An update on pleading, sanctions and civil justice reform in environmental cases.

• Author: Tobias, Carl
• Position: Letter to the Editor

Dear Editorial Staff:

Since 1992, in the initial issue of each volume of Environmental Law,(1) I have evaluated the application of Federal Rule of Civil Procedure 8 governing pleading, and Federal Rule of Civil Procedure 11 covering sanctions in environmental litigation. In 1992, I speculated that the two Rules might disadvantage environmental plaintiffs, and I asked that plaintiffs who had experience with these procedures contact me.(2) In 1993, I reported that no plaintiffs had contacted me to voice concerns that the enforcement of these provisions had adversely affected them.(3)

Insofar as this silence was an accurate reflection of informal experience under Rules 8 and 11, it apparently resembled formal experience with pleading and sanctions. Some ten courts have required that plaintiffs plead with specificity in Comprehensive Environmental Response, Compensation and Liability Act (CERCLA or Superfund) suits;(4) however, none of these plaintiffs was a public interest litigant. Relatively few courts have found environmental plaintiffs to be in violation of Rule 11, and no judge has imposed substantial sanctions on the parties.(5) Courts and litigants have infrequently invoked Rule 11 in environmental lawsuits,(6) especially in contrast to civil rights cases.(7)

In 1994, I suggested that recent developments regarding Rules 8 and 11 would further reduce the likelihood that judges would enforce the Rules in ways that could disadvantage environmental plaintiffs. I recommended that courts interpret the 1993 Supreme Court decision in Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit(8) as proscribing the imposition of elevated pleading in environmental litigation.(9) I correspondingly asserted that the 1993 Amendment of Rule 11(10) should reduce the incentives to invoke the provision while decreasing its use in all lawsuits, including environmental cases.(11)

The predictions that I made have generally remained accurate. A decreasing and relatively tiny number of defendants have requested that courts impose stringent pleading in environmental suits, and virtually all of the few judges who have been asked to do so have rejected elevated pleading.(12) There has apparently been minimal formal Rule 11 activity in environmental litigation, although it is difficult to ascertain definitively whether the provision's invocation has declined.

During 1995, I examined the possibility that the 1993 Amendment of Rule 26(a)(1), which...