitat of a transparent, microscopic invertebrate known as an amphipod.5 Upon this allegation, a judge enjoined the project until scientists could assess the impact on the amphipod. Yet, after additional scientific analysis and agency coordination, no evidence could be found that any such amphipod existed in the region.6 Over the next several years, the nonprofit sued twice more, raising various new claims ranging from the legality of the project’s funding to the validity of a wetlands analysis.7 Ultimately, this project remains under construction, years over deadline, and with an extra cost of nearly $4 billion.8 Similar stories have been playing out for decades in urban and rural places across the country.
Public transportation, clean energy infrastructure, and urban housing are critical components of federal, state, and local government responses to climate change. Large-scale implementation of these types of climate-mitigating projects is urgently needed and long overdue. As the latest Intergovernmental Panel on Climate Change (IPCC) report makes clear, action must proceed on an accelerated time scale to avoid the worst effects of climate change and minimize compounding the effects of past impacts.9 Despite significant public support for climate action,10 one main obstacle to achieving these goals is the public itself. Rather than taking action that supports climate change, the environmental rules and regulations that govern these projects are often “weaponized” by private citizen enforcers to advance narrowly motivated interests that interfere with climate action.11 The same laws that so successfully tackled the pollution and public health woes of the 1970s are frustrating attempts to address today’s environmental and social ills. They are also deepening a crisis that disproportionately burdens socioeconomically disadvantaged communities, which often lack the necessary resources to challenge federal action.
The United States has a long tradition of relying on private enforcement. Since the 1800s, Congress has taken a decentralized approach to regulatory enforcement in many sectors, authorizing citizens to protect underlying rights and statutory goals.12 The early- and mid-twentieth century saw several major regulatory shifts during the New Deal era with Congress further vesting enforcement power in private citizens.13 The most recent period of major regulatory reform came in the 1960s and 1970s in response to more than a decade of social unrest and protest against massive industrial pollution and the racialized impacts of urban redevelopment during the mid-century that resulted from both federal action and inaction.14 Across many domains of public law, including antitrust, civil rights, and employment, Congress empowered citizens to enforce the new public regulatory regime. More than simply aiding the government, this legislation “empowered citizens with institutional tools to translate preferences into government outcomes.”15 In authorizing private enforcement for environmental regulation, Congress sought to “spur and supplement” citizen participation in the regulatory system through a series of incentives.16 “[T]he ‘citizen suit’ clauses found in . . . [these] environmental statute[s] . . . were explicitly justified as a mechanism that would deputize ‘private attorneys general’ to assist the Environmental Protection Agency (‘EPA’) and other federal agencies in the enforcement of environmental regulations.”17 Thus, a central feature of nearly every major environmental law was the recognition that citizens could and should play a vital role in supporting the government’s police power to regulate private activities “that adversely affect[ed] public health and welfare” through their “impact . . . on the natural environment.”18
In a 1970 address to Congress shortly after ushering in an “environmental era,” President Nixon invoked an ideal vision of shared governance:
The task of cleaning up our environment calls for a total mobilization by all of us. It involves governments at every level; it requires the help of every citizen. It cannot be a matter of simply sitting back and blaming someone else. Neither is it one to be left to a few hundred leaders. Rather, it presents us with one of those rare situations in which each individual everywhere has an opportunity to make a special contribution to his country as well as his community.19
Over the next several decades, private enforcement would evolve into a powerful regulatory tool due to a confluence of factors, including distrust of centralized government,20 growth of public interest organizations,21 and judicial decisions that expanded citizen standing and judicial review over executive agency action.22 Today, private enforcers are a fixture in the environmental regulatory process at the federal and state levels.
President Nixon’s ideal theory of democratic mobilization to address environmental harm by holding polluters and the government accountable is both laudable and rife with complexity. Indeed, scholars, reformers, and legislators have celebrated citizen enforcement as instrumental in fulfilling the mission of the modern environmental regime.23 But private enforcement can also come at the expense of the public’s interest in a clean, healthy environment. For instance, the results of private lawsuits to enforce the National Environmental Policy Act of 1969 (NEPA) in the climate context are more mixed. On the one hand, citizen suits have successfully supported the goal of climate mitigation by, for instance, blocking oil and gas leases, at least temporarily, and contributing to efforts to halt further development of oil and gas infrastructure, such as the Keystone Pipeline.24 But in other arenas where the transition to a new energy future is most urgent, private enforcement is having a paradoxical effect of hamstringing efforts to address climate change. Despite the urgent public interest in climate change action, private actors are using the cloak of environmental protection to resist projects that would form the infrastructure of a clean energy future for mitigating greenhouse gas emissions. A similar dynamic plays out at the state level where powerful NEPA corollary statutes similarly empower citizens to enforce the law, to both the benefit and detriment of climate goals.25
This use of citizen suits could limit the effect of historic multi-billion-dollar climate-related initiatives at the federal level26 and in some key states.27 The recently passed Inflation Reduction Act of 2022 (IRA) invests nearly $370 billion in energy security and climate change programs, building on the earlier proposed “generational”28 trillion-dollar federal infrastructure bill, an ambitious congressional effort known as the Build Back Better plan.29 These initiatives aim to mitigate the worst effects of climate change by modernizing the nation’s electric grid; investing in clean energy infrastructure and public railways and transportation projects, like Amtrak; and fortifying natural disaster response, particularly in vulnerable communities.30 Because climate change compounds and its effects worsen the longer greenhouse gas reductions and mitigation efforts are delayed, constructing alternative clean energy infrastructure in a timely manner is critical.31 As in the example of the Purple Line, citizen suits risk creating fatal delays and other obstacles to implementation.
Although citizen suits have been the topic of scholarly debate for decades, and the modern Supreme Court has grown skeptical of such suits as an enforcement tool, there has been little systematic legal discussion about the role of private claims in mitigating climate change and its effects through enforcement of existing statutes.32 This Article seeks to fill that gap. The traditional rationales for private enforcement—that private enforcement supplements and thus conserves limited government resources, protects against lax enforcement and the effects of regulatory capture, and enhances innovation and democratic participation33—are compelling in other contexts. I argue, however, that private enforcement in the context of NEPA claims is producing failures in our collective ability to address climate change by enabling suits that exacerbate the environmental problem the projects are intended to solve. As such, private enforcement reinforces existing patterns of participation and unequally distributes climate impacts, which have significant political, social, and environmental consequences. As one solution, I propose an agency gatekeeper. Agency gatekeepers can play a valuable role in environmental citizen suits in the climate era, but not for some of the reasons that are traditionally advanced related to overenforcement. Rather, I argue that agency gatekeepers are better suited to manage this task because they can mediate among competing interests brought by private enforcers through the lens of the public interest and climate change. More specifically, they can weigh the pros and cons across a range of issue areas in a way that legislation and the courts cannot provide. I advance this claim in four steps.
In Part I, I frame this problem within the current private enforcement literature focusing on the primary arguments in favor of and against citizen suits.
In Part II, I situate private environmental enforcement in an era of environmental reform and distrust—both public distrust of the government and congressional distrust of the executive. Citizen suit provisions aim to mobilize interested citizens as checks against executive power and to aid the executive in carrying out the law in the public interest, a task that neither the public nor Congress trusted the executive to discharge. Congress thus designed the private enforcement structure not only to address pollution but also to ensure the government remained accountable. As the environmental regime took shape, significant progress was made to control the problems it was designed to solve, namely, pollution. While the regime was built in some ways to expand as new problems emerged,34 the phenomenon of climate change has posed a distinct environmental challenge. While known to some scientists at the time, its urgency and concrete human effects would take decades to emerge.
In Part III, I show how the primary arguments in favor of private enforcement fail in scenarios in which climate is an overriding public concern. One such argument, stemming from the concern for public accountability, is that private enforcement provides a backstop against lax government action and prevents regulatory capture. Yet what has evolved is a form of procedural capture by a private regulator who can claim the mantle of social and environmental protection—and may have more parochial environmental concerns at heart—but whose actions instead are leading to environmental degradation. This turns the literature on its head. That citizen enforcers can employ environmental law to block urgent climate action reveals a paradoxical quality of the private enforcement regime. While agency enforcers must prioritize actions in line with long-term, sometimes competing, regulatory objectives, private enforcers are not so bound.35 This Part reveals that while public enforcers are subject to political currents and capture in the conventional sense, these are important limitations to private enforcement as well.
Part IV explores a set of prescriptions to address the particular aspects of private enforcement that are constraining well-designed climate change mitigation policies. I first examine the benefits and drawbacks of technical solutions to bypass citizen participation for projects intended to have a climate benefit through streamlining. Second, I propose to apply a form of agency gatekeeping to NEPA. The gatekeeper could limit private enforcement action to those activities that provide the greatest environmental and societal benefit. Moreover, as an accountability mechanism, the agency gatekeeper could also improve the nature of private enforcement as a more equitable, distributive, and democracy-enhancing tool.
Climate change is outpacing our capacity to respond to it on a daily basis. This project unveils private action as a deeply entrenched issue at the heart of our ability to react effectively to climate change. The effects of environmental private enforcement throw into relief current questions about the role and balance of public versus private power in the United States. These questions are central to our system of government and current debates about democracy and how we value, protect, and improve our democracy. The way in which these debates play out in the environmental and climate sphere is emblematic of these broader debates.
While this project focuses primarily on private environmental enforcement at the federal level, this dynamic, the relative balance of public and private power to address issues of social and environmental concern, is occurring at state and local levels as well. Future projects will explore the dynamics of who holds the powers to determine our collective response to climate change and the ecosystem of private enforcement and climate policy across federal, state, and local systems. The reality of citizen suits in the climate change setting draws into vivid relief the paramount importance of comprehensive climate legislation and interagency coordination; in an era defined by global ecological interdependence, we can no longer afford to rely on enforcement models built for less existential, global environmental threats.36
I. Private Enforcement Debates
Private enforcement is neither a new phenomenon nor a rare one.37 It first became a prominent feature of the federal statutory regime during the Progressive Era of the early twentieth century.38 Yet for much of the twentieth century, statutory regulation was the realm of a centralized bureaucracy.39 The renaissance of private enforcement as an essential component of the enforcement lexicon dates to the 1960s and 1970s and the growth of the administrative state.40 During this era, private rights of action emerged as a tool to assist the government in its primary role as legal and regulatory enforcer across a swath of new legislation addressing civil rights, workers’ rights, and the environment.
