Standing Committee Symposium on The Role of Private Institutions in Public Environmental Decisionmaking: Private Watchdogs: Internal Auditing and External Enforcement -- Three Perspectives: C. The Government Perspective

Standing Committee Symposium on The Role of Private Institutions in Public Environmental Decisionmaking: Private Watchdogs: Internal Auditing and External Enforcement — Three Perspectives: C. The Government Perspective

Thomas E. Hookano

Thomas E. Hookano is Deputy Assistant Attorney General, Land and Natural Resources Division, U.S. Department of Justice, Washington, DC.

[17 ELR 10260]

I would like to discuss the respective roles of the federal government and private citizens in the enforcement of environmental laws. This is an area that raises a host of questions, some pragmatic and some more philosophical. In general terms, who should be in the driver's seat with regard to environmental enforcement? Should it be the federal government (along with its state counterparts), or should it be private persons bringing suits under the various citizen suit provisions? Did Congress really intend in enacting those provisions that citizens should stand in the place of government as the enforcer of environmental statutes or did Congress intend that there be shared responsibility between citizens and the government in the enforcement of environmental laws?

Another perplexing and hotly debated question is, should government be bound by judgments in citizen suits? Although the environmental statutes generally require that a citizen notify the government 60 days before bringing suit, most statutes do not require that a citizen-plaintiff serve the government with copies of complaints, other papers, or even consent decrees.¹ To the extent that the government would be bound by the judgment in a citizen enforcement action, the government's priorities are in danger of being severely interrupted, and its attention focused on a narrower set of interests.

Before I examine these questions, let me pause for a moment to explain my perspective. First, I have served as a public interest lawyer, so I have had experience litigating under the citizen suit provisions. Secondly, I have had experience as a private attorney representing the regulated public — the folks, for example, who are subject to the Clean Water Act² Section 404 Dredge and Fill provisions and the like. I have [17 ELR 10261] also served on the state level in the Attorney General's office.

I am now a Deputy Assistant Attorney General in the Land and Natural Resources Division of the Department of Justice. That Division is responsible for representing the United States in all litigation related to natural resources, environmental programs, and public land issues. It represents the United States Government's agencies and officials with regard to enforcement activities, defense work, and the implementation of the many federal programs created by the Congress. Along with our responsibilities in enforcing the major environmental protection statutes such as the Clean Air and Clean Water Acts, and, of course, Superfund, we represent federal agencies dealing with Outer Continental Shelf leasing, forest management planning, licensing of biotechnology experiments, and a wide range of other environment-related activities.

Our client agencies include, among others, the Environmental Protection Agency (EPA), the National Oceanic and Atmospheric Administration (NOAA), Interior, Agriculture, and the Energy and Transportation Departments. We are forced, especially in an era controlled by Gramm-Rudman-Hollings,³ to allocate our resources carefully to maximize the public benefit. During the 1970s, there was a rapid growth of environmental statutes. Although some of these statutes envision delegation of enforcement activities to the various states, the United States retains a substantial enforcement role. Our capacity to seek civil and criminal penalties and injunctive relief constitutes the major incentive for compliance. The availability of citizen suits creates an additional incentive.

Let's turn to the Division's enforcement activity. I should note preliminarily that within the Division we have a unit called the Environmental Enforcement Section. It has doubled in size over the last few years and now contains over 80 attorneys. The Enforcement Section has two components, one civil and one criminal, the latter called the Environmental Crimes Unit. Enforcement Section attorneys work closely with the EPA program staff and lawyers, Assistant U.S. Attorneys, and state and local officials.

The United States has five separate objectives in bringing an environmental enforcement action. First, we want to achieve prompt and complete compliance with all applicable standards and regulations. Second, we want to structure appropriate remedies to prevent the endangerment of public health or of the environment. Third, we want to deter future violations through the application of appropriate sanctions, including penalties. Fourth, we want to concentrate our limited enforcement resources on the most substantial and the most pressing cases. Fifth, we seek to promote consistency and, where appropriate, national uniformity in the development of case law interpreting federal regulatory programs.

