A New Right to Sue Polluters

Many a private citizen yearns to sue the perpetrator of a public nuisance, only to find that he must show a direct personal injury to himself or his property.

If a paper plant fouls a town stream, a sport fisherman has scant chance of getting a court to halt the pollution. The judge is likely to rule that some government agency should do the suing --provided that it wants to. Even when a citizen is allowed to sue, the burden of proof is on him to show that a polluter has the technical capacity to stop polluting without damaging his own economic interests.

All these rules are aimed at keeping courts from being deluged with frivolous lawsuits. But several recent court decisions have made it easier for conservation groups to sue polluters. None, however, go as far as a remarkable Michigan law recently signed by Governor William G. Milliken. The law puts every Michigan citizen on a legal par with the state's attorney general in environmental cases. In so doing, it achieves three key reforms:

> Any private citizen may sue against a public nuisance on behalf of the general population, whether or not the nuisance affects him personally.

>Michigan courts will no longer defer to governmental actions, thus giving all citizens a new legal right to raise environmental issues. Any individual can challenge lax state agencies as well as polluting industries.

> The burden of proof is on the defendant to show that the alleged pollution is unavoidable. Since big polluters usually have more money and technical knowledge than individual plaintiffs, environmental suits will not be hindered for economic reasons in Michigan.

Needed Precedents. The first state law of its kind in the U.S., the Michigan statute could inspire a flurry of oddball suits. If a Detroit resident dislikes auto pollution, for example, he might well ask a court to ban all downtown traffic. Even so, the bill's chief drafter, University of Michigan Law Professor Joseph L. Sax, is sure that courts will accent only rational suits, and gradually create a much needed body of environmental test cases. Versions of the Michigan law are now being weighed by legislators in Colorado, New York, Massachusetts, Pennsylvania, Tennessee and the U.S. Congress.

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