A millennial update on procedural issues in environmental litigation.

• Author: Tobias, Carl

Dear Editorial Staff:

1. INTRODUCTION

   Regular readers of "Clear the Air" have probably noticed the absence in Environmental Law's Volumes 28 and 29 of my annual contributions, which over the preceding haft-decade had emphasized the application of Federal Rules of Civil Procedure (FRCP) 8,(1) covering pleading, and 11,(2) governing sanctions, in environmental litigation.(3) My most recent installment (1997) evaluated the enforcement in environmental cases of the 1993 amendment to FRCP 26(a)(1),(4) which prescribes automatic or mandatory prediscovery disclosure, and the possibility that this provision might effectively require plaintiffs to plead with particularity.(5) The 1997 edition concomitantly alerted environmental plaintiffs and attorneys to the apparent expiration of the Civil Justice Reform Act of 1990 (CJRA),(6) which required all ninety-four federal district courts to implement local procedures for decreasing cost and delay in civil lawsuits.(7) My silence on this issue in Volumes 28 and 29 reflected the nearly complete dearth of new information involving these areas to report.. Nevertheless, several recent developments that could affect plaintiffs and lawyers who file environmental cases warrant a millennial update on procedural issues implicating environmental litigation.

2. FEDERAL RULES 8 AND 11

   In Issue I of 1992's Environmental Law, I speculated that judicial application and party invocation of FRCP 8 and 11 could be detrimentally affecting individuals, their interests, and the counsel who represent them when pursuing environmental litigation.(8) Therefore, I requested that plaintiffs and attorneys who had experience with these procedural provisions contact me.(9) In 1993 I reported that no parties or lawyers had expressed concerns that the application of the two rules had disadvantaged them.(10)

   To the extent that this complete silence has accurately reflected treatment of these provisions in informal practice, it has probably also reflected treatment in formal practice. Approximately a dozen appellate and district courts have mandated that plaintiffs plead with particularity in Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund)(11) litigation,(12) but none of the plaintiffs were public interest litigants. A comparatively small number of judges have found that environmental plaintiffs or lawyers have contravened FRCP 11, but no court levied substantial sanctions on the parties or attorneys.(13) Judges and parties have rarely invoked this rule in environmental cases.(14) This stands in striking contrast to the application of FRCP 11's 1983 amendment in civil rights litigation.(15)

   In 1994 I predicted that then-current developments would additionally decrease the possibility that courts might apply the two federal rules in ways that could adversely affect environmental plaintiffs and their counsel.(16) I proposed that judges construe the United States Supreme Court's 1993 opinion in Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit(17) as prohibiting the imposition of heightened pleading in environmental cases,(18) I concomitantly contended that the major 1993 revision of FRCP 11(19) should limit the incentives to employ the stricture, thereby generally reducing reliance on the rule, specifically in environmental litigation.(20)

   The prognostication I participated in during the mid-1990s has generally proven to be accurate. A comparatively small and declining number of defendants have asked judges to require stringent pleading in environmental cases. Practically every court has rejected these litigants' requests to impose elevated pleading requirements.(21) Moreover, formal invocation of FRCP 11 has been relatively limited in environmental lawsuits, as it has in most other forms of litigation.(22) However, it is difficult to determine conclusively whether reliance on the sanctions stricture, particularly through informal invocation, has in fact substantially decreased.

3. FEDERAL RULE 26(A)(1)

   In 1995 I evaluated whether the 1993 revision of FRCP 26(a)(1),23 which prescribed automatic or mandatory prediscovery and disclosure, would effectively impose stringent pleading in environmental cases.(24) The 1993 amendment mandates that parties, prior to beginning formal discovery, reveal information that is "relevant to disputed facts alleged with particularity in the pleadings."(25) Litigants and judges might have interpreted this language to require elevated pleading because plaintiffs who filed very specific complaints would have been able to claim that they were entitled to considerably more material. This concern has apparently not materialized. The principal reason may be that plaintiffs who regularly pursue...