What Happened
Senator Mike Lee (R-UT), Chairman of the Senate Committee on Energy and Natural Resources, recently introduced legislation that would eliminate citizen suits under the federal Clean Air Act (CAA). The Fair Air Enforcement Act (S. 3049) would repeal Section 304 of the CAA (42 U.S.C. § 7604) in its entirety and amend other provisions that reference citizen suits. The bill has been referred to the Senate Committee on Environment and Public Works, but currently has no cosponsors or House companion legislation.
Unless the Senate eliminates the filibuster—a step President Trump has recently urged—the bill is unlikely to secure the 60 votes required for passage. Further, were the bill to become law as drafted, the repeal would be limited to the CAA; the citizen suit provisions in other environmental statutes would remain intact. Even so, the bill may reflect renewed Congressional interest in reforming a long-standing and formidable mechanism for citizens to redress alleged governmental inaction.
For over 50 years, citizen suit provisions in the major environmental statutes have authorized non-governmental organizations (NGOs), including environmental groups and industry associations, to act as “private attorneys general.” These provisions allow private citizens to enforce environmental laws and compel the U.S. Environmental Protection Agency (EPA) to complete nondiscretionary actions. Citizen suits often result in significant costs to companies and complex injunctive requirements.
Senator Lee stated that the Fair Air Enforcement Act seeks to “protect Americans from lawfare by climate extremists,” “protect businesses from revenge lawsuits,” and “stop the weaponization of the judicial system” through the elimination of citizen suits. Senator Lee introduced the bill shortly after a Utah defendant in Utah Physicians for a Healthy Environment v. DieselSellerz.com was jailed for contempt after failing to pay more than $800,000 in court-ordered attorneys’ fees resulting from a CAA citizen suit.
Senator Lee’s proposal comes during an inflection point for citizen suit enforcement. Earlier this year, the U.S. Supreme Court declined to review ExxonMobil’s cert petition in ExxonMobil Corp., et al. v. Environment Texas Citizen Lobby, et al, where the Fifth Circuit upheld a $14.25 million civil penalty in a CAA citizen suit. This decision, combined with EPA’s shift away from enforcement, may have the effect of encouraging eNGO citizen suit litigation.
What the Bill Would Do
If enacted, the legislation would repeal a longstanding CAA statutory mechanism that allows environmental organizations, citizens, and regulated entities to enforce the CAA directly or challenge agency inaction. The Fair Air Enforcement Act would also modify related provisions that create nondiscretionary EPA duties enforceable via citizen suit, including:
- Preventing and remedying visibility impairment resulting from manmade pollution;
- Creating and updating state implementation plan (SIP) conformity regulations;
- Promulgating new motor vehicle and engine emission standards;
- Preparing economic impact assessments for new or updated regulations; and
- Updating the outer continental shelf air pollution regulations.
Finally, the bill would also remove citizen suit mechanisms from the American Innovation and Manufacturing Act of 2020 (AIM Act). The AIM Act imposes a phased “stepdown” of the quantities of HFCs that can be produced and consumed.
Political Outlook
While S. 3049 would eliminate rather than reform the CAA’s citizen suit provision entirely, prior efforts to curtail citizen suit provisions in other environmental statutes have failed. For instance, Representative Duncan Hunter (R-CA) introduced legislation in 2015 and 2019 to limit recoverable litigation costs in Clean Water Act citizen suits, but neither bill advanced out of committee. Similarly, a 2018 proposal to reform attorney fee awards under the Endangered Species Act passed the House but died in the Senate. For now, the Fair Air Enforcement Act seems destined for a similar fate.
Still, Senator Lee’s bill highlights ongoing political divisions over the role of private enforcement in environmental law. Even if the bill fails, it may renew congressional and industry interest in reforming citizen suit provisions or inspire similar bills related to other environmental statutes.
And reform of some kind, at least with respect to the attorney fees provisions, may be merited. As initially conceived, Congress’s fee-shifting scheme was meant to ensure that the costs of a lawsuit would not deter ordinary citizens directly impacted by pollution from seeking non-discretionary governmental action or from enforcing violations.
Congress likely was not envisioning the citizen suits of today. Local citizens do not champion many suits. Instead, most are brought by highly sophisticated, well-funded national environmental NGOs. These groups may then partner with private plaintiff firms to wage years of relentless discovery and aggressive public media campaigns as a way to force their organization’s policy-oriented outcomes—like the dismantling of an industry (as with Beyond Coal), the halting of pipeline infrastructure, or securing millions in penalties and injunctive relief to address the purported “enforcement” of self-reported violations. This is, of course, in addition to running the attorney fee meter, plus the costs for expert witnesses and other court costs. The new citizen suit paradigm seems to have become its own business model in some cases, such that the statutory fee-shifting provisions may actually now be incentivizing lawsuits—or at least shaping the litigation tactics of sophisticated environmental NGOs and their plaintiff firms—in ways that Congress likely never intended.
What Regulated Entities Should Consider Doing in Response
Although passage is improbable, this proposal signals potential future efforts to reshape environmental enforcement frameworks. Businesses and trade associations should:
- Monitor congressional and administrative developments affecting enforcement and citizen suit trends.
- Review existing compliance programs and enforcement exposure.
- Consider engaging with trade or industry groups that may comment on the bill or related rulemakings.
Blake Welborn contributed to this article
