Separate but equal: double jeopardy and environmental enforcement actions.

• Author: Kellner, Katherine C.

1. INTRODUCTION

   Criminal enforcement of environmental laws has skyrocketed in the past several years, and those involved in the field of environmental enforcement believe this trend will continue because criminal sanctions represent the "most compelling tool" in environmental enforcement.(1) While the states occupy the first line in environmental enforcement,(2) over the past several years federal environmental enforcement actions, and in particular federal criminal enforcement actions, have steadily increased.(3) Given the complexity of environmental law and the overlapping authority of the federal and state governments in environmental enforcement, issues have arisen over the respective roles of federal and state environmental enforcement agencies. One issue touches upon a cornerstone of American criminal jurisprudence--the double jeopardy prohibition of the Fifth Amendment. Does a federal enforcement action following or concurrent with a state enforcement action for the same violation (or a state enforcement action following a federal action) transgress the Fifth Amendment's prohibition of double jeopardy?

   This Comment argues that in the context of criminal environmental enforcement, the answer is yes. Part II begins with an overview of the permit programs under two of the major federal pollution prevention and control statutes, the Clean Air Act (CAA) and Clean Water Act (CWA). As a result of states' delegated authority under the CAA and CWA to administer and enforce their own state permit programs, a system of cooperative federalism has resulted. Part II also presents two hypotheticals which illustrate how subsequent enforcement actions can be brought against permit holders under the CAA permit program or the National Pollutant Discharge Elimination System (NPDES) program of the CWA. Part III summarizes the law of double jeopardy and the dual sovereignty exception. Part IV analyzes the double jeopardy implications of subsequent environmental enforcement actions and discusses the inapplicability of the dual sovereignty exception given that state and federal environmental authorities derive their prosecutorial power from the same source--state regulations and state-issued permits. Using the presented hypotheticals, the Comment contends that in the environmental context, the cooperative federalism system of enforcement violates the double jeopardy prohibition and falls outside of the dual sovereignty exception. Part V concludes with a proposed solution of a separate interests approach to the problem of concurrent enforcement authority in environmental law.

2. ENVIRONMENTAL ENFORCEMENT UNDER THE FEDERAL POLLUTION STATUTES

   1. Delegated Programs Under the CWA and CAA

      Prior to the 1970s and the enactment of major federal pollution prevention and control acts such as the Clean Water Act and the Clean Air Act, environmental enforcement was primarily the province of states and localities.(4) Prior to the middle of the twentieth century, environmental law was itself primarily based on the common law rather than on statutory or regulatory schemes.(5) During the 1960s and 1970s, environmental law was federalized through the promulgation of national effluent limitations and air quality standards enacted under new federal environmental laws aimed at pollution prevention and control on a national level.(6)

      Although both the CWA and CAA place pollution prevention and control in the federal forum, both Acts contain provisions which retain and rely upon the states' involvement in environmental protection and enforcement efforts. The Acts provide the states with the option of implementing, administering, and enforcing their own pollution control programs. For example, under the CWA, a state may take over the National Pollutant Discharge Elimination System (NPDES) permit program from the Environmental Protection Agency (EPA) upon showing adequate authority to issue and enforce permits meeting all the applicable CWA requirements.(7) Similarly, under the CAA, state implementation plans (SIPs) must ensure compliance with and enforcement of National Ambient Air Quality Standards (NAAQS).(8) To further this goal, states and localities may choose to administer and enforce their own permit programs for several categories of regulated sources under the CAA.(9) States assuming control over federal permit schemes are referred to as "delegated states." Thus, while the CWA and CAA have federalized environmental law, the states maintain a large and important role in implementation and enforcement of environmental law.(10)

      A state's role in the federal system of environmental law begins when a state assumes responsibility for a permitting program. When a state takes over the permitting schemes set forth in the CWA or CAA, the state promulgates its own statutes and implementing regulations which must at least meet the federally mandated minimum effluent limitations or air quality standards.(11) Once a state's program is approved by the EPA, the state issues the applicable CWA or CAA permits to dischargers within the state. The state statutes and regulations embodied in the permit are the basis for measuring violations of the permit's limits. As a precondition to taking over control of a permit program, a state must have adequate authority to enforce permit requirements and punish permit violations.(12) Thus, a state becomes the primary permit enforcer upon assuming control over a CWA or CAA permitting program.

