Environmental law

From wikilawschool.net. Wiki Law School does not provide legal advice. For educational purposes only.
Jump to navigationJump to search
Environmental law
Relevant texts Image of Environmental Regulation: Law, Science, and Policy [Connected Casebook] (Aspen Casebook)
Environmental Regulation: Law, Science, and Policy [Connected Casebook] (Aspen Casebook)


Related course(s)

o Depends which taxonomy you choose – (permit and review- think about citizens enforcement)


o CAA, CWA, ESA, E policy act, coastal act,


Chapter 6 212-223

Administrative Procedure Act Key Provisions 4

· Definitions section important 5 USC 551

· P. 204 Formal/informal rulemaking of APA

Adjudication

·

· Under order: Will always be able to get adjudication

· Under permit: Contested case: If you’re one of these you also get a hearing, if not you don’t

· Different under Federal System


Chevron Case

· Bubble rule: Grouping together efficiency of the stacks for pollutant types

· The Environmental Protection Agency (EPA) promulgated a rule interpreting the term “stationary source” to include what the agency called a “bubble policy.”


· Issue

o When a court reviews an agency’s construction of a statute that it administers, may the court impose its own construction on the statute if the statute itself is silent or ambiguous regarding the specific question at issue?

· Holding

o No. When a court reviews an agency’s construction of a statute, it faces two questions.

First, the court must consider whether Congress directly addressed the precise question at issue.

2. Second, if the court finds that the statute is silent or ambiguous regarding the specific issue, it must consider whether the agency’s answer was based on a permissible construction of the statute.

· Here, Congress did not express an intent regarding the applicability of the bubble concept to the permit program.

· Given the many competing interests at stake, the EPA’s use of the bubble concept was a reasonable policy choice for the agency to make.

o Court says underlying policy decisions essentially should not be for them here.

o Particular interpretation at the time of the agency if left ambiguous when decided by the court

Chevron Case notes Continued

· RefiningàDistilledà(Cracking)- (maximizes use of heavy oil)

o Processing of specific oils

· Reformingàblendingàtreating (sulfur from gasoline issue)

o Smallest molecules go to top in refinery

· Under old rules: new source review, for new techàhad to go to Best Available Tech for replacementàif taking a source offlineàHave to use BAT on that source

o Bubble rule says noàtake all of them, average them, if you go over then don’t do it.

§ Argument: the right time to upgrade

Difference between law improving environmental protection and maintaining status quo*

Background of Chevron

· Notice of improved rule making (NPR)

o Agency telling world they’re putting together regulations

o Put some draft together and take comment form public (notice and comment)

o Then finally issue a final rule

§ Under UAPA, can bring a lawsuit against agency if they’re not following what court has allowed them to do

· Inquire further about precedents set with this case—slightly unclear(?) (deference, etc.)

o When Chevron invoked, when it is not?

· Justice Steven wrote opinion

Admin Agencies, Legislatures, courts, industry (PACS), Env. NGOs (PAC), media

250-255:

8/30/18

· False positive vs. false negative

· Cradle to grave analysis

· Tragedy of the Commons àPrisoner’s dilemma

· Public Trust Doctrine

· Coase: Says taxes are inefficient b/c we don’t know where to set the level

o Coase basically says that the social optimum will be reached no matter who has the property rights through bargaining

§ Precursor to marketable permits for pollution

· Injunctions limited to where $$ damages could not be come up with

Boomer v. Atlantic Cement Co. 1970

Law

Permanent damages, rather than an injunction, are appropriate when the damages resulting from a nuisance are significantly less than the economic benefit derived from the party causing the harm.

Facts

Atlantic Cement Co. (Atlantic) (defendant) is a cement plant in the Hudson River valley. Its surrounding neighbors (Boomer) (plaintiffs) brought suit alleging that the pollution Atlantic produces as a byproduct of its operation is a nuisance and causes damage to the plaintiffs’ properties. Special term determined that this situation is a nuisance. Temporary damages were awarded, but an injunction was denied. The plaintiffs appealed to the Appellate Division, which upheld the special term’s ruling. The plaintiffs petitioned for certiorari to the Court of Appeals of New York.

