Does Prop. 64 harm the environment?
There have been several commercials of late (now joined by UCL Practitioner) which claim that Prop. 64 would harm the environment. The connection is that it would bar interest groups from enforcing environmental laws. According to Attorney General Lockyer, “Prop. 64 strips citizens of their right to effectively fight pollution and law-breaking businesses. It endangers our privacy and threatens our air, water, forests, wildlife and the health and safety of our children.” This is, to say the least, an extremely misleading overstatement.
Under current California law, anyone may sue anyone else for an “unfair business practice,” (which sometimes would mean, violations of environmental protections) even if that unfair practice doesn’t cause you any harm. In most areas of the law, you are only allowed to sue someone if you have been harmed. But the unfair competition law allows you to sue for any unfair practice, regardless of this standing rule.
Many federal environmental laws are written so that they can only be enforced by the federal government. You cannot sue a company for violating such-and-such federal environmental law. Instead, it’s up to the government to enforce these laws. The reason for this is to make sure that businesses aren’t subjected to constant, abusive, expensive lawsuits that drive everyone’s prices up and hurts the business climate. But in California, people can get around this rule because they can go to state court. In one recent case, for example, an environmentalist group sued the people running those wind-power generators, because they said these wind-power generators were killing birds, in violation of federal law. In other states, they would not have been able to sue, because this federal law can only be enforced by the federal government. But in California, they could sue to shut down this clean source of energy.
Prop.64 would only require a plaintiff to show he has been harmed. That is all that it does. Environmental groups could still sue for violations of environmental laws; privacy groups could still sue for violations of property rules. They would just have to find a plaintiff who had been harmed. As a public interest lawyer myself, let me tell you that for all but the most frivolous case, this is not a hard thing to do. Prop. 64 simply cuts off the most extreme abuses of the courts. It does not “endanger our privacy,” it does not “threaten our air.” What it threatens is the income of people like the Trevor Law Group, and environmental pressure groups that like to exploit the courts in contravention to federal policy, harming businesses, retarding progress, deterring job creation, and increasing costs to California consumers.
Update: UCL Practitioner says that I think “that no meritorious UCL case is ever filed.” When have I ever said this? Of course meritorious UCL cases are filed. My point is that Prop. 64 would not threaten meritorious cases. In fact, it wouldn’t threaten that many frivolous cases. But it’s a first step, and worthwhile. UCL Practitioner’s misrepresentation of my position is unfortunately characteristic of the opponents of this proposition, who don’t have a real argument, so they have to misrepresent what the proposition would really do. Sad, I think.
Update 2: Recently, legal experts, including Bion Gregory, who served as California’s Legislative Counsel for 25 years, conducted a thorough review of the environmental and public health lawsuits that included the Unfair Competition Law. In no case was this law an original cause of action. It was an add-on to lawsuits filed under other laws that would not be affected by Proposition 64.”
