BILL NUMBER: S3345
SPONSOR: PARKER
 
TITLE OF BILL:
An act to amend the environmental conservation law, in relation to
granting private citizens the right to initiate civil enforcement
actions for violations of such law
 
PURPOSE: OR GENERAL IDEA:
To grant private citizens broad authorization to commence civil judicial
actions under certain titles of the Environmental Conservation Law
(ECL).
 
SUMMARY OF SPECIFIC PROVISIONS:
The bill adds a new Title 45 to Article 71 of the ECL to provide broad
authority to citizens to bring civil actions to remedy environmental
injury.
The bill authorizes any private citizen who has an interest which is or
may be adversely affected to commence civil judicial actions to remedy
environmental harms under certain circumstances. Any such party may,
under these circumstances, commence a civil action in a court of compe-
tent jurisdiction for injunctive relief against any person who is
alleged to be in violation of any rule, regulation, permit, certificate
or order promulgated or issued pursuant to: sections 15-0501, 15-0503 or
15-0505 of Title 5 and Title 27 of Article 15 (protection of Waters and
Water Supply), Titles 5, 7, 8, 10 or 17 of Article 17, Articles 19, 23,
24, 25, 33, 37 or 40 Mater Pollution control, Air pollution control,
Mineral Resources, Freshwater Wetlands, Tidal Wetlands, Pesticides,
Hazardous Substances Listing and Hazardous Substances Bulk Storage), or
Title 3, 7, 9 or 15 of Article 27 (Solid, Infectious and Hazardous
Waste) of the ECL. A civil action may also be commenced to enforce a
violation of an administrative or court order compelling remediation of
an inactive hazardous waste disposal site. The State may only be sued
pursuant to this bill in its capacity as the owner or operator of a
pollution source in violation of any statutory or regulatory require-
ments, or as a person responsible for an inactive hazardous waste
disposal site pursuant to ECL Article 27, Title 13. The bill requires
prior notice to the alleged violator, the Commissioner of Environmental
Conservation and the Attorney General as a condition precedent to
commencement of a citizen suit. Such notice must be served at least 60
days prior to the commencement of an action by a private citizen. This
notice requirement may be waived if a substantial and imminent hazard to
the environment can be shown. The plaintiff must follow procedures as
may be promulgated by the Commissioner in providing the required notice.
The bill also prohibits a citizen suit if the commissioner or the Attor-
ney General has commenced and is actively prosecuting an administrative
or civil action relative to the alleged violation; or has obtained a
settlement or disposition of such an action; or is seeking remediation
of the inactive hazardous waste disposal site. In addition, no action
may be commenced if the alleged violation is the subject of a consent
order, a court order or any other order setting forth a compliance sche-
dule for the elimination of the violation, provided the alleged viola-
tor is in compliance with the schedule.
The Attorney General is given the right to intervene in any civil action
commenced by a private citizen under this bill. A private citizen who
has given notice of intent to commence an action under this bill may
intervene upon timely motion as a matter of right in any civil action or
administrative enforcement proceeding subsequently commenced by the
Attorney General or the Department of Environmental Conservation relat-
ing to the violation alleged in the notice of intent.
No citizen suit may be settled except upon an affirmative order of the
court upon notice to all parties, the Commissioner of Environmental
Conservation and the Attorney General. The court will not approve a
settlement if the court determines-that a monetary settlement in excess
of total costs has been offered or paid by a defendant in exchange for
settlement. Awards of the costs of litigation and reasonable attorney
and expert witness fees may be made by the court to a plaintiff in any
action brought under this bill, where the court determines such awards
to be appropriate. In addition, a prevailing defendant may make a motion
to recover costs, however, he or she must show that the action or claim
brought by the plaintiff was frivolous. No such awards for costs or fees
may be made against the State or any of its political subdivisions.
The bill contains a "savings" clause to ensure that rights existing
under statutory or common law to seek enforcement of any statute, rule,
regulation, permit or order, or to obtain any available relief, are not
diminished.
 
JUSTIFICATION:
The large number of violations of environmental laws, rules, regu-
lations, permits, certificates and orders makes it impossible for the
State to pursue timely enforcement actions in every instance where such
actions may be necessary or appropriate. This bill provides private
citizens with the right to seek enforcement through the courts in
instances involving violations of those provisions of the ECL relating
to protection of waters, water supply, water power, drainage, solid and
hazardous waste, freshwater and tidal wetlands, pesticides and hazardous
substances bulk storage. To avoid duplication of effort, the bill
prohibits initiation of a citizen suit when a particular activity or
condition constitutes a violation of the ECL if the Commissioner or the
Attorney General is diligently prosecuting an administrative or judicial
proceeding.
With limited enforcement resources, the State simply cannot bring an
enforcement action for every violation of the ECL or the rules, regu-
lations, permits, certificates or orders Issued thereunder. As a result,
a member of the regulated community may reason that if compliance with
legal requirements, which may be costly, is postponed, it may be worth
running the risk that an enforcement action will be commenced.
A broad citizen suit bill would allow the State to marshal the pool of
resources and assistance that could be provided-by concerned citizens.
Allowing private citizens to seek judicial enforcement of certain ECL
violations would increase the likelihood that such violations would be
prosecuted. This increased enforcement effort would have a significant
deterrent effect on the regulated community. By requiring notice to the
Department and the Attorney General of the intent to institute a citizen
suit, allowing the State to intervene in such suits and requiring notice
to the Department and the Attorney General prior to settlement of such
suits, this proposal assures that the State can oversee and provide
input into the conduct and settlement of citizen suits. The State's role
as guardian of the environment and enforcer of the State's environmental
laws is thereby preserved. The public is both willing and able to assist
in this enforcement effort, as evidenced by the number of citizen suit
litigations under federal laws and the overwhelming popular support for
New York's recently enacted "Toxic Torts" bill. Citizen suit provisions
are contained in numerous federal environmental statutes, including the
Clean Air Act, the Clean Water Act, the Resource Conservation and Recov-
ery Act, the Toxic Substances Control Act, the Safe Drinking Water Act,
the Noise Control Act and the CERCLA reauthorization bill.
A pooling of all available resources will assist both public and private
sectors in achieving their common goal of increased compliance with the
environmental laws of New York State. It will enable government to allo-
cate scarce enforcement resources more efficiently by allowing it to
concentrate on the most significant violations with the assurance that
lower priority violations will not be overlooked.
 
PRIOR LEGISLATIVE HISTORY:
2023-24: S7913- Referred to Environmental Conservation
2021-22: S.5394 - Referred to Environmental Conservation
2019-20: S.5013 - REFERRED TO ENVIRONMENTAL CONSERVATION
2017-18: S.3269 - REFERRED TO ENVIRONMENTAL CONSERVATION
2015-2016: S.1087B - Amend and Recommit to Environmental Conservation
2013-2014: S.2769A1A.2047A -- Died in EnCon/Advanced to Third Reading
2011-2012: Referred to Rules/Advanced to Third Reading
 
FISCAL IMPLICATION FOR STATE AND LOCAL GOVERNMENTS:
None.
 
EFFECTIVE DATE:
This act shall take effect immediately; provided however, that no action
authorized by section 71-4501 of the environmental conservation law, as
added by section one of this act, may be commenced against any city,
village, town or county prior to September 1, 2027 and nothing in this
act shall affect any action commenced pursuant to section 71-1311 of the
environmental conservation law prior to such effective date.

Statutes affected:
S3345: 71-1311 environmental conservation law