· Bothered by fact that their property value probably going down

·

Issue

Are permanent damages appropriate in a situation where the harm caused by a nuisance is significantly less than the benefit to the party causing the nuisance?

Holding and Reasoning (Bergan, J.)

Yes. Boomer is entitled to an injunction that will be lifted once permanent damages are paid by Atlantic. A permanent injunction will not be awarded as defendant’s operations provide significantly more economic benefit to defendant than the damage caused to plaintiffs. Generally, an injunction is appropriate in cases where a nuisance would otherwise persist after a trial.

However, an injunction in this case would require Atlantic to completely close its operation unless a cleaner method of producing cement could be found.

· This would be unfair to Atlantic, as the problem of pollution is one that is experienced by all cement factories, not only Atlantic. Since the economic benefit of keeping the factory open is greater than the harm suffered by Boomer, the most equitable solution is to award an injunction that will be lifted once Atlantic pays permanent damages to Boomer. By awarding an injunction that will be lifted once permanent damages are paid, Atlantic may keep its business open, and Boomer will be compensated for the harm he may suffer. Thus, the ruling of special term is reversed and remanded with instructions to apply the proper standard.




Rybachek Pollution Case

· Challenge under CWA of EPA’s regulation of the rulemaking on whether or not the standards setting for the industry were appropriate

· Rybachek in mining business

o Look to statute

o Challenged EPA regulations, study conducted

o Challenged EPA’s data as insufficient

Snail Darter Case: Agency brought to court for its own actions allegedly violating Federal law

Hiram Hill et al. v. Tennesee Valley Authority

o River fish issue (as compared to lakefish)

o One of this snail habitats was an area to be impounded but that snail is protected under endangered species act.

o Endangered species Act 7, 16 USC 1536

o Able to sue bc they are a federal agency

o Treating them as a regulator: have not acted arbitrarily

Citizens to Preserve Overton Park, Inc. v. Volpe. 1971

· Pay attention to different judge opinions

Law

· When reviewing an agency decision, the Administrative Procedure Act (APA) requires courts to consider:

o (1) whether the agency acted within the scope of its authority;

o (2) whether the agency’s actions were arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law; and

o (3) whether the agency’s action met the necessary procedural requirements.

Facts

· The Secretary of Transportation (defendant) authorized the expenditure of federal funds for the construction of a six-lane interstate highway through a public park in Memphis, Tennessee.

o Private citizens and conservation organizations (plaintiffs) sought to halt construction, arguing that the Secretary violated portions of the Department of Transportation Act of 1966 and the Federal-Aid Highway Act of 1968 that prohibit the use of federal funds to finance the construction of highways through public parks if a “feasible and prudent” alternative route exists.

o Under these statutes, where no such alternative route is available, the Secretary may only approve construction through parks if the plans are designed to minimize harm to the park.

§ The Secretary did not include his factual findings in the announcements regarding approval of the highway’s route and design.

§ The Secretary also did not indicate why no feasible and prudent alternative routes existed or why design changes could not be made to minimize harm to the park – he did not make an independent determination and relied on the judgment of the city council

· Did not consider environmental destruction, etc.

·

· Here, the Secretary acted within the scope of his authority, but his failure to make formal findings and state his reason for allowing the highway to be built through the park hampers the court’s analysis of whether his decision was arbitrary and capricious.

· The absence of such findings does not mandate remand because neither of the statutes authorizing the Secretary’s exercise of authority requires such formal findings.

o A

2. It is apparent that the secretary of transportation completely failed to comply with the duty imposed upon him by Congress – Duty should not be taken lightly

§ It represents a solemn determination of the highest law-making body of this Nation that the beauty and health-giving facilities of our parks are not to be taken away for public roads without hearings, fact findings, and policy determinations under the supervision of a Cabinet officer – the secretary of Transportation.

§ Remand back to the secretary, whose duty has yet to be performed

· Administrative Reality

1. Sunk cost – spending a lot then asking for approval

2. Corporate or agency project promoters naturally try to get as much momentum and construction as possible irreversibly underway before citizen opposition can get organized to raise questions about a project or program’s legality.

