Historically, "private attorney general" provisions found in state and federal laws have proven to be an effective and important means of protecting community concerns. The purpose of these provisions is to allow regular people to enforce various state and federal environmental laws in cases where they can demonstrate that the government has failed to act or has not acted in a manner that is sufficiently calculated to rectify the problem.

These private attorney general laws have always been important community protectors because, as the government itself often points out, it cannot be everywhere, all of the time. By pooling their financial resources, homeowners affected by local polluting factories, or failing sewage treatment facilities, or companies chronically emitting noxious odors, can fight back.

Perhaps one of the most often employed private attorney general provisions is found in the federal Clean Water Act. Private parties, often joining to form citizens groups, are authorized to enforce federal laws aimed at safeguarding surface and ground waters from illegal discharges. These kinds of cases have been filed by public interest organizations for years. Here in New Jersey, one citizens group went so far as to publish, and sue, its list of the "dirty dozen" top water polluters.

Recent Supreme Court cases now suggest that the rights of citizen groups to continue to bring these lawsuits may be restricted. Specifically, it appears that courts are becoming less willing to find that such groups have "standing" to pursue these legal challenges.

Generally, anyone must have standing to file a lawsuit, and standing is usually easy to demonstrate. The United States Supreme Court has ruled that for a plaintiff to have standing, it needs to establish that it has suffered an injury in fact, that the injury can be traced to the challenged action, and that the injury is likely to be cured if the plaintiff wins in court. If all three prongs are satisfied, an individual is said to have "standing" to pursue its lawsuit and may go ahead with it. Historically, this has not been a hard test to meet.

But in the 1990s, the Supreme Court issued several decisions which began to question the ability of citizen groups to bring private attorney general lawsuits. The Court first evaluated this issue in a lawsuit called Lujan v. National Wildlife Federation. This case concerned a challenge to the Bureau of Land Management's classification of various properties in terms of their development potential. In order to establish standing, several Federation members filed affidavits which stated that each used and enjoyed the subject property.

Historically, most courts would have found that this, alone, met the standing test and nothing further would have been needed. Indeed, a federal appeals court even found that this was enough to prove standing. But, the Supreme Court reversed, and ruled that the affidavits were not sufficient because they stated that the plaintiffs enjoyed property "in the vicinity" of the subject property. The Court held that "in the vicinity" was not enough to establish standing.

Several years later, in Lujan v. Defenders of Wildlife, the Court held that the plaintiffs could not challenge a federal agency's ruling regarding the Endangered Species Act. Specifically, affidavits had been submitted by various members of the plaintiff organization indicating that they had visited the area which was the subject of the challenge and they were interested in the conservation of endangered species. However, because the individuals could not specify when they would again return, the Supreme Court held that there was not sufficient standing to prosecute the lawsuit.

This case really reflected a significant change. Historically, standing has seldom imposed an impediment. Now, because individuals were not sure when they might return to an area in need of protection they were being thrown out of Court. This Lujan decision clearly reflected a significant change: a reduction in the kinds of people who can privately enforce our environmental laws.

In 1998 it even went further. In Steel Co. v. Citizens for a Better Environment, at issue was a suit by an environmental group seeking to enforce a law that requires companies to inventory and report toxic and hazardous substances that are maintained on site. Allegedly, one company had failed to comply with this important law. However, it did comply after the citizens group started its investigation of it. Though the company eventually came into compliance, the group sued and asked that penalties, allowed under the law, be assessed against the company.

The lawsuit was rejected by the Supreme Court, which found that the citizens group did not have standing because the company had already come into compliance. Further, the demand for penalties, and the assertion that penalties would deter other wrongdoers, was not enough to meet this standing requirement.

What does this mean for neighborhood groups seeking to protect their communities? If a chronic wrongdoer apparently can now duck a lawsuit by ultimately coming into compliance, even if it takes years of pressuring, isn't the private attorney general "club" cut in half?

Citizen group law suits are important methods of safeguarding communities from polluters who just do not seem to care. Any group filing this kind of lawsuit must take extra special care to establish that it meets the standing requirement. Otherwise, no matter how noble and important the case might be, the lawsuit may be thrown out of court.

The information provided in this column is written by Stuart Lieberman,a practicing environmental attorney, and is for general information purposes only. It is not legal advice and should not be used in place of legal advice.

Stuart Lieberman, Esq., and IRED.Com, Inc., will not accept any responsibilty for any reliance on the information in this column or any damages whatsoever resulting from reading this column.