This section can help determine if litigation is the right action for your issue. The courts provide an important and powerful check on government and polluters. Litigation is a unique type of advocacy that involves navigating the judicial system. Legal action can be helpful in enforcing environmental laws, appealing administrative decisions regarding permits or other rules, and challenging weak laws or regulations. While some advocates may choose to represent themselves in court, it is generally a good idea to find an attorney with environmental litigation experience.
A. Types of Legal Action
There are many different types of legal action. Your attorney typically develops the litigation strategy and makes decisions based on the situation and the governing laws. As the client, however, you alone have the power to set the goals of the litigation and to decide whether or not to settle. Your attorney will usually advise you through the process.
The following descriptions are of some common environmental advocacy situations and examples of legal actions available. In all of these situations we recommend seeking legal counsel.
Challenging a Final Permit Decision
Companies are usually required to get a permit from the appropriate environmental agency to build a new facility, expand an existing plant, dredge a wetland, or do anything else that will affect the environment. Refer to Part 1 to learn about getting notice. Refer to Part 4 to learn about submitting a public comment.
After the comment period ends, the agency will review the comments and take them into consideration when deciding to grant, modify, or deny the permit. The next step is to wait until the agency takes action. In many cases, you will receive notice of a decision if you commented on the permit or agency decision, but you may need to follow the issue yourself by either checking online or calling the appropriate office on a regular basis to ask for updates.
If the agency grants the permit, the next step is to review the decision and evaluate whether it is satisfactory. The agency may have modified the permit to accommodate concerns raised in the public comments. For example, it may have lowered the emissions limits and increased the monitoring and reporting requirements, in which case you may be satisfied. Or it may have ignored your comments and granted the permit as it was, in which case you would not be satisfied. If you are not satisfied, then you should call an attorney, if you have not already.
Usually the filing period to challenge the agency’s decision to grant a permit is much shorter than the original comment period and requires fast action by an attorney. Often it is as short as 30 days. Once the petition is filed, the court has two choices: either to approve the agency’s decision to grant the permit or disapprove it, which usually sends the decision back to the agency and the process starts again. Sometimes, the court will send the decision back, or remand it, with instructions to the agency for further review or specific suggestions to achieve legal compliance. At this stage, the agency again will give public notice and invite the public to submit comments on the proposed permit.
Challenging a Final Rulemaking Decision
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.
Citizen Suits (also known as Citizen Enforcement)
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.
B. Finding an Attorney
Many environmental cases involve a detailed understanding of environmental law, administrative law, civil procedure, and tort law. Therefore, when interviewing an attorney, you may want to inquire whether or not the person has received training in these areas of law. Most attorneys will have received a general education in civil procedure and tort law from law school. Environmental and administrative law training is more specialized.
In some cases, an attorney may decide not to take your case. The law puts a lot of hurdles in the way that make it hard to file some cases and hard to win some cases, even though the hurdles have little to do with the important parts of the case. Unfortunately, the law does not provide a remedy to every harm.
The following are nonprofit legal resources in Missouri focusing on environmental issues:
- Great Rivers Environmental Law Center
- Interdisciplinary Environmental Clinic at Washington University in St. Louis
C. What to Expect from Litigation
The courts are one of many ways to address environmental threats. If you do go to court with your case, you can usually expect the case to take a long time, even years before it is over. It is important to weigh all of your options when considering whether to file a lawsuit.
Trials do not have predictable and reliable outcomes. There is always a risk, no matter how good your case is, that you will not get what you asked for,, even if you win. Many cases end by settling instead of by a trial not as a matter of principle but because it is better for all parties to end the lawsuit early instead of risking everything in a trial which may not even take place for years.
An attorney can help you determine whether legal action is a good course for you to pursue.
D. Court Structure
Courts in Missouri
The basic structure of the courts in Missouri is the same as in federal court. There is a trial court, an intermediate appellate (appeals) court and a final appellate (supreme) court. The trial courts are found at the county level and are referred to as circuit courts. Missouri’s counties and the City of St. Louis are organized into 46 judicial circuits. There is a court in every county. The circuit court is typically in the county seat (or the City of St. Louis) and may be in additional locations in the county. Within the circuit court, there are various divisions, such as associate circuit, small claims, municipal, family, probate, criminal and juvenile. Learn more about the Missouri circuit courts here.
Most issues start in the trial or circuit court with a petition or complaint. Examples include a nuisance complaint between two private parties or a case against the government challenging the issuance of a permit or regulation.
At the federal level, the trial courts include U.S. District Courts located throughout the United States. There are two located in Missouri – the Eastern District Court and the Western District Court. Appeals from these courts go to the 8th Circuit Court of Appeals. The 8th Circuit includes Missouri, Arkansas, Iowa, Minnesota, Nebraska, North Dakota, and South Dakota. The court houses for the 8th Circuit Court of Appeals are located in St. Louis, Missouri and St. Paul, Minnesota. Under limited circumstances, you may seek relief from the U.S. Supreme Court if you are unsuccessful in the U.S. Eighth Circuit. However, the U.S. Supreme Court rarely accepts cases for review.