2004 Spring, 59. The Environmental Protection Bureau, Past And Present.

AuthorBy Attorney Jennifer J. Patterson

New Hampshire Bar Journal

2004.

2004 Spring, 59.

The Environmental Protection Bureau, Past And Present

New Hampshire Bar Journal Spring 2004, Volume 45, Number 1 The Environmental Protection Bureau, Past And Present By Attorney Jennifer J. Patterson I. INTRODUCTION

The Attorney General's role in protecting the environmental resources of the state for the benefit and health of its citizens predates the 1972 formation of the Environmental Protection Bureau ("Bureau" or "EPB") by more than 135 years. The office historically has used its common law authorities, such as the power to abate and enjoin public nuisances, to protect the environment. As more specific environmental laws were passed, the office became responsible for enforcing these laws and for advising the agencies which administered them. Today, the Bureau performs two central functions: enforcing environmental laws through civil and criminal court actions; and providing legal counsel and representation to state agencies responsible for the protection, control and preservation of the state's environment (EN1).

Over the past decade, the scope of the Bureau's affirmative litigation has broadened, as its attorneys have increasingly participated in interstate and complex litigation initiatives aimed at protecting the state's air and water from threats that originate outside New Hampshire. At the same time, the Bureau has continued to be actively involved in critical in-state matters, such as the siting of energy facilities, the resolution of Superfund cases, and decisions on how and whether to regulate water use. Bureau attorneys participate extensively in many types of transactional matters, including Brownfields redevelopments and bankruptcy proceedings, where our aim is often to harmonize environmental cleanup and compliance with economic development of contaminated industrial sites.

This article explores the creation of the EPB, the long history of environmental protection by the Attorney General's Office, and the current functions of the EPB.

II. OVERVIEW OF THE ENVIRONMENTAL PROTECTION BUREAU

The "Environmental Protection Division" of the Attorney General's Office was first established in 1972 (EN2). Initially staffed by a single attorney and a legal steno, the division's duties and functions were consistent with those performed by the Environmental Protection Bureau ("EPB") today (EN3). By statute, the EPB is responsible for:

a.

Enforcing statutes pertaining to environmental protection, control, and preservation.

b.

Counseling state agencies and commissions given responsibility over environmental concerns, including, but not limited to, the department of environmental services and the pesticides control board.

c.

Exercising the common law powers of the attorney general to protect the environment.

d.

Bringing public nuisance and other actions in superior court in the name of the state upon complaint by private citizens when in the opinion of the attorney general the activity or activities complained of may have a substantial impact upon the environment of the state (EN4).

The present statute, like the 1972 law, requires cooperation from other state agencies:

The environmental protection bureau is hereby authorized to call upon any other state department, agency, commission, authority, or institution for whatever help or assistance the senior assistant attorney general deems necessary to investigate and prosecute cases involving environmental damage and such other departments, agencies, commissions, authorities, and institutions are hereby required to immediately cooperate with and assist the division without charge (EN5).

The EPB as it currently exists was created in 1985 (EN6). Presently, the bureau includes seven attorneys, two paralegals, one legal assistant, and one part-time investigator. Other than the unifying theme of environmental protection, there is very little repetition in our daily practice. In a single day an EPB attorney may be called upon to deal with questions involving dams, monkeys, jet-skis and lobsters. The next day she may be faced with an "alphabet soup" of NSR (EN7), VOCs (EN8), ARARs (EN9) and NPDES permits (EN10). While this is challenging, it is also exhilarating. In a practice area prone to extreme specialization, we are able to be generalists - or at least, sequential specialists. Attorneys working in the EPB are lucky enough to have among the most diverse law practices in the state (EN11).

In many ways, the EPB functions as a microcosm of the attorney general's office as a whole. Like the Criminal Justice Bureau, we prosecute major crimes involving harm or threatened harm to the environment or public health. Like the Consumer Protection Bureau, we protect the public by bringing civil and criminal enforcement actions against those who violate environmental laws. Like the Civil Law Bureau and the Transportation and Construction Bureau, we provide legal counsel to our client agencies, the Department of Environmental Services, the Fish and Game Department and some other smaller programs such as the Office of State Planning and Energy's Coastal Program and the Agriculture Department's Pesticide Control Division. And like the Charitable Trusts Unit, we exercise the traditional common-law authorities of the attorney general, in our case to protect the environment.

For all its breadth, the EPB's practice is also very much grounded in specific facts and places. Most environmental cases are tied to a specific location where a construction project is proposed, where an industrial facility is located, or where waste has been dumped. We bring our enforcement cases in the county where the property at issue is located. As a consequence, the EPB typically has cases pending in every superior court in the state. Our work is directly related to the landscape of the state - not just the physical landscape, but the business and political landscape as well. We must, of necessity, be able to think and talk in very practical and specific terms about the way many things work. The "things" we must understand run the gamut - from foundries to finances, emissions to administrative procedure, dams to economic development.

III. HISTORIC ROLE OF THE ATTORNEY GENERAL IN ENVIRONMENTAL PROTECTION: COMMON LAW PUBLIC NUISANCE AND PUBLIC TRUST AUTHORITIES

The New Hampshire Attorney General's Office has long played a role in protecting the health and physical environment of New Hampshire citizens (EN12). In the Buckman case, decided by the state Supreme Court in 1836, Attorney General Gove prosecuted an individual for knowingly and maliciously putting the carcase of an animal into a well of water . . . from which the respondent well knew the said Wilson, and his wife and family, were in the daily and constant habit of drawing water and drinking and using the same; and the indictment alleged that by reason of putting said carcass into said well the water thereof became greatly corrupted, unwholesome and poisonous, and the said Wilson and his wife and family became greatly injured in health thereby (EN13). On an "I know one when I see it" theory, the Court concluded that such behavior, though not expressly prohibited by statute or common law, was nevertheless criminal in character:

There can be no question but the mixture of poisonous ingredients with the food or drink of another to such an extent as to impair the health of any individual receiving them, is punishable by indictment at common law; and water infected with the noisome particles and effluvia of a dead animal thrown into it, must partake of a character so poisonous and unwholesome as properly to come within this class of offences (EN14). . .

Then as now, the attorney general's duties included keeping "noisome particles and effluvia" out of the public's water - or at least putting a stop to such offenses when they did occur.

In the early nineteenth century, the production of noxious odors and vapors, the contamination of drinking water, and the obstruction of public waterways all fell under the law of public nuisance (EN15). A public nuisance, as defined at common law, is any substantial and unreasonable interference with a right common to the general public (EN16). All types of public nuisances, whether "environmental" or not, were subject to abatement by the attorney general, and could also be abated by a member of the public who was specially affected by the nuisance (EN17). Nuisances could also be prosecuted as common law crimes, as in the Buckman case (EN18). Similarly, in the 1844 Lord case, the state brought criminal charges for maintaining a nuisance dam which flooded an abutting road (EN19). Despite its age, nuisance remains a viable legal theory (EN20), which the Bureau continues to use today, including in the MTBE case, discussed further below.

Besides the public nuisance authority, the other historically important common law power used by the Attorney General to protect the environment is the public trust doctrine. This ancient principle establishes that public waters, which include the ocean, great ponds and many rivers and streams, are owned by the state and held in trust for the benefit of the public (EN21). Public waters, by their nature, cannot be privately owned (EN22). Nevertheless, in a system that has long led to confusion and litigation, riparian owners have rights more extensive than members of the general public to use these waters (EN23). Both historically and in the present...

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