Enforcement "Overfiling" in the Federal Courts: Some Thoughts on the Post-Harmon Cases
By Joel A. Mintz
INTRODUCTION
Since the establishment of the U.S. Environmental Protection Agency (“EPA”) in 1970, rivalries between federal and state officials in matters of environmental policy have been extensive, intense, and remarkably persistent. Those rivalries have nowhere been more heated than in the critical area of environmental enforcement. From the early 1970s, when state officials angrily protested against the EPA's new and aggressive enforcement program, through the initial period of George W. Bush's presidency, when Congress rebuffed an administration proposal to cut the EPA's enforcement budget in favor of increased state enforcement, state and federal personnel have clashed publicly and frequently over the direction and disposition of individual enforcement matters, as well as various specific aspects of enforcement policies.
These disputes have typically been resolved in the political arena. At the same time, federal-state disagreements on enforcement matters have sometimes given rise to purely legal questions. One such issue concerns the statutory authority of the EPA to initiate federal enforcement action against a particular defendant notwithstanding the institution of a separate state enforcement proceeding against the same defendant for the same environmental violations. This is sometimes referred to as “overfiling” environmental lawsuits.
This question has important practical significance. Without the legal ability to overfile in particular enforcement matters, the EPA's options in cases where a state has failed to make a timely and appropriate enforcement response to an environmental violation would be constrained severely. Under such circumstances, the EPA could accept the state's inadequate response--a course of action that might well undercut important national enforcement priorities and encourage the creation of “pollution havens” in states with lax environmental enforcement policies. Alternatively, the EPA could federalize all enforcement activities in the state, a time-consuming and politically perilous approach that, if successful, would place an enormous strain upon the EPA's highly limited enforcement resources.
Additionally, in the absence of EPA overfiling authority, the efforts of state officials who wished to take an assertive stance in particular environmental enforcement cases would be greatly undercut. In such situations, state enforcement negotiations often gain an advantage by mentioning to defendants the possibility that the EPA may reject an inadequate state settlement and bring a separate federal enforcement proceeding against the same defendant. However, if the EPA lacked the legal ability to overfile, such statements would lack credibility, and much of the negotiating “leverage” available to well-intentioned state enforcement officials through this technique undoubtedly would vanish.
This comment assays the approaches taken by the several federal courts that have considered the lawfulness of overfiling. It begins with a discussion of Harmon Industries, Inc. v. Browner, the first decision in which a court ruled, in the context of an “overfiled” federal civil enforcement suit against a Missouri circuit board assembly plant under the Resource Conservation and Recovery Act (“RCRA”), that the EPA lacked the statutory authority to maintain the action. After summarizing both the Harmon case itself and the responses to it by legal commentators, this comment then considers five federal cases, handed down subsequent to Harmon, that reject the Harmon rationale and reach entirely different conclusions with respect to the EPA's power to “overfile” enforcement actions under RCRA and other federal environmental acts. Finally, this comment analyzes the current state of overfiling law in the wake of the post-Harmon cases, weighs their respective merits, and suggests a modest amendment to RCRA that would leave no doubt as to Congress's intentions with respect to the enforcement authority of federal and state personnel.
Since the establishment of the U.S. Environmental Protection Agency (“EPA”) in 1970, rivalries between federal and state officials in matters of environmental policy have been extensive, intense, and remarkably persistent. Those rivalries have nowhere been more heated than in the critical area of environmental enforcement. From the early 1970s, when state officials angrily protested against the EPA's new and aggressive enforcement program, through the initial period of George W. Bush's presidency, when Congress rebuffed an administration proposal to cut the EPA's enforcement budget in favor of increased state enforcement, state and federal personnel have clashed publicly and frequently over the direction and disposition of individual enforcement matters, as well as various specific aspects of enforcement policies.
These disputes have typically been resolved in the political arena. At the same time, federal-state disagreements on enforcement matters have sometimes given rise to purely legal questions. One such issue concerns the statutory authority of the EPA to initiate federal enforcement action against a particular defendant notwithstanding the institution of a separate state enforcement proceeding against the same defendant for the same environmental violations. This is sometimes referred to as “overfiling” environmental lawsuits.
This question has important practical significance. Without the legal ability to overfile in particular enforcement matters, the EPA's options in cases where a state has failed to make a timely and appropriate enforcement response to an environmental violation would be constrained severely. Under such circumstances, the EPA could accept the state's inadequate response--a course of action that might well undercut important national enforcement priorities and encourage the creation of “pollution havens” in states with lax environmental enforcement policies. Alternatively, the EPA could federalize all enforcement activities in the state, a time-consuming and politically perilous approach that, if successful, would place an enormous strain upon the EPA's highly limited enforcement resources.
Additionally, in the absence of EPA overfiling authority, the efforts of state officials who wished to take an assertive stance in particular environmental enforcement cases would be greatly undercut. In such situations, state enforcement negotiations often gain an advantage by mentioning to defendants the possibility that the EPA may reject an inadequate state settlement and bring a separate federal enforcement proceeding against the same defendant. However, if the EPA lacked the legal ability to overfile, such statements would lack credibility, and much of the negotiating “leverage” available to well-intentioned state enforcement officials through this technique undoubtedly would vanish.
This comment assays the approaches taken by the several federal courts that have considered the lawfulness of overfiling. It begins with a discussion of Harmon Industries, Inc. v. Browner, the first decision in which a court ruled, in the context of an “overfiled” federal civil enforcement suit against a Missouri circuit board assembly plant under the Resource Conservation and Recovery Act (“RCRA”), that the EPA lacked the statutory authority to maintain the action. After summarizing both the Harmon case itself and the responses to it by legal commentators, this comment then considers five federal cases, handed down subsequent to Harmon, that reject the Harmon rationale and reach entirely different conclusions with respect to the EPA's power to “overfile” enforcement actions under RCRA and other federal environmental acts. Finally, this comment analyzes the current state of overfiling law in the wake of the post-Harmon cases, weighs their respective merits, and suggests a modest amendment to RCRA that would leave no doubt as to Congress's intentions with respect to the enforcement authority of federal and state personnel.