Civil procedure scholars have long debated the benefits and drawbacks of vesting private citizens with the powerful tool of enforcement.41 This Part draws on these conversations to identify the relevant arguments for and against private enforcement and their dominant role in the environmental statutory regime. These debates lay the groundwork for why private enforcement is both attractive and problematic in the climate context.
The case for private enforcement rests on the assumption that private enforcers are efficient regulatory enforcers who will respond to incentives to sue and bring actions that align with the public interest. These debates help assess how effectively private enforcement meets the twin legislative purposes of spurring and supplementing agency enforcement. Matthew Stephenson describes the controversy succinctly: “Though private enforcement suits may, under some conditions, improve both overall compliance with the law and the efficient allocation of enforcement resources, under other circumstances private suits may disrupt government regulatory schemes and lead to wasteful or excessive enforcement.”42
A. The Debates
Private enforcement has numerous advantages.43 Among these, three rationales for private enforcement—augmenting public enforcement capacity with private sector resources, countering regulatory capture, and enhancing democracy—stand out for their ability to address some of the key structural limitations of agency enforcement, particularly as it relates to the vast and complex nature of environmental regulation.
A “core and recurring” structural constraint on government enforcement capacity is that agencies are overstretched and suffer from manpower and budgetary limitations.44 Proponents argue that one main advantage of private enforcement is to address such a lack of government resources and resulting enforcement inefficiencies by supplementing the system with “private information, expertise, and resources.”45 Private citizens can fill a gap in enforcement while shifting the burden and costs of enforcement to the private sector. In this sense, private enforcers multiply government enforcement capabilities. A regime that includes private enforcement “can actually enhance the efficient use of scarce bureaucratic resources by allowing administrators to focus enforcement efforts on violations that do not provide adequate incentives for private enforcement, while resting assured that those that do will be prosecuted by private litigants.”46 Moreover, as Senator Edward Muskie remarked during congressional hearings on the Clean Air Act (CAA), the sheer size of the growing regulatory state, and the environmental regime in particular, meant that even the most “well staffed or well intentioned”47 agencies would struggle to monitor potential violations. Private citizens could help to fill that gap.
A second powerful rationale for private enforcement is that private enforcers play a valuable role in ensuring public accountability by defending against regulatory capture.48 During the early 1970s, there was a general distrust in Congress of the Nixon administration’s genuine commitment to uphold and enforce the new laws over time.49 Proponents feared that as administrations changed hands, powerful lobbies or regulated business interests would “capture” the agencies who regulated them, causing them to water down or roll back existing laws or their enforcement if deemed harmful to their business or industry.50 Congressional reports at the time of the CAA reflected the hope that citizen suits would “motivate governmental agencies.”51 In the deregulatory mood that characterized much of the Reagan52 and Trump administrations,53 the EPA faced budget cuts and adopted deregulatory agendas. During each of these periods, the prevalence of private enforcement rose to check the government’s tendency to pursue its own agenda and that of influential but unrepresentative groups. In these instances, private enforcement “performs an important failsafe function by ensuring that legal norms are not wholly dependent on the current attitudes of public enforcers.”54 Where a particular agency might be swayed by lobbying or the fear of budget cuts, private enforcers provide “stability of legal norms by preventing abrupt transitions in enforcement policy that have not been sanctioned by the legislature.”55 That is, private enforcers can increase accountability and prod recalcitrant agencies to carry out Congress’s legislative will even where political or administrative support is weak.56
Third, private enforcement has also been touted as a tool that does more than merely deter statutory violations: it also drives innovation in litigation and promotes democracy through citizen involvement in identifying and monitoring harm.57
Skeptics of citizen involvement, or interference,58 point to three main problems that afflict private enforcement. A primary concern is that because private enforcement lacks central coordination, it can interfere with a delicate regulatory regime designed to permit certain actions while prosecuting other violations. This can “lead to wasteful or excessive enforcement”59 where citizens sue to enforce legitimate violations of the law, remediation of which does not align with legislative and broader public policy goals.60 This introduces procedural and substantive inefficiencies that realign government resources from current priorities toward lower priority matters, further burdening scarce government resources rather than freeing them up.61 Still, others have argued that the volume of private enforcement might ultimately overwhelm the courts, effectively displacing the resource constraints from the executive agency level to the judiciary62 and disrupting the regulatory agenda in an entirely different way.
A second related argument is that private enforcement is less socially inefficient than public enforcement because private parties driven by private economic calculations choose to litigate based on private costs and benefits, not social ones.63 As such, they may not fully consider the costs and trade-offs in making litigation decisions, including costs to the public.64 Indeed, the private motivations may even be entirely misaligned with the public interest. For skeptics purporting this argument, they believe that private enforcers will act based on economic calculations about when their expected return will exceed costs65 and, in the process, may exploit litigation costs, including the threat of burdensome, lengthy, and costly discovery, to extract a private benefit. Some have suggested that a combination of economic incentives like attorney’s fees, coupled with self-interest, has led to an “environmentalist enforcement cartel.”66
Stemming from these concerns, skeptics argue that a central flaw with private enforcement relates to accountability. While administrators theoretically lack personal economic stakes in litigation and are charged with pursuing public goals, private enforcement advances private interests that may conflict with the public interest.67 This concern arises because private citizens need not analyze the full costs and benefits of their actions or consider the public interest, yet they wield regulatory power similar to that of government agencies.68 Unlike public officials, however, citizen enforcers are not democratically accountable for the impacts of their actions69 because those who overstep their bounds “face no significant political repercussions for setting unwise enforcement priorities.”70 Private litigants, skeptics argue, can bring strategic and extortionate suits that “‘weaponize’ broad legislative mandates to obstruct or delay government actions without the mediating influence of political accountability.”71 Studies suggest that a lack of accountability is “most troublesome when a disparity exists between the private values of the person or organization bringing a citizen suit and the values of the community in which it is filed.”72 When administrative action “departs from these expectations, it can be disciplined and reined in by the democratic process, whereas private litigation, by comparison, is largely unfettered.”73
B. What Climate Change Reveals About the Private Enforcement Debates
The existing bodies of scholarship across the fields of private enforcement and environmental law have occasionally crossed paths. In the civil procedure literature, there is ample scholarship on private enforcement generally, as described above. And in environmental law, starting with a 1984 Environmental Law Institute study, the body of literature on private environmental enforcement has grown. It tends to be divided between the pollution statutes and the procedural and natural resource statutes, such as NEPA and the Endangered Species Act (ESA), with the bulk of existing studies on environmental citizen suits focused on suits involving violations of the pollution statutes governed by the EPA.74 There are some significant limitations to these studies. Given the difficulty of collecting environmental litigation data and many gaps and inconsistencies in existing databases, these studies are based on little empirical data.75 At this point, all are more than a decade old.76 The line of scholarship and studies of citizen suits involving NEPA is comparatively smaller.77 Most older studies involving NEPA have tended to focus on either “broad national statistics or litigation involving specific agencies.”78 NEPA is regaining the attention of scholars, however, and several recent empirical studies addressing citizen suits under NEPA attempt to shed new light on the scope and nature of NEPA litigation.79
A small but growing body of climate law scholarship addresses various types of affirmative substantive statutory and common law claims in the climate context, but very little work focuses on private enforcement.80 In the small body of climate change scholarship related to procedure, this work has mostly focused on agency compliance with NEPA—specifically, the degree to which agencies have and should consider climate change in NEPA documentation.81 A burgeoning line of articles has noted the obstacles and opportunities of using environmental law to transition to a clean energy future.82 This Article occupies a niche in the literature where there is little scholarly critique on the intersection of private enforcement and climate change.83 It continues to bridge these bodies of scholarship and critiques the role of private enforcement in addressing climate change by examining existing patterns of NEPA challenges to agency compliance.
This critique of private enforcement in the context of climate change both fits within and breaks from the standard critiques of private enforcement. The case studies described in Section IV.A involve patterns of environmental citizen suits under NEPA whose outcomes have direct and indirect impacts on climate change. Through these cases, many of the critiques of private enforcement in fact do bear out: private enforcers interfere with centralized government priorities; they prioritize a particular private agenda, without any duty to consider costs and benefits to the public and without public accountability; and, when viewed broadly, their actions represent a system that is insufficiently democratic.
Analyzing private enforcement in the context of climate change also raises several distinct concerns for which the traditional rationales and the empirical studies do not account. In the broader private-enforcement literature, gatekeepers have been invoked as a solution to address concerns about overenforcement arising from citizen suit litigation.84 Several recent empirical studies suggest, however, that NEPA litigation is not “unreasonably burdensome”85 and that “citizen suits need not be subject to vigorous gatekeeping by . . . federal agencies” because they are geographic creatures that reflect local values.86 The claims that a flood of litigation will arise is, as Stephen B. Burbank and other commentators put it, largely a myth “based on unfounded fears.”87 My argument that an agency gatekeeper could manage private environmental enforcement is not because of concerns that citizen suits will flood the courts and overwhelm the judiciary. Rather, gatekeepers can play a valuable role in mediating competing interests brought by private enforcers through the lens of the public interest in addressing climate change.
Further, assessing private enforcement through the climate lens reveals another aspect of private-enforcement concern that is not accounted for in the literature. Private enforcement is often presented in monolithic categories, such as suits by major environmental organizations.88 There are, however, numerous distinct types of citizens or organizations who bring citizen suits, each of whom hold disparate levels of political, economic, and social power. A more granular analysis that identifies the multi-dimensional distribution of participation and their various interests is critical for a fuller understanding of the nature of who is bringing NEPA challenges but also, importantly, who is not. It is also important for understanding the range of voices, priorities, and special interests among which judges mediate.
