Citizen Suit Case
May Backfire On Ecos

WASHINGTON — When Congress passed the Clean Water Act in 1972, it included a citizen suit provision authorizing individuals to sue polluters and collect fines that otherwise would go to the federal treasury.

The New York Times reports that in the face of growing judicial hostility to such suits, a case argued in October before the U.S. Supreme Court could determine whether that provision, and similar clauses in other environmental laws, will continue.

In a case filed by Friends of the Earth and other activist groups stemming from a lawsuit against a hazardous waste incinerator operator in South Carolina, oral arguments before the Justices were highly technical, but Justice Antonin Scalia questioned whether it is the proper function of courts to impose a public penalty in private litigation.

A critic of citizen suit provisions, Scalia says such suits usurp the function of the executive branch of government and bring about an alteration of power between the various branches of government and between state and federal governments.

When an environmentalist lawyer argued that, in the view of Congress, citizen suits are not private lawsuits but rather serve to carry out a public function, Scalia cut him off.

"I understand that Congress has said it," Scalia says. "The question is whether it's constitutional."

None of the other justices, however, appeared willing to turn the discussion into a constitutional debate over the separation of powers.

Linda Greenhouse of The New York Times says activist groups were happy when the Justices agreed to hear their appeal of Friends of the Earth v. Laidlaw Environmental Services, but that joy could prove to be premature. The Supreme Court, which itself has restricted citizen suits in several recent rulings, could use this case to restrict such suits further.