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Volume [field_article_intvolume_value], Issue [field_article_intissue_value] — October 1993

Articles

The "Civil" Implications of Environmental Crimes

by David T. Buente, James L. Connaughton, and Thomas G. Echikson

Editors' Summary: Most federal environmental statutes allow the federal government to bring both civil and criminal enforcement actions against parties engaged in unlawful activities affecting the environment. Many of these statutes grant states concurrent enforcement authority, and many states have enacted environmental laws that give state officials both civil and criminal enforcement authority. As a result, a defendant in an environmental enforcement action may be subject to parallel proceedings under civil and criminal laws at both the federal and state levels. The implications of this situation are so significant that parties subject to environmental laws must consider them carefully.

In this Article, the authors analyze in depth the relationship between civil and criminal enforcement of environmental laws. They begin with a discussion of the generally favorable attitude that federal courts have taken toward parallel criminal and civil actions instituted by the federal government. They then examine the discovery process and discuss the federal government's ability to use material from a civil proceeding in a criminal action and material from a criminal action in civil litigation. They review EPA and DOJ policies on parallel proceedings and discuss the impact of the U.S. Constitution's privilege against self-incrimination and protection against double jeopardy on parallel proceedings. They also examine the overlap between civil remedies and criminal sanctions, with special emphasis on the treatment of corporate defendants under the U.S. Sentencing Commission's Guidelines Manual. Finally, they discuss the tax, securities, and insurance implications to defendants of criminal prosecution under environmental laws.

Environmental Law in the Supreme Court: Highlights From the Marshall Papers

by Robert V. Percival

Editors' Summary: Earlier this year, the Library of Congress released the papers of the late Supreme Court Justice Thurgood Marshall. In so doing, it provided scholars with access to a remarkable record of the Court's inner-workings. Among the Marshall papers is an extensive collection of letters, memoranda, and draft opinions that the Justices exchanged on some of the most important cases of the last quarter century.

Justice Marshall served on the Court from 1967 until 1991. During that period, Congress passed all of the major federal environmental statutes and environmental regulation mushroomed. As a result, the Marshall papers reveal how the Court reached decisions that have shaped modern environmental law. The author, a former law clerk to former Justice Byron White and an associate professor of law at the University of Maryland, begins by describing the history of the Court's treatment of environmental disputes. He then discusses the steps the Justices take in deciding whether to accept cases for review; in reaching decisions on the merits in cases they do review; and in drafting majority, concurring, and dissenting opinions. Throughout the Article, the author furnishes examples from some of the most famous environmental cases that the Court has decided. He describes how the Court sometimes reached final decisions only after Justices switched their votes, demonstrating that historic decisions in some environmental cases were uncertain until the last minute and sometimes depended on factors not revealed in the Court's opinions. He concludes that the resulting portrait of the Court reveals the Justices' personal and intellectual integrity and shows that the Court is an institution that functions extraordinarily well.

Tribes as States: Indian Tribal Authority to Regulate and Enforce Federal Environmental Laws and Regulations

by David F. Coursen

Editors' Summary: The principles of federalism, state primacy, and tribal sovereignty all impact how federal environmental regulations are implemented and enforced on Indian lands. In recent years, Congress increasingly has crafted environmental protection laws that expressly provide recognized tribes with mechanisms for assuming authority to operate programs under those statutes, similar to provisions for states to obtain such authority. Yet many important federal environmental laws leave uncertain the role of Indian tribes in enforcing federal regulations on Indian lands. The courts, thus, have been left with the task of determining whether tribes may nonetheless receive authority to operate programs established by these laws under other, usually "inherent authority" or treaty-based, theories. The author reviews the environmental laws and regulations, and EPA's policies on treating tribes as states for purposes of assuming program authority. The author describes the federal statutes that expressly authorize EPA to treat tribes as states, including the Clean Water Act, the SDWA, the Clean Air Act, and CERCLA. He next discusses EPA's implementation of regulations to effect this authority, including tribal requirements, the effects of being approved for treatment as a state, EPA's attempt to simplify the process of approval, and the Agency's CERCLA regulations. The author analyzes federal environmental laws that do not expressly authorize treating tribes as states, including RCRA, FIFRA, TSCA, EPCRA, and the Pollution Prevention Act. He then discusses the key legal issues surrounding treating tribes as states, including jurisdiction over programs through inherent, or aboriginal tribal authority, and through delegated authority from Congress. The author concludes with a discussion of EPA's Indian policy to encourage tribal self-determination, including tribal assumption of regulatory and program management on Indian lands.