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 Demandand 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 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