Will Separation of Powers Challenges 'Take Care' of Environmental Citizen Suits? Article II, Injury-in-Fact, Private 'Enforcers,' and Lessons from Qui Tam Litigation

Abstract:     
What are environmental citizen suits? This question has deep constitutional implications when the focus turns to the relationship between citizen suit plaintiffs and the federal Executive. Such resonances are especially acute because the federal courts have traditionally viewed citizen suits as a type of enforcement action, supplementing state and federal environmental enforcement efforts.

Four Justices of the U.S. Supreme Court have suggested that environmental citizen suits may violate separation of powers principles on Article II grounds. Specifically, so the argument goes, in creating citizen suits Congress has impermissibly interfered with the President's constitutional duty to "take Care that the Laws be faithfully executed."

This Article explores the legitimacy of that Article II concern by evaluating citizen suits through the lens of federal qui tam provisions. It concludes that, given the Supreme Court's imposition of an Article III standing requirement on environmental citizen suits, such suits look more like private actions than public actions and hence should survive Article II scrutiny.

Number of Pages in PDF File: 82

Keywords: citizen suit, qui tam, Article II, Article III, standing, separation of powers

Accepted Paper Series