Unintended Consequence of the Budget Crisis – The Spectre of the Vigilante

By Bruce S. Flushman

[Originally published as a Wendel Rosen Client Update, May 28, 2008.]

We all have heard over the past weeks the depth of the budget crisis in California.  At least some in the regulated community may have thought lack of money might cool the ardor of environmental agency enforcement. However, in what could be a-very costly (to the regulated community) fallout from this crisis, at least one state environmental agency is evaluating whether to urge its enforcement authority be given to private enforcers.

State Water Resources Control Board staff report (Water Boards Baseline Enforcement Report Fiscal Year 2006-2007) on the Board's and Regional Water Quality Control Board's enforcement programs asserts that the agencies lack sufficient resources to run an "effective" enforcement program.  The staff report recommends the Board urge the state Legislature to consider allowing direct citizens' enforcement of water quality violations. 

The Board is responsible for a wide variety of regulatory programs impacting virtually every operating facility and landowner in the State.  Consequently, should this suggestion ultimately be adopted, it could lead to establishment of a legal industry similar to that which arose after passage of Proposition 65.  Citizen groups or individual citizens potentially would have the authority to enforce through litigation every penal statute under the jurisdiction of the Board and the Regional boards and, possibly, receive a bounty (as they do under Proposition 65) for so doing.  This economic incentive would conflict with the duty of an official enforcing a public statute to exercise discretion in enforcement - not every violation is required to be or should be pursued by the enforcement agency.  A citizen enforcer has, as is witnessed in the Proposition 65 arena, no such governor.

With the exception of Proposition 65, California environmental statutes do not, like some federal environmental statutes, authorize citizen enforcement.  Environmental groups have clamored for such authority, but have not been successful in convincing either the Legislature or agencies of its merits.  Indeed, the Water Board staff report does not recommend the option; the report only suggests the option be evaluated. 

In light of the mischief that might result, this recommendation is one to be closely watched.