Sometimes agencies like EPA or MDNR will issue regulations — rules that describe in more detail what the laws require. Like a permit, rules are subject to public notice, review and comment, which may include public hearings as well. After you have submitted comments on the proposed rule, you may then challenge the final rule in state or federal court if the agency’s final decision fails to comply with the law. The process of challenging a rule differs based on the agency involved. 

After the agency reviews the comments and decides what to do with them, the final rule will appear in the federal or state register. At this point, if you are unhappy with the action taken, you should consider calling an attorney as soon as possible, if you have not already. Deadlines for challenging a final rule are very strict. From this point on, the rest of the challenge will occur in the courts. 

The court has the option of affirming the rule or setting it aside, in whole or in part. The court can set the rule aside for reasons such as a finding that the agency did not have legal authority to issue regulations or that the agency misinterpreted the statute or failed to gather factual support for its rule. The agency may start over again with a new rule.

When a polluter violates some federal or state environmental laws, citizens can bring suit to request a court order requiring compliance and assessing a penalty. These actions are often referred to as “citizen suits.” If you think a facility is violating the law, the most important action you can take is to report the environmental problem to the appropriate agency. Then, if the agency does not respond to your satisfaction, you may—with the help of a lawyer—be able to use a “citizen suit” provision to force the company to comply. Citizen-suit penalties are paid to the government; citizen-suit provisions do not provide for damages or payments to the citizen enforcer other than reimbursement for attorney fees and expert witness costs. 

In an ideal world, the responsible government agency will respond to your complaint by following up with an investigation into the problem. If they send inspectors out and find a violation, it is the agency’s duty to enforce the law. If the agency is unable or unwilling to do so, then you can enforce the law under certain environmental statutes, such as the Clean Water Act (CWA) or the Clean Air Act (CAA).  

The next step is to consider calling an attorney if you have not already. From there, the attorney can begin the process of suing to enforce the law if sufficient evidence of a violation exists. Under some laws, the first step is a “Notice of Intent to Sue.” This filing notifies the violator that it is in violation and gives it an opportunity to rectify the problem without penalty. The letter also notifies the government of the problem and sometimes leads an agency to take an enforcement action and in doing so, makes a lawsuit unnecessary. Although the lawsuit is thwarted, you or your organization might get a seat at the table and have input in the agency’s enforcement action. If neither the agency nor the violator resolves the problem within the time provided by the Notice of Intent to Sue, then the attorney can file suit on your behalf in the appropriate court.  

Relief in a citizen enforcement suit can take the form of an injunction, civil fines paid to the treasury, and/or recovery of costs and attorney fees. However, the more likely outcome is a negotiated settlement, by the parties, though sometimes with guidance and/or pressure from the court. In that situation, you as the plaintiff would probably not get all the relief sought. You may, however, have the flexibility to craft specific remedies that are more satisfying to you or your organization than those the court may have imposed. In  some cases, these remedies can include Supplemental Environmental Projects (SEPS) paid for by the polluter to address or mitigate environmental concerns related to the violation. In one case MCE brought against a water park for Clean Water Act violations, the polluter put $200,000 into watershed restoration work that went to local groups to support a stream team, removing invasives, and planting native species.

Tort actions refer to lawsuits brought between private parties, such as individual citizens and corporations where the individual has been harmed by something the other party did. A “toxic tort” occurs when a person or company engages in an activity that endangers the environment or human health, and another person suffers injury as a result. A toxic tort lawsuit seeks money compensate for the  injury resulting from the dangerous activity.  In a toxic tort suit, the court can award damages to cover medical expenses, pain and suffering, and sometimes “punitive damages,” which is a monetary award designed to punish the guilty party.  That makes these cases different from citizen suits where the party is usually asking the judge to make a permit holder or the government do something or stop doing something. Dark Waters, Erin Brockovich, and A Civil Action are movies about toxic torts.  

Citizen enforcement and toxic tort suits both begin with detailed documentation of the environmental and/or health problems. Refer to Chapter 3 to learn more about how to document a problem.   The injured person usually shares evidence with their attorney about the injury and the polluter’s violation (if possible). The attorney will evaluate the evidence and analyze the law to decide whether or not to pursue a toxic tort suit on behalf of the client against the polluter.