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, https://www.epa.gov/enforcement/enforcement-annual-results-numbers-glance
-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
U.S. ENVTL. PROT. AGENCY, FISCAL YEAR 2017: EPA ENFORCEMENT AND COMPLIANCE ANNUAL
12 (Feb. 8, 2018), https://www.epa.gov/sites/production/files/2018-01/documents/fy17-enforce
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.
U.S. ENVTL. PROT.
AGENCY, ENFORCEMENT AND COMPLIANCE ANNUAL RESULTS: NUMBERS AT A GLANCE FISCAL YEAR 2007,
at 1–2 (Nov. 13,
2007), https://archive.epa.gov/enforcement/annual-results/web/pdf/eoy2007.pdf (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).
6. RCRA §3008(a)(1), 42 U.S.C. §6928(a)(1) (2012).
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