Lawmakers Consider Enlisting Citizens In Water Quality Enforcement

Feb 12, 2018

As environmental advocates grow increasingly worried about whether government regulators will adequately enforce new water quality rules, some lawmakers want to give regular citizens the authority to hold polluters to account.

Chittenden County Sen. Chris Pearson sits on the Senate Committee on Natural Resources. When state officials come in to testify about the state of play on the water quality front, Pearson says they tend to paint a pretty rosy picture.

“Literally the secretary of [agriculture] has told us, ‘Things are going great,’” Pearson says.

Pearson says he’s getting contradictory assessments from constituents back home.

“Ask folks in Franklin County if they think the water cleanup efforts are going great," Pearson says, referring to the blue-green algae blooms that often spout in that area of Lake Champlain. "I don’t think they do. So how do you hold them accountable?”

Pearson says one way to improve accountability is to empower regular citizens to join the state’s water quality enforcement apparatus.

Proposed language would give Vermont residents the authority to file civil suits against developers, farms, municipalities, or anyone else they believe is violating the state’s water quality laws. When government fails to hold polluters feet to the regulatory fire, Pearson says citizens could fill the void.

“This I see as putting more boots on the ground to have a better shot at adequately enforcing our clean water laws,” Pearson says.

"This is intended to allow citizens to augment governmental enforcement of environmental laws." — Chris Kilian, Conservation Law Foundation

The proposal is not a novel idea.

“The concept of citizen suits, or citizen enforcement, to augment government enforcement of environmental laws has been around for 50 years,” says Chris Kilian, director of the Conversation Law Foundation’s Vermont office.

Kilian’s organization has used legal mechanisms to enforce all manner of federal water quality laws in Vermont. Lawsuits filed by CLF, in fact, led to the federal pollution reduction mandate that now governs work on Lake Champlain.

Kilian says authorizing citizen suits at the state level aren’t an indictment of government regulators. He says it’s merely an acknowledgement of their limitations.

“The whole concept here is to allow citizens of the state to backstop the government where the government usually just doesn’t have the resources to do the job,” Kilian says.

Under the proposal, citizens would be able to file suit in county environmental courts. If a judge found evidence of non-compliance on the part of the alleged polluter, then the state would have a period of time to step in and take over the case.

If the state could not or did not initiate an enforcement action, then the citizen plaintiff could ask the court to force the polluter to come into compliance. However, citizens would not be able to insinuate themselves in cases where the state had already initiated an enforcement action.

Secretary of Natural Resources Julie Moore says she isn’t opposed to the concept of citizen enforcement. But, she says “the current framing we feel is untenable.”

The proposal, for instance, would require the state to become an official party in any civil complaint filed by a citizen.

“And the resource challenge that that would pose for us in terms of staffing those cases is potentially significant,” Moore says.

The proposal has faced some choppy legal waters in the past in Montpelier - a similar proposal failed back in the 1990s. But according to Addison County Sen. Chris Bray, who chairs the Senate Committee on Natural Resources, the provision has made the final cut in a larger water-quality funding bill scheduled for a committee vote this week.

This post was edited on 2/14/18 to update the legislative status of the citizen suit provision