As I will explain in greater detail, our interest in three of those areas — obtaining appropriate remedies, concentrating our enforcement capability in specific areas, and achieving consistency in the case law — potentially can collide with the tactics chosen by citizen groups in litigating under environmental statutes.

Before we examine those problems, let us turn to the Clean Air Act,⁴ to get an idea of what Congress was thinking about in 1970 when it adopted the first of the citizen suit provisions. There were extensive debates in the Senate over whether to add citizen suit authority to the Clean Air Act. Although the Senate stated that it believed such authority could complement the enforcement activities of government agencies, there was a fear that a citizen suit provision would result in a flood of litigation, clogging already overburdened courts.

To address these concerns, Congress provided a series of checks and balances for the new citizen suit provision. First, Congress provided that costs and fees could be awarded against citizen plaintiffs who brought frivolous or harassing suits. Second, under no circumstances could plaintiffs obtain damages under the law. These provisions were designed to minimize the incentives for inappropriate litigation.

Additional checks were included by Congress. There was a 60-day notice provision to ensure an opportunity for the government to participate. (There is, however, real doubt as to whether a 60-day notice actually gives the government an adequate opportunity to review the proposed litigation and determine whether or not it should participate.) Another provision allowed courts to consolidate concurrent suits to reduce the burden both on the courts and on defendants. And finally, Congress stressed that citizens would enforce the same standards that the government would enforce; that is, the citizens would have to satisfy objective evidentiary standards. With these limitations, Congress approved Section 304 of the Clean Air Act.

Then, as now, the Administration supported citizen suit provisions, recognizing that they could contribute significantly to the effective enforcement of environmental statutes. In the last few years, there has been a dramatic increase in the number of notices filed with EPA. According to a study by the Environmental Law Institute, the majority of these suits were brought under the Clean Water Act. During the same period, federal enforcement activities were approximately two and a half to three times the volume of citizen suits. Because most of these suits are still pending in the courts, it is difficult to determine what effect they will have on government enforcement activities. However, we will follow them very carefully.

Although we generally support the concept of citizen suits, we are concerned that such suits could have a detrimental effect on governmental enforcement efforts in one of three ways: first, by leading to inappropriate remedies in enforcement cases; second, by diverting government enforcement resources away from government priorities and toward the concerns of an array of private interests; and third, by significantly shifting government resources away from enforcement and toward regulatory and administrative processes over the long term.

With regard to the shaping of remedies, it is our view that citizen suits are useful primarily where there are clear and objective standards of liability and where the proper form of remedy is clear-cut. For example, suits to enforce permits issued under the Clean Water Act's National Pollutant Discharge Elimination System (NPDES) may fit into that category. In particular, such suits may be quite feasible and appropriate under the following circumstances: First, the violation involves an existing effluent guideline and can readily be proved by reference to the firm's discharge monitoring reports; second, obtaining compliance involves no more than a simple compliance schedule with no need for policing; and third, the penalty determination does not involve significant questions of state or federal policy.

On the other hand, citizens or private groups should be cognizant of their own limitations where the violations are more difficult to prove, where the equities of the case are unclear, or where the remedy is difficult to design and police. Because hard cases really do make bad law, problem cases could result in the acceptance of legal theories detrimental to both governmental and private enforcement interests. Such cases might best be handled by state or federal enforcement programs. [17 ELR 10262] Citizen groups must be careful not to attempt more than they can realistically accomplish.

A case that comes to mind with regard to the remedies problem is Student Public Interest Research Group v. J.T. Baker Chemical Company.⁵ The plaintiff requested injunctive relief that failed (in the original consent decree) to require full compliance with the applicable NPDES permit. EPA and the Justice Department intervened in the case and renegotiated the injunctive relief to obtain compliance prior to filing an amended consent decree. To our knowledge, the situation has occurred only once, but it is illustrative of the sort of problem that can arise.