II. Private Enforcement in the Environmental Law Framework
The prominent role of private enforcement in the environmental law framework is the result of major debate among legislators about how to address decades of environmental degradation, social unrest and protest, and a loss of confidence in the government that defined the atmosphere of the mid-twentieth century. During testimony regarding the CAA in 1970, Senator Edmund Muskie, a champion of the CAA and Clean Water Act (CWA), acknowledged that this period of converging crises demanded legislative action:
In the face of citizen concern and corporate resistance, we have learned that the air pollution problem is more severe, more pervasive, and growing faster than we had thought. Unless we recognize the crisis and generate a sense of urgency from that recognition, lead times may melt away without any chance at all for a rational solution to the air pollution problem.89
In response, Congress created an ambitious new environmental regime to tackle pollution, prioritize environmental protection, and empower citizens to play a key role in enforcement to protect the public interest.90 Further assisted by the courts and a growing nonprofit sector dedicated to environmental protection, citizen enforcement of environmental law grew in relation to agency enforcement. Beginning in the late 1960s, “there was a sharp increase in the rate of private enforcement” efforts91 across a range of regulatory areas, including in some areas of environmental law.
This Part briefly describes the origins and evolution of private enforcement in environmental law, its mission, and its growth over time. The purpose is not to offer a comprehensive historical survey but rather to highlight significant elements of the context from which the citizen suit model emerged in environmental enforcement.
A. The Crises That Shaped Modern Environmental Law
1. The Industrial Pollution Crisis
In the early- and mid-twentieth century, industrial production and capacity exploded, spurring immense economic growth in part through largely unchecked pollution of the nation’s air, rivers, and groundwater.92 Ohio’s Cuyahoga River, like many northern rivers, hosted various major manufacturing companies, in part because it, like many other rivers in industrial cities, supplied easy and cheap waste disposal.93 Over the decades, the river regularly caught fire due to oil slicks and other pollutants; one such blaze captured national attention in June 1969.94 The fires on the Cuyahoga symbolized the relationship between pollution and economic progress. In Cleveland, “[e]veryone knew the river was polluted, but nobody much cared. If anything, it was a badge of honor.”95 David Newton writes, “[f]undamentally this level of environmental degradation was accepted as a sign of success.”96 Thus, for years, many looked away from this degradation as a systemic problem. Instead, during this era, negative externalities resulting from industrial processing and manufacturing were addressed mostly on a case-by-case basis using nuisance and other common law theories.97
However, “statutory and public policy precedents in the areas of public health and worker safety . . . were steadily established throughout the twentieth century.”98 These policies set the stage for the social and environmental movement that began to coalesce mid-century as a countervailing force against industry and manufacturing operations. Of particular influence were Rachel Carson’s warnings about the effects of the rampant use of DDT and other toxic chemicals. Carson gave voice to the hazards of industrial society and a shift in public values: “[T]he central problem of our age has . . . become the contamination of man’s total environment with . . . substances of incredible potential for harm . . . .”99
Concurrent with Carson’s calls for environmental reform came a suspicion that the government, which for decades had failed to regulate companies producing toxic chemicals, could not be trusted.100 Carson’s contemporary, Ralph Nader, who focused on consumer protection and regulation of the automobile industry, likewise doubted that the government could create and enforce a regulatory structure that would protect consumers from the products they were buying.101
2. The Infrastructure and Urban Development Crisis
The social and environmental ills of the twentieth century were not the sole product of the private sector. During the mid-twentieth century, federal infrastructure development served as a tool that exacerbated inequality and would entrench a system reliant on vehicles, the leading source of greenhouse gas emissions in the United States.102 In the 1950s, however, highways were thought to be “the greatest single element in the cure of city ills.”103 From Miami to Milwaukee, cities used federal money available under the Federal Highway Act of 1944 to fund highway systems that would reduce traffic but effectively divided cities in two. On one side were wealthy white suburbs dependent on cars. On the other were poorer inner-city populations that lacked the resources to move or could not legally move because of their race.104 Proponents boosted highway construction as a means to clear urban areas deemed slums to make way for urban renewal and redevelopment.105
These projects were characterized by racism and poor planning. In pushing through the Federal Highway Act of 1956, which increased federal funding for highway construction from 50% to 90% of the total cost of the project,106 the “Eisenhower Administration officials largely ignored warnings from engineers, planners, and urban advocates of every political persuasion that building freeways through dense cities would require careful, comprehensive planning and regard for the integrity of the existing urban fabric.”107 Absent any other legal mechanism that might force further review of the projects’ various impacts, construction proceeded. These highway projects had the effect of destroying formerly vibrant urban, mostly Black communities, perpetuating residential segregation that persists today.108
The government’s publicly funded project to erect a geographic barrier to integration, with little concern for the enduring racial and socioeconomic impacts these projects were bound to generate, engendered deep disillusionment and distrust of government among social justice and early environmental justice advocates. The environmental and social devastation stemming from these two crises were but two events that would shape the structure of the modern environmental regulatory regime.
B. Environmental Activism Propels Statutory Reform
By the 1960s, environmental destruction had become so obvious and harmful that protests pushed politicians to make a concerted effort to address environmental protection.109 Presidents Kennedy and Johnson passed some of the nation’s first environmental protection acts, including the Wilderness Act110 and the Federal Water Pollution Control Act,111 precursors to the CAA and CWA.112 Several years later, spurred in part by a battle for public opinion, President Nixon acknowledged that “[o]ur national government today is not structured to make a coordinated attack on the pollutants which debase the air we breathe, the water we drink, and the land that grows our food.”113 To signify that the 1970s would be an environmental decade,114 on January 1, 1970, President Nixon set in motion much of the legal infrastructure that frames the parameters of environmental protection today. This new framework of environmental laws—notably the NEPA, CAA,115 CWA,116 and ESA, among others117—sought primarily to control pollution and protect public health. The laws would be administered through the newly created federal EPA as well as the National Oceanic and Atmospheric Administration (NOAA), which regulates marine resources and pollution, and the Council on Environmental Quality (CEQ), which administers NEPA.118 Since the original 1970s laws that make up the bulk of the environmental regime were passed, there have been only two major new laws and amendments.119
To enforce the updated environmental laws, legislators devised a hybrid system that relied on both public and private enforcement to shape statutory compliance.120 Mixed enforcement models were not new. For example, both the Civil Rights Act of 1964 and the Voting Rights Act of 1965 relied on a hybrid enforcement structure—combining agency oversight, reporting, and enforcement with private suits. With only two exceptions, each of the major environmental statutes included a citizen suit provision.121 Such a provision empowers citizens to use litigation as a regulatory tool in two ways: by “spurring” agencies to act where they have a nondiscretionary duty to do so and where they have failed for political reasons, and by “supplementing” agency enforcement, using private resources to pursue statutory compliance against violators as so-called “private attorneys general.”122
The environmental regime includes both substantive statutes, such as the CAA and CWA, as well as procedural statutes, such as NEPA. Citizens are heavily involved in enforcement across the entire regime. Of these laws, however, NEPA has emerged as a major vehicle for citizen action and served as “the medium for the earliest of statute-based climate change litigation.”123 As a procedural statute,124 NEPA is designed as a “tool for thoughtful process and democratic accountability, not a substantive requirement for environmentally-correct decisions.”125 NEPA requires agencies to assess the environmental impacts of their actions, incorporate newly gathered information into their decision-making process, and consider alternatives before commencing construction. The goal is to “achieve a balance between population and resource use.”126 Once an assessment is made public, citizens can challenge compliance with the procedural requirements.127 Because NEPA requires only procedural compliance, the statute has no teeth to prevent projects that are shown to harm the environment. Nor does it impose mitigation requirements so long as the government has fully complied with the impact assessment process.128 As a form of government self-regulation that could be double-checked by the public, however, NEPA responds to activists’ concerns that the government could not be trusted to effectively enforce the law.
C. Rationales for Private Enforcement in Environmental Law
The decision to include private enforcement as a component of the federal environmental regime was born of political and logistical necessity. Before the 1970s, enforcing statutory environmental law was the exclusive domain of the government and was a cumbersome process. “[R]ecalcitrant polluters were seldom pursued to court.”129 Echoing Carson’s, Nader’s, and other activists’ calls that enforcement was ineffective, Senator Muskie noted that “[s]tate and local governments have not responded adequately to th[e] challenge[ of enforcement]. It is clear that enforcement must be toughened if we are to meet the national deadlines. More tools are needed, and the Federal presence and backup authority must be increased.”130 The sheer number of regulated facilities counts in the tens of thousands nationwide.131 Given this, “[i]t is not feasible to assume that the government is going to engage in the inspections and the enforcement necessary to ensure compliance with the standards.”132 Empowering citizens to assist in enforcement could serve as that “backup authority.”
In the early part of the century, it was Republican lawmakers who favored private over government enforcement while Democrats were skeptical of its benefits.133 During negotiations leading to the 1970 CAA, a majority of congressional Democrats agreed to private enforcement in part to gain the support of Republican lawmakers who sought to minimize government involvement in regulation.134 Perhaps reflecting his party’s preference for decentralization, in a special address to Congress in 1970, shortly after the first set of laws took effect, President Nixon cast individual citizens as essential to the task of enforcement:
The environmental problems we face are deep-rooted and widespread. They can be solved only by a full national effort embracing not only sound, coordinated planning, but also an effective follow-through that reaches into every community in the land. Improving our surroundings is necessarily the business of us all.
. . . .
Through the Council on Environmental Quality, through the Citizens’ Advisory Committee on Environmental Quality, and working with Governors and Mayors and county officials and with concerned private groups, we shall be reaching out in an effort to enlist millions of helping hands, millions of willing spirits—millions of volunteer citizens who will put to themselves the simple question: “What can I do?”
