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How are environmental laws enforced?
The EPA is charged with enforcement of federal environmental law, while state administrative agencies are similarly charged with enforcing violations of state environmental law. These agencies may cross-enforce the other’s law in conjunction with enforcing their own provisions. Enforcement actions may be administrative, civil, or criminal.
• Administrative Actions – The EPA may pursue administrative remedies against violators of environmental law. This involves subjecting alleged violators to trial by judge in an administrative court. The remedies available to the administrative court include penalties, negotiated settlements, and supplemental environmental projects (such as public works projects). Administrative settlements may include monetary penalties and orders to clean up the contamination or pay for the contamination cleanup. An important administrative function for the EPA is determining liability for contamination and cleanup enforcement. Administrative enforcement actions must generally follow the procedures outlined under the Administrative Procedures Act.
• Government Civil and Criminal Actions – The EPA or state environmental agencies may also initiate civil or criminal actions against violators of environmental law. Civil actions may be federal lawsuits filed by the EPA in federal court or lawsuits by state agencies filed in state or federal court. The EPA or state environmental agencies, in conjunction with the US Department of Justice or a state attorney general’s office, may also initiate criminal actions against violators of environmental law. Criminal actions are generally reserved for particularly egregious violations that are intentional, knowing, or reckless. Generally, the US Justice Department files federal civil and criminal actions on behalf of the EPA. Likewise, state attorneys general generally file civil and criminal enforcement actions at the state level.
• Private Actions – Individuals may also bring private civil actions in state or federal court against violators of environmental law. Generally, these actions are based upon tort theory. The following are common types of private civil action for violations of environmental law:
⁃ Public Nuisance – A public nuisance is any activity that causes damage or harm to the general public or environment rather than to a specific individual’s person or property. Generally, only a public official appropriately charged with protecting the public may bring an action for public nuisance.
⁃ Private Nuisance – Nuisance generally entails the use of one’s property that unreasonably interferes with the use or enjoyment of another person’s property. Private nuisance is an action be an individual or group of individuals against a defendant or group of defendants. A court must determine what is an “unreasonable” use of one’s property.
⁃ Other Tort Doctrines – Other private causes of action against violators of environmental laws include:
⁃ Trespass – Trespass is when a person intentionally enters or causes something (e.g., trash, smoke, water, noise, fumes, etc.) to intentionally enter another person’s land without permission.
⁃ Negligence – This tort is based on the defendant’s failure to use ordinary and reasonable care in its actions affecting the plaintiff.
⁃ Strict Liability – Some activity by a defendant may be subject to strict liability for any injury resulting from the conduct. This is the case when undertaking any activity deemed to be ultrahazaroud in nature.
In some cases, individuals may file actions against representatives of state or federal agencies for failure to adequately enforce the federal or state environmental laws. In a civil action, the defendant has failed to comply with environmental statutes, regulations, or administrative orders.
• Discussion: How do you feel about the enforcement mechanisms available for violation of environmental laws? Why do you think the law allows for agency and private civil actions?
• Practice Question: ABC Corp is a large manufacturer of textiles. ABC pulls water from the river to cool the large company boilers. This water, once cooled, is re-deposited in the river. If ABC violates federal and state environmental laws by also dumping chemical wastes in the river, what are the potential actions available against ABC?