The Discovery Rule and the Continuing Violation Doctrine as Exceptions to the Statute of Limitations for Civil Environmental Penalty Claims
By James R. MacAyeal
INTRODUCTION
Many violations of federal environmental laws are continuous, occurring over an extended period of time. Due to the difficulty of detecting such violations, the United States Environmental Protection Agency (EPA) often does not discover them until an applicable statute of limitations period has expired. Accordingly, when the United States, or a citizen plaintiff, brings a lawsuit to recover civil penalties for these longstanding, continuing violations, defendants often assert the statute of limitations as a defense. Two doctrines are available to plaintiffs, however, by which they may avoid this defense and thus extend the time during which claims may be brought for civil penalties. The first is the discovery rule, under which a limitations period is held not to begin until the plaintiff knew or should have known of facts giving rise to the violation. The second is the continuing violation doctrine, which allows a plaintiff to recover for acts which, if viewed individually, would be time-barred, by treating them as part of a pattern of violations or as a single violation. The doctrine thus allows a plaintiff to base a claim on a series of related wrongful acts even if some of the acts occurred before the beginning of the limitations period.
While many courts have embraced these doctrines in cases of civil claims for environmental penalties, in 3M Co. v. Browner, the United States Court of Appeals for the District of Columbia Circuit rejected the application of the discovery rule to such claims and questioned the validity of applying the continuing violation doctrine in such cases. This article examines the role of the discovery rule and the continuing violation doctrine in protecting claims from statute of limitations bars, criticizes the holding in 3M, and argues that application of these doctrines in civil environmental penalty cases will further the remedial goals of environmental protection statutes.
Part II of the article briefly explains how statutes of limitations operate and what purposes they serve, then addresses the issue of what limitations period applies when a claim is brought under a federal environmental statute which lacks an express statute of limitations provision. Parts III and IV of the article describe, respectively, the origins and applications of the discovery rule and the continuing violation doctrine and illustrate why it is appropriate to apply each to environmental penalty claims. Additionally, Part IV notes that, depending on how each is viewed, the discovery rule and continuing violation doctrine may or may not achieve consistent results in a given case, and explains that the interplay of the two doctrines is a matter of some disagreement. Part V contains an extensive criticism of the decision in 3M, and shows that the court erred in its statutory construction, in its application of Supreme Court precedent, and in its consideration of policy issues. Part V also includes a discussion of recent cases which have declined to follow 3M. Finally, Part VI concludes that because the discovery rule and continuing violation doctrine are both consistent with the purposes of statutes of limitations and supportive of the remedial goals of environmental statutes, courts should not hesitate to apply them to civil environmental penalty claims.
Many violations of federal environmental laws are continuous, occurring over an extended period of time. Due to the difficulty of detecting such violations, the United States Environmental Protection Agency (EPA) often does not discover them until an applicable statute of limitations period has expired. Accordingly, when the United States, or a citizen plaintiff, brings a lawsuit to recover civil penalties for these longstanding, continuing violations, defendants often assert the statute of limitations as a defense. Two doctrines are available to plaintiffs, however, by which they may avoid this defense and thus extend the time during which claims may be brought for civil penalties. The first is the discovery rule, under which a limitations period is held not to begin until the plaintiff knew or should have known of facts giving rise to the violation. The second is the continuing violation doctrine, which allows a plaintiff to recover for acts which, if viewed individually, would be time-barred, by treating them as part of a pattern of violations or as a single violation. The doctrine thus allows a plaintiff to base a claim on a series of related wrongful acts even if some of the acts occurred before the beginning of the limitations period.
While many courts have embraced these doctrines in cases of civil claims for environmental penalties, in 3M Co. v. Browner, the United States Court of Appeals for the District of Columbia Circuit rejected the application of the discovery rule to such claims and questioned the validity of applying the continuing violation doctrine in such cases. This article examines the role of the discovery rule and the continuing violation doctrine in protecting claims from statute of limitations bars, criticizes the holding in 3M, and argues that application of these doctrines in civil environmental penalty cases will further the remedial goals of environmental protection statutes.
Part II of the article briefly explains how statutes of limitations operate and what purposes they serve, then addresses the issue of what limitations period applies when a claim is brought under a federal environmental statute which lacks an express statute of limitations provision. Parts III and IV of the article describe, respectively, the origins and applications of the discovery rule and the continuing violation doctrine and illustrate why it is appropriate to apply each to environmental penalty claims. Additionally, Part IV notes that, depending on how each is viewed, the discovery rule and continuing violation doctrine may or may not achieve consistent results in a given case, and explains that the interplay of the two doctrines is a matter of some disagreement. Part V contains an extensive criticism of the decision in 3M, and shows that the court erred in its statutory construction, in its application of Supreme Court precedent, and in its consideration of policy issues. Part V also includes a discussion of recent cases which have declined to follow 3M. Finally, Part VI concludes that because the discovery rule and continuing violation doctrine are both consistent with the purposes of statutes of limitations and supportive of the remedial goals of environmental statutes, courts should not hesitate to apply them to civil environmental penalty claims.