Civil Environmental Enforcement Litigation

• Pages: 123-171

CHAPTER 3

123

Civil Environmental

Enforcement Litigation

JOEL M. GRO SS

I. Introduction

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 ma-

jor 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 liti-

gation. This chapter will discuss 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 we will be dis-

cussing. The term civil enforcement most often is used to distin-

guish this type of enforcement from criminal enforcement. The

modern environmental statutes reflect a recognition 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 proceedings. The term civil environmental enforce-

124 CHAPTER 3

ment 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 administra-

tively. For example, in fiscal year 2007, which ended on September

30, 2007, the EPA issued 2,237 complaints seeking administrative

penalties and issued 1,247 administrative compliance orders.1 In

contrast, the EPA referred 278 cases to the Department of Justice

(DOJ) for civil judicial enforcement, and the DOJ filed 127 civil

complaints in federal court.2

Whether the EPA will pursue a particular enforcement case ju-

dicially or administratively 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, the EPA may pursue only ad-

ministratively those cases where the penalty sought is under

$125,000.3 Cases seeking larger penalties must be pursued judi-

cially. Similarly, under the Clean Air Act, the 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 com-

mencement of the proceeding.4 Older or larger cases can be pur-

sued administratively only with the concurrence of the DOJ.5 In

contrast, it is in the EPA’s discretion to choose whether to pursue

any particular enforcement case administratively or judicially un-

der the Resource Conservation and Recovery Act (RCRA).6 For this

reason, the EPA has tended to pursue relatively more cases under

the Clean Water Act in court and relatively more RCRA cases ad-

ministratively.

When the EPA has the discretion to choose between pursuing

enforcement administratively 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 ledger. Cases viewed as

needing long-term injunctive relief generally will be pursued judi-

cially. That the DOJ is involved only in judicial enforcement cases

also may play a role in the EPA’s decision. Sometimes, the EPA

chooses administrative enforcement to maintain its control over the

enforcement process. Other times, it prefers to take advantage of

Civil Environmental Enforcement Litigation125

the DOJ’s resources or expertise and pursue matters judicially. An-

other factor weighing into the EPA’s decision may include the per-

ceived enforcement receptivity of the district court where the action

would be brought. On occasion, bureaucratic considerations (meet-

ing internal EPA enforcement targets) may enter into the EPA’s de-

cision.

It bears emphasis that the EPA’s judicial enforcement statistics

include two discrete types of enforcement—regulatory enforcement

and enforcement under the Comprehensive Environmental Response,

Compensation, and Liability Act (CERCLA).7 Of the 127 civil com-

plaints filed in 2007, some 66 were regulatory enforcement cases

and 61 were CERCLA cases.8 These two types of cases are funda-

mentally different. While regulatory 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. CERCLA liti-

gation is addressed in Chapter Nine of this book, “Contaminated

Sites Cost Recovery under CERCLA.” This chapter is focused on

regulatory enforcement.

It also bears emphasis that most government environmental en-

forcement is conducted by states and, in some cases, by local gov-

ernments.9 For a state to be given delegations or primacy to run

programs under federal environmental laws, such as to be delegated

National Pollutant Discharge Elimination System (NPDES) author-

ity under the Clean Water Act, the EPA must find that the state has

adequate authority to enforce the programs.10 States, on their own,

have created an array of enforcement mechanisms to be employed

at the state level. Although the focus of this chapter will be on fed-

eral enforcement litigation, many of the matters discussed will ap-

ply to state enforcement as well.

II. The Logistics of Federal Civil Enforcement

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 the EPA

generally does not have its own “litigating authority.” It may not

commence litigation itself or represent itself in litigation in federal