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65 Tul. L. Rev. 339 (1990-1991)
Private Enforcement of Environmental Law

handle is hein.journals/tulr65 and id is 361 raw text is: THE PRIVATE ENFORCEMENT OF ENVIRONMENTAL LAW MICHAEL S. GREVE* I. INTRODUCTION .................................... 339 II. CITIZEN SUITS: THE CONCEPTUAL MUDDLE ...... 342 III. PRIVATE ENVIRONMENTAL LAW ENFORCEMENT: PATTERN AND PRACTICE .......................... 351 IV. PRIVATE ENFORCEMENT: MOTIVES AND EFFECTS. 359 V. CITIZEN SUITS: CONFLICTS AND CONTRADICTIONS .................................. 366 A. Incompatible Conceptions of Pivate Enforcement .................................. 367 B. Broad-Based Private Environmental Law Enforcement: Rationales and Irrationalities .... 374 VI. THE POLITICS OF PRIVATE ENFORCEMENT ........ 384 I. INTRODUCTION Since the beginning of the 1970s, Congress has increasingly come to rely upon private law enforcement as a means of attain- ing public objectives.' Private enforcers have been put to work * Executive Director, Center for Individual Rights. Diplom, University of Hamburg, 1981; M.A., Cornell University, 1985; Ph.D., Cornell University, 1987. Research for this Article was supported by the Lynde and Harry Bradley Foundation, the J.M. Foundation, and the John M. Olin Foundation. The author is indebted to Francis Blake, Roger Marzulla, Mitchell Polinsky, Walter Olson, Jeremy Rabkin, and David Schoenbrod for helpful comments on earlier versions of this Article, and to Ted Rebarber for valuable research assistance. 1. Throughout this Article, the term private (law) enforcement shall refer only to the private enforcement of public purposes, and not to the private enforcement of private rights by individual victims of illegal conduct. This usage differs from that in much of the law-and-economics literature, which refers to all nongovernment enforcement as private, regardless of whether the enforcer is a victim or acts as a private attorney general. See generally Becker & Stigler, Law Enforcement, Malfeasance, and the Compensation of Enforcers, 3 J. LEGAL STUD. 1 (1974); Landes & Posner, The Private Enforcement of Law, 4 J. LEGAL STUD. 1 (1975); Polinsky, Private Versus Public Enforcement of Fines, 9 J. LEGAL STUD. 105 (1980). I deviate from this usage because phrases such as non-victim private enforcement are inelegant and, in the context of this Article, redundant. Moreover, the law-and-economics terminology blurs the distinction between, on the one hand, the purposive enforcement of a legal rule and, on the other, the protection of individual rights in a bipolar dispute, to which the enforcement of a rule (say, of contract 339

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