Civil Environmental Enforcement Litigation

AuthorJoel M. Gross
Civil Environmental
Enforcement Litigation
Joel M. Gross
Civil enforcement of the environmental laws is one of the principal methods by
which the government seeks to ensure environmental compliance by those subject
to environmental regulation. The major federal environmental statutes provide
broad civil enforcement authorities, and those authorities have been widely used
and have resulted in some of the most complex pieces of environmental litigation.
This chapter discusses that litigation, including what the government can seek,
what it typically does seek, how it approaches these cases, how the cases can best
be defended, and how they can be resolved.
At the outset, it is important to define what it is this chapter will be discussing.
The term civil enforcement most often is used to distinguish this type of enforce-
ment from criminal enforcement. The modern environmental statutes reflect a rec-
ognition that criminal enforcement may be too difficult, cumbersome, or severe
for many cases of environmental noncompliance, and so have provided for civil
enforcement options that can be pursued by the government without the need for
criminal procedures and protections.
Within this noncriminal realm, the government typically is given two “civil”
enforcement options—through judicial action or through administrative proceed-
ings. The term civil environmental enforcement sometimes is used to include both
judicial and administrative enforcement. In fact, the Environmental Protection
Agency (EPA) uses the term in this way. The focus of this chapter, however, will be
on judicial enforcement.
It is important to keep in mind that the largest volume of civil enforcement by
the federal government is undertaken administratively. For example, in fiscal year
2017, which ended on September 30, 2017, EPA issued 1,220 complaints seeking
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98 Environmental Litigation
administrative penalties and issued 600 administrative compliance orders.1 In con-
trast, EPA referred 110 cases to the Department of Justice (DOJ) for civil judicial
enforcement, and DOJ filed 80 civil complaints in federal court.2
Whether EPA will pursue a particular enforcement case judicially or admin-
istratively is sometimes a function of the specific enforcement authority granted
in the applicable statute, sometimes a function of EPA discretion, and sometimes
a function of both. For example, under the Clean Water Act (CWA), EPA may pur-
sue only administratively those cases where the penalty sought is under $125,000.3
Cases seeking larger penalties must be pursued judicially. Similarly, under the
Clean Air Act (CAA), EPA may pursue cases administratively where the penalty
sought is under $200,000 and where the violations took place within one year prior
to the commencement of the proceeding.4 Older or larger cases can be pursued
administratively only with the concurrence of DOJ.5 In contrast, it is in EPA’s dis-
cretion to choose whether to pursue any particular enforcement case administra-
tively or judicially under the Resource Conservation and Recovery Act (RCRA).6
For this reason, EPA has tended to pursue relatively more cases under the CWA in
court and relatively more RCRA cases administratively.
When EPA has the discretion to choose between pursuing enforcement admin-
istratively or judicially, a number of factors will enter in the decision. For example,
smaller and less-significant cases tend to fall on the administrative side of the led-
ger. Cases viewed as needing long-term injunctive relief generally will be pursued
judicially. That DOJ is involved only in judicial enforcement cases also may play
a role in EPA’s decision. Sometimes, EPA chooses administrative enforcement to
maintain its control over the enforcement process. Other times, it prefers to take
advantage of DOJ’s resources or expertise and pursue matters judicially. Another
factor weighing into EPA’s decision may include the perceived enforcement
receptivity of the district court where the action would be brought. On occasion,
bureaucratic considerations (meeting internal EPA enforcement targets) may enter
into EPA’s decision.
1. U.S. Envtl. Prot. Agency, Enforcement and Compliance Annual Results: Numbers at a Glance
for Fiscal Year 2017,
-fiscal-year-2017 (last visited May 24, 2018).
2. Id. The number of civil enforcement cases initiated by EPA decreased over the ten years ending
in fiscal year 2017. See
12 (Feb. 8, 2018),
ment-annual-results-data-graphs.pdf (graph showing total civil enforcement case initiations and conclu-
sions from fiscal year 2007 to fiscal year 2017). In fiscal year 2007, EPA issued 2,237 complaints seek-
ing administrative penalties, issued 1,247 administrative compliance orders, and referred 278 cases to
DOJ for civil judicial enforcement, and DOJ filed 127 civil complaints in federal court.
at 1–2 (Nov. 13,
2007), (PDF at 47–48).
3. CWA § 309(g), 33 U.S.C. § 1319(g) (2012). These statutory penalty maximums are adjusted for
inflation. See 40 C.F.R. §19.1–19.4 (2017) (setting forth inflation-adjusted penalties for violations of fed-
eral environmental statutes).
4. CAA §113(d), 42 U.S.C. §7413(d) (2012).
5. Id.
6. RCRA §3008(a)(1), 42 U.S.C. §6928(a)(1) (2012).
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Civil Environmental Enforcement Litigation 99
It bears emphasis that EPA’s judicial enforcement statistics include two dis-
crete types of enforcement—regulatory enforcement and enforcement under
the Comprehensive Environmental Response, Compensation, and Liability Act
(CERCLA).7 These two types of cases are fundamentally different. While regula-
tory enforcement generally seeks to address noncompliance with environmental
requirements, CERCLA enforcement focuses on the liability that accrues because
of status or conduct, independent of past compliance. This chapter is focused on
regulatory enforcement.
It also bears emphasis that most government environmental enforcement is
conducted by states and, in some cases, by local governments.8 For a state to be
given delegations or primacy to run programs under federal environmental laws,
such as to be granted National Pollutant Discharge Elimination System (NPDES)
authority under the CWA, EPA must find that the state has adequate authority to
enforce the programs.9 States, on their own, have created an array of enforcement
mechanisms to be employed at the state level. Although the focus of this chapter
is on federal enforcement litigation, many of the matters discussed apply to state
enforcement as well. Further, both EPA and DOJ have stressed the importance of
joint enforcement, and coordinating efforts between DOJ and states’ attorneys
Before turning to the legal and factual issues that typically arise in federal civil
environmental enforcement litigation, it is useful to consider who the players are
in the process and the roles that they play. The starting point for this discussion
is the fact that EPA generally does not have its own “litigating authority.” It may
not commence litigation itself or represent itself in litigation in federal courts, but
rather it must be represented by DOJ in such litigation. That is one side of the
equation—EPA cannot act alone. The other side of the equation is that neither can
DOJ, which is required to work closely with EPA and to allow EPA to actively par-
ticipate in the litigation process. The terms of engagement between the two offices
were spelled out 40 years ago in a memorandum of understanding (MOU) between
EPA and DOJ.11 This MOU provides that DOJ will commence action on all matters
referred by EPA within 60 days of the referral or will report to EPA why action has
not been commenced, and that EPA attorneys will be permitted to participate fully
7. CERCLA § 101, 42 U.S.C. §§9601 et seq. (2012).
8. See CWA §402(b), 33 U.S.C. §1342(b) (2012).
9. Id.
10. U.S.
11. Memorandum of Understanding between Department of Justice and Environmental Protection
Agency, 42 Fed. Reg. 48,942 (Sept. 26, 1977).
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