Is the Green New Deal impossible? Not if we use private enforcement

The Green New Deal takes its inspiration from the New Deal of the 1930s. However, in at least one important way, the Green New Deal has yet to follow the legislative model of the New Deal. The Fair Labor Standards Act, the Securities Exchange Act, the Communications Act, and other New Deal statutes relied on private litigation as part of comprehensive regulatory strategies. Like the original New Deal, the Green New Deal could have a role for courts and litigation. Unlike the original New Deal, proposals for the Green New Deal have not addressed in any systematic way the role for private enforcement. This oversight should be corrected.

Backing up for a moment, the United States has been thought of a nation of lawyers throughout history. Alexis de Tocqueville famously remarked that “there is hardly any political question in the United States that sooner or later does not turn into a judicial question.” Over the last two centuries, this supposed obsession with lawyers has manifested in a particular type of regulation that is known as the “private enforcement” lawsuit today.

From antitrust to civil rights to environmental law, one major way that the United States enforces federal statutory requirements is by authorizing private citizens to sue violators in court. Private enforcement has any number of advantages, including increasing the resources available for enforcement, shifting the costs off of government budgets, and ensuring violators cannot skate by because they have a friend in the White House.

However, private citizens and private lawyers are simply not going to do the hard work of investigating and prosecuting violations for nothing. Private enforcement statutes, such as the New Deal statutes mentioned above, often include provisions to incentivize these lawsuits. These include enhancing the recovery available and requiring that losing parties pay the fees of the winning parties. Many of these New Deal statutes also include provisions allowing for class actions and other types of aggregate lawsuits, which are especially important when the harm to any one person is too little to justify bringing a single lawsuit in court.

Returning to the modern Green New Deal, private enforcement seems like a natural fit. The problems of environmental and economic justice are indeed widespread, so it helps to bring in a broader range of enforcers. Critics of the Green New Deal are worried about cost, so supporters could include private enforcement to shift costs off the federal budget. Given the attitude of the Trump administration has taken toward environmental and workplace protections, it would be wise to share federal enforcement authority beyond the current occupants of the executive branch today.

Both the economic and environmental goals of the Green New Deal are certainly fitting for private enforcement. On the economic side, private enforcement can play an important role on issues of antitrust, investor and consumer protection, as well as labor and employment law. On the environmental side, limits on carbon emissions could be the subject of “citizen lawsuits,” which are quite common across virtually every federal environmental statute. If the Green New Deal included a carbon tax, as some have suggested, this proposal could be paired with a “tax qui tam” statute that allows private citizens to identify and prosecute tax fraud.

Adopting private enforcement provisions is only half the battle. As in the New Deal, private enforcement in the Green New Deal should come with incentives such as increased recoveries and fee shifting. Congress must think seriously about these incentives when designing new regulations. Further, the Green New Deal needs to reckon with a legal development that was not a problem for the original New Deal. Although the Federal Arbitration Act was adopted in 1925, it is only in the last few decades that it has become a major impediment to private enforcement. Thanks to a series of Supreme Court decisions and changes in corporate behavior, arbitration prevents transparent enforcement across a range of issues.

If Congress is committed to an effective Green New Deal, and if it hopes to rely on private enforcement to get there, then it must be committed to arbitration reform. At a minimum, the Green New Deal statutes should include provisions that regulate and limit the use of confidential forced arbitration. The Green New Deal might also be an opportunity to amend the Federal Arbitration Act. That too would be a new deal worth making.

Zachary Clopton is a professor at Cornell Law School. He writes about civil litigation, national security, international affairs, and government relations.