Overview

No one voluntarily chooses to become a defendant in environmental litigation. Unfortunately, sometimes bad things happen to good people. Despite a company's excellent commitment to environmental protection, a government agency may threaten it with litigation and possible civil penalties for noncompliance with pollution control requirements. The conflict may arise because of disagreements with regulatory agencies about what pollution control obligations exist, because of an accident, or it may happen because someone in the company simply did not do their job adequately. Whatever the reason, you face litigation expenses, statutory civil penalties, and other unpleasant consequences. The underlying conflict may be considered a very minor problem, but the potential litigation poses a significant risk. Managing that potential litigation toward a successful conclusion requires an understanding of the relevant enforcement process, the risks involved, and the likely outcome. Each step in this process will present opportunities to minimize adverse consequences, and it is up to the company to use those opportunities wisely.

This Article discusses enforcement and civil penalties as they relate to the traditional environmental regulatory programs controlling air emissions, water discharges and waste disposal.¹ In most such conflicts, the substantive pollution control and permitting issues are resolved with the environmental agency reasonably and quickly. New controls are installed, records are kept, or permits sought as required of all other similarly situated sources. Frequently, it is more difficult to decide what to do about claimed past noncompliance. Will the agency file litigation or not, and if so, what civil penalty is appropriate? How can companies minimize the risk of litigation and the amount of any potential civil penalty?