Recent Supreme Court decisions rocked the federal agencies and limited their ability to promulgate new environmental regulations. From the creation of the new Major Questions Doctrine in West Virginia v. EPA to the overturning of Chevron Deference in Loper Bright, this court has prioritized limiting the power of administrative agencies.
However, not all of the court’s decisions have been detrimental to environmental causes. Notably, it’s what the Court hasn’t said that bolsters civil litigation brought by states and individuals. The Court denied cert several times in litigation brought by states against carbon majors, allowing those cases to continue forward. Last month, similar cert denials allowed major citizen suits attempting to enforce environmental laws to stand and move forward. This shift indicates that the Court may be skeptical of federal agency enforcement, but is more open, or at least agnostic, to citizen enforcement. A recent memo from McGlinchey Stafford discusses the implications:
“As federal enforcement priorities potentially shift, citizen suits are expected to become a more robust backstop, filling any perceived gaps in regulatory oversight. This means regulated entities should anticipate a heightened risk of litigation from environmental organizations, underscoring the critical importance of robust environmental compliance programs. The ability of citizens to seek both injunctive relief and significant civil penalties payable to the U.S. Treasury provides a powerful incentive for companies to adhere to environmental regulations.”
One of the cases at hand was Port of Tacoma, et al. v. Puget Soundkeeper Alliance where cert denial resulted in citizen plaintiffs being allowed to enforce state Clean Water Act Permits. The other is ExxonMobil Corp., et al. v. Environment Texas Citizen Lobby, et al. Denial of cert in this case allowed a $14.25 million verdict against ExxonMobil to stand after citizens sued for damages caused by air pollution. If the Supreme Court continues its trend of allowing citizen enforcement, citizens may pick up the slack that slowing federal enforcement creates.
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