Interpreting Regulations in Environmental Enforcement Cases: Where Agency Deference and Fair Notice Collide
By Kenneth K. Kilbert and Christian J. Helbling
INTRODUCTION
Congress has enacted far-ranging environmental statutes during the past three decades, addressing water, air, waste, and much more. Not surprisingly, given the breadth of the environmental field, these statutes rarely try to address every nuance of the law. Instead, for most environmental statutes, Congress has delegated to the federal Environmental Protection Agency (“EPA”) the power to fill in the details by prescribing administrative rules and regulations. The regulations promulgated by the EPA are key aspects of most complex federal environmental programs, and federal environmental enforcement actions frequently are based on violations of regulations rather than on violations of statutes.
Unfortunately, the meaning of environmental regulations is not always crystal clear. Where an ambiguous regulation has more than one reasonable interpretation, a regulated party's interpretation of the regulation may not be the same as the EPA's interpretation. When an enforcement action ensues, courts often must decide which interpretation of the regulation they will enforce. If the court adopts the agency's interpretation, the regulated party may face civil or criminal penalties, even though the regulated party's interpretation also may be reasonable. If the court favors the regulated party's interpretation, however, the EPA's environmental program may be hampered.
Such cases frequently set the stage for a collision between two seemingly irreconcilable, oft-stated principles of the law: (1) courts should defer to the agency's interpretation of its own regulation, and (2) due process considerations demand that defendants have fair notice of what a regulation means before they can be held liable for violating it.
The collision between these two principles raises important issues. Should a court defer to an agency's interpretation that may not be the most reasonable interpretation? Or should a court rule against the EPA, even though the agency's interpretation may be reasonable, because the defendant did not have fair notice that defendant's interpretation was incorrect? Perhaps not surprisingly, the courts have handled the issues arising from this collision inconsistently.
This Article will explore the doctrines of “agency deference” and “fair notice” in environmental enforcement cases, discuss how courts have handled the collision between the two doctrines to date, and suggest a paradigm for courts to follow in future cases that tries to promote the principles and policies behind both doctrines. This paradigm features deference to “authoritative” EPA interpretations, recognizes that lack of fair notice of the EPA's interpretation may relieve a defendant of liability for prior violations of an ambiguous regulation, and identifies the sources from which fair notice should be derived.
Congress has enacted far-ranging environmental statutes during the past three decades, addressing water, air, waste, and much more. Not surprisingly, given the breadth of the environmental field, these statutes rarely try to address every nuance of the law. Instead, for most environmental statutes, Congress has delegated to the federal Environmental Protection Agency (“EPA”) the power to fill in the details by prescribing administrative rules and regulations. The regulations promulgated by the EPA are key aspects of most complex federal environmental programs, and federal environmental enforcement actions frequently are based on violations of regulations rather than on violations of statutes.
Unfortunately, the meaning of environmental regulations is not always crystal clear. Where an ambiguous regulation has more than one reasonable interpretation, a regulated party's interpretation of the regulation may not be the same as the EPA's interpretation. When an enforcement action ensues, courts often must decide which interpretation of the regulation they will enforce. If the court adopts the agency's interpretation, the regulated party may face civil or criminal penalties, even though the regulated party's interpretation also may be reasonable. If the court favors the regulated party's interpretation, however, the EPA's environmental program may be hampered.
Such cases frequently set the stage for a collision between two seemingly irreconcilable, oft-stated principles of the law: (1) courts should defer to the agency's interpretation of its own regulation, and (2) due process considerations demand that defendants have fair notice of what a regulation means before they can be held liable for violating it.
The collision between these two principles raises important issues. Should a court defer to an agency's interpretation that may not be the most reasonable interpretation? Or should a court rule against the EPA, even though the agency's interpretation may be reasonable, because the defendant did not have fair notice that defendant's interpretation was incorrect? Perhaps not surprisingly, the courts have handled the issues arising from this collision inconsistently.
This Article will explore the doctrines of “agency deference” and “fair notice” in environmental enforcement cases, discuss how courts have handled the collision between the two doctrines to date, and suggest a paradigm for courts to follow in future cases that tries to promote the principles and policies behind both doctrines. This paradigm features deference to “authoritative” EPA interpretations, recognizes that lack of fair notice of the EPA's interpretation may relieve a defendant of liability for prior violations of an ambiguous regulation, and identifies the sources from which fair notice should be derived.
