Citizen Suits (S.5013 / A.1424)
February 17th, 2022
RE: AN ACT to amend the environmental conservation law, in relation to granting private citizens the right to initiate civil enforcement actions for violations of such law
MEMORANDUM IN OPPOSITION
Upstate United, a non-partisan, pro-taxpayer, pro-economic growth, education and advocacy coalition made up of business and trade organizations from all parts of Upstate New York, opposes this legislation.
This measure would add a new Environmental Conservation Law (ECL) Title 45, titled Private Environmental Law Enforcement Act. It would allow private citizens the ability to seek enforcement through the courts where there has been a violation of ECL provisions relating to protection of waters, water supply, water power, drainage, solid and hazardous waste, freshwater and tidal wetlands, pesticides and hazardous substances bulk storage. The bill would allow plaintiffs to be awarded costs, including attorneys’ fees.
While this measure would certainly result in more litigation in the state, we do not believe that it will meaningfully improve environmental protections.
The legislation would significantly increase access to New York courts by private citizens seeking to bring actions against parties alleged to be in violation of various state laws, regulations or permit requirements. The bill would relax the requirements for standing, allowing “any person who has suffered or may suffer an injury in fact, regardless of whether such injury is different in kind or degree from that suffered by the public at large” to file a lawsuit. This is a significant change from current law, which requires a plaintiff to demonstrate that they have suffered an injury different in kind or degree from that suffered by the public at large.
This legislation would allow broad based citizen suit prosecutions to succeed even when the “violation” has no real impact on environmental quality, nor measurable harm to anyone.
With the development of effective state environmental enforcement programs over the past two decades, the need for broad citizen lawsuit provision no longer exists. Enforcement of state laws should be done by the government, not by third parties or groups seeking to advance a particular agenda.
We also note that the bill would allow citizen lawsuits to be brought even where the state Department of Environmental Conservation (DEC) and/or the Attorney General’s office have decided that an alleged violation of the ECL does not warrant enforcement.
By opening the door to more lawsuits, this legislation places the interests of trial lawyers over taxpayers. New York is already one of the most litigious states in the nation. An increase in environmental lawsuits will adversely impact the Upstate economy.
Rather than enacting legislation that will result in more lawsuits being brought, we urge state lawmakers to instead enact reforms that will benefit taxpayers, local governments, school districts and businesses.
For these reasons, Upstate United opposes the enactment of this legislation.