It is in this way—with vigorous Federal leadership, with active enlistment of governments at every level, with the aid of industry and private groups, and above all with the determined participation by individual citizens in every state and every community, that we at last will succeed in restoring the kind of environment we want for ourselves, and the kind the generations that come after deserve to inherit.135
Another reason that Democrats favored environmental regulation as a participatory effort grew from distrust of the executive. A key insight of Sean Farhang’s study of private enforcement is that private enforcement regimes arise out of the separation of powers and a divided executive and legislature.136 In effect, a divided government incentivizes Congress “to rely upon private lawsuits, as an alternative to administrative power, to achieve its regulatory goals.”137 The divided 1970s government embodied this distrust: the majority congressional Democrats included private enforcement provisions, in part because some members of Congress harbored grave doubts about the Republican Nixon administration’s commitment to the environmental agenda, particularly against powerful industries and their lobbies.138 This concern would ultimately bear out later during his presidency and in future administrations.139 Thus, Congress sought to “spur and supplement”140 regulatory enforcement not just by allowing, but incentivizing, citizens to deter violators.141
D. The Role of Judicial and Statutory Incentives in Expanding Private Enforcement
While Congress gave citizens the power to use the enforcement process to hold the government to task, the courts helped shape that power.142 Recognizing Congress’s intent that citizens not be “treated as nuisances or troublemakers but rather as welcomed participants in the vindication of environmental interests,”143 courts assisted the legislature by devising broad standing to effectuate this vision.144 These expansive privileges granted environmental citizen plaintiffs standing more closely approximate to the government “than that of other private-interest plaintiffs.”145 They also derived in part from “beliefs about the ability of both the EPA and the citizen plaintiff to be fair and effective enforcers of the environmental statutes.”146 Over time, lawmakers and the courts have calibrated incentives to encourage147 and restrain private enforcement.148 While recent decisions have challenged the Court’s willingness to expand the parameters of standing, the broader, more lenient standard of the earlier era has remained more or less intact.149
E. The Success of Private Environmental Enforcement
Encouraged by statutory financial incentives and relaxed standing requirements,150 private enforcement actions have been shown to significantly enhance environmental compliance.151 Private citizens have brought cases resulting in less polluted waterways,152 reduced groundwater pollution,153 more controlled use and spread of toxic substances,154 improved air quality,155 increased technological innovation and cleaner technology,156 and protected swaths of forest and the habitats of endangered species.157 While relatively few citizen suits were brought in the first decade of the new environmental regime, the numbers mounted in the early 1980s.158 An Environmental Law Institute study counted 125 suits filed between 1978 and 1982 and 224 suits between 1983 and April 1984.159 By the 1990s, “citizens had filed almost as many lawsuits to enforce the Clean Water Act as the federal government and all of the state governments combined.”160 Today, private enforcement, including private environmental enforcement, has grown to constitute a significant portion of enforcement action.161 This participatory mechanism has spawned a body of scientific and legal expertise dedicated to enforcing environmental statutes, raising public awareness, and building momentum around national and international environmental movements.162
This success has been met with some critique. When courts relaxed standing requirements, for instance, skeptics of private enforcement raised concerns of a “litigation explosion” due to increasing private actions. These have been shown to be largely myths based on unfounded fears.163 Other critics have argued that environmental citizen suits amount to “easy”164 payouts targeted to sustain environmental nonprofits. These, too, have been shown to lack evidence and merit. Regarding the concern that advocacy groups like environmental organizations are unaccountable, several scholars have pointed out that these groups are accountable to their members and must also contend with public opinion.165
Overall, many of the critiques of private enforcement of environmental law under the pollution statutes have been disputed as isolated, unrepresentative, based on insufficient empirical evidence, or grounded in fears that broader trends contradict. For instance, a 1984 study, one of the first studies on EPA-related citizen suits, found instead that “a large portion of citizen notices addressed violations that either were worthy of agency action but had escaped EPA attention or, though not on EPA’s priority list, were appropriate subjects of enforcement action.”166 In essence, private enforcers are doing the job Congress intended them to do.
III. Private Enforcement in the Climate Era
While private enforcers achieved success in spurring and supplementing agency action against the environmental problems that gave rise to the 1970s regime, climate change presents a new challenge today. The core of 1970s environmental law, with its focus on pollution control and improved public health and its reliance on private enforcement, has remained almost unchanged for the last fifty years.167 Citizen suits are now “deeply rooted in this nation’s environmental law principles”168 and have proved instrumental in shaping the body of environmental law.169 Most scholars seem to agree that private enforcement of environmental law, while not without its flaws, generally works.170 While taking stock of the many successes in the realm of pollution control, this Part moves these debates about private enforcement into the climate era.
A. The Climate Problem
The 1970s environmental regime has been generally responsive to the challenges that spurred its formation. But, as new, unanticipated environmental problems have emerged, the legislative response has been mixed. Congress has acted quickly for certain problems, such as in response to hazardous waste pollution by passing the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, which established the Superfund program to investigate and remediate sites contaminated by hazardous substances.171 To the problem of climate change, however, neither the statutory goals of the environmental regime, which did not include climate change until a decade ago, nor the enforcement system have met the challenge.
Climate change is the environmental challenge of the modern era.172 The IPCC, the United Nations body for assessing the science related to climate change, recently released a report detailing how “[m]any of the changes observed in the climate are unprecedented in thousands, if not hundreds of thousands of years, and some of the changes already set in motion—such as continued sea level rise—are irreversible over hundreds to thousands of years.”173 The IPCC report is a “code red for humanity.”174 The catastrophic impacts of climate change affecting every region on Earth, “from extreme heat to wildfires to intense rainfall and flooding, will only continue to intensify unless we choose another course for ourselves and generations to come.”175 According to the IPCC, “[s]tabilizing the climate will require strong, rapid, and sustained reductions in greenhouse gas emissions, and reaching net zero [carbon dioxide] CO2 emissions.”176
Distinct from other environmental pollution challenges that are local or regional in scope, climate change is an inherently global problem. The types of pollution that concerned Carson and other activists, while severe, had largely local or regional roots. The pollution’s source, such as an industrial factory or a system of lead pipes, was close to where the harms were felt. Species or habitat losses or fragmentation stemming from logging, expanding agriculture, and human populations or illegal wildlife trafficking, for instance, also had primarily local and regional consequences.177 Private parties’ motives in suing to remediate certain forms of pollution likely stemmed from their private interests in drinking cleaner water, breathing nonpolluted air, and reducing toxic chemicals in their neighborhoods. And the remediation they sought would benefit not only the plaintiffs but also their neighbors and larger community.178
Climate change breaks from this pattern in nearly every regard. While at least some sources of climate change are localized—say, emissions from an oilfield in Texas or a coal-burning power plant in Pennsylvania—others, such as vehicles, may not be.179 And because climate change is the result of accumulated greenhouse gases in the atmosphere, the harm is global and indirect. Nor is the source of CO2 tied to where its effects are felt, be it severe flooding, catastrophic wildfire, or sea level rise.180 Our traditional tools to address environmental problems are ill-suited and insufficient to address climate change.
Attempts to sue for climate change damages under common law theories stand on unsteady and unreliable ground, leaving the environmental statutory framework as the primary vehicle to address climate change.181
Below, I focus on the primary role of environmental statutory law to address climate change and how statutory responses are exacerbating a problem they were not designed to solve at their inception and have not adapted to solve.
B. Legal Responses to Climate Change
At the federal level, despite some efforts, comprehensive climate legislation remains elusive.182 Instead, climate change has been collapsed into the environmental regime. Over the past fifteen years or so, the major environmental laws have been interpreted to include climate change within their purview, and these efforts have been sharply contested.183 The CAA, the primary statute regulating air pollution, has become the de facto source of climate change regulation following Massachusetts v. EPA, and its progeny preempted the use of federal nuisance common law.184 Through the CAA citizen suit provision, private citizens’ enforcement powers extend to carbon emissions as well.185
2. The Statutory Response: NEPA as a Backdoor to Tackling Climate Change?
A less overt but influential avenue to address climate change is through NEPA. NEPA has been the procedural workhorse of environmental litigation for decades, and many creative lawyers have used the statute to try to address climate change.186 A 2010 study of climate change under NEPA found that NEPA does not “explicitly require consideration of climate change,” yet a “small but ever-growing body of NEPA case law is making it increasingly difficult for federal agencies to undertake a major [greenhouse gas]-related action without discussing the projected impacts of the emissions under NEPA.”187 For instance, private enforcers use NEPA to sue the Bureau of Land Management (BLM) when it issues oil and gas leases, projects that will directly contribute to climate change, arguing that their environmental impact statements (EISs) are insufficient for failure to consider climate change.
Many scholars have identified the limitations of relying on NEPA as a tool to address climate change. First, until recently, a court’s decision to assess whether an agency considered climate impacts in its environmental review has been discretionary because NEPA’s text does not explicitly require consideration of climate change. Given this, considerations of climate change under NEPA have been “haphazard.”188 But government agencies are increasingly required to consider climate change when assessing the impact of their actions.189 The CEQ, which governs NEPA, issued draft guidance in 2010 stating that climate change should be considered as part of proper compliance with NEPA documents, such as an EIS or environment assessment.190 In 2016, the CEQ finalized this guidance, officially requiring the federal government to consider climate change when assessing the environmental impacts of federal agency projects.191 Due to administrative turnover, the final guidance was revoked and replaced by the Trump administration with new, narrower guidance; in 2021, upon entering office, the Biden administration repealed the Trump-era guidance and sought to reinstate the original 2016 guidance.192 Studies by the Sabin Center for Climate Change Law at Columbia Law School measured changes between 2009–2016 in how often agencies included climate change in their analyses since the 2010 draft guidance. Their results suggest that draft guidance documents have prompted a more thorough consideration of climate change impacts in their NEPA reviews despite the fact that they are nonbinding.193 It remains to be seen whether the new 2021 guidance, which includes clearer guidance on how to assess climate change, will impact both NEPA compliance and enforcement actions.
A second obstacle is NEPA’s status as a procedural statute. NEPA only mandates that agencies consider the environmental effects of their actions, not that they take different action. Finally, agencies are accorded significant deference by the courts.194 Thus, agencies who intend to carry out major projects often do so regardless of private enforcement intervention. In this sense, private enforcement serves to ensure there is comprehensive environmental review and will only block a project from going forth until that review is complete. But private enforcement also sometimes serves to sideline projects that are politically sensitive or can cause the government to abandon projects altogether.
Where private enforcers are seeking to block projects that will directly emit greenhouse gases, they can play a role in mitigating climate change under NEPA. These are actions that have successfully deterred or prevented additional environmental degradation. Yet, using the same tools, private enforcers are also playing a significant role in contributing to climate change by using NEPA enforcement to block projects that make up the infrastructure for a clean energy future.