Threshold Administrative law issues in citizen suits.

· Before a plaintiff can get to the merits of challenges to agency decisions they must pass a number of threshold tests.

1. Justiciability/Reviewability

§ When challenged by citizen suits, agency attorneys often initially argue that their challenged decisions are unreviewable because they contain discretionary elements

· Courts however have found extreme hesitation in siding with no reviewability

§ In Abbot Laboratories the court held: The enactment of the APA embodies the basic presumption of judicial review to one suffering legal wrong b/c of agency action…the Acts generous review provision must be given a hospitable interpretation

§ Only upon a showing of clear and convincing evidence of a contrary legislative intent should the courts restrict access to judicial review.

2. Standing

§ Plaintiff’s injuries do not have to be economic or legal but can extend to recreational, aesthetic, and other injuries.

§ SC occasionally allowed broad standing for troublesome environmental questions to be debated (See Duke Power v. Carolina Envtl. Study Group and US v. Scrap 412 US 669 1973)

3. Exhaustion of remedies and ripeness

§ Have you done all the administrative procedures laid out by that particular agency?

§ Have to exhaust your administrative remedies

§

Administrative law in Citizen Suits

· Arbitrary and Capricious

1. Page 221: where you can use it

2.

1. Where agency has no legal standard to apply to the evidence, or uses an incorrect standard…

2. Where agency may have enough evidence back home in its files to support a deicioson but didn’t show court

3. Where the agency did not have enough evidence period

4. If the agency had rational evidence, but plaintiffs prove evidence wrong

5. Where agency failed to consider the ‘relevant factors’ set by statute, or based its decision on irrelevant factors

· Citizens Enforcement

Directly to superior court OR

Sec 22a-19

· Verified pleading

Attesting to the fact its true to best of your knowledge and belief

· Administrative agencies are beholden to the industry that regulates them

o Try to negotiate with industry to get policies with good technology

o Don’t want to declare something and waste resources bringing them to court to enforce it.

· Iron triangle: Private construction, industrial interests, and government agencies

o All work together to prevent environmental protection from happening if they are really acting in harmony

· The Storm King Case

o Hydroelectric pumping case where mountain was destroyed

· Scenic Hudson preservation conference v. Federal power commission

o Standing is allowed b/c only interest was the fact that they utilized it for recreation and aesthetics: That is enough.

· STANDING IN ENVIRONMENTAL CASES

o To bring a case as citizen

§ 1st: Give notice to DEP or whoever is party (P. 231) 505(a)

Clean Water Act 519-569

· National base line pollution standards

o Harm based standard setting v. Tech based

o P. 528 definition of the waters of the US

· 10/2/18

· . 175 taxonomic approach to public law—the different ways statutes work

· How do you learn whether something is fishable or swimmable?

o Test the water?

o Physical biological and chemical standards

§ Low dissolved oxygen

§ Nutrients

§ Sediment and siltation

§ Bacteria and pathogens

§ Acidity

§ Organic activity

§ Habitat classification

§ BOD demand for oxygen

· Bio Life assessment more effective than direct criteria pollutant testing

· Types of pollutants 521-524

·

· TBels: Tech based effluent limits

· WQBELs: Water quality “ “

· Point source: Have to have a conveyanceàhuman beings have got to say the water is being forced into some conveyance channel and then being discharged.

o Effectively need a discharge of a pollutant from a point source to a navigable source of water

· Aquifer protection actàGroundwater included in federal CWA or notàcertainly in state level

o Unless polluting a navigable water under CWA, can’t order remediation (even fi polluting an aquiferàState level laws probably would kick in)

o

· Definition of navigable waters includes its tributaries

· Rapanos v. United States 547 US 715 (2006)