We have a continuing concern in the Department with regard to complex litigation such as citizen enforcement of the "imminent and substantial" endangerment provisions of the Resource Conservation and Recovery Act.⁶ These cases are quite complex, not nearly as clear-cut as NPDES-type litigation, and they will require careful selection by citizen plaintiffs.

Another concern is that citizen suits may disrupt government enforcement activities. Federal prosecutors set enforcement priorities and select particular cases with the objective of promoting an overall enforcement strategy based on maximizing deterrence. Cases are selected with a view toward establishing favorable precedents of national applicability, developing some areas of law, and avoiding others.

Citizen suits, on the other hand, tend to address specific local or regional problems, with little regard to the needs of the national law enforcement scheme. Citizen suits, particularly those that allege substantial endangerment under RCRA, may threaten government enforcement priorities. They force government prosecutors to become involved in cases that they may have preferred to handle at a different time in a different way, or not at all. At times there are fact patterns that do not favor legal theories that the government would like to establish or preserve. In essence, such suits preempt the government's prosecutorial discretion.

Another disruptive influence comes from the possibility that courts will hold the government bound by the results of a citizen suit. If the government were bound, it would have to review and intervene in citizen suits to protect the federal enforcement interest. When a citizen suit is filed, the government would be forced to drop its priorities, carefully evaluate the suit, and determine whether or not it must help to fashion an appropriate remedy or to make sure that there is a rule of law consistent with the overall federal and public interest.

If, however, the government is not bound by the outcome of a citizen suit but instead retains the authority to seek injunctive relief as well as penalties for the entire period of any non-compliance, then citizen suits may provide defendants with an additional incentive to deal with the citizen litigator to negotiate a reasonable compliance schedule.

Finally, questions have been raised about the relationship between citizen suits and future permit negotiations. Some members of industry claim that citizen suits have been brought for trivial violations of permit conditions, and that as a result of these suits they will be more willing to forego negotiation and simply adjudicate permits, to ensure that they can meet all of the standards and conditions that are imposed. If many firms radically change their approach to permit negotiations, there might be a long-term drain on government enforcement resources, as personnel and funds shifted to the regulatory and administrative process. This could result in significant delays in issuing new permits and obtaining compliance with updated standards.

There is no indication yet that firms are actually adopting a get-tough policy in permit negotiations, and we hope that all firms will work constructively with EPA in preparing reasonable permits that meet statutory goals.

The current literature indicates that groups like the Natural Resources Defense Council and the Sierra Club have on the whole been acting responsibly in selecting only relatively serious violations for litigation. We hope that citizen groups will continue to take such an approach, so that members of the regulated community do not come to believe that they are better off litigating rather than negotiating on permit issues.

To close on a more general note, one concern I have is that citizen suits may be used as a mechanism for pursuing goals that are essentially political. As one judge recently observed,

Well-meaning statutes are not self-implementing. We need a national will to protect the environment from the threatening health and pollution hazards which the Act addresses. There is need of a massive commitment of funds, talent, and purpose to these objectives. If the Court could do anything about it, the Court would. But these are not matters within the reach of the chancellor's foot. There is little a court of equity can do. These are matters of national policy, political priorities, and I would urge upon the parties with everything at my command that they consider the appropriateness of continuing to rely on courts to accomplish objectives which can only be effectively accomplished in a democracy by resort to the polls, resort to the political processes which the Constitution preserves. There is little I can do. I have done the most I can. But there are other forums where these issues would be far more properly and effectively ventilated.⁷

It is the Justice Department's responsibility to continue vigorous enforcement of environmental laws. We believe that the Congress envisioned a tripartite enforcement system involving the federal government, state and local government, and private citizens. The citizens' role was intended to supplement and encourage government action.

The past few years have revealed that, while there are benefits from citizen suits, there may be some problems which Congress may not have foreseen. While these problems are still largely hypothetical, careful scrutiny by Congress, government agencies, and the Department of Justice, in particular, is needed to ensure that the benefits of citizen suits are maximized.

Discussion

PARTICIPANT: You argue that the government should not be bound by citizen suits. Given that we are dealing with quasicriminal cases with the civil penalties, isn't there a potential double jeopardy problem?

