An underappreciated side effect of the modern conservative movement now epitomized by Trumpism is its dogged pursuit of any legal argument to support “the cause,” no matter how ridiculous or specious. Long-settled questions like nondelegation and the constitutionality of independent regulatory agencies are suddenly, if bizarrely, up for grabs again. Add to this list a new line of argument – now germinating like a mushroom spore in horse manure – that posits that citizen suit provisions, such as those included in the Clean Air Act and Clean Water Act, are unconstitutional infringements upon the so-called unitary executive.
Earlier this month CPR Member Scholar Joel Mintz demolished this argument in a pair of posts published here. In this post, I want to move the ball forward and argue that citizen suits offer an essential opportunity for public engagement in regulatory implementation and thus should be extended universally across the entire regulatory system.
As another CPR Member Scholar, Bill Funk, has recognized, public participation is one of the essential hallmarks of the administrative laws that govern the U.S. regulatory system. The process of public notice and comment on proposed agency rules has come to epitomize the democratic features of the regulatory system, even though prevailing judicial review doctrine has tended to transform this process into a hyper-technical exercise beyond the meaningful reach of average Americans. To the extent that ordinary individuals become involved at all, it has been through so-called mass comment campaigns sponsored by public interest organizations. While these campaigns are useful for, among other things, promoting public awareness of regulatory issues, they have little real impact on agency decision-making since agencies can ignore them with relative impunity.
Yet, the potential for public engagement in regulatory implementation extends well beyond commenting on proposals. Indeed, it is arguable that the unique “expertise” that the public can bring to bear on the regulatory system is better leveraged for what comes before and after this phase – that is, agenda-setting and enforcement, respectively. Understandably, many regulations – particularly in the public health and environmental milieu – involve complex questions of science and law. It would be foolish and inefficient to expect every American to become an expert on these issues for the purposes of shaping a particular rule’s substance.
But there is something Americans can be experts on, and indeed inescapably are experts on – namely, the lived experiences they accumulate through the simple act of going about the normal aspects of their lives: earning a living, raising a family, and participating in their communities. Through our lived experiences, each of us acquires direct knowledge of the real consequences of inadequate regulatory protections or of failures to comply with existing protections. Agencies should actively and systematically seek out this knowledge and draw from it to inform their decisions about where new or stronger regulations are needed and to identify those who must be held accountable for their wrongdoing.
Focusing on just regulatory enforcement, citizen suits are just one of many ways that members of the public can bring their expertise-through-lived-experience to bear. Another approach is illustrated by the Consumer Financial Protection Bureau’s (CFPB) Consumer Complaint Database, which empowers ordinary Americans to notify the agency about potential violations of federal regulations governing financial products and services. As with citizen suits, this database rests on the recognition that agency enforcement personnel can't possibly observe all regulatory violations within their jurisdiction. Instead, both provide an institutionalized mechanism for individuals to serve as the agency’s “eyes” and “ears.” All we have to do is do what we’re going to do anyway: purchase financial products and services and then, if we feel like we’ve been cheated or defrauded, report the problem to the database for further investigation by the agency. Another great feature of the CFPB database is that the complaints are public, which empowers other consumers to use caution when conducting business with certain financial institutions or to be alert about the potential dangers of certain financial products or services.
Of course, financial services and products are highly complex, and cases of cheating and fraud may not always be recognizable to the public. That’s why public complaint databases like the CFPB’s cannot substitute for rigorous and well-resourced enforcement programs at agencies. But if designed well, they can provide an invaluable complement to those programs.
The same, of course, is true for citizen suits, which in the context of the Clean Water Act and Clean Air Act have played a crucial role in holding polluters accountable and advancing the statutes’ environmental and public health goals. Moreover, they have provided the public with a powerful tool for holding the U.S. Environmental Protection Agency (EPA) accountable for failing to properly implement those statutes according to Congress’s clear instructions, thereby serving as an invaluable complement to Congress’s own oversight function. The bottom line is that implementation of the Clean Water Act and the Clean Air Act has been more successful than it otherwise would have been in the absence of those statutes’ respective citizen suit provisions.
Recognizing the valuable functions that citizen suits play, a recent CPR report argues specifically that they be extended to worker health and safety by amending the Occupational Safety and Health Act to include a workers’ private right of action provision. Citizen suits would be especially appropriate in the context of worker health and safety given that workers often have a greater understanding of the risks they face than even Occupational Safety and Health Administration (OSHA) enforcement officials. Plus, as the report notes, OSHA's workplace inspection and regulatory enforcement program has been shamefully weak for decades and would benefit from the complementary role that workers could provide through citizen suits.
Lawmakers could build on the report’s recommendations by enacting broad legislation that establishes a universal citizen suit provision covering any regulatory violation or any failure by an agency to carry out a non-discretionary task required by an authorizing statute. In doing so, lawmakers should take notice of the specific recommendations included in the CPR report on designing an effective citizen suit provision, including those addressing such issues as choice of venue, statutes of limitations, and attorney’s fees.
American have felt disconnected from their government for a long time, a feeling in large part due to their perceived inability to shape the policy decisions that affect them. And why shouldn’t they? After all, we’re on the verge of watching a president who lost the popular vote in 2016 nominate a Supreme Court Justice who will likely be confirmed by a group of senators who earned the votes of well below 50 percent of American voters. While corporate interests have over the last several decades made tremendous inroads in capturing the regulatory system, this institution remains as the most democratic component still standing in our federal government, and that’s thanks to the principles of public participation that form a part of its foundation. Still, this democratic potential could be further reinforced and better secured against future incursions through a significant expansion of citizen suit rights.