We sit in a liminal space in which the gravity and the dangers of inaction on climate change are becoming ever clearer and more present; yet politically, the known dangers of climate change for many decades have been met with stagnation.195 Given the urgent nature of climate change, as the IPCC and others urge, the federal government and many states have enacted a variety of policies and laws to address climate change.196 These efforts focus largely on building out needed climate-mitigating infrastructure in public transportation, housing, clean energy infrastructure development, and climate-oriented land use management as quickly and efficiently as possible.197 To modernize the United States to deal with the climate challenge, the Senate recently passed a multi-billion dollar infrastructure bill to revamp the nation’s deteriorating roads and bridges and fund climate mitigation and resiliency projects.198 The Bipartisan Infrastructure Framework promises to fund the largest investment in “clean transportation infrastructure, clean water infrastructure, universal broadband infrastructure, clean power infrastructure, remediation of legacy pollution, and resilience to the changing climate.”199
Given that any federal action on climate change must pass through the environmental regulatory regime, private enforcers are crucial players in the implementation of climate mitigation projects. If the proponents of private enforcement are right, we would expect citizens to bring actions that spur the government to act on climate change where they are lax and in alignment with federal climate change policy. The reality is far more mixed, with private enforcement of NEPA emerging as a significant barrier to the national and international goals of addressing climate change.
IV. The Failure of Private Enforcement to Address Climate Change
Despite the promises of private enforcement and its various successes in addressing traditional environmental harm, private enforcement fails in relation to climate change in three key ways. First, the opportunity for private enforcers to engage in the NEPA compliance process significantly increases the cost-and-delay burdens to implement climate mitigation projects. Second, the private enforcement system has promoted a new kind of capture whereby private enforcers who claim the responsibility of enforcing the public interest have instead employed the system for their own ends or for competing environmental goals, both of which conflict with the public interest in acting on climate change. Third, the goal of private enforcement to give voice to those affected by government action fails because those likely to be most affected by major construction projects are also those least likely or able to engage in “participatory democracy.”200
Scholar Jedediah Purdy writes that “[e]nvironmental lawmaking literally shapes the land in keeping with an idea.”201 I argue that it is not just lawmaking but also the nature of enforcement—when, where, why, by whom, and with what remedies—that shapes the land. While accounts of private enforcement typically focus on the relationship to agency enforcement and the impact or burden that citizen suits impose on agency resources and priorities, few also consider the broader social and political implications of how citizen enforcement shapes the law and its effects on the public. I further argue, in revisiting both our lawmaking and enforcement regimes to meet the demands of the climate era, that we reflect on the lands we imagine we are protecting. The two case studies draw this into relief. Some of the standard critiques of citizen suits we saw in Part I resurface alongside concerns distinctive to the problem of mitigating climate change.
A. Case Studies
Through two case studies, I examine how private enforcement fails to fulfill the promises of its proponents where the issue at stake is one involving global collective action. They are representative examples of the two key ways in which private enforcement under NEPA exacerbates climate change.
1. Wildfires in the Western United States
More than a century of fire suppression practices, historic drought, and climate change are fueling wildfires in California and the Western United States that are increasingly frequent and severe, with devastating consequences for forests, wildlife, human life, and property.202 These conditions are also fueling catastrophic fires that themselves are fueling climate change as they transform forests from carbon sink to carbon source.203 This further complicates government efforts to adapt to and mitigate climate change.204 As U.S. Forest Service (USFS) practices turn to address the challenges of restoring healthy forest conditions and mitigating catastrophic wildfires, citizen suits are a well-documented obstacle to efficient project implementation.205
Northern California’s Shasta-Trinity National Forest is home to old-growth forests and species that thrive in the mosaic landscape that old growth offers, such as the protected northern spotted owl.206 In 1997, a USFS assessment found that “decades of fire suppression and logging ‘shifted the fire regime within the area’” and called for forest thinning to reduce the risk of more severe “‘complete stand-replacing’ fires within [that area’s] mature conifer and [old-growth] stands.”207 Based on this finding, USFS planned a combination of tree thinning and prescribed burns to reduce the risk of catastrophic wildfire and, in 2008, commenced an EIS of a fuel-reduction project dubbed the Pettijohn Project.208
In 2012, USFS published its final EIS as NEPA requires. The EIS found that the project would “promote old-growth conditions and reduce the risk of stand-replacing wildfire”209 and would “not jeopardize the existence of the spotted owl or adversely modify its critical habitat.”210 A biological analysis of the spotted owl also found that the project would benefit the spotted owl in the long-term by reducing the “hazard of catastrophic loss of suitable habitat to late-season wildfire.”211
Shortly following publication of the EIS, two nonprofit organizations sued, alleging that USFS violated several environmental statutes, including NEPA and ESA. The nonprofits argued that the project would destroy old-growth forests and, correspondingly, the habitat of a protected species, the northern spotted owl, in violation of ESA.212 Based on this suit, USFS conducted a supplemental information report. Six years later, USFS again concluded that the fuel reduction project “would not jeopardize the existence of the spotted owl or adversely modify its critical habitat.”213 Plaintiffs again sued, raising new allegations that USFS failed to assess the projected greenhouse gas emissions of the project.214 After more than ten years of litigation over the impact of the Pettijohn Project, on May 7, 2021, a federal judge finally rejected the plaintiffs’ challenges and dismissed the case. In his opinion, he stated: “Plaintiffs go to great lengths to challenge different aspects of the Forest Service’s analyses of wildfires and tree removal and their effects on spotted owl habitat and greenhouse gas emission, but in doing so, they miss the forest for the trees.”215
Less than three months later, before any prescriptions could be implemented, two wildfires, the McFarland and Monument Fires, broke out in the Shasta-Trinity Forest in the vicinity of the project and the nearby town of Weaverville. After burning for three months, the McFarland Fire was contained, but not before burning 122,653 acres.216 The Monument Fire burned for three months also, burning 223,124 acres.217
In the case of the Pettijohn Project, the enforcement action delayed USFS action by more than ten years and required multiple sets of analyses at government expense. NEPA analysis and compliance is estimated to take two to three years on average and cost USFS $365 million annually.218 In this case, the judge was not only asked to decide whether the government had fully complied with NEPA in conducting its environmental impact review, but, in a broader sense, he was also effectively asked to consider which vision of environmentalism under the law should be enforced where they may be at odds with one another. For instance, in the Pettijohn Project, the judge had to reconcile the USFS’s argument that improved forest restoration and wildfire mitigation requires burning and thinning the forest and in the long-term ameliorates the habitat of a variety of species, with the plaintiff’s competing and opposite view that protection of endangered or protected species habitat requires no intervention.219
In addition to causing a drag on government efficiency, delays in the ability to carry out wildfire mitigation projects can make the difference in a town being devastated with tragic loss of life or not. In the last several years, massive wildfires in California alone destroyed forest habitats; released almost 120 million metric tons of CO2 emissions in 2020 alone;220 impacted human health, particularly through toxic air pollution that includes lead; caused millions of dollars in property damage; and led to hundreds of lives lost.221 The total wildfire emissions in 2018 almost equaled the total emissions of California’s entire electricity sector.222
Further, massive wildfires put existing climate plans at risk because catastrophic wildfires both destroy a source of carbon storage (a carbon sink) and lead to massive amounts of greenhouse gas emissions.223 When making climate plan calculations, states depend on calculations of existing and future natural carbon storage. Businesses depend on them as well: Microsoft and other businesses that buy carbon offsets in certain forests rely on these calculations.224 In California, for instance, wildfires and other natural disasters put natural carbon storage and the offsets market at risk. A recent study on how wildfire impacts climate mitigation efforts noted, “We need our forests and other plant-covered areas to provide a ‘natural climate solution’ of removing carbon dioxide from the air, but heat and drought caused by the very problem we’re trying to solve could make it more difficult to achieve our objectives.”225
Although it is difficult to say if the Pettijohn Project would have reduced the range and severity of the Monument or McFarland Fires, California wildfires from June to August 2021 produced more CO2 emissions than in any other year in nearly two decades.226 These numbers almost certainly exceed any emissions the Pettijohn Project would have produced.227
Wildfire management has been a contentious issue for many decades,228 with private citizens distrustful of decades of forest management practices that they view as having benefitted a private timber industry at the expense of wildlife and other environmental goals.229 In Arizona, a destructive wildfire, the Rodeo-Chediski Fire, burned through the Apache-Sitgreaves National Forests outside Tucson, where a prescribed burn and forest thinning project had been held up by litigation for multiple years during which time, one plaintiff, the Center for Biological Diversity, had the power to control what happened on the land.230 The conditions imposed by the center in the course of litigation were unrealistic and, as a result, meaningful thinning, which might have lessened the destructiveness of the Rodeo-Chediski Fire, could not be done. Kate Klein, the supervisor of the Black Mesa Ranger District, who was involved in the project, noted the impact of the power private citizens wield when suing the government:
They definitely had veto power on what we proposed . . . . I guess it’s frustrating because we manage for all the people. We don’t just manage the forests for the Center for Biological Diversity. We have a mailing list that has hundreds of people in communities all across this country. I believe we have as much obligation to them as we do to a group that has a lot of power and money, and can file lawsuits.231
2. Public Transportation in the D.C. Metro Area
More than a century of infrastructure and industry designed around oil extraction, reliance on personal automobiles, and underinvestment in public transportation and non-fossil-fuel alternatives have made the transportation sector the largest contributor to U.S. greenhouse gas emissions.232 Cars and trucks alone account for one-fifth of all U.S. emissions.233 Climate experts identify modernizing and updating the transportation sector as critical for climate change mitigation.234 Modernizing the nation’s public transit infrastructure is one of the key priorities of the Biden administration’s new bipartisan infrastructure bill, recently passed by the Senate. Reducing emissions through the transition to clean energy vehicles is one key avenue; the other is to improve public transportation alternatives to reduce dependence on cars and provide better alternatives to those who depend solely on mass public transport.235
For example, the Washington, D.C., metropolitan area is the sixth largest in the nation.236 Buses are currently the only public transport option for east-west travel outside Washington, D.C. Thus, in 1989, after identifying a particular deficiency in east-west public transit options, Maryland set out to expand its transit system to create a direct east-west light rail line (Purple Line) for residents of Montgomery County and Prince George’s County to commute around Washington, D.C.237 The 16.2-mile Purple Line would improve the work commute for thousands by replacing lengthy bus commutes with “faster, more direct, and more reliable” service.238 The light rail would also reduce traffic on the congested highway beltline.239 Initial estimates projected the light rail to cost $1.93 billion and take nine years to complete.240 The project’s EIS revealed that environmental impacts would be minimal, air quality would improve, and greenhouse gas emissions would be reduced due to less congestion.241
After six years of NEPA compliance, during which there was sustained public opposition to aspects of the environmental review,242 the Federal Transit Administration approved the Purple Line project in 2014. That same year, before the project commenced, a local nonprofit, a country club, and residents of the town of Chevy Chase, Maryland—a wealthy D.C. suburb through which the project would pass—sued, arguing that the project would destroy the habitat of an endangered transparent invertebrate known as an amphipod.243 Additional claims were that the government’s ridership analysis was flawed and that the project failed to assess the impact on historic buildings under the National Historic Preservation Act.244 Upon filing this suit, the judge denied the project’s Record of Decision (ROD), effectively vacating authorization for the project and stopping it dead while the risk to the amphipod and other allegations could be evaluated.245 After almost four years, subsequent studies revealed that no such amphipod existed along the Purple Line route.246 An appellate court reinstated the ROD, which reinstated the project, and dismissed the case.247 In September 2017, the groups sued again, seeking a preliminary injunction of the renewed authorization on construction that had, by that point, just begun. The group alleged that approval of the project’s federal grant funding violated the APA. A judge denied the injunction and ultimately rejected the suit.248 The group sued yet again in April 2020, this time against the U.S. Army Corps of Engineers, claiming the Corps’ analysis of the project’s impact on wetlands was incomplete.249
The Purple Line is still under construction, having suffered more than a decade of delays and cost $5.8 billion, nearly $4 billion over the projected budget.250 Opposition to the Purple Line from private citizen groups at every stage of the process—from public comment during the environmental review to formal lawsuits, all of which were rejected—drove and compounded costs to the government. The suits resulted in delays in implementing public transit infrastructure that has been badly needed for more than thirty years and that would have likely mitigated lengthy, unreliable commutes—including, for many residents solely dependent on public transport, highway congestion—and, consequently, emissions years earlier.251 Moreover, it would have significantly improved the daily lives of individuals living in suburban Prince George’s County and Montgomery County, who continue to rely on a series of buses to make the lengthy commute to and from work.
