Overview of Civil Judicial Enforcement

Civil Judicial Enforcement

Who may file civil judicial environmental enforcement actions in U.S.? Federal Government State Governments Citizens Indian Tribes, directly or through citizen suit

provisions

Civil Judicial Enforcement by U.S.

Who Brings Action? Department of Justice Environment and

Natural Resources Division (ENRD) On Behalf of Whom?

Client Agencies—EPA, Coast Guard, Fish and Wildlife Service, Forest Service, other agencies

Civil Enforcement Process ENRD’s Environmental Enforcement Section

handles most civil enforcement Organized into litigating groups handling

cases from specific EPA Regions Most attorneys in Washington, DC, but handle

cases across the U.S.

Civil Enforcement – Referral Process

Referrals primarily from EPA/agency regional offices.

Referral “litigation report” includes: Proposed defendant Violation and the basis for the claim Evidence supporting claim Anticipated defenses Relief sought by agency

Referral Process

When DOJ Receives Referral: Reviews Referral to see if:

Ongoing violations that present immediate risk to human health, environment

Imminent statute of limitations deadline DOJ makes independent review of referral

DOJ Review of Referral

If DOJ counsel recommends filing case: Prepares a complaint Approval and briefing memo Submitted to ENRD management. Must

ultimately be approved by Assistant Attorney General or person with approving authority.

Although DOJ litigates, it continues to work with EPA throughout trial and settlement.

DOJ Action Pre-filing

Prior to filing complaint, DOJ must give prospective defendant notice of claim and opportunity to settle

Many statutes require pre-filing notice to state agency

State may file own complaint and litigate jointly with U.S.

Civil Complaint

Complaint filed in federal district court where company located or where violation occurred.

Complaint includes: On whose behalf complaint filed Short statement of nature of action Basis for court’s jurisdiction and venue

Civil Complaint

Complaint includes, cont. Summary of statutory, regulatory, and factual

background Claims for relief Prayer for relief, including

Injunction to stop illegal action, require defendant to correct damage, or come into compliance

Civil penalty Reimburse Government for expenses

Claim for Injunctive Relief

Preliminary injunction or temporary restraining orders sought: Where unlawful conduct must be stopped

immediately Company facing substantial environmental

liabilities seeks to sell largest asset for inadequate value.

Claim for Injunctive Relief

Longer term injunctive relief: If violations not stopped immediately, we ask

court to impose compliance schedule, interim measures.

Mitigation measures where stopping violations will not fully redress harm caused.

Penalty Demand and Government Costs Environmental laws set maximum penalty

amounts and specify factors for courts to consider.

Recovering economic benefit of noncompliance essential.

Civil penalties are paid to U.S. Treasury Many statutes also allow government to

recover costs – CERCLA for example Also may recover natural resource damages

Procedural Rules in Civil Enforcement Governed by Federal Rules of Civil

Procedure Discovery

Initial Disclosures Written Interrogatories Requests for Production of Documents Requests for Admissions Depositions Disclosure of expert testimony

Case Management

U.S. frequently asks for bifurcation by the court in a case management order

In CERCLA cases, U.S.asks for trifurcation.

Cleanup decisions in CERCLA and oil pollution cases based on administrative record.

Trial or Settlement in Civil Enforcement

Trial Settlement

Majority of cases still settle before trial. Settlement embodied in consent decree. Settlements “lodged” with court and made

available for public comment. U.S. carefully reviews comments, moves to

enter only if appropriate.

Civil Judicial Enforcement Results 2009: $69 million in civil and stipulated penalties 2009: $2.6 billion in corrective measures through court

orders and settlements. Since 1995, 88 settlements in cases for noncompliant

wastewater treatment systems requiring $27 billion in control measures

Civil petroleum refinery initiative— settlements reduce air pollutants by 337,000 tons annually.

Clean Air Act settlements with coal-fired power plants—reduce emissions of SO2 and NOx by 2 million tons per year.

Trends in Civil Enforcement More multi-facility settlements

Jan. 2010 settlements with Saint-Gobain and Lafarge Industry-wide enforcement efforts

coal fired power plants, petroleum refineries Enforcement actions to change company practices

Home Depot, Wal-Mart Multi-media settlements

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