· Origin and evolution of TBELs

o US EPA v. California

· Rybachek v. EPA 1990

o Regulation put forward by EPA regulating the placer mining industry

o Miners don’t want to do itàExpensive

o Statutory framework + rulemaking history p. 538

o Chevron in playàWas congress’ intent clearàIf reasonable interpretation of law give deference to the agency to make rules that meet the goal as long as they are ‘reasonable’ at face

o Tech standards for existing sources v. New sources p. 545

o Reasonable relationship between the cost and the impact on water

Ch 5. Overview of Environmental Reg. In Us

1. A Taxonomic approach

2. Delegations to agencies (review and permit statutes.)

· Common law is not always adequate enough to serve as society’s primary environmental law strategy. Common law in most cases operates retrospectively

o Specialized knowledge lacked, remedies broad, discretionary to judges, etc

· Environmental Public law is built from hundreds of legislative enabling statutes delegating authority to administrative agencies to promulgate and enforce regulations, and to perform quasi-judicial adjudicatory functions with regard to permitting and enforcement

Environmental statutes

· Written by Congress

· Administered by agencies

· Interpreted by courts

Taxonomies

· Different types of regulatory approaches

· Potential transferability of techniques for application to additional/future settings

· In the environmental area, virtually every regulatory effort has 2 somewhat distinct elements

o A regulatory technique

o Procedure for implementation

Harm-Based Ambient Standards (11-12)

a. Operates by correlating concentrations of pollutants in the receiving body with undesirable human health and environmental effects (air and water ex: receiving bodies)

b. Selecting a target level, an ambient quality standard, for concentrations that the regulator deems safe and

c. Prescribing the amt of pollution that individual polluters whose pollution affects the receiving body may emit or discharge in such a way that if each polluter compiles, the ambient standard will be attained

i. Since it prescribes limits and standards for emissions, implementation important.

Can most easily be a permit to emit or discharge only a certain amt of pollutants

· Begins with the goal of preventing some identified harm based on levels of exposure to conventional or toxic agents that are present in the environment generally (ambient = general receiving medium).

· A concentration is set for the allowable limit of the pollutant in the receiving body, which is the key regulatory standard in this type of technique.

· From there, the regulatory program accounts for the contributing sources of pollution and regulates those sources in a way that ensures the total loadings result in ambient uality at least as good as that required by the standard, which should avoid unacceptable levels of harm.

o This is similar to the cap and trade approach in that -having an environmental goal and an upper limit on emissions that will attain that goal.

o In Cap and trade, one of the key regulatory decisions is to select an allowable amount of emissions or discharges from the entities being regulated under the program. The means of obtaining the desired result is radically different however. Also, in some cap and trade settings, the initial cap is chosen by rollback (50% reduction from the baseline of current emissions) or some other method that is not extensively correlated with harm that is occurring at particular ambient levels of pollution.

· Both the CAA and CWA employ harm based ambient standards as a prominent feature of the regulatory structure.

o This technique implicitly allows pollution up to the regulatory limit, and, standing alone, the harm-based ambient standards approach does not require efforts to reduce pollution beyond that point, even when additional pollution reductions are technologically feasible.

2. Review and Permit

a. Essential features are identification of an environmental problem area by legislature, a very broad statement of public policy in that regard, and delegation to an agency of authority to make case-by-case determinations in regard to environmentally degrading behavior with the power to permit, condition, or deny the proposed action.

b. The agency reviews the data in relation to the activity and its environmental effects, the possibility of controls, etc, and issues its decision in the form of a permit (that may contain conditions limiting harmful environmental effects) or denial of a permit

3. Disclosure (176)

4. Roadblock statutes

a. Dominant element of roadblock statutes is that the legislative has put down a fixed life, a flat prohibition on environmentally damaging behavior

i. Reserved for problems of particular gravity (such as extinction of species under ESA)

Under this law, a federal agency generates a list of endangered and threatened species, then under section 7 of the act federal agencies are required to utilize their authorities (construction, permitting, etc) to avoid jeopardy to the species.

If they cannot eliminate the risk of harm to the species, the agency cannot proceed. That is the roadblock

Similarly under section 9 of the act all persons are prohibited from ‘taking’ listed species, even when done indirectly by altering their habitat.

