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Citizen suits provide a vehicle by which individuals or environmental organizations can contribute to the protection of the environment by bringing lawsuits against polluters, typically industrial or government operations that either 1) discharge illegal quantities of toxic substances into water, 2) emit excess air pollutants, or 3) violate federal and state laws pertaining to the handling of solid and hazardous waste.
From 1985 to 2000, Peter Henner was one of the most active litigators of citizen suits in New York State. Most citizen suits have been brought by environmental organizations such as the Natural Resources Defense Council, Earthjustice (formerly known as the Sierra Club Legal Defense Fund) and the Hudson Riverkeeper. Peter is the only lawyer in New York State, and one of the very few lawyers in the country, who has attempted to systematically develop and pursue such lawsuits as an individual practitioner.
Peter hired researchers to review the files of the New York State Department of Environmental Conservation to determine which corporations or governmental bodies are violating their waste water discharge permits. This information was then shared with environmental organizations, which retained Peter to represent them in citizen suits under the federal Clean Water Act, to stop the pollution, recover penalties for the United States, and to fund environmental mitigation projects. Today, the information is readily available on the EPA website, and concerned citizens and environmental organizations can easily identify polluters who should be sued.
When cases were successful, the defendant typically paid Peter's attorney's fees; if the case was unsuccessful (usually because the prospective defendant stopped violating the law, or entered into an agreement with New York State before the lawsuit) Peter recovered nothing. Between 1995 and 2000, Peter brought over 30 such cases on behalf of the Alliance for Environmental Renewal, an organization that he helped to establish in 1993.
In addition to lawsuits generated by his own research, Peter has also successfully litigated a citizen suit against the Hartford, Connecticut wastewater treatment plant on behalf of 25 families who lived near Wethersfield Cove, on the Connecticut River. He also acted as special counsel to the New York Metro Postal Workers Union, in a citizen suit under the Resource Conservation Recovery Act, which sought to require a clean-up of the central Manhattan mail facility as a result of anthrax contamination in the fall of 2001.
It has become much harder to bring citizen suits in recent years. Decisions of federal courts, including the United States Supreme Court, have made it much more difficult to establish standing. An increasingly conservative judiciary is philosophically hostile to the concept of private citizen enforcement of environmental laws. Furthermore, the policies of both New York State and the EPA actively discourage citizen suits.
Nevertheless, Peter is still willing to pursue meritorious citizen suits. In 2008, he was able to negotiate a $40,000 settlement upon behalf of the Alliance for Environmental Renewal and Save the Pine Bush in a suit against Crossgates Mall, the largest shopping mall in New York's capital district, for water pollution caused by salt in parking lot runoff.
Today, reduced resources have made it harder for governmental agencies to enforce environmental laws and there is a greater need than ever for private enforcement through citizen suits.