Grants private citizens broad authorization to commence civil judicial actions under certain titles of the environmental conservation law

The bill authorizes any private citizen who has an interest which is or may be adversely affected to commence civil judicial actions to remedy environmental harms under certain circumstances. Any such party may, under these circumstances, commence a civil action in a court of competent jurisdiction for injunctive relief against any person who is alleged to be in violation of any rule, regulation, permit, certificate or order promulgated or issued pursuant to: sections 15-0501, 15-0503 or 15-0505 of Title 5 and Title 27 of Article 15 (protection of Waters and Water Supply), Titles 5, 7, 8, 10 or 17 of Article 17, Articles 19, 23, 24, 25, 33, 37 or 40 (Water Pollution control, Air pollution control, Mineral Resources, Freshwater Wetlands, Tidal Wetlands, Pesticides, Hazardous Substances Listing and Hazardous Substances Bulk Storage), or Title 3, 7, 9 or 15 of Article 27 (Solid, Infectious and Hazardous Waste) of the ECL. A civil action may also be commenced to enforce a violation of an administrative or court order compelling remediation of an inactive hazardous waste disposal site. The State may only be sued pursuant to this bill in its capacity as the owner or operator of a pollution source in violation of any statutory or regulatory requirements, or as a person responsible for an inactive hazardous waste disposal site pursuant to ECL Article 27, Title 13.

The bill requires prior notice to the alleged violator, the Commissioner of Environmental Conservation and the Attorney General as a condition precedent to commencement of a citizen suit. Such notice must be served at least 60 days prior to the commencement of an action by a private citizen. This notice requirement may be waived if a substantial and imminent hazard to the environment can be shown. The plaintiff must follow procedures as may be promulgated by the Commissioner in providing the required notice.

The bill also prohibits a citizen suit if the commissioner or the Attorney General has commenced and is actively prosecuting an administrative or civil action relative to the alleged violation; or has obtained a settlement or disposition of such an action; or is seeking remediation of the inactive hazardous waste disposal site. In addition, no action may be commenced if the alleged violation is the subject of a consent order, a court order or any other order setting forth a compliance schedule for the elimination of the violation, provided the alleged violator is in compliance with the schedule.

The Attorney General is given the right to intervene in any civil action commenced by a private citizen under this bill. A private citizen who has given notice of intent to commence an action under this bill may intervene upon timely motion as a matter of right in any civil action or administrative enforcement proceeding subsequently commenced by the Attorney General or the Department of Environmental

Conservation relating to the violation alleged in the notice of intent.

No citizen suit may be settled except upon an affirmative order of the court upon notice to all parties, the Commissioner of Environmental Conservation and the Attorney General. The court will not approve a settlement if the court determines-that a monetary settlement in excess of total costs has been offered or paid by a defendant in exchange for settlement. Awards of the costs of litigation and reasonable attorney and expert witness fees may be made by the court to a plaintiff in any action brought under this bill, where the court determines such awards to be appropriate. In addition, a prevailing defendant may make a motion to recover costs, however, he or she must show that the action or claim brought by the plaintiff was frivolous. No such awards for costs or fees may be made against the State or any of its political subdivisions.

The bill contains a "savings" clause to ensure that rights existing under statutory or common law to seek enforcement of any statute, rule, regulation, permit or order, or to obtain any available relief, are not diminished.

Justification

The large number of violations of environmental laws, rules, regulations, permits, certificates and orders makes it impossible for the State to pursue timely enforcement actions in every instance where such actions may be necessary or appropriate. This bill provides private citizens with the right to seek enforcement through the courts in instances involving violations of those provisions of the ECL relating to protection of waters, water supply, water power, drainage, solid and hazardous waste, freshwater and tidal wetlands, pesticides and hazardous substances bulk storage. To avoid duplication of effort, the bill prohibits initiation of a citizen suit when a particular activity or condition constitutes a violation of the ECL if the Commissioner or the Attorney General is diligently prosecuting an administrative or judicial proceeding.

With limited enforcement resources, the State simply cannot bring an enforcement action for every violation of the ECL or the rules, regulations, permits, certificates or orders issued thereunder. As a result, a member of the regulated community may reason that if compliance with legal requirements, which may be costly, is postponed, it may be worth running the risk that an enforcement action will be commenced.

A broad citizen suit bill would allow the State to marshal the pool of resources and assistance that could be provided-by concerned citizens. Allowing private citizens to seek judicial enforcement of certain ECL violations would increase the likelihood that such violations would be prosecuted. This increased enforcement effort would have a significant deterrent effect on the regulated community.

By requiring notice to the Department and the Attorney General of the intent to institute a citizen suit, allowing the State to intervene in such suits and requiring notice to the Department and the Attorney General prior to settlement of such suits, this proposal assures that the State can oversee and provide input into the conduct and settlement of citizen suits. The State's role as guardian of the environment and enforcer of the State's environmental laws is thereby preserved. The public is both willing and able to assist in this enforcement effort, as evidenced by the number of citizen suit litigations under federal laws and the overwhelming popular support for New York's recently enacted "Toxic Torts" bill. Citizen suit provisions are contained in numerous federal environmental statutes, including the Clean Air Act, the Clean Water Act, the Resource Conservation and Recovery Act, the Toxic Substances Control Act, the Safe Drinking Water Act, the Noise Control Act and the CERCLA reauthorization bill.

A pooling of all available resources will assist both public and private sectors in achieving their common goal of increased compliance with the environmental laws of New York State. It will enable government to allocate scarce enforcement resources more efficiently by allowing it to concentrate on the most significant violations with the assurance that lower priority violations will not be overlooked.

Prior legislative history

2013-2014: S.2769A/A.2047A -- Died in EnCon/Advanced to Third Reading 2011-2012: Referred to Rules/Advanced to Third Reading 2009-2010: A04272(Brodsky)- Passed Assembly 2007-2008: A01100(Brodsky)- Third Reading 2005-2006: A01885(Brodsky)- Third Reading 2003-2004: A05936(Brodsky)- Passed Assembly 2001-2002: A00455(Brodsky)- Passed Assembly 1999-2000: A0956A(Brodsky)- Third Reading 1997-1998: A1620A(Brodsky)- Passed Assembly 1995-1996: A01918(Brodsky)- Passed Assembly

Fiscal implication for state and local governments

None.

Effective date

This act shall take effect immediately; provided, however, that no action authorized by section 71-4501 of the environmental conservation law, as added by section one of this act, may be commenced against any city, village, town or county prior to September 1, 2019 and nothing in this act shall affect any action commenced pursuant to section 71-1311 of the environmental conservation law prior to such effective date.