ACCESS TO JUSTICE

      Three decades ago, the United States pioneered the development of citizen suit provisions in environmental statutes. Congress did this because agencies did not always have the resources or political will to prosecute all environmental offenders. Through these citizen suit provisions Congress deputized ordinary individuals "private attorneys general." It also provided for plaintiffs who substantially prevailed to be awarded attorneys fees, a provision that remains innovative to this day. These attorney fees provisions in particular have empowered numerous citizens and environmental NGOs. Administrative claims fees on environmental issues are also waived for individuals and public interest groups, and injunction bonds are often waived or greatly reduced in public interest cases. The Equal Access to Justice Act has also enabled individuals and public interest groups, as well as small businesses, to obtain attorney fees from the government in certain circumstances.
      In the past fifteen years, U.S. court decisions have narrowed the scope of citizen suits. As a result, despite the numerous provisions for citizen access to justice, there continues to be inadequate procedural opportunities for the public to seek such action. The Supreme Court has held that only people who have a recognized injury that is caused by the defendant and is redressable by a court have "standing" to bring a case, but the recognized injuries and defendants continue to be narrowed. The Court has held that states are immune from citizen suits and often requires an ongoing violation in order for citizen suits to proceed. Also, not all environmental statutes currently contain citizen suit provisions, most notably NEPA. A general provision in the Administrative Procedures Act, however, allows people who have been aggrieved by an agency action that is "arbitrary and capricious" to challenge the action, whether in the environmental context or another context. As a practical matter, the APA provisions are generally weaker than citizen suit provisions in environmental statutes. While recent Supreme Court cases have reiterated the legitimacy of citizen suits, some lower courts have continue to interpret citizen suits in a restrictive manner.
      Other key components to public access to justice in the United States are its history of fair, independent courts and its networks of pro-bono lawyers. For example, the American Bar Association has a network of attorneys willing to do pro-bono work, and non-profit law firms focusing on environmental actions at the national and state levels also provide legal assistance.
      Many citizen suits are resolved by negotiated settlements rather than by trials. While this can save considerable time and money, such arbitration measures are not publicly reviewed, set no precedent, and often issue decisions that are compromises and thus do not fully enforce the law or protect the environment.
      In some situations, particularly at the local level, costs remain prohibitive for citizens to file cases to protect their rights and ensure that environmental laws are followed. This is particularly true for disenfranchised populations. Fees for filing a case are generally less than five percent of annual household income, and are recoverable upon successful action. However, this can vary greatly, particularly in areas with lower household incomes.
      At the state level, few states have citizen suit provisions in their laws. Thus, if there is a violation of state or local environmental law, there are usually few opportunities for citizens or public interest groups to enforce the law as they could if there has been a violation of federal law.

Recommendations on Access to Justice In order to address gaps in public access to justice, the United States could consider: ensuring that all environmental statutes have citizen suit provisions and that the language of the provisions does not restrict its application to ongoing violations; expanding citizen suits at the state level as a basic right of a participatory democracy; and decreasing the cost and improving the accessibility to courts for all communities, especially disadvantaged.