“Disappearing Acts: How Parens Patriae Makes Private Environmental Suits Vanish in the Blink of an Eye”

Appearing in KJEANRL Vol. 1 No. 1 this comment was written by former Editor-In-Chief Chris Way. The abstract was written by staff member Stephanie Wurdock.

Citizen suits essentially allow private citizens to litigate on behalf of themselves and the general public against entities who violate environmental statutes. However, after those citizens bring suit, the government may assume the role of “parens patriae” in which it acts on their behalf. The result is often a “consent decree,” a settlement agreement between the government and the offender. This action ends in dismissal of the original citizen-suit.

By focusing on a 2004 citizen-suit in which injunctive relief and civil penalties were sought for numerous violations of the Clean Air Act (CAA), one may examine the reasons for the parens patriae policy. This in-depth examination provides a path for exploring the potential implications of barring subsequent private suits brought under citizen provisions.

An important question concerning suits of this nature is when parens patriae applies and whether or not it creates privity between the government agency and the private citizens it represents. The courts have followed a number of different guidelines to make such determinations and to decide when a consent decrees bar further citizen-suits. Looking to the standards developed by the Eighth, Seventh, and Second Circuits presents a comprehensive view of these approaches. Furthermore, an analysis of those courts’ decisions provides a basis for the holding in the 2004 citizen-suit in which the “diligent prosecution test” of the Seventh Circuit was adopted.

The implications of the Court’s holding include the potential for widespread application of the “diligent prosecution” standard in similar suits and the unaffected ability of the government to address environmental violations. The decision also has significant implications for what remedies are available to the individual citizens of the original plaintiff class. Finally, the holding provides additional individual causes of action for persisting environmental violations.