B. Critiques of Private Enforcement
The promise of private enforcement involves three key aspects: first, citizens could supplement agency enforcement with the skill, knowledge, and resources of the private sector, thus freeing up government resources to be used elsewhere; second, citizens could spur agencies to enforce the law where politics or the power of special interests incentivized an agency to do the opposite; and third, proponents of private enforcement sought to draw upon the innovation and spirit of participatory democracy and create opportunities for those concerned or affected by the impacts of a project to voice opposition and take action.
The case studies,252 representative of larger trends in ex ante private enforcement, challenge the ability of private enforcement to consistently deliver on these promises. They exemplify a reality of private enforcement under NEPA, which allows citizens to proactively block projects, sometimes indefinitely. In so doing, private enforcement drives up costs to the government and delays projects that would have significant climate change benefits. Moreover, these studies show how private enforcers like environmental nonprofits or town associations engage in a form of capture by bringing enforcement actions that prioritize a particular interest or vision of environmental protections without consideration of the broader public interest. Finally, they suggest that private enforcement is not democratically representative but largely a project of the powerful and well-resourced.
1. Private Enforcement Burdens Government Resources
As we saw in the survey of the literature on citizen suits in Part I, the first promise of private enforcement is the argument that private enforcers improve the efficient use of government resources. As the case studies show, this argument fails. Instead, private enforcement drives up costs to the government and delays projects and the climate mitigation benefits they are intended to bring.253
All federally funded projects, like the Purple Line or a forest thinning, also referred to as a forest fuels reduction project, must comply with NEPA and assess their expected environmental impacts. NEPA does not ban action; it requires only that the government do the work to discover potential environmental impacts and communicate those to the public. “NEPA can [thus] serve an important informational role by influencing decision makers and informing the public about the choices agencies make.”254 Many have noted, however, that the informational benefit to the public is often outweighed by the burden to the government. For instance, completing an EIS or other environmental assessment has grown from an approximately ten-page analysis to “today . . . averag[ing] more than 600 pages, plus appendices that typically exceed 1,000 pages.”255 Preparing an EIS has become an “onerous” process that is extremely costly both financially and timewise: “the average EIS now takes 4.5 years to complete” and often involves significant delays.256
There are several reasons for the increase in costs and delay. First, the NEPA process invites citizen participation even if it was not intended as an “exercise in public participation.”257 At nearly every phase of environmental review, there are touchpoints for citizens to engage and raise objections. This process extends from early-stage public engagement during the public comments phases up through lawsuits that can be filed after the final EIS is issued.258 At any time, the threat of future litigation or opposition to a project can result in delays as an agency may spend additional time assessing the litigation risk and ensuring full compliance. Where an agency learns of or anticipates litigation, even during early stages of review, the project applicants may also rely on outside counsel to assess the litigation risk and advise on other risk factors associated with the NEPA analysis, which causes additional costs and delays. Although agencies are accorded significant deference in their decision-making259 and may ultimately prevail, a project may nonetheless undergo significant cost and delay in the process due to litigation risk.
For example, in a study of highway construction costs from the 1960s, before the environmental regime, to the 1980s, after the regime came into effect, scholars Leah Brooks and Zachary Liscow found that the average infrastructure project costs significantly more and takes longer to conclude today then before the rise of the citizen suit.260 A study by the Eno Center for Transportation similarly found that “U.S. projects cost 50 percent more and take [up to] 18 months longer to conclude than similar projects abroad” due, in part, to the extensive environmental review process.261 Brooks and Liscow found that “spending per mile on Interstate construction increased more than three-fold . . . from the [early] 1960s to the 1980s. . . . [, which] coincides with the rise of ‘citizen voice’ in government decision-making in the early 1970s.”262 As they put it: “[C]itizen voice leads to more expensive routes and structures to respond to local concerns.”263
Second, where there is opposition, it tends to be a “kitchen sink” approach of identifying any and all possible reasons to block the project. This is typical of public transportation and infrastructure projects. In the case of the Purple Line, there was strong opposition to the process from an early stage in the public comment process, and the first lawsuit filed involved the kitchen sink approach of suing on a range of different grounds—from the seemingly spurious claim of a nearly invisible endangered species to historic preservation to questioning data on ridership.264
Overall, NEPA compliance and its attendant enforcement have become notorious for transforming a project into a multi-decade, onerous, and over-budget effort. This has been true for decades. Writing about NEPA challenges to nuclear power and genetic engineering in 1990, Denis Binder observed: “[T]he NIMBY phenomenon has advantaged itself through NEPA in delaying and halting new developments.”265 “NEPA is the ideal legal tool of delay.”266
This may have been a net win for environmental values when conservation was the central concern. But under conditions in which speedy action on infrastructure is essential, the climate change impacts of delaying climate mitigation projects due to ex ante enforcement are significant. In the case of both the wildfire mitigation project and the Purple Line, private enforcers brought suits that worsened the effects of climate change by delaying climate mitigation efforts. In the western United States, this type of challenge has increased the likelihood of more catastrophic fires and massive greenhouse gas and other toxic emissions that far exceed those that would result from the project itself; in the D.C. area, delays mean increased congestion and continued use of fossil-fuel–powered vehicles. In both cases, the lawsuits resulted in significant diversions of government resources.
NEPA review is, at present, caught in an administrative tug of war. In 2010 and 2016, the Obama-era CEQ expanded NEPA review to assess projects through the lens of climate change. Ironically, now that it has done so, the process may become even more complex and protracted.267 Research by the Sabin Center suggests that agencies have been increasingly complying with the draft guidance to consider climate change impacts in their NEPA reviews.268 Further, NEPA challenges have been increasing. A survey of 324 cases involving NEPA challenges between 2001 and 2020 showed that the number of challenges doubled every five or so years. Beginning around 2011, the challenges involving clean energy projects and forest management are outpacing those involving fossil fuel leasing.269 As climate change analysis in NEPA review became standard through the draft and then final guidance, NEPA litigation also increased. This trend continued despite the revocation of the final guidance by the Trump administration in 2017. To the extent these cases follow a similar pattern as that described in the case studies, we may expect delays in an increasing number of potential projects that will mitigate climate change. These estimates provide a general picture of an increase in NEPA litigation challenging projects that would provide a climate benefit.
Upon entering office in 2016, the Trump administration rolled back the CEQ climate guidance and, in 2020, issued its own CEQ guidance that proposed to eliminate consideration of “cumulative impacts.”270 Noting that this change would “gut” NEPA, twenty-three attorneys general sued the government to prevent limited review of certain projects and to prevent further streamlining of the law.271 The Biden administration has moved to overturn the Trump guidance, but the new infrastructure bill includes the Trump-era streamlining, potentially entrenching them not just in the new set of infrastructure projects but in administrative guidance.
With regard to the argument that private enforcement frees up government resources, challenges under NEPA demonstrate that instead of supplementing government resources, citizen suits impose a greater burden on them. This argument ultimately fails. There is, however, a continuing need to balance citizen oversight of government actions with the urgency of transforming our energy system from fossil fuel to renewable dependent. For private enforcement to serve as an effective tool, there must be a better way to improve the quality of oversight, ensuring the government spends its resources where more environmental review is needed, not where citizens merely want to delay otherwise thoughtful and well-researched projects that are urgently needed for climate change mitigation.
2. Private Enforcement as a Form of Capture
A second promise of private enforcement derives from the era of political and social protest and skepticism about the government’s ability to withstand lobbying and other forms of influence by powerful, regulated industries. Proponents of private enforcement believed that citizens could hold the government accountable to uphold the law against attempts by powerful lobbies who might seek to influence agencies to loosen the regulatory controls over them. In both the case of the environmental nonprofits suing to protect a particular landscape from government intervention and the nonprofit made up of Chevy Chase stakeholders suing to protect their town from a government transit project, this argument is far more complex.