Forces pressure for workarounds that allow the desired activity to proceed without sacrificing the imperative of species protection

5. Cost Benefit Analysis

6. Technology Forcing (11)

a. This technique is used when the legislature desires to achieve a pollution reduction result that cannot be met by any existing in-use technology.

b. The two most notable instances of technology forcing in the US were in regard to vehicle tailpipe emissions and the eliminations of the use of certain CFCs.

c. The legislature picks a time in which it thinks a new, more effective pollution control technology or environmental protection system can be brought on-line, and mandates a performance standard based on the new technology tat will be able to be achieved by that future date.

d. Those threatened by technology forcing risk being put out of business if they do not develop a means by which to comply.

e. Since shutting down a major industry is not a politically realistic choice, there is considerable risk in employing this strategy and actually following through if the technological innovation is not met by the time.

i. Both the legislature and regulated community understand this, so usually technology-forcing is employed when there is strong evidence that the needed technology can be implemented by the appointed time and the industry, for whatever reason, has delayed or opposed its commercial utilization.

ii. The most recent example is aggressive gas mileage standard setting in automobile industry.

· On the nongovernmental side of environmental politics, major actors at the federal level are NEG’s, industry, and organized labor,

Ch. 6

Administrative Process and Law

· The process by which government agencies (at all levels) receive the powers that they apply in their various regulatory settings – this is the delegation issue

· The methods by which they exercise their powers in particular cases.

o 3 primary modes of agency action that impact upon 3rd parties utside government are monitoring (including data collection and inspection), adjudication, rulemaking

The Structure of Administrative Agency Power and Process

· The source of power: delegation. Agencies are agents; their only reason for existence is that the constitutionally created branches of government had too much work. Accordingly they delegate some of their powers to standing agents in order to spread the workload.

· Can be created by each branch of the overnment.-->However usually created by an act of legislature signed into law by the chief executive

· Agencies powers and duties are dictated by the statutes that create them. They hold only subsidiary powers to make subsidiary rules

· Powers:

o Power to investigate, require submission of info, etc.

o Rulemaking (issuance of regulations) and

o Adjudication (process of making operative agency decisions by applying legal standards set out in statutes or regulations to the facts of particular cases

Ch 7 provides basis for judicial review of challenged agency actions

The 5 Blocs

· On any given environmental issue there are typically 4 significant blocs likely to be actively involved and playing significant roles in the determination of administrative outcomes

Industrial-commercial interest acting individually or through their various organizations

The administrative agency or agencies

The activist citizen associations

The legislature and legislators

And the courts, which have the final say

(maybe add media)

· Pressuring agencies

a. Pressure can be applied before or after particular agency decisions through lobbying, the media, the legislature through the budget process, oversight hearings, and amendments to agencies’ statutory authority

· Regulatory Agency Action—Rulemaking

a. 1st stage of official agency action is issuance of a regulation detailing permissible behaviors under a statute (maximum discharge ex)

b. Notices of proposed rulemaking are published, along with time for public written comment then a notice of final rulemaking accompanied by agency responses to public comment, with rule later codified in CFR.

c. Constitution first, then statutes, then regulations by agencies

· Regulatory Agency Action – “Adjudication”

a. Enforcement of environmental statutes, usually under the terms of regulation sissued under the statutes, is initiated by agency staffers in a variety of formal or informal internal administrative procedures or directly in judicial proceedings.

b. If agencies fail to enforce legal standards against violators, citizens can initiate enforcement themselves, for practical reasons, almost always in court

i. APA designed to refer to EPA as a regulator not a defendant

ii.

·

a. RYBACHEK

i. Challenge under CWA of EPA’s regulation of the rulemaking on whether or not the standards setting for the industry were appropriate

ii. Rybachek in mining business

iii. Look to statute

iv. Challenged EPA regulations, study conducted

v. Challenged EPA’s data as insufficient

b. Regulation put forward by EPA regulating the placer mining industry

c. Miners don’t want to do itàExpensive

d. Statutory framework + rulemaking history p. 538

e. Chevron in playàWas congress’ intent clearàIf reasonable interpretation of law give deference to the agency to make rules that meet the goal as long as they are ‘reasonable’ at face àUphold EPA- not courts job to review EPA’s science as long as they studied it and deemed the threshold.

i.

