Earlier this year, the Private Environmental Law Enforcement Act (“PELEA”) was introduced in both the New York State Senate and Assembly (S. 1730, A. 4272). The bill was passed in the Assembly and it is now being considered by the Senate. Unlike past years where similar proposals met a chilly reception in the Republican-controlled State Senate, this year the proposed legislation is getting serious consideration by the Democratically-controlled State Legislature.
The legislation, if enacted by the legislature and signed into law by Governor Patterson, would substantially increase access to New York courts by private citizens seeking to bring actions against parties alleged to be in violation of various state laws, regulations or permit requirements, or to enforce against a violation of an administrative or court order requiring remediation of an inactive hazardous waste disposal site. Notably, the current PELEA bill would relax the requirements for standing, granting the right to initiate such litigation to “any person who has suffered or may suffer an injury in fact, regardless of whether such injury is different in kind or degree from that suffered by the public at large.” That is a significant departure from the existing law which requires that a plaintiff demonstrate that it has suffered an injury different in kind or degree from that suffered by the public at large, and a significant difference between federal citizen suit statutes, which generally do not have a relaxed standing requirement.
Prospective plaintiffs would be required to provide notice to the alleged violator, the Commissioner of the State Department of Environmental Conservation (“DEC”) and the Attorney General at least 60 days prior to initiating litigation. However, such notice requirement may be waived if the party can demonstrate a “substantial and imminent hazard to the environment.” Private enforcement actions are prohibited if DEC or the Attorney General is already prosecuting an action for the alleged violation, has reached a settlement or decision in such an action, or is seeking remediation of the site at issue.
The Act would require judicial approval of all settlements and only after notice has been provided to all parties, DEC and the Attorney General. The Act specifically provides for the recovery of costs and “reasonable” attorneys’ fees and expert witness fees by the prevailing party. Although prevailing defendants may also recover costs and fees, they may only do so by motion showing that the action was frivolous and their recovery is capped at $10,000. We will keep you posted to the extent there are further developments in the legislature regarding this potential game changer environmental litigation in New York.
Nice post Jennifer. I live in New York on the Upper West Side and my wife and I frequently take walks down Riverside Avenue. We had heard that someone in New York State government ok’d the dumping of tons of raw sewage in the Hudson River. On our walks we can smell that raw sewage, as if New York needed another stench in the air. Im pretty sure its a hazard to the environment, and in the least it is offensive to my senses.
Comment by New York Movers — June 24, 2009 @ 10:48 am