by Gonzalo E. Rodriguez
Under certain state environmental protection statutes such as the California Environmental Quality Act (CEQA), private individuals seeking development or operational permits must demonstrate that their actions will not significantly impact the environment. While CEQA establishes a framework of environmental review procedures to determine the level of a proposed action’s environmental impact, the threshold determination of how searching this environmental review process will be is made on the basis of information provided by the proponent. In California, a project may be subject to a cursory Negative Declaration, a Mitigated Negative Declaration, or a full Environmental Impact Report. As the level of environmental review increases so does the mandatory fee associated with the permit application. However, what happens if the project proponent provides false information or omits material facts that cause for the project to be approved without the otherwise required environmental impact studies? Neither CEQA nor any other state’s environmental statutes provide an avenue for the public to pursue actions against these individuals.
The purpose of this note is to explore how private individuals and organizations may use the qui tam provisions of the False Claims Act as an enforcement tool against those who make false representations in environmental studies. The theory: as the level of environmental review increases, so does the application cost due to the lead agency; therefore, a false statement that leads the state to conduct a less stringent form of review has the effect of reducing the applicant’s financial obligation to the state. This falls within the definition of an actionable “reverse false claim” under the California False Claims Act, giving the public the ability to stand in the shoes of the state in prosecuting and seeking treble damages from the polluter.
Gonzalo E. Rodriguez is a third-year law student at the University of Alabama School of Law and Editor in Chief for Volume 9 of the Alabama Civil Rights and Civil Liberties Law Review. Beginning September 2018, Rodriguez will be a Charles Koob Environmental Litigation Fellow at the Natural Resources Defense Council. He has previously worked as law clerk at Communities for a Better Environment and Earthjustice. Rodriguez is the winner of the 9th annual Morris L. Cohen Student Essay Competition, awarded by the Legal History and Rare Books Special Interest Section of the American Association of Law Libraries for his essay, Protecting Inland Waterways: From the Institutes of Gaius to Magna Carta, which will be published in Unbound.