Greedy Lawyers Are Good for the Environment: Controlling the Environmental Effects of Marijuana Cultivation through Private Enforcement

As momentum grows for marijuana legalization, many are worried about the environmental impact of cultivation. Enacting laws to control the manner of marijuana cultivation may protect California’s water and wildlife, but such laws are only effective if they are enforced. The 2014-2015 budget for California earmarked 3.3 million to help prevent destructive marijuana cultivation, (see p. 108-119) but with legalization on the horizon, the market for marijuana could dramatically increase and more funding may be needed. However, the responsibility of combating illegal and destructive cultivation does not have to lie solely with the government. Instead, private individuals can be incentivized to sue those who operate illegal grow sites. Forcing violators to compensate the cost of private enforcement will give a sufficient monetary incentive for private parties, as well as deflect costs and labor away from the government and its agents.

Both the state government and environmental groups are concerned about the environmental damage caused by marijuana cultivation. A study by the California Department of Fish and Wildlife (CDFW) on Humboldt County found that the water demand for cultivation often exceeded stream flow, causing streams to go dry around large scale growing sites. Scott Bauer, an environmental scientist with the CDFW estimates that over 95% of grow sites divert water without an official permit. Furthermore, he points out that growers also clear forest areas to make way for cultivation. In considering these issues, both the CDFW and the Nature Conservancy support an increase in funding for state enforcement to stop and deter harmful cultivation.

While tax revenue from marijuana can be diverted to provide for any increase in the costs of environmental enforcement, groups like the Nature Conservancy are worried that the laws surrounding marijuana legalization will not set aside tax revenue for environmental concerns. Such is the case in Colorado, where there is no tax revenue specifically set aside to manage the environmental hazards of marijuana cultivation. (See pg. 19-29.) Even if marijuana taxes are used to pay for enforcement, the price of marijuana may fall after legalization, to the point where tax revenue is unable to pay for enforcement. This fear of insufficient funding is built upon the idea that public enforcement, rather than private enforcement, is the primary method to carry out state rules and regulations.

Public enforcement is when sanctions against violators are carried out by government agents, either directly or by their consent. This is found in criminal law, where violations of the Penal Code, such as grand theft and murder, are asserted by the police and district attorney. On the other hand, private enforcement is when private persons and organizations are allowed to sanction violators without government initiative. This is often found in tort law where the California Civil Code defines and permits legal actions like negligence and products liability, but it is private parties who bring suit rather than government agents.  Private enforcement would alleviate the issue of government funding, as the cost and labor of enforcement would primarily come from private parties rather the state of California.

While there are environmental tort actions, they are effectively personal injury suits based on exposure to toxic chemicals. These “toxic torts” have been criticized for their lack of effectiveness in reducing environmental harm. Albert C. Lin in his article Beyond Tort: Compensating Victims of Environmental Toxic Injury points out the following faults of environmental tort actions: 1) injury and causation are difficult to prove; 2) environmental harms are often so diffuse that individuals do not have incentive to bring suit; and 3) the aforementioned issues lead to little deterrence, since the risk of liability is low.

Under the Clean Water Act and Clean Air Act, the US government has established provisions that allow for citizen suits based on statutory violations related to water pollutants and air emissions. (33 U.S.C. § 1365; 42 U.S.C. § 7604.) These allow any person to commence a civil action on his own behalf against another who is in violation of a standard or limitation of either act. These citizen suits also require a plaintiff to prove injury and causation, but the sufficiency of proof seems significantly easier to meet compared to toxic torts. (See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 183-85 (2000).) However, since injury and causation are still technically required, the concerns of Mr. Lin are still relevant and there may be risk of underenforcement.

There is another private enforcement option that makes it possible to avoid the issues of injury and causation. Qui tam is a legal concept that allows a private party to sue, despite not being personally harmed by the defendant’s conduct. While citizen suits are brought by persons on their own behalf, qui tam actions are brought by people on the government’s behalf. Essentially, plaintiffs filing a qui tam action are not trying to redress any personal injury, but instead are seeking enforcement of the government’s laws.1 For this reason, qui tam actions bypass the issues of harm and causation.2

Currently, qui tam actions are only allowed in federal “whistleblowing” suits – a common name for actions against federal contractors for defrauding the government.3 For these federal whistleblowing suits, liability is established by statute under 31 U.S.C. section 3729, which defines the actions that would be unlawful. A separate provision in section 3730 allows qui tam actions on behalf of the government.

Controls on marijuana cultivation could be set in a similar way. Statutes could establish legal requirements for cultivation that would encourage best practices, and failing to grow within the requirements would result in liability. For these statutes, a provision for qui tam actions on behalf of the government would also be included.

A plaintiff would only need to show that the defendant had violated a marijuana cultivation statute, making this a far more accessible action than toxic torts or citizen suits, as personal injury and causation would be irrelevant. Allowing qui tam actions would resolve the injury and causation issues, but for there to be adequate enforcement, a private incentive must be created.

Because environmental harm is generally diffuse, halting unlawful cultivation may not be enough incentive by itself, as the cost of litigation may exceed any personal injury. The solution is to create a provision that would allow courts to award the cost of litigation to the prevailing party, to be paid by the opposing party. This is already widely used: provisions for awarding the costs of litigation are available for citizen suits under the Clean Water Act and Clean Air Act, as well as for qui tam actions for federal whistleblower suits.

On top of awarding litigation costs, some monetary incentive must be established to allow plaintiffs to profit from a successful suit. While an award of litigation costs would create a supply of willing lawyers, there also must be an incentive for lay people to hire them and direct their attention to unlawful cultivators.

The federal whistleblower law awards the plaintiff a bounty for a successful suit. (31 U.S.C. § 3730(d).) This bounty consists of a percentage of the monetary damage that the government suffered as a result of the fraud. In the context of marijuana cultivation, a monetary award based on environmental damage would be difficult, as it would bring about the issues of injury and causation. Instead, the statutory requirements for marijuana cultivation could include fines for violators, where the plaintiff would be awarded some percentage. By awarding a portion of the fines to the plaintiff and compensating his attorney, the qui tam action would be adequately incentivized and create a private market for enforcement.

The award of fines and litigation costs can be further modified to encourage efficient and considerate enforcement. For example, the award can be increased or decreased based on the severity of environmental harm, either actual or potential. That way, the more egregious violators are prioritized in the private market. In order to discourage frivolous suits, the award of litigation costs could work similar to the attorney’s fee provision for civil rights actions, where a judge can award attorney’s fees to the prevailing defendant if the suit brought against him was “unreasonable, frivolous, meritless or vexatious.” (Christiansburg Garment Co. v. Equal Employment Opportunity Comm’n, 434 U.S. 412, 421 (1978).)

With the proper statutory framework, a provision for qui tam actions could establish an efficient enforcement method that works around the issues of injury and causation. Along with adequate monetary incentives for attorneys and their clients, it could create a private market of enforcement that would not require significant expenditures by the government. It shows that public enforcement is not the only way to dealing with the environmental problems caused by marijuana cultivation, and private enforcement solutions should not be ignored, but seriously considered for the cash-strapped state of California.

1. Evan Caminker, The Constitutionality of Qui Tam Actions (1989) 99 Yale L.J. 341, 344-45
2. Id.
3. Id. at 342-43

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