How does the federal government enforce environmental laws and regulations? Who are the stakeholders involved in this process, and how do they relate to each other? How does environmental enforcement policy change from administration to administration?

This quarter, Elise Feldman (Department of Justice) and Tom Boer (Hunton & Williams), two highly experienced environmental attorneys, answered these and more questions on environmental enforcement during the weekly Colloquium of the Environmental Law and Policy Program at Stanford Law School.

Because of their combined experience, LLM and JD students had the pleasure to hear a comprehensive account of the lifeline of an environmental enforcement case in the U.S. judicial system. Thanks to Mr. Boer´s insight as a private attorney, students learned that cases start well before they even reach the DOJ enforcement section. The role of an environmental attorney begins by advising the client on how to comply with environmental standards. If, however, something goes wrong, the enforcement process is set in motion from the moment a company is first notified of its alleged failure to comply with the regulation. Then an investigation is carried out by the EPA or other agency with jurisdiction (e.g., the Department of the Interior, the Department of Health and Human Services, the Department of Agriculture, or the state authority); after that investigation is over, the EPA may decide to refer the case to the DOJ.

The role of the DOJ in environmental enforcement, as Ms. Feldman explained, is restricted to litigation. The EPA or the agency referring the case to their section should have already done a thorough investigation and gathered the necessary evidence to take the case to trial. If, however, they think that the case is not strong enough, they may return it to the agency for further research.

According to the speakers, most of the cases are resolved through settlement because most defendants prefer not to expose themselves to a public trial and the expenses and possible media attention that inevitably come with it. However, if the case does go to trial, depending on the difficulty of the situation, it may take many years to reach a final decision.

Another topic that was touched on during the discussion was the number of different agencies and stakeholders involved in the enforcement process. On the government side alone, many departments may be involved, including criminal enforcement, federal civil enforcement, federal regulatory enforcement, state civil and regulatory enforcement, and local nuisance and environmental enforcement.

However, in every case, it is necessary to take into account a completely different set of potential stakeholders, such as the companies, or the neighbors that may have been affected by their activities or by a new policy implemented by the government.

Environmental Enforcement Case Study

Ms. Feldman illustrated the complexity of conflicting interests in environmental enforcement processes through her recount of a particularly difficult case in which she took part some years ago.

The facts of the case took place in Nevada, where four mining companies were discharging their waste into the Owyhee River. The state of Nevada became involved, and the governor and Nevada’s Departments of Natural Resources and Environmental Protection activated their own enforcement procedures.

At this point in the story, the case seemed simple, but as the events of the story unfolded, many other stakeholders appeared. The Shoshone-Paiute tribe, who had sovereignty on the territory, claimed their interest in the process, while the U.S. Forest Service, who owned a parcel on the polluted area, could be held liable for neglecting the protection of their land and therefore was included in the case. To make matters more complex, an elderly woman who also owned a parcel near the polluted area was in the same situation as the U.S. Forest Service, and she was dragged into a judicial process about which she understood very little.

Additionally, the pollution in this particular case was of such magnitude that, according to the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), the federal government, acting through the EPA, had broad authority to respond directly to it. However, due to opposition from the Governor of Nevada to listing the property on the national priorities list of hazardous waste sites, the EPA initially did not pursue the case.

Indeed, the EPA did not get involved until the mining companies reached out to the EPA and asked the agency to pursue a legal claim against them. It was a strategic move: a process led by the federal agency would give them a better chance to reach a settlement involving all the different stakeholders at once.

With some initial reservation, the EPA agreed to sue the mining companies and decided to leave the woman and the U.S. Forest Service out of the dispute. A settlement was eventually reached and presented to a judge for approval. According to it, the mining companies had to pay $25 million for the cleanup of the river, which would be supervised by the state of Nevada and the Soshone-Paiute tribes.[1] In a last twist, however, the judge asked to include the woman in the case, so he could make sure that her interests were being taken into account.

This case clearly illustrates how environmental enforcement processes can evolve into highly complex legal cases, that deal not only with environmental standards and regulations, but also with federalism, politics, and economic interests. In this case, the injurer asked for the federal government’s action, while the State defended its authority as a sovereign body. These types of situations go far beyond the legal implications of simple enforcement, and they require strong cooperation between the parties to try to reach a just outcome.

And, while changes in administration may affect the number and type of cases in the enforcement pipeline, environmental enforcement work remains critical. As Mr. Boer stated, “environmental enforcement is about balance. No company should be disadvantaged because it chose to comply with environmental regulations.” So, the work of the environmental enforcement agencies, and of private attorneys working on issues of environmental compliance, is not only to make sure that private entities are following environmental standards to protect and preserve nature, but also to level the playing field between economic actors, preventing environmental regulation from becoming a source of disadvantage or unjust privileges.

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[1] United States Environmental Protection Agency (EPA), Case Summary: Agreement Secures $25 Million Cleanupfor the Rio Tinto Mine in Nevada, EPA.gov (April 26, 2016), https://www.epa.gov/enforcement/case-summary-agreement-secures-25-million-cleanup-rio-tinto-mine-nevada#site.