Snail Darter Case: Agency brought to court for its own actions allegedly violating Federal law

· Hiram Hill et al. v. Tennesee Valley Authority

o River fish issue (as compared to lakefish)

o One of this snail habitats was an area to be impounded but that snail is protected under endangered species act.

o Endangered species Act 7, 16 USC 1536

o Able to sue bc they are a federal agency

o Treating them as a regulator: have not acted arbitrarily

o Although the TVA’s arguments are valid, an examination of the ESA’s legislative history and structure of the law indicates beyond doubt that Congress intended endangered species to be afforded the highest of priorities and that their value is “incalculable.” The judgment of the court of appeals is affirmed. Snail Darter lives


o

2. It is apparent that the secretary of transportation completely failed to comply with the duty imposed upon him by Congress – Duty should not be taken lightly

§ It represents a solemn determination of the highest law-making body of this Nation that the beauty and health-giving facilities of our parks are not to be taken away for public roads without hearings, fact findings, and policy determinations under the supervision of a Cabinet officer – the secretary of Transportation.

§ Remand back to the secretary, whose duty has yet to be performed

· Administrative Reality

1. Sunk cost – spending a lot then asking for approval

2. Corporate or agency project promoters naturally try to get as much momentum and construction as possible irreversibly underway before citizen opposition can get organized to raise questions about a project or program’s legality.

Threshold Administrative law issues in citizen suits.

· Before a plaintiff can get to the merits of challenges to agency decisions they must pass a number of threshold tests.

1. Justiciability/Reviewability

§ When challenged by citizen suits, agency attorneys often initially argue that their challenged decisions are unreviewable because they contain discretionary elements

· Courts however have found extreme hesitation in siding with no reviewability

§ .

2. Standing

§ Plaintiff’s injuries do not have to be economic or legal but can extend to recreational, aesthetic, and other injuries.

§ SC occasionally allowed broad standing for troublesome environmental questions to be debated (See Duke Power v. Carolina Envtl. Study Group and US v. Scrap 412 US 669 1973)

3. Exhaustion of remedies and ripeness

§ Have you done all the administrative procedures laid out by that particular agency?

§ Have to exhaust your administrative remedie

§

·

· : Hazardous Waste Treatment Council v. US Environmental Protection Agency

o Law

o Courts will uphold an agency’s regulations as long as those regulations reflect a reasonable interpretation of ambiguous statutory language.

§ Chevron review

§ Chevron stepsà

· 1. Is the statute ambiguous

· 2. Is the interpretation reasonable

P 779: Congress cannot alter the interpretation of a statute once it has been passed

· Under the principle of Chevron deference, if a court determines that a statute is either silent or ambiguous on an issue, the court must proceed to the second step in the Chevron analysis and consider whether the agency responsible for administering the statute has interpreted the ambiguous statutory language in a way that is reasonable based on various tools of statutory interpretation,

Administrative law in Citizen Suits

· Citizen can bring agency to court for judicial scrutiny.

· Arbitrary and Capricious

1. Page 221: where you can use it

2.

1. Where agency has no legal standard to apply to the evidence, or uses an incorrect standard…

2. Where agency may have enough evidence back home in its files to support a deicioson but didn’t show court

3. Where the agency did not have enough evidence period

4. If the agency had rational evidence, but plaintiffs prove evidence wrong

5. Where agency failed to consider the ‘relevant factors’ set by statute, or based its decision on irrelevant factors

· Citizens Enforcement

Directly to superior court OR

Sec 22a-19

· Verified pleading

Attesting to the fact its true to best of your knowledge and belief

· Administrative agencies are beholden to the industry that regulates them

o Try to negotiate with industry to get policies with good technology

o Don’t want to declare something and waste resources bringing them to court to enforce it.

· Iron triangle: Private construction, industrial interests, and government agencies

o All work together to prevent environmental protection from happening if they are really acting in harmony

· The Storm King Case

o Hydroelectric pumping case where mountain was destroyed

· Scenic Hudson preservation conference v. Federal power commission

o Standing is allowed b/c only interest was the fact that they utilized it for recreation and aesthetics: That is enough.

