This article provides a preliminary assessment of the potential effects of the privatization of regulatory enforcement and speculates on what such a realignment might portend for the regulatory process. Based primarily on an indepth review of the first wave of citizen suits brought under the federal Clean Water and Clean Air Acts, it identifies four key problems that can undermine the citizen suit as a device for regulatory enforcement: (1) Citizen suits must surmount a series of doctrinal barriers that could make it difficult or impossible to mount an effective private enforcement campaign. Courts have generally been able to control inventive litigants’ attempts to use citizen suits for purposes not intended by Congress; (2) Coordination problems between public and private enforcement could undermine the rationality and acceptability of regulatory programs if they become widespread and serious enough; (3) The strength of incentives for the regulators, the regulated, and the groups bringing enforcement actions remains unclear, and as a result it is uncertain whether private enforcement will evolve in fact and in perception as an ethical enterprise motivated by a widely shared vision of the public good, or whether it will be dominated by bounty hunters who will discredit the idea of citizen suits; and (4) When defining the true value of citizen suits and assessing the practical effects of citizen suits, even observers who are working from a common data base and a common set of inferences about the effects of citizen suits on compliance may differ sharply with respect to the desirability of the reported outcomes. There is reason to believe that these problems can be solved if the legal and political systems respond appropriately. Doing so will require an ongoing process of regulatory inquiry and adjustment.
Buffalo Law Review
Barry Boyer & Errol Meidinger,
Privatizing Regulatory Enforcement: A Preliminary Assessment of Citizen Suits Under Federal Environmental Laws,
Buff. L. Rev.
Available at: https://digitalcommons.law.buffalo.edu/journal_articles/548