Regulatory capture has been described as a scenario in which “[a]gencies tasked with protecting the public interest come to identify with the regulated industry and protect its interests against that of the public. The result: Government fails to protect the public.”272 This is the scenario private enforcers are meant to protect against. But what about a situation in which private individuals or groups enforce the law to hold the government accountable, and yet come to use that law to protect a particular interest that interferes with or contradicts a public interest? The ability of private interest groups to influence the law through enforcement in a way that is contrary to public policy could be seen as a form of capture.
Private enforcers are made up of individuals, for-profit associations, nonprofit groups, industries, and lobbies, who “vary, often substantially, in their motives and means.”273 Private enforcers are themselves representatives of groups who share a common special interest, be that an economic or business interest or common ideological or social views.274 It is not especially striking that private enforcers will seek to use the law to protect a particular interest. What is striking is that the effect of the lawsuits described in these case studies is to block action on climate change mitigation projects, which necessarily exacerbates, albeit incrementally, the very problem the projects intend to help solve. It is further of note that the mode of objection involves employing substantive environmental law—the CAA, ESA, and CWA—to object to projects that will confer a climate benefit. These suits also use environmental law to advance a particular vision of environmentalism that is at odds with the broader public interest in mitigating climate change.
Again, reform is needed to prevent capture of the enforcement process from those who seek to use procedural tools, not to pursue more thorough government oversight as the law intends, but to pursue other ends by entirely blocking projects that are deemed in the public interest in climate change mitigation.
3. Private Enforcement Is Not Democratically Representative
A final promise of private enforcement is that it would increase democratic participation in the enforcement process. While the case studies provide only two examples of the types of private plaintiffs who enforce environmental law, they show that private enforcement can also run counter to democracy by empowering singular powerful groups to commandeer the NEPA enforcement process.
NEPA depends almost uniquely on citizen enforcement as a check on agency compliance. While the statute was not designed to be a participatory statute, as were the CAA and the other substantive environmental laws, it quickly evolved into a vehicle for private environmental enforcement.
In 2010, CEQ’s first chairman Russell Train reflected:
NEPA brought the environment front and center to federal agencies, and that this can be deemed a success brought about, in no small part, by the many federal employees and citizens who have applied the law over these decades. It also opened up the federal decision making process. No longer could federal agencies say “we know best” and make decisions without taking environmental consequences into account. Nor could they simply pick one outcome or project and deem all others unworthy of consideration. NEPA democratized decisionmaking. It recognized that citizens, local and state governments, Indian tribes, corporations, and other federal agencies have a stake in government actions . . . .275
In theory, NEPA expands decision-making to incorporate multiple voices, but in practice, NEPA litigation is dominated by a comparatively small set of voices. There are several reasons why this may be true.
First, some groups wishing to challenge an agency’s environmental review may lack the resources to raise legal objections. The environmental justice literature has been dedicated to showing how communities most at risk of the impacts of government action often have the fewest resources to challenge them. For instance, a 1984 report on pollution facility siting found that “socioeconomic groupings tend to resent the nearby siting of major facilities, but the middle and upper-socioeconomic strata possess better resources to effectuate their opposition.”276 A recent study by David Adelman and Jori Reilly-Diakun found that the number of environmental justice277 citizen suits is “strikingly low—with no jurisdiction standing out—and seemingly at odds with the prominence of environmental justice issues nationally.”278
NEPA was at least partially created in response to the recognition that the government’s actions could have disproportionate impacts on poor and minority communities, such as those that resulted from federally funded urban renewal and redevelopment. In reality, marginalized communities, those likely to be most affected by major construction projects, rarely engage directly in participatory democracy through litigation.279 Instead, the citizens who most often engage tend to be “individuals who are very wealthy, who are white, who are already privileged in the political system, to stop transportation, and to stop public works projects, or anything that might be broadly beneficial to the community, from being placed in their neighborhoods.”280 As the case studies illustrate, if a private enforcer wants to contest a particular project, NEPA provides a legal avenue to voice a complaint. Whether a potential plaintiff can get access to file a complaint, however, remains a barrier to democratic enforcement.
Second, litigation may not be democratic due to the distribution of local values. A recent study by David Adelman and Robert Glicksman found that NEPA enforcement is a geographical creature.281 They observed that “citizen suits mirror local values—they are overwhelmingly filed in jurisdictions where concerns about the environment are the highest and are rare where such concerns are lowest.”282 They concluded that this finding complicates proponents’ argument that citizen suits fill a gap in agency implementation in places “where local politics cuts in the other direction.”283 Instead, it amplifies suits where local values support litigation challenges.
Thus, regional differences in values may further drive private enforcement in ways that exacerbate climate change: private enforcers may ignore projects that directly exacerbate climate change if they happen to live in a location that does not value climate action or have necessary resources to challenge proposed action or a tradition of doing so; they also block, sometimes for more than a decade as the case studies show, mass transit, wildfire mitigation, and other climate mitigation projects that would reduce climate change but for the delays.
The critique here is not that marginalized communities entirely lack the power, resources, or access to organizations that can voice opposition; there are numerous examples that they, in fact, do.284 The critique rather is that they do not have enough power, resources, or access relative to wealthier groups.285 The right of citizens to privately enforce federal regulation is a tool of power; those who are able to access the system have the opportunity to shape the landscape. If one of the arguments in favor of private enforcement is that a variety of democratic benefits of participation in this process inure therefrom,286 this Article critiques the validity of this argument. What is the nature of participation in the system of private regulatory enforcement: who is participating, who is “making democracy,” and who is not? A clearer picture of both the scope and types of plaintiffs engaging in litigation under NEPA is the subject of ongoing research.
Whether it is due to lack of resources or because local values do not propel certain communities or regions to participate, or yet other reasons, NEPA litigation overall is not democratically representative. Instead, it is skewed towards those with the greatest access and motivations to sue. Philip Howard puts it another way: “[L]awsuits over environmental review statements became surrogates for questioning the wisdom and design of projects.”287 Any citizen who meets standing requirements not only has the power to question whether an EIS has assessed the requisite environmental impacts, but also the opportunity to potentially influence the ultimate design and route of a project to their benefit.288 While NEPA has democratized decision-making through information forcing and in the sense that members of the public can voice their concerns through NEPA suits, these voices are dominated by a nonrepresentative slice of the public. The NEPA process thus transfers power from democratically elected officials to a nonrepresentative set of project opponents.289
There are other long-term social, political, and environmental consequences beyond disputes about an immediate project. Citizens opposed to a project have also been successful at lobbying their political representatives to pass more restrictive zoning laws that foreclose certain future types of clean energy projects, such as solar, housing, or other projects. This restricts the places in which building can occur, displacing it to places where there are fewer legal restrictions.
If the public is asked to use its land and its landscapes to mitigate the urgent risks of climate change, those sacrifices or burdens must be equitably distributed and shared. Where more powerful and well-resourced voices are involved in influencing the process, most often, those people will share in the benefits of clean energy and improved infrastructure while imposing the burden on those less well-resourced, as the efforts of the plaintiffs in the Purple Line example show. Future reforms to the tool of private enforcement must account for such inequities while also ensuring that the public interest is maintained.
V. Prescriptions
Underpinning each of these concerns is the reality that “private enforcers vary, often substantially, in their motives and means.”290 Private enforcers are complex rational actors who respond to economic and ideological and likely a host of other types of motives. They also wield significant power to enforce public law in ways that align with a particular interest or vision of what environmental law or environmentalism is or should be. Where these interests and visions diverge from a broader public interest can lead to troubling and unfair social and environmental outcomes. As the case studies demonstrate, a subset of private enforcers is using environmental law to resist national efforts to address climate change. The central concern of this Article, and the task of Part V, is to explore the benefits and drawbacks of potential solutions intended to restrain private enforcement that cuts against the public interest in mitigating climate change.
I explore the following proposals as potential options that might rebalance the task of enforcement in a way that facilitates urgent mitigation efforts. First, streamlining and categorical exclusions are used to accelerate certain types of projects by insulating them from excessive delays caused by environmental review and litigation. Could eliminating streamlining efforts for projects based on fossil fuel production and expanding them for certain clean energy and land use management projects that provide the greatest public benefit nevertheless harm the public interest by disempowering disadvantaged communities? Second, unlike the EPA, which can serve as an agency gatekeeper by intervening in private enforcement against third parties under certain statutes such as the CAA, there is no equivalent gatekeeper within CEQ that can effectively filter NEPA cases to distinguish meritorious from frivolous ones in line with broader regulatory goals. Could such a gatekeeper be established? Third, the task of addressing climate change is a global problem that ultimately transcends any one agency’s actions. Could more centralized or interagency action on climate change reframe climate change as a public problem, refocus national priorities around addressing climate change, and ultimately build public trust?
A. Streamlining and “Categorical Exclusions”
Streamlining allows the government to fast-track certain projects by bypassing aspects of the regulatory process if they meet certain thresholds or objectives. NEPA streamlining and categorical exclusions already exist for areas like fossil fuel development and nuclear regulation deemed in the interest of national security.291 Streamlining, or excluding certain projects, is one of the primary tools that has been used to accelerate or pause certain types of actions depending on government priorities.