      However, even when a state takes over its own permitting program, the federal government retains separate authority under the CWA and CAA to pursue civil, criminal, and administrative enforcement actions.(13) Although the federal permit programs are suspended under the CWA and CAA upon approval of a state's permit program,(14) the federal government still has the power to enforce permits issued pursuant to the state's permit program. The state permit conditions are enforceable as a matter of federal law.(15) The federal government is able to prosecute a permit holder under federal law for violations of the permit holder's state permit, state statutes, and state regulations.

      The retention of federal enforcement authority in a delegated state allows "overfiling," which refers to the situation where federal enforcement action is taken concurrently with or subsequent to a state enforcement action, or vice versa.(16) Although courts have recognized that the allocation of enforcement authority between the federal government and the state governments is far from clear, courts have held that enforcement actions may be pursued concurrently or subsequent to one another in federal and state forums.(17)

   2. Cooperative Federalism--Where the More is Not Necessarily the Merrier

      The result of concurrent federal and state enforcement authority in environmental law has resulted in a system of "cooperative federalism"(18) where the respective roles of the federal government and the states are unclear. In a time where ideas for limiting the scope of federal authority are gaining popularity, this is particularly troublesome,(19) Particularly in the context of concurrent criminal jurisdiction, critics note the potential problems of expanding federalism: the overburden on an already stressed federal court system, erosion of state authority and interference with areas traditionally left to the states, preemption of local problem solving experimentation, overly politicized rather than thoughtful action, and disparate treatment of individual defendants subjected to both state and federal prosecutions.(20)

      For regulated entities and permit holders in delegated states, the present system under the CWA and CAA means there are two potential prosecutors, the state and the federal government. For example, assume a hypothetical State X which has been authorized by the EPA under the CWA to issue NPDES permits. State X would then in turn promulgate its own state regulations implementing its permit program. If State X permit holder D were to discharge a pollutant into the navigable waters in violation of her permit, both State X and the EPA through the U.S. Justice Department would have the authority to prosecute her criminally.(21) Likewise, under the CAA, if D were a permitted major source in a state authorized to issue permits under the CAA, D again would potentially face both state and federal prosecution for any emissions violations of her permit.(22) For these regulated entities, the more is not necessarily the merrier because they have two potential prosecutors. The remaining sections of this Comment will illustrate how in either scenario, the subsequent (or second) prosecution of D violates the Fifth Amendment prohibition against double jeopardy.

3. THE FIFTH AMENDMENT, DOUBLE JEOPARDY, AND THE DUAL SOVEREIGNTY EXCEPTION

   1. The Double Jeopardy Prohibition

      The prohibition against double jeopardy stems from the Fifth Amendment: "[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb."(23) The underlying idea of the double jeopardy prohibition is

      one that is deeply ingrained in at least the Anglo-American system of

      jurisprudence ... that the State with all of its resources and power

      should not be allowed to make repeated attempts to convict an individual

      for an alleged offense..., thereby subjecting him to embarrassment,

      expense, and ordeal and compelling him to live in a continuing state of

      anxiety and insecurity.(24)

      The double jeopardy prohibition protects a defendant from oppressive prosecution and ensures the finality of a judgment.(25) The Fifth Amendment ban on double jeopardy applies to the federal government as well as to the states through the Fourteenth Amendment.(26)

      The double jeopardy prohibition protects a defendant from the following three scenarios: 1) a second prosecution for the same offense after an acquittal, 2) a second prosecution for the same offense after a conviction, and 3) multiple...