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

82 Pages Posted: 6 Oct 2008 Last revised: 3 Feb 2013

Robin Kundis Craig

University of Utah S.J. Quinney College of Law

Date Written: 2001

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.

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

Suggested Citation

Craig, Robin Kundis, Will Separation of Powers Challenges 'Take Care' of Environmental Citizen Suits? Article II, Injury-in-Fact, Private 'Enforcers,' and Lessons from Qui Tam Litigation (2001). University of Colorado Law Review, Vol. 72, p. 94, 2001; FSU College of Law, Public Law Research. Available at SSRN: https://ssrn.com/abstract=1279123

Robin Kundis Craig (Contact Author)

University of Utah S.J. Quinney College of Law ( email )

383 South University St.
Salt Lake City, UT 84112-0730
United States
801-585-5228 (Phone)

HOME PAGE: http://https://faculty.utah.edu/u0793211-ROBIN_KUNDIS_CRAIG/biography/index.hml

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