HOOKANO: I think that it is a mischaracterization to say that these folks are subject to double jeopardy. I'm not sure that the Justice Department would agree with the quasicriminal characterization either. Right now, our view on the law is that we can come in over an existing settlement. A defendant is not liable for any more than the statute says they're [17 ELR 10263] liable for, and therefore we could not seek more than a total of the maximum penalties that are provided by law. As a practical matter, there would have to be a grossly inadequate settlement for the government to spend its resources now when it didn't choose to do so before.

Concerns about the government sitting on its hands and waiting, then pouncing and hitting somebody for the second time, do not ring true. The real concern here is diversion of resources away from federal enforcement priorities, and the disabling of the government where its intervention is necessary to protect the public health.

Let me emphasize that there is really no systematic notice as these cases proceed. This makes it very difficult for the government to make a choice with regard to the allocation of resources.

PARTICIPANT: But I take it you would not be satisfied with a change in the Water Act that provided such notice?

HOOKANO: Not without a corresponding indication that the bringing of the citizen suit is no sign that we have been remiss.

PARTICIPANT: I'm trying to relate the last two speeches, asking whether you in the Justice Department have a position on an issue raised by Sam Tucker: Namely, to the degree that industry self-polices, others — whether citizens or government — don't have to, and therefore, self-policing is something to be encouraged. Environmental auditing, in which a company takes an honest look at itself, and the government role, vis-a-vis that audit, is an important issue. The government has an impetus to use an honest audit in an enforcement action, which in turn discourages audits in the future. Do you have views on this difficult area?

HOOKANO: There is no stated policy position on that issue right now. I realize what the problem is, and we want to encourage auditing to go on, just as we want to promote all the other means of getting environmental compliance.

BRUCE TERRIS: I wonder why environmental groups should leave the hard cases to the Department of Justice. If you look at the Water Act, there are almost no decided cases under the Water Act brought by the Department of Justice over a period of nine years. And if you look at your own briefs, which I have recently, most of the cases that are cited are our cases.

HOOKANO: I don't think that's correct. The Environmental Defense Section, for which I am responsible, brings actions frequently with regard to violations of Dredge and Fill type activities. The Division's Environmental Enforcement Section brings a number of actions with regard to violations of NPDES permits. There are, to my knowledge, no reported Section 404 cases brought by citizen groups.

TERRIS: I'm talking about decided cases. The ones you are describing are almost all settled.

HOOKANO: Well, I would like to characterize most of your litigation, too, as involving settlement agreements. We are involved in vigorous enforcement of the environmental statutes, and have quite a number of lawsuits pending in that area. With regard to capability, we are concerned that lawsuits that may be brought, for example, under RCRA's substantial endangerment provision are very, very complex lawsuits to bring. And we would like to know that whoever brings suit has the capability to ensure that the litigation results in a full and fair trial of the issues. I do not mean to inhibit such suits. I am saying that the concern is a hypothetical one, and my advice is to choose your cases carefully to make sure at the time you file that lawsuit that you have full resources to handle it.

1. Recently, Congress amended the Resource Conservation and Recovery Act's citizen suit provision to require that copies of complaints be served on EPA and the Department of Justice. 42 U.S.C. § 6972(b)(2)(F). Other existing statutes simply require sixty-day notice. Only two major environmental statutes lack citizen suit provisions, namely the Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. §§ 135-136y, ELR STAT. 42301, and the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. §§ 9601 et seq. The pending reauthorization bill would add citizen suit authority to CERCLA.

2. 33 U.S.C. §§ 1251-1376, ELR STAT. 42101.

3. Pub. L. No. 99-177, 99 Stat. 1037, Dec. 12, 1985.

4. 42 U.S.C. §§ 7401-7642, ELR STAT. 42201.

5. No. 83-685 (D.N.J. 1983).

6. 42 U.S.C. § 6973, ELR STAT. 42035.

7. Illinois v. Costle, 9 ELR 20243 (D.D.C. Jan. 3, 1979).