· STANDING IN ENVIRONMENTAL CASES

o To bring a case as citizen

§ 1st: Give notice to DEP or whoever is party (P. 231) 505(a)

Chapter 18: Evolving patterns of enforcement and compliance

The governmental enforcement processes

· Three phases of EPA enforcement

o Inspection and information gathering

o Administrative case development; and

o Formal litigation

· In non-criminal cases, the agency has several primary sources of compliance information

o Self-monitoring

o Record keeping

o Reporting by individual sources of pollution

o Inspections by gov’t personnel

o Specific complaints of concerned citizens

· Most EPA inspections are announced to the pollution source ahead of time to ensure the presence of important plant personnel.

o Can be ‘for cause’ (reasonable suspicion) or routinely conducted pursuant to neutral inspection scheme’

· Once EPA (and/or DOJ) investigators have completed information gathering, they must determine whether the source is in violation of an applicable standard, and what sort of enforcement response the agency will make.

· EPA has a range of options available:

o May begin enforcement by issuing a notice of violation to the polluter, describing the violation and inviting the source to confer informally with agency enforcement personnel

o Can issue administrative order requiring compliance and an assessed civil penalty

o EPA generally authorized to refer to enforcement matters to the DOJ for civil or criminal prosecution.

o If it deems circumstance appropriate, the agency may defer to a planned or ongoing enforcement ction by state or local environmental officials.

· Things to consider in violations

o Degree to which source’s discharge or emission exceeds legal requirements

o Duration of the violation

o Number of previous enforcement actions taken successfully against same source

o Enforcement capability of those officials, etc.

· Usually to Agency’s advantage to resolve acceptably as many enforcement matters as possible, without resorting to expensive and long litigation.

Begins administrative process w notice of violation

· Can result in administrative orders and penalties, negotiated penalties with noncomplying entities or individuals, and compliane agreements with continuing EPA oversight and supervision.

Enforcement Tools

EPA’s 4 Primary Enforcement Tools:

· Administrative orders

o Typically require fewer resources than litigation, can be issued unilaterally, do not require consent of alleged violator, and allow EPA to control direction and outcome of enforcement without DOJ involvement.

o Have a variety of purposes

§ Gather info

§ Require remedial action

§ Suspend or revoke permits

§ Assess penalties (civil penalties usually 37.5 daily for each violation)

· EPA guided by civil penalty policies. Under its primary policy on civil penalties, EPA alculates the size of penalty by

o First considering the gravity of the violation and economic benefit derived from it

o After calculating base penalty, EPA may make adjustments based on willfulness, cooperation, history of noncomplicance, and mitigating factors demonstrated by the violator.

· ANOTHER civil penalty policy

o Supplemental Environmental Projects

§ EPA may mitigate a portion of the penalty as a quid pro quo for the violators undertaking an environmental improvement not otherwise required.

§ Typically part of negotiated settlement

· EPA considers if penalty should be mitigated by benefits to the environment or the public from a suppemental project, - more environmentally beneficial enforcement settlements.

· Qualifying SEPS must maintain a nexus between the original violation and supplemental project

§ Only when EPA attempts to enforce administrative orders are they subject to judicial review

·

o

· Civil actions for injunctions , penalties, and other relief;

o EPA can seek judicial order by requesting DOJ initiate a civil action in federal court

o Because this alternative requires coordination with DOJ, involves commitment of resources in litigation, and does not allow EPA to directly control outcome of enforcement, judicial enforcement used less frequently than administrative.

o IF admin order not obeyed, EPA ust proceed in federal court for compliance – subject too judicial review

o

· criminal prosecutions and

o The federal environmental statutes provide for criminal liability for violators and in some cases do not include requirements of knowledge or other evidence of criminal intent

o When determining whether to proceed criminally, the EPA considers te degree of actual or threatened harm as well as the type and nature of the conduct

o Refers to DOJ for criminal prosecution, DOJ considers voluntary compliance and voluntary disclosure of noncompliance to prosecuting authorities

o Fines available as well

o Criminal sanctions do not include injunctive orders for comlpliance or to remedy environmental harm, but such requirements may be imposed in connection with an appropriate penalty under sentencing guidelines

· suspension, debarment, and listing

o being named on the list disqualifies the facility from receiving federal grants or contracts