Streamlining allows the government to exercise a time-limited and more nimble approach to achieve priorities related to government action. Advocates of streamlining NEPA argue that the measures are necessary to accelerate development.292 For instance, the Trump administration actively promoted streamlining, likely with the goals of accelerating energy projects.293 To meet the objective of reducing emissions with minimal government burden or delay, many, including the State of California and the Biden administration, have proposed that streamlining be further expanded to certain clean energy or climate-oriented projects.294 The White House has focused on streamlining as a way to implement the clean energy projects to build the resilient housing, roads, and communities that are intended to flow from multi-billion dollar investments made possible under the Bipartisan Infrastructure Law and IRA.295
Yet, streamlining faces opposition from several key angles. For instance, some opponents claim that streamlining impairs the rights of minority and underrepresented groups to raise concerns in major federal projects that could impact the environment.296 This claim may be exaggerated, however, since these groups do not bring the majority of NEPA claims.297 Exploring this claim is the topic of future research on private enforcement. Others argue that streamlining reduces the overall importance of NEPA and endangers the important goals of the statute to ensure that agencies evaluate the environmental impacts of their acts.298 Indeed, many have raised concerns that these new rules as well as new definitions of “cumulative impacts” will destroy meaningful consideration of climate change.299
To address the challenge of tackling the climate crisis while still providing safeguards for citizen engagement, I propose that the balance, or ratio, of projects available for streamlining or categorical exclusion300 heavily favor clean energy projects over those that will directly contribute to greenhouse gas emissions, such as fossil fuel leasing and production. In effect, I propose that the CEQ increase streamlining for certain clean energy and land use management practices while eliminating it for fossil fuel production. Further, I propose that only projects that will provide the greatest public benefit be eligible for fast-track consideration. This balance and corresponding rules can be set by the CEQ but will also play out in Congress. This is likely to be a challenging political task. For instance, streamlining played a role in the negotiations leading to democratic consensus on the IRA, but in a way that favored the fossil fuel industry.301 An outside agreement between Senator Joe Manchin (D-WV) and the Democrats in the course of negotiations leading to the IRA allows streamlining for certain energy projects, including mining, and sets limits on NEPA review.302 The tradeoff of streamlining certain energy projects that will contribute to climate change in exchange for a broader clean energy transition is, it is hoped, a net gain that serves the general public interest.303 The future abiding concern is that the clean energy projects that will reduce CO2 in the atmosphere will be held up by private enforcement claims if they too are not accorded the benefits of streamlining. A presumption in favor of streamlining for clean energy projects would be an incremental step forward.
When balanced, streamlining can be an effective tool to accelerate development. Future research on this topic will explore the extent to which it threatens to remove a singular avenue for the public to voice concern where a project will cause irremediable harm. My proposal aims to bring back into the public view projects that require additional scrutiny for climate purposes, while freeing up projects that will offer the greatest climate benefit from burdensome delays.
B. Agency Gatekeeping
A second prescription to address situations in which the different, competing interests of private enforcers interfere with broader agency objectives in mitigating climate change is to employ an agency gatekeeper. Particularly where policies and approaches to climate change are new and evolving, private enforcement needs more government oversight to prevent ad hoc, fragmented litigation from ingraining outcomes that make the problem worse. An agency gatekeeper would serve this purpose.
Other scholars have explored the value of this option. Matthew Stephenson, for instance, argues that the executive, the branch in charge of administering statutory regulation, should have more control over the existence and scope of private rights of action.304 David Freeman Engstrom proposes vesting administrative agencies with litigation “gatekeeper” powers.305 The substantive environmental laws, such as the CAA, allow the EPA to intervene in a lawsuit within a specific time period and take action to resolve the concern,306 but there is no such provision under NEPA. One option is to provide the CEQ with a similar right to intervene where it would benefit the public interest in addressing climate change. Alternatively, the CEQ could issue a license or authorization to sue following a petition for suit that sets forth the claims.307 This would require the parties seeking to sue to make a greater showing of the harm before filing suit, which could minimize delays to projects where the suit is intended as a blocking tactic to advance a purely private gain rather than to protect the environment. As another alternative, Burbank, Farhang, and Kritzer suggest that a public option may be necessary.308 What all these approaches have in common is investing government, and potentially government-supported legal agencies, with the power to aggregate problems rather than solely relying on disparate private actors.
There is a range of private enforcement as it relates to climate. Some private enforcers bring suits directed at preventing projects that are obvious contributors to climate change, like the expansion of new oil fields.309 Others, by contrast, are bringing suits under NEPA, challenging the government’s compliance with law, where the goal is not to secure better environmental compliance, but to block construction altogether, as in the case of the Purple Line.310 Still, others, as the wildfire mitigation case depicts,311 involve one form of genuine environmentalism competing with the view that because climate change is an existential threat, all other values need to give way, including other environmental concerns, such as limiting growth and conservationism.
Ultimately what is needed are ways to enable continued private suits that truly serve the public interest while filtering out those that do not. An agency gatekeeper is best suited to this role because they operate from a mandate to act in the public interest and can make decisions that align with broader regulatory objectives.
Agency gatekeeping is important for one other reason. CEQ guidance newly mandates that climate change be part of an environmental review.312 Given the complexity of climate change, we might expect that any entity wishing to challenge a project will now have innumerable potential pathways to craft a challenge. Agencies possess better scientific knowledge to make decisions as to what claims are valid; thus, vesting agencies with the power to assess the claims is a more efficient use of both judicial and executive resources. While environmental impact challenges make up a very small burden of what the judiciary currently manages, we might nevertheless expect it to tick up. Although the gatekeeper can play an important resource management role in the event cases do increase, the reason agency gatekeepers are better suited to manage this task is not because of concerns that private enforcement will overwhelm the judiciary,313 an argument that Burbank, Farhang, and Kritzer argue is largely myth “based on unfounded fears.”314 Rather, the value of gatekeepers derives from their superior ability to mediate among competing interests through the lens of the agency’s climate change objectives.
The Biden administration created two new positions to address climate change: the Special Presidential Envoy for Climate, who will coordinate climate change as an issue of national security among federal offices, and the National Climate Advisor, who oversees domestic climate policy.315 The National Climate Advisor leads the White House Office of Domestic Climate Policy, which is “focused on mobilizing a whole-of-government approach to tackling the climate crisis, creating good-paying, union jobs, and securing environmental justice.”316 The National Climate Advisor is well positioned to advise on national climate policy priorities and could serve as an independent gatekeeper authorized to either screen cases early on or issue advisory opinions to the courts where climate change-related projects are at issue.
C. Reframing Climate Change as a Public Problem Through Interagency Coordination
The balance of public versus private power is on full display in the debate about environmental private enforcement, but this dynamic is central to the current debate about public participation, power, and how our democracy functions.
Climate change is a global collective action problem that is challenging the capacity of our democratic system of government to respond.317 The global nature of climate change means that federal agencies are not the superior enforcers of climate change in the traditional sense; rather, coordinated international agreement to mitigate climate change will be the true arbiter of the problem. Climate change is also more than an environmental problem; rather, it is a larger public problem. Yet, its presence sited primarily under the EPA suggests it to have a purely environmental dimension. A coordinated agency dedicated to climate change is a small but important step in signaling the prominence of climate change as a broader public threat that requires coordinated cross-agency action.
The Biden administration has taken a “whole of government” approach to addressing climate change, meaning agencies now need to consider climate change as part of the regular course of planning and implementing agency action.318 But, a more formal approach that coordinates action across agencies could help the federal system to develop more effective responses to climate change.319 Housed within this agency should be a public environmental justice office dedicated to ensuring equitable access to, and providing resources in, areas where government projects will have the greatest environmental and social impact.320
Building on the role of an agency gatekeeper as a private enforcement mediator, a final prescription is to develop a coordinated interagency climate commission to respond to the climate crisis. In response to other national disasters, emergencies, or emerging national and international challenges where the response traverses agencies’ jurisdictions, the government has moved to centralize agency coordination.321 The same could and should be done to respond to climate change.
Finally, it is essential to consider that these proposals are made from an intensely practical standpoint based on existing technical tools. There is a major limitation to using purely technical approaches to address a problem that is, most fundamentally, based on competing values. For instance, William Boyd approaches this problem in relation to the instrument choice debate as to how to reduce carbon emissions. He focuses on carbon trading schemes, arguing that they “emerged as among the most influential cosmopolitan policy projects operating in the world today, despite the fact that their actual record of success is quite limited and despite a growing recognition that they are not capable of doing the work needed to save the climate.”322 Boyd argues that:
[T]he instrument choice debate has impoverished our conception of government and limited our capacity to respond to the climate crisis. It argues that the overly abstract theory of instrument choice that has underwritten widespread enthusiasm for emissions trading and other forms of carbon pricing over the last three decades has worked to diminish our understanding of climate change as a broad public problem and has undermined our ability to mobilize the power of government to respond.323
Economist Mariana Mazzucato’s work, which challenges the popular notion that government does not work and is thus to be distrusted or defunded, raises a similar concern. Her research shows that government action often achieves collective gains beyond the power of private actors. She details numerous examples displaying the government as highly effective at managing, in particular, projects that require long-term investment, significant risk, and a coordinated approach.324 To address a problem that is inherently collective, the balance between private and public power in enforcing environmental law needs to be reimagined.
An agency gatekeeper is but one way to begin readjusting the balance to achieve larger government priorities that are urgently needed to effectively tackle climate change. While this option and that of streamlining and exemptions make for enticing practical short-term solutions, focusing solely on this technical response obscures the deeper problem of government distrust and similarly “impoverishes” our capacity to respond to the climate crisis.
Conclusion
The benefits and hazards of private enforcement, and the extent of the tool’s regulatory powers, have been in high relief in recent years. The arc of this Article suggests that distrust of government has played a part in normalizing the notion that government is ineffective. It has also generally promoted systems that involve the public as a central feature of the regulatory regime. Indeed, private enforcement is understood as a central and necessary feature of the environmental regulatory regime, and under environmental law, citizens are credited for many of the gains in pollution control and public health over the past fifty years. Yet, reliance on private enforcement to tackle large public problems is not a salve, nor should it displace agency involvement.325 The case studies described in this Article demonstrate the failures of private enforcement where many competing values and visions of environmentalism use environmental law in ways that contradict a larger public interest in climate change. Where long-term, risky, or global collective action problems, such as climate change, are at stake, overdependence on private enforcement is a failing proposition. As climate change takes precedence as an overarching environmental problem, the private enforcement regime is failing to adapt, at times producing outcomes that aggravate environmental degradation and frustrate public action to mitigate climate change.
There are important reasons to include citizens as checks on government action. Distrust of executive power is one of the reasons private enforcement was given a central role in statutory enforcement.326 But, where private enforcement itself requires a check to bring it in line with agency objectives, other solutions are needed; ultimately, a broader system of public and private accountability to address climate change can also help to build trust in government action.