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
Equistar
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