Beveridge & Diamond
Related Practices
Related Practices

Summary of New York Environmental Citizen Suit Bill A4272/S1730

Beveridge & Diamond, P.C., April 27, 2009

On February 2, 2009, New York State Assembly members Brodsky, Paulin, Lupardo and Rosenthal introduced a bill (A 4272)1 that would amend the New York Environmental Conservation Law (“ECL”) to grant private citizens the right to initiate civil enforcement actions to remedy environmental harms.  As currently written, the bill authorizes any private citizen who is, or may be, adversely affected to commence an action for injunctive or declaratory relief against any person (i) who is in violation of an administrative or court order compelling investigation or remediation of an inactive hazardous waste disposal site or (ii) who is in violation of any rule, regulation, permit, certificate, or order issued pursuant to certain provisions of the ECL.2  In addition, the bill authorizes a citizen to sue the State if the State is the owner or operator of a pollution source that is in violation of any statutory or regulatory requirement, or, under appropriate circumstances, as a person responsible for an inactive hazardous waste disposal site.  

Prior to bringing an action, the private citizen must provide at least 60 days notice to the alleged violator, the Department of Environmental Conservation (“DEC”), and the Attorney General.  Notice is not required upon a showing of a “substantial and imminent hazard” to the environment.

Similar to the federal Clean Water Act (“CWA”), the bill prohibits a citizen from commencing an action if the DEC or State (1) has commenced and is actively prosecuting an administrative or civil action regarding the alleged violation; (2) has obtained a settlement or disposition of such an action; or (3) is seeking remediation of an inactive hazardous waste disposal site.  The bill also prohibits an action if the alleged violation is already the subject of a consent order, a court order, or any other order setting forth a compliance schedule to eliminate the violation, as long as the alleged violator is in compliance with the schedule.

Also similar to the CWA, the State may intervene as a matter of right in an action commenced by a private citizen under this bill.  The State is separately authorized to appear in the action for the sole purpose of obtaining an award of penalties against any person found liable in the action, as long as the State provides notice within 30 days of commencement of the action.  Likewise, where a private citizen has given proper notice of the intent to commence an action, the citizen may, as a matter of right, intervene in a civil action or administrative enforcement proceeding subsequently initiated by the State or DEC. 

The bill also requires court approval of any settlement with 60 days notice to all parties, DEC and the State, and the proposed settlement must be published in the environmental notice bulletin.  If the Court determines a defendant offered or paid a monetary settlement that exceeded attorney fees, expert fees and costs to a plaintiff who has standing to sue only under this title, as consideration for the settlement, the Court must not approve it. 

Under the bill, the Court has discretion to award costs and reasonable attorney and expert witness fees to a plaintiff.  Although a prevailing defendant may also make a motion to recover costs, in order to succeed the defendant must show that the action or claim brought by the plaintiff was frivolous, and the award is limited to no more than $10,000.   This differs from federal citizen suit provisions, which provide a court discretion to award costs to any prevailing or substantially prevailing party.  The bill provides no mechanism for recovering costs or fees from the State or any of its political subdivisions, even where a court determines the State or subdivision’s conduct was frivolous. 

Finally, the bill contains a “savings” clause, which ensures that rights provided by New York statutes, or under New York common law, to seek enforcement of any statute, rule, regulation, permit, or order, or to obtain any available relief, are not diminished.

This bill is broader than analogous federal citizen suit provisions, and will likely result in additional litigation for regulated parties.  By granting citizens the right to initiate or intervene in enforcement actions, the bill also runs the risk of altering relationships between regulators and regulated parties and significantly changing the current landscape of environmental enforcement in New York. 

With questions or for additional information, please contact Christopher J. McKenzie at (212) 702-5400 or

1 The same bill was introduced by Senator Schneiderman in the New York State Senate on February 5, 2009 (S1730).

2 Specifically, ECL 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 l9, 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).